author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Gary WILSON.
    No. 2006-KA-1421.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On November 19, 2004 the State charged Gary Wilson with three counts of simple burglary of an inhabited dwelling. He pled not guilty to all charges at his arraignment on November 23, 2004. On March 15, 2005 he elected to be tried by the court alone, and at the end of trial on that date the court found him not guilty as to two counts and guilty of unauthorized entry of an inhabited dwelling as to the third count. The court sentenced him on April 21 to serve six years at hard labor concurrently with the sentence in case #454-055 wherein Wilson pled guilty to one count of stalking and received a one-year sentence at hard labor. The State filed a multiple bill, alleging he was a fourth felony offender. The court took evidence on the bill on June 21 and again on July 12, 2005, and at the conclusion of the latter hearing the court found Wilson to be a fourth offender. The court vacated his original sentence and sentenced him to serve twenty years at hard labor. The court also granted his motion for appeal on that date.

I,FACTS

Gary Wilson was charged with three counts of simple burglary of his ex-girlfriend’s residence located at 2267 N. Pri-eur Street during a span of a little under two months. Ann Mack, Wilson’s ex-girlfriend, testified that her relationship with Wilson ended on July 15, 2004.

As to the single count upon which Mr. Wilson was convicted Ms. Mack testified that sometime between 4:30 and 5:00 a.m. on September 21, she awakened to the sound of someone outside her bedroom window. Ms. Mack stated that her younger daughter Montriel was sleeping with her in the bed at the time. Ms. Mack stated that she saw a shadow outside the window and then heard Wilson screaming and hollering, telling her that he could get to her anytime he wanted, just as he had gotten the gun and the other things taken from her house. Ms. Mack stated that she awakened her daughter, and as the window broke from outside, she and her daughter fled the room. Ms. Mack testified that she ran to the kitchen and had to pry wood from the broken door before she could get out of the house. She testified that her son, who was also in the house, exited, and the two of them ran around the corner. She stated that she then noticed that her daughter was not with them, and they went back to get her. They found Montriel in the bathroom. Ms. Mack stated that her purse was recovered the next day and her keys after that.

Ms. Mack testified that she could clearly hear Wilson when he was outside her bedroom window, and she insisted that she saw him for a brief second as he broke through the window before she fled the room. She admitted, however, that there were no witnesses to the earlier break-ins that occurred on August 8 and August 28.

|sMontriel Sayles testified that she is Ms. Mack’s daughter and that Wilson was her mother’s boyfriend. Montriel testified that she was asleep with her mother when she heard someone “bamming” on the window and heard Wilson curse her mother and say that he wanted his money. She testified that Wilson then broke the glass, and she and her mother fled the room. She testified that she hid in the bathroom, and soon thereafter she saw, through a crack in the bathroom door, Wilson walking through the house toward the back door. Montriel testified that she did not see Wilson take anything from the house.

Off. Carolyn Dalton investigated the September 21 break-in. She stated that Ms. Mack indicated that her purse and wallet had been taken from the headboard of her bed. Off. Dalton testified that these items were recovered about a block away from the residence. She stated that the crime lab dusted for fingerprints on both of these occasions, but she did not know if any prints were lifted or identified.

A. Errors Patent

A review of the record reveals there are no patent errors.

B. Assignments of Error

I.

By his first assignment of error, the appellant contends that there was insufficient evidence to support his conviction for unauthorized entry of an inhabited dwelling. Specifically, he argues that there was no evidence that he entered Ms. Mack’s house or that he did not have authorization to enter the house.

In State v. Brown, 03-0897 (La.4/12/05), p. 22, 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

|4When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 04-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

Here, although Wilson was charged with three counts of simple burglary of an inhabited dwelling, the court found him guilty of the responsive verdict to unauthorized entry of an inhabited dwelling on only the September 21 count. See La. C.Cr.P. art. 814(44.1). La. R.S. 14:62.3 prohibits “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” See State v. Nunnery, 04-1560 (La.App. 4 Cir. 12/8/04), 891 So.2d 67.

In Nunnery, the defendant, who had done work on the victim’s house, was found inside the house when the victim was not at home. The victim testified that although she had known the defendant for many years and had allowed him to sleep in the house when he was repairing it, she made it clear to him that he could not be in the house when she was not there. This court affirmed his unauthorized entry conviction, finding that the evidence showed he entered the house without the victim’s permission.

In State v. Coleman, 02-1000 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, the defendant and the victim had engaged in an on-again, off-again relationship wherein they lived together for a time. At the time of the offense, however, they were estranged, but the defendant still had some belongings in the residence. The ^defendant broke into the residence through a back window and raped the victim. The victim denied giving the defendant permission to enter the residence, while the defendant testified that the victim invited him inside, discussed their relationship with him for a few hours, and only became upset when their son came home. There was evidence that the defendant had been escorted from the residence on a prior occasion by the police, and that he was told that if he wanted to return to pick up any of his belongings, the police would accompany him. On appeal, this court found that there was sufficient evidence of unauthorized entry to support his La. R.S. 14:62.3 conviction.

In State v. Cojoe, 00-1856 (La.App. 4 Cir. 3/21/01), 785 So.2d 898, the defendant and the victim had lived in the victim’s house prior to their divorce and again for a time after the divorce. Some of the defendant’s belongings were still in the house. However, a few weeks before the offense the victim threw the defendant out of the house and changed the locks to keep him from entering. The defendant entered the house while the victim was out of town. This court affirmed his unauthorized entry conviction, noting that although the defendant had permission in the past to enter the house, the evidence that the victim subsequently made him leave and that she changed the locks proved that the defendant had no permission to enter on the date of the offense.

In Cojoe, this court discussed several other cases involving the consent issue. In State v. Woods, 526 So.2d 443 (La.App. 4 Cir.1988), the defendant and the victim were still married, but she had moved into another apartment with another man, and the apartment was in her and the other man’s names. This court rejected the defendant’s argument that the victim could not withhold permission for him to enter the apartment because she was using community funds to rent it. | r,This court found that the apartment was not a community dwelling which would have given him a proprietary interest in it. In State v. Monley, 557 So.2d 319 (La.App. 4 Cir. 1990), the defendant and the victim lived together before they married, but when the defendant moved out he gave his keys to the victim. The couple later married, but they did not live together after the marriage. Although the defendant was allowed to enter the residence to visit their children, the victim had told him not to visit late at night or early in the morning. One early morning he appeared, and when the victim would not let him inside, he broke in and raped the victim. On appeal, this court affirmed his aggravated burglary conviction (which required an unauthorized entry), finding that he did not have consent to enter the residence.

Likewise, in State v. Williams, 632 So.2d 351 (La.App. 1 Cir.1993), the residence in question was the victim’s separate property which she had owned prior to her marriage to the defendant. They lived in the residence during marriage, but when they broke up the defendant moved out and returned his keys. The defendant repeatedly broke into the house, even after the victim had changed the locks on the door, and each time the victim called the police, but the defendant left before the police arrived. The last time, the defendant raped and sexually assaulted the victim, and police officers caught him as he left the residence. The appellate court rejected his argument that he was authorized to enter the residence because he had lived there in the past, and it affirmed his aggravated burglary conviction.

This court found an unauthorized entry of the defendant’s grandmother’s house in State v. Peterson, 623 So.2d 919 (La.App. 4 Cir.1993), where the defendant claimed that because he was a one-eighth owner in the house from his grandfather’s succession, he was authorized to enter it. This court also rejected the | defendant’s argument that he had permission to enter because he had lived there until his grandmother asked him to move. In State v. Johnson, 29,269 (La.App. 2 Cir. 4/2/97), 691 So.2d 370, defendant’s mother repeatedly told him he did not have permission to enter the house. He entered while she was away and contended that his nephew admitted him to the house. The appellate court rejected his consent argument.

In State v. Spain, 99-1956 (La.App. 4 Cir. 3/15/00), 757 So.2d 879, the defendant and the victim engaged in an on-again, off-again relationship which produced a daughter. At the time of the offense, however, the couple had separated, and she and the daughter were living with another man. The defendant was allowed inside the victim’s house when he visited their daughter. On the date of the offense, the defendant opened the kitchen door, hit the victim with a hammer, and damaged the new boyfriend’s motorcycle that was parked in the kitchen. The victim fled; and the defendant ran into the living room, screaming and breaking an aquarium and a table before running out the front door. Although the victim admitted that she probably would not have called the police if the defendant had not been violent, she maintained that she did not give him permission to enter on that night. She insisted that her consent for him to enter was conditioned upon his good behavior, and she would not have let him inside given his behavior that night. This court found the defendant was not authorized to enter the residence. This court noted: “The relevant question is not whether defendant could generally enter the victim’s residence, but whether this particular entry was authorized.” Id., at p. 7, 757 So.2d at 884.

Here, the appellant argues: (1) there was no proof that he entered Ms. Mack’s house; (2) there was no proof that Ms. Mack owned or rented the |Rresidence; and (3) there was no evidence that his entry was non-consensual. With respect to the first argument, the appellant first argues that Ms. Mack’s testimony as to hearing him outside his window was suspect at best because each time someone broke into her house, she blamed him. He alludes to statements Ms. Mack allegedly made at trial concerning the recovery of her purse and keys after the break-in. However, there is no indication that Ms. Mack made most of these statements at trial. It is possible that she so testified at the earlier probable cause hearing, but that testimony was not made a part of the trial proceedings, and it cannot be considered in this appeal. The appellant also attempts to cast aspersions on her character, alleging that during the present offense she admitted she fled the house, leaving her children and grandchildren behind. This statement is incorrect in that Ms. Mack testified that she awakened her daughter before the appellant broke the window, got her out of the bed, and took her out of the bedroom. Ms. Mack also testified that she and her son fled the residence, and it was not until she was outside that she realized her daughter Montriel had not followed her and her son outside. At that point, they went back inside and found Montriel in the bathroom. In any event, even had Ms. Mack abandoned her children, this fact would not have negated the appellant’s entry into the residence.

He also argues that because Ms. Mack had such animosity for him, her testimony is suspect and could not support the judge’s verdict. However, the court, as factfinder, was able to view her demean- or and was able to assess her credibility. A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 00-1082, p. 33 (La.App. 4 Cir 2/6/02), 809 So.2d 1093, 1111; State v. Harris, 99-3147, p. 6 (La.App. 4 Cir. 95/31/00), 765 So.2d 432, 435. The evidence presented at trial does not show that the court abused its discretion by believing Ms. Mack.

Appellate counsel appears to confuse Ms. Mack’s son with her daughter. Counsel identifies Montriel as Ms. Mack’s son and argues at some length that while Ms. Mack originally testified that her daughter was in the bed with her when the appellant broke the window, she later substituted her “son” Montriel as the person who shared her bed that morning. However, Ms. Mack identified her daughter as Mon-triel, not her son. Thus, her testimony and that of her daughter is consistent.

In addition, Montriel testified that as she looked out the cracked bathroom door, she saw the appellant walking through the residence toward the kitchen door. Thus, Montriel’s testimony directly places the appellant inside the residence. Therefore, the State proved the element of an entry.

The appellant’s other two claims relate to whether he had the authority to enter the residence. He argues that there was no evidence adduced at trial to show that Ms. Mack either owned or rented the residence. It is true that the State did not present a title to the residence or a rental agreement, but Ms. Mack clearly testified that she and her children lived in the residence. He next argues that because her children lived in the residence with her, she was not the sole person who could have given him permission to enter, attempting to distinguish Nunnery. However, the situation here is similar to that in Nunnery in that in both cases the victim’s children also lived in the residence.

The appellant’s remaining claim is that because he lived in the residence before the three incidents involved in this case, he still had authority to enter. He alludes to the fact that he lived in the residence with Ms. Mack for eighteen months | inuntil they broke up and he moved out. Unfortunately, there was no testimony at trial about the appellant living in the residence at any time. The State’s reply brief references such testimony at the probable cause hearing, but as noted above this testimony was not incorporated into the trial. Thus, there was no evidence adduced at trial to show that the appellant formerly lived in the residence with the victim; Ms. Mack merely testified that she and the appellant broke up on July 15, 2004, which was less than a month before the first incident with which the appellant was charged.

The facts adduced at trial show that the appellant and Ms. Mack were involved in a relationship until a few weeks before the first incident alleged in the bill of information. There was no testimony at trial that Ms. Mack told him that he did not have permission to enter the residence, but there was also no testimony that he lived there at the time of the offense, much less any testimony that he ever lived in the residence. His method of entry, breaking a window in a bedroom very early in the morning, tends to show that he did not have permission to enter the residence.

The appellant argues that even if the trier of fact believed Montriel’s testimony concerning his entry, there was no showing of any intent to commit a felony or a theft once he entered the residence. See State v. Anderson, 343 So.2d 135 (La.1976). However, even though the appellant was charged with simple burglary of an inhabited dwelling, which requires such intent, the court found him guilty of only unauthorized entry, which does not have an such requirement.

The remaining cases cited by the appellant are either not applicable or distinguishable. In State v. Lockhart, 438 So.2d 1089 (La.1983), an aggravated burglary case, the victim was the defendant’s distant cousin, and she let him in her Inresidence. In State v. Lozier, 375 So.2d 1333 (La.1979), the defendant posed as a policeman to gain entry into the victim’s house. In State v. Dunn, 263 La. 58, 267 So.2d 193 (1972), the defendant was found inside a public building during business hours. In State v. Marcello, 385 So.2d 244 (La.1980), where the defendant entered a public building after hours, the Court addressed the issue of the defendant’s specific intent to commit a felony after he entered. The Court also discussed the specific intent to commit a felony or a theft in State v. Jones, 426 So.2d 1323 (La.1983). State v. Cotton, 341 So.2d 362 (La.1976) addressed a double jeopardy issue, while State v. Searle, 339 So.2d 1194 (La.1976) involved the presumption that a person caught with recently stolen goods probably stole the goods.

Here, the State established that the appellant entered the victim’s home very early in the morning by breaking a window in a bedroom. Although Ms. Mack testified that she had ended her relationship with the appellant a few weeks before the first burglary, there was no testimony adduced at trial that the appellant ever lived in the residence. Given the circumstances of the case, as compared to those in the cases cited above, we find that there was sufficient evidence for the trial court to find that the appellant entered the victim’s house without authority. This assignment of error has no merit.

_bH.

By his second assignment of error, the appellant raises several claims concerning his multiple offender adjudication. He attacks the procedure for filing the multiple bill and the procedure used to find him to be a quadruple offender. He then attacks the sufficiency of the evidence the State presented to prove the allegations in the bill.

With respect to the filing of the multiple bill, the appellant argues that because he was exposed to a life sentence as a fourth offender, the charge as a fourth offender should have been brought by indictment through a grand jury. However, this claim has been rejected by this court. In State v. Smith, 05-0375, p. 3 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 838, this court stated:

The defendant contends that under La. Const. Art. 1, Section 15 and La.C.Cr.P. article 382, the State should have sought a grand jury indictment on the issue of the multiple bill as he could have been sentenced to life imprisonment as a quadruple offender under the multiple bill. However, La. Const. Art. 1, Section 15 and La.C.Cr.P. article 382 applies only to substantive offenses, not to multiple bill proceedings. State v. Jolla, 337 So.2d 197 (La.1976); State v. Alexander, 325 So.2d 777 (La.1976); State v. Delandro, 2001-2514 (La.App. 2 Cir. 5/10/02), 818 So.2d 1011.

As per Smith and Alexander, cited in Smith, the State could bring these charges via a bill of information, even though he is exposed to a life sentence, because the allegations in the bill are not substantive charges but instead are merely prior convictions to be used to enhance his sentence. See also State v. Jackson, 05-1281 (La.App. 4 Cir. 11/29/06), 947 So.2d 115. This claim has no merit.

The appellant also argues that his multiple bill adjudication is invalid because the court itself heard the matter and adjudicated him a multiple offender. He argues that he was entitled to a jury trial on the multiple bill. In support, he Incites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). However, this claim was also rejected in Smith, where this court stated:

The defendant also argues that he was entitled to a jury trial on the issue of his multiple offender status. He suggests that the multiple offender statute violates the Fourteenth and the Sixth Amendments to the U.S. Constitution because the statute allows a sentence to be increased beyond the statutory maximum without requiring the fact of the prior convictions to be submitted to the jury and proved beyond a reasonable doubt. The defendant relies upon the recent United States Supreme Court case of Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in which the Court held that a sentencing court cannot look to police reports in making “generic burglary” decisions under the Armed Career Criminal Act. In its opinion, the Court noted that the issue raised
The concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of a state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi to say that Almendarez-Torres[ v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ] clearly authorizes a to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality, see Jones, supra, at 239, 119 S.Ct. 1215, therefore counsels us to limit the scope of judicial factfind-ing on the disputed generic character of a prior plea, just as Taylor[ v. U.S., 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ] constrained judicial findings about the generic implication of a jury’s verdict.
We hold that enquiry under the ACCA to determine whether a plea of guilty to 114burglary defined by a non-generic statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Shepard, 125 S.Ct. at 1262-1263.
The defendant contends that the Shepard, along with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that there be a jury trial on the issues of identity, ten year lapse, whether the predicate offenses occurred before the present offense, and whether the predicate offense fit the enumerated aggravating convictions. In Apprendi, the U.S. Supreme Court stated that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435. This rule was recently reiterated by the U.S. Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States Supreme Court clearly made an exception for pri- or convictions. Thus, under Apprendi the defendant’s prior convictions were not required to be submitted to a jury. In addition, all the issues raised by the defendant concerning the predicate offenses can be determined by reviewing the documents submitted in support of the multiple bill of information. Defendant’s argument is without merit.

Smith, 05-0375 at pp. 3-5, 913 So.2d 836, 839-840. See also State v. Dozier, 06-0621 (La.App. 4 Cir. 12/20/06), 949 So.2d 502. This claim also has no merit.

The appellant next attacks the actual procedures used during the adjudication hearings. He argues that he was not given the documentation to support the multiple bill until the day of the hearings, and thus he was not afforded the | ^opportunity to file formal objections to the documentation. It must be noted that the State initially filed a multiple bill alleging three prior convictions: case # 347-4671, wherein the appellant pled guilty to forgery in February, 1992; #330-563H, wherein he pled guilty to possession of cocaine in December, 1988; and #303-838C, wherein he pled guilty to being a felon in possession of a firearm in October, 1984. At the first multiple bill hearing, the State noted that it could not obtain the necessary documentation for the 1984 pri- or conviction, and it proceeded on the other two offenses. The State also noted, however, that the appellant had other pri- or convictions, and it asked for additional time to obtain the documentation on those cases. The court agreed. The State then presented the documentation for the two later cases, and the matter was continued without any finding by the court on the sufficiency of the evidence thus far introduced. When the matter was taken up approximately three weeks later, the State substituted a new multiple bill listing the two later cases and a third case, #268-431C, wherein the defendant was found guilty as charged of illegal possession of stolen property in May, 1979. However, the defense did not file any objections to the documents presented at the earlier hearing with respect to the later two offenses. Thus, at least with respect to those two prior convictions, the defense had ample opportunity to file any objections, but it failed to do so.

In any event, this court rejected a similar claim in Dozier: “However, as noted in State v. Williams, 02-2189 (La.App. 4 Cir. 6/4/03), 849 So.2d 799, there is no requirement that the State submit its documentation to the defense prior to the multiple bill hearing. In addition, after pleading not guilty to the bill, the appellant did not object to the court immediately hearing the matter or ask for a continuance [1fiin order to allow him time to investigate the allegations.” Dozier, at p. 6, 949 So.2d at 505.

The appellant also points out that the trial court failed to file written reasons to support its finding that the appellant is a fourth offender as required by La. R.S. 15:529.1 D(3). However, as noted in Dozier, written reasons are not required if the court presents oral reasons to show that it had considered the State’s documents and found them to be sufficient to prove the prior convictions. See also State v. Sykes, 04-1199, pp. 9-10 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 163; State v. Prater, 99-0900, pp. 15-16 (La.App. 4 Cir. 4/26/00), 762 So.2d 82, 91-92. This claim also has no merit.

The appellant also argues that the State failed to prove the sufficiency of the proof of the multiple bill. First, he argues that the State failed to prove that the ten-year “cleansing period” of La. R.S. 15:529.1 had not elapsed between each of the prior convictions and the present conviction, thereby linking the offenses for multiple bill purposes. Initially, it must noted that it not clear that this claim has been preserved for appeal. The appellant did not file any written objections or in fact make any oral objection to the multiple bill on this basis. Indeed, with respect to the 1979 conviction, the defense conceded that a few months less than ten years elapsed between that conviction and the 1988 arrest for possession of cocaine. Without a written or an oral objection, the issue was not preserved. See State v. Anderson, 97-2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14; State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72.

The appellant next attacks the proof of his identity as the perpetrators of the prior offenses. He argues that the proof was insufficient because the State linked the identity through comparisons of fingerprints on arrest registers, not the bills of | ^information themselves. Again, however, there was no objection to the State’s proof of identity, and the issue is not preserved for review; In addition, with respect to two of the prior convictions, the State’s experts compared the fingerprints they took of the defendant on the day of the hearings to fingerprints found on the bill of information in the prior cases. In the other case, the State linked the information on the arrest register to the information contained in the certified packet from that case. Thus, even if the appellant had objected to the proof of identity, his claim would have no merit.

The appellant finally argues that the documentation as to the prior convictions is insufficient to support his quadruple offender adjudication because the State failed to show that the trial court in those three eases found that the pleas/convictions were constitutionally obtained. Again, the appellant failed to object on this basis, and the claim is not preserved. In addition, the State complied with the requirements set forth in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), where the Court discussed the burdens of proof in multiple bill proceedings:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. ■ If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, [footnote omitted] If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination | lsthereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ] rights.

Here, the State introduced the bills of information, the waiver of rights guilty plea forms for the two guilty pleas, the docket masters, and various minute entries to prove the existence of the prior convictions. The State met its burden, and the defense did not present any evidence to rebut this proof. This claim has no merit.

Finally, the appellant admits that there was no objection to much of his claims, but he argues that this court should recognize these errors as “plain error.” This court rejected an identical claim in Dozier:

By his final argument, the appellant appears to concede that no objections were made to any of these “errors.” Indeed, the transcript of the multiple bill adjudication and sentencing shows that the defense raised none of these objections; nor did the appellant file a motion to quash the multiple bill, even though the bill was not filed until six weeks after the appellant’s conviction. His motion for appeal does not allege any specific error as to the multiple bill or his adjudication. Although counsel notes that the appellant filed a pro se motion to reconsider sentence, his motion does not address the multiple bill adjudication. Ordinarily we would find that the above claims are not preserved. See State v. Wallace, 2003-0193 (La.App. 4 Cir. 11/26/03), 862 So.2d 286; State v. Washington, 98-0583 (La.App. 4 Cir. 11/17/99), 747 So.2d 1191. However, the appellant argues that these “errors” should nonetheless be recognized in the absence of any objection because they involve violations of his constitutional rights. As noted in the discussions above, none of the “errors” alleged by the appellant rise to a constitutional level. This claim also has no merit.

Dozier, at pp. 9-10, 949 So.2d at 507-08. As in Dozier, this claim has no merit.

In summation, none of the claims the appellant raises with respect to his multiple bill adjudication and the procedures used in the adjudication has merit.

_bIH-

By his final assignment, the appellant contends that the trial court imposed an excessive sentence. The court sentenced the appellant to serve twenty years at hard labor as a fourth offender, the minimum sentence he could have received. See La. R.S. 14:62.3; La. R.S. 15:529.1.

However, this assignment is not preserved for appeal. At the conclusion of the original sentencing hearing on April 21, 2005, the defense did not object to the six-year sentence. At the conclusion of the July 12, 2005 multiple bill hearing, the court adjudicated the appellant a fourth offender and sentenced him to serve twenty years at hard labor. Again, the defense did not object to the sentence; although trial counsel argued that it was “mean spirited” to charge him as fourth offender so that he was exposed to twenty years to life, there was no objection once the court imposed the sentence. Instead, counsel merely noted the appellant’s motion for appeal and asked that the Louisiana Appellate Project be appointed to represent the appellant for his appeal. In addition, there is no indication that the defense filed a motion to reconsider sentence in compliance with La.C.Cr.P. art. 881, which provides that a motion to reconsider sentence must be filed within thirty days of sentencing. This court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Rodriguez, 00-0519, p. 9 (La.App. 4 Cir. 2/14/01), 781 So.2d 640, 647; State v. Tyler, 98-1667 (La.App. 204 Cir. 11/24/99), 749 So.2d 767. The failure to object or file a motion to reconsider sentence in this case precludes this court from considering this claim.

For the reasons above we affirm the appellant’s conviction and his adjudication and twenty-year sentence as a fourth offender.

AFFIRMED.

      . The Court reversed the defendant's conviction and ordered him released because at the time of the offense, unauthorized entry was not a responsive verdict to attempted simple burglary. La.C.Cr.P. art. 814 was amended in 1982 (Acts 1982, No. 763) to add responsive verdicts to attempted simple burglary and again in 1985 to add responsive verdicts for simple burglary of an inhabited dwelling (Acts 1985, No. 799.

      . The appellant also cites State v. Hollingsworth, 337 So.2d 461 (La.1976) and State v. Brady, 414 So.2d 364 (La.1982) merely for the applicable sufficiency of evidence standard.

      . The thirty days in this case would have expired prior to Hurricane Katrina.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Quinton C. BROWN, Appellant.
    No. 41,883-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Charles Dean Jones, for Appellant,

      William Robert Coenen, District Attorney, Johnny R. Boothe, Penny Wise Douci-ere, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| ¶ This criminal appeal arises from the Fifth Judicial District Court, Parish of Franklin, State of Louisiana. The defendant, Quinton Brown, pled guilty to one count of second degree kidnapping and one count of carjacking. The trial court originally sentenced Brown to serve 25 years’ imprisonment for the second degree kidnapping and 15 years’ imprisonment for the carjacking, to be served concurrently. Later, the trial court granted Brown’s motion to reconsider sentence and reduced the second degree kidnapping sentence to 20 years (still to be served concurrently with the carjacking sentence). Brown now appeals, urging that his sentence is excessive. For the following reasons, we affirm the judgment of the trial court.

Facts

Quinton Brown was charged by bill of information along with two other men for the second degree kidnapping of three persons on April 12, 2002. The state also charged Brown with armed robbery, carjacking, aggravated assault, flight from an officer and speeding (103 m.p.h. in a 55 m.p.h. zone) out of the same incident; however, the formal charging instruments for these offenses do not appear in this appellate record.

On March 4, 2003, Brown appeared before the trial court and, pursuant to a plea bargain, pled guilty to the second degree kidnapping and carjacking charges, violations of La. R.S. 14:44.1 and 14:64.2, respectively. Under the terms of the plea bargain, the state agreed to dismiss all of the other charges against Brown, including the armed robbery charge, and ^further agreed that Brown’s sentences would be imposed concurrently. There was no other agreement as to the sentence Brown would receive. At the plea, Brown gave a sharply abbreviated description of the facts underlying the offenses, admitting that armed with a handgun he forced the victims into a car (not belonging to him) and drove them to a second location.

Original Sentencing

The matter came before the trial court for sentencing on April 22, 2003. At sentencing, the trial court reviewed the pre-sentence investigation report and the police reports, as well as gave a detailed account of the offenses. As described by the trial court, Brown and two other men, Devario Turner and David Slack, Jr., drove from Rayville to Winnsboro to find the victims. The kidnappers used subterfuge to induce Brad Foy, Janet Green, and Wendy Glasscock to go in Foy’s vehicle to another location. As shown in the record, Brown claimed he was previously victimized by having special wheels, commonly known as “rims,” stolen off his personal vehicle. The presence of these customized “rims” on the victim’s vehicle was the obvious catalyst of this crime.

Once all the parties reached the second location, Brown drew a pistol, pointed it at one female victim’s head and ordered that victim to move over so he (Brown) could enter the back seat of Foy’s vehicle. Once inside the vehicle, Brown pointed his pistol at Foy’s head and ordered Foy to turn off the car’s engine and get out. The trial court stated that Brown then forced Foy into the trunk of Foy’s own car and then drove the car to a third [ location while Turner held the two women in the car at gunpoint. Brown was obviously totally ad-renalized during the commission of this crime and the ordering of the victim into the trunk of his own vehicle. In his haste, Brown or his co-perpetrators neglected to check if the victim had anything on him. The victim, Foy, still had his cell phone on him and used it to call the sheriffs office to report the crime in progress. At that point the hunt for the vehicle and ensuing chase began.

When the car reached the third location, Brown and the other two men forced Foy out of the trunk; Turner pointed a gun at Foy and ordered Foy to surrender his money, which he did. According to the trial court, police reports show that Foy claimed that Brown urged Turner to shoot and kill the three victims, but that Turner refused. Brown and one of the other kidnappers drove away in Foy’s vehicle; the third kidnapper drove away in his own vehicle. Sheriffs deputies spotted Brown driving Foy’s vehicle and chased that car at speeds over 100 miles per hour. The chase concluded when Brown stopped the car — he and his accomplice ran from the scene. Brown escaped, but his accomplice was caught near the scene. Brown turned himself in to authorities the next day.

The trial court related statements from all three of the victims, who all said they were afraid that they were going to be murdered during the incident and that Brown was the one who was encouraging the others to kill the victims. The victims and the local law enforcement officers involved in the case all asked the trial court to impose either a substantial sentence or the maximum sentence. On the other hand, the trial court received 60 letters Ufrom members of the Rayville community all attesting to the good character of Brown and/or his family and asking for leniency. In addition, the trial court received a petition signed by 171 persons asking for the imposition of a lenient sentence.

The trial court noted that Brown, born in 1983 and a high-school graduate, had obtained a football scholarship to Southern University in Baton Rouge but only attended college for less than half of one semester before returning home to Ray-ville and committing these offenses one month later. The trial court further noted that Brown had two children by two different mothers, whom he has little or no contact with. The trial court stated that Brown had been employed as a guard at Richwood Detention Center at the. time of the offense, and he had no significant prior criminal history. The trial court observed that Brown had one previous misdemeanor conviction for disturbing the peace in 2000.

The trial court found that there was an undue risk that Brown would commit another crime if his sentence was suspended or he were put on probation and that he was in need of incarceration in a custodial environment. The trial court stated that a sentence less than what it would impose would deprecate the seriousness of the offense. The trial court also found that Brown’s conduct manifested deliberate cruelty to the victims because all three were made to fear for their lives despite a statement to the women that the kidnappers were only after Foy. Further, the trial court found that Brown knowingly created a risk of death or great bodily harm for the three victims and employed actual violence and a dangerous weapon in |Rthe commission of the offense. Also observed was that Brown, who was employed as a correctional officer, should have •known better than to commit these crimes and that he did not act under strong provocation. The trial court finally stated that imprisonment would not cause Brown or his family excessive hardship.

After reviewing these factors, Brown was sentenced to serve 25 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence for second degree kidnapping and 15 years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence for carjacking. The sentences were to be served concurrently in accordance with the plea agreement.

Motion to Reconsider Sentence

After sentencing, Brown made a verbal objection to the sentences, and subsequently filed a written motion to reconsider “the sentence imposed in this matter,” urging that the sentence was excessive and that the trial court did not give adequate weight to a variety of mitigating circumstances. The motion did not refer specifically to the sentence for either crime but treated both sentences together.

After several continuances, the trial court held a hearing on the motion on August 9, 2005. A cadre of prominent people appeared as witnesses and testified on Brown’s behalf. The witnesses included the pastors of two churches, the mayor of Rayville, two Rayville aldermen, and the Rayville Chief of Police. Both pastors knew Brown’s family and were of the opinion that a lesser sentence would allow Brown to have a positive | (¡impact on his family and to realize his potential. The mayor, Harry Lewis, testified that he had previously been the principal of Rayville High School and had known Brown all of the defendant’s life. Lewis said that he felt that Brown could become a productive citizen if the trial court would show him leniency. Alderman Terry Brown testified that he had been the former head football coach at Rayville High School and that he had watched Brown grow up through the school system. Terry Brown also said that he felt that Brown had learned his lesson and that he could become a productive citizen and a good role model for other students if the trial court were lenient with Brown. Alderman George Tennant testified that he had been the deputy sheriff to whom Brown had surrendered. He said that Brown had grown up with his daughter, Brown was very sorry for what he had done, and this was an isolated incident for Brown. Tennant said that he felt that Brown should have another chance. Ray-ville Police Chief Willie Robinson asked the trial court to reconsider its sentence for Brown and be more lenient. Robinson said that he had known Brown for a long time, he had talked with Brown on numerous occasions before this incident, and the trial court should consider leniency in Brown’s case.

Additionally, the trial court heard from Brown himself and his mother, who had been a librarian at the Richland Parish Library for over 20 years at the time of the hearing. Brown’s mother testified that she had raised her son by herself since he was four years old and that he, if released, would have both her and the community behind him to have the opportunity to become a better person and have a better life. Brown testified and said |7that he was sorry for what he had done and asked for the opportunity to go back to school and start his life over again.

Finally, the prosecutor spoke and opined that the trial court’s original sentence was appropriate given that Brown and the others deliberately planned and carried out these serious offenses.

The trial court took the matter under advisement to review the evidence and subsequently granted the motion to reconsider sentence, filing-written reasons for doing so. After extensively reviewing the facts and procedural history of the case, the trial court gave its reasons for reducing Brown’s sentence on the second degree kidnapping conviction from 25 years to 20 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The carjacking sentence remained the same. Later, the trial court formally resentenced Brown in accordance with its earlier reasons for judgment. Brown’s appeal ensued.

DISCUSSION

On appeal, Brown raises only one assignment of error, arguing that the sentence imposed is excessive. Specifically, Brown urges that the trial court failed to consider the Louisiana Sentencing Guidelines. However, Brown’s appeal counsel fails to note that the Louisiana Sentencing 8Guidelines were repealed by Acts 1995, No. 942, § 3, effective August 15, 1995, and La. C. Cr. P. art. 894.1 was amended and reenacted by Act 942 to provide the sentencing guidelines now in effect. State v. Martin, 40,150 (La.App. 2d Cir.09/21/05), 911 So.2d 917. The remainder of Brown’s argument is that his sentence is constitutionally excessive.

In the instant case, Brown’s plea bargain did not include any sentencing agreement except that the sentences were to be imposed concurrently. Second degree kidnapping, La. R.S. 14:41.1, carries the following penalty range:

C. "Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

Carjacking, La. R.S. 14:64.2, carries the following penalty range:

B. "Whoever commits the crime of carjacking shall be imprisoned at hard labor for not less than two years and for not more than twenty years, without benefit of parole, probation, or suspension of sentence.

Considering that it was agreed that Brown’s sentences would be served concurrently, he faced a maximum sentence of 40 years’ imprisonment at hard labor without benefit of parole — the maximum sentencing exposure for the second degree kidnapping conviction. After the trial court partially granted Brown’s motion to reconsider sentence, the 20-year term of imprisonment for second degree kidnapping was precisely in the middle of the sentencing range. The trial court was required by law to impose the |9entire carjacking sentence without benefit of parole and elected to impose that disability for the entirety of the second degree kidnapping sentence.

Our state constitution prohibits excessive punishment. La. Const, art. I, § 20 (1974). The test imposed by the reviewing court in determining the exeessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Gann, 40,058 (La.App. 2d Cir.09/21/05), 911 So.2d 384. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57, 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

|inA trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App. 2d Cir.12/13/06), 945 So.2d 267. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.05/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2d Cir.01/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.09/24/04), 882 So.2d 1165. The relevant question in reviewing a sentence is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Humphrey, 445 So.2d 1155 (La.1984).

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App. 2d Cir.04/02/97), 691 So.2d 864.

In At the time he committed this offense, Brown was a 19-year-old father of two without a significant criminal history. He had briefly been enrolled at Southern University on a football scholarship, which he abandoned to return to Rayville to work as a correctional officer in a detention facility. Although Brown had no prior felony offenses, during the course of the instant offenses he used a gun and threatened the lives of three people, one of whom was forced into the trunk of his car while Brown drove to a remote location. The evidence indicates that it was Brown who urged his co-perpetrator to kill the victims after robbing them — fortunately, his cohort did not heed his urging and spared their lives. The kidnapping terrified the victims, and the only justification offered by Brown for the offenses was that someone allegedly had stolen the wheels from Brown’s vehicle. After completing the kidnapping and carjacking, Brown then led sheriffs deputies on a very high speed chase over public roads. The entire episode from beginning to end posed an incredibly serious risk of harm to the victims and to the innocent and unknowing public at large.

The record reflects that the trial court carefully considered all of the relevant factors in La. C. Cr. P. art. 894.1, and the trial court’s reasons for imposing both the original sentences and the new sentence for kidnapping are unusually thorough and well-articulated. Brown received more than a significant benefit from his plea bargain with the dismissal of the armed robbery charge, and that circumstance often justifies a sentence at the upper end of the range for the offenses of conviction.

112The evidence submitted by Brown in favor of leniency as well as his youth and lack of significant criminal history clearly played a significant role in the trial court’s ultimate sentencing decision. However, we conclude that when considering the totality of the circumstances and evidence of this case, the imposed sentence is neither shocking nor the needless imposition of pain and suffering. Indeed, the trial court was extremely generous in both its original and reconsidered sentence.

As did the trial court, we find this case a troubling one. Notably, we agree with the conclusions drawn by the trial court, not only as they relate to Brown’s ultimate sentence, but also as to the circumstances surrounding his crimes and the resultant sentences. To quote the reasoning of the trial court:

Life presents us with many choices. The decisions we make with the choices we have are often guided by our upbringing, peer pressure and the needs of the moment. The consequences of those choices can either positively or negatively impact our lives and the lives of others.
* * *
No one wants to see a young man like Brown languish in a prison cell for many years. Yet his decision to violate the laws of our state has placed him where he is today. While this court agrees with defense counsel that the situation could have been much worse had Brown ... pulled the pistol trigger on one or more of the three victims, the fact remains the violence of this nature, which foreseeably endangered human life, cannot be overlooked.
The mistakes we make can elevate us to learn and improve or they can cause us to descend further into the darkness of evil deeds. Hopefully Brown and his friends will use their incarceration as a learning experience and a stepping stone for a better life when they rejoin society. It is the hope of this court that Brown will make the most of this opportunity.

lisWhereas it might be difficult for Brown to consider his twenty-year incarceration as an “opportunity” as characterized by the trial court, we note that Brown chose to throw away his very real opportunity at a college education and athletic experience. No one forced him to commit a violent crime that terrorized three individuals — he exercised his free choice. Moreover, considering the violent nature of Brown’s crime, it was understandably impossible for the trial court to show Brown more leniency than it did, despite the fáct that so many respectable citizens came forward to speak on his behalf and his potential future playing college football. Neither is this court swayed. In fact, we believe that Brown received all the leniency that he deserved. Therefore, in light of the applicable statutory law, jurisprudence, facts of this case and potential sentence that Brown faced, we find nothing constitutionally excessive about the sentence given. Brown’s convictions and sentences are affirmed.

AFFIRMED.

      . On appeal, Brown does not make reference to his carjacking sentence.

      . On February 10, 2006, Brown filed a timely appeal pursuant to La. C. Cr. P. art. 914(B), and the trial court granted the motion. Subsequently, the state filed in the trial court a motion to dismiss Brown’s appeal on the basis that he failed to pay the costs for preparing the record. The minutes of the trial court reflect that the motion was taken up in the trial court, which granted the motion on June 1, 2006. However, the trial court did not have authority to consider the state's motion. Pursuant to La. C. Cr. P. art. 916, the trial court’s jurisdiction over this matter had been divested by the previously granted order of appeal. The dismissal by the trial court of a previously taken appeal is not included among the actions authorized by the trial court after the jurisdiction of the appellate court attaches. Id.; State v. Arbuthnot, 367 So.2d 296 (La.1979). Brown later filed a motion for out of time appeal, and the trial court reinstated his appeal, bringing this matter before us presently. Regardless, the appeal is properly before us.

      . Notably, all of the case law cited on appeal on this issue predates the repeal of the Louisiana Sentencing Guidelines and the amendment of La. C. Cr. P. art. 894.1.


author: GREMILLION, Judge.

text:
    Bertha B. BOURQUE, et al. v. LOUISIANA HEALTH SYSTEM CORP.
    No. 2006-1366.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2007.
    Keith D. Jones, Jones, Aaron & Smith, Baton Rouge, LA, for Plaintifi/Appellant, Bertha B. Bourque, Nelson J. Bourque.
    Nicholas Gachassin, Jr., Elizabeth S. Faul, Julie Savoy, Gachassin Law Firm, Lafayette, LA, for Defendant/Appellee, Louisiana Health System Corp.
    Peter Elliot Sperling, Kathryn Motez Caraway, Nairda Teresa Colon, New Orleans, LA, for Defendant/Appellee, Blood Systems, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

bin this case, the plaintiffs, Bertha and Nelson Bourque, appeal the judgment of the trial court granting summary judgment in favor of the defendants, Louisiana Health Systems Corporation (LHSC) and Blood Systems, Inc. For the following reasons, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In 1975, following a motorcycle accident, Bertha received a blood transfusion allegedly containing the hepatitis C virus from Lafayette General Hospital (now owned by LHSC). In 1999, the Bourques filed a strict products liability suit against LHSC, and LHSC, in turn, filed a third party demand against Blood Systems, Inc., the supplier of the blood to LHSC. Blood Systems was thereafter made a defendant.

In 2003, the defendants filed Exceptions of Prescription, which were granted by the trial court, but reversed on appeal. Bourque v. Louisiana Health Sys., Corp., 03-56 (La.App. 3 Cir. 4/30/03), 845 So.2d 584, writs denied, 03-1866, 03-1882 (La.10/31/03), 857 So.2d 480, 481. Following remand, the defendants filed motions for summary judgment in October 2005, pursuant to an absolute defense based on a comment to Section 402A of the Restatement (Second) of Torts. The trial court granted the defendants’ motions for summary judgment and dismissed the Bo-urques’ case with prejudice. A judgment was rendered in December 2005. The Bo-urques now appeal.

ISSUES

The Bourques’ sole assignment of error is that the trial court erred in | ¿ruling that comment k to Section 402A of the Restatement (Second) of Torts provides an absolute defense in a strict products liability case brought pursuant to the Louisiana Supreme Court’s ruling in DeBattista v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La.1981), cert. denied, 459 U.S. 836, 103 S.Ct. 82, 74 L.Ed.2d 78 (1982), where the plaintiff contracted hepatitis C from a blood transfusion she received from defendants.

DISCUSSION

The law pertaining to summary judgment was discussed by the Louisiana Supreme Court in its per curium opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/19/03), 853 So.2d 645.

Pursuant to La.Code Civ. Proc. art. 966(C)(2):

|sThe burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The trial court stated in the instant ease in a minute entry following the trial:

The court finds DeBattista v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La.1981), applies prospectively to all cases tried subsequently to its ruling, and necessarily including the case at bar. However, and contrary to Plaintiffs position, defenses do exist to strict liability cases involving blood transfusions. This court accepts the “unavoidably unsafe” defense found in Comment k of the Restatement (Second) of Torts Section 402A and further finds there was no test available for Non A Non B Hepatitis (Hepatitis C) in 1975, and specifically when Mrs. Bourque received her transfusion. Her claim for failure to warn also falls for the same reason.
Furthermore, if the failure to warn is a separate cause of action it would surely have prescribed. This court was obviously imprecise in its earlier ruling on the exception of prescription which did not allow the Court of Appeal to consider that cause of action separately.

§ 402A of the Restatement (Second) of Torts provides for liability of the seller of a product that causes physical harm to a user or consumer. It states:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
|4(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Comment k states:

Unavoidably unsafe 'products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for them intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justified the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonably risk.

(Emphasis added).

Although this case involves several debatable issues, the Bourques limited their assignment of error to whether comment k to Section 402A provides an “absolute” defense in a strict products liability case brought pursuant to DeBattista. The Bo-urques argue that the defendants failed to prove the comment k defense. However, the Bourques then go on to complain of evidence that the defendants failed to produce to them. Indeed, the record is replete with affidavit and deposition | Revidence that, at the time of the transfusion, hepatitis C was unknown and there was no test available to screen donated blood for the virus. At the conclusion of their brief, the Bourques state that the trial court effectively overruled DeBattista by finding that comment k to § 402A provided an absolute defense.

LHSC urges that the trial court was correct in finding that the comment k defense was available in the matter and in finding that the defendants established a prima facie case that the blood transfused to Bertha was unavoidably unsafe by showing it met the five Chauvin criteria. LHSC argues that when the burden shifted to the Bourques to prove that they could meet their burden at trial, they were unable to produce any affidavit or deposition to support their allegations.

Blood Systems agrees that summary judgment was properly granted; however, it argues that the trial court erred in relying on the strict liability statutes. Blood Systems urges that strict liability for defective blood transfusions did not exist in 1975, and that courts applied a negligence standard until the DeBattista ruling in 1981. Blood Systems argues that DeBat-tista does not apply to this case as the trial court found.

In Seal v. St. Tammany Parish Hospital Service District No. 1, 99-2914 (La.App. 1 Cir. 1/27/00), 848 So.2d 1, reversed, 00-1489 (La.6/30/00), 765 So.2d 1057, the appellate court held that the plaintiffs could not maintain a cause of action in strict liability against the defendant arising out of a blood transfusion occurring in 1973. However, the supreme court reversed the judgment of the court of appeal for the reasons assigned by then Judge, now Justice, Weimer in his opinion dissenting | fifrom the majority. Judge Weimer stated:

In DeBattista, the defendants contended that the danger presented by the blood was reasonable because the screening test used to detect Hepatitis B, a known contaminant, was not one hundred (100%) percent effective, and that this relatively small percentage of unwholesome blood which the test could not detect was not unreasonably dangerous in comparison to the larger amount of blood which had properly been screened given the social utility of the blood. This is a different argument than is being presented by defendants in the instant ease, i.e., that blood is unavoidably unsafe, and thus not unreasonably dangerous, when it is contaminated by an unknown and undiscovered virus for which a screening test did not exist at the time of the transfusion. That the defendants’ arguments in DeBattista were rejected should not be interpreted to foreclose all arguments in which the risk presented by blood is contend to be reasonable.
In sum, the plaintiffs are entitled to submit their case based on a theory of strict liability and the defendants are entitled to present a defense relative to whether a blood transfusion, given in 1973, which is alleged to be the cause of the plaintiffs Hepatitis C, was “unavoidably unsafe.” See Restatement of Law of Torts (Second) Section 402(A), comment k.

Id. at 2-3 (citations omitted).

Later, in Chauvin, 818 So.2d 833, the plaintiff allegedly contracted hepatitis C in 1963 following a blood transfusion and filed suit alleging the defendants were liable under strict liability. The trial court granted summary judgment in favor of the defendants. Affirming the ruling, the appellate court stated:

Hepatitis C was unknown in 1975. Turnage v. Columbia Lakeside Hospital, 98-1263 (La.App. 5 Cir. 3/30/99), 731 So.2d 919, 922 [, writ denied, 99-1229 (La.6/18/99), 745 So.2d 26]. Perforce, it was unknown in 1963. Prior to the time that it was specifically identified as Hepatitis C, it was lumped in the category of non-A non-B Hepatitis. Even this category was unknown in 1963. As its existence was unknown, no test existed in 1963 to detect it. In 1963 no steps would have been taken to prevent what was not known to exist. Regardless, the plaintiffs insist they are entitled to recover under a theory of strict liability.

\7Id. at 835. The appellate court later stated:

DeBattista contains several references to comments g and i under § 402A, but none to comment k. Comment k sets forth the “unavoidably dangerous” defense to strict liability. This Court strongly agrees with the need to consider comment k and the “unavoidably unsafe” defense suggested by the Supreme Court’s remand in Seal [.]

Id. at 840.

The Chauvin court then went on to find that the presence of hepatitis C in the plaintiffs transfusion in 1963, was an unavoidably unsafe condition for which the defendants could not be held liable. Next, the Chauvin court discussed the lack of a cause of action in strict liability in 1963 explaining:

[The supreme court in Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921) ] explained, as noted already, that it was not until the 1981 decision in DeBattista that, “Louisiana became one of the handful of states that imposed strict liability on hospitals (as opposed to blood banks) for defective blood transfusion.”
[T]he legislature reacted quickly to overrule DeBattista:
Subsequently, the legislature added Civil Code article 2322.1 and R.S. 9:2797 granting physicians, hospitals and blood banks immunity from strict tort liability for screening, processing, transfusion or medical use of blood and blood components of any kind which results in transmission of viral disease undetectable by appropriate medical and scientific laboratory tests.
[T]he blood shield laws were enacted in quick response to what our survey of the jurisprudence shows was a single groundbreaking case DeBattista. Prior to DeBattista there were no cases imposing such [strict] liability. Such few cases as there were prior to DeBattista uniformly rejected such liability.
Not only is it obvious that no 1963 Louisiana court would have afforded the plaintiff a strict liability cause of action under the facts of lathis case, it is equally certain that the legislature would have opposed such claims because when DeBattista made the great leap forward it was promptly overruled by the legislature.
Accordingly, there is no public policy to be advanced by affording retroactive relief to the plaintiffs under this case[.]

Id. at 844^46 (citations omitted; emphasis in original).

Although we agree with Blood Systems for the reasons enunciated in Chauvin that Bourque’s claim is not properly founded in strict liability, this issue was not assigned as error, and ultimately does not change the result that in 1975, the risk of contracting hepatitis C from a blood transfusion was “unavoidably unsafe,” as proven by the multiple affidavits and deposition testimony submitted by the defendants. At the time, hepatitis C was unknown to the medical community and there was no test to detect it. The hepatitis C virus was first identified in 1989, and the first test to detect antibodies to the virus became available in 1990. The Bourques offered no evidence to the contrary suggesting that a genuine issue of material fact existed, thus the defendants’ motions for summary judgment were properly granted.

We note that the Bourques make a last ditch argument that the blood in this case was not “properly prepared” nor was Bertha “properly warned” as required by comment k. Again, for the reasons discussed above, one cannot properly prepare or market, nor properly warn against something that is unknown. Thus, the situation does not call for proper preparation, marketing, or warning because the hepatitis C virus was unknown. This argument fails for the same reason.

CONCLUSION

The judgments of the trial court granting summary judgment in favor of the defendants-appellees, Louisiana Health Systems Corporation and Blood Systems, |aInc., is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Bertha and Nelson Bourque.

AFFIRMED.

      . Chauvin v. Sisters of Mercy Health Sys., St. Louis, Inc., 01-1834 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, writ denied, 02-1587 (La.9/30/02), 825 So.2d 1194.