author: CLARENCE E. McMANUS, JUDGE.

text:
    STATE of Louisiana v. William J. BATISTE.
    No. 06-KA-824.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Megan L. Gorman, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    William J. Batiste, Angola, Louisiana, Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, JUDGE.

|2The defendant, William J. Baptiste, was charged with one count of second degree murder, a violation of LSA-R.S. 14:30.1. After a three-day trial before a twelve-person jury, the defendant was found guilty of manslaughter, a violation of LSA-R.S. 14:31. Thereafter, the trial court sentenced the defendant to 40 years at hard labor with credit for time served. Defendant now appeals from the conviction and sentence.

The following was produced at trial. Detective Eric Becnel of the Gretna Police Department testified that, on September 18, 2003, he responded to a homicide, at 1536 Stumpf Boulevard, in Gretna. The victim, Bryant Sears was found in front of his apartment between his car and a silver-colored van. As part of the investigation, the defendant’s cousin, Shantell Rose, and her husband, Trevor Jones, were interviewed. They both provided information that led to the defendant as a suspect.

Based on the information provided by the witnesses, Detective Becnel obtained a warrant for the arrest of the defendant. According to Detective Becnel, the defendant was located and arrested by the Ken-ner Police Department where he signed a waiver of rights form. After being advised of his Miranda rights while |3being transported from the Kenner Police Department to the Gretna Police Department, the defendant admitted that he killed Sears. The defendant was again advised of his Miranda rights, upon his arrival at the Gretna Police Department. He waived his rights and agreed talk to the Gretna police before he gave two taped statements.

Detective Becnel learned through his investigation that, on the night before the shooting, the defendant stayed at 728 Hi-nyub Street with Shantell, Jones, and Pamela Rose (defendant’s aunt). Detective Becnel also learned that there had been a physical altercation between the defendant’s mother, Phyllis Baptiste, and Sears earlier in the month of September. According to Detective Becnel, the defendant told him that after he shot Sears, he rolled him over on the ground, placed the barrel of the gun next to his ear, and shot him again. The first bullet entered near Sears’ right eyebrow. The second bullet’s entrance behind Sears’ ear caused blackening of the skin, due to the placement of the barrel against the skin. According to Detective Becnel, eyewitness Clarence Anderson heard the two shots. Then, he saw an individual run around the van near Sears, and continue running until he dropped a wallet. Detective Becnel testified that the defendant later told him that it was Sears’ wallet. The defendant continued running until he reached 728 Hi-nyub Street. After he obtained entry, Shantell asked him if he killed Sears, and he admitted that he had. The defendant disrobed, and then had Shantell dispose of his clothes. The defendant and Shantell went through the defendant’s wallet, which contained $200.00. The defendant told Shantell to dispose of the wallet by throwing it over the rear fence, which she did.

Trevor Jones testified that the defendant told him on September 13, 2003, that he was tired of Sears abusing and beating the defendant. Sears was also still 14drinking and beating his mother. The defendant could not take it any more, and was going to take matters into his own hands and kill Sears. According to Jones, the defendant wanted to kill Sears because he was responsible for the defendant’s brother’s death, and the defendant felt that it was his responsibility to stop the abuse. The next day, September 14, 2003, the defendant returned to Jones’ home with a book bag containing a gun and clothes. On the night before the shooting, the defendant stayed at the home of his aunt, Pamela Rose, with Jones and his wife. According to Jones, the defendant left the next morning, around 4:00 or 5:00 a.m., to kill Sears. When the defendant returned, he gave Jones a wallet that contained money.

At trial, the defendant described an incident in which Sears armed with a gun obtained entry to their home, and beat his mother. Sears was not prosecuted. The defendant, his mother, and his brother went to California to get away from the defendant. The defendant and his brother complained of their abuse to school personnel. Sears denied the allegations, and the police did nothing about the complaint. The defendant’s brother told a juvenile court judge that Sears was physically and mentally abusing him. However, nothing was done about the abuse. The defendant described several occasions when he and his brother were abused by Sears. He reported one incident of abuse to the California police. He received counseling, but Sears was not prosecuted. Besides the physical abuse, the defendant claimed he suffered daily mental abuse. On several occasions, the defendant was either forced to leave the home or left because of the abuse. The defendant also observed Sears physically abusing his mother on several occasions when he was young. He described an incident in which Sears was choking his mother as he lifted her in the air. When he and his brother cried and told Sears to stop hitting their mother, Sears started hitting them. He testified that he felt | sresponsible for his brother’s death because he missed the bus, and was not there to protect him. The defendant testified Sears physically abused his mother on several occasions after his brother’s death. After one occasion, September 6, 2003, his mother asked him to come to her home. He knew she had tried to call the police. When the defendant saw her busted lip, he became enraged. He thought that his mother would be the next to be killed.

According to the defendant, from September 6, 2003 until the day he killed Sears, he was depressed and thinking of all the years of abuse, the death of his brother, the constant physical abuse and threats to his mother by Sears, and the lies Sears was telling his mother about him. He was also afraid of what would happen if Sears killed his mother.

The defendant admitted, at trial, that he killed Sears. The day after he showed Jones a gun, he left early in the morning to kill Sears, but could not do it. The defendant tried again the next two days, but could not kill Sears. The defendant admitted that on the day of the shooting, he waited outside Sears’ apartment for him to turn on the lights. After the lights came on, he walked across the street and waited on the stairs for Sears to exit his apartment. The defendant shot Sears after he exited his apartment. Then, he rolled the defendant over on the ground, shot him again in the back of his head, and took his wallet. The defendant left the scene, and went to his Aunt Pamela’s house where he spent the previous night. He gave Rose twenty dollars and Jones one dollar, at their request. He told Rose to throw away his clothes, and went to his mother’s house.

Phyllis Baptiste, the defendant’s mother, testified that she told several people about the physical and mental abuse Sears inflicted on the defendant and his brother that started in 1988, as well as the abuse that Sears inflicted on her. Bryant Sears, II, the fourteen year old son of Sears and the defendant’s mother, testified as | ¿to the physical abuse Phyllis Baptiste, as well as defendant and his brother, received from Sears. Sherry Batiste Quincy and Melissa Baptiste, the defendant’s aunts, testified about the physical abuse that they personally saw Sears inflict on the defendant, his brother, and their mother. Shirley Baptiste, the defendant’s grandmother, testified Sears never touched the defendant and his brother in front of her. She did acknowledge that there were problems in her daughter’s relationship with Sears.

In this appeal, defendant’s counsel filed a brief in which he alleges three allegations of error, namely that the trial court erred in denying his motion to suppress, that the sentence imposed was excessive, and that the record should be reviewed for patent errors. The defendant also filed a brief pro se, in which he also alleges that the trial court erred in denying his motion to suppress and that the sentence imposed was excessive. Defendant further alleges pro se that the trial court erred in failing to give his requested special jury charge.

Defendant first alleges that it was error to deny his motion to suppress his statement. He argues that he was too intoxicated to waive intelligently his constitutional rights when he confessed. The defendant claims that he told Detective Becnel that he smoked twenty-eight grams of marijuana and took Xanax before he spoke to him. In his pro se brief, the defendant argues that he confessed because Detective Becnel coerced him with the promise of a manslaughter charge. He claims that he never would have confessed if he had not been made this promise.

The State argues that the defendant waived his right to review the trial court’s denial of his motion to suppress when he stipulated to the admissibility and introduction of the statement at trial. Alternatively, the State argues that the trial court did not err in denying the motion to suppress because of the defendant’s |7alleged intoxication. Finally, the State argues that any error in admitting the statement was harmless, because of the other evidence presented at trial including the defendant’s own corroboratory testimony.

The record reflects that the defendant gave three statements, two of which were recorded. In his September 27, 2003 taped statement, at 1:28 a.m., the defendant gave a detailed account of his commission of the crime. Near the end of his statement, the defendant stated that he had smoked marijuana, in a hollowed out cigar, in the morning before he left to kill Sears and while he was waiting to kill Sears. He agreed when asked that he knew what he was doing when he killed Sears.

Initially we note that the defendant waived his right to appeal the denial of his motion to suppress his confession and the admissibility of the challenged statements. While the defendant filed a written motion to suppress his confession alleging that it was not freely and voluntarily made, because of fear duress, intimidation, menaces, threats, inducements, promises, as well as the failure to advise him of his right to counsel and to remain silent, at trial, the defendant acquiesced to the admission of the statement. The defense counsel stated,

And to make it plainer at this point, we have — in addition to that, we’ve got the actual transcripts. The defense is willing to stipulate that that [sic] the tape should come into evidence ... and we’re going to pass out the copies to the jury so they can follow along. There is no objection to that as well.

At the above statement makes clear, the defendant waived his right to challenge the admissibility of the statement by his acquiescence in the introduction of that statement into evidence. See State v. Gregory, 05-628 (La.App. 5 Cir. 3/28/06), 927 So.2d 479, 482 and State v. Onezime, 01-1018, p. 10 (La.App. 5 Cir. 2/26/02), 811 So.2d 1033, 1043, writ denied, 02-1099 (La.3/21/03), 840 So.2d 535.

8In State v. Onezime, 01-1018 (La.App. 5 Cir. 2/26/02), 811 So.2d 1033, 1043, writ denied, 2002-1099 (La.3/21/03), 840 So.2d 535, this Court stated, “where a defendant initially files a pre-trial motion objecting to the introduction of certain evidence, if at trial he specifically agrees to the introduction, he has waived his prior objection and loses the right to present the issue on appeal.” Although defendant waived his right to present the issue, this Court in Onezime considered the merits of defendant’s claim in light of the constitutional issues raised. Therefore, we will address the merits of defendant’s claim. State v. Gregory, supra.

At the hearing on the motion to suppress, Detective Becnel testified that he interviewed the defendant on two occasions. In his first taped statement, the defendant denied any involvement in the death of Sears. Detective Becnel subsequently arrested the defendant. While the defendant was being transported, he was advised of his rights, after which he confessed to killing Sears. During his second taped statement, after waiving his rights, the defendant, again, confessed to killing Sears. Detective Becnel testified that the defendant did not seem high or intoxicated when giving his second taped statement. According to Detective Becnel, he and defendant had no discussion regarding narcotics, and he never discussed a manslaughter charge with the defendant.

At the suppression hearing, the defendant testified that the police told him that they would not release him unless he took a polygraph test, because he had two outstanding warrants. He claimed that Detective Becnel told him that he could get him charged with manslaughter because of the circumstances under which the homicide was committed. The defendant claimed that he would not have given a statement if Detective Becnel had not promised him that he would be charged with manslaughter. He alleged that he smoked twenty-eight grams of marijuana before | agoing to see the police, and that he told someone that he was intoxicated when he gave his statement. He claimed that the transcripts would reflect, “[he] smoked twenty-eight grams of weed a day.” The defendant claimed that he was also taking Xanax.

A trial court’s determination on the motion to suppress should not be disturbed on appeal, unless it is clearly wrong. State v. Massey, 02-872, p. 3 (La. App. 5 Cir. 2/11/03), 841 So.2d 862, 864, writ denied, 03-805 (La.10/17/03), 855 So.2d 758. The State has the burden of affirmatively showing that a confession was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises before it may be admitted into evidence. LSA-R.S. 15:451; State v. Dewey, 408 So.2d 1255, 1258 (La.1982). If the statement was made during custodial interrogation, the State must also show that the defendant was advised of his constitutional rights. Id.; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966). See, State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1, 15. Whether a defendant’s purported waiver of Miranda rights was voluntary is determined by the totality of the circumstances. State v. Pugh, 02-171, p. 11 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 352. Intoxication only renders a statement involuntary when the intoxication is of such a degree that it negates the defendant’s comprehension and renders him unconscious of the consequences of what he or she is saying. State v. Quest, 00-205, p. 6 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. A determination of whether the intoxication existed and was of a degree sufficient to vitiate the voluntariness of the defendant’s confession are questions of fact to be determined by the trial court. Id. A diminished intellectual capacity alone does not vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. 10State v. Pugh, 831 So.2d at 352. A statement obtained from the defendant by direct or implied promises, or by the exertion of improper influence must be considered involuntary and, therefore, inadmissible. State v. Gregory, 927 So.2d at 483. The determination of voluntariness of the statement is made on a case-by-case basis and rests on the totality of the circumstances. Id. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. State v. Pugh, 831 So.2d at 352. A trial court’s determination on the admissibility and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id. An appellate court is not limited to the evidence adduced at the hearing on the motion in determining whether the trial court’s ruling on a motion to suppress is correct, it may also consider pertinent evidence presented at the trial. State v. Gregory, 927 So.2d at 483.

In the present case, the defendant never stated that he was under the influence of marijuana and Xanax, or that he used marijuana and Xanax on the same day he gave his statement. Detective Becnel testified that there was no discussion regarding narcotics. In fact, the only discussion regarding narcotics was the defendant’s admission that he smoked marijuana the Monday before he killed Sears and the day he killed Sears. The defendant’s statement was taken, on September 27, 2003, nine days after the defendant claimed he last used marijuana. In fact, the defendant was able to give a very detailed statement describing facts prior to and on the day of the shooting. He also admitted that he knew what he was doing when he shot Sears. In addition, at the motion to suppress hearing Detective Becnel testified that the defendant did not seem high or intoxicated when giving Inhis second taped statement. Thus the trial court did not err in finding that the defendant was not so intoxicated so as to render his statement involuntary. Compare State v. Jackson, 05-527 (La.App. 5 Cir. 12/27/05), 919 So.2d 779 and State v. Quest 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

Second, in the present case, the trial court did not err in denying the motion to suppress the defendant’s confession, because the defendant claimed that he was coerced. Detective Becnel testified that he never discussed or promised the defendant that he would be charged with manslaughter. In addition, at the beginning of his statement the defendant acknowledged that he was advised of his rights, understood his rights, and willingly provided the police with a statement regarding the murder. The defendant also indicated that he was signing a waiver of rights form. At the end of his statement, the defendant acknowledged twice that the statement was made of his own free will, and that the police did not force, coerce, or threaten him into giving the statement. He also agreed he was not promised anything in order for him to provide the statement. We find no error in the trial court’s determination that defendant’s statements were given freely and voluntarily, and the trial judge did not err in admitting them into evidence.

On appeal and in his pro se brief, the defendant argues that his sentence is excessive, because he is a first offender and the homicide was committed because of the years of abuse the victim inflicted on him, his mother, and his brother.

The State argues that the defendant’s sentence should only be reviewed for constitutional excessiveness, because he failed to file a motion to reconsider sentence to preserve the issue for appeal. Alternatively, the State argues that the there is a factual basis in the record for the sentence, and that the trial court did not |12abuse its discretion in sentencing the defendant to the maximum sentence, because a lesser sentence would have deprecated the seriousness of the crime.

In the present case, the defendant failed to file a motion for reconsideration of sentence. LSA-C.Cr.P. art. 881.1(B) requires that a motion to reconsider sentence be made orally at the time of sentencing or in writing thereafter, and that it shall set forth the specific grounds on which the motion is based. “Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” LSA-C.Cr.P. art. 881.1(E). Therefore, failure to move for reconsideration of sentence or state specific grounds upon which the motion is based limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Zaldivas, 02-0690, pp. 6-7 (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 582-583, writ denied, 03-0705 (La.10/17/03), 855 So.2d 757.

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 excessiveness, 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, 11sand 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. Id., State v. Allen, 03-1205, pp. 3-4 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879-880.

The defendant was sentenced to the statutory maximum sentence of forty years for his manslaughter conviction. The trial judge stated that he considered the sentencing guidelines of LSA-C.Cr.P. art. 894.1. In addition, the trial judge, stated that he took into account the youth of the offender and his lack of prior criminal conduct, as well as the significant economic and personal loss to the victim’s family, the actions of the victim, and the fact that the exact circumstances were unlikely to recur. The trial judge noted that any lesser sentence would deprecate the seriousness of the crime, and without it, the defendant’s lack of self-control might well not improve. Also, the trial judge noted the defendant’s actions in shooting the victim twice in the head, which manifested deliberate cruelty in the commission of the crime. Here, the trial judge opined that he, unlike the jury, found that there was sufficient evidence to convict the defendant of the crime charged, second degree murder.

Considering the above factors we find that the trial judge did not abuse his discretion in imposing the maximum sentence.

In his pro se brief, the defendant argues that the trial judge erred denying his request for a special jury charge on justifiable homicide as it relates to the defense of himself and others, because of long-term abuse.

|14At trial, the defense orally requested that the jury be given a special jury charge on justifiable homicide involving defense of others. Defense counsel argued that the jury should be given the opportunity to decide whether the defendant’s actions were mitigated or justified by the facts presented during trial. Specifically, defense counsel referred to evidence presented concerning the defendant’s fear, based on years of witnessing the physical abuse of his mother, that his mother would be seriously injured or killed by Sears, like his brother. Also, his fear that his mother’s serious injury or death would occur when he was not there, especially in light of the injury his mother sustained shortly before the homicide, which was caused by Sears. The defense counsel noted that the defendant had concluded that he had to intervene and kill Sears in order to protect his mother when he could not be present, because neither police, juvenile officers, nor other members of his family had stopped Sears from beating or injuring his mother.

The Court refused to give the requested charge finding that there was no evidence to the effect that anyone was at risk at the time of the homicide.

LSA-C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. State v. Butler, 462 So.2d 1280, 1285 (La.App. 5 Cir.1985), writ denied, 541 So.2d 886 (La.1989). The trial court is required to charge the jury on the law applicable to any theory of defense, when properly requested, which the jurors could reasonably infer from the evidence. Id. LSA-C.Cr.P. art. 807 mandates that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. Id. The evidence presented at trial must support the requested special charge. Id.

|1BWhen a requested special instruction deals with the theory of justification, or self-defense, in a situation in which the person who uses deadly force in self-defense was the initial aggressor, the aggressor doctrine would apply. State v. Spears, 504 So.2d 974, 977 (La.App. 1 Cir. 1987), writ denied, 507 So.2d 225 (La.1987). LSA-R.S. 14:21 states “a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” An aggressor would have to retreat before he could use deadly force in self-defense, since his initial aggression created the dangerous situation. State v. Spears, 504 So.2d at 977. In situations where the aggressor doctrine applies, a defendant’s request for a special instruction dealing with justification or self-defense would be wrong, because the aggressor would have to retreat before he could kill in self-defense. Id.

In this case, the defendant was the aggressor, therefore the requested special jury charge would be wrong or not wholly correct requiring an explanation. We find that the trial court did not err in refusing to charge the jury.

The defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with 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) regardless of whether defendant makes such a request.

Our review finds error in the commitment/minute entry. First, it is inconsistent with the record. It states that the defendant was convicted of the amended charge of manslaughter. The record, however, reflects otherwise. He was convicted of the lesser-included verdict of manslaughter. Second, although this was a jury trial, the eommitment/minute entry states that in addition to a jury 11fitrial the defendant was informed of his Boykin rights and waived them. Thus a correction of the commitment/minute entry is warranted. See, State v. Yrle, 05-202, p. 4 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200.

We also observe that the commitment/minute entry is inconsistent with the sentencing transcript. The commitment/minute entry reflects that the trial judge imposed the statutory restrictions prohibiting parole, probation, and suspension of sentence. At sentencing, however the trial judge did not impose these restrictions. It is well settled that when the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1988).

Therefore, we remand the matter and order the trial court to correct the errors in the commitment/minute entry regarding the guilty plea and the amended charge. In addition, we order that the restrictions on parole eligibility, probation and suspension of sentence be removed. We direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been señtenced. LSA-C.Cr.P. art. 892(B)(2). See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed, and the matter is remanded for correction of the minute entry in accordance with this opinion.

AFFIRMED AND REMANDED.

      . Sears is also referred to by his nickname, “Duck,” in some of the testimony.

      . The two taped statements occurred on September 22 and 27 of 2003.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Amy Steen REGGIO v. Richard Nicholas REGGIO, Jr.
    No. 06-CA-800.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      W. Kent Robertson, Jr., Metairie, Louisiana, for Plaintiff/Appellee.
    Elizabeth O. Rome, Remy Law Firm, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Richard Reggio, Jr. and Amy Steen Reggio were married February 15, 1992. They had two children during their marriage. Thereafter, the parties separated and filed for divorce. The Reggios entered into a Consent Judgment on September 7, 2004. According to that judgment, Mr. Reggio was to pay child support in the amount of $3,725.00 per month and spousal support in the amount of $3,275.00 per month.

The monthly support amounts in the Consent Judgment were based on Mr. Reggio’s monthly income of $15,000.00 that he attested to in his affidavit of August 26, 2004. At that time he was employed overseas by Likpin, a company in Dubai, UAE. Thereafter, Mr. Reggio moved back to the United States and in May 2005, he was employed in Houston, Texas with Wilibros USA, Inc. earning $125,000.00 per year, or approximately $10,000.00 per month, according to pay stubs and a letter from his employer.

On March 5, 2005, Ms. Reggio filed a Rule for Increase in Child Support and For Final Permanent Periodic Spousal Support alleging Mr. Reggio was earning in excess of $250,000.00 per year, significantly more than when support was originally ordered by the court. Mr. Reggio filed a Rule to Modify/Decrease 1¿Child Support and to terminate Spousal Support on March 30, 2005. Mr. Reggio alleged his child support obligation should be reduced because the tuition expenses for the children were less and his income had not increased. He also alleged that Ms. Reggio had made no reasonable attempts to gain employment.

Both motions were heard by a hearing officer on May 25, 2005. On that date, the hearing officer made a recommendation that Mr. Reggio pay $1,993.00 per month in child support and $2,007.00 per month in interim periodic spousal support. The trial court adopted the hearing officer’s recommendations as an interim order and advised both parties that they had three days to file the appropriate objection if they disagreed with the recommendation.

On May 31, 2005, Ms. Reggio filed a Motion to Reset Hearing On Rule to Decrease Child Support and Interim Periodic Support, objecting to the recommendation made by the hearing officer on May 25, 2005. The parties agreed to submit the matter to the court by brief only. On January 23, 2006, the trial court rendered a judgment setting child support at $3,647.00 per month and spousal support at $4,000.00 per month, both retroactive to March 5, 2005. The trial court also found Ms. Reggio capable of finding a job since the youngest child is in school and the mother must find employment to help support her family.

Mr. Reggio filed a motion for new trial on January 30, 2006. The trial court denied the motion on April 5, 2005. Mr. Reggio then filed a Motion for Appeal.

DISCUSSION

Mr. Reggio has appealed the trial court’s judgment setting child support and spousal support. Mr. Reggio submits that the trial court lacked authority to make any rulings in this matter on January 23, 2006 because Ms. Reggio had failed to file a written objection within three days of the hearing officer’s recommendation and receiving the court’s ruling. Mr. Reggio also argues the trial court erred in | ¿calculating child and spousal support. Mr. Reggio argues the trial court erred by setting support higher than the amount set by the hearing officer, even though his income has decreased. Mr. Reggio argues the trial court deviated from the child support guidelines, but provided no reasons. Finally, he contends the trial court did not explicitly find him to be underemployed, even though it appears the trial court used his previous higher income in calculating support.

For the reasons which follow, we vacate the trial court’s judgment and remand the matter to the trial court for further proceedings.

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). State, Dept. of Social Services ex rel. Clark v. Ruiz, 04-1064 (La.App. 5 Cir.2005), 898 So.2d 514, 518, citing, Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). A trial court’s child support order will not be reversed except for abuse of discretion. State, Dept. of Social Services ex rel. Clark v. Ruiz, supra, citing Hogan v. Hogan, 549 So.2d 267, 271 (La.1989).

First, we note that Ms. Reggio’s Motion to Reset Hearing objecting to the hearing officer recommendations was timely filed. La. R.S. 13:717 F(4)(a) provides:

If no objection to the hearing officer’s recommendation is filed in writing with the district court judge having jurisdiction over the case, within three days of rendition and notification ... exclusive of weekends and holidays, the order shall become a final judgment of the court and shall be signed by a judge of the 24th Judicial District Court and is appealable as any other final judgment.

The hearing officer issued the recommendation on May 25, 2005 and the trial court adopted it as an interim order. The objection by Ms. Reggio was filed Lon May 31, 2005. May 28, 2005 was a Saturday, May 29, 2005 was a Sunday, and May 30, 2005 was Memorial Day holiday. La. C.C.P. art. 5059 provides that a legal holiday is to be included in the computation of a period of time except when the period is less than seven days. This objection had to be filed within three days, which is less than seven days. Therefore, the legal holiday and weekend days are not counted and May 31, 2005 was the third day. Therefore, the objection was timely filed in accordance with La. R.S. 13:717 F(4)(a).

Next, after a review of the record, we find we are unable to ascertain how the trial court arrived at the amount of child and spousal support set forth in its judgment. We further find there is insufficient proof of Mr. Reggio’s income provided in the record.

In setting or modifying a child support award, the trial court must use the child support guidelines as provided by statute. La. R.S. 9:315(A). The trial court may deviate from these guidelines if their application would not be in the best interest of the child or would be inequitable to the parties. La. R.S. 9:315.1(B)(1). In order to calculate a basic child support obligation, La. R.S. 9:315.2 provides:

A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payment of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
B. If the party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.
C. The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his orj^her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.
D. The court shall determine the basic child support obligation amount from the schedule in R.S. 9:315.19 by using the combined adjusted gross income of the parties and the number of children involved in the proceeding, but in no event shall the amount of child support be less than the amount provided in R.S. 9:315.14.
E. After the basic child support obligation has been established, the total child support obligation shall be determined as hereinafter provided in this Part.

In cases where the record contains inadequate information and documentation upon which to make a child support determination under the guidelines, a remand to the trial court is necessary. Inzinna v. Acosta, 623 So.2d 1357, 1359 (La.App. 5 Cir.1993). If a party fails to provide the verified income statements or if the statement reflects an inaccurate picture of a person’s income, the court may then consider income potential; but if the court does so, it must articulate sufficient reasons for the record so that a reviewing court might understand the court’s reasoning. Ventura v. Rubio, 00-0682 (La.App. 4 Cir. 3/16/01), 785 So.2d 880.

We find the income statements and documentation provided by Mr. Reggio do not sufficiently establish his income. Mr. Reggio had recently sought employment in the United States, as opposed to overseas, and his income had substantially decreased. Ms. Reggio argued that Mr. Reggio was underemployed and capable of continuing to earn the higher salary. The trial court had the ability to consider Mr. Reggio’s income potential and whether or not he was underemployed. However, in its judgment, the trial court did not provide any reasons or a basis for its award of child and spousal support, nor did it implicitly or explicitly find whether or not Mr. Reggio was underemployed. We also note that [7the record contains no information regarding Ms. Reggio’s education or past work experience in order to attribute a particular income to her. Because of the lack of reasons provided with the judgment and lack of evidence in the record, we cannot ascertain how the trial court arrived at the amount of child support set forth in its judgment.

Since the required documentation and evidence is lacking, and the trial court failed to include any reasons for its judgment, we find the trial court’s award is an abuse of discretion. Therefore, we remand this matter to the trial court for further proceedings in order to determine specifically Mr. Reggio’s average monthly income, whether or not Mr. Reggio is underemployed, and what income should be attributed to Ms. Reggio for her lack, of employment.

Accordingly, we vacate the trial court’s judgment and remand the matter to the trial court for further proceedings.

JUDGMENT VACATED; MATTER REMANDED.


author: SUSAN M. CHEHARDY, Judge.

text:
    In re INTRA FAMILY ADOPTION OF A.G.T. by her Stepfather, J.L.S.
    No. 06-CA-805.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.
    Writ Denied May 4, 2007.

      Kenneth A. Goodwin, New Orleans, Louisiana, for Plaintiff/Appellee, J.L.S.
    Terri M. Miles, Gretna, Louisiana, for Defendant/Appellant, R.P.T.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2This is an appeal of a final decree of adoption, issued after the trial court found the biological father had forfeited his right to consent to the adoption by failing to make child support payments for a period of six months or more and by failing to communicate with the child for a period of six months or more. The biological father has filed a suspensive appeal. We affirm.

FACTS

S.L.S. and R.P.T. were married in 1988 and a child was born of the marriage in 1993. The couple divorced in 1995. In 1996 the mother, S.L.S., was awarded sole custody of the child, A.G.T. The father, R.P.T., was awarded visitation rights on a schedule set out in the judgment. In 1997 S.L.S. married J.L.S. As AG.T.’s stepfather, J.L.S. is the petitioner for adoption.

| ¡¡Pursuant to an October 11, 2001 judgment of the district court, R.P.T. was obligated to make child support payments of $534.25 per month on the first day of each month. On August 1, 2005 R.P.T. made his monthly child support payment.

On August 28, 2005 — the day before Hurricane Katrina — S.L.S., J.L.S., and A.G.T. evacuated to Baton Rouge, where they checked into a hotel. S.L.S. telephoned R.P.T., who lives in Baton Rouge, and told him he could exercise visitation with his daughter since they were in Baton Rouge, and he did so. R.P.T., however, did not see his daughter or make child support payments for several months thereafter.

We take judicial notice that Hurricane Katrina struck south Louisiana on August 29, 2005. Its devastating effects have been well-documented not only by the popular media, but also in official records. The effects include lengthy displacement of persons living in the affected area, as well as disruption of public services, private businesses, and government functions for weeks and months afterward. Jefferson Parish, where A.G.T., S.L.S. and J.L.S. live, is within the affected area.

On April 13, 2006, J.L.S., as A.G.T.’s stepfather, filed the instant proceeding for intrafamily adoption of A.G.T. in the juvenile court. His petition alleged that R.P.T. had “refused or failed to comply with the court order of support without just cause for a period of at least six months, the last payment being made on or about August 1, 2005.”

The petition for adoption was tried on June 5, 2006.

At the hearing S.L.S. testified that she, J.L.S., and A.G.T. stayed at the Baton Rouge hotel for about ten days after the hurricane, then moved to a house in |4Baton Rouge for about two weeks. They returned home to Metairie before the end of September 2005, because their house had sustained no significant damage from the storm. They have lived there ever since. Further, their telephone was functional when they returned home and has continued to be functional since then.

S.L.S. said that while they were still in Baton Rouge, after they had moved from the hotel to a house, she attempted to locate R.P.T. to let him know where they were. She went to his home, which is in Baton Rouge, but he was not there. She left a note on his front door, telling him how to get in touch with them and where they were, and also left a note for him at the hotel where they had stayed. She said she did not telephone him because “phones weren’t working real well in Baton Rouge, sometimes you would get calls, sometimes you wouldn’t.”

Even after they returned home, she said, when they would leave the house they would leave a note on the front door in case R.P.T. came by. S.L.S. testified, “[W]e never saw him, never heard from him again ... until April.”

Around the end of March 2006, R.P.T. began calling A.G.T. on her cell phone again. A.G.T. did not call him back because she did not want to see him.

S.L.S. testified further that on April 28, 2006, R.P.T. called her to arrange for visitation with A.G.T. He also gave S.L.S. a check for child support.

A.G.T. testified that her father had not called her on her home telephone since before the hurricane. He had called her cell phone beginning at the end of March (2006), but she did not answer the calls and did not call him back. She testified she calls J.L.S., her stepfather, “Dad,” he drives her to school every morning, she has a good relationship with J.L.S., and she loves him. J.L.S. has two adult children, a son and a daughter, her stepbrother and stepsister. A.G.T. testified she is very close to her stepsister, and also very attached to her | Rstepbrother’s son. A.G.T. said she wanted J.L.S. to adopt her and to become her father officially.

On cross-examination by R.P.T. (who represented himself at the adoption hearing), A.G.T. denied receiving any e-mail messages from him, or receiving any Christmas or birthday cards from him. He asked her, “Do you love me?,” and she told him, “Not right now.” When he asked why she did not want to see him any more, she said, “I don’t want to see you because you didn’t ... bother to come ... see me, you haven’t called till just recently. You haven’t sent me any e-mails, you haven’t tried to come see me, or talk to me at all.”

The court asked A.G.T. whether there was anything else she wanted to tell the court in connection with the adoption, and A.G.T. responded, “I very much want it to happen and that’s all.” The court asked whether anyone had put any pressure on her to say that, and A.G.T. responded, “No, that’s my opinion, that’s how I feel.”

R.P.T. testified as the only witness in his own behalf. He read into the record a letter he had written as an answer to the petition for adoption, in which he stated he had sent regular child support payments for years, with the last one for August of 2005; that after Hurricane Katrina hit, he did not know where S.L.S. had moved; that there had been no return phone calls and no visitation since August 28, but that he had made numerous attempts by cell phone.

R.P.T. stated he mailed a motion to obtain overnight visitation in November 2005, but the district court did not receive it. He submitted the same motion on December 15, 2005, but it was denied because it was not in proper form. He submitted a revised motion on January 10, 2006, to which S.L.S. responded with an exception of prematurity.

| f,R.P.T. testified he tried to pick up his daughter on Sunday, April 9, 2006, but no one was at the Metairie home. He said he sent child support checks in February 2006 and March 2006, but neither check was cashed. Because those two checks were never cashed, he sent no more checks until he handed S.L.S. a check on April 28, 2006, in front of the hearing officer. He said that check also had not been cashed. R.P.T. also produced telephone records showing he placed calls to A.G.T.’s cell phone several times in March and April of 2006.

At the time of trial R.P.T. was working offshore, on a schedule of three weeks on and three weeks off. Until February 2006, however, he had worked for a land-based company in Baton Rouge. He admitted he had the ability to make child support payments. He also admitted he had failed to make child support payments from August 2, 2005 until February 3, 2006, but said it was because he was unable to locate S.L.S. or A.G.T. He admitted he did not drive to the Metairie home of S.L.S. and A.G.T. during that time. He testified he tried calling A.G.T. to set up visitation, and tried calling S.L.S., but never heard from either of them.

On questioning by the court, R.P.T. admitted that after his one visit with A.G.T. on August 28, 2005, when he picked her up from the hotel in Baton Rouge, he did not return to the hotel. He said he phoned the hotel on September 3 or 4, 2005, but when he tried again later, he spoke to J.L.S.’s son, who told him S.L.S. and A.G.T. had moved out and had rented a house in Baton Rouge. He admitted he did nothing after that. He claimed he tried calling the land line phone to their Metairie home three or four times, but couldn’t get through.

On July 24, 2006 the parties returned to court in order to receive the court’s decision. The court issued a Final Decree and Judgment that granted the petition for adoption.

|7In lengthy and thorough written Reasons for Judgment, the juvenile court recounted the procedural history of the matter, as well as the documentary and testimonial evidence the court considered. The court concluded that R.P.T.’s financial support had been neither substantial nor consistent, and noted specifically that R.P.T. admitted he had paid no child support from August 2005 to February 2006, while S.L.S. claimed she received no payments from R.P.T. until April 27, 2006, when he handed her a check while the parties were at a hearing on his request for increased visitation.

The court found the evidence and testimony supported S.L.S.’s assertions that R.P.T. had ample resources and opportunity to locate her and pay her child support. The court stated it gave no weight to the “self-serving testimony” of R.P.T. that he sent two checks to S.L.S. beginning in February 2006. The court found that J.L.S. proved by clear and convincing evidence that R.P.T. failed to pay court-ordered child support from August 2005 through April 2006, a period in excess of six months. Based on all the testimony, the court held that R.P.T. had forfeited his right to consent to the adoption.

In an abundance of caution, the court also addressed the second ground listed in La.Ch.C. art. 1245(C), visits and contact with the child. The court found R.P.T.’s testimony that he did not know where to find S.L.S. to arrange a visit with A.G.T. was not credible. The court stated the evidence and testimony supported S.L.S.’s assertions that R.P.T. had ample resources and opportunity to locate S.L.S. and arrange visitation with A.G.T., and that S.L.S. made no attempt to hide A.G.T. from R.P.T.

The court held J.L.S. had proved by clear and convincing evidence that R.P.T. did not attempt to visit or contact A.G.T. from the end of August 2005 |sthrough late March 2006, a period in excess of six months. In addition, the court found that R.P.T. failed to prove he had just cause for not visiting or communicating with A.G.T. The court stated it was another basis to find that R.P.T. had forfeited his right to consent to the adoption.

Finally, the court concluded the adoption is in the best interest of the child. The court determined that S.L.S. and J.L.S. have provided a safe and stable home for A.G.T., and that J.L.S. wants only the best for the child, and loves her as his own daughter. The child’s situation with them presents no concerns as to her safety or well-being. The court also reviewed the “volatile history and legal battle” between S.L.S. and R.P.T., to determine whether the relationship between A.G.T. and her legal father, R.P.T., should be severed forever out of concern for her best interests.

The court noted that in 1997 R.P.T.’s visitation with A.G.T. had been modified to require that all of his visits be supervised, and he was stripped of all overnight visitation. On April 7, 2005 the parties stipulated to a consent judgment on the record, which terminated overnight visitation and limited day visits to every other Sunday. However, R.P.T. refused to sign the consent judgment, despite having stipulated to its terms.

The court also referred to testimony by S.L.S. and R.P.T. regarding R.P.T.’s unauthorized entry into the home of S.L.S. several years ago while the family was out of town. R.P.T. was found civilly liable on July 13, 1999 for breaking into and entering their house, vandalizing A.G.T.’s bedroom, and burglarizing the home. The court stated, “This event is a clear indication into [R.P.T.j’s character and extremely poor judgment.”

The court also noted there were verbal altercations between S.L.S. and R.P.T., and between R.P.T. and J.L.S., and that “[R.P.T.j’s actions as a parent were 19inappropriate.” The court took notice of two custody evaluations performed by Dr. Karen Van Beyer, who recommended that sole custody remain with S.L.S. In particular, the court noted a comment that R.P.T. told the court-appointed visitation supervisor that he would rather remain in conflict with S.L.S. than co-parent, because the conflict made him feel better. Further, despite RJP.T.’s completing recommended parenting classes, in a re-evaluation on March 15, 2004 Dr. Van Beyer again gave poor marks to R.P.T.’s parenting skills.

The court concluded,

[R.P.T.] has consistently shown that he prefers conflict and drama over the best interests of his daughter... .The testimony presented by [J.L.S.] paints a picture of a large, extended and loving family that provides A.G.T. with security and love. In contrast, her relationship with her father has been fraught with turmoil, conflict with her mother, and dysfunction, at best. Given her age and level of maturity, this Court gives credence and weight to the wishes of A.G.T. in rendering this decision.
The decision to terminate a parent’s rights to a child is always a difficult choice for the Court. [R.P.T.] shows no change of heart towards his past behavior, nor does he take any responsibility for the conflicted relationship with his daughter. He makes no apologies, nor does he recognize any wrongdoing. Considering all of the testimony and evidence submitted, the demeanor and credibility of the witnesses, this Court finds [R.P.T.] failed to rebut the presumption in favor of A.G.T.’s adoption by [J.L.S.].

ASSIGNMENTS OF ERROR

On appeal, R.P.T. asserts the juvenile court erred in failing to apply Executive Orders No. KBB 2005-32, 2005-48 and 2005-67 to this case; in failing to apply the doctrine of lis pendens and res judicata to the adoption proceeding; in finding that R.P.T. failed to communicate or attempt to communicate with the child after Hurricane Katrina; in finding that R.P.T. did not pay child support for six months as a basis for terminating his parental rights; and in finding that the |inadoption was in the best interests of the child. He also contends that his rule for visitation filed in December 2005 interrupted the six-month peremptive period of La.Ch.C. art. 1245.

LAW AND ANALYSIS

Among the types of adoptions authorized by the Louisiana Children’s Code is intrafamily adoption, which refers to adoption by a stepparent or certain other relatives of the child. La.Ch.C. arts. 1170, 1243. Unless parental rights have been terminated in accordance with law, consent to the adoption of a child or relinquishment of parental rights shall be required of the father of the child if the child was born of the marriage. La.Ch.C. art. 1193(2)(a).

The consent of the parent required by Article 1193 may be dispensed with, upon proof that the spouse of a stepparent petitioner has been granted sole or joint custody of the child and the other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months, or the other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months. La.Ch.C. art. 1246(0(1X2).

The court is to hear and take into consideration information from all sources concerning the intrafamily adoption, and the basic consideration shall be the best interests of the child. La.Ch.C. art. 1255(A). When the court has granted custody to the child’s parent married to the stepparent petitioner, there shall be a re-buttable presumption that this adoption is in the best interests of the child. La.Ch.C. art. 1255(B).

“The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” La.Ch.C. art. 1035(A). “To prove a matter by clear and convincing evidence means to | n demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence.” In re Bourgeois, 04-1466, pp. 6-7 (La.App. 5 Cir. 4/26/05), 902 So.2d 1104, 1108.

“When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” In re Bourgeois, 04-1466, p. 7, 902 So.2d at 1108.

The party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. However, even upon finding that a parent has lost his right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interest of the child. The trial judge is vested with great discretion in determining whether an adoption is in the best interest of the child and each case must be decided on its own facts. The trial court’s discretion is not absolute and a determination of best interest is subject to reversal if the record reveals manifest error in the determination. [Citations omitted.]

In re Orgeron, 94-458, pp. 4-5 (La.App. 5 Cir. 11/16/94), 646 So.2d 1137, 1139.

Here, the juvenile court determined that R.P.T. had failed to comply with a court order of support for more than six months without just cause, and also had failed to visit, communicate, or attempt to communicate with A.G.T. for at least-six months without just cause. “[Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review.” Parish Nat. Bank v. Ott, 2002-1562 (La.2/25/03), 841 So.2d 749, 753. In this case, the juvenile court’s factual findings were reasonable and were based on reasonable credibility determinations. Nor were the findings clearly wrong. Hence, we cannot reverse the judgment.

|12The juvenile court did not believe R.P.T.’s testimony that he sent checks to S.L.S. beginning in February 2006. The court determined that R.P.T. failed to make his child support payments under the October 11, 2001 judgment, which were due on September 1, October 1, November I, and December 1, 2005, as well as January 1, February 1, March 1 and April 1, 2006. Thus, by the time the petition for intrafamily adoption was filed on April 13, 2006, R.P.T. was eight months in arrears on child support. The court further found the evidence and testimony showed R.P.T. had ample resources and opportunity to locate S.L.S. and A.G.T. in order to pay child support and visit with A.G.T.

Based on the record, we find no manifest error in those determinations. The court did not err in determining that R.P.T. forfeited his right to object to the adoption of A.G.T. by her stepfather, J.L.S. Further, the evidence was clear and convincing that the adoption is in the best interests of A.G.T., and R.P.T. failed to rebut the presumption that the step-parent adoption is in the child’s best interests.

We also agree with the court’s determination that R.P.T.’s filing of a rule for visitation in the district court in December 2005 did not interrupt the six-month time period under La.Ch.C. art. 1245. As the court found, R.P.T. had resources and opportunity to discover that his daughter and her mother had returned to and were living in their home in Metairie. Thus, he could have both paid child support and contacted/visited his daughter, but he did not do so, and he did not establish just cause for his failures.

R.P.T. contends the trial court erred in failing to apply Executive Order Nos. KBB 2005-32, 2005-48 and 2005-67, issued by the Governor of Louisiana following Hurricane Katrina. Executive Order KBB 2005-32 provided that “all deadlines in legal proceedings, including liberative prescriptive and preemptive periods in all courts, ... are hereby suspended until at least September 25, 2005.” 11sExecutive Order KBB 2005-48 extended that time period until October 25, 2005 in all parishes except Calcasieu, Cameron, Jefferson Davis and Vermillion.

R.P.T. argues the executive orders extended the six-month deadline imposed by La.Ch.C. art. 1245. In effect, that would mean he had an extra two months within which he could refuse or fail to pay support and/or communicate, visit or attempt to communicate or visit with his child before losing his right to object to the intra-family adoption.

We find no merit to this assignment of error. It is an argument that was not made to the trial court and, thus, under the Uniform Rules, Louisiana Courts of Appeal, Rule 1-3, we cannot consider it.

Even addressing the issue in an abundance of caution, we conclude there can be no suspension of the natural father’s obligation to support his child. La.R.S. 9:5821 to 9:5825 were passed by the state legislature to ratify the governor’s executive orders regarding prescription and peremption of rights. They specifically extended the period for timely filing of documents and pleadings required by law. However, there is nothing to indicate the orders or statutes excused an obligation to pay support.

R.P.T. was able to use the district court to file a rule to increase his visitation in December 2005 and January 2006, and also to serve S.L.S. with the rule, but he did not avail himself of such legal recourse to ensure he would not be remiss with regard to his child support obligation. As argued by J.L.S. in his brief as appellee, it was R.P.T.’s obligation to pay child support and it was S.L.S.’s right to receive that child support.

R.P.T. also assigns as error the juvenile court’s failure to apply lis pendens and res judicata to the adoption proceedings. We find no merit to that assignment. _J_^The adoption proceeding in juvenile court was separate and apart from any custody/visitation/child support proceeding in the district court. Under La.C.C.P. art. 531, the doctrine of lis pendens applies only where the second pending suit is on the same transaction or occurrence, between the same parties in the same capacities. The petitioner in the adoption proceeding is J.L.S., who is not a party to the district court proceedings, so there is no identity of parties. Further, the cause of action in the adoption proceeding is not the same as the causes of action in any custody/visitation/support proceeding. Thus, exceptions of lis pendens and res judicata cannot apply.

Considering the record in its entirety, therefore, we find no merit to the defenses asserted by R.P.T., and we find no manifest error in the juvenile court’s determination that R.P.T. forfeited his right to object to the adoption of his daughter by her stepfather and that the adoption is in the best interests of the child. Accordingly, the judgment is affirmed. Costs of this appeal are assessed against the appellant, R.P.T.

AFFIRMED.

      .La.Ch.C. art. 336 provides:
      A. Except as provided by Paragraphs B and C of this Article, the effect of a judgment shall not be suspended by an appeal, unless the trial court or a court of appeal directs otherwise.
      B. A parent shall have the right to appeal suspensively from any ruling terminating his parental rights, including a judgment of adoption, notwithstanding the power of the court to order the commencement or continuation of temporary custody of the child with persons other than the parents.
      C. A suspensive appeal shall not suspend the execution of the judgment insofar as the judgment relates to custody or child support.

      . We use initials in order to maintain confidentiality pursuant to La.Ch.C. art. 412.

      . See State of Louisiana Executive Orders No. KBB 2005-32, KBB 2005-48, and KBB 2005-67; La.R.S. 9:5821, et seq.; State v. All Property and Cas. Ins. Carriers Authorized and Licensed To Do Business In State, 2006-2030, p. 2 (La.8/25/06), 937 So.2d 313, 316; Kimbrough v. Cooper, 2005-2335 (La. 11/22/05), 915 So.2d 344.

      . "If the child to be adopted is twelve years of age or older, the court shall solicit and consider his wishes in the matter.” La.Ch.C. art. 1253(C).

      . In other words, the intrafamily adoption did not require R.P.T.’s consent.

      . Executive Order KBB 2005-67 extended the legal deadlines in those four parishes until November 25, 2005.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Shane A. FALCON.
    No. 06-KA-798.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, James W. Adair, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plain-tifflAppellee.
    Frederick J. Kroenke, Jr., Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Shane Falcon, Jackson, LA, pro se.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

I ¡¿The Defendant, Shane Falcon, appeals his conviction for solicitation to commit second degree murder of his estranged wife, in violation of La.R.S. 14:28.1, and his sentence of 17 years imprisonment at hard labor. We affirm the conviction, vacate the sentence and remand for further proceedings consistent with this opinion.

The Defendant was charged with the offense in October 2002. He pleaded not guilty, and not guilty by reason of insanity. The State subsequently amended the bill of information to charge different dates of the offense, the Defendant maintained his pleas, and a sanity commission was appointed. In May 2004, the Defendant and the State stipulated to the sanity commission report finding the Defendant legally sane at the time of the offense. Following a jury trial in March 2005, the Defendant was found guilty as charged.

IsOn May 16, 2005, the Defendant filed motions for post-verdict judgment of acquittal and new trial. The Defendant was then sentenced. He orally made a motion to reconsider the sentence, which was denied. The Defendant subsequently appealed.

In November 2001, Penny Falcon filed for divorce from the Defendant, her husband of 20 years. In March 2002, she obtained a protective order against the Defendant. In June, while the protective order was still in effect, Ms. Falcon discovered the Defendant crouching behind her vehicle when she exited a fitness center. The Defendant was arrested. He was incarcerated for approximately ten days.

While in jail, the Defendant met Billy Jackson. Jackson had prior theft convictions, but had also worked as a paid police informant in Texas between 1995 and 1999. According to Jackson, the Defendant often mentioned that he wished he could pay someone to have his wife killed, because he had worked all his life for everything he had and did not want his wife to take half of it in the divorce proceedings. He also believed that she was having an affair. He made these comments in front of other inmates. Although the Defendant did not name a price he would be willing to pay, one of the men in their cell mentioned $12,000. The Defendant commented that $12,000 was too much.

Jackson saw this situation as an opportunity to make money at the Defendant’s expense. He led the Defendant into believing that he might be able to help the Defendant find someone to kill Ms. Falcon. Before his release, the Defendant gave Jackson his contact numbers. After his release, the Defendant helped Jackson make telephone calls to Jackson’s daughter and his former |4girlfriend, Kimberly Robertson, through a three-way telephone call process. Robertson and Jackson had worked together as paid informants in Texas. Jackson testified that he had no intention of actually helping the Defendant kill his wife, nor was it his intent to get the police involved.

Jackson wrote letters to Robertson telling her about the Defendant and his desire to have his ex-wife killed. He also outlined his own plan to make money by making the Defendant think he was going to help him with his ex-wife’s murder. Jackson told Robinson not to contact Detective Matt Parrish, the Texas police officer with whom he and Robertson had worked as paid informants, about this scheme. Jackson also promised to give the money he received from the Defendant to Robertson. He urged her to assist in the plan to coerce money out of the Defendant by mentioning in one of the three-way telephone calls that Jackson owed her $600 for child support.

Jackson testified that the Defendant continued to talk about finding someone to kill Ms. Falcon during the three-way telephone conversations he had with Robertson. In the last call between the three, Jackson told the Defendant that a man named Joe (a fictitious name) could do it. However, nothing further was said as the prison terminated the call. Jackson was not contacted again by the Defendant. He later discovered the Defendant was in jail on the current charge.

Robertson testified at trial and indicated that she initially did not believe that the situation was real. However, she later realized the Defendant was in fact serious in his intentions to have Ms. Falcon murdered. In addition, the Defendant left her a message with a code to pick up money at a Western Union office. She believed the Defendant sent the money to give to the fictitious Joe as payment for |ffhim to come to New Orleans to kill the Defendant’s wife. After realizing the Defendant really intended to hire a contract killer, she contacted Detective Parrish. He advised her to pick up the money. Robertson picked up a $100 money order from Western Union on August 3, 2002. The receipt showed it was sent from “Shane Falcon” in Kenner, Louisiana. Robertson turned over the money to Detective Parrish.

Detective Parrish contacted the federal authorities. The case was eventually assigned to Detective Robert McGraw of the Kenner Police Department. An operation was set up in which Kenner police officer Lieutenant Glen Synigal agreed to pose as the hit man named Joe.

On Friday, August 9, 2002, the Lieutenant telephoned the Defendant, identifying himself as Joe from Texas. He told the Defendant that he was in Kenner, and wanted a photograph of the Defendant’s ex-wife as well as her home and work addresses. The two men met in a local discount store parking lot.

During the first meeting between the two men, the Defendant gave the Lieutenant Ms. Falcon’s name, home and work addresses, ear description, and work schedule. He also offered to show Lieutenant Synigal where she lived. He showed the officer a photograph, but did not give it to him, because it also included his children. They discussed the best possible location and method for the murder, including the possibility of disguising it as a robbery near Ms. Falcon’s work. The Defendant also suggested that they wait approximately three weeks, because the Defendant expected to obtain favorable results for his child custody schedule within that time. The Defendant worried that the death would appear suspicious if it occurred before the court date.

| ^During the negotiations about payment, the Defendant appeared nervous and upset. He explained to the Lieutenant that Jackson was initially supposed to do the job, but later changed his mind, claiming he had a friend that owed him a favor that would do it instead. The Defendant continuously complained that he did not want to talk to Joe and did not want to know any details of the murder.

At points during the conversation, the Defendant stated that he was afraid. He also expressed doubts about going through with the job. However, it was clear that his true concern was being caught and going back to jail. He justified his actions to the Lieutenant by telling him that his wife was going to take everything in the divorce. After the Defendant indicated some uncertainty, the Lieutenant told him that it was up to the Defendant to decide his intention. Instead of withdrawing from discussions, the Defendant resumed negotiations over the price.

The Lieutenant told the Defendant that he wanted $11,000. The Defendant complained that he had already invested approximately $2,000 in the deal, including $500 he paid to Jackson’s lawyer, and the money for clothing he sent to Jackson in jail. The Lieutenant agreed to settle for $5,000, $2,000 in advance. In an attempt to raise the payment, the Lieutenant questioned whether the Defendant would get any life insurance proceeds as a result of the death. The Defendant was unsure, but agreed to pay the Lieutenant another $5,000 if he received any. After further negotiations, the advance payment was reduced to $1,000. The Lieutenant concluded that he would take care of the job if the Defendant was still agreeable. The Defendant promised to get the advance money to pay him.

Several days later, Lieutenant Synigal telephoned the Defendant to ask once again for a photograph, and for the down payment, explaining that he received money for living expenses while in town. During that conversation, the Lieutenant asked the Defendant if he had changed his mind. He asked the Defendant if he still 17wanted to go through with it. The Defendant answered, “[I] imagine so.” Another meeting was scheduled.

At the next meeting, the Defendant gave the Lieutenant $200 in cash, promising to pay the rest of the money the following day. The two men again discussed the timing and manner of the killing. The Defendant also described Ms. Falcon once again and provided directions to her home. The Lieutenant pressed the Defendant for more money. The Defendant responded that he might be able to get more later on, but could not pay right away because after the murder he expected to have expenses related to the death including the burial. The Lieutenant asked if the Defendant had changed his mind since their last meeting. The Defendant responded that he was “... leery about it but it’s the only way I think I can get back on my feet.” The Defendant was then arrested.

The medicaTevidence related to the Defendant’s mental cohdition showed that the Defendant had been treated for depression from December 2001 to July 2002. The Defendant had been hospitalized for two weeks following a treatment session in which the Defendant was crying and out of control. However, Dr. Richard Richoux, a psychiatrist and member of the sanity commission who examined the Defendant, testified that the Defendant knew the difference between right and wrong at the time of the offense.

The Defendant presented several character witnesses at trial. His mother and Ms. Falcon’s sister all testified that the Defendant was not violent and had never abused Ms. Falcon.

The Defendant testified in his own defense. He claimed that the idea of killing Ms. Falcon originated with Jackson, who told the Defendant that he would do the Defendant a favor by having Joe murder Ms. Falcon. The Defendant asserted that Jackson told the Defendant what to say to Joe. The Defendant said he 18thought Jackson was joking. Nevertheless, he met with Joe. The Defendant claimed that he was afraid of Joe. He insisted that he only went along with Joe, because he thought Joe was armed. According to the Defendant, he thought he would have time to back out of the deal if he did not give Joe the entire down payment. He said he intended to cut off contact with Joe during a telephone conversation. The Defendant said that he was not thinking clearly during this time, but did not want his wife killed.

On appeal, the Defendant asserts that the State failed to prove beyond a reasonable doubt that the Defendant was predisposed to commit the crime, that the trial judge erred in imposing an unconstitutionally excessive sentence, and that the trial court erred in its jury instruction on entrapment.

1) Predisposition to commit the crime

La.R.S. 14:28.1 defines solicitation of murder as “the intentional solicitation by one person of another to commit or cause to be committed a first or second degree murder.”

On appeal, contentions of entrapment are reviewed according to the constitutional standard for testing the sufficiency of the evidence as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Petta, 98-745, pp. 7-8 (La.App. 5th Cir.2/10/99), 729 So.2d 29, 32; writ denied, 99-0692 (La.9/3/99), 747 So.2d 533, cert. denied, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000); State v. Bates, 03-352, p. 4 (La.App. 5th Cir.7/29/03), 853 So.2d 71, 74; writ denied, 03-2565 (La.2/6/04), 865 So.2d 740.

Under Jackson, the evidence is sufficient if the conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most 1 ^favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310; Bates, 03-352 at p. 4, 853 So.2d at 74.

Entrapment is a defense that arises when a law enforcement official, or a person acting in cooperation with such an official for the purpose of obtaining evidence of a crime, originates the idea of the crime, and then induces the person to engage in conduct constituting the offense when that person is not otherwise disposed to do so. State v. Brand, 520 So.2d 114, 117 (La.1988); Bates, 03-352 at p. 4, 853 So.2d at 74. However, it is not entrapment if the officers or agents have merely furnished a defendant who is predisposed to commit the crime the opportunity to do so. As stated by the Louisiana Supreme Court, “In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Brand, 520 So.2d at 116; Bates, 03-352 at p. 5, 853 So.2d at 74.

The first inquiry is whether the defendant proved by a preponderance of the evidence that he was induced by an agent of the government to commit the crime. If so, the next inquiry is whether the State adduced evidence of the defendant’s predisposition to commit the crime such that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that it was the defendant’s predisposition to commit the crime, rather than the state’s inducement that caused the defendant’s conduct. Bates, 03-352 at p. 5, 853 So.2d at 74.

The evidence in this case shows the Defendant failed to establish by a preponderance of the evidence that he was induced by a government agent to hnsolicit murder. There is no evidence that either Jackson or Robertson had been an informant for anyone in Louisiana, were working on behalf of any governmental agency when these events transpired, or induced the Defendant to commit the crime. Jackson testified that the Defendant repeatedly stated that he wished he could pay someone to kill his wife. The recorded tapes and the Lieutenant’s testimony reflect the Defendant wanted his wife killed. He only hesitated once or twice when he feared that he would get caught and sent back to jail. Furthermore, Lieutenant Synigal provided several opportunities for the Defendant to change his mind, but the Defendant chose to continue with the plan.

In support of his position that he was entrapped, the Defendant points out that Jackson testified that the money sent to Robertson in Texas was for school supplies for Jackson’s daughter. The Defendant also asserts in support of his argument that the tapes show that he did not know about Joe. However, there is nothing in the evidence that supports the Defendant’s arguments.

The evidence shows that Jackson told the Defendant about Joe before the Lieutenant, acting as Joe, contacted him. The Defendant knew that the $100 he paid to Jackson was for Joe to come to Louisiana. He did not know Joe personally, but he understood that Jackson arranged for Joe to kill his wife. He did not want to meet with Joe, because he wanted to disassociate himself from the crime. Nevertheless, he voluntarily met with Joe on two occasions, and spoke to him on the telephone, concerning how the murder was to be accomplished and how much it would cost. He was reluctant to pay Joe’s asking price, because he had already paid $2,000 on Jackson’s behalf, and envisioned other expenses following Ms. Falcon’s death.

In returning the guilty verdict, the jury obviously rejected the entrapment defense. The question of whether a government agent induced an innocent person Ininto committing a crime is a jury question. State v. Hardy, 98-25, p. 9 (La.App. 5th Cir.5/13/98), 715 So.2d 466, 471. Furthermore, the trier of fact determines the credibility of witnesses, and within the bounds of rationality, may accept or reject the testimony. State v. Deruise, 98-0541, p. 26 (La.4/3/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). It is not the function of the appellate court to assess credibility or reweigh the evidence. Bates, 03-352 at p. 7, 853 So.2d at 75.

Lieutenant Synigal merely provided an opportunity in this case for the Defendant to commit a crime that he was obviously predisposed to commit. Thus, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the Defendant’s predisposition, independent of governmental action, caused him to solicit murder.

2) Jury Instruction

The Defendant contends that the trial judge gave an erroneous jury instruction requiring a reversal of his conviction. His position is that the judge failed to tell the jury that once the Defendant met his burden of proving he was induced to commit the crime, the burden shifted to the State to prove beyond a reasonable doubt that the Defendant was predisposed to commit the crime.

The record reflects that the trial judge gave the jury instructions to the State and the Defendant for their review early in the trial. On the last day of trial, during a break between witnesses in the Defendant’s case-in-chief, the trial judge asked the attorneys to confirm that the instructions were acceptable. There were no objections. The trial judge later instructed the jury on entrapment as follows:

The defendant has raised the defense of entrapment so I will now instruct you on that defense. A defendant who is instigated or induced by a law enforcement officer, or someone acting for a law enforcement officer, into the commission of a crime which he otherwise had no intention of committing is not guilty because he was 112entrapped. Entrapment is shown when it appears that an officer, or someone acting for an officer, instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing. The burden is upon the defendant to prove the defense of entrapment by a preponderance of the evidence. It is not entrapment if the defendant already had the requisite criminal intent and the officer, or someone acting for the officer, merely furnished the defendant with the opportunity to commit the offense. The fact that an opportunity is furnished or that the defendant is aided in the commission of a crime which he was predisposed to commit or originated in his own mind is no defense. There is a clear distinction between inducing a person to commit a crime and setting a trap to catch a person in carrying out criminal designs of his own conception. The primary emphasis is on whether or not the defendant had a predisposition to commit the crime. Thus, if you find 1) that the defendant did not have an intent to commit the offense charged before being instigated to commit it; and 2) that the defendant was instigated to commit the offense charged by a law enforcement officer, or by someone acting as the officer’s agent; then you must find the defendant not guilty.

After the jury retired to deliberate, the trial judge and the attorneys were discussing a point of law when the Defendant’s attorney stated that he just discovered that the jury instructions failed to state that after the Defendant proves entrapment by a preponderance of the evidence, the burden shifts back to the State to prove beyond a reasonable doubt that the person was not entrapped. The judge found the objection to be untimely.

La.C.Cr.P. art. 801(C) states that a party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection is made before the jury retires or within such time as the court may reasonably cure the alleged error. Thus, a defendant must make a timely objection under La.C.Cr.P. art. 801 in order to preserve a jury charge issue for review.

The Fourth Circuit addressed the issue of the judge’s failure to include the State’s burden of proof on entrapment in State v. Simpson, 01-1850, pp. 12-13 (La.App. 4th Cir. 10/16/02), 829 So.2d 650, 658-659. There, the instruction was deemed adequate because the charge clearly advised the jury of the two elements 11sof entrapment — inducement and predisposition— and adequately advised the jury that if the defendant had no predisposition to commit the crime but was enticed by the State to do so, he could not be convicted. Simpson, 01-1850 at pp. 12-13, 829 So.2d at 659. The Simpson court further found that the trial judge properly declined to include the instruction on the burden of proof, based on United States v. Braver, 450 F.2d 799, 805 (2nd Cir.1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972), where the Court cautioned, albeit in dicta, that an entrapment instruction should not contain references to the burdens of proof. Simpson, 01-1850 at p. 13, 829 So.2d at 659.

There are exceptions to the contemporaneous objection rule. In State v. Williamson, 389 So.2d 1328, 1331 (La.1980), the Court addressed the issue of erroneous jury instructions even though the Defendant failed to object timely, because the error related to the very definition of the crime of which defendant was convicted, and was of such importance and significance as to violate fundamental requirements of due process.

An error that is not structural does not necessarily violate fundamental due process, and thus, the defendant must make a contemporaneous objection in order to preserve the error for direct review. State v. Hongo, 96-2060, p. 4 (La.12/02/97), 706 So.2d 419, 422, ftn. 3. In addition, all constitutional errors are not structural and are subject to the harmless error analysis. Hongo, 96-2060 at p. 6, 706 So.2d at 421. Harmless error can be applied even to an invalid instruction on the elements of the crime if the evidence is otherwise sufficient to support the jury’s verdict, and the jury would have reached the same result if it had never heard the erroneous instruction. Id. The Louisiana Supreme Court has stated that Williamson did not jurispruden-tially create a “plain error” rule. State v. Howard, 14 98-0064, p. 18 (La.4/23/99), 751 So.2d 783, 804, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999).

This Court has reviewed alleged jury errors in the absence of a contemporaneous objection based on Williamson. In State v. Hollins, 99-278, p. 17 (La.App. 5th Cir.8/31/99), 742 So.2d 671, 683, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587, we found the jury charge relative to requisite intent was incorrect, but the error did not require reversal as the jury instructions as a whole correctly stated the law. In State v. Smith, 05-951, p. 16 (La.App. 5th Cir.6/28/06), 934 So.2d 269, 279-280, we found that the trial judge’s clarification of the definition of one of the elements of the crime by reference to Black’s Law Dictionary was not error, as the charges taken as a whole correctly charged the jury.

We declined to address the issues in State v. Young, 99-1054, p. 12 (La.App. 5th Cir.2/16/00), 757 So.2d 797, 803, and State v. Gardner, 05-62, p. 14 (La.App. 5th Cir.6/28/05), 907 So.2d 793, 801. In Young, we refused to address the issue in the absence of a contemporaneous objection where the complained of charge was not a misstatement of law. Likewise, in Gardner, we concluded that the defendant was precluded from raising the issue of an erroneous jury instruction on appeal without an objection. But, nevertheless, we found that the alleged error was harmless, as it did not contribute to the jury’s verdict of guilty.

In State v. Garrison, 400 So.2d 874 (La.1981), an instruction on entrapment similar to the one given in this case, was found by the Louisiana Supreme Court to have adequately instructed the jury.

|15In the instant case, the language of the instruction is identical to the jury instruction approved by the Louisiana Supreme Court in Garrison. Furthermore, the instruction recites the correct law as a whole. Thus, we find no error in the trial judge’s refusal to consider the objection.

Moreover, even if the jury instruction should have instructed the jury on the shifting burden of proof, the error was harmless. As already discussed, the police officer, posing as a hit-man, merely provided an opportunity for the Defendant to commit a crime he was predisposed to commit. The evidence was sufficient to support the jury’s verdict, and the jury would have reached the same result if it had never heard the erroneous instruction. Thus, the guilty verdict was surely unattributable to any alleged error in the trial judge’s failure to include a reference to the State’s burden to prove predisposition.

3) Excessive sentence

The Defendant contends that his sentence is excessive because he is a first offender and he had no history of violent crime.

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 unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). Even though a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. Smith, 01-2574 at p. 6, 839 So.2d at 4.

| mThe trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Polizzi, 05-478, p. 16 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 313, writ den. 06-1052 (La.11/3/06), 940 So.2d 660. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Polizzi, 05-478 at p. 17, 924 So.2d at 314.

In this case, the record reflects in chilling detail the Defendant’s actions in hiring what he believed to be a hit-man to murder Ms. Falcon, his former wife of 20 years and the mother of his children. Thus, we find that the record supports the sentence imposed.

4) Error Patent

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337, 338 (La.1975); Polizzi, 05-478 at p. 18, 924 So.2d at 315. We find one patent error.

There is a discrepancy between the sentencing transcript of May 16, 2005, and the commitment relative to the motions for new trial and post-verdict judgment of acquittal. The commitment reflects that the trial judge denied the motions for new trial and for post-verdict judgment of acquittal, but the transcript does not so reflect. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Furthermore, the record does not clearly reflect that the trial judge denied these motions in writing. The order attached to the motion for new trial is unsigned and it is not clear that the trial judge signed the order attached to the motion for post-verdict judgment of acquittal. Rather, the word “Denied” is written across the motion, with the notation “5/16/05 See Commitment.” In State 17v. Beaudoin, 06-88, p. 3 (La.App. 5th Cir.6/29/06), 939 So.2d 428, 429, this Court held that a written motion with the word “Denied” written across it and initialed by an unknown person obviously not the trial judge, did not constitute a final judgment. Thus, we find there is no ruling on either motion.

La.C.Cr.P. art. 821 provides that a defendant may move for a post-verdict judgment of acquittal following the verdict, and that such motion must be made and disposed of prior to sentencing. La. C.Cr.P. art. 853 provides the same with regard to motions for a new trial. The absence of rulings is reviewable as a patent error. State v. Christian, 05-635, p. 3 (La.App. 5th Cir. 2/3/06), 924 So.2d 266, 267; State v. Randolph, 409 So.2d 554, 555 (La.1981).

In State v. Lewis, 04-1074, pp. 12-13 (La.App. 5th Cir.10/6/05), 916 So.2d 294, 301-302, writ denied, 2005-2382 (La.3/31/06), 925 So.2d 1257, the trial court erred in failing to rule on defendant’s timely filed motion for post-verdict judgment of acquittal and motion for new trial. In conformity with Randolph, the Lewis court affirmed the defendant’s convictions and finding as a second felony offender, vacated defendant’s sentences, and remanded the case to the trial court for a ruling on the motions, reserving to defendant his right to re-institute his appeal from his convictions and sentences in the event that the rulings were adverse to him.

In conformity with Lewis, we will affirm the Defendant’s conviction, vacate the sentence, and remand for a ruling on the post-trial motions and for resentencing in the event that the motions are denied. We will reserve to the Defendant the right to appeal from any adverse rulings. See also, State v. Morgan, 05-529 (La.App. 5th Cir.12/12/06), 948 So.2d 199.

| ^Accordingly, the Defendant’s conviction is hereby affirmed. His sentence is vacated and the case is remanded for a hearing on the motion for post verdict judgment of acquittal and motion for new trial, and for re-sentencing, if the motions are denied. In the event that the rulings on the motions are adverse to the Defendant, we hereby reserve his right to appeal from those rulings.

CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED.

      . The record does not show that the trial judge ruled on either of these motions. This omission is discussed in the error patent section.

      . Robertson referred to herself as Kimberly Jackson at trial, but her legal name is Kimberly Carol Robertson. She had prior misdemeanor convictions.

      . The taped telephone conversations, voice mail messages from Ms. Jackson’s telephone, and the conversations between the Lieutenant and the Defendant were recorded, transcribed and produced for the jury at trial.

      . The Defendant does not argue that the State failed to establish the essential elements of the crime of solicitation of murder.

      . The jury instruction approved by the Garrison court is the basis for the model jury instruction on entrapment. See 17 Cheney C. Joseph, Jr. and P. Raymond Lamonica, Louisiana Civil Law Treatise: Criminal Jury Instructions § 6.24 (1994).

      . The record does not clearly reflect that the motions were filed before sentencing. But, it does reflect that they were filed on the day of sentencing at 8:58 a.m.