author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Mary ULOHO.
    No. 04-KA-55.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Dominick Tamburo, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, LA, Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Mary Uloho, with obstruction of justice, a violation of LSA-R.S. 14:130.1. The defendant pled not guilty at arraignment. Defendant proceeded to trial on November 12, 2002 before a twelve-person jury, which returned a unanimous verdict of guilty as charged.

Before sentencing defendant on February 13, 2003, the trial judge denied defendant’s “Motion for New Trial Alternatively Motion to Arrest the Judgment.” After defendant waived delays, the trial judge sentenced defendant to serve twenty years of imprisonment at hard labor. The State filed a multiple offender bill of information alleging defendant to be a second felony offender, and defendant denied the allegations therein. After a hearing, the trial judge found defendant to be a second felony offender, vacated the original sentence, and imposed a sentence of twenty-five years of imprisonment at hard labor without benefit of parole, ^probation or suspension of sentence. The trial judge denied defendant’s timely motions to reconsider the original and multiple offender sentences. This timely appeal follows.

FACTS

On March 3, 2001, Terry Bean, an armored car driver, was the victim of an armed robbery at the Albertson’s Grocery Store on Barataría Boulevard in Marrero. Detective Kevin Decker of the Jefferson Parish’s Sheriffs Office responded to the scene and interviewed the victim. Detective Decker learned that the perpetrator was described as a black male wearing red clothing, a red hat and a black wig, driving a late model Lincoln Continental with a temporary license tag in the rear window. Detective Decker also learned that the suspect took Mr. Bean’s gun and that Mr. Bean had a laceration on his head for which he sought medical attention. Approximately $15,000 in cash and checks was taken in the robbery.

Deputy Brent Coussou heard the broadcast of the suspect and the vehicle involved in the armed robbery. Approximately thirty minutes after hearing the broadcast, Deputy Coussou saw a Lincoln that matched the description of the suspect’s vehicle near the Easy Serve in Lafitte. Deputy Coussou stopped the vehicle, ordered the passenger to place her hands on the ceiling of the car and ordered the driver to step out. Deputy Coussou, with the assistance of other officers, handcuffed the driver, Elton Thomas. He observed that the driver was wearing grey coveralls ovei* red sweat pants. The driver was handcuffed and placed in another officer’s unit. When Deputy Coussou approached the Lincoln to speak to the passenger, Mary Uloho, Deputy Coussou observed a gun on the “hump” between the driver’s and the passenger seats. Deputy Coussou also saw a wig and red clothing in the vehicle. Because defendant was being cooperative and because he had experienced problems with one set of his handcuffs, Deputy Coussou placed defendant unhand-cuffed in the rear seat of his police car.

RDeputy Coussou acknowledged that he did not search defendant, who was wearing a large sweat shirt, before placing her in the police car. Further, Deputy Coussou testified that defendant was left unattended in the unit for approximately fifteen or twenty minutes until she was removed from the unit, handcuffed, and searched when a female officer arrived on the scene. Meanwhile, Detective John Carroll interviewed a witness, Gerard Guichard, and brought the witness to see the Lincoln. Mr. Guichard identified the Lincoln as the one used in the armed robbery.

Thereafter, Deputy Coussou drove the defendant to the Detective Bureau. Deputy Coussou noticed that defendant was “fidgeting” in the car. When he asked her what she was doing, defendant replied that the handcuffs were too tight. Deputy Coussou transferred defendant to the custody of the robbery detectives. Deputy Coussou testified that he asked another officer, Deputy Módica, to check under the seat where defendant was sitting, since suspects sometimes place things under the seat. However, he did not ask Deputy Módica to cheek under the front. When Deputy Coussou’s shift ended at approximately 3:30 p.m., he went home without looking in the rear seat of his car.

That same day, the suspect vehicle was towed to the Detective Bureau and Detective Decker obtained a search warrant for the Lincoln. The resulting search yielded a purse containing documents bearing defendant’s name and two handguns, one of which belonged to Mr. Bean. Another handgun was recovered from the front seat of the Lincoln. Red clothing, a black wig, and a bag containing checks were also recovered from the Lincoln. However, the cash was not found in the Lincoln, but was later discovered in Deputy Coussou’s car. Detective Decker |BaIso learned that the vehicle had been rented from Enterprise Rent-A-Car in defendant’s name.

Detective Carroll subsequently interviewed Elton Thomas and defendant. Defendant initially did not make any statements to Detective Carroll, but later said that she saw a “policeman take something out of her car and place it into his car.” Detective Carroll notified Sergeant Joe Pi-cone of defendant’s statement, and an investigation ensued.

At approximately 7:30 that night, Deputy Coussou realized that he had left his handcuffs at the Detective Bureau. After confirming that the handcuffs were still there, Deputy Coussou returned to the Detective Bureau. While there, Deputy Coussou met with Lieutenant Toca and provided a written statement of the preceding events. Deputy Coussou was informed that he was being investigated as an accessory to an armed robbery. Deputy Coussou denied that he had placed the money in his police car and confirmed that defendant was the only person in the rear of his unit on March 3, 2001. Deputy Coussou, accompanied by Detective Decker and Lieutenant Toca, checked underneath the front seat on the passenger and driver’s side. Deputy Coussou found clear plastic bags, each containing $7,500 in cash and Albertson’s deposit slips, under the driver’s and passenger seats. According to Deputy Coussou, it was only possible to see the bags by getting on his hands and knees because the money was actually shoved under the “guard” on the back of the front seat. Deputy Coussou identified photographs of the money underneath the seat of his unit.

Later that night, Detective Decker interviewed four women, including Aletha Washington, Valeria Curtis, Wylene Hall, and Sharon Carletto. Two of the women, Valeria Curtis and Wylene Hall, testified at trial. Ms. Curtis and Ms. Hall testified that they were in a “holding cell” at the Jefferson Parish Correctional Center with defendant and some other women on the evening of March 3, 2001 |fiand the early morning of March 4, 2001. Ms. Curtis testified that defendant told the women in the jail that she had been arrested for robbery. Ms. Curtis said that defendant inquired about contacting the arresting officer, Both Ms. Curtis and Ms. Hall testified that, when the women in the holding cell asked defendant the reason she wanted this information, defendant said she had placed something under the seat of the police car. However, defendant would not reveal what she had placed under the seat.

Ms. Curtis said that defendant seemed angry at the arresting officer and that defendant said she “wanted to bring him down.” Ms. Curtis and Ms. Hall testified that one of the women in the cell contacted a deputy, who then questioned the women individually. When four of the women had the same statement, they were taken to the Detective Bureau and questioned.

Colonel Walter Gorman of the Jefferson Parish Sheriffs Office testified that no disciplinary action was taken against Deputy Coussou once the investigation into defendant’s allegations was completed. However, Colonel Gorman stated that the allegations complicated the investigation of the robbery at Albertson’s because the efforts of the police were shifted from investigating the robbery to determining whether there was a “bad” officer in their midst.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in granting the state’s motion in limine.

DISCUSSION

Defendant contends that she was denied the right to present a defense because the trial judge granted the State’s “Motion in Limine.” The State responds that defendant’s claim is moot because this Court granted her writ that challenged the trial court’s ruling. We find that the State is correct.

On July 16, 2002, the State filed a “Motion in Limine” seeking to preclude defendant from referring during voir dire or argument or adducing evidence from |7any witness that defendant could be guilty as an accessory after the fact, LSA-R.S. 14:25. After a hearing on July 22, 2002, the trial judge took the matter under advisement and rendered a written judgment granting the State’s motion on August 6, 2002.

Defendant thereafter sought supervisory writs with this Court, which granted the writ on September 18, 2002 The record as originally lodged contains the writ cover sheet which provides in pertinent part:

WRIT GRANTED.

(SEE ATTACHED)

However, the appellate record as originally lodged did not contain the attachment. On March 19, 2004, the appellate record was supplemented with the attachment, which provides as follows:

WRIT GRANTED.
In the Motion in Limine at issue, the State moved the trial court to preclude the defendant from “referring during voir dire, opening or closing argument or adducing evidence from any witness that the defendant could be found guilty of violation [sic] of LSA-R.S. 14:25 Accessory after the fact.” After the hearing on this motion on July 22, 2002, the trial judge took the matter under advisement. On August 6, 2002, the trial court rendered a judgment stating that “the Motion in Limine is hereby GRANTED.” However, the trial judge did not provide reasons or specify any restrictions or parameters to this ruling.
In State of Louisiana v. Stacy, 96-0221 (La.10/15/96), 680 So.2d 1175, the Louisiana Supreme Court held that it was not error for the trial judge to refuse to allow defense counsel to read the definition of accessory after the fact to the prospective jurors during voir dire, because he believed that it would be confusing to the jury to read the definition of a crime not charged. However, in that case, the trial court allowed the defense to explore the theory that the defendant was an accessory after the fact during voir dire and throughout the remainder of the trial.
In the present case, we have carefully reviewed the writ application, exhibits, and the pertinent caselaw [sic], and we find that the trial court’s blanket prohibition against any references or evidence concerning the crime of accessory Rafter the fact is unduly broad and restrictive. While the trial court may deny the defense the opportunity to read the definition of accessory after the fact to the prospective jurors during voir dire, prohibiting any references or evidence concerning this crime would prejudice the defendant’s right to present a defense. The defendant should not be so limited during voir dire or the presentation of her case and should be able [to] suggest and discuss alternative charges if they are supported by the evidence.
Accordingly, we vacate the judgment of the trial court prohibiting any references or evidence concerning the crime of accessory after the fact. However, nothing in this writ disposition otherwise limits the trial judge from controlling the admissibility of evidence according to law.

In this assignment, defendant asserts that “the defense was not afforded the opportunity to argue this theory of defense at all, during any part of the proceeding....” Defendant points out that the jury had a question about the difference between attempted obstruction of justice and the obstruction of justice. According to defendant, if the jury had been “made aware” of the offense of accessory after the fact, which carries a maximum five-year penalty, “[i]t is a likely scenario” that they would have found defendant not guilty of obstruction of justice.

However, defendant does not point to any trial court ruling after her writ was granted by this Court that prohibited her from urging the defense of accessory after the fact. Because this Court granted defendant’s writ application and because a review of the record reveals no trial court ruling after the grant of the writ application that prohibited defendant from urging this defense, we do not find anything to review in this assigned error.

This assignment of error merits no consideration.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in denying the defense’s requested jury charges.

DISCUSSION

1 ¡¿Defendant contends that the trial court erred in refusing to give her requested special jury instruction regarding the credibility of witnesses because the requested instruction was a correct statement of the law and did not require clarification. The State responds that the trial court properly denied the special charge because the subject matter was addressed in the general charge given by the court.

In this case, the defendant sought the following special charge:

If you believe that any witness in the case, either for the State or for the Defense, has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, I charge you that you are justified in disregarding the entire testimony of such a witness as proving nothing and unworthy of belief. You have the right to accept as true or reject as false the testimony of any witness accordingly as you are impressed with his or her veracity.

The trial court initially denied the defense’s requested charge, but modified its ruling to include some of the requested language. Specifically, the trial judge proposed to add language from the special charge as follows: “ ‘You can accept as true or reject as false the entire testimony of any witness or any portion of the testimony as you deem appropriate.’ ” However, the trial judge found that the general charge took into consideration the remainder of the proposed special charge. Nevertheless, defendant noted her objection.

Regarding the credibility of witnesses, the trial judge charged the jury as follows in pertinent part:

You, alone, shall determine the weight the evidence deserves and the credibility of witnesses. As the sole judges of the credibility of witnesses and the weight their testimony deserves, you should carefully scrutinize the testimony given and the circumstances under which the witness has testified. In evaluating the testimony of witnesses, you may consider their ability and opportunity to observe and remember the matter about which they testified, their manner while testifying, any reason they may have for testifying in favor of or against the State or the Defendant, and the extent to which their testimony is supported or contradicted by other evidence.
|inYou can accept as true or reject as false the entire testimony of any witness or any portion of the testimony as you deem appropriate.
The testimony of a witness may be discredited by showing that the witness previously was convicted of a crime. The conviction does not necessarily mean that the witness is failing to tell the truth; it is a circumstance you may consider along with all other evidence in deciding whether you believe any or all of the testimony.

According to LSA-C.Cr.P. art. 802, the court shall charge the jury as to the law applicable to the case, that the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court, and that the jury alone shall determine the weight and credibility of the evidence. Under LSA-C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. Article 807 also provides that the special charge need not be given if it is included in the general charge or in another special charge to be given.

With the exception of a few words, the requested special charge in the present case is identical to a jury charge chai-lenged by a defendant on appeal in State v. Prestridge, 399 So.2d 564, 577 (La.1981). The Louisiana Supreme Court stated that the charge, when read as a whole, was a fair statement of the jury’s function as the trier of fact and judge of credibility. Likewise, in State v. Walters, 582 So.2d 317, 323 (La.App. 4 Cir.1991), writ denied, 584 So.2d 1171 (La.1991), the court, citing Prestridge, supra, rejected defendant’s challenge to the general charge on credibility that included a virtually identical recitation of the requested special charge in the instant case.

Based on Walters and Prestridge, we find that defendant’s special requested charge is a correct statement of the law and does not require qualification. However, we fail to find that the trial judge erred in refusing the charge. In State v. Linden, 154 La. 65, 97 So. 299, 300 (1923), the Louisiana Supreme Court held that the trial court did not err in refusing a similar special charge because the “special charge requested by defendant’s counsel announced such a trite and fundamental proposition that we assume the jury had enough intelligence without it.” The charge in Linden provided in pertinent part: “[I]f a witness testifies deliberately and knowingly and falsely respecting any material fact, the jury is justified in disbelieving all the testimony of this particular witness unless corroborated.” Id. at 300.

The Linden court pointed out that the jury was told in the general charge that it was the judge of credibility of witnesses and might believe or doubt testimony for any good reason. Since Linden held that the judge did not err in refusing a similar charge, we fail to find that the trial judge erred in refusing the special charge. Further, the requested special charge is included in the general charge given by the court, which essentially tracks the general instructions for criminal cases as provided in the Louisiana Civil Law Treatise. See, Cheney C. Joseph, Jr. and P. Raymond Lamoniea, 17 Louisiana Civil Law Treatise: Criminal Jury Instructions § 3.04 (1994).

In any event, the failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 937, cert. denied, — U.S. -, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004), citing State v. Marse, 365 So.2d 1319, 1322 (La.1978). Defendant argues she was prejudiced because the jury was not told that it could disregard the entire testimony of Wylene Hall, whom defendant contends lied about her prior convictions during her testimony. According to defendant, Ms. Hall’s testimony was the most damaging because only she testified that defendant “was setting up a cop.” The record does not 112support defendant’s position in several respects. First, it is reasonable to infer from her testimony that Ms. Hall was confused about her prior convictions. Ms. Hall stated on direct examination that she was incarcerated for “two distribution charges and one being on film, selling to an undercover officer out of uniform.” She denied that she had any convictions for any other crimes.

On cross-examination, Ms. Hall was questioned about a possession of cocaine charge, to which Ms. Hall said she pled guilty, and a prostitution charge, which Ms. Hall denied. From her testimony, it is apparent that Ms. Hall was confused about the number of drug convictions that she had. Although defense counsel read into the record the text of a purported a minute entry indicating that a Wylene S. Hall with the same date of birth pled guilty to prostitution, that minute entry is not in the record, nor is there any other evidence that the witness was the same person who pled guilty to prostitution.

Moreover, Ms. Hall’s testimony was not the sole evidence of defendant’s statement. Ms. Curtis testified that defendant told her and several other women that “she had placed something in the car, underneath the seat on the driver’s side in the police car.” Ms. Curtis further said that defendant said she wanted to “bring him down.” Thus, Ms. Hall’s testimony was not the sole evidence of the defendant’s statement.

Considering the foregoing, we conclude that the trial judge properly denied the requested instruction because the general charge was adequate and because the record reveals no miscarriage of justice, prejudice or violation of defendant’s rights involved in this assignment of error.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court erred in fading to sustain the defense’s objection to the state’s improper closing argument.

\,,DISCUSSION

Defendant contends that the trial court erred in allowing the State to refer to defendant’s subpoena power in rebuttal because the remarks misled the jury into believing that defendant had the burden of proving her innocence. The defendant also contends that the trial judge should have sustained her objection to the prosecutor’s explanation in rebuttal for the absence of the witnesses who overheard the defendant’s statement. The State responds that the prosecutor’s argument in rebuttal answered the defense’s closing argument that the State had failed to call certain witnesses.

LSA-C.Cr.P. art. 774 defines the scope of argument and rebuttal:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Nevertheless, 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. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 846. Further, a prosecutor retains “considerable latitude” when making closing arguments. State v. Snyder, supra, quoting, 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).

In closing argument, the defense argued that it was “astonishing” that no police officer who was on the scene after the traffic stop was called to testify to corroborate Deputy Coussou’s testimony. The defense also urged that it was “strange” that only two of the four women who allegedly overheard defendant’s statement in the holding cell were called to testify. Further, the defense focused on 114the absence of the deputy to whom the women allegedly reported what they had heard.

The trial court overruled defendant’s objection to the following comments made by the prosecutor during rebuttal: “Mr. Creech has problems about how we present our case to you; why didn’t we call this witness, why didn’t we call that witness. Poor Mr. Creech. Mr. Creech has the same subpoena power the State has.”

The trial court also overruled the defendant’s objection when the prosecutor said that “Mr. Creech can call any witness that I can call. He has the same subpoena power I do.” Finally, the trial court overruled the defendant’s objection when the prosecutor addressed the absence of the other witnesses who overheard defendant’s statement:

Again let me tell you, yes, we said we’d have four women; we only presented two. Again, these people are criminals. They don’t like to associate with law enforcement. We were fortunate to get the two we had and we were able to present them to you. Again, the Defense has — •

According to defendant, the trial court was required to admonish the jury pursuant to LSA-C.Cr.P. art. 771, which provides for a mistrial or an admonishment under certain circumstances. However, defendant fails to point out that Article 771 provides for remedies upon request by one of the parties. In the present case, defendant did not ask for a mistrial or an admonishment.

In this case, the defense invited the jury in closing arguments to disbelieve Deputy Coussou, Ms. Hall and Ms. Curtis because the State did not call other witnesses to corroborate their testimony. The prosecutor’s comments about the defendant’s subpoena power in rebuttal were in response to those remarks. See, State v. Daniels, 32,017 (La.App. 2 Cir. 5/5/99), 740 So.2d 691, 697, unit denied, 99-1599 (La.11/12/99), 749 So.2d 651, which found that the prosecutor’s remarks |1sthat defendant could have subpoenaed witnesses the State did not call was in response to defense counsel’s closing argument, which raised the issue of the State’s failure to subpoena a witness.

The Louisiana Supreme Court has recognized that “much credit should be accorded to the good sense and fairmind-edness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538, (1996). Here, the trial judge instructed the jury that the opening statements and the closing arguments of the attorneys were not to be considered as evidence. The judge also instructed the jury that the defendant was not required to call any witnesses or produce any evidence. Considering the prosecutor’s remarks in context, we find that the remarks were in response to defendant’s closing argument. Even if improper, we fail to find that the remarks contributed to the verdict. Thus, the trial court did not err in overruling the defendant’s objections.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in finding Ms. Ulo-ho to be a second felony offender.

DISCUSSION

Defendant contends that the trial court erred in finding her to be a second felony offender because the State failed to prove the 1994 Ohio predicate conviction for felonious assault would be a felony if committed in Louisiana. Defendant also contends that the trial judge erred in admitting State’s Exhibit 3 and 4. The State responds that defendant conceded that the Ohio offense is a felony under the laws of the State of Louisiana. The State further responds that the trial court properly admitted its exhibits.

hfiFor a conviction from another state to serve as a predicate felony for purposes for enhancement, the conviction must be for a “crime which, if committed in this state would be a felony....” See, LSA-R.S. 15:529.1(A)(1). Louisiana courts must determine the analogous state crime according to the nature of the act involved, not the penalty provided for the offense in the foreign jurisdiction. State v. Carouthers, 618 So.2d 880, 882 (La.1993); State v. Hennis, 98-665 (La.App. 1 Cir. 2/19/99), 734 So.2d 21, 24, writ denied, 1999-783 (La.7/2/99), 747 So.2d 16.

In the instant case, the multiple offender bill of information alleged defendant was a second felony offender because she pled guilty to violating Ohio Revised Code Section 2903.11(A)(2) on “April 4, 1994,” and was sentenced on May 31, 1994 in case number 93-CR-2770. Prior to the hearing, defendant filed objections to the multiple offender bill on several grounds, including that the arrest documentation was inadmissible hearsay and that the predicate Ohio conviction could either be a felony or a misdemeanor under Louisiana law.

The multiple offender hearing began on April 1, 2003. At the conclusion of the State’s evidence, defendant objected on the basis that the Ohio conviction, felonious assault, was not necessarily a felony in Louisiana. The trial court held the matter open until April 9, 2003. At that hearing, the prosecutor offered State’s Exhibit 5 to prove that defendant’s conduct underlying the conviction constituted a felony in Louisiana. State’s Exhibit 5 consisted of numerous documents that each contained a raised seal for the Dayton Municipal Court in Dayton, Ohio and a signature of the deputy clerk for the Dayton Municipal Court. These documents appear to relate to the police investigation into a complaint of a felonious assault involving defendant.

At the hearing, defense counsel stated as follows regarding State’s Exhibit 5:

MS. GLORIOSO [defense counsel]:
|17Your Honor ... the issue last week was ... that felonious assault in the State of Ohio, I believe [could be a] felony or misdemeanor depending upon the facts as they occurred.
Mr. Tamburo has provided me with a certified copy of the police report from Ohio which does, in fact, state that the victim in that felonious assault was, in fact, struck with a bullet and did require medical attention which makes that an aggravated battery in this state. The only objection we’re going to have is that there’s no one here to testify to those facts.

The trial judge admitted State’s Exhibit 5 over defendant’s objection.

According to Ohio Revised Code Section 2903.11 as it existed in 1994 when defén-dant pled guilty, felonious assault was defined as follows:

2903:11 FELONIOUS ASSAULT
(A) No person shall knowingly:
(1) Cause serious physical harm to another;
(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.
(B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree.

Defendant urges on appeal that the State failed to prove that felonious assault would constitute a felony if committed in Louisiana, while the State responds defendant conceded the offense would constitute an aggravated battery in Louisiana. We find that the State is correct. Based on the remarks of defense counsel, we find that defendant abandoned her former position and conceded that the offense would constitute aggravated battery, which is a felony in Louisiana.

Defendant next contends that the trial judge improperly admitted State’s Exhibits 3 and 4 because they were not properly certified pursuant to LSA-R.S. 15:529.1(F). At the multiple offender hearing, defendant objected to State’s 11RExhibit 3 because it was not certified by the warden in Ohio, as required by LSA-R.S. 15:529.1(F). Regarding State’s Exhibit 4, defendant objected on the basis that the first page of the exhibit contained a seal but no certification, while the second page contained a certification but no seal. The trial court overruled defendant’s objections.

State’s Exhibit 3 consists of four pages. The first page contains an indictment and a summons for Mary L. Uloho also known as “Lady Lace,” for felonious assault (firearm specification) in case number 93-CR-2770. The second page appears to be a commitment in the same case number, from the Common Pleas Court for Montgomery County, Ohio, indicating Mary L. Uloho was convicted of felonious assault and indicating her sentence. The document is signed by “Judge Patrick J. Foley.” The third page of State’s Exhibit 3 is an indictment in the same case number alleging that on or about August 21, 1993, Mary L. Uloho also known as Lady Lace did “knowingly cause or attempt to cause physical harm to another, to-wit: James M. Wardsworth, by means of a deadly weapon, to wit: a .25 caliber Lor-cin semi-automatic firearm; contrary to the form of the statute (in violation of Section 2903.11(A)(2)....”) (Emphasis in the original.) The next paragraph alleges that the grand jurors found Mary L. Uloho had a firearm on or about her person or under her control in violations of Sections 29.71 and 2941.141 of the Ohio Revised Code. The fourth page appears to be a continuation of the indictment and contains the signature of the prosecutor.

State’s Exhibit 4 is comprised of two pages. The first page is entitled “ENTRY OF WAIVER AND PLEAS ON INDICTMENT” for the Common Pleas Court for Montgomery County indicating that Mary L. Uloho pled guilty to felonious assault “2903.11A(2), (AF-2) (delete gun from body).” The form is signed by “Mary L. Uloho” and an attorney. Additionally, the page contains a raised seal for the Common Pleas Court for Montgomery County.

|19The second page of State’s Exhibit 4 is entitled “ENTRY AND ORDER” and provides that “the above-named defendant” appeared on April 14, 1994, was orally advised by the court of the content of the “above Entry of Waiver and Plea on Indictment.” The page contains a printed stamp that the document is a true copy and signature of the deputy clerk for the Common Pleas Court in Montgomery County.

LSA-R.S. 15:529.1(F) provides as follows:

The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

It is undisputed that the documents in State’s Exhibit 3 do not comply with LSA-R.S. 15:529.1(F), since they do not contain a certificate of the appropriate officer under seal. However, the State responds LSA-R.S. 15:529.1 does not provide the exclusive method of proof. See, State v. Bernard, 366 So.2d 1294, 1296 (La.1978), “the proof set forth in R.S. 15:529.1 F is neither sacramental nor the exclusive method of proving that defendant is a habitual offender, and the necessary facts constituting proof that the accused is an habitual offender may be established by other competent evidence.” Rather, the State asserts that the exhibits were properly admitted citing LSA-C.E. art. 902, which provides in pertinent part:

IsnArt. 902. Self-authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal, (a) Domestic public documents generally. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in Paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(b) Certified Louisiana public documents. A purported record, book, paper, or other document of the State of Louisiana, or of a department, board, or agency thereof or of a political subdivision of the state or a department, board, or agency of such a subdivision when certified as being the original by an officer or employee who identifies his official position and who either has custody of the document or who is otherwise authorized to make such a certification.

Further, LSA-C.E. art. 904 provides that

[w]hen an original public document is deemed authentic without proof by extrinsic evidence as provided in Article 902(1), (2), or (3), a purported copy of the document also shall be deemed authentic when certified as true or correct by the custodian or other person authorized to make that certification, by certificate complying with Article 902(1), (2), or (3).

In the present case, State’s Exhibit 3 does not meet the criteria in LSA-C.E. art. 902(1) for self-authentication because none of the pages contains both a seal and a signature. See, State v. Donald, 99-3612 (La.12/8/00), 775 So.2d 1054, which stated that Article 902(1) requires a seal and a signature to admit public documents from other jurisdictions without extrinsic evidence of authenticity. Likewise, |¾1 State’s Exhibit 3 does not satisfy paragraph 902(2) because none of the pages contain the additional signature of an official with a seal.

Turning to State’s Exhibit 4, the first page is the waiver of rights form and contains only a raised seal, but no signature. The second page is the Entry and Order indicating the judge accepted a female defendant’s guilty plea on April 14, 1994. It contains a signature of the deputy clerk of court under seal. Therefore, the first page of State’s Exhibit 4 is not self-authenticating, while the second page, the Entry and Order, is self-authenticating. In spite of the fact that there is no name of a defendant on the Entry and Order, there is no case number on the page, and there is no offense listed, it appears that the Entry and Order, combined with other evidence, established the defendant’s status as a second felony offender.

As stated in State v. Bernard, supra, in a habitual offender proceeding, the State is only required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. See also, State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, 1131; State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, 610, writ denied, 98-1458 (La.10/30/98), 723 So.2d 971. Further, when the State seeks to use a prior guilty plea to enhance punishment under LSA-R.S. 15:529.1, the State need prove only the fact of conviction and that the defendant was represented by counsel (or waived counsel) at the time he entered his plea. State v. Zachary, 01-3191 (La.10/25/02), 829 So.2d 405, 407, citing State v. Shelton, 621 So.2d 769, 779-80 (La.1993). Thereafter, the defendant bears the burden of proving a procedural defect in the proceedings or an infringement of his constitutional rights. If the defendant meets his burden, the State must prove the constitutionality of the predicate plea. Id.

1 a2In the present case, the State established defendant’s identity in the pri- or conviction through the State’s fingerprint expert, who testified that the fingerprints on State’s Exhibit 1, which was a card containing defendant’s fingerprints obtained on the day of the multiple offender hearing, matched the fingerprints on State’s Exhibit 2, which was a copy of fingerprints taken on February 15, 1994 containing defendant’s name, birthday and the case number, 93-CR-2770. These exhibits were admitted without objection.

Further, State’s Exhibit 5 contains a properly authenticated document that indicates Mary L. Uloho was indicted for felonious assault and pled guilty as charged without the firearm specification on April 14, 1994 and was sentenced to three to fifteen years on May 26, 1994 in case number 93-CR-2770. The document contains the name of defense counsel, along with Mary L. Uloho’s personal information, including her birthday, which matches the birthday for defendant that appears on the commitment of the instant offense. Therefore, based on the unobjected evidence and the evidence that was properly authenticated, we find that the trial judge did not err in finding defendant a multiple offender.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

The trial court erred in imposing an excessive sentence.

DISCUSSION

Defendant contends her sentence as a second felony offender is constitutionally excessive because twenty-five years of imprisonment is grossly disproportionate for hiding two bags of money in a police car. The State responds that the record supports the sentence imposed.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or | mcruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243.

As a second felony offender, defendant was subject to a sentence of imprisonment between ten and forty years at hard labor without benefit of probation or suspension of sentence. LSA-R.S. 14:103.1(B)(2); 15:529.1(A)(l)(a) and (G). After she was found to be a second felony offender and the trial judge vacated the original sentence, the judge sentenced defendant to twenty-five years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

After sentencing, defendant filed a timely motion for reconsideration asserting her sentence was excessive because she was not alleged to have committed any acts of physical violence on the victim and because defendant was cooperative with the police. The trial judge denied the motion. On appeal, defendant’s chief complaint is that the trial judge failed to provide any reasons when imposing the multiple offender sentence. Although the trial judge did not provide any reasons at the multiple offender sentencing, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pendelton, supra; LSA C.Cr.P. art. 881.4(D). See, State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 817, upholding a sentence even though the | ^trial court failed to state any reasons for the sentence imposed where the record supported the sentence.

We find that the record supports the imposed sentence. In this case, two guns were recovered from a purse containing documents bearing defendant’s name. One of the guns was identified as the gun that belonged to Mr. Bean, the victim of the armed robbery at Albertson’s. Although defendant may have initially cooperated with the police, the record reflects that defendant ultimately placed the money that was taken in the armed robbery in Deputy Coussou’s police car. Further, the record reflects that defendant claimed an interest in the money, since she told the women in the holding cell that the money was “our money,” referring to herself and the driver of the Lincoln.

Additionally, prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219. Records introduced at the multiple offender hearing reflected defendant had an Ohio conviction in which she shot a person with a handgun.

The Louisiana Supreme Court has stated that the question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Under all of the circumstances in this case, it does not appear that the trial judge abused his sentencing discretion by imposing a sentence that was approximately one-half the maximum term of imprisonment.

This assignment of error is without merit.

J¿¡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). One error requires corrective action.

As noted by the State in its error patent review, the trial court imposed an illegal sentence because it denied parole eligibility when LSA-R.S. 14:130.1 does not permit a trial judge to impose a sentence for obstruction of justice without benefit of parole and LSA-R.S. 15:529.1 and does not permit the trial court to deny parole eligibility to a second felony offender. Accordingly, we hereby amend the defendant’s sentence to delete the restriction on parole eligibility and we order the trial court to correct the commitment accordingly. See, State v. Watts, 98-2594 (La.1/29/99), 736 So.2d 821.

CONVICTION AFFIRMED; SENTENCE AMENDED; CASE REMANDED WITH INSTRUCTIONS.

      . The State asserts in its brief that Detective Decker drove Mr. Bean to the scene and that he made an identification of the person wearing the coveralls. However, Detective Decker’s testimony is not clear as to whether Mr. Bean identified the person or the clothing.

      . A felony in Louisiana is any crime for which the offender may be sentenced to death or imprisonment at hard labor. LSA-R.S. 14:2(4). Aggravated battery is a felony because an offender may be imprisoned at hard labor. See, LSA-R.S. 14:34.

      . Other methods of authenticating public documents and records of other states are provided by 28 U.S.C. § 1738 and 28 U.S.C. § 1739. See, State v. Bernard, supra. However, neither exhibit complies with either of these federal statutes.

      . As pointed out by the State's brief, defendant's sentence is illegal, since neither the reference statute nor the habitual offender statute allows for the denial of parole eligibility-


source: Caselaw Access Project

author: I ¿THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Derrick PEDEN.
    No. 04-KA-71.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Walter G. Amstutz, Paige Cline, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   I ¿THOMAS F. DALEY, Judge.

Defendant, Derrick Peden, appeals his convictions for armed robbery and possession of stolen things. On appeal, he assigns four errors of the trial court:

1. The Trial Court erred by failing to suppress the identifications obtained in violation of the defendant’s constitutional rights.
2. The Trial Court erred by failing to grant the defendant’s Motion for a Mistrial when the defendant’s physical and mental condition was impaired.
3. The evidence at trial was insufficient to prove that Mr. Peden committed these crimes.
4. The Trial Court erred by not putting in the record reasons for its excessive sentence.

After thorough review, we find no merit to Peden’s Assignments of Error. However, our review of errors patent disclosed a double jeopardy violation. Accordingly, we vacate Peden’s conviction and sentence for possession of stolen things, but in all other aspects, affirm.

|⅜PROCEDURAL HISTORY

On July 2, 2002, the Jefferson Parish District Attorney filed a Bill of Information charging Peden with three criminal offenses. In count one, Peden was charged with armed robbery. LSA-R.S. 14:64. In count two, he was charged with possession of a firearm by a convicted felon. LSA-R.S. 14:95.1. In count three, the State charged Peden with illegal possession of stolen things valued at over $500.00. LSA-R.S. 14:69. Peden was arraigned on July 3, 2002, and pled not guilty to all three charges.

On July 17, 2002, Peden filed a Motion to Suppress the Evidence, Confession, and/or Identification. On August 14, 2002, the trial court heard and denied the Motion to Suppress the Identification. On October 9, 2002, Peden filed a Motion to Appoint Sanity Commission to Determine Competency to Stand Trial. The court conducted a sanity hearing on November 20, 2002, and found defendant competent to stand trial.

On July 16, 2003, the State amended the Bill of Information to change the name of the alleged victim in count three. On July 16 and 17, 2003, Peden was tried by a twelve-person jury as to counts one and three only. The jury returned a verdict of guilty as charged as to both offenses.

On August 6, 2003, the trial court sentenced Peden to fifty years at hard labor on count one, without benefit of parole, probation, or suspension of sentence. On count three, the court sentenced Peden to ten years. The court further ordered that the two sentences run concurrently. Pe-den made an oral Motion for Appeal, and filed a written appeal motion that day. The trial court granted an appeal on October 3, 2003.

|/The State filed a habitual offender Bill of Information, alleging Peden to be a second felony offender. On August 6, 2003, he was apprised of the State’s allegations, and entered a denial. The trial court held a habitual offender hearing on August 20, 2003, and found Peden to be a second felony offender.

On August 25, 2003, the trial court vacated Peden’s original sentence as to count one, and imposed an enhanced sentence of fifty years at hard labor without benefit of probation or suspension of sentence. Pe-den made an oral Motion for Appeal.

FACTS

Michael Cooks testified that on May 18, 2002, he was employed selling used cars at Gene Ducote Chrysler Jeep in Harvey. Defendant, Derrick Peden, approached Mr. Cooks and asked what he would be required to provide if he were to purchase a vehicle there. Mr. Cooks told Peden he would need between $1,000.00 and $1,500.00 for a down payment, and would have to show proof of employment. Peden left the lot, and returned thirty to forty minutes later, riding a red bicycle.

Peden told Mr. Cooks he wanted to test drive a 1996 Chrysler with an asking price of $7,995.00. Mr. Cooks testified that company policy required the sales staff to photocopy a customer’s driver’s license before allowing a test drive. Mr. Cooks, however, decided against walking across the car lot to the office to copy Peden’s license. Instead, he accompanied Peden on a test drive of the Chrysler.

Peden asked Mr. Cooks whether he could stop at his girlfriend’s house to show her the car. Mr. Cooks gave his consent, and Peden stopped the car in front of a house in Gretna. Peden exited the car, taking the keys with him. He asked Mr. Cooks to go inside with him. Mr. Cooks followed Peden to the side of the house. Peden drew a chrome-plated handgun and told Mr. Cooks he just wanted |Bthe car. He ordered Mr. Cooks to kneel behind a shed, and Mr. Cooks complied. Peden got into the car and left the area.

Mr. Cooks called police from a pay telephone on the Westbank Expressway. He then called Clifford Smith, his supervisor at the car lot, to report the robbery. Officers from the Gretna Police Department responded. Mr. Smith picked up Mr. Cooks and drove him back to the dealership.

Mr. Smith testified that Peden first approached him when he arrived at the dealership, and that he instructed Peden to speak to Mr. Cooks about a test drive. Mr. Smith stated that he spoke to police when he picked up Mr. Cooks following the robbery. Mr. Smith informed officers that the perpetrator had left a bicycle at the car dealership. The officers retrieved the bike.

At 6:30 a.m. on May 27, 2002, Deputy David Jackson of the Jefferson Parish Sheriffs Office saw Peden driving the Chrysler. He recalled that the Gretna Police Department had issued an all points bulletin for a car meeting the Chrysler’s description. Deputy Jackson observed that the car had a taxi cab license plate, but it was not otherwise designated as a taxi. Peden made an illegal turn, and Deputy Jackson performed a traffic stop.

Peden stopped the car, exited, and walked to the passenger side. Deputy Jackson asked Peden for his driver’s license, car registration, and proof of insurance. Peden told the officer that he did not have a driver’s license or other documentation, and that the car belonged to his brother. Deputy Jackson looked inside the car to determine whether the steering column had been defeated, and observed that it was intact. Deputy Jackson also saw a .9 mm handgun in plain view on the driver’s side floorboard.

Deputy Jackson attempted to handcuff Peden to facilitate further investigation. Peden resisted, punching the officer in the chest. Deputy Jackson managed to subdue Peden and place him in handcuffs. Deputy Jackson ran the | fiChrysIer’s license plate on the police computer, and found that it did not match the car. Deputy Jackson placed Peden under arrest, and notified the management at Gene Ducote Chrysler Jeep that the car had been recovered.

Following Peden’s arrest, Detective Russell Lloyd of the Gretna Police Department compiled a photographic lineup, in which he included a picture of Peden. He met with Clifford Smith and Michael Cooks individually, and showed them each the lineup. Mr. Smith identified Peden as the man who took the Chrysler on a test drive on the night of May 18, 2002. Mr. Cooks identified Peden as the person who robbed him of the car at gunpoint.

Peden’s mother, Ima Jean Nabe, testified on his behalf at trial. She stated that she had. seen a family friend, “Robert,” driving the Chrysler around the time that Peden was arrested. Robert told her the car was a rental. Ms. Nabe testified that she did not see Peden in possession of the car.

Ms. Nabe stated that she had at one time made a sworn statement to the effect that Peden was with her on May 18, 2002. However, she had been mistaken as to the date. She now remembered that Peden was in Philadelphia on May 18, the date of the robbery.

Peden testified that he was in Philadelphia visiting his aunt on May 18, 2002. He admitted to having driven the Chrysler on May 27, 2002. He said that he believed the car was his brother’s. He located the keys on a table, and used the car to go to a store. Peden denied that he was in possession of a gun, or that he robbed anyone.

ASSIGNMENT OF ERROR NUMBER THREE

Peden argues that the evidence at trial was insufficient to support his convictions, as the State failed to prove identity. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the previewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence, which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issue regarding trial errors becomes moot. For the foregoing reasons, defendant’s third Assignment of Error will be addressed first.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

Armed robbery is defined by LSA-R.S. 14:64 as “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.” In order to convict an accused of the possession of stolen things valued at more than five hundred dollars, the State must prove that he (1) intentionally possessed, procured, received, or concealed, (2) anything of value, (3) which has 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 one of these offenses, and (5) where the value of the items stolen exceeds $500.00.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the |scase is identification, the State is required to negate any reasonable probability of misidentifieation in order to carry its burden of proof.

As to the element of identity, the State produced the testimony of Michael Cooks, the robbery victim; and Clifford Smith, Mr. Cooks’ supervisor at the car dealership. Mr. Cooks testified that he called police immediately after the robbery, and that he spoke to officers shortly thereafter. He described the perpetrator to the investigating officer as being five feet, eight inches to five feet, ten inches tall. He had a short, afro style haircut, dark brown eyes, and a light brown complexion. He told the officer he would recognize the perpetrator if he were to see him again.

Mr. Smith testified that he spoke to the perpetrator at the car lot before Mr. Cooks took the man for a test drive. Mr. Smith testified that he conversed with the responding officers when he picked up Mr. Cooks following the robbery. He gave the officers the stolen car’s vehicle identification number and told them he had spoken to the perpetrator at the car lot. He did not, however, give a physical description of the perpetrator at that time. '

Detective Russell Lloyd testified that the original police report was completed by Officer Jason Fay. Officer Fay left the Gretna Police Department prior to Peden’s trial, and he did not testify. Detective Lloyd further stated that he put together a photographic lineup following Peden’s arrest. He showed the lineup to Mr. Cooks and Mr. Smith separately. Mr. Smith identified Peden as the man he saw at the car dealership on the night of May 18, 2002. Mr. Cooks identified Peden as the man who robbed him of the Chrysler. Both Mr. Cooks and Mr. Smith identified Peden in court. Mr. Cooks identified the gun recovered from the stolen Chrysler at the time of Peden’s arrest as the gun Peden used to rob him.

Peden contends that the identifications made by the State’s witnesses were unreliable, as it conflicted with the description included in Officer Fay’s report. RPeden argues that the report shows the witnesses described the perpetrator as bald, when he is clearly not bald. However, Mr. Cooks testified at trial that he never described the perpetrator as “bald.” Mr. Cooks further testified that he distinctly recalled the perpetrator wore his hair in a short afro hairstyle. Mr. Smith testified that on the night of the robbery he gave some general information to the responding officers. The officers did not, however, interview him that night. Officer Fay did not list Mr. Smith as a witness in the initial police report. Mr. Smith further testified that, if Officer Fay described the perpetrator as bald in his report, he was incorrect.

Detective Lloyd testified that in the space provided on the police report form for the perpetrator’s hair color, Officer Fay responded “bald/none.” Detective Lloyd explained that the officers in his department complete their reports on laptop computers. They use prefabricated forms on which they provide the pertinent responses in each of the labeled sections. When an officer wishes to list a suspect’s hair color, he accesses a drop-down menu with several choices. One of those choices is “bald/none.” If the officer does not know the hair color, or none is given, the applicable choice is “bald/none.” Detective Lloyd testified that it is possible Officer Fay selected that description on the form because he did not ask the witness for the perpetrator’s hair color. Based on the officer’s explanation, the description in the police report does not present a discrepancy.

Peden argues that the prosecution’s failure to produce fingerprint evidence linking him to the robbery was a weakness in the State’s case. Gordon McGraw was the crime scene technician assigned to the investigation. He testified that he attempted to lift fingerprints from the bicycle Peden was alleged to have left at the car dealership. McGraw testified that he was unable to lift any usable prints from the bike. He was not asked to process any other evidence for fingerprints.

| inFingerprint evidence was not vital to the State’s case. Eyewitness testimony connected Peden to the robbery, and Pe-den’s presence in the car went toward proving the possession of stolen things charge.

Peden contends that the State’s evidence was refuted by his and his mother’s alibi testimony. Both Peden and Ima Jean Nabe testified that he was in Philadelphia at the time of the robbery. Ms. Nabe stated that she saw someone named Robert in possession of the car. Although Ms. Nabe characterized Robert as a family friend, she did not know his last name, or anything else about him.

Peden testified that he drove the Chrysler on May 28, 2002, because it was parked in his driveway and he believed it belonged to his brother. He did not know it had been stolen. The jury apparently chose not to believe Peden’s testimony. Peden was identified by credible prosecution witnesses as the man who appeared at the car dealership on the night of May 18, 2002. Peden’s credibility was called into question by Deputy Jackson’s testimony regarding defendant’s evasive and combative behavior at the time of the traffic stop. Moreover, Peden testified that he had a prior armed robbery conviction. Credibility determinations rest with the trier-of-fact, and will not be re-weighed on appeal.

Based on the foregoing, it appears that the State met its burden negating any reasonable probability of misidentification. This Assignment of Error merits little consideration.

ASSIGNMENT OF ERROR NUMBER ONE

Peden argues that the trial court erred in denying his Motion to Suppress the Identifications, as the photographic lineup were suggestive, and the record shows there was a substantial likelihood of misidentification. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining Inthe admissibility of identification testimony. In Manson v. Brathwaite, the United States Supreme Court listed five factors to be considered in determining whether an identification is reliable: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and, (5) the time between the crime and the confrontation. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.

An identification procedure is suggestive if it unduly focuses a witness’s attention on the suspect. A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. In determining whether the ruling on a defendant’s Motion to Suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing, but may also consider evidence adduced at trial.

The trial court heard Peden’s Motion to Suppress the Identification on August 14, 2002, and denied it without reasons. Detective Lloyd of the Gretna Police Department testified that on May 27, 2002, he received word that the car taken in the instant robbery had been located, and a suspect arrested. Based on the information he received, he compiled a photographic lineup, and included a picture of Peden. Detective Lloyd testified that he found a photograph of Peden by using the police computer, and he filled out the lineup with pictures of men whose physical characteristics were similar to those of defendant.

1 ! ¿Detective Lloyd contacted Clifford Smith and asked him to come to his office at the police department. Mr. Smith complied, and the detective presented him with the lineup. He immediately selected Pe-den’s photograph, and identified him as the man Mr. Cooks took on a test drive. Detective Lloyd had Mr. Smith sign and date the back of the photograph to indicate that it was the one he had chosen.

When Mr. Smith left Detective Lloyd’s office, the detective telephoned Mr. Cooks and asked him to come to the police department. Detective Lloyd explained that he was conducting a follow-up investigation into the robbery, and he wanted Mr. Cooks to look at a photographic lineup. When Mr. Cooks arrived, the officer went' through the same procedure he had followed with Mr. Smith. Detective Lloyd asked him if he recognized anyone in the lineup. Mr. Cooks immediately identified Peden as the man who had robbed him. Mr. Cooks signed and dated the photograph.

Peden argues that the witnesses knew police had arrested a suspect on the day of the lineup, and that that knowledge corrupted the identification procedures. Pe-den proposes that the witnesses felt pressured to identify someone from the lineup. Mr. Smith testified at trial that he learned on the day he viewed the photographic lineup that the Chrysler had been recovered, and a suspect apprehended. Mr. Smith further testified, however, that he did not discuss that information with Mr. Cooks until after Mr. Cooks had viewed the lineup.

There is nothing in the record to suggest that either Mr. Smith or Mr. Cooks was influenced in his selection. Detective Lloyd testified at the suppression hearing that when he showed the witnesses the lineup, he did not tell them that there was someone in custody whom he believed was responsible for the robbery. Lloyd further testified that he did not offer the witnesses any inducement to [^identify anyone from the lineup. The detective stated he did not suggest to either witness that Peden was the person arrested in the vehicle.

At trial, Mr. Smith testified that when Detective Lloyd showed him the lineup, he simply asked him whether he recognized any of the photographs. Mr. Cooks testified that the officer asked him whether any of the people in the photographs looked familiar. Both Smith and Cooks testified that no one told him whom to select.

Peden argues the initial police report reflects that the perpetrator was bald, whereas he clearly had hair in May 2002, and at the time of trial. The trial testimony, however, shows that neither witness actually described the perpetrator to the reporting officer as bald. Moreover, Detective Lloyd testified that Officer Fay, the reporting officer, might well have marked “bald/none” under the space for hair color on the report form simply because the witnesses did not tell him the perpetrator’s hair color.

Peden complains that the lineup was suggestive because, of the six subjects included, he was the only one pictured with gold teeth. He argues that this drew attention to his photograph, and caused the lineup to be suggestive. The state responds that the lineup was not suggestive, and that Peden did not bring up the difference in the photograph at the motion hearing. Peden’s photograph is, in fact, the only one that depicts gold teeth. This is at least partly explained by the fact that he is the only subject pictured with his mouth open. The difference in the photographs was compounded, defendant argues, by the fact that neither witness described the perpetrator as having had gold teeth.

Strict identity of physical characteristics among the individuals depicted in a photographic array is not required; however, the resemblance must be sufficient to reasonably test the identification. Id. The question for a reviewing court is | uwhether the procedure is so conducive to irreparable misidentification that due process was denied.

While it is possible that the witnesses’ attention was drawn to Peden’s photograph, it seems unlikely that this led to irreparable misidentifications. Aside from the visibility of Peden’s gold teeth, his photograph was substantially similar to the others in the lineup. All of the photographs in the array depict African-American males with light mustaches. All are of similar skin complexion. All have short hair, and none of them has a beard.

Peden is correct in his assertion that neither Mr. Smith nor Mr. Cooks told police that the perpetrator had gold teeth. However, they were both able to immediately identify Peden from the lineup and at trial. Mr. Cooks testified that there was no doubt in his mind that Peden was the man who robbed him. Both Mr. Cooks and Mr. Smith had ample opportunity to view and speak with Peden prior to the robbery. Moreover, the identifications were made less than ten days after the offense.

It does not appear that the identification procedure was suggestive, or that it produced a great likelihood of misidentification. This Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Peden asserts that he was prejudiced by the trial court’s denial of his Motion for Mistrial. He argues that the judge deprived him of his right to aid in his own defense by resuming trial proceedings despite the fact that he was mentally impaired due to pain from a shoulder injury. Peden moves this Court to reverse his convictions.

|1sPeden’s trial began on July 16, 2003. In the late afternoon, after the jury had been selected, Deputy Daniel McKenna informed the court that Peden had suffered an injury at the parish prison. The deputy explained that when he went to the prison to escort Peden back to court, Peden complained to him of pain in his left shoulder. A prison nurse examined Peden and found that he had a dislocated shoulder. The nurse informed Deputy McKenna that the injury could not be treated at the prison, and that Peden had to be taken to a hospital. At that point, defense counsel moved for a mistrial.

The prosecutor asked the judge to recess the proceedings until the following day to allow Peden to receive medical treatment. The judge ordered that Peden be treated that night at Charity Hospital in New Orleans, and that he return to court the following morning. The court denied the mistrial motion, and defense counsel objected.

When the court convened on the morning of July 17, 2003, the judge addressed the parties out of the jury’s presence:

Yesterday Mr. Peden suffered an injury while he was housed in a cell. That gives me pause, and I am not concerned about Mr. Peden’s mental capacity or anything like that, I am concerned about Mr. Peden’s danger to others. He is charged with a very serious offense which carnes with it a very serious penalty. I am concerned that Mr. Peden might not — in an effort not to try this case might not be as calm and collect as one would hope.

Peden explained to the judge that his shoulder was easily dislocated, and that it had become dislocated the day before when he sneezed as he was tying his shoes. Defense counsel then re-urged his mistrial motion, arguing that Peden had only gotten two hours of sleep. Peden did not feel he was able to properly assist counsel because he was in pain.

The judge learned that Peden had been taken to the hospital at 10:00 p.m. the previous night, and had been returned to the prison at 2:40 a.m. He had awoken at 7:00 a.m. The judge found that Peden had had four hours in which to sleep, an Inadequate amount of time. Peden stated that he had been given a dose of Tylenol III at midnight, and no pain medication after that. Defense counsel agreed that the effects of that medication would have lasted for about four hours. Given that Peden had not had any medication for eleven hours, the judge did not feel that his mind would be clouded so as to prevent him from assisting counsel.

The trial court ruled as follows:

Mr. Peden explained to me, which was very cogently, that his issue with his shoulder is that it goes in and out, so that would not have been — so he explained to me that he had a history of dislocated shoulders, so Mr. Peden has had this experience before, and it would not be unusually frightening so as to cause him not to be able to assist his counsel.
The motion to continue' — This case was specially set, and witnesses have been flown in from out of town. The motion to continue is denied.

Peden objected to the court’s ruling.

Peden contends he was entitled to a mistrial under LSA-C.Cr.P. art. 775. It should first be considered whether the illness of the defendant is a valid ground for mistrial. Article 775 provides that a mistrial may be granted when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when a legal defect in the proceedings occurs, which would make any judgment entered upon a verdict reversible as a matter of law.

Additionally, Article 775(5) provides a mistrial may be granted when it is physically impossible to proceed with a trial. See, Comment (c)(1) of Article 775, which suggests that physical necessity such as the illness or death of the judge, a juror, or an attorney may constitute sufficient justification for a mistrial. In State v. Delore, 381 So.2d 455, 459 (La.1980), the Louisiana Supreme Court found that a juror who is disabled by illness is “incompetent to serve” under the provisions of LSA-C.Cr.P. art. 796. The court further held that when a juror becomes incompetent during the course of trial, and no alternate is available, Article 775 |17requires that a mistrial be ordered because it is “physically impossible to proceed.” See also, State v. Moten, 510 So.2d 55, 58 (La.App. 1 Cir.1987), writ denied, 514 So.2d 126 (La.1987), in which the Supreme Court found the trial court was justified in granting the State’s mistrial motion, where the Assistant District Attorney scheduled to try the case was ill, and there was no prosecutor sufficiently familiar with the case to take his place. Citing subpart (5) of Article 775, the court held that it was physically impossible for the State to proceed under those circumstances. It seems reasonable to infer that, under certain circumstances, the illness of the defendant is a valid ground for mistrial under LSA-C.Cr.P. art. 775(5).

Mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial. The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. It does not appear that the trial court abused its discretion in denying a mistrial.

Peden failed to show that he suffered substantial prejudice. When the court was considering Peden’s motion on the morning of July 17th, counsel did not produce any medical documentation to demonstrate his incapacity to proceed. Moreover, there is no evidence in the record that his case suffered from the court’s refusal to grant a mistrial. Peden even testified at trial after a long day in court. The record tends to show that Peden was alert and coherent at that point.

Peden further argues that, even if he was not entitled to a mistrial, the trial court should at least have “continued” the proceedings for a day or two to allow him time to recover from his injury. Peden’s use of the term “continuance” is misplaced. The applicable term for a temporary adjournment of the proceedings |1safter trial has commenced is “recess.” LSA-C.Cr.P. art. 708. The court did, in fact, allow a recess on the evening of July 16th in order to allow Peden to seek medical treatment. The judge believed that recess was sufficient, and Peden did not provide the court with any evidence to the contrary. Moreover, he did not move for a recess on July 17th. He specifically requested a mistrial. Moreover, as discussed above, Peden did not provide the court with objective substantiation in support of his argument that he was unable to assist counsel. Based on the foregoing, this Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The Trial Court erred by not putting in the record reasons for its excessive sentence.

By this assignment, Peden argues that his fifty-year habitual offender sentence for armed robbery (count one) is constitutionally excessive, and that the trial court erred in failing to give reasons for said sentence. Peden did not file a Motion to Reconsider Sentence as to either his original or his enhanced sentence. LSA-C.Cr.P. art. 881.1(A)(2). The failure to file a Motion to Reconsider Sentence, or to state the specific grounds on which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness.

The Louisiana Supreme Court has held that the applicable sentencing scheme is that which is in effect at the time the offense is committed. Based on the statutory provisions in effect as of May 18, 2002, the date of the offense charged in count one, the trial court was required to impose an habitual offender sentence of at least forty-nine and one-half years. The sentence imposed was only six months greater than the statutory minimum.

haThe Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit imposition of excessive punishment. It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. The Louisiana Supreme Court has recognized, however, that a mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness.

A court may depart from the statutory minimum sentence if it finds clear and convincing evidence in the record that rebuts the presumption of constitutionality. The burden is on the defendant to rebut the presumption of constitutionality by showing he is exceptional, i.e., 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 each case.

If the trial court finds clear and convincing evidence that justifies a sentence below the mandatory minimum, the court cannot impose whatever sentence it feels is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive. The Supreme Court has cautioned that downward departures from mandatory sentences should only be made in rare cases.

Peden did not attempt to demonstrate to the sentencing judge any exceptional circumstances to support a departure from the statutory minimum sentence. In fact, he did not make any argument in the district court with regard to downward departure in sentencing. In any case, Pe-den’s criminal record justifies the sentence imposed.

| gnPrior to imposing the original sentence of fifty years on count one, the trial judge noted that Peden, who was only age twenty-three at the time of sentencing, had prior armed robbery convictions and he also had convictions for purse snatching and attempted first degree robbery. The judge further noted that Peden committed the instant robbery only thirty-one days after having been released from prison on a prior offense. Peden is clearly a chronic offender. As such, the judge felt he was a danger to society.

The trial judge did not err in imposing a fifty-year habitual offender sentence. This Assignment of Error has no merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. The following matter was found.

Peden’s convictions both for armed robbery and for the possession of the car taken in the robbery represent a violation of double jeopardy. Neither defendant nor the State raises the issue on appeal. The Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense, but also protect against multiple punishments for the same offense.

LSA-C.Cr.P. art. 482(A) provides:

An indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted for either offense. When two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.

In State v. Robertson, 386 So.2d 906, 908 (La.1980), the Supreme Court found that Article 482 applies not only where a defendant is charged with theft, but Li also where the defendant is charged with a crime of which theft is an essential element. Charging a defendant with theft, or a crime of which theft is an essential element, and receiving stolen things, is not in itself a violation of double jeopardy. Rather, the jury must choose between the two counts and convict on only one count or the other. The defendant cannot be found guilty of both offenses. The purpose behind the article is to ensure that there is a single prosecution resulting in an acquittal or a single conviction for theft or receiving stolen things. State v. Williams, 359 So.2d 115, 117 (La.1978).

In the instant case, the judge failed to instruct the jury that it could only convict defendant of one offense or the other, but not both. Further, no objection was made to the jury instructions. Because the defendant could not be convicted of both theft and illegal possession of stolen things, corrective action is required.

In State v. Bruce, the defendant was tried by a jury and convicted of theft and receiving stolen property. The property involved in both offenses was an automobile. The victim saw the defendant take his car from the parking lot of his (the victim’s) place of employment. The victim’s employer apprehended the defendant as he was driving away from the premises in the car. Defendant appealed his convictions, challenging the sufficiency of the evidence.

Although the defendant did not raise the issue on appeal, the State conceded as part of its error patent discussion that the defendant’s convictions for both offenses could not stand under LSA-C.Cr.P. art. 482. The State moved this Court to vacate the conviction and sentence for possession of stolen goods, and to leave intact the defendant’s conviction and sentence for theft. This Court vacated the conviction for possession of stolen goods, citing comment (a) of Article 482, l^which provides, “ ‘A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods.’ ”

In State v. Norman, 34,868, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 619, 622, the Second Circuit arrived at a different procedural outcome based on facts similar to those in Bruce. That court held that in finding the defendant guilty of both theft and illegal possession of stolen goods, the jury had rendered illegal verdicts. The court further held that in such cases, it is as if the jury failed to reach a decision. Id. at 623. The Norman court vacated both of the defendant’s convictions and sentences, and remanded the case for a new trial. Citing State v. Mayeux, 498 So.2d 701, 705 (1986), the court found that double jeopardy does not preclude the State from retrying a defendant whose conviction is set aside because of a judicial error. When a jury renders an illegal verdict, the Fifth Amendment does not bar retrial. Id.

Based on this Court’s holding in State v. Bruce, supra, defendant’s conviction and sentence for possession of stolen goods are vacated. The armed robbery conviction and sentence are affirmed. Comment (a) of Article 482 seems more persuasive authority than the Second Circuit’s assertion that concurrent convictions for theft and possession of stolen goods are essentially null and void. Moreover, it noteworthy that the Louisiana Supreme Court denied writs in Bruce, whereas it did not have occasion to pass on the Second Circuit’s holding in Norman.

Accordingly, defendant’s conviction and sentence for armed robbery are affirmed. Defendant’s conviction and sentence for possession of stolen things are vacated.

AFFIRMED IN PART, VACATED IN PART.

      . The State dismissed count two of the Bill of Information on August 6, 2003.

      . The fact that defendant was convicted of both armed robbery and possession of the property taken in the armed robbery presents a reversible double jeopardy problem. See discussion under errors patent review, post.

      . State v. George, 95-0110, p. 6 (La. 10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363, p. 7 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 401, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

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

        . State v. Juluke, 98-0341 (La. 1/8/99), 725 So.2d 1291; State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

      . LSA-R.S. 14:69; State v. Brooks, 01-1073 (La.App. 5 Cir. 2/26/02), 811 So.2d 1066, 1069.

      . State v. Billard, 03-319, p. 5 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1072, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739.

      . Although defense counsel referred to Fay's report at trial, it was not admitted in evidence.

      . State v. Tapps, 02-0547, p. 10 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

      . Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

      . Id.

      . State v. Bright, 98-0398, p. 17 (La.4/11/00), 776 So.2d 1134, 1143.

      . State v. Bright, 98-0398 at p. 18, 776 So.2d at 1145.

      . State v. Davis, 02-1008, p. 6 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, writ denied, 03-0948 (La. 11/7/03), 857 So.2d 516.

      . See discussion under Assignment of Error Number Three, above.

      . Manson v. Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2254; State v. Bright, supra.

      . State v. Clark, 02-1463, p. 31 (La.6/27/03), 851 So.2d 1055, 1079, cert. denied, - U.S. -, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004).

      . Id.

        . State v. Dupre, 03-256, p. 7 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153A Writ Application was filed in the Louisiana Supreme Court (No.2003-K0-1978) on July 11, 2003. As of this writing, there is no writ disposition.

      . State v. Sugasti, 01-3407, p. 5 (La.6/21/02), 820 So.2d 518, 521.

      . State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 676; State v. Dupre, 03-256 at p. 8, 848 So.2d at 153.

      . State v. Johnson, supra.

      . Id.; State v. Harbor, 01-1261, p. 5 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

      . Johnson, supra.

      . State v. Johnson, 97-1906 at p. 8, 709 So.2d at 677; State v. Simmons, 02-960, p. 6 (La.App. 5 Cir. 1/28/03), 839 So.2d 239, 244, writ denied, 03-0841 (La. 10/31/03), 857 So.2d 473.

      . State v. Johnson, 97-1906 at p. 8, 709 So.2d at 676-677.

      . 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).

      . North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also, State v. Murray, 00-1258, p. 3 (La.9/18/01), 799 So.2d 453, 455.

      . "[W]e conclude that where a defendant is charged in separate indictments with theft, or a crime in which theft is an essential element thereof (e.g., armed robbery), and receiving stolen things, and the object of the theft and the thing received are the same, a defendant can be found guilty of either crime but not both.” Robertson, 386 So.2d at 908.

      . State v. Robertson, supra; State v. Britton, 443 So.2d 6, 7(La.App. 5 Cir.1983).

      . 556 So.2d 129 (La.App. 5 Cir.1990), writ denied, 561 So.2d 114 (La.1990).

      . It appears that the Louisiana Supreme Court sanctioned the recognition of double jeopardy as a patent error in State ex rel.

        Adams v. Butler, 558 So.2d 552, 553, fn. 1 (La.1990).

      . State v. Bruce, 556 So.2d at 131