author: liPEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Darylon D. GREEN, Appellant.
    No. 38,335-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Rehearing Denied June 17, 2004.

      William D. Hall, P.L.C., Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, Jeff Cox, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   liPEATROSS, J.

Defendant, Darylon D. Green, was charged with armed robbery, in violation of La. R.S. 14:64 and 14.-64.3. He was tried by a jury and convicted as charged. Prior to sentencing, Defendant moved for a verdict of acquittal, but this motion was denied. Subsequently, Defendant was adjudicated an habitual offender and sentenced to 49 and one-half years at hard labor, without benefit of probation, parole or suspension of sentence. He was ordered to serve the sentence consecutively with any other sentence and he was given credit for time served. Defendant moved for reconsideration of his sentence, but the motion was denied. He now appeals his conviction and sentence. For the reasons stated herein, we affirm.

FACTS

This armed robbery of a Domino’s Pizza employee occurred on the night of October 16, 2000. That evening, Ray Mason (“Mason”) and Defendant came to the apartment of Latisha Smith (“Smith”) on Edwards Street in Bossier City. Mason is Smith’s cousin. Smith knew Defendant as “LaDarion Green.” She also knew him as a close friend of Mason and she often saw them together. Mason and Defendant asked to use Smith’s phone to call for a pizza. Smith watched and listened as Defendant ordered a pizza | gto be delivered to an address on Joannes Street. Defendant used Mason’s name for the order. Mason was in the restroom at the time of the call. At trial, Smith could not remember the order other than hearing it was a “meatl-overs” pizza. In her statement to the police the day after the robbery, Smith recalled that the order was two large pizzas and two large Cokes. The time of this call is not clear. In her trial testimony, Smith estimated that it was just getting dark when Mason and Defendant came over. Mason and Defendant later left Smith’s house. She did not see them again that evening.

During the time that Mason and Defendant were at her house, Smith saw that either Mason or Defendant had a handgun. In her statement to the police, Smith said that Mason had a handgun. In her trial testimony, however, Smith stated that Defendant had a handgun that she recognized as belonging to Mason. She explained the discrepancy that it was Mason’s gun, but in Defendant’s possession.

On the night of the incident, Domino’s Pizza received a call for a pizza to be delivered to 645 Joannes Street in Bossier City. Steve Shearin (“Shearin”) made the delivery. He arrived alone at the address between 11:30 and midnight. He got out of his van and asked a young man on the porch if the address was 645. The young man, Mason, told him it was 645. Mason was wearing a blue sweater jacket with a hood over his head, but Shearin could see his face. When Shearin got to the front door with the pizza, he looked up and there was a gun pointed at his head. Shearin described it as a light brown nine-millimeter automatic. Mason said, “Give me the money, dog.” Shearin gave Mason all of the money he had. Mason |3then told Shearin to get on the ground. Shearin got down on his hands and knees. When Shearin got down, he tossed his watch and keys next to a fence.

As Shearin was on the ground, he saw another young man with a white-hooded jacket. Initially, Shearin could not see this man’s face. This man kept telling Shearin that he had to have more than $48. Shearin told him that he had some money in his van. The second young man asked Shearin for the keys and Shearin told him he had lost them. As the young man paced around, agitated about the missing keys, Shearin could see that he was also holding a handgun, which he pointed at Shearin a couple of times. Shearin recognized it as an automatic.

The two robbers then went to Shearin’s van to look for more money and to get the van started. As they opened the door, the interior light came on and Shearin was able to see the face of the young man in the white sweatshirt. At trial, Shearin identified this man as Defendant. Defendant got the van started without a key.

Mason then told Shearin to get up and get into the house. Shearin was nervous, but Mason told him that “You ain’t going to die, I’m not going to kill you because you’re black.” The house was vacant, without any furniture or electricity. Mason made Shearin strip off his clothes and get into a closet and count to 150. Defendant did not go into the house with Mason. Shearin got into the closet and counted to 150. He later found his clothes in a corner of the front room. Shearin’s van was gone.

|4Shearin walked down Texas Street, then Old Minden Road until he found a police officer, Mark Owens, who took him back to the house. Shearin found his keys where he had hidden them. At about 2:00 a.m., Shearin’s van was found abandoned on Jordan Street in Shreveport.

The next day the police showed Shearin a photographic lineup in an attempt to identify the young man in the blue sweatshirt. Shearin immediately identified Mason as the first robber. The first time Shearin identified the second robber in the white sweatshirt as being Defendant was the week of trial. Shearin was sitting on a bench in the courtroom when he saw Defendant get off the elevator in the corner of the courtroom. Shearin then recognized Defendant as the other robber.

During trial, Shearin acknowledged on cross examination that he had been unable to identify Defendant in a photographic lineup that occurred a few weeks earlier. When asked how he could identify Defendant in the courtroom, yet not identify him in the photographic lineup, Shearin stated it was just like meeting someone at law school, then seeing them years later and not knowing who they are until something clicks and you recognize them. Shearin then testified that, when he saw Defendant the second time, “It came back to me in my van and it clicked, I know that guy, that’s the guy.” Shearin further testified that there was no doubt that Defendant was the second robber; he was a “hundred percent positive, yes.”

Detective Todd Hilbert investigated the case. The phone call to Domino’s Pizza was traced to Smith’s phone. Detective Hilbert questioned Smith. She told him that Mason and a “LaDarion Green” came to her |Bapartment to use her phone to call for a pizza. Detective Hilbert testified that Smith told him that she saw Mason with a handgun. The day after the robbery, Smith saw Mason. Mason told her that they had robbed the pizza delivery man, but only got forty something dollars. Mason thought it was funny how they had gotten the victim to disrobe. At trial, Smith identified Defendant as the “LaDar-ion Green” who ordered the pizza from her apartment.

On the evening after the robbery, Detective Hilbert prepared a photographic lineup of Mason for Shearin to examine. Detective Hilbert did not prepare a photographic lineup of Defendant because he was operating on the information that the other suspect was “LaDarion” Green, not Darylon Green. The lineup contained a photograph of Mason and five other males similar in appearance. Shearin immediately, and without hesitation, picked out Mason’s photograph in the lower left-hand corner. Shearin’s van was processed for fingerprints and Mason’s fingerprints were found on one of Shearin’s cassette tapes in the van.

Two days after the robbery, Mason contacted Detective Hilbert. Based on these statements, Defendant was arrested on November 8, 2000. The police did not prepare a photographic lineup of Defendant for Shearin to examine until close to the time of trial.

Mason and Defendant were tried together by jury trial. The voir dire produced a problem with one prospective juror, John Spurlock (“Spurlock”). Spurlock’s voir dire was uneventful until the district attorney asked him if he had ever been charged with a crime:

J^DISTRICT ATTORNEY:
Have you, yourself, ever been charged with a crime?
MR. SPURLOCK:
Traffic only.
DISTRICT ATTORNEY:
I’m sorry.
MR. SPURLOCK:
Traffic.
DISTRICT ATTORNEY:
Only traffic offenses?
MR. SPURLOCK:
DWI.
DISTRICT ATTORNEY:
Would the fact that that occurred give you any reason to be impartial or— excuse me, I should say partial or hold any ill will toward law enforcement or the DA’s office or anyone like that?
MR. SPURLOCK:
No.
DISTRICT ATTORNEY:
How long was that?
MR. SPURLOCK:
Ninety-seven, I believe.

When questioned by Mason’s counsel, Spurlock was asked:

MR. SHACKLETTE:
Okay, other than that, have you participated as a witness or party in any criminal trial?
MR. SPURLOCK:
No.

|7Spurlock was tentatively accepted as a juror and given the preliminary oath. The next day, the district attorney advised the trial court that he had conducted a criminal background check of Spurlock and found that he had not been truthful about his entire criminal record. The state sought to exercise a peremptory “strike-back” of Spurlock. Defendant asserted a Batson challenge, arguing that the State was racially motivated in singling out Spurlock, a black male, for a criminal background check. The trial court originally denied the Batson challenge, but withdrew the ruling when the State admitted that it was not certain that the information contained in the background check actually referred to the juror in question. The trial court granted Defendant’s counsel’s request that the voir dire be reopened for Spurlock to ensure that he was indeed the same person in the other convictions discovered by the district attorney and to determine if there was a race neutral reason for the peremptory challenge.

Spurlock was questioned again. When asked if he had other DWI convictions, Spurlock admitted that he had two or three more DWI convictions, other than the conviction he admitted to in his original voir dire. One was in 1999 and another was prior to the conviction he mentioned at trial. Spurlock also admitted to having been charged with simple escape and unauthorized use of a movable in Nashville, Tennessee, but those charges were apparently dismissed. After questioning, the trial court ruled that, since the juror was being untruthful when answering the previous questions about his being charged and convicted in the past, then 1 «this was a sufficient race neutral reason for the State’s action in its peremptory challenge.

Subsequently, the jury, hearing the evidence related above, found both Mason and Defendant guilty of armed robbery. Defendant filed a motion for judgment of acquittal, alleging that the evidence was insufficient as a matter of law to support his conviction. Before this motion was heard by the trial court, the State filed a habitual offender bill of information alleging Defendant to be a second-felony offender. The bill alleged that Defendant had previously been convicted of simple burglary. On December 2, 2002, before ruling on the motion for judgment of acquittal, the trial court found Defendant to be a second-felony offender. Defendant waived delays and was sentenced to 49 and one-half years at hard labor, without benefit of probation, parole or suspension of sentence.

On January 2, 2003, Defendant filed a motion to reconsider sentence, alleging that the sentence was premature in that the trial court had not previously ruled on Defendant’s motion for judgment of acquittal. On August 13, 2003, the trial court granted Defendant’s motion to reconsider sentence, vacated his original sentence, denied the motion for acquittal and resen-tenced him to 49 and one-half years at hard labor, without benefit of probation, parole or suspension of sentence. Defendant now appeals, raising the following assignments of error (verbatim):

1. The trial court erred in allowing the State to strike back a black juror after running a criminal records check, contrary to the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1717[1712], 90 L.Ed.2d 69 (1986);
1¡)2. The trial court erred in holding that the evidence was sufficient to convict Darylon Green of the crime of armed robbery;
3. The trial court erred in finding that the identification of Darylon Green by the victim, Steve Shearin, was sufficient to prove that Darylon Green was a participant in the crime of armed robbery;
4. The trial court erred in accepting the testimony of Latisha Smith after her testimony had been impeached by prior statements made to the police and it was proven that she lied under oath;
5. The trial court erred in denying Da-rylon Green’s Motion for Judgment of Acquittal;
6. The trial court erred in determining that Darylon Green was a second felony offender; thus, the trial court erred in imposing a sentence of forty-nine and one-half (49 1/2) years pursuant to the Habitual Offender Law;
7. The trial court erred in failing to advise Darylon Green of his right to remain silent prior to questioning and adjudication as a second felony offender;
8. The trial court failed to adequately advise Darylon Green of his rights in connection with the hearing and plea to the multiple offender bill; and,
9. The trial court erred in imposing a constitutionally excessive sentence when it sentenced Darylon Green to serve forty-nine and one-half (49 1/2) year sentence pursuant to the Habitual Offender Law.

DISCUSSION

Sufficiency of the Evidence

In the second assignment of error, Defendant argues that the lack of physical evidence linking him to the robbery was insufficient, as a matter of law, to convict him of armed robbery. We disagree.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under [Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden ofluproof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

To convict a defendant of armed robbery, the State is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App.2d Cir.10/31/01), 799 So.2d 684. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3). In the case sub judice, the State proved that Defendant used force while -armed with á dangerous weapon to take money from Shearin.

Further, the State properly carried its burden of negating any reasonable probability of misidentification of Defendant as a person committing the armed robbery of Shearin. Smith testified that, on the night of the robbery, her cousin Mason and Defendant came to her apartment to use the phone to order a pizza. Smith positively identified Defendant as the person making the call to Domino’s Pizza. Shearin positively identified Defendant as the person who robbed him. After reviewing the evidence in the light most favorable to the prosecution, we find that the jury could reasonably conclude that all of the elements of the armed robbery have been proved beyond a reasonable doubt. This assignment of error is without merit.

\ ^Witness Credibility

In his third and fourth assignments of error, Defendant questions the credibility of the witnesses. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, - U.S. -, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). Smith’s confusion as to the time of the call is irrelevant. The time of the offense is not an essential element in the proof of armed robbery. State v. Pickett, 261 La. 237, 259 So.2d 307 (La.1972). 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 a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760; 98-0282 (La.6/26/98), 719 So.2d 1048.

Moreover, a witness’ failure to identify the suspect at a pretrial lineup is not grounds to bar the in-court identification; rather, it affects the weight of the testimony. Evidence may be introduced to explain any discrepancy. State v. Ford, 26,422 (La.App.2d Cir.9/21/94), 643 So.2d 293; State v. Chism, 591 So.2d 383 (La.App. 2d Cir.1991). Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990).

Shearin was able to identify Defendant when he saw him come into the courtroom. The victim provided the jurors a detailed explanation as to how you may not be able to recognize someone from years past until something triggers your memory. The jury was free to believe or disbelieve this explanation. The jury chose to give weight to the victim’s explanation. The weight of the evidence in this case was sufficient to convict Defendant of the crime charged. The evidence at trial supported Defendant’s conviction and the credibility determinations of the jury as to Shearin and Smith will not be disturbed on appeal. Defendant’s third and fourth assignments of error are without merit.

Post-Verdict Judgment of Acquittal

Defendant asserts in his fifth assignment of error that the trial court erred in denying his motion for post-verdict judgment of acquittal. La. C. Cr. P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992). In this case, the evidence previously mentioned, viewed in a light most favorable to the State, reasonably permits a finding that Defendant was involved in the planning, setup and execution of the armed robbery of Shearin. This assignment of error is without merit.

1 uBatson Challenge

Defendant argues in his first assignment of error that the State was racially motivated in singling out a black juror for a criminal background check. We do not agree.

No formula exists for determining whether the defense has established a prima facie case of purposeful racial discrimination. A trial judge may take into account not only whether a pattern of strikes against African-American venire persons has emerged during voir dire but also whether “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498 (quoting Batson, supra). Batson accords a trial court considerable flexibility and broad discretion in this regard because “trial judges, experienced in supervising voir dire, will be able to decide if circumstances concerning a prosecutor’s use of peremptory challenges creates aprima fa-cie case of discrimination against black jurors.” Batson, supra.

The trial court in the instant case found that the State provided a race neutral reason for the background check and peremptory challenge. The record shows that the prospective juror first attempted to downplay his criminal history by asserting he only had “traffic” offenses. Next, the prospective juror only admitted to one DWI conviction, when, in fact, his record indicated several other offenses. The prospective juror was not truthful with his answers in voir dire. The record does not show that the | ^trial court abused its discretion in finding that the prospective juror’s initial responses justified further investigation by the State and that the subsequent peremptory challenge was race neutral because of the clear attempt by that prospective juror to conceal his criminal history. Simply put, the fact that the juror at issue was not truthful about his criminal history was a sufficient race neutral reason for the peremptory challenge. This assignment of error is without merit.

Sentence

Defendant argues in his final assignment of error that the sentence imposed on him was one of those rare situations in which the sentence makes no measurable contribution to acceptable goals of punishment and is grossly out of proportion to the severity of the crime. In summary, Defendant cites the following factors in support of his argument, addressed by the trial court during sentencing:

1. Defendant was only 21 years old when the robbery occurred.
2. Defendant had graduated from high school and attended college.
3. Defendant was married with one child and three stepchildren.
4. Defendant was employed as a salesman for one and a half years.
5. Defendant’s criminal record consisted of one felony, simple burglary, and additional misdemeanors, including misdemeanor theft, resisting an officer, possession of marijuana and simple battery.
La. R.S. 14:64(B) provides:
Whosoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not|1fimore than ninety-nine years, without benefit of parole, probation, or suspension of sentence.
La. R.S. 14:64.3 provides:
When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Section shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.
La. R.S. 15:529.1(B)(2)(a) provides:
(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

A review of La. R.S. 15:529.1, in effect at the time of the offense, shows that Defendant, as a second felony offender, was subject to a sentence for the armed robbery, of not less than “one-half of the longest term and not more than twice the longest term prescribed for a first conviction.” La. R.S. 15:529.1(A)(2)(a). La. R.S. 14:64(B) provides for a maximum sentence of armed robbery of 99 years at hard labor. One-half of that amount is 49 and one-half years. In addition, a firearm was used in this robbery. Further, in accordance with La. R.S. 14:64.3, listed above, five years must be added to this sentence. This being the case, Defendant was sentenced to the minimum sentence allowed under the habitual offender law, or actually, five years less than the total sentence required by statute.

[17Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. The mandatory sentences it requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213. Johnson, supra, and Wade, supra,' also held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson, supra; Wade, supra.

In addition, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. Johnson, supra; Wade, supra; State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339.

For authority, Defendant cites the case of State v. Terrell, 37,762 (La.App.2d Cir.11/18/03), 858 So.2d 1282. It should be noted that, in Terrell, supra, this court vacated a habitual offender sentence and remanded for the |iStrial court to resen-tence in light of the reduction in the sentences in the Habitual Offender Law by the legislature following the offense. The provisions for a second-felony offender, La. R.S. 15:529.1(A)(2)(a), however, were not amended. This being the case, Terrell, supra, cannot be used to support a remand for consideration in light of legislative changes.

A review of the sentencing transcript shows that the trial court carefully considered Defendant’s personal history, age, prior criminal history and the circumstances of this case in deciding on a proper sentence. The facts show that Defendant helped plan and then participated in the armed robbery of Shearin. Both robbers were armed. The victim was made to first kneel at gunpoint while his money and vehicle were stolen. Next, he was taken into a vacant house, ordered to disrobe and put in a closet while Defendant made his getaway. There is no showing by clear and convincing evidence that Defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. The sentence imposed was within the limits of the habitual offender law and the trial court did not abuse its discretion in the sentence. This assignment of error is without merit.

Abandoned Assignments of Error

Defendant originally filed more assignments of error, listed as the sixth, seventh and eighth assignments of error, relating to sentencing and errors in his habitual offender bill of information. In his brief, Defendant stated that he was not briefing those assignments of error.

|1flAssignments of error which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir. 1989), writs denied, 558 So.2d 1123 (La.1990). We find, therefore, that the sixth, seventh and eighth assignments of error have been abandoned; and, therefore, will not be addressed herein.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Darylon D. Green, are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS, and MOORE, JJ.

Rehearing denied.

      . La. R.S. 14:64(A) provides:
      Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

      . La. R.S. 14:64.3(A) provides:
      When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

      . See Batson v. Kentucky, 476 U.S. 79, 106 5.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . We note that Louisiana jurisprudence has set forth that an appellate court should not correct an error that is favorable to a defendant where the issue is not raised by the State on appeal. See State v. Fraser, 484 So.2d 122 (La.1986).


source: Caselaw Access Project

author: h GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Danny Ray BOUNDS, Appellant.
    No. 38,330-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Steven R. Thomas, Mansfield, for Appellant.
    William R. Jones, District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   h GASKINS, J.

Following a jury trial, the defendant, Danny Ray Bounds, was convicted on six counts of illegal possession of stolen things valued over $500.00, in violation of La. R.S. 14:69. The defendant’s motion for new trial and alternative motion for postverdict judgment of acquittal were denied. The defendant was sentenced to six concurrent sentences of five years imprisonment at hard labor. On each count, four years were suspended, and the defendant was placed on five years supervised probation, with a special condition requiring restitution of $1,000.00. A fine totaling $3,000.00 was also imposed. The defendant’s timely filed motion to reconsider sentence was denied.

The defendant now appeals. We affirm the defendant’s convictions and sentences.

FACTS

In August 2001, an investigation of the defendant was commenced regarding his possession of stolen farm equipment at his residence and property in Red River Parish. In early September 2001, investigators for the Livestock Brand Commission with the Louisiana Department of Agriculture and Forestry and officers for the Red River Parish Sheriffs Department arrived at the defendant’s property after seeing two tractors that matched descriptions of stolen tractors. The tractors were parked behind the defendant’s house and were visible from the highway. The defendant was not home when the officers arrived so they obtained permission to look around the property from the defendant’s adult son. When the officers identified the two tractors as stolen items, the defendant’s son telephoned |2the defendant to come home. Upon his arrival, the defendant was orally advised of his Miranda rights. The defendant told the investigators and officers that he didn’t have anything to worry about because he bought the equipment. When asked if he could produce a bill of sale or canceled check, the defendant said he had canceled checks. The defendant told the investigators that he bought the tractors and equipment from Justin Carter. He ' voluntarily showed them his bank statements and checks.

The defendant was arrested for six counts of possession of stolen things valued over $500.00. At trial, the state presented evidence regarding the description (including serial numbers, except for the Rhino Flex Wing bush hog listed in the fourth count), original ownership, value, approximate date and place of theft, subsequent recovery and identification of the tractors and implements in question. The items and the details surrounding their loss are as follows:

Count 1: A John Deere 7210 tractor, stolen from Goldman Lawn and Tractor Company in Natchitoch-es in September 2000, having a retail value of $63,000.00, for which the defendant paid Justin Carter $12,000.00.
Count 2: A 4055 John Deere tractor, stolen from Robert Gorman in August 2000, which was purchased used (with 1600 hours) for $29,000.00, for which the defendant paid Carter $13,000.00.
Count 3: A John Deere 720 front-end loader stolen from Robert Gor-man in August 2000, which was purchased by Gorman for $5,667.00 and outfitted on the 4055 John Deere tractor listed in count number two, and included in the $13,000.00 price the defendant paid Carter for said tractor.
Count 4: A Rhino Flex Wing Bush Hog stolen from Scott Tractor Company in Bossier City on August 14, 2000, which retailed for $12,800.00, for which the defendant paid Carter $3,250.00.
Count 5: A Ford/New Holland 3930 tractor stolen from Shreveport Ford Tractor, belonging to Douglas Gaines, lain September 2000, which was purchased by Gaines for $16,080.00, for which the defendant paid Carter $6,000.00.
Count 6: A Bush Hog front-end loader stolen from Shreveport Ford Tractor, belonging to Douglas Gaines, in September 2000, which was purchased by Gaines for $3,750.00, outfitted onto the Ford/New Holland 3930 tractor listed in count number five, and included in the $6,000.00 price the defendant paid Carter for said tractor.

The state also presented other information pertaining to specific items. Although it was unknown as to whether the power take out (PTO) on the John Deere 7210 tractor was operable when the tractor was stolen, it was inoperable when the tractor was returned to its owner. Testimony was given that, after an acquaintance told the defendant that the inoperable PTO would be covered under warranty, the defendant expressed reluctance about taking it to the dealer for repair. At the time of its theft, the John Deere 4055 tractor had visible damage on the hood as the result of a radiator boil-over; at the time of its recovery, it still bore this damage. Although the serial number plate on the Rhino bush hog was missing when it was recovered, its owner identified it based on its type, configuration and “tips.” He testified that this version was unique and the most expensive because of its special options; it was usually purchased by government agencies for cutting highway right-of-ways.

The defendant testified that he was not familiar with the value of tractors and farm equipment, and did not use such equipment in his job as a construction company supervisor. He stated that he did not know that the items found in his possession had been stolen. He explained that he bought them from Justin Carter. Carter, a young man in his early 20s, had cut hay | ¿for the defendant. According to the defendant, Carter said he was getting the equipment from a man who worked at Scott Truck and Tractor. The defendant presented various checks for his purchases, which contained notations on the memo line that he asserted were not made by him. Those notations indicated that items other than farm equipment were sold to the defendant — i.e., hay, cows, etc. The defendant introduced his check register in which his notations on the respective check stubs indicated the correct references to purchases of farm equipment.

The defense presented other witnesses, including family members and Patricia Sullivan, the person who prepared the defendant’s tax returns. Witnesses corroborated the fact that the defendant often made major “handshake” business deals. Sullivan related that the defendant told her which checks were for equipment purchases, and the farm equipment was listed on his federal tax returns. The defendant told her that he did not know why Carter wrote the incorrect notations on the checks. Sullivan stated that the notations did not look like the defendant’s handwriting.

The jury convicted the defendant of all six counts. The defense filed a motion for new trial and, alternatively, motion for postverdict judgment of acquittal; the trial court denied the motions.

At a sentencing hearing, testimony was presented by the defendant, his adult children, and his employer. Also testifying was a private investigator who conducted a polygraph examination' of the defendant indicating that he had no knowledge that the property was stolen, or the value of said property.

|ROn each count, the trial court sentenced the defendant to serve five years imprisonment at hard labor, with four years suspended. Also, the defendant was placed on five years supervised probation, with the special condition regarding restitution of $1,000.00 to Mr. Gaines to reimburse him for his insurance deductible. A fine totaling $3,000.00 was also imposed. A timely motion to reconsider sentence was denied.

SUFFICIENCY OF EVIDENCE

The defendant contends that the trial court erred in denying his motion for new trial, and alternatively, motion for postverdict judgment of acquittal. According to the defendant, the state only proved that the stolen farm equipment was found on the defendant’s property and failed to present any evidence that he had actual knowledge that these items were stolen.

The question of sufficiency of evidence is properly raised by a motion for postverdict judgment of acquittal. State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for insufficiency of evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

| «The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

Circumstahtial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

The jury found the defendant guilty of six counts of illegal possession of stolen property valued at more than $500.00, a violation of La. R.S. 14:69. The elements of this offense are the following: (1) the items were stolen; (2) the items were worth more than $500.00; (3) the defendant knew or should have known that the property was stolen; and (4) the defendant intentionally received the property. See State v. Lampton, 1997-2616 (La.App. 4th Cir.3/10/99), 729 So.2d 754. Illegal possession of stolen |7property is a general intent crime. State v. Powell, 1998-0278 (La.App. 4th Cir.11/17/99), 746 So.2d 825.

Viewing the evidence in the light most favorable to the prosecution, all of the elements of the offense have been proved beyond a reasonable doubt. The state presented direct evidence that the six items of property listed in the indictment were stolen, the items of property were worth more than $500.00 and the defendant intentionally received those items. Clearly, testimony and documents introduced into evidence, when viewed in such light, support the conclusion that the defendant knew or should have known that the property was stolen.

There were several factors presented to the jury from which it could have reasonably found that the defendant knew that the pieces of farm equipment were stolen, most notably the manner in which they were purchased and the person who was selling them. The prices paid by the defendant to Carter were mere fractions of their market values. The seller was a young man with no apparent connection to the retail sale of farm machinery beyond a questionable assertion of a friend in retail sales; yet, he had access to a number of expensive implements, some of which were brand new. The inoperable PTO rendered one of the tractors of highly limited use to the defendant; however, he failed to have it repaired by the dealer even though he was advised that the tractor was still under warranty. Also, the jury could have believed that the notations on the checks were, in fact, made by the defendant, not Carter.

This assignment is therefore without merit.

Is JUSTIN CARTER’S REFUSAL TO TESTIFY

The defendant contends that the trial court erred in not granting him a new trial due to the unexpected refusal of Justin Carter to testify at trial. According to the defendant’s brief, the backbone of his defense was showing the jury the many internal inconsistencies in Carter’s statement. As part of this strategy, the defense questioned the chief investigator for the Livestock Brand Commission about Carter’s statement. As a joint motion, defense counsel offered the written statement into evidence. Defense counsel was prepared to rigorously cross-examine Carter; however, when called to the witness stand, Carter refused to testify and was held in contempt. The trial court then allowed the defense to withdraw Carter’s statement from evidence. The court also admonished the jury to disregard it and any testimony about its content.

In his motion for new trial and alternatively for postverdict judgment of acquittal, the defendant asserted that Carter had indicated to the prosecutor before the trial that he would not testify. He argued that the state’s failure to advise the defendant of this development amounted to a Brady violation. Also in his motion, the defendant referred to a statement by the alternate juror that it was apparent to the jury when Carter was on the stand that he “had been in a fight” and that “someone had gotten to him.”

In its answer to the motion and the accompanying affidavits, the state asserted that when Carter met with the prosecutor several days before trial to discuss his testimony, he expressed reluctance to testify. However, after Carter spoke privately to his attorney by telephone, he said he would | gcomplete his interview with the prosecutor and testify. In his affidavit, the prosecutor stated that he “fully expected Mr. Carter to testify pursuant to his subpoena when he was called to the witness stand.”

Review of the record reveals that after Carter refused to testify, the defendant’s motion to remove Carter’s statement because of hearsay was granted, and an admonition to the jury was made by the trial court at the defendant’s request. The defendant chose to not move for mistrial. Since the defendant received all of the relief he requested on this matter at trial, we cannot say that the trial court abused its sound discretion in denying the defendant’s motion for new trial. State v. Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201.

This assignment is without merit.

EXCESSIVE SENTENCES

In three assignments of error, the 55-year-old defendant complains of his sentences, specifically the imposition of a one-year term of incarceration. The defendant argues that the trial court did not accurately and sufficiently set forth the aggravating and mitigating factors in compliance with La. C. Cr. P. art. 894.1. The defendant concludes that the objective facts in this case do not support incarceration, and asserts that his sentences totally disregard traditional sentencing in the 39th Judicial District Court and other districts, in which first offenders in property-related crimes have received probation. He contends that requiring him to serve one year in prison will have “catastrophic effects” on him and his family. In |inparticular, he cites the financial loss to his family and his business, as well as his own poor health.

La. R.S. 14:69B(1) provides that whoever commits the crime of illegal possession of stolen things, when the value of the things is $500.00 or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than $3,000.00, or both.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

InThere is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. The record adequately indicates that the trial court was aware of the matters urged by the defense prior to imposing sentence, i.e., the defendant’s personal history, his first offender status and the hardship that a term of imprisonment would cause to the defendant and his family.

The second prong of the test of whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

There is no proportionality guarantee in noncapital cases unless the reviewing court finds the sentence is grossly disproportionate to the circumstances of the offense. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), in which the Court ruled “the Eighth Amendment contains no proportionality guarantee.” Accord State v. Delaughter, 29,974 (La.App.2d Cir.12/10/97), 703 So.2d 1364, writ denied, 1998-0018 (La.5/1/98), 805 So.2d 201; State v. Callahan, 690 So.2d at 865, fn. 2; State v. King, 37,615 (La.App.2d Cir.10/9/03), 856 So.2d 243.

A trial court is not required to render a suspended sentence or probation on a first (or qualifying second) felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Bradford, supra; State v. Callahan, supra; State v. Frye, 37,009 (La.App.2d Cir.5/14/03) 847 So.2d 151, writ denied, 2003-1754 (La.1/9/04), 862 So.2d 979.

The record shows that the defendant’s sentences were well below the maximum sentences that could have been imposed. When the defendant’s crimes and punishment are viewed in light of the harm done to society by such major economic crimes, the defendant’s sentences do not shock the sense of justice. The defendant’s proportionality argument is likewise without merit. Furthermore, the trial court was not required to render a suspended sentence or probation on a first felony offense.

These assignments are without merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.


author: liMOORE, J.

text:
    STATE of Louisiana, Appellee v. Dewayne Terrance WEAVER, Appellant.
    No. 38,322-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Jacqueline Scott, Bossier City, for Appellant.
    Robert W. Levy, District Attorney, Clifford R. Strider, III, Stephen K. Hearn, Jr. Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   liMOORE, J.

The defendant was tried by a jury, convicted of armed robbery and sentenced to serve 15 years imprisonment at hard labor. He now appeals alleging seven assignments of error. For the following reasons, we affirm the defendant’s conviction, but vacate the sentence and remand for re-sentencing.

FACTS

Jessica McDonald and her boyfriend, Jeff Sillinger, had just parked outside her apartment at Village Green Apartments in Ruston and had begun unloading items they had purchased from Wal-Mart when Jessica observed a dark-colored Geo drive past them. Moments later, they were approached by three men wearing ski masks and gloves. The men cursed and shouted profanities at the couple while exclaiming this was a robbery and demanded then-money. One of the men held a silver revolver against Jessica’s head. Among the items taken from the couple were Jessica’s purse containing her cell phone, credit cards, keys and some cash and Jeffs wallet. Another assailant took a 12-pack of beer the couple had just purchased from Wal-Mart. The three men then fled.

Jessica reported the robbery to authorities. Although she could not see then-faces completely, she was able to identify the assailants as three black males. She also noted that, moments before the robbery, a dark-colored Geo passed slowly by the couple as they got out of her car.

Following an investigation, defendant was arrested after one of the suspects, Kenton Cottingham, implicated him in the robbery. Police | ^investigated Cottingham after he made several phone calls from the victim’s stolen cell phone, some of which were traced to his girlfriend. The Geo was traced to Elbonie Washington, defendant’s girlfriend, who told police that she had loaned her black Geo Storm to defendant the afternoon of the robbery. Defendant named Cottingham and Olatunji Williams, aka “Baby,” as his accomplices.

All three were charged with armed robbery in a single bill of information. Williams subsequently pled guilty to the offense, and Cottingham was acquitted in a jury trial. After a trial by jury, the defendant was convicted as charged for armed robbery. He was sentenced to serve 15 years imprisonment at hard labor. He appeals.

DISCUSSION

Assignment of Error Number Six: The evidence presented by the state was insufficient to support defendant’s conviction for Armed Robbery.

The defendant contends that the state failed to prove his identity as a perpetrator of the armed robbery. Jessica McDonald was unable to identify the men who robbed her; her boyfriend, Jeff Sil-linger,. did not testify. Defendant included within the sufficiency argument other specific errors related to the admissibility of evidence, such as statements obtained by police from Cottingham and the admissibility of defendant’s confession, but these are treated elsewhere in this opinion under their specific assignments.

Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La." C. Cr. P. art. 821, this court will consider a sufficiency of the evidence argument in the absence of |3such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Long, 36,167 (La.App.2d Cir.10/30/02), 830 So.2d 552.

All 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, are principals. La. R.S. 14:24.

At trial Jessica McDonald testified that the robbers demanded and took her purse and Jeff Sillinger’s wallet while one of the assailants pointed a revolver at her head at close range. Although Ms. McDonald could not see their faces, she was able to discern through openings in the ski masks that the assailants were black males. She also noticed a dark-colored car, which she identified as a Geo, drive slowly by just moments before the | ¿robbery. Police subsequently learned that the defendant’s girlfriend, Elbonie Washington, owned a black 1991 Geo Storm. Ms. Washington testified at trial that the defendant borrowed her car around 5:00 p.m. on the date of the robbery. When he returned briefly in the car between 7:00 and 8:00 p.m., she asked him what he had been doing, he replied, “It’s best that I didn’t know.”

The revolver used in the robbery was recovered from Cottingham’s girlfriend, who was identified after Cottingham made several cell phone calls from Ms. McDonald’s stolen cell phone. After the defendant was implicated by Cottingham and brought in for questioning, Lieutenant Darrell Newsom testified that the defendant confessed to the robbery, and an audio tape of the confession was made. The tape of the confession was played for the jury. Trooper First Class Gregory Pleasant was present during the taped confession and testified that the defendant was not coerced-into giving a statement.

The jury obviously did not find the testimony of defendant’s alibi witnesses to be credible.

Viewing the evidence above in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime of armed robbery proven beyond a reasonable doubt in this instance. Accordingly, this assignment of error is therefore without merit.

Assignment of Error Number Seven: The trial court erred by allowing the State of Louisiana to introduce defendant’s statements about the robbery in evidence, including an audiotape, a videotape and a typewritten transcript as well as other statements attributed to the defendant by police officers.

| (¡The defendant admits he filed no motion to suppress, but argues that the admission of his inculpatory statements into evidence should be reviewed as part of the “record” for sufficiency of evidence. He asserts that the statements were obtained in violation of his constitutional rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

• An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, supra.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Jackson, 381 So.2d 485 (La.1980); State v. Roddy, (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra; State v. Walker, 28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. State v. Payne, 2001-3196 (La.12/4/02), 833 So.2d 927, citing Edwards v. Arizona, supra, 451 U.S. at 485-486, 101 S.Ct. at 1885. In addition, once a suspect in custody expresses a desire, at any stage in the process, to deal with the police only through counsel, all questioning must cease, and the accused may not be |7subject to further interrogation until counsel has been made available to him, unless he initiates further communication, exchanges or conversation with the police and validly waives his earlier request for counsel. State v. Loyd, 35,637 (La.App.2d Cir.2/27/02), 810 So.2d 1214, writ denied, 2002-1159 (La.4/21/03), 841 So.2d 779, citing Edwards v. Arizona, supra; Miranda, supra.

The admissibility of a confession is a question for the trial court whose conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. Roddy, supra; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir.1992), citing State v. Jackson, supra. We place great weight upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra; State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082.

Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240; State v. Pittman, 585 So.2d 591 (La.App. 5th Cir.), writ denied, 586 So.2d 545(1991).

The defendant complains of an alleged error that was not objected to at the time of occurrence. Also, there is no ruling from which the defendant can complain. Thus, this alleged error cannot be availed of after verdict. La. C. Cr. P. art. 841; State v. Bosley, supra.

^Nevertheless, even if we assume the defendant timely raised an objection, this claim is clearly without merit. The police twice advised the defendant of his Miranda rights before taking the recorded statement. When the defendant requested an attorney, the tape was turned off. When the recording was resumed, defendant acknowledged that he had changed his mind and no longer wanted an attorney. He stated that he was not coerced and that police did not try to convince him he did not need an attorney. • At trial, Lt. Newsom testified that during the time the tape was cut off, officers were leaving the room, but then the defendant stated: “F*ck it, we’re caught, I’ll talk.” Hence, we conclude that the questioning immediately ceased upon the defendant’s request for an attorney, and it did not resume until the defendant initiated further communication and validly waived his earlier request for counsel. See State v. Loyd, supra.

This assignment is therefore without merit.

Assignment of Error Number One: The trial court erred in granting the State’s Motion in Limine prohibiting defendant from introducing evidence of the “Not Guilty” verdict of the co-defendant Kenton Cottingham at the defendant’s trial.

The state filed a motion in limine to prohibit the defendant from making any reference to the acquittal of co-defendant Kenton Cottingham. The court noted that there are no Louisiana cases on point and reasoned that evidence of Cottingham’s acquittal was irrelevant and therefore was inadmissible. The court stated:

I do the weighing and balancing and I consider the fact that there may well have been different evidence, it’s — may cause new issues to raise and I don’t find it relevant and, if so, I think it would be a waste of time, confuse the Jury, unduly prejudice |9so I’m gonna grant the motion in limine. The defense asked that their objection be noted for the record.

On appeal, the defendant argues that the ruling violated his Sixth Amendment right to present a defense. He claims that he was unable to call Kenton Cottingham and question him as to the defense’s theory of the case. He further argues that he was entitled to present documents or references to public records which were relevant to his defense.

We conclude that the trial court was correct and did not abuse its discretion when it granted the motion in limine prohibiting the defense from introducing evidence of Cottingham’s acquittal. Although there are no Louisiana cases regarding introducing evidence of a co-defendant’s acquittal, there are many cases from other states that support the trial court’s ruling.

In Garner v. State of Mississippi, 2002-00391 (Miss.App.10/14/03), 856 So.2d 729, the state successfully pursued a motion in limine to exclude any evidence that a co-defendant had been acquitted of the same robbery in an earlier trial. On appeal, the defense argued that the trial court’s ruling prevented it from using the acquittal to attack the credibility of the victim, who had positively identified her assailants at each trial. The court of appeal concluded that the trial court did not err in excluding this evidence, stating:

The jury was charged with trying a particular case, sitting as finder of fact, is the sole judge of the credibility of the witnesses presented at trial. (Citations omitted). A jury trying a criminal case normally must sort through substantial amounts of evidence, some portions tending to indicate guilt and other portions tending to exonerate the defendant. In that situation, it would be essentially impossible to draw a direct link between Lnthe verdict of acquittal and any particular aspect of the proof. Even if it is assumed that the prior verdict speaks, in some indirect way, to that jury’s assessment of the victim’s credibility, it would be improper to afford the subsequent jury that information. To do that would, in effect, install the earlier jury as an advisory body offering its own view as to Smith’s credibility and would tend to usurp, or at the very least, improperly influence the deliberations of the jury on issues that are solely within the province of the finders of fact. The trial court did not err in excluding this evidence. (Emphasis added).

The same result was reached in several analogous cases from other states, including State v. Scott, 99-0012 (Iowa 11/16/00), 619 N.W.2d 371 (Evidence of acquittal of one jointly indicted with accused is not admissible on behalf of accused as tending to establish that he also is innocent, and likewise, it is not competent on the trial of one charged with a crime to show that another, separately charged with the same offense, has been acquitted.); Montoya v. State, 07-99-0447 CR (Tex.App.-Amarillo Nov. 21, 2000), 65 S.W.3d 111; Rodriquez v. State, 454-55 (Tex.Crim.App.1977), 552 S.W.2d 451 (Generally, the disposition of a case against a co-defendant is inadmissible at trial against another co-defendant.); State v. Martin, 22978 (6/8/03), 77 Conn. App. 818, 827 A.2d 1 (The guilty plea or conviction of a co-defendant or co-conspirator generally is not admissible at trial, and such guilty pleas and convictions are never admissible as substantive evidence of the defendant’s guilt.); Torres v. State 14-01-01273 (Texas App.-Hous. 14th Dist. 12/19/02), 92 S.W.3d 911 (Disposition of co-defendant’s case is generally not admissible in trial of another co-defendant.). See also, United States v. Sanders, 95 F.3d 449, 454 (6th Cir.1996); United States v. Fernandez-Roque, 703 F.2d 808, 813 (5th Cir.1983).

Based upon our review of these cases and the instant record, we conclude that the trial court did not err in granting the state’s motion in limine. Defendant’s claims that he was denied his right to present a defense are unsupported on the record. The trial court’s ruling did not prevent the defendant from calling the co-defendant as a witness, and defendant advances no “theory of the case” which was foreclosed by this ruling.

Assignment of Error Number Two: The trial court erred by not granting the defendant’s objections to hearsay references by the prosecutor about the “cell phone,” “what Weaver told him,” and other remarks to the jury that bolstered the credibility of a state’s witness before that credibility was attacked.

In this assignment of error, defendant contends that Tpr. Pleasant and Lt. New-som both testified for the state using hearsay statements obtained from the questioning of co-defendant Cottingham that implicated Weaver in the crime. Defendant complains that some of the hearsay statements were prejudicial to the defendant because he was unable to call Cot-tingham as a witness (presumably for cross-examination regarding the alleged statements).

The matters of record indicate that during the direct examination, the prosecutor asked Trp. Pleasant what co-defendant Cottingham told him regarding the robbery. Tpr. Pleasant stated that after questioning Cottingham, they began looking for the defendant. When the state asked h/Tpr. Pleasant if Cottingham gave any details of the robbery, Tpr. Pleasant responded:

He told what — Mr. Cottingham [sic] statement was — was that Mr. Weaver mentioned to him that he had committed a robbery and robbed a — .

At this point, the defense objected to hearsay, and the trial court admonished the witness stating: “Ail right, sir, don’t tell what others have said.” The state resumed asking whether Cottingham gave any details about a gun, the car, how the people were dressed, how many people were there and if the armed robbery occurred at the Village Green Apartments. Tpr. Pleasant replied he gave none. He said Cottingham mentioned a cell phone, but he did not relate it to the Village Green Apartments.

Defendant contends the following questioning elicited hearsay responses:

Prosecutor: Okay. Who was the first person in this investigation that gave anybody, anyone, any investigator any details of what happened on February 20th at approximately 6:30 or 6:40 at Village Green Apartments?
Tpr. Pleasant: Mr. Weaver was.
Prosecutor: He’s the first person that gave you any details?
Tpr. Pleasant: Yes, sir.
Prosecutor: Mr. Cottingham didn’t?
Tpr. Pleasant: Well he — as I said, he told me what Weaver told him.
Prosecutor: Right, but that didn’t involve details.
Tpr. Pleasant: That’s right.

haNo contemporaneous objection was made to this testimony. The state also asked Lt. Newsom about the investigation and, specifically, Weaver’s statement:

We informed him (the defendant) that we had talked to another co-defendant by the name of Kenton Cottingham who told us that Dewayne Weaver had told him that he had committed this robbery where a white male was in a parking lot and he stole the man’s wallet and a cell phone — .

At this time, the defense objected to hearsay, and the trial court sustained the objection. The questioning continued regarding what the defendant related to Lt. Newsom about the case. Lt. Newsom stated that he told the defendant what Cottingham told them. No other contemporaneous objections were made by the defense. Lt. Newsom then related that the defendant admitted his involvement in the robbery together with Cottingham and Olatunji Williams.

Generally, a witness with personal knowledge is allowed to relate what occurred or did not occur in his/her presence, as long as the evidence is relevant and not made inadmissible by the hearsay rule or some other rule of law. La. C.E. arts. 402, 602, 802. “Hearsay” is a statement other than one made by the declar-ant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. See State v. Tate, 25,765 (La.App.2d Cir.2/23/94), 632 So.2d 1213, writ denied, 94-1218 (La.8/23/96), 678 So.2d 33.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, supra. If an objection is sustained, defendant cannot on appeal complain of |14the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial. State v. Michel, 422 So.2d 1115 (La.1982), citing State v. Miles, 402 So.2d 644 (La.1981); State v. Nicholas, 359 So.2d 965 (La.1978).

In this instance, there are no rulings from which the defendant can complain. Our review of the record indicates that when the court admonished Tpr. Pleasant not to state what Cottingham stated, it implicitly sustained the defendant’s objection. Defendant’s second hearsay objection was also sustained. The defendant complains of alleged errors that were not objected to at the time of occurrence. Thus, these alleged errors cannot be availed of after verdict. La. C. Cr. P. art. 841; State v. Bosley, supra. The defendant neither requested nor was denied an admonition to disregard or a mistrial. He cannot therefore now complain of the alleged errors on appeal. See State v. Michel, supra; State v. Miles, supra; State v. Nicholas, supra.

We also note that the defense was not prohibited from calling Cottingham as a witness.

This assignment is therefore without merit.

Assignment of Error Number Three: The trial court erred by striking portions of the trial testimony from the record at the request of the prosecutor.

The defense’s direct examination of defendant’s alibi witness, Adrian Nicole Lee, included the following colloquy:

Mr. Johnson: Okay. Are you absolutely certain that you saw Mr. Weaver on this particular day, February 20th, 2001, as you sit here and testify today?
Ms. Lee: Yes, sir.
11fiMr. Johnson: Why are you certain of that?
Ms. Lee: Because in our conversation he mentioned that his mother was going out of town and his father’s birthday was the next day.
Mr. Johnson: Okay.
(By prosecutor)
Mr. Hearn: Your Honor, I’m gonna ask—
Mr. Johnson: I’ll tender, Your Honor.
Mr. Hearn: I’m gonna ask that the last statement be stricken from the record as a hearsay, I had no opportunity to interject an objection despite the Court’s warning.
The Court: All right.
Mr. Johnson: I don’t — I don’t object to that, Your Honor.
The Court: Sustained.
(By co-prosecutor)
Mr. Strider: Your Honor, can we instruct the Jury what that means?
The Court: Oh, yes. Thank you for reminding me. The last statement I’ve stricken from the record. That means you’re not to give it any consideration or any weight.

The defendant argues that the trial court’s striking of this testimony from the record was particularly prejudicial because it had the effect of telling the jury not to consider Ms. Lee’s recollections which were part of his alibi defense. The defense contends that there is no basis for the objection. He also argues that motions to strike are not available under Louisiana law, and that the prosecutors’ request to strike amounted to a prohibited comment on the evidence.

|! (Assuming, arguendo, that the motion constituted a prohibited comment, we note that the defendant did not object to it at the time of its occurrence. In fact, defense counsel specifically stated that it did not object to the trial court’s ruling. Thus, these alleged errors cannot be availed of after verdict. La. C. Cr. P. art. 841; State v. Bosley, supra.

Nevertheless, an admonishment to the jury after an objection is sustained is allowable under La. C. Cr. P. art. 771, which provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In the instant case, the comment made by the witness was objected to by the state as hearsay evidence. The effect of the trial court’s ruling and action was to sustain the objection and admonish the jury not to give the statement any consideration or any weight. The record supports the defendant’s claim that the ruling amounted to a prohibited comment by the trial court.

This assignment is therefore without merit.

117Assignment of Error Number Eight: The State of Louisiana alleged in the Bill of Information that:

Kenton Ladale Cottingham, Dewayne Terrance Weaver, and Olatunji D’Shawn Williams committed the offense of Armed Robbery ... in that (he) robbed Jessica Mayfield and Jeff Sillinger on February 20, 2001 while armed with a dangerous weapon, to wit: a gun.

According to the record neither of these persons testified at the trial of State of Louisiana v. Dewayne Terrance Weaver, No. 47,377 on the 25, 26, and 27 of March 2008. A person named Jessica McDonald testified that she was the victim of the Armed Robbery on February 20, 2001, and the State of Louisiana chose not to call Jeff Sillinger. There is no showing that Jessica McDonald is Jessica Mayfield, the victim of the robbery, and this testimony should not be used to support a conviction. Appellant requests that this supplemental assignment of error be reviewed under State v. Raymo, 419 So.2d 858 (La.1982), as “error patent on the face of the record.”

The initial bill of information listed the victim’s name as “Jessica Mayfield” instead of Jessica McDonald. However, an amended bill of information was filed on September 7, 2001, amending the victim’s name to Jessica McDonald. Furthermore, Jessica McDonald testified at trial that she was the victim. A review of the record reveals that the amended indictment does name Jessica McDonald as a victim, who is the same person who testified at trial. Thus, this claim is groundless.

This assignment is therefore without merit.

Assignment of Error Number Four: The trial court erred by sentencing defendant to an additional five years “mandatory” sentence for Armed Robbery without having specifically alleged in the Bill of Information that defendant would be subject to a “mandatory” sentence in violation of the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and La. C. Cr. P. art. 893.1-3.

The defendant was charged by amended bill of information as follows:

|!«Kenton Ladale Cottingham, Dewayne Terrance Weaver, and Olatunji D’Shawn Williams committed the offense of Armed Robbery as set forth in R.S. 14:64, in that he robbed Jessica McDonald and Jeff Sillinger on February 20, 2001 while armed with a dangerous weapon, to wit: a gun.

When the trial court sentenced the defendant, the court made the following statement:

I wanna read you the sentences for Armed Robbery. Whoever commits the crime of Armed Robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years without benefit of parole, probation or suspension of sentence. When the dangerous weapon used in the commission of the crime of Armed Robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation or suspension of sentence. It shall be served consecutively to the sentence imposed under the provision I just read to you.

The court then noted that the defendant used a firearm during the commission of the crime by placing a gun to the head of one of the victims. After considering this and other aggravating and mitigating factors, the court sentenced the defendant as follows:

The sentence of the Court is fifteen years at hard labor without benefit of probation, parole or suspension of sentence. This is in accordance with the statute and note that a firearm was used.

The defendant argues that the court intended to sentence him to ten years at hard labor with a consecutive five-year sentence imposed because of the use of a firearm under the enhanced penalty provided by La. R.S. 14:64.3. Because the bill of information does not specifically allege that |19the firearm provision of La. R.S. 14:64.3 applies — only that the dangerous weapon used in the armed robbery was a gun — defendant contends that he is entitled to be re-sentenced to 10 years only. He contends that under the rule of Apprendi v. New Jersey, supra, and La. C. Cr. P. art 893.1-3, sentence enhancements must be expressly charged in the bill of information. In Apprendi, the Supreme Court held:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.

The state contends that the 15-year sentence imposed was within the maximum statutory sentence authorized by the armed robbery statute, and that the sentence was not improperly enhanced. The use of a firearm is a proper consideration in determining an appropriate sentence in an armed robbery case. Even if the sentence was enhanced under La. R.S. 14:64.3, argues the state, the sentence does not violate Apprendi since it is within the maximum sentence for armed robbery. See State v. Walker, 01-51 (La.App. 5th Cir.5/30/01), 789 So.2d 86, writ denied, 2001-1922 (La.5/10/02), 815 So.2d 834. Also, it argues that La. C. Cr. P. art 893.1-3 is inapplicable.

We note that the bill of information does not mention La. R.S. 64.3 although it charges that the dangerous weapon used was a gun. Since Apprendi, this court has noted the necessity of charging a defendant with La. R.S. 14:64.3 in State v. Odell, 37, 194 (La.App.2d Cir.6/5/03), 850 So.2d 749, n. 1.

| gpLouisiana Code of Criminal Procedure article 879 requires a determinate sentence. State v. Williams, 30,090 (La.App.2d Cir.12/10/97), 704 So.2d 403. In State v. Frank, 1993-1402 (La.App. 3rd Cir.4/6/94), 635 So.2d 634, an indeterminate sentence was found to be an illegal sentence and was noted as a patent error.

Furthermore, the court in State v. Williams, 2001-1398 (La.App. 1st Cir.3/28/02), 815 So.2d 378, writ denied, 2002-1466 (La.5/9/03), 843 So.2d 388, noted that R.S 14:64.3 does not provide for the imprisonment to be served at hard labor. The statute’s failure to provide for hard labor may be the result of a legislative oversight. Nevertheless, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction. Any ambiguity in the substantive provisions of a criminal statute is resolved in favor of the accused and against the state. State v. Williams, supra, 815 So.2d at 382-383, citing State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271, 1274. Accordingly, the court held that imprisonment at hard labor cannot be imposed under this statute.

Because the sentence imposed by the court is indeterminate and constitutes error patent, we vacate the sentence, and remand for re-sentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. The trial court is directed to consider and comply with the mandates of Apprendi and to consider State v. Williams, supra, regarding whether the additional penalty is to be served at hard labor. The court shall allow the defendant to file, prior to sentencing, any motions in arrest of judgment |2ibased upon the omission of an essential averment in the bill of information under La. C. Cr. P. art. 859(1) and 861.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed, but the sentence is vacated and the matter remanded for re-sentencing in accordance with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED FOR RE SENTENCING.

      . He originally raised eight, but expressly withdrew one.

      . People v. Negron, 220 IIl.App.3d 754, 162 Ill.Dec. 882, 580 N.E.2d 1301 (11/15/91) held that evidence that another defendant has been acquitted is admissible when the state's case against both defendants is identical.

      . The punishment for armed robbery is found in La. R.S. 14:64B, which provides:
      Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years....
      An additional penalty is contained in La. R.S. 14:64.3, which was added by Acts 1999, No. 932, § 1, effective July 9, 1999. It provides in pertinent part:
      A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.


author: I .PEATROSS, J.

text:
    Stephen MURPHY, Plaintiff-Appellant, v. KAVANAUGH, Defendant-Appellee.
    No. 38,426 WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Stephen Murphy, In Proper Person.
    Coyle & Green, L.L.C. by Michael S. Coyle, Ruston, for Appellees.
    Before BROWN, PEATROSS & DREW, JJ.
   I .PEATROSS, J.

This appeal arises from a workers’ compensation judgment granting an exception of prescription in favor of the defendant, Kavanaugh Group Temporary Services, Inc. (“Kavanaugh”). The plaintiff, Stephen Murphy (“Murphy”), now appeals the judgment. For the reasons stated herein, we affirm.

FACTS

On April 22, 2003, Murphy filed a claim for workers’ compensation against Kava-naugh based upon an accident allegedly occurring on March 15, 2000. On June 18, 2003, Kavanaugh filed a peremptory exception of prescription, asserting that Murphy’s action was prescribed on the face of his claim under the one-year prescriptive period of La. R.S. 23:1209(A). The exception was set for hearing on July 28, 2003, and notice was sent by certified mail to Murphy. The exception of prescription was heard on July 28, 2003; counsel for Kavanaugh was present, but Murphy, who was representing himself, failed to appear for the hearing. The Workers’ Compensation Judge (“WCJ”) noted that Murphy was “incarcerated” at Central Louisiana Hospital and was aware of the hearing, but had not requested a continuance. Finding Kavanaugh’s exception to 12have merit, the WCJ granted the exception. Subsequently, a written judgment was signed on September 23, 2003. Murphy now appeals.

DISCUSSION

On appeal, Murphy asserts that he should have been granted workers’ compensation benefits because he explained to the Office of Workers’ Compensation that he could not “make it to the hearing.” The record reveals that Murphy did write a letter to the Office of Workers’ Compensation, dated July 27, 2003, requesting that the court “continue the lawsuit” because Central Louisiana State Hospital would not provide transportation for Murphy to go to the hearing; however, the letter was not received by the Office of Workers’ Compensation until July 29, 2003, one day after the hearing on the exception of prescription.

When prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing that the action has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). Prescription is evident from the face of the pleadings in the instant case because Murphy’s compensation claim was not filed until approximately three years after the alleged injury. Furthermore, Murphy has never offered any proof, nor even suggested any reason why his claim might not be prescribed.

As for his complaint that he was unable to attend the hearing on the exception of prescription, we note that his letter to the Office of Workers’ Compensation requesting continuance was not received until after the hearing had been concluded. We also note there was no delay in transmission of the letter, which was dated July 27, 2003, and received by lathe Office of Workers’ Compensation on July 29, 2003. Just as Murphy has not suggested, either with the WCJ or in this court, why his claim is not prescribed, he also has not suggested either why his presence at the hearing was necessary or why his request for a continuance was not dilatory. We find that this appeal has no merit.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ against the plaintiff, Stephen Murphy, is affirmed. Costs of this appeal are assessed to Mr. Murphy.

AFFIRMED.

      . Murphy filed with this court his signed statement supporting how he was injured. Murphy stated (verbatim):
      "A airship was traveling about thirty thousand feet and a herd of birds was traveling in the opposite direction from which the airship was traveling and the herd of birds ran into the airship engine and costed the airship to have engine problems and the airship was forced to land but before the airship landed the food from the herd of birds got into my body at ground zero. That somehow hospitalized me Stephen Murphy that happing on the job for Kava-naugh.”

      . The Workers' Compensation statute, La. R.S. 23:1209(A), provides, in pertinent part:
      In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident ... a formal claim has been filed....