author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Daniel B. BENOIT.
    No. 07-KA-35.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|;»On September 21, 2004, a bill of information was filed charging defendant, Daniel B. Benoit, with armed robbery in violation of LSA-R.S. 14:64 (count one), simple burglary in violation of LSA-R.S. 14:62 (count two), and illegal use of a weapon in violation of LSA-R.S. 14:94 (count three). Defendant pled not guilty at his arraignment on September 22, 2004. On January 25, 2005, defendant’s motion to suppress identification was heard and denied.

Defendant proceeded to trial on count two alone, and on August 8, 2005, a six-person jury returned a verdict of guilty of simple burglary. On April 12, 2006, the trial court sentenced defendant to twelve years imprisonment at hard labor.

On April 13, 2006, the State filed a multiple offender bill of information, alleging defendant was a third felony offender. After being advised of his rights, defendant stipulated to his multiple offender status. The trial court thereafter vacated defendant’s original sentence and sentenced him to twenty-four years | ¿imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

According to Sergeant Joseph Ragas of the Jefferson Parish Sheriffs Office, on August 22, 2004, he responded to a call regarding a vehicle burglary at the bowling alley located on Manhattan Boulevard in Harvey. Sergeant Ragas testified that he interviewed the victim of the burglary, Scott Gaudin, who said a witness came into the bowling alley and informed him that someone had just burglarized his vehicle.

The witness, James Andrews, testified that on this date he was dropping his daughter off at the bowling alley when he saw someone get out of the passenger side of the truck and then walk to the apartments next door to the bowling alley. Mr. Andrews went inside and asked the lady at the counter if she knew who owned the pickup truck outside. According to Mr. Andrews, he told the truck’s owner he saw someone get out of it and saw him throw a can from the truck on top of the building. Mr. Andrews gave a physical description of the subject and a description of his clothing which included a plain black colored tank top shirt with black jean shorts that reached his knees and a stocking or nylon hat on his head.

Sergeant Ragas testified that he went to the adjacent complex to look for the suspect based on the clothing description and located defendant who fit this description. After Sergeant Ragas spoke to defendant, defendant agreed to let the witness look at him. Mr. Andrews positively identified defendant.

Scott Gaudin testified that his glove box was open and he had not left it that way. He further testified that he did not authorize anyone to be inside of his truck or to take any money out of the ashtray in his truck. According to Mr. Gaudin, about five or six dollars in change was missing from his ashtray. In addition, a can of belt dressing had been taken from his truck and thrown on top of the roof. Mr. RGaudin testified his truck was not locked and that the door lever was broken; however, he said someone would have had to pop the lever to open the truck because it looked locked.

On appeal, defendant challenges the sufficiency of the evidence used to convict him. Defendant specifically asserts that the State failed to prove beyond a reasonable doubt that he was the perpetrator of the simple burglary. He claims that there was a substantial likelihood of misidentifi-cation pointing to the suggestiveness of both the one-on-one and in-court identifications.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. Where the key issue is identification, the State must negate any reasonable probability of mis-identification in order to carry its burden of proof. State v. Ingram, 04-551 (La. App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Positive identification by only one witness is sufficient to support a conviction. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

Defendant was convicted of simple burglary. LSA-R.S. 14:62(A) provides “[sample burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60 [aggravated burglary].”

Defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, but only challenges the |,identification. When challenging an identification procedure, the defendant must prove the identification was suggestive and that there was a substantial likelihood of misidentification. It is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness. State v. Hurd, 05-258 (La.App. 5 Cir. 11/29/05), 917 So.2d 567, 570, writ denied, 06-1128 (La.11/17/06), 942 So.2d 530.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Clennon, 98-1370 (LaApp. 5 Cir. 6/30/99), 738 So.2d 161, 164. Factors to consider in assessing the reliability of an identification include: 1) the witness’ opportunity to view the criminal at the time of the crime, 2) the witness’ degree of attention, 3) the accuracy of his prior description of the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the time between the crime and the confrontation. Manson v. Brathwaite, 97 S.Ct. at 2253; State v. Mills, 01-110 (La-App. 5 Cir. 6/27/01), 790 So.2d 102, 107.

Generally, one-on-one identifications are not favored; however, such an identification procedure is permissible under certain circumstances. For example, one-on-one identifications are justified when the accused is apprehended within a relatively short period of time after the occurrence of the crime and when the accused has been returned to the scene for immediate identification. State v. Hurd, 917 So.2d at 571. Immediate confrontation assures the reliability of the identification as the perpetrator’s appearance is fresh in the witness’ mind, lessens the possibility that the perpetrator’s clothes or appearance will be changed, and insures early release of innocent subjects. State v. Frank, 344 So.2d 1039, 1041 (La.1977).

|fiOn appeal, defendant argues that the one-on-one identification was suggestive because he was handcuffed and was the only person viewed at the time the identification was made. He further asserts that the identification was made based only on his clothing which was not distinctive and was never produced in open court.

In State v. Hurd, 917 So.2d at 571, this court upheld the identification of the defendant by the victims despite the one-on-one identification procedure where defendant was standing in the street among several police officers. In that case, defendant argued that the identification was suggestive because it was based solely on clothing and not physical characteristics or face recognition. In finding the one-on-one identification not suggestive, this court noted that the defendant was apprehended within minutes after the crime only three blocks from the robbery, and that within fifteen to twenty minutes after the crime, the victims were separately brought to the location where defendant was apprehended and each positively identified him as the perpetrator.

Likewise, in State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990), the Fourth Circuit upheld one-on-one identifications by two witnesses to an armed robbery of a restaurant that were based mainly on the similarity of clothing between the defendant and the perpetrator. In Valentine, the defendant was apprehended near the scene of the robbery and taken back to the scene within thirty minutes to an hour of the robbery. The witnesses separately went to the police car to view the defendant as he sat handcuffed in the back of the police car. Although one witness identified the defendant based mainly upon the distinctive shirt he wore, the other witness saw the defendant outside the restaurant just prior to the robbery dressed in the same manner as the robber. Based on these circumstances, the court held that the identification procedure was not suggestive.

|7See also State v. Winfrey, 97-427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 70, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481, where this court determined that the identification of a defendant while handcuffed and seated in the back of a police car was not suggestive.

In the present case, the eyewitness, Mr. Andrews, gave Officer Ragas a physical and clothing description of the suspect. In addition, Mr. Andrews advised the officer that the perpetrator walked to the apartments next to the bowling alley. Sergeant Ragas went to the adjacent apartments and apprehended defendant, who matched the description of the suspect. Within minutes of defendant’s apprehension, Mr. Andrews positively identified him as the perpetrator. Given these circumstances, we find that the one-on-one identification of defendant was not suggestive.

Mr. Andrews also positively identified defendant in court as the person he saw getting out of the truck. Defendant argues the in-court identification at trial was suggestive and had little worth because defendant was always seated next to his trial counsel. However, in State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 87, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, — U.S. -, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006), this Court recognized the following:

In State v. Johnson, 343 So.2d 155 (La. 1977), the Louisiana Supreme Court found an in-court identification similar to the one in defendant’s case was not unduly suggestive. The Johnson court stated that the mere fact that the defendant was conspicuously seated at the defense table at trial at the time the witness identified him did not suggest that he was guilty of the crime, only that he was charged with its commission. The Johnson court further found that an ample opportunity to cross-examine the witness was sufficient to remedy any suggestiveness inherent in the in-court identification process.

Based on the foregoing discussion, we find that neither the one-on-one identification nor the in-court identification of defendant can be deemed |ssuggestive. Moreover, applying the Manson factors, we find that even if the identifications are considered suggestive, there was not a substantial likelihood of misidentification. Mr. Andrews’ eyewitness trial testimony indicates he had ample opportunity to view defendant. Mr. Andrews testified that he saw defendant get out of the truck, followed him visually and saw that he went to the apartments next to the bowling alley. He also saw defendant throw a can from the truck on top of the building. Mr. Andrews was able to give a description of defendant’s clothing to the officer. Officer Ragas went into the adjacent apartment complex and found defendant who fit the description given by the eyewitness. Within minutes of defendant’s apprehension, Mr. Andrews positively identified him as the man he saw getting out of the truck. According to Mr. Andrews, less than ten minutes passed from the time he saw defendant exit the truck until the police arrived. Less than ten minutes after the police left, Mr. Andrews identified defendant. As such, less than twenty minutes would have passed between the time he observed the crime and identified defendant. Sergeant Ragas also testified that from the time of the call until the identification, about ten minutes passed. At trial, Mr. Andrews testified that there was no doubt on August 22, 2004, or on that date while in court, that defendant was the man he saw getting out of the truck.

To further support his argument that he was not the perpetrator, defendant points to the fact that he permitted the witness to look at him and did not run when the officer approached. However, Sergeant Ragas testified that although defendant did not physically run, Sergeant Ragas tried to make defendant believe he was there for a different reason by walking in an angle towards a female at the complex.

| sDefendant also points to the fact that at the time he was stopped he was wearing a du-rag, and not a stocking or nylon cap as described by Mr. Andrews. The record is not clear that defendant was wearing something different on his head than what was described by Mr. Andrews. Moreover, regardless of what terminology is used, it is clear that defendant was wearing some type of headgear at the time of his apprehension.

The jury heard all of the evidence presented and obviously chose to believe Mr. Andrews’ testimony identifying defendant as the perpetrator of the simple burglary. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 816, writ denied, 03-2170 (La.1/30/04), 865 So.2d 74. It is not the appellate court’s function to reevaluate the credibility choices made by the jury. State v. Hurd, 917 So.2d at 572.

Viewing the evidence in the light most favorable to the prosecution, we find that the State sufficiently negated any reasonable probability of misidentification, and that a rational trier of fact could have found, beyond a reasonable doubt, that defendant was the perpetrator of the crime.

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that defendant was not advised of the two-year prescriptive period for filing an application for post-conviction relief either at the time of his original sentencing or subsequent sentencing as a multiple offender. Accordingly, we remand the matter and instruct the trial court to inform defendant of the prescriptive period set forth by LSA-C.Cr.P. art. 930.8 by sending written notice to defendant within ten days of the rendition of this opinion and to |infíle written proof in the record that defendant received such notice. See, State v. Fazande, 05-901 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513-514.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Counts 1 and 3 were dismissed by the State on April 13, 2006.

      . In the present case, although defendant argues that black jean shorts and a black muscle shirt are not distinctive and are commonly worn by young black men, especially in August, Sergeant Ragas testified that on that particular date, defendant was the only person dressed like that in the area.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Robin S. SCHOUEST v. Todd J. SCHOUEST.
    No. 06-CA-972.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Frank P. Tranchina, Ronald S. Hagan, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Roland A. Ditta, Attorney at Law, Gret-na, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

Lin this child custody dispute, the plain-tiffiappellant seeks to have the judgment of the trial court overturned as it pertains to the designation of the defendant/appel-lee as domiciliary parent. For the reasons that follow, we affirm.

Prior to their divorce on January 25, 2002, the appellant, Robin Schouest (“Ms. Schouest”), and the appellee, Todd Schouest (“Mr. Schouest”), entered into a consent judgment regarding custody of their three minor children. The June 5, 2001 consent judgment provided that Mr. Schouest would pay child support to Ms. Schouest, detailed a schedule of visitation, and awarded the use and occupancy of the family residence in Gretna to Ms. Schouest.

On December 10, 2001, Mr. Schouest filed a Motion to Decrease Child Support, To Modify Child Custody and Visitation and For Contempt. The disposition of that matter does not appear in the record before us. On March 5, | s2003, the parties entered into an arrangement in writing whereby the children would reside with Mr. Schouest for an extended period of time.

On January 15, 2004, Mr. Schouest filed a Motion to Re-Set Motion and to Modify Custody and Visitation and Support. Mr. Schouest alleged in his motion that he had been the primary custodial parent of the minor children since March 5, 2003 on the Westbank of Jefferson Parish, where the children lived and attended school. Mr. Schouest asserted that Ms. Schouest’s recent move to the Eastbank of Jefferson Parish did not make it feasible for the children to reside with her for various reasons. Mr. Schouest also requested that the court appoint a mental health professional to help determine the best interests of the children and that the court award him child support. Mr. Schouest also sought use and occupancy of the former family home pending a community property partition.

Trial on the matter was held intermittently from between March 21, 2005 and February 10, 2006. On June 30, 2006, the trial court awarded Mr. Schouest domiciliary custody of the Schouests’ minor children and ordered that the Schouests continue their joint custody visitation rights. Ms. Schouest timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Ms. Schouest raises three assignments of error: (1) The trial court committed legal error in finding that a material change of circumstances occurred between the initial consent judgment and the date of the hearing; (2) The trial court erred by failing to make a determination that the change of custody was in the best interest of the minor children and in failing to consider factors contained [fin LSA-C.C. art. 134; and (3) The trial court erred in awarding Mr. Schouest domiciliary custody of the minor children.

In regard to child custody matters, Louisiana appellate courts have articulated a standard of review which holds that

The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion....

In every custody case, the primary concern is the best interest of the child. Each case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child.

Louisiana Civil Code Article 134 provides a number of factors to be considered in making the best interest determination. These factors are merely suggested factors, and the trial court is free to use other factors to make its determination. However, the trial court should consider the totality of the facts and circumstances in its analysis of the best interest of the child.

When the custody order is by consent of the parties, as in this case, and not a considered judgment made by the trial judge, the party seeking the change must show a material change in circumstances since the entry of the original decree and that the modification proposed is in the best interest of the child.

In his Motion to Re-Set Motion and to Modify Custody and Visitation and Support, Mr. Schouest detailed his arguments in favor of finding a change in material circumstances, namely, that he had been the primary custodial parent of | sthe minor children since March 5, 2003 by mutual consent of the parties. Mr. Schouest also asserted that Ms. Schouest had relocated to Metairie, Louisiana, and that it would be impractical for the children to attend their Westbank schools if they reside with Ms. Schouest.

The trial court did not articulate Reasons for Judgment in its determination of custody, but found “there has been a material change in the conditions of the children. The father has the better disposition, not just the capacity, but the disposition to provide safety and security for the minor children.”

The extensive record in this case contains accusations by both parties regarding the moral fitness and character of each as both individual persons and as parents. There was also impeachment evidence offered to cast doubt upon the veracity of both the plaintiff/appellant and defendant/appellee throughout the proceedings below. We do not find it necessary to recount those allegations and the supporting evidence presented by the parties. However, this Court has conducted a de novo review of the record before us and, based upon our review of the record, we find that the trial court’s judgment is supported.

First and foremost, we acknowledge that Ms. Schouest’s move to Metairie from the Westbank of Jefferson Parish, in and of itself, does not constitute a change in material circumstances sufficient to change her status as domiciliary parent. However, under the facts of this case, we cannot say that the trial court was manifestly erroneous in finding that the February 13, 2003 agreement between the parties under which the children lived with Mr. Schouest over a significant period of time did, in fact, constitute a requisite change in material circumstances which justified naming Mr. Schouest as domiciliary parent.

| ^Having satisfied this legal requirement, we next address the issue of whether Mr. Schouest demonstrated that the change of domiciliary status was in his children’s best interest.

Each of the Schouest children testified during the proceedings.

J.S., twelve years old in the eighth grade, testified that both of his parents provided him with meals, a place to sleep, homework assistance, and medical care. He further indicated that there was a difference in how the two parents treated him. From a disciplinary standpoint, whereas Mr. Schouest never physically disciplined him, J.S. said that Ms. Schouest has on occasion slapped him in the face. He also indicated that Ms. Schouest would “cut him off’ or not communicate with him for days on end when he had upset her. J.S. testified that Ms. Schouest called him profane names fairly often. J.S. said that, when he lived with his father, for about a year he did not have any overnight visits with his mother and that she would only visit during the day, if at all. J.S. told the court evaluator that he feared his mother, and he expressed to the court that he wished for the court to order all parties not to discuss his testimony with his mother because of his belief that Ms. Schouest would retaliate against him. J.S. expressed a preference for living with his father.

R.S. was ten years old at the time of his testimony. At the beginning of his testimony, he expressed his preference for living with Mr. Schouest. R.S. indicated that both parents help him with homework. He also said that Mr. Schouest provides home-cooked meals. R.S. recounted that his mother had physically disciplined him and his brother in the past by doing things like pulling hair or pulling on his ear. He said that,his parents take him to the doctor on an approximately even basis.

A.S. was nine years old at the time of her testimony. Early in her testimony, she expressed a preference for living with her father. A.S. stated that she has her |7own place to sleep at Mr. Schouest’s residence. A.S. testified that she would be upset if she were forced to live with Ms. Sehouest because she does not get along with her step-father’s daughter. A.S. testified that she had witnessed her stepfather hit her step-sister on the arm or on the leg but that he had never hit her.

The parties stipulated, eight months after the children first testified, that each would once again provide a preference for living with their father in accordance with Dr. Steven York’s report.

While we have already affirmed the trial court’s finding that a material change in circumstances existed sufficient to change the status of the domiciliary parent, we note that, in some cases, our state courts have held that the stated preference of a child to live with one parent over the other can also constitute a material change in circumstances.

Dr. Steven York (“Dr. York”.), a psychologist, was appointed by the court on February 5, 2004 to conduct a custody evaluation of the Schouests and testified at trial as to his findings. In the course of this evaluation, Dr. York met with both Mr. and Ms. Sehouest, as well as. the three Sehouest children. Dr. York also met with Ms. Schouest’s current spouse and a social worker who had worked with the family.

At the time of his report, Dr. York’s recommendation was that the Schouests maintain a joint custody arrangement but that Mr. Sehouest be appointed the domiciliary parent. Part of this conclusion was based upon Dr. York’s opinion that the children should be kept in their current Westbank schools in order to maintain stability in their lives. Dr. York also testified that his recommendation was based; in part, upon Mr. Schouest’s assertion that he was responsible for bringing the | ^children to their doctor visits... .Dr. York further recommended that Mr. Sehouest be designated domiciliary parent based upon his attempts to provide a stable environment to the children.

Dr. York’s report, in relevant part, reads: -

The children should remain at Christ the. King School until the appropriate age for them to change. Robin [Sehouest] made a choice to move away from this school area, and it is, therefore, her responsibility to get them to this school, rather than introduce a new change, which would, seriously impact the children’s lives unnecessarily to avoid a 3Q7-minute commute.
The parents should be granted joint custody, but Todd should be designated domiciliary parent.
The children should continue on approximately 50/50 time schedule with each parent.

Ms. Sehouest attacks Dr. York’s conclusions based upon the assertion that Mr. Sehouest was not forthcoming or truthful during the evaluation. Ms. Sehouest presented evidence and testimony in support of her argument at trial. On appeal, however, we are required to extend great weight to the factual conclusions of trial courts which are based on reasonable evaluations of credibility and reasonable infer-enees of fact. Based upon our review of the record, we do not find the trial court’s apparent rejection of Ms. Schouest’s claim, that Mr. Schouest misled Dr. York, is a clear abuse of discretion.

Further, based on our review of the record, and in particular the testimony and evidence recounted above, we cannot say that the trial court clearly abused its discretion in finding that the change of domiciliary status was in the Schouest children’s best interest.

Ms. Schouest further argues on appeal that the trial court erred in not addressing in its judgment the factors under LSA-C.C. art. 134. As previously | ^stated, however, these factors are merely suggested factors, and the trial court is free to use other factors to make its determination. In our review of the record, we note that evidence was presented to the court on a significant number of Article 134 considerations. In its judgment, the trial court stated that Mr. Schouest’s designation as domiciliary parent was based on what it felt to be for the “safety and security” of the children. Based upon our review of the record, we find that, contrary to the assertions of Ms. Schouest, the court apparently took Article 134 factors into account in designating Mr. Schouest as the domiciliary parent. We do not find the trial court’s omission of a detailed discussion of these factors in its judgment to be manifest error.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

      . It does appear from other portions of the record, however, that the Schouests shared joint custody of the minor children with Ms. Schouest serving as the domiciliary parent.

      . Ms. Schouest introduced the March 5, 2003 agreement into evidence. At trial, Mr. Schouest testified that Ms. Schouest had altered and added handwritten changes to the document without his knowledge or consent after he had signed it.

      . The proceedings were delayed and rescheduled due to Hurricanes Ivan and Katrina.

      . Hawthorne v. Hawthorne, 96-89, p. 12 (La. App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365 (citations omitted).

      . Zanco v. Zanco, 97-342 (La.App. 5 Cir. 11/12/97), 703 So.2d 745.

      . Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245.

      . Plaisance v. Dep’t of Soc. Serv., 00-1038 (La.App. 5 Cir 12/27/00), 777 So.2d 630.

      . Anderson v. Anderson, 01-53 (La.App. 5 Cir. 5/30/01), 788 So.2d 676.

      . Wages v. Wages, 39,819 (La.App. 2 Cir. 3/24/05), 899 So.2d 662.

      . Rosell v. ESCO, 549 So.2d 840 (La. 1989).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Damyra LONZO.
    No. 06-KA-945.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman— Appellate Counsel, Laura Schneidau — Trial Counsel, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Appellee, State of Louisiana.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, Louisiana, for Appellant, Damyra Lonzo.

      Panel composed of Judges EDWARD A. DUPRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

ls,On November 5, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Damyra Lonzo, with second offense possession of marijuana, in violation of La. R.S. 40:966 C. Defendant was arraigned on January 26, 2006 and pled not guilty.

On May 11, 2006, the trial judge conducted a hearing on defendant’s motion to quash the bill of information. After hearing arguments of counsel, the trial judge denied the motion. He reasoned that under the version of La. R.S. 40:966(E)(5) in effect at the time of the offense even distribution of marijuana could be used as a predicate offense. He further explained that the bill of information would be valid under La. R.S. 40:966(E)(4) because the predicate offense of possession with intent to distribute marijuana contained the element of possession.

The trial judge noted that State v. Anders, 2001-0556 (La.6/21/02), 820 So.2d 513, was distinguishable because the predicate offense in that case was distribution of marijuana, whereas the predicate offense in this case was possession |swith intent to distribute marijuana. Defense counsel noted his objection to the denial of the motion.

On that same date, defendant withdrew her plea of guilty plea and pled guilty as charged, reserving her right to appeal the denial of her motion to quash under State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to imprisonment at hard labor for two years, suspended, and placed defendant on active probation for two years. Defendant subsequently filed a motion for appeal that was granted.

Facts

Because defendant’s conviction was obtained pursuant to a guilty plea, the record does not disclose facts other than the allegation in the bill of information that defendant committed second offense possession of marijuana on October 27, 2004. Although the State alleged in the bill of information that defendant was previously convicted of possession of marijuana, the record reflects that defendant was previously convicted of possession with intent to distribute marijuana.

Law and Argument

In her sole assignment of error, defendant argues that the trial judge erred in denying her motion to quash the bill of information. Defendant argued in her motion to quash, and now argues on appeal, that the State should not be allowed to use her prior conviction for possession with intent to distribute marijuana to enhance her current charge for possession of marijuana from a misdemeanor to second-offense possession of marijuana, which is a felony.

Defendant argues that La. R.S. 40:966(E)(5) is unconstitutionally vague because that section states that “a conviction for the violation of any other statute ... with the same elements as La. R.S. 40:966(B)(3)” can be considered as a “prior conviction for the purposes of this Subsection.” Defendant maintains that |4the reference to La. R.S. 40:966(B)(3) causes confusion because that section is a sentencing provision and does not set out the substantive elements of a crime. In sum, defendant contends that La. R.S. 40:966(E)(5) is unconstitutionally vague because it fails to give notice of the prohibited behavior it seeks to sanction, citing State v. Anders, 01-0556 (La.6/21/02), 820 So.2d 513.

The State responds that La. R.S. 40:966(E)(5) is not vague because La. R.S. 40:966(B)(3) does describe prohibited behavior and is not merely a sentencing provision. The State further responds that, even if La. R.S. 40:966(E)(5) is unconstitutionally vague, defendant’s conviction would still be valid under La. R.S. 40:966(E)(4).

The Due Process clauses of the United States and Louisiana Constitutions prohibit legislation that is vague. U.S. Const, amend. XIV, § 1; La. Const, art. I, §§ 2,13; State v. Bentley, 96-795 (La.App. 5 Cir. 3/25/97), 692 So.2d 1207, 1209. “The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity such that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.” State v. Hart, 96-599 (La.1/14/97), 687 So.2d 94, 95.

Additionally, a penal statute must provide adequate standards by which the guilt or innocence of the accused can be determined. State v. Bentley, supra, at 1209. Thus, to satisfy due process, the language of a statute must have a generally accepted meaning “so that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which |fiis forbidden by its terms.” State v. Hair, 00-2694 (La.5/15/01), 784 So.2d 1269, 1274.

Criminal statutes are subject to strict construction under the rule of lenity. State v. Brown, 03-2788 (La.7/6/04), 879 So.2d 1276, 1280, cert. denied, 543 U.S. 1177, 125 S.Ct. 1310, 161 L.Ed.2d 161 (2005). As such, criminal statutes are narrowly interpreted and any ambiguity in the substantive provisions of a statute is resolved in favor of the accused. Id. The rule of strict construction is not to be applied with “such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute.” Id. (Internal citations omitted).

Criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. When a person of reasonable intelligence cannot discern the statute’s meaning and is unable to understand what conduct is proscribed, the statute is unconstitutionally vague. State v. Bentley, 692 So.2d at 1209-10.

A statute is presumed to be constitutional and should be upheld whenever possible. The party who attacks the statute bears the burden of clearly establishing its unconstitutionality. State v. Hair, 784 So.2d at 1274.

As noted above, defendant was charged with second offense possession of marijuana under La. R.S. 40:966(C). First, we note that marijuana is classified as a controlled substance in Schedule I. La. R.S. 40:964(0(22).

Further, La. R.S. 40:966 provided at the time of the offense, in pertinent part, as follows:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
|fi(l) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance ... classified in Schedule I;
⅜⅜⅜⅜⅜⅜⅜⅝⅜⅜
B. Penalties for violation of Subsection A. Any person who violates Subsection A with respect to:
* ⅜ :¡: * * * * * ⅜ #
(3)A substance classified in Schedule I which is marijuana ... shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.
C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I ...
⅜‡⅜⅜⅜⅜⅜⅜⅜‡
E. Possession of marijuana.
(2) Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana ... the offender shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.
⅜⅜⅜⅜⅜⅜⅜⅝⅜⅝
(4) A conviction for the violation of any other statute or ordinance with the same elements as R.S. 40:966(C) prohibiting the possession of marijuana ... shall be considered as a prior conviction for the purposes of this Subsection relating to penalties for second, third, or subsequent offenders.
(5) A conviction for the violation of any other statute or ordinance with the same elements as R.S. 40:966(B)(3) prohibiting the distributing or dispensing or possession with intent to distribute or dispense marijuana ... shall be considered as a prior conviction for the purposes of this Subsection relating to penalties for second, third, or subsequent offenders.
|7* *********

In the instant case, we find that La. R.S. 40:966(E)(5) is not unconstitutionally vague. La. R.S. 40:966(B)(3) defines prohibited behavior when read in conjunction with La. R.S. 40:966(A). Specifically, La. R.S. 40:966(B)(3) is a penalty provision for violations of Subsection A, which provides that it is unlawful for any person knowingly or intentionally to possess marijuana with the intent to distribute it. The language of La. R.S. 40:966(E)(5), when read in conjunction with La. R.S. 40.966(A) and La. R.S. 40:966(B)(3) as required, is sufficiently clear “that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which is forbidden by its terms.” State v. Hair, 784 So.2d at 1274. Accordingly, we find that the State did not err by using defendant’s prior conviction for possession with the intent to distribute marijuana as a predicate offense to enhance her present charge of possession of marijuana to second offense possession of marijuana.

Defendant also argues that the use of La. R.S. 40:966(E)(5) as an element of the offense as opposed to a penal provision defeats the legislative intent. She contends that the stated purpose of the legislation was to impact sentencing only and, therefore, the use of the previous conviction as an element of the offense of second or subsequent possession of marijuana, and the use of the convictions at trial to circumvent the protections afforded by the Code of Evidence for “other crimes evidence,” are not uses within the scope of the act’s purpose.

In State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, which is cited by defendant in her brief, the Louisiana Supreme Court recently set forth the law regarding statutory interpretation:

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Legislation is the Lsolemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.
The starting point in the interpretation of any statute is the language of the statute itself. ‘When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.’ However, ‘when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.’ Moreover, ‘when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.’ [Citations omitted.]

State v. Dick, 951 So.2d at 130-131.

In the instant case, we find that La. R.S. 40:966(E)(5) clearly and unambiguously provides that a conviction for possession with intent to distribute marijuana can be considered as a prior conviction for second or subsequent offenders. Because La. R.S. 40:966(E)(5) is clear and unambiguous, and its application does not lead to absurd consequences, we will apply the law as written, and will not need further interpretation to search for the intent of the legislature. State v. Dick, supra. We find no error in the trial court’s denial of defendant’s motion to quash the bill of information.

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found no errors patent that require corrective action in this case. Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . The date of defendant's offense in this case was October 27, 2004, after the effective date of the current version of La. R.S. 40:966(E)(5).

      . The trial judge also imposed general and special conditions of probation.

      . In State v. Anders, 2001-0556 (La.6/21/02), 820 So.2d 513, 514-17, the Louisiana Supreme Court looked at the plain meaning of La. R.S. 40:966(D)(2) and found that "possession" was not an implied element of distribution. The supreme court affirmed the trial courts' grant of defendants' motions to quash and held that the State erred in using defendants' convictions for distribution of marijuana as the predicate offense to enhance their present charge to second-offense possession of marijuana. Id. at 516-17.
      The Anders court noted that the Louisiana Legislature, by 2001 La. Acts, No. 403, amended and reenacted La. R.S. 40:966(D), and the provisions under that subsection were thereafter designated La. R.S. 40:966(E). Anders, 820 So.2d at 516. The Anders court referenced the prior statutory designations because the present matter was filed before the effective date of the reenacted statute. Id.


text:
    STATE of Louisiana v. John W. MATHIEU.
    No. 06-KA-946.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Thomas J. Butler, Jay Adair, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, John W. Mathieu.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

| gJohn W. Mathieu appeals his conviction by a jury of violation of La.R.S. 14:44.1, second degree kidnapping with a gun, and his sentence of thirty years at hard labor. We affirm conditionally, but remand for a hearing on whether the defendant properly waived his right to counsel.

On October 31, 2005, the Jefferson Parish District Attorney’s office filed a bill of information charging John W. Mathieu (hereafter “the defendant”) with the second degree kidnapping of his estranged wife, Terry Mathieu, a violation of La.R.S. 14:44.1. At arraignment the defendant pleaded not guilty. The defendant filed motions to quash and to dismiss, both of which were denied.

On June 13, 2006, a twelve-person jury-found the defendant guilty as charged after a two-day trial. The defendant filed a pro se motion for post-verdict judgment of acquittal and a pro se amended motion for post-verdict judgment of acquittal, both of which the trial court denied.

On June 29, 2006, after waiving all delays, the defendant was sentenced to thirty years at hard labor, with the first two years of the sentence to be served without parole, probation, or suspension of sentence, to be concurrent with any other sentence.

|sThe defendant objected to his sentence during the hearing and, on the same day, filed a timely motion for appeal on his conviction and sentence, which was granted. Subsequently the defendant filed a motion to reconsider sentence, which was denied.

FACTS

Terry Mathieu (hereafter “Ms. Math-ieu”) testified she is the defendant’s ex-wife. She said they were married for twenty-three years, but separated on August 4, 2004 and were divorced in December 2004. According to Ms. Mathieu, from August 2004 until the date of the incident on July 16, 2005, the defendant constantly called her on the phone, sent her letters, and went to her place of employment, the Walgreens store at 678 Terry Parkway in Gretna, Louisiana. Eventually she stopped all contact.

On the date of the incident, Ms. Mathieu was working the 8:30 a.m. — 5:00 p.m. shift, the same as she worked during her marriage to the defendant. After work, she walked to her vehicle, a Jeep Cherokee, carrying two bags. After she opened the vehicle’s door, she was felt she was being pushed. She turned and saw it was the defendant. Instinctively she put her hand on the horn and blew it to get attention. She felt pressure on her lower back. The defendant told her, “Don’t do anything stupid, I have a gun.” He pushed her in the car and she saw he had a gun in his hand. It was “directed in [her] direction,” but not pointed at her.

She denied that she got into the car voluntarily or that she voluntarily gave the defendant her car keys. Once she was in the car, she was crying and still trying to get attention from people in the parking lot. The defendant told her, “[SJettle down_ I’m not going to hurt you. I just need to talk to you. You pushed me to this. You wouldn’t talk to me.” Ms. Mathieu described the defendant as nervous and sweaty. He drove them away from the parking lot.

14Ms. Mathieu dialed 911 on her cell phone so that the emergency operator could listen to what was going on. As the defendant drove, he continued to shake the gun at her, telling her to “calm down, don’t draw attention.” During the recorded 911 conversation, the defendant threatened to kill himself. The defendant said he had pills that he was going to take to do himself in, and said he wanted Ms. Mathieu to stay with him until the end. When Ms. Mathieu asked the defendant why he brought a gun, he did not reply. Ms. Mathieu testified that the defendant never knew their conversation was being recorded.

With Ms. Mathieu in the vehicle, the defendant drove to Kiln, Mississippi. During the drive, as dusk was falling, Ms. Mathieu ended the 911 call because she was afraid that the defendant would see the light emanating from her cell phone as it got dark. Later, her cell phone rang and Ms. Mathieu answered it, at which point the defendant took the phone away from her.

During the course of the trip, the defendant “screamed” at her, accusing her of having sex with different men, breaking up their family, and taking everything away from him. He lay the gun in his lap, but occasionally picked the gun up as he was speaking and shook it in her direction.

Ms. Mathieu testified she was in the car with the defendant and the gun for three to four hours. They ended up at a rest stop in Kiln, Mississippi. After they arrived at the rest area, the defendant started screaming at her again, making accusations, and again saying he was going to kill himself. According to Ms. Mathieu, she did not have an opportunity to escape. At some point the defendant stopped to get gas, but Ms. Mathieu could not recall where, or whether it was before or after they reached Kiln. He told her not to do “anything stupid” while he |fiwent in to pay for the gas. He put the gun in the front of his pants. She saw that while he was paying for the gas, he continued to watch her. She was “scared” and didn’t know if he would start shooting.

Later, the defendant drove Ms. Mathieu back to Gretna. She said that throughout the three or four hour trip with the defendant, she feared she would be killed. The defendant put a microcassette tape in the vehicle’s console that the defendant claimed would explain everything. Ms. Mathieu testified that when the defendant turned off the car engine, she jumped out and ran because she was afraid he was going to kill her. She ran to a nearby McDonald’s restaurant; when she got there she turned and saw the defendant walking down a side street. She locked herself in the restaurant’s bathroom for a while. Later, she came out and looked around; after ascertaining the defendant was not around, she went to the pay phone and called her mother. The police eventually arrived at the restaurant and Ms. Mathieu’s vehicle was towed to the detective bureau.

Ms. Mathieu said that after she fled the vehicle the defendant still had her keys to it, as well as her cell phone. She identified the defendant in open court as the man who took her at gunpoint on July 16, 2005 from Walgreens.

The defendant himself conducted the cross-examination of Ms. Mathieu. In response to his questioning, she admitted that prior to July 16, 2005 she was aware that he carried around a gun, and on July 16, he did not make any threats to her and she was not physically harmed, except for being pushed. She said he stuck the gun in her back.

Linh Pham, Ms. Mathieu’s co-worker, testified she was employed at the Wal-greens store located at 678 Terry Parkway on the date of the incident. Pham had just arrived in the Walgreens parking lot at 5:00 p.m. to start her shift, when she saw a man following Ms. Mathieu as Ms. Mathieu left the store. As Ms. RMathieu opened her car door, the man pushed her into the vehicle. Pham testified she could tell from Ms. Mathieu’s expression that she was terrified. It appeared to Pham that Ms. Mathieu was probably screaming and trying to tell her something was wrong.

Pham said that as she walked by Ms. Mathieu’s vehicle, the defendant looked at her. Pham saw the defendant’s full face, because the defendant stared directly into her face. The defendant drove away in the car, despite Pham’s efforts to stop him. Pham described the five-minute incident as terrifying. She knew that something was terribly wrong. Pham told the manager that someone was “probably trying to kidnap somebody outside,” and the manager called the police. Pham said she identified the man whom she saw push Ms. Mathieu into her vehicle and drive away in a photographic lineup.

Jane Trucksis, a Walgreens employee, testified that she called 911 on the date of the incident because a customer and Pham told her that Ms. Mathieu had been kidnapped. Trucksis identified her voice on the 911 tape played in court. On cross examination conducted by the defendant, Trucksis said she identified the defendant as the abductor in her 911 call because Pham told her it was him.

Detective Jeffery Rodrigue of the Jefferson Parish Sheriffs Office testified he responded to a call received from a Wal-greens employee reporting that a co-worker named Terry Mathieu had been forced into a vehicle by an unknown Hispanic male. The caller thought Ms. Mathieu was in danger, because she screamed for help and blew the vehicle’s horn to get the attention of people in the area.

When Detective Rodrigue arrived at the scene on Terry Parkway, he learned that several phone calls had come into headquarters from a phone number they later learned was Terry Mathieu’s, on which the operator could hear a woman |7screaming hysterically and asking for help because someone was pointing a gun at her. In the course of the investigation, Detective Rodrigue spoke to Pham and to Troy Barrios, Ms. Mathieu’s boyfriend, who had been called by someone at Walgreens. Detective Rodrigue learned that Ms. Mathieu and the defendant had an extensive history of emotional and violent abuse that included several incidents in which Ms. Mathieu was held against her will. Detective Rodrigue obtained an arrest warrant for the defendant.

Detective Rodrigue also learned that Ms. Mathieu had been driving a maroon Jeep Cherokee on the day of the incident. The vehicle was later located at the Home Depot on Stumpf Boulevard. Subsequently, Ms. Mathieu informed the police that the vehicle contained a cassette tape made by the defendant, which the defendant had directed Ms. Mathieu to listen to “after all this is over.” The cassette tape was recovered from the Jeep’s console. It was reviewed and found to be a message from the defendant detailing his intentions to commit suicide because of his separation from Ms. Mathieu.

Deputy Mark Layrisson of the Jefferson Parish Sheriffs Office testified that photocopies of the defendant’s picture were given to local motels and hotels, as part of the investigation. The Sheriffs Office subsequently received a call from the Luxury Inn in Marrero reporting that there was a guest matching the suspect’s description. When deputies arrived, they observed the defendant through a window. The deputies approached him, identified him by his driver’s license, and placed him into custody. A search of the defendant revealed that he had a firearm. Deputy Layrisson identified the defendant in open court as the man that he had placed into custody that day.

Detective Sergeant Kelly Jones of the Jefferson Parish Sheriffs office testified that she obtained a statement from the defendant. Detective Jones said the I ^defendant’s statement did not match the physical evidence obtained in the investigation.

In the defendant’s statement, played for the jury, the defendant claimed that Ms. Mathieu started screaming after he startled her, as she opened the door of her vehicle. The defendant' claimed that Ms. Mathieu jumped all the way into the passenger side of the vehicle over the center console and then she threw her keys at him. According to the defendant, Ms. Mathieu told him that she could not drive, because she was upset. The defendant claimed that he would have sat in the vehicle and spoken to Ms. Mathieu in Wal-greens parking lot, but that she told him to drive.

The defendant said he got behind the wheel and drove toward Mississippi, while he spent the next thirty minutes trying to calm Ms. Mathieu down and assuring her she was not in danger. The defendant claimed Ms. Mathieu left with him voluntarily. The defendant said he took Ms. Mathieu to a Mississippi rest stop, where they talked. When they returned to Gret-na, they parked at the Home Depot store on Stumpf Boulevard and talked again. The defendant said Ms. Mathieu then got out of the car and walked away, telling him to keep the Jeep. He claimed he called to Ms. Mathieu, telling her he still had her keys. Ms. Mathieu did not return, so he locked the vehicle’s door. The defendant admitted seeing Ms. Mathieu run to McDonald’s.

The defendant said he then bought a drink, sat in the park in Terrytown, and took some pills, which caused him to lose consciousness. He admitted, however, that he did not take the pills to kill himself. He said he only told Ms. Mathieu that he was going to take pills to kill himself because he was “messing with her.” The defendant claimed the reason he still had Ms. Mathieu’s cell phone when he was Rarrested was that Ms. Mathieu threw her cell phone at him during the incident, after he told her she could not call her son.

The defendant claimed that when he went to Walgreens that day, he did not have the nine millimeter semi-automatic gun later found on him during the search. He claimed that prior to going to Wal-greens, he hid the gun under a concrete slab at the Terrytown Recreation Center tennis courts, and that he did not retrieve the gun until the next day. He said the gun belonged to his oldest son. He also said he never threatened Ms. Mathieu.

After the State completed presenting its case, the defendant rested his case without presenting any evidence.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant asserts the trial court erred when it permitted him to represent himself.

The record reveals that the defendant was allowed to represent himself with the assistance of appointed counsel. The record does not contain any written motion by the defendant requesting to represent himself with or without the assistance of counsel, nor does it contain a ruling from the trial judge granting such a request. Similarly, the minute entries do not show that the issue of waiver of counsel was addressed at a pretrial hearing.

Nevertheless, the record is replete with pleadings filed by the defendant pro se, as well as pleadings filed by his appointed counsel. The minute entry for the first day of trial (June 12, 2006) states: “Previously the Court granted the pro se motion for the Defendant to represent himself. William Doyle will assist.” The defendant’s desire to represent himself was discussed by his appointed counsel, the trial judge, and the defendant prior to commencement of the proceedings on both |inthe first and second days of trial. The defendant conducted cross examination of most of the witnesses, and also made his own closing argument.

A defendant’s right to the assistance of counsel is guaranteed by both our state and federal constitutions. State v. Brooks, 452 So.2d 149, 155 (La.1984), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. State v. Bruce, 03-918, p. 4 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857. “A defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel.” Id., citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), and State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 893, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

Before accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. Bruce, 03-918 at p. 4, 864 So.2d at 857. In addition, the court should inquire into the defendant’s age, education and mental condition, and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Id.

“Whether an accused has knowingly and intelligently waived his right to counsel is a question which depends on the facts and circumstances of each case.” State v. Strain, 585 So.2d 540, 542 (La.1991), citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

|nA criminal defendant does not have the right to act both as “represented and representative” due to the potential for disruption of the trial process. State v. Brown, 03-897, p. 29 (La.4/12/05), 907 So.2d 1, 24, citing State v. Bodley, 394 So.2d 584, 593 (La.1981). However, “hybrid” representation does allow a defendant the right to defend himself as co-counsel while standby counsel explains and enforces the basic courtroom rules, as long as standby counsel participation does not seriously undermine the defendant’s appearance as representing himself before the jury. Brown, 03-897 at pp. 28-33, 907 So.2d at 21-24.

A defendant performs the core functions of an attorney’s traditional role when he formulates his own trial strategy, determines his own theory of the defense, chooses the witnesses to subpoena and to call to the stand, formulates the questions to be asked of the witnesses, and performs the opening and closing statements. State v. Dupre, 500 So.2d 873, 877 (La.App. 1 Cir.1986), writ denied, 505 So.2d 55 (La.1987). An attorney functions in an advisory capacity when he is not the controlling strategist, but rather helps the defendant with procedural matters and proper courtroom conduct. Id.

When an attorney partially represents a defendant who assumes functions that are at the core of an attorney’s traditional role, the defendant must still knowingly and intelligently waive his constitutional right to have his lawyer perform the core functions, in order to show that the defendant appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform. Dupre, 500 So.2d at 877. “Therefore, when an attorney is appointed as an advisor the accused must knowingly abandon his right to be represented by counsel.” Id.

Once the defendant has made a clear request to represent himself, the trial court must determine whether the defendant is competent to waive counsel and is | ^voluntarily exercising informed free will. State v. Santos, 99-1897, p. 3 (La.9/15/00), 770 So.2d 319, 321. Only the defendant’s competence to waive his right is at issue, not his competence to represent himself. Id.

“The judge, in accepting a waiver of counsel at trial, should advise the accused of the nature of the charges and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver.” State v. Strain, 585 So.2d 540, 542 (La.1991), citing Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). The trial judge’s inquiry should involve more than “yes” or “no” questions and responses from the defendant, in order establish the defendant’s intelligent and knowing waiver on the record. Id.

Because there are no inflexible criteria or a magic-word formula for determining the validity of a defendant’s waiver of the right counsel, the inquiry into validity of the waiver must take into account the totality of the circumstances in each case. State v. Stevison, 97-3122, p. 2 (La.10/30/98), 721 So.2d 843, 845.

The trial court is given much discretion in determining whether the defendant’s waiver was knowing and intelligent. State v. Mendez, 05-173, pp. 5-6 (La.App. 5 Cir. 1/17/06), 923 So.2d 189, 194. Since the trial court has had the opportunity to observe the defendant in court appearances and motions, the trial court is familiar with the defendant. Id. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. Id.

As noted above, the record in this case contains no motion from the defendant requesting to represent himself, nor any ruling from the trial judge granting such a motion. However, the record does indicate that the defendant made such a request. The June 12, 2006 transcript refers to the trial judge’s | ^previous grant of the defendant’s pro se motion to represent himself and with the assistance of counsel. Prior to jury selection on June 12, 2006 (the first day of trial), the defendant’s appointed counsel, William Doyle, stated to the trial judge, “Your Honor, at this time I would like to proffer a few things on the record. Your Honor, first and foremost is that this Court granted Mr. Mathieu’s motion for him to represent himself in this matter. I believe that’s still a valid court order.”

In the June 12, 2006 transcript, defense counsel acquiesced to his role in assisting the defendant. Defense counsel informed the trial judge that he had explained the concepts of evidence and courtroom procedure to the defendant, but counsel said he believed the defendant did not understand the concept of relevance, especially as it concerned his understanding of the charges against him. The trial judge then informed the defendant that if he wanted to represent himself with the assistance of counsel, he would be bound by the rules of evidence. The judge also told the defendant that representing himself was “a terrible idea.” However, this statement by the trial judge apparently occurred well after the defendant’s request to represent himself had been granted.

The defendant stated that he had no problem with counsel representing him, if he was allowed to ask some questions of the witnesses during cross-examination. The trial judge informed the defendant he would not be allowed to proceed in that fashion; instead, he would be allowed to confer with his counsel about anything that he thought was missed or that he wanted to add. The defendant agreed they could proceed in that fashion. Subsequently, the matter was dropped without further discussion.

On June 13, 2006, the second day of trial, prior to commencement of the trial, defense counsel informed the court that the defendant would conduct portions of the trial, especially the cross-examination of the witnesses. The defendant j 1 ¿personally cross-examined Ms. Mathieu, Pham, Trucksis, Detective Rodrigue, and Deputy Layrisson, with limited assistance from defense counsel. During the cross-examination of these witnesses, defense counsel requested and later reminded the court about the sequestration of witnesses, reviewed the evidence sought to be admitted by the State (ie., the tapes of the 911 calls made by Ms. Mathieu and Trucksis), notified the court that the judgment of divorce sought to be admitted by the defendant was not certified, advised the court that witness Pham could be released, participated in an unrecorded bench conference, and informed the defendant about the procedures for the presentation of a document for use by a witness.

In addition, after a series of objections by the State and after receiving permission from the defendant, defense counsel offered a response to the State’s objection to a lack of foundation concerning the defendant’s questioning of Detective Ro-drigue about a police report. Defense counsel acknowledged, in open court, that he was outside the scope of his assistance as standby counsel. The trial judge explained to the defendant that he would not be allowed to start a cross-examination and then have his defense counsel respond to any objections.

Defense counsel also reviewed the defendant’s rights of arrestee form and the tape and transcript of the defendant’s statement before they were admitted into evidence. In addition, defense counsel made objections during the testimony of Sergeant Jones and conducted cross-examination of that witness. Defense counsel conferred with the defendant before ending his cross-examination of Sergeant Jones.

Defense counsel also handled the discussion on jury charges, proffered into the record the defendant’s decision not to testify, and rested the defense’s case. The defendant gave his own closing statement.

JjjThe defendant contends the exchange shows that the trial judge failed to conduct a reasonable inquiry to determine whether the defendant’s decision to represent himself was knowing and intelligent. The defendant claims the trial judge also failed to inform him of the nature of the seriousness of the charges, the penalty range, and the dangers and disadvantages of self-representation. In addition, the defendant claims the trial judge failed to inquire into his age, educational background, and mental health to ascertain whether, under the totality of the circumstances, he understood the significance of the waiver.

On the following day, during trial, the defendant apparently employed his own trial strategy based upon his own theory of the defense, asked questions of the witnesses he deemed relevant, and performed his own closing statement — thereby performing the core functions of an attorney. His appointed defense attorney took an advisory role helping the defendant with procedural matters and proper courtroom conduct, except for the cross-examination of Detective Jones.

The State argues that this assignment should be deemed abandoned, because the defendant has failed to provide this Court with a requisite complete record of the proceedings by which this Court could determine whether the trial court conducted a reasonable inquiry into whether the defendant’s waiver of the right to counsel was knowing and intelligent. In the alternative, the State notes that the trial court, after having granted the defendant’s request to represent himself, advised the defendant not to represent himself while addressing the dangers of self-representation and the rules of evidence.

It is impossible to discern from the record whether the trial court’s inquiry was sufficient to determine whether the defendant’s request to represent himself was clear and unequivocal and whether the defendant’s competence to waive his right was knowing and intelligent. Nor can it be discerned whether the trial court’s ^previous interactions with the defendant allowed the court to ascertain the defendant’s mental and educational background, as argued by the State.

The State cites State v. Bruce, supra, suggesting that this Court should look at the June 12, 2006 colloquy while taking into account the totality of the circumstances in determining the validity of the defendant’s waiver of his right to counsel. In that case the defendant was charged with possession of cocaine. On appeal, the defendant argued that that the trial court erred in allowing him-to represent himself without determining that he knowingly and intelligently waived his right to counsel. Bruce, 03-918 at p. 3, 864 So.2d at 857.

In Bruce, the trial court advised the defendant that it could give him only limited help in taking advantage of the procedural laws, and even discussed the defendant’s option under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In addition, the trial court reminded the defendant that appointed counsel could remain on the case and advise him on procedural matters. 03-918 at p. 6, 864 So.2d at 858. The Bruce trial court even recessed the proceedings to give the defendant an opportunity to think about his decision.

After the defendant again stated he wanted to defend himself, the trial court then reviewed the waiver of right to an attorney form executed by the defendant with him in open court. The form indicated defendant could read and write, and advised the defendant that an experienced attorney might know of certain defenses available or procedures that could result in the defendant’s case being dismissed or the charges being reduced. The defendant was further advised that he would have to file his own motions, make his own objections, cross-examine witnesses at trial, and prepare his own defense, but that he had the right to have an attorney appointed to assist him. Id.

117The defendant stated that he understood everything the trial court had reviewed before the trial court granted his request to represent himself. On appeal, this Court found that the defendant had knowingly and intelligently waived his right to counsel. Bruce, 03-918 at pp. 6-7, 864 So.2d at 858-859.

The State contends that, while the record does not establish the trial court specifically inquired into the defendant’s age and mental condition as in other cases where the defendants eventually entered guilty pleas, the record shows the trial court had previously ascertained the defendant’s mental and educational background through numerous filings and court appearances in which the defendant sometimes spoke.

The failure of a trial court to secure a valid waiver of counsel constitutes reversible error. Bruce, 03-918 at p. 5, 864 So.2d at 857.

In State v. Drumgole, 31,294 (La.App. 2 Cir. 10/28/98), 721 So.2d 956, the defendant was charged with multiple felony counts. Before accepting his waiver of counsel, the trial counsel advised the defendant of the responsibility he was undertaking and explained some of the dangers and disadvantages. The court did not inquire about the defendant’s understanding of the charges and the potential penalties he faced if convicted, nor did the trial court elicit any objective information about the defendant’s age, educational background, mental competence, or his degree of familiarity with criminal law and procedure.

In Drumgole, the appellate court reversed the defendant’s convictions, vacated his habitual offender adjudication and the sentences, and remanded the case for a new trial. 31,294 at p. 10, 721 So.2d at 961. The appellate court found that evidence in the record suggested that the defendant’s waiver of counsel was voluntary, but showed no objective basis for assessing whether the waiver was |1sknowing and intelligent; therefore, the appellate court concluded that the defendant’s waiver of counsel was invalid. Id.

We find the present case distinguishable from Drumgole, supra. In this case, the defendant and .the State refer to the defendant’s previous waiver of his right to counsel, but the record does not contain that waiver.

In State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, the issue was whether the defendant validly waived his right to a jury trial through counsel in open court and in his presence before trial. The supreme court vacated the judgment and remanded the case to the district court for an eviden-tiary hearing to determine whether the defendant had made a valid waiver of his right to a jury. 97-0786 at p. 1, 701 So.2d at 963. The supreme court held, “If the evidence shows that [the defendant] did not make a valid waiver of his right to a jury trial, the district court must set aside his conviction and sentence and grant him a new trial. [The defendant] may appeal from any adverse ruling on the waiver issue.” Id.

The case of State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, is analogous to the present situation. In Singleton, this Court found insufficient evidence to show a valid waiver of a jury trial. We conditionally affirmed the defendant’s conviction and sentence. We pretermitted a final determination and remanded the case to the trial court to conduct an evi-dentiary hearing on whether the defendant validly waived his right to a jury trial, and for further proceedings, if necessary, pursuant to the holding in State v. Singleton. 05-622 at p. 12, 922 So.2d at 654.

In Singleton we ordered that if the evidence adduced at the hearing showed that the defendant did not make a valid waiver of his right to a jury trial, the trial court must set aside the defendant’s conviction and sentence and grant him a new trial. Id. If, however, the evidence showed that the defendant validly waived his | fright to a trial by jury, the defendant’s right to appeal from any adverse ruling on the waiver issue would reversed. In ,the absence of .such an appeal, the defendant’s conviction and sentence would be affirmed. Id.

Based on the foregoing, we conclude that*the appropriate remedy in this case is to conditionally affirm the defendant’s conviction and to remand for an evidentiary hearing to determine whether the defendant made a clear and unequivocal request to represent himself and, if so, whether the trial court made sufficient inquiries into the defendant’s competency before accepting the defendant’s waiver of counsel as knowing and intelligent.

If evidence adduced at the evidentiary hearing shows that the defendant did not make a valid waiver of his right to counsel, the trial court must set aside the defendant’s conviction and sentence and grant him a new trial. If the trial court finds that the defendant validly waived his right to counsel, however, the defendant’s right to appeal that ruling should be reserved. In the absence of an appeal by the defendant, his conviction and sentence will be affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant next asserts the trial court erred by imposing , an excessive sentence.

In the present case, the defendant filed a Motion to Reconsider Sentence, in which he claimed his sentence was constitutionally excessive, because it was cruel and unusual punishment, a hardship to himself and his dependent twelve-year-old son, a retaliation for his refusing to accept a plea agreement, and was based on the trial judge’s erroneous and prejudicial opinion of the defendant because of a prior acquittal for aggravated battery.

The defendant also claimed that his sentence was constitutionally excessive considering the statutorily-mandated minimum sentence for a second-degree | ^kidnapping conviction by a first-time offender. In addition, the defendant claimed that the trial court did not afford his estranged sons and daughter-in-law the opportunity to speak on his behalf, and that his ex-wife previously had filed false charges against him and dropped them.

On appeal, however, the defendant argues only that his sentence of thirty years is excessive, because he is a first-time offender and is a father of four with a stable work history. He contends he was a stable, peaceful, and “productive member of society” prior to the dissolution of his twenty-three-year marriage to Ms. Math-ieu, during which they had four sons. The defendant claims the circumstances that led to the criminal episode, which he admits frightened his ex-wife, were unique and will not recur, so that incarceration is not necessary to prevent a repetition.

The State argues that the trial court did not abuse its discretion. The State claims that the defendant’s thirty-year sentence for second degree kidnapping was within the statutory guidelines and was one-quarter below the statutory maximum sentence allowed by law. • The State contends there has been no showing that the defendant’s sentence is disproportionate to the harm caused to society or that it shocks the sense of justice.

Trial judges have wide discretion in the imposition of a sentence. State v. Lefeure, 02-592, p. 5 (La.App. 5 Cir. 10/29/02), 831 So.2d 398, 402; State v. Hawkins, 99-217, p. 5 (La.App. 5 Cir. 7/2/99), 740 So.2d 768, 771. The sentence imposed by the trial court will not be set aside absent a showing of manifest abuse of that discretion. Lefeure, supra:

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or |^imposes, needless and purposeless pain and suffering. State v. Wickem, 99-1261, p. 7 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

The three factors considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Knightshed, 00-1410, pp. 4-5 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504-505; State v. Watts, 99-311, p. 6 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Allen, 03-1205, pp. 3-4 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 879-880.

The sentencing exposure for second-degree kidnapping is from five to forty years’ imprisonment at hard labor, with at least two years of the sentence without benefit of parole, probation, or suspension of sentence. La.R.S. 14:44.1(C).

In the present case, the defendant received a sentence of thirty years, which is in the upper limits of the statutory maximum. Before sentencing the defendant, the trial judge said that during the course of the trial, it was clear to him that the defendant hadn’t taken responsibility for his actions. The judge stated, “In fact, ... not only have you failed to take responsibility for your actions, but you seemed to me that you could be potentially very dangerous if and when you get out of prison.” The trial judge also noted that the - defendant may have become | ¡^emboldened to commit the acts in the present case after he was acquitted in a prior similar case.

In State v. Hawkins, supra, the defendant, a first time offender, appealed only the excessiveness of his thirty-year sentence for a second-degree kidnapping conviction. 99-217 at pp. 4-5, 740 So.2d at 770-771. Although the defendant was a first time offender, this Court noted that the defendant had a criminal background. Id. We found that the defendant’s thirty-year sentence was neither an abuse of discretion nor constitutionally excessive, even when combined with his mandatory sentence of life imprisonment for aggravated rape. Id.

In State v. Washington, 95-771 (La.App. 5 Cir. 2/14/96), 670 So.2d 1255, writ denied, 98-0537 (La.9/25/98), 726 So.2d 7, the defendant was convicted of aggravated burglary, second-degree kidnapping, and carjacking. This Court upheld a forty-year sentence imposed on the first-time offender for the second degree kidnapping conviction. We found that the sentences imposed were not excessive. 95-771 at p. 12, 670 So.2d at 1262. In addition, we found that the concurrent sentences were not disproportionate to the offenses for which the defendant was convicted, nor did they amount to a purposeless and needless infliction of pain and suffering. Id.

In State v. Brock, 37,487 (La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied, 04-1036 (La.4/1/05), 897 So.2d 590, the defendant was convicted of aggravated burglary and second degree kidnapping. The appellate court upheld a forty-year sentence imposed on the first time offender for the second degree kidnapping conviction. 37,-487 at p. 12, 855 So.2d at 945. The appellate court found that there was an adequate, accurate, and factual basis for the trial court’s imposition of maximum sentence for the defendant s conviction of second degree | ^kidnapping, because the crime was serious violation of the offense by the worst type of offender. Id.

Based on the record, we find the trial court did not abuse its great discretion in sentencing the defendant in the upper limits of the statutory maximum. The trial judge imposed the defendant’s sentence after considering the defendant’s prior violent history with the victim and his potential to become dangerous due to failure to take responsibility for his actions. Accordingly, we find no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant has assigned as error “all errors patent.” Our routine review of the record for errors patent, in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), reveals none.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are conditionally affirmed on the evidence in the record on appeal. However, a final determination of the appeal is pretermitted, and the case is remanded to the trial court to conduct an evidentiary hearing to determine whether the defendant made a clear and unequivocal request to represent himself and, if so, whether the trial court made sufficient inquiries into the defendant’s competency before accepting the defendant’s waiver of counsel as knowing and intelligent.

If the evidence shows that defendant did not make a valid waiver of his right to counsel, the district court must set aside his conviction and sentence and grant him a new trial. If, after the hearing, defendant is found to have validly waived his right to counsel, defendant may appeal from any adverse ruling on the waiver | tissue. In the absence of such an appeal, defendant’s conviction and sentence will be affirmed.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED FOR EVIDENTIARY HEARING.

      . The defendant sought writs from this Court on the denial of his motion to dismiss. We denied the writ application, finding no error in the trial court’s ruling. On June 1, 2006, the defendant filed a subsequent motion to dismiss, but the record does not show the trial court ever ruled on it. Because the defendant proceeded to trial without raising the issue of the pending undecided motion, he waived the motion. See, State v. Gordon, 00-1013, p. 12 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 146, writs denied, 02-0362 (La. 12/19/02), 833 So.2d 336 and 02-0209 (La.2/14/03), 836 So.2d 134.

      . Ms. Mathieu identified the 911 tape in court, and it was played for the jury. A review of the 911 tape played for the jury reveals that Ms. Mathieu cried throughout most of the conversation with the defendant. During that conversation, Ms. Mathieu asked the defendant why he pulled a gun on her.