text:
    Eugene MEYER and Ginger Meyer v. SOUTHERN EAGLE SALES AND SERVICE, et al.
    No. 03-CA-848.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Joel A. Levy, Marrero, LA, for Plaintiffs-Appellees.
    Robert E. Peyton, Joseph M. Guillot, Christovieh & Kearney, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court’s damage award to plaintiff was manifestly erroneous. For the following reasons, we reverse the trial court’s judgment in part, amend the judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On October 6, 1999, plaintiff, Eugene Meyer, was involved in an automobile accident with defendant, Darren Evans, who was driving a vehicle owned by his employer, Southern Eagle Sales. The accident took place on Tulane Avenue in New Orleans and occurred when defendant turned his vehicle in front of plaintiff. Following the accident, plaintiff went to the Ochsner Hospital emergency room complaining of injuries to his right knee. He returned there a few days later complaining of lower back pain. Plaintiff underwent physical therapy. He did not miss any work and was not confined to bed following this accident. An MRI was not ordered. Mr. Meyer went to physical therapy until November 18, 1999, which was about six weeks after the accident. The physical therapy notes indicate that plaintiff met all long term goals and that his pain was 0 to 2 on a scale of 10. At that time, he was not given any prescriptions for pain medications nor were any future appointments scheduled.

l3On February 27, 2000, plaintiff injured his back at home while bending over to pick up a pair of shoes. A couple of days later, he returned to Ochsner and related that his back pain from the 1999 car accident was essentially gone until this incident. On March 8, 2000, plaintiff again went to Ochsner and stated that he twisted his back while doing work around his house. He also stated that he worked full-time in sales and remained active by running and playing soccer. Plaintiff was ordered to undergo an MRI which showed degenerative changes and disc bulging at the L4-5 and L5-S1 levels and an annular tear at the L5-S1 level. The plaintiff was treated for about two months and then did not see a doctor again for back pain for about 2 years. Plaintiff was last seen at Ochsner on July 26, 2000 to discuss the results of the MRI. The recommended treatment was conservative management with medication and an exercise program.

Plaintiff and his wife filed suit against Evans, Southern and its insurer, Westport Insurance Corporation, in Jefferson Parish seeking damages and lost wages. This matter proceeded to a bench trial on January 29, 2003. The parties agreed that Mr. Evans was at fault for the accident, but disagreed as to the quantum for Mr. Meyer’s injuries. At trial plaintiff testified that he felt better once he completed physical therapy after the accident but did not have “full confidence” in his back. He also testified that he could not perform all the physical activities he did prior to the accident. He confirmed that he received no medical treatment from November 1999 to February 2000. In May 2002, plaintiff saw Dr. Richard Meyer, an orthopedic surgeon, who testified as an expert in this case. Plaintiff complained of back pain that day but apparently did not inform Dr. Meyer of the back injuries he suffered at home in February 2000. He opined that the plaintiffs back pain was due to the car accident, but he admitted that the plaintiff did not tell him about the incident when he hurt his back at home. Dr. Meyer believed that the incident at home when Mr. Meyer hurt his back was an aggravation of his pain and not a new Rinjury. However, if plaintiffs back pain from the car accident was completely resolved before the home injury, then the home injury would be a new injury. Dr. Walter Abbott examined plaintiff in July 2002 at the request of the defendants and opined that plaintiff was functioning at a very high level at the time of the examination. He agreed that if plaintiffs pain was gone then the home injury would be a new injury.

The following exhibits were introduced: police report; vehicle photographs; plaintiffs 1999 W-2 form; depositions of plaintiff and defendant; Ochsner medical records and bills; and rental car expenses. Following the submission of post-trial memoranda, the trial court entered judgment in favor of plaintiff and against defendant awarding $35,000.00 in general damages and $4,556.60 in special damages without issuing written reasons for judgment. This suspensive appeal followed.

DISCUSSION

Defendants argue that the trial court’s judgment is manifestly erroneous and the damage award is excessive in light of plaintiffs self-serving testimony and the medical records. A trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682, 688. The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings. Id. at 688. Instead, it must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. at 688. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. at 688. The reviewing court must be mindful that if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may | snot reverse, even if it would have weighed the evidence differently were it sitting as the trier of fact. Id. at 688.

We find that the trial court’s judgment awarding plaintiff $35,000.00 in general damages is excessive and clearly wrong for an injury that may have persisted from October 1999 through at most May 2000. Plaintiffs medical records indicate that he did not receive any medical treatment for three months from November 1999 through March 2000 indicating that plaintiffs injuries likely resolved during that time. Thus, we reduce the general damages award to $8,000.00. However, we find no abuse of discretion by the trial court in awarding plaintiff $4,556.00 in special damages. The record supports this award.

DECREE

For the foregoing reasons, we vacate the trial court’s judgment and award general damages in the amount $8,000.00 and affirm that portion of the judgment awarding plaintiff $4,556.00 in special damages.

REVERSED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Douglas HOTARD.
    No. 03-KA-435.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Jane L. Beebe, Gretna, LA, for Appellant.
    John M. Crum, District Attorney, Rodney A. Brignac, Assistant District Attorney, LaPlace, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   JAMES L. CANNELLA, Judge.

The Defendant, Douglas Hotard, appeals from his convictions of two counts of indecent behavior with a juvenile and his concurrent sentences of eight and one-half years in prison. For the reasons which follow, we affirm and remand.

STATEMENT OF THE CASE

The Defendant was charged by a bill of information on June 14, 2001 with two counts of indecent behavior with a juvenile, a violation of La. R.S. 14:81. He pled not guilty and filed several pretrial motions. The Defendant proceeded to trial on June 4, 2002 before a six person jury. After a two day trial, the Defendant was found guilty as charged on both counts.

Thereafter, on November 14, 2002, the State filed a habitual offender bill of information alleging that the' Defendant was a forth felony offender, based on a 1984 conviction for possession with intent to distribute Quaaludes and a 1989 conviction for second degree battery. The Defendant filed a written response claiming the predicate pleas were based on defective Boy-kins. A habitual offender hearing was held on January 15, 2003, at which time the State advised that it was proceeding only on the Defendant’s prior conviction for second degree battery. After the hearing, the trial court found the Defendant to be a second felony offender as to each count and sentenced him, under La. R.S. 15:529.1, to eight and pone-half years imprisonment at hard labor on each count, ordering that the sentences run concurrently.

FACTS

Sometime between April 1 and 15, 2001, H.L., age 13, accompanied T.H., the Defendant’s son, on a visit with the Defendant, who had recently been released from jail. At approximately 8:,30 to 9:00 p.m., the Defendant and his girlfriend, Elaine Shaw (Shaw), picked up H.L. and T.H. from T.H.’s grandmother’s house in West-wego. The Defendant stopped at several convenience stores and bought beer, wine coolers, cigars and cigarettes. The Defendant also stopped at a friend’s house and picked up wrappers to roll marijuana before driving to Shaw’s house in Laplace.

Once they arrived at Shaw’s house, Shaw went to sleep and the Defendant and the two boys ate dinner and then smoked joints outside on the porch. Thereafter, T.H. went to sleep and H.L. stayed up with tbe Defendant. Approximately twenty minutes later, the Defendant told H.L. that some girls were coming over to “suck [H.L.’s] penis.” According to H.L., the Defendant pretended to use the phone and acted like he called a girl. The Defendant told H.L. the girl lived five to ten minutes away and instructed H.L. to go upstairs to the loft and wait.

While H.L. was waiting in the loft, the Defendant came in and told him the girl did not want to be seen. The Defendant took H.L.’s shirt off, tied it around H.L.’s eyes, and told him the girl was coming. H.L. testified that the Defendant pulled H.L.’s shorts down and began performing oral sex on him. After about five to ten seconds, H.L. put his hand down and felt a bald spot and a Tittle bit of hair. |4 He removed his blindfold and saw the Defendant kneeling in front of him. H.L. told the Defendant that he did not feel good and was going to bed.

H.L. went to the room where T.H. was sleeping and lay down. Approximately ten minutes later, the Defendant came into the room and tried to lay down with H.L. The Defendant told H.L. that the girl was coming again. H.L. stated that he did not want to do it anymore and asked for something to drink in order to get the Defendant out of the room. The next morning, Shaw drove H.L. and T.H. to school in Marrero.

Approximately one month later, on May 12, 2001, R.B., age 14, was going to spend the weekend with T.H. At approximately 9:00 p.m., the Defendant and T.H. picked up R.B. from his home in Marrero. On the way to the Defendant’s residence at the Millet Motel in Laplace, the Defendant stopped at two convenience stores and bought beer. He then stopped and bought marijuana which the three of them smoked in the car on the way to Laplace. They stopped to eat at the Huddle House and then went to the motel where they watched television and smoked another joint.

There was only one bed in the motel room. The three lay on the bed, with R.B. lying between the Defendant and T.H., and went to sleep. Ten minutes later, R.B. felt the Defendant’s hand rub up against him. R.B. initially thought it was an accident but it happened again. According to R.B., the Defendant unzipped R.B.’s pants and started massaging his penis through his boxers. R.B. excused himself to go to the bathroom. When R.B. returned from the bathroom, he told the Defendant he felt sick and then lay on the floor and went to sleep. R.B. stated he slept with his waist under the bed so the Defendant would not touch him again.

Neither H.L. nor R.B. reported the incidents immediately. R.B. testified that one week after the incident, he and H.L. were talking at which time the two discussed what the Defendant had done to each of them. H.L. and R.B. told T.H. |sabout the incidents and T.H. reported it to his stepfather and mother who then reported it to the police.

Detective Terrell St. Martin investigated the incidents involving H.L. and R.B. He arrested the Defendant pursuant to an arrest warrant on May 21, 2001. Upon his arrest, the Defendant was advised of his Miranda rights. The Defendant waived his rights and gave a recorded statement, which was played for the jury. In his recorded statement, the Defendant vacillated between admitting he touched R.B. “a couple of times” to stating he could not remember. He never admitted performing oral sex on H.L. Following the convictions and sentences, the Defendant appealed and assigned three errors.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant contends that the trial court erred, warranting a reversal of his conviction, by denying his challenges for cause as to three jurors, Shirley Packer (Packer), Malinda Rein (Rein) and Tammy Mitchell (Mitchell), which caused him to use his peremptory challenges on two of the jurors and to accept the third, Mitchell, because he had exhausted his peremptory challenges. He claims that prospective jurors Packer and Mitchell should have been excused for cause because they both felt strongly that the Defendant should testify. The Defendant contends that both prospective jurors indicated they would weigh the fact that the Defendant did not testify in considering the evidence. The Defendant also challenged prospective juror Rein on the basis that she knew an assistant district attorney. The Defendant argues that, despite Rein’s claims to the contrary, she would have been biased in her deliberations because of the relationship.

| ^Prejudice is presumed when a challenge for cause is erroneously denied by the trial court and the defendant has exhausted his peremptory challenges. State v. Anthony, 98-406 (La.4/11/00), 776 So.2d 376, 391, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000). To prove there has been error warranting a reversal of conviction and sentence, the defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281. Where the defendant does not exhaust his peremptory challenges, he must demonstrate that he was prejudiced by the ruling denying his challenge for cause. Id. at 1280; State v. Perrilloux, 95-677 (La.App. 5th Cir.1/30/96), 669 So.2d 7, 9.

The Defendant’s argument herein is based on his contention that he exhausted all of his peremptory challenges. Since the Defendant was charged with indecent behavior with a juvenile, which is punishable by imprisonment with or without hard labor, he was entitled to six peremptory challenges. La. R.S. 14:81(0; La.C.Cr.P. art. 799. Further, La. C.Cr.P. art. 789(A) allows for additional challenges for alternate jurors, providing in pertinent part:

The regular peremptory challenges allowed by law shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each the defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors.

A review of the record shows that the Defendant only used five of his six peremptory challenges before the six regular jurors were selected. His sixth peremptory challenge was used in the selection of the alternate juror. Thus, contrary to his argument, we find that the Defendant failed to exhaust his peremptory challenges. As a result, to establish reversible error, the Defendant |7must demonstrate that he was prejudiced by the trial court’s denial of his challenges for cause.

In a similar ease, State v. Perrilloux, 95-677 (La.App. 5th Cir.1/30/96), 669 So.2d 7, 8-9, the defendant had also only used five of his six peremptory challenges before the six regular jurors were selected. The defendant used his sixth peremptory challenge on an alternate juror. This Court found no reversible error because the defendant failed to show that he was prejudiced by the trial court’s denial of his challenge for cause. This Court noted that the defendant “neither argued, nor proved that he was forced to accept a questionable juror because he had exhausted his peremptory challenges.” Id. at 9.

Likewise, in the present case, the Defendant has failed to demonstrate error warranting a reversal of his convictions because he has not shown any prejudice suffered by the trial court’s denial of his challenges for cause. In the first jury-panel, the Defendant challenged Packer and Mitchell for cause. The trial court denied the challenges. The Defendant then used one peremptory challenge to strike Packer. He did not use a peremptory challenge to strike Mitchell, but stated that she was acceptable.

By the time six jurors were selected, the Defendant still had one remaining peremptory challenge. The record shows that trial counsel was clearly aware of the number of peremptory challenges available to him toward the end of voir dire because the trial court kept an accurate count throughout voir dire. The Defendant did not exhaust those challenges. Mitchell was the only juror challenged in this assignment of error that served on the jury. The Defendant could have used his remaining peremptory challenge to strike Mitchell but did not do so. Thus, the Defendant has failed to show that he suffered any prejudice from the denial of his | ¡¡challenges for cause and, consequently, he has failed to show reversible error. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant argues that the trial court erred in denying his motion to suppress his statement. He asserts he was not lucid or competent at the time he gave his statement because he took two Xanax pills during the interrogation and, therefore, his statement was not voluntary. The Defendant argues that the transcript of his statement shows that his answers were vague and that he did not understand the charges against him. He further contends that his statement demonstrates that he had no independent recollection of the incidents at issue.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the state must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998); State v. Quest, 00-205 (La.App. 5th Cir.10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. State v. Quest, supra at 780. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the 1 avoluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id.

Intoxication renders a confession involuntary when the intoxication is of such a degree as to negate the defendant’s comprehension and to make him unconscious of the consequences of what he is saying. State v. Quest, supra at 780, quoting State v. Narcisse, 426 So.2d 118, 125 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact and a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence. Id.

On the second day of trial, a hearing was held outside of the presence of the jury on the admissibility of the Defendant’s statement. The State presented the testimony of Detective Terrell St. Martin, who testified that he advised the Defendant of his rights prior to taking his statement. He explained that he read the advice of rights form to the Defendant and that the Defendant initialed each right and signed the form indicating that he understood his rights and wished to waive them. Detective St. Martin stated that the Defendant appeared alert and coherent during the interview. He noted that the Defendant’s responses were appropriate to the questions and that he had no reason to think that the Defendant was intoxicated or under the influence of drugs at the time of the interview.

The Defendant also testified at the hearing. The Defendant stated that he was not advised of his rights until after he gave the statement. This fact was contradicted on cross-examination by the playing of the audio tape of the statement which demonstrated that the Defendant was advised of his rights before he gave a statement. The Defendant also testified that he took two Xanax pills in front of Detective St. Martin before giving the statement. He explained that his normal dose is one pill. The Defendant did not testify what adverse effect Xanax had on |inhim other than to state that it calmed him down. The Defendant further agreed that he was not promised anything for his statement.

At the conclusion of the hearing, defense counsel argued that the Defendant’s statement was inadmissible because the Defendant was under the influence of medication at the time of the statement which affected his mindset. The trial court ruled that the statement was admissible.

In State v. Quest, 00-205 (La.App. 5th Cir.10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866, this Court found no error in the trial court’s denial of the defendant’s motion to suppress despite the defendant’s claim that he was under the influence of heroin at the time of the statement. This Court noted that the officer who took the defendant’s statement testified that the defendant showed no signs of being on drugs or of being intoxicated. The officer stated that the defendant’s speech and ability to balance were normal and that the defendant appeared coherent. This Court further noted that, even if the defendant had been under the influence of drugs, his alleged intoxicated state was not sufficient to vitiate the voluntariness of his statement.

Also, in State v. Delaune, 572 So.2d 652 (La.App. 5th Cir.1990), this Court held that the defendant’s confession was free and voluntary even though it was made while the defendant was intoxicated. This Court gave great deference to the trial court’s decision to deny the motion to suppress the defendant’s statement on the basis that it was free and voluntary. This Court noted that the trial court’s decision was supported by the evidence (testimony) that the defendant appeared coherent and did not appear intoxicated.

Although the trial court here did not specifically comment on the Defendant’s claim of intoxication when ruling on the motion to suppress, we find Nthat the record supports its ruling. Detective St. Martin testified that the Defendant did not appear intoxicated. The statement itself does not evidence incoherence. At trial, Detective St. Martin specifically testified that he did not see the Defendant take any type of medication while in the interview room. While the Defendant stated to the contrary that he did take a double dose of Xanax in the presence of Detective St. Martin, he did not testify that the medication impaired his ability to understand his rights. In fact, the Defendant never claimed that he did not understand his rights. He testified only that his rights were read to him afterwards, a claim that was clearly disproved by the taped statement itself. The Defendant admitted that no promises were made in exchange for his statement.

Based on the foregoing, we find that the Defendant has not shown, contrary to the testimony of Detective St. Martin, that his statement was not free and voluntary. The record supports the trial court finding that the statement was admissible. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, the Defendant argues that imposition of an eight and one-half year sentence on each of the two counts was excessive. He argues that there was no reason for the harsh sentences because there was no “excessive trauma, cruelty or permanent suffering” endured by the victims. He further argues that the victims were unbelievable. The Defendant also contends that the trial court erroneously imposed an enhanced sentence on both counts.

It is first noted that the Defendant did not object to his sentences and failed to file a motion to reconsider his sentences pursuant to La.C.Cr.P. art. 881.1. Therefore, his sentences will only be reviewed for constitutional excessiveness, h?. State v. Marshall, 02-747 (La.App. 5th Cir.2/11/03), 841 So.2d 866, 872, writ denied, 03-659 (La.6/6/03), 845 So.2d 1090.

Both the United States and the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5th Cir.4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5th Cir.1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5th Cir.9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5th Cir.8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

The Defendant was convicted of two counts of indecent behavior with a juvenile. As a second felony offender, the Defendant faced an enhanced sentencing range between three and one-half and fourteen years. La. R.S. 14:81 |13and 15:529.1(A)(l)(a). The Defendant was sentenced to eight and one-half years on each count, to run concurrently, which is in the middle of the range. In imposing sentence, the trial court noted it had considered the pre-sentence investigation report (PSI), letters in support of the Defendant, and letters not in support of the Defendant.

The record indicates that the Defendant, age 40, preyed upon two of his son’s friends, who were only 13 and 14 years old, while they were away from home under his supervision. The Defendant gave the boys alcoholic beverages and marijuana before taking advantage of them. In one case, the Defendant waited until the victim was asleep before touching him. In the other case, the Defendant used trickery and deceit to perform oral sex on the victim. In performing oral sex on one of his victims, the Defendant could have faced a more serious charge than indecent behavior with a juvenile. The evidence also showed that the Defendant had only recently been released from jail prior to committing these offenses, further demonstrating his propensity for recurring criminal behavior. Additionally, the Defendant .was found to be a second felony offender with a predicate conviction of second degree battery for beating his wife. Based on these facts, we do not find that the imposition of eight and one half year concurrent sentences, which fall in the middle of the enhanced sentencing range for a second offender, are excessive.

Further, there is no merit in the Defendant’s claim that the trial court erroneously imposed enhanced sentences on both counts. It is well settled that a defendant, convicted on the same day of separate felonies arising out of separate criminal offenses committed at.separate times, is subject to being adjudicated a habitual offender on each conviction. State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La.1991); State v. Page, 02-689 (La.App. 5th Cir.1/28/03), 837 So.2d 165, 177.

The State filed a habitual offender bill of information seeking to enhance both of the Defendant’s 2002 convictions for indecent behavior with a juvenile. The two counts with which the Defendant was charged in the' single bill of information were two separate incidents involving two separate victims that occurred on two separate dates. Thus, under State ex rel. Porter, both of the counts were subject to enhancement. This assignment of error lacks merit.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals the following.

The transcript reflects that the trial judge informed the Defendant that he had “two years to file for post-conviction relief,” without informing him of the commencement of the time period. Thus, we find that the Defendant was not properly informed under La.C.Cr.P. art. 930.8. We remand the case for the district court to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of the Court’s opinion and to file written proof of receipt of such notice in the record. State v. Stelly, 98-578, p. 6 (La.App. 5th Cir.12/16/98), 725 So.2d 562, 564.

We also find that because the Defendant was convicted under La. R.S. 14:81, a “sex offense” as defined by La. R.S. 15:542(E), notification of the sex offender registration requirements is mandated. La. R.S. 15:540 et seq. However, the record does not indicate that the trial judge provided the Defendant with notification of the registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A). Therefore, on remand, the trial court is ordered to inform the Defendant of the registration requirements of La. R.S. 15:542 by sending | ^appropriate written notice to the Defendant within ten days of this opinion, and to file written proof in the record that the Defendant received such notice. State v. Stevenson, 00-1296 (La.App. 5th Cir.1/30/01), 778 So.2d 1165, 1166-1167.

Accordingly, for the foregoing reasons, the convictions of the Defendant on two counts of indecent behavior with a juvenile and his enhanced sentences, as a second felony offender, to eight and one half years imprisonment at hard labor, with the sentences to run concurrently, are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice, under La.C.Cr.P. art. 930.8, of the prescriptive period for post-conviction relief and, under La. R.S. 15:542, of the sex offender registration requirements.

CONVICTIONS AFFIRMED; ENHANCED SENTENCES AFFIRMED; REMANDED.

      . No original sentence was imposed on either count.

      . The victim's initials are used under the authority of La. R.S. 46:1844(W)(3) which allows the Court to identify by his‘ initials a crime victim, who is a minor.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . A transcript of the Defendant's statement is included in the actual record as opposed to being included as an exhibit.

      . Mitchell was referred to both as Tammy Mitchell and Connie Mitchell in the record.

      . The Defendant used his five peremptory challenges on Packer, Gail Bratcher, Deborah Jeffcoat, Linda Kugler, and Claudette Le-Blanc.

      . See, State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 254, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996), where the Supreme Court found it did not need to reach whether there was an erroneous denial of a challenge for cause because the defendant had peremptory challenges remaining at the close of jury selection; and State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756, 767 (on original hearing), cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997), where the Supreme Court determined it did not need to decide whether a challenge for cause was improperly denied because the defense failed to exhaust its peremptoiy challenges. However, we note that the record indicates that the jurors were rehabilitated.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . There was subsequent argument about the statement containing other crimes evidence. The trial court ultimately ruled that portion of the Defendant's statement that referenced "molestation” was to be excised.

      . In determining whether the trial court’s ruling on a defendant's motion to suppress is correct, the appellate court may consider evidence adduced at both the suppression hearing and at trial. State v. Nelson, 02-65 (La.App. 5th Cir.6/26/02), 822 So.2d 796, 799, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627.

      . The PSI is not contained in the record.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Michael W. NABAK.
    No. 03-KA-919.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

Defendant, Michael W. Nabak, appeals his conviction of driving while intoxicated, third offense, a violation of LSA-R.S. 14:98(D)(1). Michael Nabak pleaded guilty to the charge under State v. Crosby and assigns as error the trial court’s denial of his Motion to Quash, which alleged that the guilty pleas in his two predicate offenses were obtained without valid waivers of counsel, and thus, cannot be used to enhance the current charge. This appeal followed.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, Michael Nabak contends that the trial judge erred in refusing to grant the Motion to Quash the Bill of Information. In particular, he alleges that the predicate guilty pleas were constitutionally infirm in that he was not represented by | ¡¡counsel, and the proof presented in support of the predicate guilty pleas was insufficient to establish that he made knowing waivers of his right to counsel.

The State replies that since the documents show that Michael Nabak was advised of and waived the right to counsel, the proof presented was sufficient to establish a knowing waiver of counsel, relieving the State of the necessity of producing the transcripts.

The predicate offenses listed in the Bill of Information were: (1) a guilty plea entered in Hancock, Mississippi, on November 17, 1998 in Docket No. 176-523, and (2) a guilty plea entered in Jefferson Parish in First Parish Court on June 28, 1999 in Docket No. F1217824.

Both predicate guilty pleas are the subject of Michael Nabak’s Motion to Quash. The evidence offered by the State in support of the first predicate guilty plea consists of a single page, Mississippi Waiver of Rights form. The evidence offered by the State in support of the second predicate guilty plea consisted of certified copies of the Bill of Information, a minute entry reflecting the charges and disposition, and a Waiver of Rights form.

A presumption of regularity attaches to prior convictions in multiple-offender DWI cases and the burden is on the defendant to show the prior plea is constitutionally deficient.

The Louisiana Supreme Court, in State v. Carlos, 738 So.2d at 559, found that the burden shifting principles set forth in State v. Shelton, 621 So.2d 769 (La.1993) applied to the recidivist portion of the DWI statute, LSA-R.S. 14:98. Thus, under Carlos, when a defendant collaterally attacks a prior DWI guilty plea by a Motion to Quash, the State bears the initial burden of submitting sufficient evidence of the existence of the prior guilty plea and that the plea was counseled. State v. Carlos, 738 So.2d at 559. If the State meets this burden, the defendant must then produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. State v. Carlos, supra. If the defendant is able to do this, then the burden shifts to the State to prove the constitutionality of the plea. State v. Carlos, supra. The State will meet this burden by producing a “perfect” transcript of the guilty plea colloquy. Anything less than a “perfect” transcript, such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced. State v. Carlos, supra.

In support of its position that the predicate guilty pleas were constitutionally sound, the State presented State’s Exhibit 1, which consisted of a single page Waiver of Rights/Guilty Plea Form from the First Justice Court in Hancock County, Mississippi, executed by Michael Nabak and the presiding judge, in conjunction with Michael Nabak’s guilty plea taken in Doc. No. 176-523 on November 17, 1998. The form enumerates Michael Nabak’s rights and lists among those rights the following: “I am giving up the right to have a lawyer; I understand that if I cannot afford a lawyer, one may be appointed to represent me.”

The form also contained the following language:

I hereby certify under oath that there have been no threats or promises made to me in order to get me to enter this plea.
I further certify under oath that I have read and understand all of the above and that I desire to waive my rights and enter a plea of guilty.

The State also presented State’s Exhibit 2, which consisted of certified copies of the Bill of Information, a minute entry reflecting the charges and disposition, and the Waiver of Constitutional Rights Plea of Guilty form, executed by Michael Nabak and the judge during the guilty plea proceeding that occurred in First Parish Court for the Parish of Jefferson in Docket No. 1217824 on June 28, |51999. The waiver form enumerated Michael Nabak’s rights, including the right “(5) to have an attorney present at every stage of the proceeding.” The form also specified the following:

If I elect to have a trial, I have a right to have competent counsel represent me at the trial and if I am unable to pay for counsel, the Court will appoint competent counsel to represent me. If convicted after trial, I have a right to appeal with competent counsel and by pleading GUILTY I am waiving these rights
No promises have been made to me by anyone in connection with this plea.

An attestation was also signed by Michael Nabak that stated:

I hereby certify that the above rights have been read and explained to my full satisfaction by_and that I have no further questions to ask concerning my rights and that this acknowledgment by me will become part of these proceedings.

No transcripts or any additional evidence was offered by the State in support of either of the two predicate guilty pleas. Following this presentation, the trial judge denied Michael Nabak’s Motion to Quash the Bill of Information, over Michael Na-bak’s objection.

An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as the predicate for enhancement of a subsequent DWI offense. See, State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 844, citing State v. Pugh, 588 So.2d 702 (La.1991); State v. Deroche, 96-1376, p. 1 (La.11/8/96), 682 So.2d 1251, 1252 (per curiam), quoting State v. Strain, supra.

Before accepting a misdemeanor guilty plea, the trial judge should expressly advise the defendant of his right to counsel and to appointed counsel if he is indigent. State v. Strain, 585 So.2d 540, 543-544 (La.1991); State v. Garrity, 97-958, p. 3 (La.App. 5 Cir. 1/27/98), 708 So.2d 1096, 1098. The judge should determine if the waiver is knowing and intelligent under the circumstances. State v. Garrity, 708 So.2d at 1097. The critical issue on review of the waiver of rights | fiis whether the defendant understood the waiver. State v. White, 98-343, p. 7 (La.App. 1 Cir. 12/28/98), 727 So.2d 574, 577. In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. State v. Granier, 03-447 (La.App. 5 Cir. 9/30/03), 857 So.2d 1176, quoting State v. Strain, supra; State v. Pickett, 746 So.2d at 188. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question that depends upon the facts and circumstances of each case. State v. Strain, 585 So.2d at 542. The Louisiana Supreme Court has recognized that crimes of driving while intoxicated are non-complex crimes, and almost self explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the ease of a guilty plea. State v. Strain, 585 So.2d at 544. There is no magic word formula for making this determination, but the voluntariness of the waiver of counsel must take into consideration the totality of the circumstances. State v. Granier, supra, citing State v. Stevison, 721 So.2d at 845.

In State v. Deroche, 682 So.2d at 1252, the Louisiana Supreme Court held that a defendant’s signature, on a printed waiver form advising defendant of his right to counsel and warning defendant of the dangers of self-representation (in which the form was also signed by the judge, indicating the judge’s satisfaction that the accused understood the nature of his plea and its consequences), did not discharge the trial judge’s duty to advise the defendant expressly of his right to counsel and to determine “on the record that the waiver was made knowingly and intelligently under the circumstances” taking into account such factors as the defendant’s age, background, and education.

In this case, the documents presented by the State in support of the two predicate guilty pleas clearly indicate Michael Nabak was not represented by 17counsel. They also reveal that Michael Nabak was advised of his right to counsel and each set of documents indicate Michael Nabak waived that right. However, no additional evidence was presented by which to evaluate whether the waivers were made knowingly and intelligently. There is nothing in the record to indicate that the trial judge made a determination on the record that Michael Nabak knowingly and intelligently waived his right to counsel. See State v. Stevison, 721 So.2d at 844; State v. Deroche, 682 So.2d 1251.

The State relies upon State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078, to support its position that there was a valid waiver of counsel in each of these predicate proceedings. In Theriot, the State, in support of the validity of defendant’s predicate guilty plea, offered a copy of a minute entry, Waiver of Rights form, and a transcript. The transcript did not address specifically the issue of the defendant’s right to counsel, but it did evidence an explanation of the defendant’s Boykin rights and afforded the defendant the opportunity to ask questions. The record also indicated that the defendant spoke to the district attorney before entering his plea and that he entered his plea pursuant to LSA-C.Cr.P. art. 894. This Court found the trial judge properly denied the Motion to Quash after finding a valid waiver of counsel in the predicate proceedings. This Court reasoned as follows:

The record indicates that Defendant was informed at arraignment of his right to counsel, thereby being informed of a right to counsel even at this preliminary stage of the proceedings. Further, Defendant signed a form waiving his right to counsel, which acknowledged his right to ask questions, but he did not ask questions or express hesitation during the colloquy. Finally, the guilty plea was to Defendant’s benefit, since the charge was reduced to first offense DWI, the other charges were dismissed, and Defendant was allowed to plead under Article 894.
Therefore, considering the totality of the circumstances, we find that Defendant validly waived his right to counsel in the 1995 proceedings, and the trial judge properly denied the motion to quash,

Although the plea form in Theriot and present case contain some of the |sSame language, there are important facts that distinguish the two cases. In this case, there is no indication in the record that Michael Nabak was verbally advised at the arraignments (or any time) of his right to counsel or that he was afforded an opportunity to ask questions in either of the two predicate proceedings. In the case of the Mississippi guilty plea, there is no indication that Michael Nabak met with the district attorney or that a favorable sentence was received as the result of a plea bargain. In the case of the Louisiana guilty plea, a minute entry indicates Michael Nabak was originally charged with DWI and driving without a license and the license charge was dismissed. However, there is no indication from the record how or why the dismissal of the second charge occurred. For these reasons, Theriot is distinguishable.

In support of his claim that the uncoun-seled pleas could not serve as valid predicate offenses to charge him with DWI, third offense, Michael Nabak relies on State v. Pickett, supra. In Pickett, the defendant specifically argued with regard to his 1994 predicate guilty plea that he was not represented by counsel and the trial judge failed to inform him of the right to counsel and to make any inquiry into his background or ability to understand the proceeding. In Pickett, transcripts were presented to support both of defendant’s predicate convictions in 1994 and 1995. The transcript of the challenged plea revealed the defendant was verbally advised by the judge of his right to counsel. The transcript also evidenced that the defendant spoke with the district attorney and worked out a favorable plea under LSA-C.Cr.P. art. 894. This Court, in Pickett, concluded that the colloquy afforded the trial judge an opportunity to measure the defendant’s understanding of the rights waived. The presentation of the transcript and colloquy containing the judge’s advisory distinguish Pickett from the present case.

The present ease, however, is more closely aligned to State v. Deroche, supra; State v. Granier, supra; (Assignment No. 3) and State v. White, 998-0343 (La.App. 1 Cir. 12/28/98), 727 So.2d 574.

In Granier (Assignment No. 3), in support of the guilty plea predicate (No. 641594), the State presented only a minute entry and a transcript, but no colloquy pertaining to the right of counsel; while in White and Deroche, the State presented only a minute entry and Waiver of Rights form. None of these cases presented a transcript or a colloquy concerning the right to counsel, or any evidence from which the trial judge could ascertain, on the record, the defendant’s understanding of his waiver of counsel. In each of these three cases, the proof presented was found to be inadequate to support a finding of a knowing waiver of counsel.

Considering Granier, Deroche, and White, under the totality of the circumstances of this case, the State has failed to satisfy the second requirement of its initial burden under Carlos of proving a knowing and intelligent waiver of counsel in each of the two predicate guilty pleas. As such, the trial court erred in refusing to grant Michael Nabak’s Motion to Quash the two predicate guilty pleas in this case.

ASSIGNMENT OF ERROR NUMBER TWO

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), the record has been reviewed for errors patent. Error patent was found concerning the sentence, but our disposition of the First Assignment of Error renders this discussion moot.

Accordingly, Michael Nabak’s claim that the trial court erred in denying the Motion to Quash the Bill of Information has merit. We reverse that ruling and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . 338 So.2d 584 (La.1976).

      . Additionally, Michael Nabak argued that during the Mississippi plea he was not informed of the possible consequences of a future conviction. This latter claim is not raised by this appeal.

        . State v. Pickett, 99-532, p. 1 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 187, citing State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556.

      . Although the judge’s reasons only refer to the Mississippi predicate offense, the ruling included the Louisiana predicate offense also since both were the subject of Michael Na-bak’s Motion to Quash the Bill of Information.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Paul FERNANDEZ.
    No. 03-KA-987.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Kia Ha-bisreitinger, Assistant District Attorneys, Gretna, LA, for State.
    Frank G. DeSalvo, New Orleans, LA, for DefendanL-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Paul Fernandez, with sexual battery, a violation of LSA-R.S. 14:43.1, for acts allegedly committed on July 29, 2001. Defendant pled not guilty at the arraignment.

The following facts were elicited at trial. S.M. and her husband, along with some friends, were at Studio II Lounge in Jefferson Parish. S.M. was dancing with one of her friends when she felt a man’s hand brush her rear end. She looked down and saw a man’s hand coming from under her dress. Immediately thereafter, the man put his “full hand” in between her legs. S.M. looked around and saw only one man, later identified as the defendant, near her. S.M. became very upset and told her husband, who was nearby, what had happened. S.M’s husband and another friend, Mark Jackson saw the defendant pulling his hand from underneath S.M.’s skirt. S.M’s husband became very angry and started to confront the | ¡¡defendant, but S.M. and other friends restrained S.M.’s husband. S.M. then told the disc jockey what had happened, and he recommended that she call the police.

After S.M. went to call the police, Mark, who was a St. Bernard Parish detective, followed defendant into the restroom, where Mark overheard the defendant say that “her husband is no man.” Mark testified that he told the defendant that the police were on the way. Deputy Brian Scheyler of the Jefferson Parish Sheriffs Office responded between 3:00 and 4:00 a.m. Deputy Scheyler testified that, after he interviewed the victim, he escorted the defendant outside of the lounge, where Deputy Scheyler handcuffed the defendant. According to Deputy Scheyler, no one came forward to tell a different version of the events on the defendant’s behalf. According to the victim’s husband, while the defendant was in the police car after he was arrested, the defendant threatened him and told S.M. that he would rape her when he got out of jail.

The defendant and several witnesses testified on his behalf. According to the defendant, he met up with several friends at Studio II. He admitted that he might have accidentally bumped into S.M. while dancing on the crowded dance floor, but denied that he had intentionally reached under her dress. The defendant also said that S.M. bumped into him several times when she was “dancing wildly.” The defendant said that he was dancing with Christine Chambers and another girl, Trish, when he noticed that S.M. became angry. The defendant said that he was unaware of any problem until the victim’s husband and another man approached him and tried to start a fight.

Christine Chambers testified that she and her sister, Rebecca Castex, had seen the defendant earlier in the evening at Legends lounge. Before leaving Legends, Christine, Rebecca, and the defendant agreed to meet at Studio II. According to Christine, they arrived separately at Studio II between 2:30 and 3:00 a.m. Christine testified that she and a group of three or four girls were dancing in a Ugroup with the defendant. Christine said that she saw the defendant as he was escorted out of the lounge, but unaware that he had been arrested. Christine did not see the defendant reach underneath a woman’s dress while they were dancing, nor did she see an altercation between the defendant and two men. Rebecca said that she saw the defendant dancing with Christine and other friends, but she did not see anything happen between the victim and the defendant. Both Rebecca and Christine subsequently learned that the defendant had been arrested.

Chris Taylor, the defendant’s nephew, and his date, Christina Leslie, were also at Studio II that morning. Both of them saw the defendant dancing with some women. Christina saw a woman become upset, followed by an altercation between the defendant and two men. Chris also saw the altercation, but neither Christina nor Chris saw the defendant reach underneath a woman’s skirt.

Finally, Nathan Bares, one of the defendant’s co-workers at the Italian Pie, saw the defendant that morning at Studio II. According to Nathan, the defendant was already there when Nathan arrived. The defendant was dancing with Christine at the time, approximately one foot away. Nathan did not see the defendant reach underneath a woman’s skirt.

After trial, a six-person jury found defendant guilty as charged on August 20, 2002. On August 27, 2002, the trial judge sentenced defendant to three years at hard labor without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant claims that the prosecution in closing argument encouraged the jury to convict him because he was a bad person in that he had been previously convicted of a felony. The State responds that the remarks were appropriate because they were in response to the defendant’s closing argument.

The defendant complains of the following comments made by the prosecutor during rebuttal:

I,¿Defense Counsel wants you to believe that the fact that he’s a convicted felon is a plus. He’s got a conviction for possession of a schedule two controlled dangerous substance, coke, cocaine, and that’s a plus. That’s not a plus. He wants you to believe that he came to court before and he pled guilty and therefore he’s not guilty this time. This is an experienced individual. This is a man who has come to court. This is a man who has learned to lie. He’s already been through the justice system. He’s learned to lie. Now, the Judge is going to tell you when he reads the jury instructions in a few moments that you are the sole judge of the weight and credibility of the evidence, you [sic] are the sole individuals who can determine and judge the credibility of the defendant. If you chose not to believe an individual who is inconsistent with all of his witnesses, and who is a convicted drug offender, then you have the right to do that....

The record reflects that the defendant did not object to these remarks. LSA-C.Cr.P. art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The purpose behind this rule is to put the trial judge on notice of an alleged irregularity so that the problem may be cured by the judge, as well as to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Ware, 01-194, p. 14 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 504.

Nevertheless, this Court has addressed on appeal, a prosecutor’s comments in closing argument even in the absence of an objection at trial by the defendant. See, State v. Rochon, 98-717, pp. 5, 9 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, 628, 630. Accordingly, we will address the prosecutor’s comments.

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 is not 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, pp. 17-18 (La.4/14/99), 750 So.2d 832, 846; State v. Rochon, supra, at 630. Further, a prosecutor retains “considerable latitude” when making closing arguments. State v. Snyder, supra, quoting, State v. Taylor, 93-2201, p. 19 (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 the present case, the defendant admitted on direct examination that he had previously pled guilty to possession of cocaine in 1997. In closing argument, the defense sought to bolster the defendant’s credibility by pointing out that he had admitted his guilt in the prior conviction:

And, you know, when Paul Fernandez first testified, what did I ask him? First thing I asked him, didn’t you plead guilty to possession of cocaine? So the last time he was in court, he came in and told the judge he was guilty. This time he’s telling you he’s not guilty because he’s not guilty.

According to LSA-C.E. art. 609.1, a defendant’s credibility may be tested with evidence of prior convictions when a defendant chooses to testify. See, State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99. Accord, State v. Smothers, 02-277, p. 14 (La.App. 5 Cir. 12/30/02), 836 So.2d 559, 568, writ denied, 03-447 (La.10/13/03), 855 So.2d 329. In State v. Davis, 02-2059 (La.App. 4 Cir. 1/22/03), 839 So.2d 176, the court held the prosecutor’s reference to the defendant’s prior convictions during closing argument was proper, when the defendant testified on his own behalf at trial and admitted his prior convictions at that time.

In this case, the defense invited the jury-in closing arguments to infer that the defendant was telling the truth because he had previously admitted his guilt when|7he pled guilty to possession of cocaine. The prosecutor’s comment about the defendant’s prior conviction in rebuttal was in response to those remarks.

Even if the prosecutor’s comment that the defendant was a “man who has learned to lie” was improper, it does not appear that the remark was so inflammatory or prejudicial as to necessitate reversal. In State v. Burge, 515 So.2d 494, 505 (La.App. 1 Cir.1987), writ denied, 532 So.2d 112 (La.1988), the court held that the implicit characterization of defendant as “scum” by the prosecutor in closing argument, while inadvisable, was not so overwhelmingly inflammatory and prejudicial as to require reversal of the defendant’s conviction. The Louisiana Supreme Court has recognized that “much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” See, State v. Martin, 93-285, p. 18 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995). Here, the trial judge instructed the jury that the opening statements and closing arguments of the attorneys were not to be considered as evidence.

Considering the prosecutor’s remarks in context, we find that the bulk of the remarks were in response to the defense’s closing argument. Further, based on the jurisprudence, the references to the defendant as a “man who has learned to lie” were not so inflammatory as to warrant reversal.

Thus, we find the prosecutor’s remarks were proper and we affirm the defendant’s conviction of sexual battery.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends that his attorney was ineffective in failing to object to the prosecutor’s remarks and to move for a mistrial thereafter. The State responds that the defendant was not prejudiced by his attorney’s inaction because the prosecutor’s remarks were proper.

|sAlthough claims of ineffective assistance of counsel are more appropriately addressed through an application for post conviction relief, it appears that this allegation may be readily addressed, since the record contains sufficient evidence to decide the claims. See, State v. Snavely, 99-1223, p. 14 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, 959, unit denied, 00-1439 (La.2/16/01), 785 So.2d 840.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. To show prejudice as required in order to establish ineffective assistance of counsel, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Snavely, supra. A defendant is not entitled to a perfect trial, only a fair one. See, State v. Strickland, 94-25, p. 52 (La.11/1/96), 683 So.2d 218, 239, citing Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968).

Based on our finding, in Assignment of Error Number One that the prosecutor’s remarks were proper, we find that the defendant’s attorney was not deficient in failing to object and failing to move for a mistrial during the prosecutor’s rebuttal.

ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR

In his third assignment, the defendant contends that the trial judge should have declared a mistrial even though defendant did not object to the prosecutor’s remarks in closing. In his fourth assignment, the defendant also asserts that the trial judge had a duty to instruct the jury that they could not find defendant guilty merely because he had a conviction for possession of cocaine.

| aThe defendant does not discuss assignment number three in his brief. As for assignment number four, defendant includes two sentences that restate the assigned error, but his brief contains no legal authority for his position. According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Inzina, 31,439, p. 19 (La.App. 2 Cir. 12/9/98), 728 So.2d 458, 469. In State v. Bell, 00-1084, p. 6 (La.App. 5 Cir. 2/28/01), 781 So.2d 843, 848, writ denied, 01-776 (La.4/26/02), 813 So.2d 1098, this Court held that the defendant’s assignment was abandoned because it was not briefed.

Considering that the defendant merely asserts his position, but fails to include argument or any legal citation in support of the position, we conclude that he has not briefed this position. Thus, it appears that the defendant’s assertion presents nothing for our review.

Based on the foregoing, we find that assignments of error numbers three and four have been abandoned.

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). Two matters are presented for review.

First, it is unclear whether the trial judge gave the defendant notice of the registration requirements for sex offenders as required by LSA-R.S. 15:543(A). Although the minute entry states that the “[defendant is to report as a sex offender,” the transcript reflects that the trial judge did not specifically tell the defendant to do so. Generally, when there is a discrepancy between the minutes |inand the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

LSA-R.S. 15:542 requires that all persons convicted of a sex offense must register with the sheriff of the parish where the person resides. LSA-R.S. 15:543(A) requires the trial court to provide written notification of the registration requirements to the defendant upon judgment and sentencing. This Court has recognized the failure of the trial court to give the notice as an error patent. State v. Stevenson, 00-1296, p. 4 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-1167. In Stevenson, this Court remanded the matter and ordered the trial court to inform defendant of the registration requirements of LSA-R.S. 15:542 by sending written notification to the defendant within ten days of the opinion and to file written proof in the record that defendant received such notice.

Immediately before imposing sentence in the present case, the trial judge stated that “[t]he Court also wants Mr. Fernandez to make sure he’s aware of the reporting requirements that are applicable in his case with reference to this conviction. Are you aware of those?” The defendant’s attorney replied, “When he was discharged, yes, that’s correct.” We find that this exchange indicates that the defendant was aware of the registration requirements for sex offenders, and we further find that no remedial action is necessary.

Second, the trial judge failed to advise the defendant of the prescriptive period for filing post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. Therefore, we remand this matter and instruct the trial court to send appropriate written notice to the defendant of the prescriptive period for post-conviction relief, and to file written proof in the record that the defendant received the notice within ten days of the rendering of the opinion. State v. Stelly, 98-578 (La.App. 5 Cir. 12/16/98), 725 So.2d 562.

_JjjIn accordance with the above, we affirm the defendant’s conviction of sexual battery and remand the matter with instructions as discussed above.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . As provided by LSA-R.S. 46:1844(W), the sex crime victim is identified by her initials.


text:
    STATE of Louisiana v. Arvel H. GURGANUS, III.
    No. 03-KA-992.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, William C. Credo, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

The defendant, Arvel Gurganus, III, was indicted on charges of second degree murder. Following a trial before a judge, he was found guilty as charged and sentenced to life in prison. He has appealed his conviction. For the following reasons, we affirm.

FACTS

John Alexander testified that, on the afternoon of Saturday, November 25, 2000, he and Rashaan White were working at Rashaan White’s barber shop, Divine Creations, on Pollock Street in Kenner. As the two men stood in the shop’s doorway conversing, a white van being driven by a white male, entered a parking lot adjacent to the shop.

John Alexander testified that several drug dealers, who were loitering in the area approached the van with the intention of selling narcotics to its occupants. A slim black man exited the van and said, “Mother-f* * * *r, lay it down.” The man |3fired a .9 mm handgun, and a large group of panicked bystanders attempted to get into the shop. Another black man, whom John Alexander recognized as David Williams, exited the van and fired an AK-47 assault rifle. John Alexander concealed himself in some bushes outside the shop. A short time later, John Alexander saw the van leave the scene. The white man was driving, and the slim black man was in the front passenger seat. David Williams was in the back of the van. John Alexander testified that the driver stayed inside the van during the incident and watched. John Alexander was only able to identify the driver as a white male. John Alexander testified that the men acted as if they were committing a robbery.

John Alexander explained that after the van fled, he went inside the shop and saw Rashaan White lying on the floor, with a gunshot wound to his head. John Alexander testified that it looked as if someone had taken items from Rashaan White’s person, specifically stating that Rashaan White’s wedding ring and some of his money were missing.

Detective Michael Cunningham of the Kenner Police Department testified at trial that he arrived at Divine Creations Barber Shop forty minutes after the shooting. Rashaan White had sustained a bullet wound to the head, and one under his left eye. Approximately thirteen .40 caliber and AK-47 bullet casings were found on the ground outside of the barber shop.

Detective Cunningham testified that witnesses reported that there were three perpetrators. The driver of the van was a white male, and the two gunmen were black males. Detective Cunningham testified that Floyd Bell, who was injured in this incident and other witnesses named David Williams as one of the gunmen.

|4On the day following the murder, Detective Cunningham interviewed David Williams’ family at their residence in Mar-rero. He learned that defendant, Arvel Gurganus, was the white man involved in the incident. Detective Cunningham obtained arrest warrants for David Williams and defendant, Arvel Gurganus, III.

Detective Cunningham obtained information that the Arvel Gurganus was in Alabama. Arvel Gurganus was arrested in that State. After Arvel Gurganus waived extradition, Detective Cunningham and another officer drove to Bayou Labatre, Alabama, and transported Arvel Gurganus to the police complex in Kenner.

Detective Cunningham testified that when they returned to Kenner, he informed Arvel Gurganus of the charges against him, and advised him that his girlfriend and others had identified him as one of the perpetrators. Arvel Gurganus began to tell the officer about the incident. Detective Cunningham stopped Arvel Gur-ganus and orally advised him of his rights. Detective Cunningham questioned Arvel Gurganus about the shootings, and Arvel Gurganus gave him an address that Detective Cunningham matched to Darnell Turner. Detective Cunningham showed Arvel Gurganus a photographic lineup, and Arvel Gurganus identified Darnell Turner as the second gunman.

Detective Cunningham again advised Arvel Gurganus of his rights, this time using a Waiver of Rights form. Arvel Gurganus indicated that he understood his rights, that he wished to waive them, and signed a Waiver of Rights form. Arvel Gurganus then gave a tape recorded statement. The taped interview was played at trial, and a transcript of it was admitted in evidence.

During the interview, Arvel Gurganus said he lived at times with his girlfriend, Nina, at the Ridgefield Apartments in Marrero. He explained that he |sknew David Williams, one of Nina’s neighbors. Arvel Gurganus admitted he was with David Williams on November 25, 2000, at the time of the murder. Arvel Gurganus said he stole a van that morning, and picked up David Williams. The two rode around in the van and talked. Arvel Gur-ganus stated that David Williams told him he needed money, and that he wanted to obtain it by committing a robbery.

Later in the day, the two men then went to a house on Destrehan Avenue, where they located a young man named Marvin. Arvel Gurganus stated that Marvin, was the brother of the second shooter, later identified as Darnell Turner. Arvel Gur-ganus and David Williams left the house, and returned later in the afternoon. At that time, Darnell Turner exited the house and entered the van. Arvel Gurganus explained that Darnell Turner was walking strangely; that he kept one of his legs straight.

In his statement, Arvel Gurganus stated that David Williams told Darnell Turner about a “lick,” or robbery, that he wanted to commit in Kenner. Arvel Gurganus, David Williams, and Darnell Turner departed in the van. Arvel Gurganus told the detective he thought they were simply going to Kenner to meet with someone about committing a robbery. Once in Kenner, the men drove to a Conoco filling station. A barber shop was next to the filling station. David Williams exited the van at the filling station, with the intention of meeting someone. He returned to the van and said the person he was looking for was not there. Arvel Gurganus stated that David Williams told him to drive up and down nearby streets, as he was looking for someone. Arvel Gurganus stated that they eventually returned to the filling station, where the two passengers told him to stop the van. Arvel Gurganus stated that David Williams and Darnell Turner instructed him to park in back of a particular car. There were people inside the car.

IfiArvel Gurganus stated that he looked at Darnell Turner, who was sitting in the back of the van and saw that Darnell Turner had an assault rifle. Darnell Turner exited the van, and David Williams followed. Arvel Gurganus did not see David Williams in possession of a gun when he left the van. Arvel Gurganus stated that he lay down inside the van and heard a great deal of gunfire, but did not see what was happening.

Arvel Gurganus stated that when the gunfire stopped David Williams and Darnell Turner got back into the van. Arvel Gurganus explained that he noted for the first time that David Williams was carrying a semi-automatic handgun. Arvel Gur-ganus stated that he drove away from the scene. The van broke down on Interstate 10 and burst into flames. Arvel Gurganus explained that Darnell Turner put the assault rifle near a dumpster next to a convenience store as they continued on foot towards the Galleria office building in Me-tairie.

Arvel Gurganus explained that the men parted ways after seeing a police officer. Arvel Gurganus watched a movie, then called his father, who drove him home. Arvel Gurganus stated that he told his girlfriend and a friend named Ivan Kellup about the incident. Arvel Gurganus stated that his father drove him to Alabama on Monday, November 27, 2000.

ASSIGNMENT OF ERROR NUMBER ONE

In his First Assignment of Error, Arvel Gurganus contends that the evidence was insufficient to support the conviction. Specifically, Arvel Gurganus argues the State failed to prove he had the requisite knowledge or intent to support his conviction as a principal to second degree murder.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier |7of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

The State based its case at trial on the theory that Rashaan White was killed during the commission of an armed robbery or attempted armed robbery, and that Arvel Gurganus was a principal to that robbery. Second degree murder is defined by LSA-R.S. 14:30.1(A)(1) as the killing of a human being where the offender is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including armed robbery. One need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. State v. Hayes, 01-736, p. 11 (La. App. 5 Cir. 12/26/01), 806 So.2d 816, 823, writ denied, 02-0263 (La.10/25/02), 827 So.2d 1169, reconsideration denied, 2002-0263 (La.5/16/03), 843 So.2d 1119. 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. LSA-R.S. 14:64. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid or abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24.

Arvel Gurganus contends the State failed to prove that he was involved in the shooting incident to such an extent that he was a principal to the murder. We find that there is a great deal of evidence to the contrary. The inquiry here is whether the State proved that Arvel Gurganus was aware of David Williams’ and Darnell Turner’s intention to commit a robbery. During his recorded interview, Arvel Gur-ganus stated that David Williams told him on the morning of November | «25, 2000 that he wanted to commit “[s]ome kind of robbery or something” in order to obtain money.

When Arvel Gurganus and David Williams met with Darnell Turner, David Williams said there was someone in Ken-ner with whom he wanted to meet in order to discuss a robbery. Arvel Gurganus drove the men to Kenner so that they could locate that person. When Detective Cunningham asked Arvel Gurganus whether he thought David Williams was going to commit a robbery, Arvel Gurganus responded, “I — I thought he was gonna talk to ‘em about it.”

According to Arvel Gurganus, he drove David Williams and Darnell Turner around the neighborhood where the shootings took place stating that he believed David Williams was searching for the person with whom he wanted to discuss committing a robbery. Although Arvel Gurganus denied having seen Darnell Turner’s AK-47 until Darnell Turner was preparing to exit the van, the trial judge inferred that Arvel Gurganus could tell Darnell Turner had the rifle hidden in his trousers when he saw him walking straight-legged. When David Williams exited the van along with Darnell Turner, Arvel Gurganus did not attempt to leave the area. Instead, he lay down inside the vehicle when he heard several shots fired. After waiting for Darnell Turner and David Williams to return Arvel Gurganus drove them from the scene. Arvel Gurganus never alerted police rather, he fled to Alabama.

In State v. Hayes, supra, this Court found that the evidence was sufficient to support the defendant’s conviction for second degree murder committed in the course of an attempted armed robbery, despite the fact that defendant was not the shooter. This Court noted that the defendant was aware of his co-perpetrator’s intention to commit an armed robbery. The defendant admitted to having been at the scene. He waited in a car around the corner from the store where the murder was committed, ready to drive away from the scene after the co-perpetrator jumped lain through the passenger window. Moreover, the defendant did not attempt to call police to report the shooting.

Likewise, in State v. Hill, 98-1087 (La. App. 5 Cir. 8/31/99), 742 So.2d 690, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147, this Court affirmed defendant’s second degree murder conviction where the victim was killed by the defendant’s accomplice during an armed robbery. This Court noted that defendant was at the murder scene, and he knew that his companion planned to rob the victim. He nevertheless chose to remain with the co-perpetrator. Moreover, the defendant did nothing to prevent the crime, or to come to the victim’s aid after the shooting. Instead, he fled the scene.

In the present case, at the conclusion of the trial, the trial judge stated:

I believe that it is uncontroverted that Mr. Gurganus was in fact the driver of that vehicle, and I find it inconceivable that after discussing a robbery several times with the other perpetrators, that he could not have known that he was participating in an actual attempted robbery at some point, prior to that event taking place.
I find it further inconceivable that at no time did Mr. Gurganus, prior to these two individuals exiting that vehicle, know that one was armed with an AK 47 assault rifle, and the other sitting next to him, was armed with a .9 millimeter hand gun. After riding around for a period of time, he had to have knowledge that these individuals were armed. Particularly with regard to the AK 47 assault rifle, he testified in his — or he stated in the recorded statement given to Detective Cunningham, that he observed the individual walking funny, as if to imply that this rifle might have been stuffed down the pant leg of that individual.
However, if that did in fact occur, that individual had to have a clip, or a magazine, which is rather large, and would have to have been inserted into that weapon at some point. If that individual was riding in the van, along with Mr. Gurganus and the other individual, either he would have loaded that gun with the magazine, and it would have become very obvious, or, he would have entered the vehicle with the assault rifle in his hands, or carrying it, rather than having been stuffed in an individual’s pants, while loaded.
I also find it inconceivable that the individual seated next to Mr. Gurganus, while they are riding around, discussing a robbery, would not have been observed to have been in possession of the .9 millimeter handgun.

We find that there was sufficient evidence for the trial court to conclude that Arvel Gurganus knew his companions were armed and intended to commit a | ^robbery. It is evident from Arvel Gur-ganus’s statement that he was with David Williams and Darnell Turner for several hours prior to the murder and that a robbery was mentioned several times. Furthermore, Arvel Gurganus admitted in his statement that he waited for the co-perpetrators at the scene and helped them to escape. He did not attempt to call police or aid the victim. Instead, he fled to another State. Additionally, the eye witness, John Alexander, repeatedly stated that it was David Williams, whom he recognized, that had the assault rifle, and the other shooter had the handgun. It is reasonable to infer that if Darnell Turner brought the assault rifle into the vehicle, at some point David Williams took possession of the rifle while in the vehicle. It would be inconceivable that Arvel Gurganus was unaware of the transfer of a gun of this size. Based on all of the evidence presented, we find that the State sufficiently proved Arvel Gurganus was a principal to Rashaan White’s murder.

ASSIGNMENT OF ERROR NUMBER TWO

In his Second Assignment of Error, Arvel Gurganus argues that the trial court erred in failing to suppress the recorded statement given to Detective Cunningham. Specifically, Arvel Gurganus contends that his statement was not voluntarily made, as he was induced to answer questions by the detective’s offer of a seven-year sentence. Arvel Gurganus further argues that the detective made comments designed to elicit information from him before he was advised of his Miranda rights. Arvel Gurganus alleges that Detective Cunningham’s credibility was called into question when he testified for the first time at trial that he conducted a “pre-interview” with Arvel Gurganus before he took the recorded statement. Arvel Gurganus argues that Detective Cunningham’s credibility was further damaged by discrepancies between the detective’s testimony and that of a defense witness.

_j_yBefore a confession or inculpatory statement can be admitted in evidence, it must be established that the accused who has made the statement under custodial interrogation was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Thucos, 390 So.2d 1281, 1284 (La.1980).

A determination as to voluntariness is made on a case-by-ease basis, with regard to the facts and circumstances of each case. State v. Murray, 00-1380, p. 5 (La.App. 5 Cir. 2/28/01), 782 So.2d 132, 135, writs denied, 01-1026 (La.2/22/02), 810 So.2d 1137, and 01-1854 (La.3/28/02), 812 So.2d 650. The admissibility of a confession or statement is a question for the trial judge, and his conclusions as to the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id. In reviewing the trial court’s ruling, the court of appeal may consider evidence presented both at the hearing on the Motion to Suppress and at trial. State v. Fisher, 97-1133, p. 4 (La.9/9/98), 720 So.2d 1179, 1182.

The hearing on Arvel Gurganus’s Motion to Suppress Confession was held on January 7, 2003, immediately prior to the bench trial. Detective Michael Cunningham testified that, on December 8, 2000, he and Officer George Hoffman traveled to Bayou Labatre in Alabama, where Arvel Gurga-nus had already been placed under arrest. Detective Cunningham testified that he asked Arvel Gurganus whether he understood the charges against him, and he responded that he did. Detective Cunningham testified that he did not question Arvel Gurganus about the murder while in Alabama, or during the drive back to Ken-ner.

Detective Cunningham testified that he advised Arvel Gurganus of his Miranda rights before questioning him after they arrived in Kenner. The detective 1 ^explained that he reviewed a Waiver of Rights form with Arvel Gurganus and he signed it, indicating that he understood his rights and he wished to waive them and give a statement. Detective Cunningham testified that the advisal of rights was not tape recorded. Detective Cunningham explained that prior to beginning the interview, he informed Arvel Gurganus that several people (including relatives of a co-perpetrator, his girlfriend, and his friend, Ivan Kellup) had identified him as having been involved in the murder and then he agreed to give a statement. Detective Cunningham testified that no promises or threats were made to induce Arvel Gurga-nus to give a statement. Detective Cunningham testified that at no time during the interview did Arvel Gurganus ask him to stop questioning.

Arvel Gurganus testified at the motion hearing that Detective Cunningham and Officer Hoffman spoke to him at length about the murder investigation during the trip from Alabama to Kenner. According to Arvel Gurganus, he was not advised of his rights during that time. Arvel Gurga-nus testified that Detective Cunningham attempted to induce him to respond to various comments and questions by telling him that if he did not cooperate, he would make sure he received the death penalty.

Arvel Gurganus further testified that once they were at the police station, Detective Cunningham promised him a seven-year sentence if he would cooperate in the investigation. Arvel Gurganus testified that he asked that a lawyer or an Assistant District Attorney be present to verify that such a deal was forthcoming. Arvel Gur-ganus testified that he signed the Waiver of Rights form voluntarily, and freely agreed to make a statement because he wanted to make it known that he was not the shooter; only the driver.

In his rebuttal testimony at the motion hearing, Detective Cunningham reiterated that nothing was offered to Arvel Gurga-nus in exchange for his | ^statement, specifically denying any discussion of a seven-year deal. Detective Cunningham denied that Arvel Gurganus asked that an Assistant District Attorney be present during questioning. At the conclusion of the motion hearing, the trial judge ruled that Arvel Gurganus’s statement was knowing and voluntary, and denied the Motion to Suppress.

During his trial testimony, on cross-examination, Detective Cunningham recalled that he had questioned Arvel Gurganus and had shown him a photographic line-up prior to the recorded statement; something he had failed to recall until he heard the tape of the interview at the motion hearing. Detective Cunningham explained that he questioned Arvel Gurganus briefly before advising him of his Miranda rights in an attempt to identify the third perpetrator. Detective Cunningham testified that when Arvel Gurganus began to discuss the incident, the detective stopped him and advised him of his rights.

Following Detective Cunningham’s trial testimony, defense counsel moved the court to re-open the suppression hearing, arguing that the new information elicited from Detective Cunningham would have made a difference in the judge’s ruling. The court agreed to hear additional testimony regarding the Motion to Suppress.

At the re-opened suppression hearing, Arvel Gurganus testified that Detective Cunningham had asked him a number of questions before advising him of his rights. Arvel Gurganus testified that Detective Cunningham told him that his girlfriend gave a statement implicating him in this crime. Arvel Gurganus testified that Detective Cunningham played a portion of his girlfriend’s taped statement. Arvel Gur-ganus further testified that the details about the crime he discussed with Detective Cunningham prior to the advisal of rights were the same as those included in the recorded interview. At the conclusion of the re-opened | uMotion to Suppress, the trial judge again found the recorded statement was made freely and voluntarily, and that Arvel Gurganus had executed a valid Waiver of Rights. In his second ruling on Arvel Gurganus’s motion, the judge said, in part:

I did not find that this [statement] was not voluntary on the part of the defendant, and I am inclined to grant more credibility to Detective Cunningham and his testimony, that he did in fact advise the defendant of his rights, relative to discussing whatever matters they may have discussed prior to the recorded statement being taken.

Arvel Gurganus’s argument regarding the trial court’s denial of his Motion to Suppress centers on the conflicting testimony of Arvel Gurganus and Detective Cunningham. The trial court’s denial of the Motion to Suppress is supported by the record. Detective Cunningham testified that prior to advising Arvel Gurganus of his rights, he told him that several people had implicated him in this crime. Detective Cunningham testified that when Arvel Gurganus began to make statements regarding the crime, he stopped him, orally informed him of his rights, and then proceeded to speak to him about his involvement in the crime. Detective Cunningham repeatedly denied offering Arvel Gurganus anything in return for giving a statement. The trial judge clearly made a credibility determination, stating that he credited the testimony of Detective Cunningham over that of Arvel Gurganus. The credibility of witnesses at a suppression hearing is within the discretion of the trier of fact, who may accept, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Calvert, 01-826, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084. Given this long standing rule of law, we find that the trial court did not abuse its broad discretion in denying Arvel Gurganus’s Motion to Suppress.

\1f,ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (LaApp. 5 Cir.1990). The review reveals one patent error.

LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence become final” within which to file a post-conviction relief application. At the time of sentencing, the judge simply informed defendant, “[Y]ou have two years to seek post-conviction relief.” Based on the transcript, the judge’s advisal was incomplete. The commitment indicates, “The Court informed the Defendant he/she has ... two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” The commitment reflects a proper advisal under Article 930.8. However, where the transcript conflicts with the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Accordingly, this matter is remanded and the district court is ordered to inform Arvel Gurganus of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of the Court’s opinion, and to file written proof of such notice in the record. See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

For the foregoing reasons, Arvel Gurga-nus’s conviction is affirmed. This matter is remanded for the limited purpose of correctly informing Arvel Gurganus of the time period for seeking post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . At trial, the parties entered into a stipulation that, if Dr. Glen Rudner were to testify, he would be qualified as an expert in forensic pathology. He would testify that he performed an autopsy on Rashaan White’s body, and determined the cause of death to be two penetrating wounds to the right maxilla and right peripheral scalp, with cranial penetration. The doctor named homicide as the cause of death.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In his brief, Arvel Gurganus does not dispute that a robbeiy or attempted robbery occurred.

      . The record shows that the form was introduced in evidence as Defense Exhibit 1. The exhibit is missing from the record, and notes from the district court indicate its whereabouts are unknown.

      . The judge advised the parties that he would not consider the additional motion hearing testimony as part of the trial evidence.