author: | JAMES L. CANNELLA, Judge.

text:
    SUNBELT-UBI BUSINESS BROKERS, INC. v. John R. LANKFORD and Gray Entertainment, Inc.
    No. 03-CA-1477.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Michael G. Gaffney, Hurndon & Gaffney, New Orleans, LA, for Appellant.
    Steven A. Watts, Metairie, LA, for Ap-pellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

In this breach of contract case, the Defendant, John R. Lankford (Lankford), appeals from a default judgment granted against him for $25, 373.04, along with interest, costs and attorney fees of $1,500, in favor of the Plaintiff, Sunbelt-UBI Business Brokers, Inc. (Sunbelt). For the reasons which follow, we reverse and remand.

On October 18, 1999, Lankford signed a listing agreement with Sunbelt to sell the business known as Pyramids that was owned and operated by Gray Entertainment, Inc. (Gray) The listing agreement began on October 18, 1999 and ended on April 30, 2000. The agreement further provided that Sunbelt would, under certain conditions, be paid 12% of the purchase price or a minimum of $8,500.' Sunbelt alleges that Lankford and Gray breached the listing agreement with Sunbelt by selling Pyramids on June 16, 2000, through a stock sale, without paying Sunbelt its commission. Sunbelt filed suit on July 27, 2000 against Lankford and Gray. On March 27, 2001, Sunbelt filed a Motion for a Preliminary Default. On April 3, 2001, the preliminary default was confirmed and judgment was rendered and signed against Lankford only in the amount of $25,373.01, together with interest, costs and attorney fees in the amount of $1,500. Lankford filed a Motion for New Trial and Motion for Stay of Judgment on January 29, 2003 |sand they were denied on July 17, 2003. A devolutive appeal was filed on September 3, 2003. On appeal Lankford assigns seven errors.

DEFICIENT SERVICE

By his first three assignments of error, Lankford argues that the trial court erred in granting the default judgment because of defects with service. He argues that the Affidavit of Service filed herein pursuant to the Louisiana Long-Arm Statute was defective in that the affi-ant is not the person who actually mailed the letter, as required by La. R.S. 13:3205. He also argues that service was deficient because it is not shown that Lankford was served with the petition. Finally, he argues that since the transmittal letter provided “Please contact me upon receipt of same,” it was deceptive and misleading and Lankford did not know he had to file an answer in a lawsuit.

Sunbelt argues that the affiant was the person who prepared and mailed the statutorily required documents and Lankford’s assertions to the contrary are not supported by the record. Further the affidavit, as required by law, expressly provides that certified copies of the citation and the petition were mailed to Lankford and, further, the citation specifies that the petition is attached. Finally, Sunbelt notes that requesting that Lankford call counsel does not mislead him where the citation and petition make it clear that a lawsuit has been filed and must be addressed. Moreover, Sunbelt points out that in Lankford’s motion for new trial, it is acknowledged that “suit was served upon Lankford via the Louisiana Long Arm Statute on August 12, 2000.”

La. R.S. 13:3205, regarding proof of service, provided:

|4No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.

The Affidavit of Service, filed into the record in this case, provides:

STATE OF LOUISIANA

PARISH OF JEFFERSON

BEFORE ME, personally came and appeared Steven A. Watts (“Affiant”), a person of the full age of majority and a resident of Jefferson Parish, Louisiana, who after being duly sworn declared that

1. Affiant is an attorney for Sunbelt-UBI Business Brokers, Inc., in the captioned proceeding.
2. Affiant caused to be mailed to defendant John R. Lankford (“Mr.Lankford”) at 117 East Avenue, Long Beach, Mississippi, certified copies of citation and Petition filed in the above captioned proceeding, by properly enclosing the aforesaid documents in an envelope properly addressed to Mr. Lankford, with sufficient postage affixed. Copies of Affiant’s August 11, 2000 letter to Mr. Lankford and the aforesaid documents mailed to Mr. Lankford, which documents are identified in said August 11, 2000 letter, are attached hereto in globo as Exhibit “A” and made a part hereof.
3. Affiant caused the aforesaid envelope with the aforesaid certified copies of citation and Petition to be deposited in the United States mail on August 11, 2000. A return receipt “green card” was attached to said envelope. A copy of the applicable certified mail return receipt form is attached hereto as Exhibit “B.” The aforesaid return receipt “green card,” showing receipt of the aforesaid letter and documents on behalf of Mr. Lankford on August 12,
4. [sic] 2000, has been returned to Affi-ant. That original return receipt “green card” is attached hereto as exhibit “C” and made a part hereof.
5. Affiant has complied in all respects with the requirements of the Louisiana long arm statute, La. R.S. 13:3201-3207, for personal service of process by certified mail on defendant John R. Lankford.

IfiThe affidavit is signed by Steven Watts before a Notary Public.

The transmittal letter states in part, “Pursuant to the provisions of the Louisiana Long-Arm Statute, please find enclosed original citation and petition with regard to the above captioned lawsuit.” The citation provides in part, “You are hereby summoned to comply with the demand contained in the PETITION of which a true and correct copy accompanies this citation, or make an appearance either by filing a pleading or otherwise, in the 24th Judicial District Court in and for the Parish of Jefferson, State of Louisiana, within THIRTY CALENDAR days after the service hereof, under penalty of default.”

Upon review, we find that the affidavit is sufficient to satisfy the requirements of La. R.S. 13:3205. It is clear from reading the affidavit in its entirety that the affiant is the person who mailed the documents to Lankford. He stated that he enclosed the citation and petition in an envelope properly addressed to Lankford, with sufficient postage affixed. He provided the date on which it was deposited in the United States mail and that he received the return receipt with Lankford’s signature on it. The pertinent documents were attached as exhibits. The transmittal letter also states that the citation and petition were enclosed. The citation itself states that the petition accompanies the citation and advises Lankford that he has thirty days to respond “under penalty of default.” We find no error in the fact that the trial court rendered judgment in this case based on the evidence of service contained in this record and the explicit advisement that action must be taken to prevent a default.

LACK OF PRIMA FACIA SHOWING TO CONFIRM DEFAULT

In the next three assignments of error, Lankford argues that the evidence presented was insufficient to prove Sunbelt’s entitlement to | ^judgment in the amount of $25,373.04. More particularly, Lankford argues that there was insufficient proof of a breach, since the sale occurred after the termination of the listing agreement. He argues that there was no evidence presented bringing this sale within the terms of the listing agreement. Further he argues that there was insufficient proof of the amount awarded if any amount was due at all. In other words, the judgment of default was not confirmed by proof of the demand sufficient to establish a prima facie case.

Sunbelt argues to the contrary that the evidence was sufficient. Sunbelt points out that the listing agreement evidencing the commission due of 12% of the sale price was introduced and a witness, John Monju (Monju) testified as to the final sale price and the fact that the parties ultimately purchasing the property were the same parties who had negotiated through Sunbelt with Lankford during the listing agreement term, thereby, entitling them to the commission under the listing agreement.

It is well settled that a prima facie case sufficient to confirm a default judgment is established only when the party proves with competent evidence the essential allegations of his petition as fully as if each of the allegations were specifically denied. Beevers v. Burmaster, 00-1951 (La.App. 5th Cir.4/11/01), 787 So.2d 381; Bennett v. Bennett, 97-1150 (La.App. 5th Cir.7/28/98), 716 So.2d 454; Fridge v. Sampognaro, 97-240 (La.App. 5th Cir.9/30/97), 700 So.2d 1090. Hearsay evidence is not considered competent evidence in establishing a prima facia case sufficient to confirm a default judgment. Zahn v. Hibernia Nat. Bank, 94-204 (La.App. 5th Cir.11/16/94), 646 So.2d 1149; Cornish v. Doctors Care, LLC, 2002-0285 (La.App.4th Cir. 6/12/02), 819 So.2d 1158; Martin v. Sanders, 35,575 (La.App. 2nd Cir. 1/23/02), 805 So.2d 1209.

In reviewing the evidence presented to confirm the default, we find that it was insufficient to support the confirmation of the default. Sunbelt is correct that |7the listing agreement was introduced into evidence entitling it to a 12% commission based on the purchase price of the sale of the property listed in the agreement. The agreement further provided that the term extended to any sale or transfer of the property within two years of the date of the sole and exclusive period to any person, firm or entity with whom negotiations for the acquisition of all or any part of the business began during the sole and exclusive period. However, the proof of the sale of the property and the price of the sale is insufficient.

Monju testified that he went to the premises and witnessed it being remodeled and inquired as to whether there had been a purchase. He testified that he was told that the property had been purchased, by whom it was purchased and the purchase price. None of the documentation supporting this information was introduced into evidence. Monju’s testimony was hearsay and, standing alone, does not suffice to establish a prima facia case to confirm the default.

Sunbelt did belatedly attach the necessary supporting documents to its opposition to Lankford’s motion for new trial and there appears to be little doubt as to Sunbelt’s entitlement to a commission under the listing agreement. However, this appeal addresses the insufficiency of the evidence presented to support the confirmation of the default. Based on the record and the evidence presented to confirm the default, we must find that the evidence, primarily hearsay, was insufficient.

Accordingly, we reverse the default judgment granted in favor of Sunbelt and against Lankford and remand to the trial court for further proceedings. Costs of appeal are assessed against Sunbelt.

REVERSED AND REMANDED.

      . La. R.S. 13:3205 was amended by Act 619 of 2003 and, although not pertinent here, now provides:
      No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either:
      (1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the ■ defendant; or
      (2) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.


source: Caselaw Access Project

author: | .MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Shahid Iqbal ABBASI v. STATE FARM INSURANCE COMPANY, Shane Jackson and Shannon Ramirez.
    No. 04-CA-44.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied July 13, 2004.

      Salvador M. Brocato, Jim S. Hall, Me-tairie, LA, for PlaintiffiAppellee.
    David A. Stauss, Bryan J. De Tray, Christian A. Garbett, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

The present appeal is taken from a final judgment of the First Parish Court for the Parish of Jefferson. Plaintiff/appellee, Shahid Iqbal Abbasi, filed suit against defendants/appellants Shannon Ramirez, Shane Jackson, and State Farm Mutual Insurance Company. Mr. Abbasi alleged that on October 27, 2000, he was injured when the vehicle which he was driving was struck by an automobile owned by Ms. Ramirez but operated by Mr. Jackson. State Farm answered the petition on its own behalf and on behalf of its insured, Ms. Ramirez, and filed an Exception of No Cause of Action. Service was never made on either Mr. Jackson or Ms. Ramirez. At the conclusion of the trial on the merits, State Farm orally moved to dismiss Mr. Jackson because he had not been served with the petition. In the judgment resulting from the trial, the court declined to dismiss Mr. Jackson, and determined that Mr. Abbasi “made adequate effort to locate the driver, Shane Jackson and requested service timely. Should this Court follow defendants’ | ^argument, then parties who evade service likewise prevent the insurer from being liable.”

The court found Mr. Jackson was at fault, and that Mr. Jackson was operating Ms. Ramirez’s vehicle with her permission. The court also determined that Mr. Abbasi was comparatively negligent to the degree of 30%. A judgment of $7500.00 for pain and suffering was awarded, plus $750.00 for medical expenses, and the judgment was reduced by 30%.

At trial, State Farm agreed to stipulate that it’s insured, Ms. Ramirez, gave permission to Mr. Jackson to operate her vehicle, and that the insurance policy in effect at the time of the accident covered the user, Mr. Jackson.

On appeal, State Farm contends that insofar as there is judgment against Mr. Jackson, such is an absolute nullity as he was never served with process. We agree. Procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action against an individual. Under La. C.C.P. art. 1201, a judgment rendered against a defendant who has not been validly cited and served with the petition is absolutely null, even if there is actual notice of the suit. Without such citation and service of process, the court does not have jurisdiction over the person of the defendant. Further, La. C.C.P. art. 2002 A(2) provides that among those judgments which may be annulled are those rendered “against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken.” Therefore, the court did not have personal jurisdiction over Mr. Jackson to render a judgment against him.

State Farm next alleges that the trial court made no specific finding that Ms. Ramirez was at fault. In his petition, Mr. Abbasi urged that Ms. Ramirez was | negligent in allowing Mr. Jackson to operate her vehicle when she knew or should have known that he was not capable of doing so safely, and that she failed to properly and adequately supervise him.

Mr. Abbasi testified that on the day of the accident, he was driving his cab in the right lane on Cleary Avenue, heading toward Veterans Boulevard. In that lane, one must turn right onto Veterans. The lane was clear, but traffic in the left lane was backed up due to a red light. The car driven by Mr. Jackson came straight across Cleary from a parking lot to the left, and Mr. Abbasi’s vehicle collided into it.

Ms. Ramirez testified that she was a passenger in her car that day, as Mr. Jackson drove. In crossing Cleary, there were cars in the left lane on both sides of her vehicle. A white van stopped in the opposite lane and motioned the Ramirez car through; Ms. Ramirez did not know whether Mr. Jackson could see past the van into the right lane. She did not see the Abbasi vehicle before the accident, but thought that her car was completely clear of the left lane when it was struck. Just prior to the accident, after Mr. Jackson turned and was in front of the van, he drove very slowly and looked to his right to see if there was any oncoming traffic.

Negligence claims under La. Civ. Code art. 2315 are examined using a Duty/ Risk analysis. The Duty/Risk analysis is a set of five separate elements that takes into account the conduct of each party and the peculiar circumstances of each case. One of the necessary considerations in the Duty/Risk analysis is to determine what, if any, duties were owed by the respective parties. Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like | Kcircumstances. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties.

In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages which occur while another is operating the vehicle. Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Imputation of negligence of one person to another is allowed only when there exists between them some relation of master or superior and servant or subordinate or other similar relationship. The relationship between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relationship between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person who was actually negligent.

Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence of the borrower unless he knew or should have known that the borrower was physically or mentally incompetent to drive; if the lender knew or should have known of the borrower’s incompetence then he is responsible for the harm resulting from the incompetent operation of the vehicle.

The evidence at trial discloses no evidence that Mr. Jackson was physically or mentally incompetent to drive, or that if any such incompetence existed, that Ms. Ramirez knew or should have known it. Moreover, there was no showing as to why Mr. Jackson was driving the car, that he was on a mission for Ms. Ramirez, or that he was either her agent or employee. Mr. Jackson and Ms. Ramirez were not married. Based on the evidence, we are unable to conclude that there existed a 1 ficommon or joint enterprise at the time of the accident, or that Ms. Ramirez had a legal right to control the actions of Mr. Jackson. In its judgment, the trial court made no finding of fault or negligence against Ms. Ramirez. When a judgment is silent regarding an issue that was litigated, it is presumed to be a rejection of that claim. Under the facts and circumstances of the instant case, we see no manifest error in the refusal of the trial court to assess liability to Ms. Ramirez.

We find no error in the assessment of the comparative fault of Mr. Jackson and Mr. Abbasi. However, we consider the stipulations agreed to by State Farm that its insured, Ms. Ramirez, gave permission to Mr. Jackson to operate her vehicle, and that the insurance policy in effect at the time of the accident covered the user, Mr. Jackson. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case. Thus, we note the elements necessary to establish Mr. Abbasi’s case against State Farm were sufficiently presented in the stipulation itself.

State Farm argues that because “the claims against Shane Jackson should have been dismissed, and the claims against Ms. Ramirez were properly rejected,” the only defendant who was properly before the court was State Farm. It further urges that under La. R.S. 22:655(B)(1), the claims against it must be dismissed because Mr. Abbasi had no right to proceed directly against the insurer. This assignment of error is a misapplication of the applicable law and facts.

Under R.S. 22:655(B)(1), a direct action may be brought against the insurer alone only when:

|7(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
(b) The insured is insolvent;
(c) Service of citation or other process cannot be made on the insured;
(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
(e) When the insurer is an uninsured motorist carrier; or
(f) The insured is deceased.

It has been held that under this statute, direct actions against insurers are strictly limited to those five enumerated circumstances, and when the insured is dismissed, there is no direct right of action against the insurer.

We have found that a valid judgment could not be taken against Mr. Jackson personally because he was not served with process. (Nevertheless, he has not been dismissed from the proceedings nor does the appellate record indicate that he has filed a petition to annul the judgment.) Further, it is true that Ms. Ramirez was not personally served with a copy of the petition. However, Ms. Ramirez did not object to jurisdiction, but rather personally appeared before the court at trial. A party may waive an objection to the jurisdiction by an appearance of record, which includes filing a pleading or appearing at a hearing. State Farm filed its answer on its own behalf as well as that of Ms. Ramirez. Mr. Abbasi properly proceeded against both State Farm and its insured, Ms. Ramirez, at trial. This matter is distinguishable from other cases cited by State Farm, since in the present instance, the insured was never dismissed by the trial court.

By virtue of the stipulations at trial, Mr. Jackson was covered under the terms of State Farm’s policy. In this case, the direct action statute does not apply to release State Farm from the action.

IsState Farm alleges that Mr. Ab-basi failed to prove that his injuries were caused by the accident at issue. Mr. Ab-basi had been involved in an earlier accident in September of 2000, and had complaints of a right ankle and neck injury. At this time, he was being treated at the general surgery office of Dr. Stewart Altman. According to the medical records, by October 10, 2000, Mr. Abbasi was feeling better. On his first doctor visit 4 days after the accident at issue, (the date of a previously scheduled appointment) he saw Dr. Qureshi at Dr. Altman’s office. Medical notes indicate that on this visit of October 31st, Mr. Abbasi stated that his neck felt better. A somewhat confusing medical report dated November 14, 2000, states that on October 31, 2000, Mr. Abbasi was examined by Dr. Qureshi, then later states that an examination was not performed because the patient reported a new accident, and was discharged from the first accident. Dr. Altman later examined Mr. Abbasi in November 2000, and noted that Mr. Abbasi did not feel worsened neck pains until October 31, 2000, 4 days after the accident. According to Dr. Altman, it is not unusual for a patient with soft tissue injury to start feeling pain several days after the accident. It was also noted that there was new back pain, and pain in the left ankle was new. There were muscle spasms in the cervical and lumbar spines, and a decreased range of motion in his back. The diagnosis was a cervical and trapezius muscle sprain with worsening of preexisting sprains, a new lumbosacral sprain, and new left ankle abrasion. More probably than not, assuming the patient history is correct, the injuries were related to the October 27th accident. Mr. Abbasi was put on light duty work restrictions, and some physical therapy was prescribed.

Dr. Qureshi saw Mr. Abbasi on a visit on December 12th, and noted the neck pain was the same. No notations were made on back pain, although ultrasound was recommended for his neck and right upper back. In March, 2001, lumbar spine spasms were noted by Dr. Altman, as well as decreased range of motion in |sthe cervical spine. Mr. Abbasi still had symptoms in his neck and back, but did not return to Dr. Altman after this date. Dr. Altman testified that from the date of the accident through March 12, 2000, Mr. Abbasi had consistent treatment for the injuries related to the accident.

On cross examination, Dr. Altman testified that since the record of October 31st did not so indicate, that Mr. Abbasi did not inform Dr. Qureshi of the second accident at the time of the October 31st visit. Further, he agreed that between November 10, 2000 and March 12, 2001, there was no documented complaint of back pain. Further, in his deposition the doctor agreed that he stated that the spasms could have been related to the first accident. However, he based his opinion on Mr. Abbasi’s statement that he felt worse after the second accident. Dr. Altman stated that he had no reason to doubt Mr. Abbasi’s credibility.

Mr. Abbasi testified that his neck was getting better until the second accident. Before the accident in question, he had not injured his back or his other ankle. State Farm points to apparent discrepancies in his testimony and in the medical records as a challenge to Mr. Abbasi’s credibility.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.
If the trial court’s findings are reasonable in light of the record viewed in its entirety, the appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.
The manifest error-clearly wrong standard demands great deference to the trier of fact’s findings, for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear o heavily on the listener’s understanding and belief in what is said.

While we do find some discrepancies in the testimony, we do not find them to have been of such magnitude to compel us to conclude that the trial court was | inmanifestly erroneous in believing it. Rather, it is clear that there was somewhat of a language barrier which affected Mr. Abbasi’s testimony. In addition, there was no question of Dr. Altman’s credibility as a witness. Granting the trial court the proper deference, we find no error in its credibility determinations.

There was sufficient evidence produced in the medical records and testimony to prove that an exacerbation of Mr. Abbasi’s neck injury occurred. The defendant must take the victim as he finds him and he is responsible for all natural and probable consequences of his tortious conduct. When the defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation.

Further, there were indications that Mr. Abbasi received some therapy for back pain following the second accident, although documented complaints of such pain are absent from the record. There was also evidence that Mr. Abbasi injured his ankle in the accident. It was within the trial judge’s discretion to choose how much weight to give to the medical testimony and documentary evidence, and we cannot say the court was manifestly erroneous in determining that Mr. Abbasi proved that he suffered pain from his injuries in the accident for four and one-half months.

State Farm urges that the damage award was excessive. Mr. Abbasi has answered the appeal, alleging that the damage award was insufficient.

The trial court has great discretion in the assessment of damages. An appellate court should increase or decrease an award only when the amount is beyond that which a reasonable trier fact could assess for the effects of the particular injury upon the particular plaintiff under the circumstances of the case. In Considering the evidence produced in this case, we see no abuse of discretion in the damage award.

For the foregoing reasons, the portion of the judgment which finds that Mr. Jackson should not have been dismissed from the suit is set aside. In all other respects, the judgment is affirmed. State Farm is assessed costs of this appeal.

SET ASIDE IN PART; AFFIRMED IN PART.

      . In re Justice of Peace Landry, 2001-0657 (La.6/29/01), 789 So.2d 1271.

      . Id.; Poret v. Billy Ray Bedsole Timber Contractor, Inc., 31, 531 (La.App. 2 Cir. 1/22/99), 729 So.2d 632 citing U.S. Fidelity and Guaranty Co. v. Hurley, 96-1421 (La.App. 4 Cir. 8/6/97), 698 So.2d 482.

      . Joseph v. Dickerson 1999-1046 (La.1/19/00), 754 So.2d 912, and the cases cited therein.

      . Id.

      . Aupied v. Joudeh, 96-202 (La.App. 5 Cir.4/9/97), 694 So.2d 1012, writ denied 97-1583 (La.10/10/97), 703 So.2d 605.

      . Id.

      . Oaks v. Dupuy, 32,070, (La.App. 2 Cir. 8/18/99), 740 So.2d 263.

      . See Cuny v. Quinn, 03-649 (La.App. 5 Cir. 10/28/03), 860 So.2d 232; Klein v. BMW of North America, Inc., 97-871 (La.App. 5 Cir. 12/30/97), 705 So.2d 1200.

      . Becht v. Morgan Bldg. & Spas, Inc., 2002-2047 (La.4/23/03), 843 So.2d 1109.

      . White v. State Farm Ins. Co., 2003-0754 (La.App. 4 Cir. 11/26/03), 862 So.2d 263; Foltmer v. James, 2001-1510 (La.App. 4 Cir. 9/12/01), 799 So.2d 545.

      . See Glass v. Alton Ochsner Medical Foundation (Ochsner Foundation Hosp.) 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403; writs denied 2002-3018 (La.3/14/03), 839 So.2d 37, 2002-2977 (La.3/14/03), 839 So.2d 36.

      . Jones v. Phillips, 03-636 (La.App. 5 Cir. 11/12/03), 861 So.2d 618, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

      . Jones v. Phillips, supra.

      . Id.

      . Dorvilier v. Gagliano, 2002-2765 (La.App. 4 Cir. 8/27/03), 855 So.2d 393.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Gary M. HALL a/k/a Gary Ancar a/k/a Marcus Smith and Demethrius O. Barnes.
    No. 03-KA-906.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Thomas Block, Bradley Burgett, Assistant District Attorneys, Twenty Fourth Judicial District, Parish of Jefferson, Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

STATEMENT OF THE CASE

Defendants, Gary Hall and Demethrius Barnes, were charged by bill of information on January 16, 2002, with possession of a stolen thing valued over $1,000, in violation of LSA-R.S. 14:69(A). Hall was additionally charged with accessory after the fact to possession of a stolen thing, in violation of LSA-R.S. 14:25 and 14:69(A). Both defendants pled not guilty and filed several pre-trial motions. On June 25, 2002, both defendants proceeded to trial. After a two-day trial, a six person jury found Hall guilty as charged on both counts and Barnes guilty as charged on the one count with which he was charged.

Hall was sentenced to five years at hard labor for possession of a stolen thing valued over $1,000 and two years at hard labor for accessory after the fact to possession of a stolen thing. These sentences were ordered to run concurrently. Barnes was sentenced to eight years at hard labor for possession of a stolen thing valued over $1,000.

Thereafter, the State filed separate multiple bills of information alleging Hall to be a third felony offender and Barnes to be a second felony offender. Hall | -Initially denied the allegations contained in the multiple bill but later stipulated to being a third felony offender, after being advised of his rights. The trial court vacated Hall’s original sentence for illegal possession of a stolen thing valued over $1,000, and resen-tenced him as a multiple offender to six years and seven months at hard labor without the benefit of probation or suspension of sentence, to run concurrently with his sentence for accessory after the fact to possession of a stolen thing. Barnes also initially denied the allegations contained in the multiple bill but later stipulated to being a second felony offender, after being advised of his rights. Barnes’ original sentence was vacated and he was resentenced as a multiple offender to nine years at hard labor without the benefit of probation or suspension of sentence.

Both defendants appeal their convictions.

FACTS

At approximately 4:30 a.m. on September 18, 2001, Sergeant Danny Spears, a patrol supervisor with the Plaquemines Parish Sheriffs Office, was returning home to his apartment in the St. Germaine apartment complex on Manhattan Boulevard when he saw two black males pushing a motorcycle. A third black male was walking approximately thirty feet behind the others, and he was carrying his shoes in his hands. As Sgt. Spears approached the men in his unmarked Crown Victoria, the two men stopped pushing the motorcycle, put the kickstand down, and walked away. The third man, later identified as Hall, walked up to Sgt. Spears and told him that the two men were trying to steal his sister’s boyfriend’s motorcycle. Hall then told Sgt. Spears which way the two men ran but, according to Sgt. Spears, the two men actually ran in the opposite direction.

Sgt. Spears radioed another Plaque-mines Parish Sheriffs deputy, William Black, and gave him descriptions of the two men who had been pushing the motorcycle and who had run. Sgt. Spears then ran after the two men. Deputy |4BIack arrived at the scene and saw a black male running behind the apartment complex. He pursued the subject on foot but subsequently lost sight of him. Thereafter, Sgt. Spears and Deputy Black located one black male, later identified as Barnes, crouched behind some bushes and an air conditioning unit near the apartment complex. Sgt. Spears recognized Barnes as the man who had been pushing the front of the motorcycle. He was ordered out from behind the bushes and placed in handcuffs. Barnes claimed he had been arguing with his girlfriend and was simply out for a walk.

By this time, Deputy Dave Jackson with the Jefferson Parish Sheriffs Office arrived at the scene. Sgt. Spears gave Deputy Jackson a description of Hall, who had left the scene. Deputy Jackson located Hall walking down Manhattan Boulevard wearing slippers and reading a newspaper. Hall initially told Deputy Jackson that he was out jogging, but then stated that he had been in an argument with his girlfriend and was on his way home. Sgt. Spears subsequently identified Hall as the person who had spoken to him at the crime scene.

Kathy Sonnier testified that on the morning of September 18, 2001, she was delivering newspapers for the Times Picayune at the St. Germaine apartment complex on Manhattan Boulevard. She saw a black male, who she later identified by photograph as Gary Hall, running with shoes in his hands. He stopped and told her, “Good morning,” and then quickly walked away. When he was approximately 15-20 feet away, she heard him yell, “Where did you go?” but he was not talking to her.

At trial, Michael Durr testified that he lived in the St. Germaine apartment complex in September 2001. He stated that he parked his Honda motorcycle outside his apartment on September 17, 2001 and last saw it there at 12:30 a.m. on September 18, 2001. Mr. Durr explained that he was awakened between 4:00-4:30 | Ra.m. by the police at which time he discovered his motorcycle was gone. He was led down the road where he saw a motorcycle that he identified as his own. The ignition switch was damaged and there were scrapes on the bike. Mr. Durr stated that he did not give anyone permission to move his motorcycle, and he did not know either of the defendants. Mr. Durr testified his motorcycle was worth more than $1,000 and that the damage done to the bike was estimated at $1,200.

DISCUSSION

Defendants Hall and Barnes both argue that the evidence was insufficient to support their convictions. In Hall’s first assignment of error, he argues that the trial court erred in failing to grant his motion for a new trial because there was insufficient evidence to support his convictions for possession of stolen property and accessory after the fact. In Barnes’ second assignment of error, he alleges that the evidence was insufficient to uphold his conviction, because the State failed to prove that he was the person seen by the police pushing the motorcycle.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Jackson standard of review is an objective standard for testing all of the evidence, both direct and circumstantial, for reasonable doubt. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Hall and Barnes were charged with illegal possession of a stolen thing valued over $1,000, a violation of LSA-R.S. 14:69. In order to convict a defendant |flof this offense, the State must prove beyond a reasonable doubt that the defendant 1) intentionally possessed, procured, received or concealed, 2) anything of value, 3) which had been the subject of any robbery or theft, 4) where the circumstances indicate that the offender knew or had good reason to believe that the thing was the subject of these offenses, and 5) the value of the item stolen exceeded $500. See State v. Corkern, 593 So.2d 1259, 1260 (La.1992); State v. Brooks, 01-1073 (La.App. 5 Cir. 2/26/02), 811 So.2d 1066, 1069.

Hall’s convictions

Hall contends that the State failed to prove that he was in possession of the motorcycle. He argues that he was only seen thirty feet away from the stolen property and there was no evidence that he ever touched the motorcycle. The State argues in its brief that defendant was a principal to possession of a stolen thing.

To support a conviction for illegal possession of stolen property, the State does not have to prove actual possession. It is sufficient if the State shows constructive possession. Constructive possession exists when the property is within the defendant’s dominion and control. State v. Brooks, supra.

A principal is defined as “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” LSA-R.S. 14:24. Only those persons who “knowingly participate in the planning or execution of a crime” are principals to that crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Id. The mental state of one defendant may not be imputed to another defendant. State v. Coleman, 02-345 (La.App. 5 Cir. 9/18/02), 829 So.2d 468, 471.

17Mere presence at the scene of a crime does not make one a principal to the crime. State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 269, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. However, “ ‘it is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.’ ” State v. Kirkland, supra at 269, quoting State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225.

In the present case, Sgt. Spears testified that, when he came upon the scene, Hall was walking approximately thirty feet behind the motorcycle, which was being pushed by two men, and he was carrying his shoes in his hands. Although Sgt. Spears noted in his police report that all three men were pushing the motorcycle, he stated at trial that his report contained a mistake, because only two men were pushing the bike. He testified that he did not see Hall pushing the motorcycle and he did not know if Hall ever touched it. Sgt. Spears stated that, as he drove toward the men, the three men appeared to be talking. However, on cross-examination, he admitted that he did not know for sure that Hall was talking to the other two men.

After a thorough review of the entire record before us, we find that the evidence is insufficient to show that Hall actually or constructively possessed the motorcycle. Other than Sgt. Spears’ suspicion that Hall was involved, there is nothing to show that Hall exercised any dominion or control over the motorcycle. The motorcycle was being pushed in the parking lot of an apartment complex by two men, but not Hall. There was no evidence concerning Hall’s relationship with the two men who were actually pushing the motorcycle, except that he tried to help them by directing the police in the opposite direction from where they ran. While the record shows that Hall was close to the motorcycle, the evidence does not establish that it was within his dominion and control.

IsFurther, the evidence is insufficient to show that Hall was a principal to illegal possession of the stolen motorcycle. As stated above, Hall’s mere presence at the scene of the crime, or in this case his close proximity to people in possession of the stolen property, does not make him a principal to the crime. Also, the fact that Hall left the scene does not make him a principal. See State v. Wright, 01-0322 (La.12/4/02), 834 So.2d 974, 983, cert. denied, - U.S. -, 124 S.Ct. 82, 157 L.Ed.2d 62 (10/6/03). A person acting as a lookout can be convicted as a principal. See State v. Dunn, 94-776 (La.App. 5 Cir. 2/15/95), 651 So.2d 1378, 1389-1390. However, it is highly unlikely that one could infer from Hall’s actions that he was a lookout, because he was walking behind the motorcycle with his shoes off.

The evidence must show that defendant aided in the commission of the possession of stolen property or directly or indirectly counseled or procured another to possess stolen property. The record shows that Hall was walking thirty feet behind the motorcycle carrying his shoes in his hand. The fact that Hall was carrying his shoes in his hand, while suspicious, does not in any way show he aided in possessing the motorcycle or counseled the other two men to possess the motorcycle. Sgt. Spears testified that the three men appeared to be talking but stated he could not testify with any certainty that Hall engaged in any conversation with the two men who were pushing the motorcycle. The only evidence that suggested any relationship between Hall and the two men was Hall’s comment, “where did you go?,” which was overheard by Ms. Sonnier after the incident. Based on earlier testimony that no one else was around, a reasonable trier of fact could reasonably conclude that Hall was directing his comment to one of the two men involved. However, Hall was never definitively seen interacting with the two men who were in possession of the motorcycle.

| ^Although we have considered the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could not have concluded beyond a reasonable doubt that the State proved the essential elements required to convict Hall of illegal possession of a stolen thing valued over $1,000. Accordingly, we reverse Hall’s conviction for illegal possession of a stolen thing valued over $1,000, and we vacate his sentence of six years and seven months for this crime.

Hall also alleges that the evidence was insufficient to support his conviction for accessory after the fact, because the State failed to prove he aided Barnes after knowing Barnes had committed a felony. LSA-R.S. 14:25 defines an accessory after the fact as “any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” The type of “aid” contemplated by LSA-R.S. 14:25 includes volunteering false information to law enforcement officers. State v. Chism, 436 So.2d 464, 467, footnote 1, (La.1983). The statute requires only the general intent of the offender that the person who committed the felony will escape arrest, trial, conviction or punishment, and intent may be proven by circumstantial evidence or inferred. Id. at 467-468.

When Sgt. Spears arrived on the scene, Hall walked up to him and told him the other two men were stealing his sisters boyfriends motorcycle. Hall then pointed in a direction and advised Sgt. Spears that the two men ran in that direction. However, Sgt. Spears observed that the two men actually ran in the opposite direction than what Hall indicated. Additionally, Ms. Sonnier, who was delivering newspapers in the apartment complex at the time of the incident, testified that Hall told her good morning and walked past her. She later saw Hall and heard him yell, “where did you go?” Ms. Sonnier testified Hall was not talking to her.

| inHall contends it is absurd that he would try to direct the police officer in the wrong direction when the officer saw where the two men ran. He asserts his gesture in pointing in a specific direction while talking to Sgt. Spears was misunderstood. However, Sgt. Spears testified that Hall told him “they were running that way” while pointing him in the opposite direction from where the men were running. The jury obviously believed Sgt. Spears and no evidence was offered to contradict Sgt. Spears testimony.

The fact that Barnes did not escape capture does not reduce defendants actions to attempted accessory after the fact, as suggested by Hall in his brief. Accessory after the fact is not contingent on the success of a defendants action in aiding or hiding a person who has committed a felony. In this case, it is the intent of the defendants actions that constitutes the offense. The record shows Hall purposefully directed the officer in the wrong direction with the intent of helping the other two men escape.

The State presented evidence that Hall knew a felony had been committed when Sgt. Spears testified that Hall told him the men were stealing the motorcycle. The State then presented evidence, again through Sgt. Spears, that Hall voluntarily gave incorrect information to the police about the direction in which the men ran. This evidence supports a conclusion that Hall intended to aid the men by helping them escape capture. Accordingly, viewing the evidence in a light most favorable to the prosecution, we conclude that the evidence is sufficient for a reasonable trier of fact to find beyond a reasonable doubt that Hall was guilty of accessory after the fact to possession of a stolen thing valued over $1,000.

Barnes’ conviction

Barnes does not argue that the State failed to establish any of the essential statutory elements of his conviction for possession of a stolen thing. Rather, he contends that the State failed to prove beyond a reasonable doubt his identity as the Inperpetrator. He challenges Sgt. Spears’ identification of him on the basis that Sgt. Spears observed the perpetrators from a distance of sixty feet away at 4:30 a.m. and for only a few seconds. Additionally, Barnes asserts his clothing did not match the description of the clothing worn by the perpetrator.

In addition to proving the statutory elements of the charged offense, the State is required to prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

To prove identification in this case, the State offered the testimony of Sgt. Spears. He testified that, on the morning of the incident, he saw a tall black male, six feet two inches, with glasses, wearing a red shirt and pushing the motorcycle from the front handlebars. He described the second person pushing the motorcycle from the rear as a shorter black male. He stated that it was dark outside but noted that the parking lot of the apartment complex was well-lit by street lights. Sgt. Spears explained that his vehicle headlights were on which helped illuminate the three men. He testified that he had no problems seeing and was able to see the men’s faces. It was established that Sgt. Spears viewed the perpetrators for ten to fifteen seconds before they ran.

Sgt. Spears testified that he chased after the two men who ran. Although he lost sight of them, Sgt. Spears noted there was no one else in the area. He stated that the man he found hiding behind the bushes and air conditioning unit was the person he saw pushing the front handlebars of the motorcycle. Sgt. Spears identified Barnes in court as the person he saw pushing the motorcycle and hiding behind the air conditioning unit.

Sgt. Spears stated that he believed Barnes was wearing a red shirt, at the time of his arrest but he admitted that he was not sure. Deputy Dave Jackson, who [ iaarrived on the scene after Barnes was detained, testified that Barnes was wearing a yellow shirt, and the parties subsequently stipulated that Barnes was wearing a yellow shirt at the time of his arrest.

It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So.2d 400.

In the present case, the jury was fully aware of the clothing discrepancy. The jury heard Sgt. Spears testify that the person pushing the motorcycle was wearing a red shirt and that Barnes was wearing a red shirt when he was apprehended shortly after the incident. The jury also heard the stipulation of the parties that Barnes was actually wearing a yellow shirt at the time he was apprehended. Despite this discrepancy, the jury apparently found Sgt. Spears to be credible.

Considering all of the evidence, the color of the perpetrator’s shirt was minor. Sgt. Spears admitted he was not one hundred percent sure that Barnes was wearing a red shirt at the time of his arrest. Sgt. Spears described the perpetrator who was pushing the front of the motorcycle as a tall black male with glasses. During trial, Barnes was asked to stand up so the jury could see his height. Based on the comments in the record, it appears that Barnes is over six feet tall. The record further reflects Barnes wears glasses, as it was noted that he was wearing them at trial. Additionally, Sgt. Spears positively identified Barnes in court as the perpetrator who was pushing the front of the motorcycle. Despite the discrepancy regarding the color of the perpetrator’s shirt, the jury obviously believed the officer’s testimony that defendant was the perpetrator, and this conclusion was reasonable.

| ^Considering the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the offense. Thus, Barnes’ second assignment of error is without merit.

In his first assignment of error, Barnes argues that the trial court erred in failing to sustain his objections to certain prejudicial statements made by the prosecutor during closing arguments. Barnes asserts that the prosecutor made statements that suggested to the jury that he had an obligation to present evidence. Barnes specifically references those statements made by the prosecutor regarding the lack of testimony corroborating Barnes’ claim that he had a fight with his girlfriend and was simply walking home when he was stopped by the police. Barnes contends the prosecutor’s statements were impermissible comments on his failure to testify and that the trial court should have granted his motion for a mistrial or, at least, admonished the jury to disregard the prejudicial remarks. Barnes also complains that the prosecutor’s remarks suggesting that he was not a working member of society like the victim were prejudicial and warranted an admonishment by the trial court.

During closing arguments, the prosecutor stated:

So, what is the defense for Mr. Barnes that has been presented to you? There’s been no evidence but on argument that the cops had the wrong person, they ID’d the wrong person....
[Defense counsel] wants you to believe that he was just — happened by, he had got into an argument with his girlfriend and was just hiding behind the AC unit because he didn’t want to be caught in some kind of infidelity with his wife. Where is the evidence of that? Where is the evidence? Like I told you, the only evidence you can consider is what comes from that stand. Has there been any evidence of that? Of course he couldn’t call his wife because then she would know about the infidelity. Well, where’s the girlfriend? Why didn’t she come to testify yet, “He was with me. We had an argument. He left my apartment”?

luAt that point, defense counsel objected on the grounds that the prosecutor was making an improper argument that defendant had to produce evidence. The prosecutor responded that defense counsel had made allegations during his opening statement that there was going to be testimony about Barnes’ infidelity and an argument between Barnes and his girlfriend. The prosecutor maintained he was only arguing about the lack of evidence and not commenting on defendant’s Fifth Amendment right. The trial court overruled the objection and the State’s closing argument continued. The prosecutor stated:

But there’s been no wife — but there’s been no girlfriend to come and testify as well that, “Yeah, we were together. We got in a fight. He left my apartment. I live nearby and he was just walking in that general direction.” There’s been no testimony of that. The only time that you hear anything about I had a fight with my girlfriend or arguing with my girlfriend is from his statement to Sergeant Spears. That’s the only time. His self-serving statement, that’s the only time you heard anything about that.

Defense counsel interrupted and moved for a mistrial on the basis that the prosecutor’s statements required defendant to give an explanation as to why he did not call the witness. Defense counsel then explained to the court that he could not locate the girlfriend and that Barnes could not assist in finding the girlfriend because he was incarcerated from the time of the incident through trial. The trial court inquired into the efforts made to find the girlfriend and concluded that witnesses other than defendant could have testified and explained the absence of the girlfriend. The trial court denied the motion for a mistrial.

Closing arguments in criminal cases are restricted to evidence admitted at trial, lack of evidence, conclusions of fact that may be drawn therefrom, and the law applicable to the case. LSA-C.Cr.P. art. 774; State v. Fernandez, 03-987 (La. App. 5 Cir. 12/30/03), 864 So.2d 764, 768. A prosecutor has considerable latitude in making closing arguments. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Fernandez, supra.

A prosecutor’s comments made during closing arguments referencing the lack of evidence are permissible under LSA-C.Cr.P. art. 774. In State v. Smith, 357 So.2d 798, 802 (La.1978), defendant claimed the prosecutor’s remarks during closing argument constituted an impermissible reference to the failure of defendant to produce alibi witnesses. In Smith, the prosecutor suggested that if defendant were innocent of the crime, he would have had four or five alibi witnesses in the group with whom he claimed to have been playing cards. The Louisiana Supreme Court found the prosecutor’s remark, taken in context, was simply a reference to a lack of evidence which was permissible under LSA-C.Cr.P. art. 774.

Also, in State v. Forrest, 95-31 (La.App. 5 Cir. 2/14/96), 670 So.2d 1263, 1269-1270, writ denied, 96-654 (La.6/28/96), 675 So.2d 1117, defendant moved for a mistrial after the prosecutor remarked during closing argument that there had been no alibi defense presented that defendant was somewhere else when the crime happened. The trial court denied the motion for a mistrial. On appeal, this Court found the prosecutor’s reference to the lack of an alibi defense was a permissible comment on the lack of evidence. This Court noted that the comment did not constitute a comment on defendant’s failure to testify, reasoning that an alibi defense may consist of testimony or evidence other than the defendant’s testimony.

In the present case, the prosecutor’s comments referencing the lack of witnesses to corroborate defendant’s statement to the police at the time of his arrest were permissible comments on the lack of evidence. At the time of the remarks, the prosecutor was in the process of reviewing the evidence and explaining to the jury how the evidence proved each element of the crime. The prosecutor did not hnfocus the jury’s attention on the defendant’s failure to testify but rather was simply pointing out the lack of evidence to support the defendant’s contentions that he was a married man who was coming from his girlfriend’s house.

Defendant also takes exception to a comment made by the prosecutor during the State’s rebuttal closing argument. The prosecutor stated:

We’re here because at 4:30 in the morning on September the 18th Dem-ethrius Barnes and Gary Hall were stealing this man’s — see, nobody talks about this man, Michael Durr. Michael Durr is the victim here. This person, a person who works — who' works in the community who has a job—

Defense counsel objected on the basis that the statement was prejudicial and inflammatory because it made the inference that Barnes did not work. Defense counsel did not request that an admonition be given to the jury. The trial court overruled the objection.

The record does not support a finding that these remarks made by the prosecutor were so inflammatory or prejudicial that they influenced the jury to convict Barnes. The comment was made during a lengthy closing argument by the State. A simple remark that the victim worked is not so persuasive as to have caused the jury to convict Barnes of possession of a stolen thing. Further, the evidence established Barnes’ guilt.

For the foregoing reasons, we find that the trial court did not err in failing to sustain Barnes’ objections to the prosecutor’s remarks during closing argument, and Barnes’ first assignment of error is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following errors which require corrective action.

117First, the minute entry and amended minute entry indicate that only five jurors retired to deliberate and the names of only five jurors are listed. However, the jury was polled and the transcript reflects, “[t]he Court has examined the return of the poll in the presence of counsel. The Court finds that as to each defendant and as to each count thereof there are six of six who agree.” Additionally, the polling slips were included in the exhibits on appeal and there are six slips indicating that six jurors deliberated and reached a verdict. Furthermore, neither defendant contends there was an improper jury composition. Where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). In order to ensure an accurate record, we remand the matter and order the minute entries to be corrected to reflect the correct number of jurors and to add the name of the sixth juror who deliberated, Laurie L. Angelona.

Second, there are discrepancies between the transcript and Barnes’ multiple offender commitment. Barnes’ original commitment correctly reflects that he was convicted of receiving stolen things of $500 or greater, while his multiple offender commitment erroneously reflects that he was convicted of receiving stolen things of $100 or greater. As noted above, the transcript prevails. State v. Lynch, supra. Accordingly, the matter is remanded to the trial court to amend Barnes’ multiple offender commitment to conform to the sentencing transcript.

DECREE

For the reasons set forth above, we affirm Barnes’ conviction and sentence for illegal possession of a stolen thing valued over $1,000, and we affirm Hall’s conviction and sentence for accessory after the fact to illegal possession of a stolen thing. We reverse Hall’s conviction for illegal possession of a stolen thing valued over $1,000 and vacate his sentence of six years and seven months for this crime. Finally, we remand the matter and order the trial court to correct the minute entries 11Rto reflect the accurate names and number of jurors who deliberated, and to amend Barnes’ multiple offender commitment to conform to the sentencing transcript.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

      . For purposes of punishment, LSA-R.S. 14:69 categorizes possession of a stolen thing by the value of the thing stolen. In the bill of information, the value of the thing stolen was listed as over $1,000. Subsection (B)(1) provides the punishment for possession of a stolen thing valued over $500. There is no separate category for a thing valued over $1,000.

      . Both defendants were originally charged in a bill of information on October 5, 2001 with theft of a motorcycle valued over $500, in violation of LSA-R.S. 14:67. However, the bill was amended on January 16, 2002 to charge the defendants with the crimes for which they were convicted.

      . William Black was deemed unavailable for trial and his prior sworn testimony from a motion to suppress hearing was used at trial after portions of it were excised.

      . In State v. Hearold, 603 So.2d 731, 734 (La.1992), the Louisiana Supreme Court stated that, when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. Accordingly, Barnes’ assignments of error are addressed out of order, because sufficiency of the evidence must be considered first.


text:
    STATE of Louisiana v. Stephen J. WATSON.
    No. 03-KA-1381.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent Paciera, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Stephen Watson, with possession of cocaine in violation of LSA-R.S. 40:967(C). The matter proceeded to trial before a six person jury which found defendant guilty as charged. As a result of this conviction, the trial judge sentenced defendant to five years at hard labor.

Thereafter, the state filed a multiple offender bill of information alleging defendant was a fourth felony offender based on five prior convictions. After a hearing, the trial court found defendant to be a fourth felony offender, vacated his original sentence, and resentenced defendant as a multiple offender to fifteen years at hard labor without the benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

Between 4:00-5:00 a.m. on October 4, 2002, Deputy Janice Griffin was dispatched to a disturbance at 294 Wright Avenue in Gretna. The person committing the disturbance was described as a black male, five feet eleven inches tall, wearing a tan shirt. When Deputy Griffin arrived at the apartment complex, she saw a man fitting the description of the alleged perpetrator coming down the stairwell. As she approached the man, later identified as defendant, she saw him throw down an object.

| ¡¡Deputy Griffin asked defendant for identification. She advised defendant that she was investigating a disturbance and that he fit the description of the alleged perpetrator. Thereafter, Deputy Griffin detained defendant and advised him of his Miranda rights. Defendant appeared antsy and nervous and kept putting his hands inside his pockets. Concerned for her safety, Deputy Griffin conducted a pat down search of defendant at which time she found two pocket knives in his pockets. Defendant was subsequently escorted to the police car by a second officer who arrived on the scene.

Afterwards, Deputy Griffin retrieved the object defendant had previously discarded. The object was a clear film canister that contained an off-white rock-like substance, which later tested positive for crack cocaine.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant argues that the evidence was insufficient to convict him of possession of cocaine. He asserts that the state failed to prove he possessed the cocaine as opposed to merely being in its presence. Defendant challenges the credibility of the police officer that she saw him throw down the film canister containing cocaine and that the canister was the only object in the stairwell. Defendant claims the officer’s testimony was unbelievable because the stairwell was dark and the police officer could not recall the distance from which she observed defendant discard the object. Defendant also maintains that had the officer seen him throw something, she would have detained or questioned defendant about what he threw.

The constitutional standard for testing the sufficiency of the evidence is whether the trial evidence, both direct and circumstantial, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Hopson, 97-509 (La.App. 5 Cir. 11/25/97), 703 So.2d 767, 769. The evidence must be sufficient so to exclude every reasonable hypothesis of innocence. State v. Hopson, supra, citing State v. Hawkins, 96-766 (La.1/14/97), 688 So.2d 473, 479.

Under Jackson v. Virginia, supra, a review of a criminal conviction for the sufficiency of evidence does not require the reviewing court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt but whether a rational trier of fact could have reasonably found defendant guilty beyond a reasonable doubt. In applying this standard, the reviewing court will not assess the credibility of witnesses, nor reweigh evidence. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual finding. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688.

To support a conviction for possession of cocaine, the state must prove that a defendant was in possession of the cocaine and that he knowingly possessed it. State v. Reyes, 98-424 (La.App. 5 Cir. 12/29/98), 726 So.2d 84, 88, writ denied, 99-1474 (La.10/8/99), 750 So.2d 967. Whether there is “possession” sufficient to convict depends on the facts of each case. State v. Hopson, 703 So.2d at 769-770.

In the present case, the arresting officer, Janice Griffin, testified that she had seen defendant throw down an object. She stated she saw where the object fell and that there was nothing else on the ground in the area where defendant discarded the object. She further stated no else was nearby at the time. Thereafter, she asked defendant for identification and advised him he was being detained. On cross-examination, Deputy Griffin testified the distance between her and the defendant was the same as the distance between her and the defense counsel in the courtroom. She believed it was dark outside but stated she left her vehicle’s Isheadlights on when she parked the car. Deputy Griffin testified she did not have any problems seeing defendant, seeing him discard the object, or seeing the discarded object. Deputy Griffin further identified defendant in court as the person she saw discard the cocaine.

Deputy Griffin was the only witness to testify at trial. The jury obviously chose to believe her testimony despite attempts by defense counsel to establish she could not have seen what she stated she saw. The officer testified that she saw defendant throw down an object that was later determined to be a film canister containing a rock of crack cocaine. We find this evidence to be sufficient to support the jury’s determination that defendant was guilty of possession of cocaine. See State v. Hopson, supra, where this court upheld defendant’s conviction for possession of cocaine finding that the state sufficiently proved possession.

Based on the foregoing discussion, we find no merit to the arguments raised by defendant in this assigned error.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

For the reasons set forth herein, we hereby affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . It is noted that defendant's enhanced sentence was a downward deviation from the mandatory minimum sentence of twenty years. LSA-R.S. 15:529. 1(A)(1)(c)(i). The state objected to the downward deviation at the time of sentencing but did not raise the issue on appeal. structive possession are inapplicable because the evidence clearly supports a finding of actual possession.

      . We note that in his appellate brief, defendant also claims that the evidence was insufficient to prove that he constructively possessed the cocaine. However, the concepts of con-


author: 1 .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Alton JOSEPH.
    No. 03-KA-1445.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Harry J. Morel, Jr., District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.

      Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defen-danf/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   1 .MARION F. EDWARDS, Judge.

Defendant, Alton Joseph appeals his conviction and sentence for armed robbery. For the following reasons, the defendant’s conviction and sentence are affirmed, and we remand in order to correct an error patent on the face of the record.

Defendant, Alton Joseph, was charged in a bill of information on May 29, 2002 with armed robbery in violation of LSA-R.S. 14:64. Joseph pled not guilty, proceeded to trial on September 10, 2002, and was found guilty as charged by a twelve-person jury. On November 7, 2002, Joseph was sentenced to fifteen years without benefit of parole, probation, or suspension of sentence.

Joseph sought and was granted an out-of-time appeal on September 19, 2003 and presently seeks review of his conviction and sentence.

On May 7, 2002, Detectives Michael Burk and Brandon Mouriz, both with the Plaquemines Parish Sheriffs Office, were working as undercover agents for j3the St. Charles Parish Sheriffs Office. They were equipped with an undercover vehicle that had audio and video devices and were sent into an area in Norco to purchase illegal narcotics. At approximately 5:12 p.m., Detectives Burk and Mouriz came in contact with two black males in a blue Honda Civic on Bethune Street. Detective Burk, who was sitting in the passenger seat, asked the men for a “20,” which is street slang for crack cocaine. The men stated they only sold in large amounts, so Detective Burk asked what he could get for $100. One of the men asked if he wanted marijuana, to which Detective Burk replied that he did. The driver of the blue Honda then asked Detective Burk to get into his car, but Burk declined. The driver told the detectives to wait, and stated he would make the block and be right back.

Approximately two to three minutes later, the two men approached the detectives’ car on foot, and the man who had been the driver brandished a gun and demanded all of their money. The second man, later identified as defendant, stood behind the driver during the robbery. The perpetrators robbed the detectives of $160. The entire incident was recorded on the detectives’ video equipment.

The detectives notified their cover team that they had been robbed. Thereafter, Detective Wayne Joseph, with the St. Charles Parish Sheriffs Office, secured the video tape of the incident. Deputy Clyde Taylor, also with the St. Charles Parish Sheriffs Office, reviewed the tape and identified defendant as one of the perpetrators in the video. A photographic lineup was prepared and shown to Detectives Burk and Mouriz. While Detective Burk was unable to identify defendant as one of the assailants, Detective Mouriz identified Joseph as one of the perpetrators both in the photo lineup and in court during trial. Additionally, |4the blue Honda Civic was recovered and Joseph’s fingerprint was found on the car.

Joseph testified that he was with the co-perpetrator, Alex Johnson, on the morning of the robbery but was not present when Detectives Burk and Mouriz were robbed. Joseph further denied he was the person captured on the videotape during the robbery.

In his first assignment of error, Joseph argues there was insufficient evidence to convict him of- armed robbery because the State failed to prove his identification as the perpetrator beyond a reasonable doubt. Joseph challenges Detective Mouriz’s identification of him as the perpetrator as unreliable because it was made only after Deputy Clyde Taylor, who was not involved in the undercover operation, reviewed the videotape and identified defendant as one of the two persons on the video. Joseph also asserts Deputy Taylor’s identification of him from the video is flawed because it was only based on Joseph’s alleged hairstyle, as opposed to any distinguishing physical characteristics.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Since Joseph does not dispute a robbery occurred and has only alleged the State failed to prove he was |fithe perpetrator of the crime, we will not address the sufficiency of the evidence with respect to the statutory elements of armed robbery.

To prove identification in this case, the State offered the testimony of Deputy Clyde Taylor and victim Detective Mouriz as well as the videotape of the robbery. Deputy Clyde Taylor, a sixteen-year employee of the St. Charles Parish Sheriffs Office, testified that he has lived in Norco for the past ten years and has lived there off and on his entire life. He stated he has known Joseph since Joseph was eight or nine years old and can easily recognize Joseph.

On the same day as the robbery, Deputy Taylor was asked to review the videotape of the robbery. After reviewing the videotape, Deputy Taylor identified Joseph as one of the two people in the video. Deputy Taylor stated that, despite Joseph partially covering his face with a rag in the video, he still recognized Joseph because he has known him so long. He explained that Joseph usually wore his hear in braids and the curls in his hair on the video showed the braids were taken out. He further stated that Joseph looked different in court because he was wearing his hair short, in a low afro cut. Deputy Taylor testified' that he had no doubt that Joseph was the person in the video.

Victim Detective Mouriz testified that he got a good look at the perpetrators who robbed him and Detective Burk. He explained that the gun was pointed at Detective Burk and that he looked at the second subject to see what he was doing and to make sure he did not have a weapon. Detective Mouriz stated he identified defendant in a photographic lineup approximately six hours after the robbery as the person standing next to the perpetrator with the gun during the robbery. He further identified Joseph in court as one of the perpetrators who robbed him and again explained that Joseph was not the one with the gun. He also noted Joseph looked different in court because he had shaved his hair. ^Nonetheless, Detective Mouriz testified he had no doubt Joseph was one of the two people who robbed him.

On cross-examination, Detective Mouriz was asked about Deputy Taylor’s prior identification of defendant and whether the two had spoken about the identity of the perpetrators. Detective Mouriz stated he and Deputy Taylor had spoken about the robbery but did not discuss the identity of the perpetrators. In fact, Detective Mour-iz testified he was unaware Deputy Taylor had identified either of the perpetrators.

Additionally, the State presented evidence that a fingerprint had been lifted from the passenger side window and door of the same blue Honda civic in which the two perpetrators had initially been riding. Fingerprint expert Sergeant Billy LeBlane testified that the lifted fingerprint matched Joseph.

Joseph contends this evidence was insufficient to prove he was the perpetrator of the robbery. He maintains that Deputy Taylor’s identification of him from the videotape was weak because it was based on Joseph’s hairstyle. However, on cross-examination, Deputy Taylor denied recognizing Joseph from the hairstyle more than defendant’s features.

Joseph also asserts Detective Mouriz was unable to identify him until after Deputy Taylor first made the identification after viewing the videotape. Joseph seems to suggest Deputy Taylor gave Detective Mouriz defendant’s name prior to Detective Mouriz making the identification. We find that the record does not support this position. It was Deputy Taylor’s initial identification that led to the preparation of the photographic lineups. Detective Mouriz testified he was unaware Deputy Taylor had made an identification of either perpetrator. He further denied discussing the identity of either suspect with Deputy Taylor. [7Nothing in the record shows Detective Mouriz was given the name of one of the perpetrators prior to identifying defendant in the photo lineup.

It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made by the fact finder.

The jury heard all the above evidence. They were aware Detective Burk was unable to identify defendant as one of the perpetrators. They heard Detective Mouriz testify that he had no doubt Joseph was one of the two people who robbed him on May 7, 2002. The jury also heard Deputy Taylor testify he had no doubt Joseph was one of the two perpetrators in the videotape of the robbery. The jury further heard the fingerprint evidence that linked Joseph to the car involved in the incident. Additionally, the videotape of the robbery was played for the jury three times, and the jury had the benefit of seeing Joseph while watching the videotape.

Viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could find, beyond a reasonable doubt, that Joseph was the perpetrator of the armed robbery.

In his second assignment of error, Joseph asserts that the trial court erred in giving the jury a copy of the written jury instructions to take into the jury deliberation room. Joseph contends LSA-C.Cr.P. art. 808 allows the jury to be given a copy of the jury instructions only when both parties consent, and maintains that the trial court in this case gave the jury the written jury instructions over his objection. The State argues that a defendant’s consent is |sonly required when the jury requests further charges that are not contained in the original jury instructions.

The record in this case shows that after the jury retired to deliberate, they sent two questions to the trial court. The first question was sent to the trial court approximately thirty minutes after the jury entered into deliberations and requested the written definition of armed robbery, first degree robbery and simple robbery. After some discussion with the parties, the trial court brought the jury back into the courtroom and reread the requested definitions. The jury again retired to deliberate.

Approximately fifty minutes later, the jury sent a second question to the trial court which stated, “[c]an you read us a legal definition of ‘possession’?”. Out of the presence of the jury, the trial court noted the jurors were obviously having-problems. The prosecutor suggested the jury be given the entire jury instruction to which defense counsel objected. The jury was then brought back into the courtroom and the trial court told the jurors he could not give them a definition of possession. However, over the objection of defense counsel, the trial court then gave the jury a copy of the previously read jury instructions to take with them into the jury room.

In 2001, LSA-C.Cr.P. arts. 801 and 808, relating to charging the jury, were amended to allow written jury instructions to be taken into the jury room under certain circumstances. As amended, LSA-C.Cr.P. art. 801 provides in pertinent part:

Art. 801. Time for charge; when written charge required

A. The court shall charge the jury after the presentation of all evidence and arguments. The court |9shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury.

LSA-C.Cr.P. art. 808 provides:

Art. 808. Manner of giving further charges after jury retires
If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal, but shall be in uniting if requested by any juror. No charge shall be reduced to uniting at the request of a juror pursuant to this Article unless consent is obtained from both the defendant and the state in open court but not within the presence of the jury. The lack of consent by either the defendant or the state shall not be communicated to the jury. A copy of the court’s written charge shall be delivered to the defendant, the state, and the jury.
[Emphasis added to reflect that portion of the article added by the 2001 amendment.]

As pointed out by the trial court, there are some internal conflicts within Article 808. On one hand, the article mandates the further charge be in writing if requested by any juror. On the other hand, the very next sentence states “no charge shall be reduced to writing at the request of a juror” unless both parties consent.

The apparent intent of the legislature in amending Articles 801 and 808 was to overrule longstanding jurisprudence that prohibited jurors from being |infiiven a copy of the written jury instructions. Pri- or to the 2001 amendments, recent jurisprudence held that the trial court was prohibited from giving written jury charges to the jury for their use during deliberations. In State v. Yoxtheimer, the defendant argued the jury should have had a copy of the charges in the jury room but the Louisiana Supreme Court disagreed and found “[t]he trial court correctly refused the request that the written charge be given to the jury upon its retiring to the jury room for deliberations.” In State v. Simms, this Court cited Yoxtheimer and stated, “[t]he current State of Louisiana law continues to prohibit the court’s written charge from being considered by the jury during deliberations.” Additionally, as of 1998, Official Revision Comment (d) to LSA-C.Cr.P. art. 801 explained “[t]his article does not authorize the jury to take with them a copy of the judge’s written charges when they retire to deliberate.”

To the contrary, earlier jurisprudence found no prohibition in allowing a jury to view written jury instructions during deliberations. In State v. Riggio, the defendant complained when the jury was allowed to take written charges into their deliberation room. The Louisiana Supreme Court stated, “[w]e can see no good reason why this should not be done. It has often been held to be proper.” Later, in State v. Campbell, the supreme court relied on Riggio and stated “the law is that it is not improper for the jury to take with them into the jury room the written charge of the trial judge.” Also, in State v. Stracner, the supreme court again found “it was not improper for the jury to take the written charge of the court into their consultation room.”

Inin State v. Strickland, the Louisiana Supreme Court noted the apparent conflicting holdings of Riggio, Campbell, and Stracner, but again found that the trial court correctly refused to give the jurors a copy of the written jury instructions by relying on Yoxtheimer and comment (d) of LSA-C.Cr.P. art. 801. The supreme court did not discuss or resolve the conflict. However, the supreme court went on to say that even had the trial court erred in refusing to give the jury a copy of the written charges, the jury foreman told the trial court that the jury did not really need the instructions.

With the 2001 amendments to LSA-C.Cr.P. arts. 801 and 808, it is now statutorily permissible for the jury to receive a copy of the written jury instructions to use during deliberations. However, the use is clearly conditioned upon the consent of the parties.

In this case, after the first jury question, defense counsel appeared to consent to giving the jury a copy of the written instructions but the prosecutor did not. After the second jury question, the prosecutor seemed amenable to giving the jury a copy of the written instructions but defense counsel objected. Since there was no consensus between the parties, it appears the trial court erred in giving the jury a copy of the written instructions to take back with them into their deliberations.

The State suggests that dual consent is only required when an additional charge is given to the jury that is outside the original jury charges. This argument is flawed. Under LSA-C.Cr.P. art. 801, the consent of both the state and defendant is required before written charges may be given to the jury. Under LSA-C.Cr.P. art. 808, both parties must consent before a further charge can be reduced to writing in response to a juror’s request. Despite the conflict 112within Article 808 relating to the mandate that a further charge must be reduced to writing at the request of a juror as previously discussed, it appears the legislature intended the consent of the parties to be of paramount importance.

Despite the trial court’s error in giving the jury a copy of the written jury instructions over the objection of defendant, after reviewing the record, we find that such error does not appear to warrant reversal. LSA-C.Cr.P. art. 921 provides that a ruling shall not be reversed because of any error which does not affect the defendant’s substantial rights. As discussed above, the earlier jurisprudence found no problems with the jury being given a copy of the written charges. The jurisprudence then shifted into a prohibition against such action. Joseph does not argue he was prejudiced by the jury’s possession of written charges and the record further does not reveal any prejudice. The jury instructions were read in their entirety in open court in the presence of defendant and his counsel prior to the jury retiring to deliberate. Thereafter, a portion of the same jury instructions were reread to the jury in open court again in the presence of defendant and his counsel. We therefore find that the trial court’s error in allowing the jury to take instructions into the jury deliberation room was harmless.

We further reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The following error is noted.

|1sThe transcript does not show that Joseph was advised of the two-year prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. We therefore remand, for the specific purpose of ordering the trial court to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice.

For the foregoing reasons the defendant’s conviction and sentence are affirmed, and we remand in order to correct the error patent on the face of the record noted above.

AFFIRMED, REMANDED WITH ORDER.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Taylor, 99-296 (La.App. 5 Cir. 7/27/99), 740 So.2d 216, 222, writ denied, 99-2609 (La.3/17/00), 756 So.2d 322.

        .Id.

      . State v. Page, 02-689 (La.App. 5 Cir. 1/28/03), 837 So.2d 165, 175, writ denied, 03-0951 (La. 11/7/03), 857 So.2d 517.

      . Acts 2001, No. 310 § 1.

      . Under the 2001 amendments, LSA-C.Cr.P. art. 801(B) was added in its entirety.

      . 301 So.2d 318, 320 (La.1974).

      . 465 So.2d 769, 779 (La.App. 5 Cir.1985).

      . 124 La. 614, 50 So. 600 (1909).

      . Id., 124 La. at 619. 50 So. at 601.

      . 173 La. 831, 138 So. 853, 857 (1931).

      . 190 La. 457, 182 So. 571, 575 (1938).

      . 94-0025 (La. 11/1/96), 683 So.2d 218, 226-227.

      .In Sanders v. State, 264 Ind. 688, 348 N.E.2d 642 (1976), the Indiana Supreme Court found no reversible error when the trial court permitted the jury to take the final jury instructions into the jury room in contravention of prevailing practices. The court found the error was not of a "sufficient magnitude to warrant reversal in this otherwise properly tried case.” Id., at 644. See also, Coleman v. State, 465 N.Ed.2d 1130, 1134 (Ind.1984), where the Indiana Supreme Court found harmless error when the trial court sent written instructions with the jury for their use during deliberations despite the accepted practice of not allowing jurors to take written instructions with them into the jury room. The Indiana Supreme Court noted the instructions were first read in open court in the presence of defendant and his attorney.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir. 1990).

      . State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writs denied, 03-0200 (La. 10/10/03), 855 So.2d 326, and 03-0503 (La. 10/10/03), 855 So.2d 329.