author: LEON A. CANNIZZARO, JR., Judge.

text:
    Murlidhar G. SADHWANI v. Darlene E. JAMES and Allstate Insurance Company.
    No. 2005-CA-0601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2005.
    Rehearing Denied Jan. 3, 2006.
    Michael J. Begoun, Wolfe, Begoun & Pick, L.L.C., New Orleans, LA, for Plaintiff/Appellee, Murlidhar G. Sadhwani.
    Lucia G. Hawks, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendant/Appellant, Allstate Insurance Company.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

|T The trial court rendered a judgment in favor of the plaintiff, Murlidhar G. Sa-dhwani, and against Allstate Insurance Company in connection with a traffic accident involving Mr. Sadhwani and Allstate’s insured. Allstate is appealing the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Sadhwani was driving down Canal Street in New Orleans when he stopped in a school zone to allow students to cross the street. A car driven by Nicole Johnson and owned by Darlene James hit Mr. Sa-dhwani’s stationary vehicle from the rear when he stopped his car. Mr. Sadhwani testified at the trial that he was a diabetic and that he was very shaky after the accident. Although his car could still be driven after the accident, Mr. Sadhwani called his daughter to drive him home from the scene of the accident, because he was not feeling well. He testified that his right knee was “hurting really bad that day.” He also said that his left shoulder was injured in the accident.

| ¡¡Mr. Sadhwani further testified regarding the medical treatment that he received for the injuries that he suffered in the accident. He said that he was treated by Dr. Chakku P. Devidoss about a week or ten days after the accident. Mr. Sadhwani stated that he told Dr. Devidoss that he “had an accident” and that his right knee was “hurting me very bad.” Mr. Sa-dhwani also said that he told Dr. Devidoss that he could only walk “once in a while.” According to Mr. Sadhwani, Dr. Devidoss said that he would give him some medicine and if the medicine did not work, then he would refer Mr. Sadhwani to a specialist. The only treatment that Mr. Sadhwani received in connection with the injuries from the traffic accident was “pain medicine.”

Mr. Sadhwani testified that his knee pain never improved. In fact, he testified that it was “getting worse and worse.” Eventually, Dr. Devidoss referred Mr. Sa-dhwani to Dr. Mark Juneau, Jr., an orthopedic surgeon, for further treatment of his knee problem. Mr. Sadhwani testified that Dr. Juneau ordered an MRI and that based on the MRI results, Dr. Juneau told him that he needed arthroscopic knee surgery. Dr. Juneau could not perform the surgery, however, until Mr. Sadhwani’s diabetes was under control, which it was not when the surgery was recommended.

| ¡¡Mr. Sadhwani further testified that he was involved in a second automobile accident approximately eighteen months after the accident that is the subject of the instant suit. He stated that he was involved in a one-car accident, “because my knee was not working.” He hit a railing in a parking lot at a Holiday Inn motel, and his car sustained extensive damage.

Finally, Mr. Sadhwani testified that Dr. Devidoss was a very attentive physician and that he took notes on the medical complaints that Mr. Sadhwani related to him. Mr. Sadhwani stated, “He write down everything what I said to him.”

Mr. Sadhwani was the only witness who testified at the trial, but the depositions of Dr. Juneau and of Dr. Devidoss were introduced into evidence. Dr. Devidoss’ deposition reflected that he was unaware that Mr. Sadhwani had been involved in the accident that is the subject of this lawsuit even though he had treated Mr. Sadhwani for a number of medical problems on a regular basis before and after the accident occurred. Dr. Juneau’s deposition reflected that Mr. Sadhwani had first seen Dr. Juneau approximately ten days after the second accident. At that visit Mr. Sadhwani told Dr. Juneau about the second automobile accident, but he did not mention the first accident.

Prior to the trial, Allstate stipulated that Ms. James, the owner of the car involved in the accident that is the subject of this case, was insured under an Allstate policy providing coverage in the amount of $10,000.00. It was also stipulated that the policy provided coverage to Nicole Johnson, the person who was driving the car with the owner’s permission when the accident occurred. Mr. Sadhwani stipulated that his damages did not exceed the $10,000.00 policy limit. 14Finally, both parties stipulated the following: (1) that the depositions of Dr. Devidoss and of Dr. Juneau would have been the testimony of the doctors had they been called to testify; (2) that the medical records submitted by the doctors in connection with their depositions were authentic; and (3) that the bills for medical services submitted by the doctors were authentic.

The trial court judge originally rendered judgment in favor of Mr. Sadhwani in the amount of $12,000.00. Because Mr. Sa-dhwani had stipulated that his damages did not exceed $10,000.00, Allstate moved to have the judgment amended. Pursuant to Allstate’s motion, the trial court judge amended the judgment to reduce the damage award to $10,000.00. Allstate is now appealing.

DISCUSSION

Allstate has raised two assignments of error on appeal. First, Allstate claims that Mr. Sadhwani failed to carry his burden of proving that his injuries were related to the accident in which his car was hit by the car driven by Ms. Johnson. Second, Allstate contends that the trial court judge erred in awarding damages to Mr. Sadhwani, because the medical evidence failed to attribute Mr. Sadhwani’s injuries to that accident.

ASSIGNMENT OF ERROR NO. 1: The judge erred in awarding damages to the plaintiff where the plaintiff failed to carry his burden of proving that the injury complained of was related to the subject accident where there was no supporting medical testimony to prove a causal connection between the injury and the subject accident.

Burden of Proof

In Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757, 759, the Louisiana Supreme Court set forth the burden of proof that must be met by a plaintiff in a personal injury case. The Supreme Court stated:

I sin a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.

Id. (citations omitted).

To meet his burden of proof Mr. Sa-dhwani was required to prove by a preponderance of the evidence that the accident involving the car driven by Ms. Johnson caused the injuries to his right leg and left shoulder. He was required to prove this through medical testimony.

Mr. Sadhwani’s Testimony

Mr. Sadhwani testified that when the car driven by Ms. Johnson hit his car, his right knee and his left shoulder were injured. He also stated that prior to the accident, he had never had any problems with his knee and shoulder. He further testified that he saw Dr. Devidoss for treatment of the injuries caused by the accident involving Ms. Johnson “about a week or ten days” after the accident. Mr. Sadhwani said that at this visit, he told Dr. Devidoss that he had been in an automobile accident.

Dr. Devidoss’ Testimony

Dr. Devidoss testified in his deposition that he regularly treated Mr. Sadhwani for diabetes, kidney problems, high blood pressure, and lung problems. He first treated Mr. Sadhwani more than a year prior to the accident involving Ms. Johnson.

Dr. Devidoss further stated that the first time he saw Mr. Sadhwani after the accident was two and a half months after the accident occurred, a much longer | fiperiod of time than the “week or ten days” to which Mr. Sadhwani testified. According to Dr. Devidoss’ testimony, at the first visit after the accident, Mr. Sa-dhwani saw Dr. Devidoss for fever, cough, fatigue, generalized muscular aches, nausea, and diarrhea. Dr. Devidoss diagnosed Mr. Sadhwani with acute bronchitis. Dr. Devidoss testified that his notes from that first visit after the accident do not reflect that Mr. Sadhwani ever mentioned that he had pain in his right leg or left shoulder or that he had been in an automobile accident, something that Dr. Devidoss said would have been important to note. Also, Dr. Devidoss’ notes do not reflect that he prescribed any medications for Mr. Sa-dhwani at that time.

Dr. Devidoss said that almost a month later, he again saw Mr. Sadhwani, who told the doctor that he had pain on the lower right side of his abdomen. Dr. Devidoss’ notes do not reflect that Mr. Sadhwani mentioned that he had been in an automobile accident. Dr. Devidoss ordered a hepatitis test and a liver function test, but he did not prescribe any medications.

Six months after the accident occurred, Mr. Sadhwani again visited Dr. Devidoss. At this third visit after the accident, Mr. Sadhwani complained of pain in his right leg, but Dr. Devidoss’ notes did not reflect that Mr. Sadhwani had mentioned that he had been in an automobile accident. Dr. Devidoss diagnosed acute arthritis and administered a cortisone injection in Mr. Sa-dhwani’s right knee.

Almost a year after the accident involving Ms. Johnson, Mr. Sadhwani went to see Dr. Devidoss regarding symptoms of gastroenteritis that had persisted for two days. Again, Mr. Sadhwani did not mention being in an automobile accident.

|7Sixteen months after the accident, Mr. Sadhwani saw Dr. Devidoss because of leg pain, back pain, neck pain, and hip pain. According to Dr. Devidoss’ testimony, he prescribed pain medication and a muscle relaxant for Mr. Sadhwani. An MRI and x-rays of Mr. Sadhwani’s back that were ordered revealed only degenerative changes in Mr. Sadhwani’s lumbar spine. Dr. Devidoss stated that Mr. Sadhwani did not mention any accident or injury that might account for his symptoms. During the next several weeks, Dr. Devidoss saw Mr. Sadhwani three more times concerning Mr. Sadhwani’s knee pain. According to Dr. Devidoss’ testimony, at the last of these visits, Mr. Sadhwani stated that he had been involved in an automobile accident the preceding day, and he complained of knee pain and a bruised abdomen. Dr. Devidoss then referred Mr. Sadhwani to Dr. Juneau.

In his deposition, Dr. Devidoss was specifically asked whether it would be “fair to say that prior to September 29, 2003 [the date on which Mr. Sadhwani advised Dr. Devidoss of the Holiday Inn parking lot accident], you can not relate any automobile accident or any fall or any type of accidental injury to the complaints that Mr. Sadhwani had prior to September 29, 2003?” Dr. Devidoss said, “That’s right.”

Dr. Juneau's Testimony ■

Dr. Juneau testified in his deposition that Mr. Sadhwani said that he had been experiencing right knee pain for approximately two weeks and that he had been involved in an automobile accident two weeks prior to the visit. Mr. Sadhwani, however, did not mention to Dr. Juneau that he had also been involved in the accident with Ms. Johnson approximately a year and a half earlier. Dr. |sJuneau testified that he took x-rays and ordered an MRI of Mr. Sadhwani’s knee. Dr. Juneau further testified that he diagnosed Mr. Sa-dhwani with degenerative changes in the right knee and a torn meniscus. Dr. Juneau recommended arthroscopic surgery for Mr. Sadhwani’s condition, but the surgery was never performed due to complications related to Mr. Sadhwani’s diabetes.

Dr. Juneau’s testified that he had no way of knowing how Mr. Sadhwani tore his meniscus. The only thing that Dr. Juneau could say was that Mr. Sadhwani had a torn meniscus and that Mr. Sadhwani had said that he was in an automobile accident two weeks prior to seeing Dr. Juneau.

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court or a jury only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Finally, where there are two permissible views of the evidence, the trial court’s or jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id. See also Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

In LeBlanc v. Stevenson, 2000-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, however, the Louisiana Supreme Court stated that “[a]lthough the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support.” (Emphasis added.) We conclude that a factual finding that is reached without evi-dentiary support is clearly wrong and manifestly erroneous.

Appellate Review

In the instant case we find that the trial court judgment was clearly without evidentiary support. Mr. Sadhwani was required to prove that his injuries were caused by the accident involving Ms. Johnson, and he did not do so. After a thorough review of the record, we conclude that Mr. Sadhwani presented no medical evidence showing a causal connection between the accident with Ms. Johnson and any injuries to his right knee and left shoulder. ■ The evidence instead shows that after the accident with Ms. Johnson but before the accident in the Holiday Inn parking lot, Dr. Devidoss treated Mr. Sa-dhwani on an ongoing basis for numerous medical problems, most of which were completely unrelated to his right knee or his left shoulder. Further, at no point during that time did Dr. Devidoss note that Mr. Sadhwani had been in an automobile accident involving Ms. Johnson.

|1t1The only automobile accident Dr. De-vidoss noted was the accident in the Holiday Inn parking lot that occurred a year and a half after the accident that Mr. Sadhwani alleged had caused his injuries. Mr. Sadhwani only consulted with Dr. Juneau after the second accident, which occurred in the motel parking lot. Although he advised Dr. Juneau of that accident, there is no medical evidence in the record before us to support a finding that Mr. Sadhwani mentioned to Dr. Juneau the earlier accident with Ms. Johnson. The only testimony that supported Mr. Sa-dhwani’s claim that he was injured in the accident involving Ms. Johnson was his own testimony. After a thorough review of the record in this case, we find that Mr. Sadhwani did not prove that the accident with Ms. Johnson caused the injuries to his right knee and his left shoulder. For that reason, the judgment of the trial court finding that the accident with Ms. Johnson caused Mr. Sadhwani’s injuries is reversed.

ASSIGNMENT OF ERROR NO. 2: The judge erred in awarding damages to the plaintiff where the plaintiffs treating physician failed to relate the injury, more probable than not, to the subject accident, but instead related the injury to a subsequent accident.

Because we have determined that Mr. Sadhwani did not prove that the accident with Ms. Johnson caused his right knee and his left shoulder injury, Mr. Sadhwani is not entitled to damages. The damage award is, therefore, reversed.

CONCLUSION

The judgment of the trial court is hereby reversed. Mr. Sadhwani did not meet his burden of proof and is not entitled to damages from Allstate.

REVERSED.

      . MRI is an acronym for magnetic resonance imaging, which is a procedure in which a magnet linked to a computer is used to create , detailed images of areas inside the body.

      . Knee arthroscopy is a surgical procedure in which a small camera attached to a video monitor is used to examine or repair tissues inside the knee joint with special instruments.

      . Gastroenteritis is an inflammation of the mucous membranes of the stomach and intestines.

      . The lumbar spine is that portion of the spine commonly referred to as the small of the back.

      . The meniscus is cartilage inside the knee joint.

      . The trial court judge gave no reasons for her judgment on the issue of causation, and there is nothing in the record to support the trial court’s finding that the accident with Ms. Johnson caused Mr. Sadhwani's injuries.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Nathaniel DOWL, Jr. d/b/a Convenience Rent-a-Car v. Walter DOBARD and Allstate Indemnity Company.
    No. 05-CA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2005.

      Nathaniel Dowl, Jr., I.P.P., in Proper Person, New Orleans, Louisiana, Plaintiff/Appellant.
    Christopher E. Lawler, Brandi F. Er-mon, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

1 ¡.Plaintiff, Nathaniel Dowl, Jr. d/b/a Convenience Rent-a-Car, brought this petition for damages on April 12, 2004 naming as defendants Allstate Indemnity Company and Walter Dobard. Plaintiff alleged in the petition that Walter Dobard was in possession of a rental vehicle owned by Convenience Rent-a-Car and that on April 12, 2003, the vehicle was vandalized. Plaintiff alleged that the damage to the vehicle was covered under an Allstate policy which was maintained by Dobard. Although Allstate was duly cited and served with a copy of plaintiffs petition, plaintiff requested that service on Dobard be held, and the record indicates that Dobard was never served in these proceedings.

On May 27, 2004, Allstate answered plaintiffs petition alleging that the damages to the vehicle were due to an intentional act which was not ^covered under the subject policy. On the same date, Allstate also propounded interrogatories and a request for production of documents on plaintiff. Plaintiff failed to respond to this discovery, and Allstate brought a motion to compel on July 1, 2004. This motion was set for hearing several times, but plaintiff failed to appear.

On August 10, 2004, Allstate filed a motion to dismiss defendant Walter Dobard based on the failure to serve the defendant within the time proscribed by La. C.C.P. art. 1201. Due to difficulty in serving plaintiff with these pleadings, Allstate moved for and was granted the appointment of a special process server.

On November 24, 2004, plaintiff filed a motion for summary judgment as to Allstate’s liability for damage to the vehicle. On December 21, 2004, Allstate filed a motion and order to have plaintiffs response to its request for admissions deemed insufficient and for sanctions, attorney’s fees and costs. Allstate also requested a special process server to serve this pleading on plaintiff. Plaintiff eventually filed hand-written responses to Allstate’s discovery on the morning of the hearing on the motion to compel set for January 14, 2005.

Following this hearing, the trial court reset Allstate’s motion to compel to February 1, 2005 and the record reflects that plaintiff was given notice of this hearing in open court. All pending motions were continued to this date.

On February 1, 2005, plaintiff failed to appear in court. The record contains a motion for continuance of all motions which plaintiff filed on January 31, 2005 on the basis that he was ill. After a review of the record, the trial court denied plaintiffs request for a continuance and granted 14Allstate’s motion to compel discovery. The court also granted Allstate’s motion to dismiss defendant Walter Dobard from these proceedings. Finally, the trial court denied plaintiffs motion for summary judgment. Plaintiff was additionally assessed for attorney’s fees of Allstate in bringing these motions in the amount of $2,000.00.

Plaintiff has now brought this appeal on the basis of one assignment of error: the trial court erred in denying his motion for continuance. We note at the outset that a denial of a motion for continuance is an interlocutory judgment which does not cause irreparable injury and is therefore not appealable. La. C.C.P. art. 2083. In addition, plaintiff does not assign as error any of the remaining rulings by the trial court in this judgment, and there is no indication that plaintiff intended to appeal the merits of the judgment. In his motion for appeal as well as in his brief filed in this Court, plaintiff only refers to the judgment denying the motion for continuance. Any assignments of error relating to the merits of this case which have not been assigned nor briefed are therefore considered as abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4.

Further, this Court does not engage in the practice of converting appeals to applications for supervisory writs. This Court has issued an order effective January 1, 1995 which requires that all non-appealable matters filed as appeals must be dismissed. See, Meany v. Meany, 96-585 (La.App. 5 Cir. 11/26/96), 685 So.2d 356; Price v. Price, 03-272 (La.App. 5 Cir. 6/19/03), 850 So.2d 860.

|fiWe find this matter is not properly before us on appeal because it is an interlocutory judgment and plaintiff has failed to make a showing of irreparable harm. For the foregoing reasons, the appeal is dismissed. Costs of this appeal are assessed against the plaintiff, Nathaniel Dowl, Jr.

APPEAL DISMISSED.

      . We note that the record also contains a notice of intent to apply for supervisory writs from the February 2, 2005 judgment denying plaintiff's motion for summary judgment. This writ application was denied by this court as untimely on April 26, 2005.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Richard J. ARCENEAUX.
    No. 05-KA-338.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2005.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Desirée M. Valenti, Jackie Maloney, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On January 9, 2004, defendant, Richard J. Arceneaux, along with Travis W. Cast, were charged by bill of information with simple burglary in violation of LSA-R.S. 14:62. Defendant pled not guilty to this charge on January 12, 2004. On April 26, 2004, the trial court denied defendant’s Motion to Suppress Identification. On this same day, defendant’s jury trial commenced and he was found guilty as charged.

On May 13, 2004, defendant filed a motion for new trial which was denied. Thereafter, defendant was sentenced to serve seven years imprisonment at hard labor. On this same day, the State filed a multiple offender bill of information, alleging defendant to be a second felony offender, and defendant denied these allegations.

Defendant filed a motion for appeal on May 27, 2004, which was granted on June 1, 2004. On July 8, 2004, defendant executed a waiver of rights and guilty plea form, admitting that he was a second felony offender. Defendant’s original sentence was vacated and defendant was re-sentenced as a second felony offender |sto seven years imprisonment at hard labor without the benefit of probation or suspension of sentence.

FACTS

On December 18, 2003 at approximately 2:00 a.m., Richard Myers was at his residence at 2600 Houma Boulevard in Metair-ie preparing to go deer hunting. He woke up, went outside of his apartment complex to put his 30/30 rounds and his tree stand into his truck, a white 2000 Nissan Frontier, and then returned inside to change his clothes, gather his things and call his hunting friend. Upon leaving his house, he noticed someone hunched over in the driver’s seat of his truck. He watched one person removing things from his truck and another person at the back of his truck throwing the things he was handed by the other into the bed of another truck. He saw someone who was wearing a black hat hunched over the driver’s side window which had been broken and saw him take his external speaker for his CB radio out of his vehicle. After observing this, he called 911. Myers stated that at first he did not realize the truck being burglarized was his because his neighbor’s truck was in the parking lot and was the same year, make, model and color. The suspects left the scene in a red Ford Ranger. Then, he went to the truck to take an inventory of what was taken to report this to the dispatcher.

He realized he was missing a brown leather bomber jacket which belonged to his grandfather and was issued in World War II, a green Army jacket which was bought at an Army surplus store, a CB radio and its external speaker and a K-bar, a Marine Corps combat knife. He also gave the dispatcher a description of the suspects: two males that appeared Hispanic. He said the driver of the vehicle was wearing a black hat and dark clothing. While standing in the parking lot waiting for the police, the red truck returned. Realizing the original description he had given of a red F150 truck was wrong, he called 911 again to inform them it was in |4fact a red Ford Ranger. When the suspects saw the victim in the parking lot, they threw the truck into reverse and quickly sped off, turning off onto Houma Boulevard. He reported their direction to the dispatcher.

About three to four blocks away, Deputy Donald Dubroc stopped a red truck which matched the description of the suspects’ vehicle. Deputy Dubroc identified defendant in court and stated that he was the passenger of the truck he stopped and Cast, who he saw sitting outside the courtroom in the hallway, was the driver of the vehicle and was wearing a hat. He stated that both were wearing dark clothing. He also testified that a bag of various tools which he realized from past experiences were tools which could be used in burglaries were also found in the vehicle.

Deputy David Darwin took Richard Myers’ statement at the apartment complex and then brought him to where the suspects were stopped three blocks away. The victim identified the two individuals as being responsible for burglarizing his truck and identified the vehicle as the truck that fled with his property. While at the scene, he realized more things had been taken out of his truck than he initially thought. He identified his things at the scene, and they were returned to him. Through photographs, he identified his things in court as well: 30/30 shells, a deer rifle, a lantern, a bomber jacket, an Army jacket, a CB radio, an external speaker, a K-bar, a CD case, a hatchet, a boot knife, a diamond knife sharpener and a deer drag.

Further, Richard' Myers identified defendant in court. He testified that defendant was standing at the rear of his truck and taking things from the person who was in his truck and placing it into the bed of the red truck they were in.

Cast gave voluntary statements on December 18, 2003. Later, Cast testified at trial on defendant’s behalf and stated that he had borrowed his roommate Steve | sWest’s truck, a red Ford Ranger, to go see his girlfriend and asked defendant to take a ride with him. He and defendant went to an apartment complex in Metairie to look for his girlfriend who was not there. As they were leaving the parking lot, he noticed a truck with its driver’s side window busted and saw a CB antenna on the back of the truck. He admitted that he went into the truck and took the CB radio and a jacket. He testified that he parked the truck and walked over to the truck to take those things without saying anything to defendant. He claimed that defendant was asking him what he was doing and telling him to get back in the truck and that he was stupid. According to Cast, defendant remained in the truck the whole time. They left and were stopped by the police a couple-of blocks away. Cast stated that he did give a voluntary statement which acknowledged that he did the crime, however, the statement reflects that he broke the window when actually he did. not. Cast pled guilty to the burglary of the vehicle and stated that defendant did not participate in the burglary, did not act as a look out and did not take things out of the vehicle. Cast testified that he took the CB and the leather jacket out of the truck and did not know how the other things got there.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence presented by the State at trial was legally insufficient to support his conviction. Specifically he submits that no rational trier of fact could have found that the State bore its burden of proving possession beyond a reasonable doubt; therefore, the trial court erred in denying defendant’s motion for new trial. Defendant asserts that co-defendant Cast assumed full responsibility for the burglary and consistently has stated that defendant was not involved in the burglary. Finally, defendant questions the credibility of the victim’s recollections because at first he did not realize his own truck was being burglarized and due to his vague descriptions he gave of the suspects.

DThe State responds that the trial court properly denied defendant’s new trial motion because it presented sufficient evidence to support defendant’s conviction of simple burglary. At the very least, the State argues that the evidence presented reflected that defendant was concerned in the commission of the burglary and was guilty as a principal to the offense. In addition, the State provides that the crime of simple burglary does not require proof of possession of stolen goods.

Defendant filed a motion for new trial alleging that the jury’s verdict was not substantiated by the evidence presented at trial. The trial court denied this motion.

In reviewing the sufficiency of evidence, an appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001) (citations omitted).

Under LSA-R.S. 15:438, “[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” However, this requirement does not establish a standard separate from the Jackson standard, but provides a helpful methodology for determining the existence of reasonable doubt. State v. Smith, 02-1018 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, 125. In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994) (citations omitted). Instead, the reviewing court Devaluates the evidence in the light most favorable to the prosecution and determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. Id.

In the present case, defendant was convicted of simple burglary which is defined by LSA-R.S. 14:62(A) as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” Whenever any part of defendant’s person passes the line of the threshold, entry is accomplished. It is sufficient that any part of the person intrudes into the structure, even momentarily. State v. Smith, 844 So.2d at 125 (citing State v. Petty, 99-1307 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301). Specific intent is required by LSA-R.S. 14:62 and may be inferred from the circumstances and actions of the accused. Id. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Whether a defendant possessed the requisite intent in a criminal case is for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 317 (citation omitted).

Because the State did not present evidence that defendant entered the victim’s vehicle, it had the burden of proving that defendant was a principal to the simple burglary offense. For a defendant to be found guilty as a principal to such a burglary, the defendant does not have to personally enter the burglarized structure. State v. Jetton, 32,893 (La.App. 2 Cir. 4/5/00), 756 So.2d 1206, 1212, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299 (citing State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998)). Instead, the State has the burden of proving that defendant was concerned in the commission of the crime, aided or abetted in its commission, or directly or indirectly counseled another to commit the crime as a principal. State v. Jetton, supra at 1212 (citing LSA-R.S. 14:24). Stated differently, the jury had to find beyond a reasonable doubt that someone made an unauthorized entry into the victim’s truck with the intent to commit a theft, and that defendant was someone concerned in the commission of the crime. State v. Bullard, 29,662 (La.App. 2 Cir. 9/24/97), 700 So.2d 1051, 1054 (citations omitted).

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” LSA-R.S. 14:24. Only those persons who “knowingly participate in the planning or execution of a crime” are principals to that crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428 (per curiam) (citation omitted). “[A]n individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state.” State v. Pierre, supra (quoting State v. Holmes, 388 So.2d 722, 726 (La.1980)). Mere presence at the scene of a crime does not make one a principal to the crime. State v. Pierre, supra at 428 (citation omitted). However, “ ‘[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.’ ” State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225 (per curiam) (quoting 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996)).

13According to Richard Myers, he was about one-hundred feet away from his truck when he watched the burglary. He testified that the parking lot of his apartment complex was well lit and that he did not wear glasses. Further, he identified defendant in court. Although he admitted that he originally said the suspects appeared Hispanic, he explained that the parking lot light gives everything an orange colored glow. He testified that when he identified the suspects he was positive they were the same people that burglarized his truck and he was positive that all the property he identified was his. As the victim testified, his things were taken from his vehicle and put into a red Ford truck which was pulled over three blocks away with his things in the bed of the truck. The victim testified he was one-hundred percent positive that he saw defendant outside of the red truck and to the rear of his truck, putting things into the red truck, and then saw him get back into the red truck which drove away. Further, he also testified that there was not any property taken out of his truck that he did not get back from their truck.

Richard Myers did not see anyone break his truck’s window and did not see if defendant actually took things from his truck. However, he testified that defendant was standing at the rear of his truck and taking things from the person who was in his truck and placing it into the bed of the red truck they were in. He testified that he did not give defendant nor Cast permission to take things out of his truck.

It is not the function of the appellate court to second-guess the credibility determinations of the trier of fact or to reweigh the evidence. State v. Carter, 98-24 (La.App. 5 Cir. 5/27/98), 712 So.2d 701, 708, writ denied, 98-1767 (La.11/6/98), 727 So.2d 444 (citations omitted). “The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness.” State v. Crawford, 03-1494 (La.App. 5 Cir. 4/27/04), 873 So.2d 768, 786, writ denied, 04-1744 (La.5/6/05), 901 So.2d 1083 (citation omitted).

Although defendant argues that the evidence was insufficient to support his conviction, the jury heard the evidence and apparently chose to accept the testimony of the victim and reject the testimony of the co-defendant. After viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support defendant’s conviction. Therefore, we affirm defendant’s conviction of simple burglary.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) and at the request of the defendant. The following matters are presented for review.

When imposing defendant’s original sentence, the trial court ordered that defendant’s sentence be served concurrent with his probation revocation. Although there is no prohibition against a trial court imposing a sentence to run concurrent with a parole revocation, LSA-C.Cr.P. art. 901(C)(2) states that only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrent or consecutively with the sentence on the later conviction. State v. Bruce, 03-918 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 859 (citing State v. Perrilloux, 99-1314 (La.App. 5 Cir. 5/17/00), 762 So.2d 198, 205-206). However, we find that no action is required since this sentence was vacated when defendant was sentenced as a second felony offender.

Second, the trial court failed to properly inform defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. ^Although defendant was advised of the prescriptive period after his original sentencing which was vacated, he was not properly re-advised when sentenced as a multiple offender. The written waiver of rights guilty plea form regarding the multiple bill advised defendant that he had “two (2) years to file post conviction relief.” The minute entry, however, does not reflect any other advisal regarding the prescriptive period for post-conviction relief. Because the advisal was incomplete, we remand the case and order the district court to properly inform defendant of the time from which prescription for post-eon-viction relief runs by sending written notice of such to defendant within ten days of the rendition of the appellate opinion and to file written proof that defendant received the notice in the record. See, State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 951 (citation omitted).

Accordingly, defendant’s conviction of simple burglary is affirmed and the matter is remanded with instructions to correct an error patent.

AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: SAM A. LEBLANC, III, Judge Pro Tempore.

text:
    Tammy SUTHERLIN v. William Elliott SUTHERLIN, Jr.
    No. 05-CA-535.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 3, 2006.

      Gerald J. Arceneaux, Attorney at Law, Marrero, Louisiana, for Plaintiff/Appellee.
    Marcus T. Foote, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SAM A. LeBLANC, III, Pro Tempore.
   SAM A. LEBLANC, III, Judge Pro Tempore.

| aDefendant, William Elliot Sutherlin, Jr., appeals a judgment that he owes plaintiff, Tammy Sutherlin, interim spousal support arrearages. For the following reasons we affirm.

Plaintiff and defendant voluntarily entered into a consent judgment dealing with their community assets and liabilities on June 20, 2002. They were subsequently divorced by judgment rendered September 14, 2002. Both parties later filed pleadings seeking enforcement of the consent judgment. One of plaintiffs contentions was that, pursuant to the consent judgment, defendant owed a remaining balance of $4,000.00 in spousal support.

The matter was heard on August 16, 2004. On December 13, 2004 the trial court issued a judgment stating, in pertinent part, that defendant owes plaintiff | s$2,290.00 in interim spousal support ar-rearages . It is from this judgment that defendant appeals.

Defendant asserts that the trial court erred by ignoring the “plain language” of the consent judgment as well as evidence and the obvious intent of the parties. We disagree.

The consent judgment reads in pertinent part:

William Sutherlin will pay a total one year of spousal support to Tammy Suth-erlin at a total sum of $28,000.00 dollars beginning from the date of filing by Tammy Sutherlin ...
William Sutherlin will receive a credit for $12,000.00 dollars in support payments already paid ..i This is to be a full and final settlement of any and all outstanding issues regarding any community assets or liabilities of the parties.

Defendant argues that the consent judgment was negotiated in April 2002 and that the “credit for $12,000.00 dollars in support payments already paid” did not take into account the fact that more had been paid via income assignment by the actual signing date of June 20, 2002. Defendant asserts that the trial court should have corrected this “obvious drafting error” rather than “pretend” an error did not exist, leading to absurd consequences.

The trial court disagreed, finding that the effective date of the consent judgment is as of the date of the signing, June 20, 2002, not April and crediting defendant only for those spousal support payments received by plaintiff after June 20, 2002.

Regarding not giving defendant further credit for payments made prior to the June consent judgment, the trial judge stated:

_JjThe reason for that is the judgment specifically states a June date, and those payments were made prior to June ... very easily could reference the twelve thousand dollars; so I can’t give it to him.

Additionally, the record includes a letter from defendant’s counsel to plaintiffs counsel, dated June 19, 2002, one day before the June 20, 2002 consent judgment, which states, in pertinent part:

My client indicates that he is agreeable to a settlement amount of $28,000 provided your client will grant him a $12,000 credit for all payments made to date. He is willing to accept this credit in exchange for cessation of the wage assignment.

(emphasis added)

A consent judgment is a transaction or compromise between parties who prevent or put an end to a lawsuit by adjusting their differences by mutual consent, balancing the hope of gain against the fear of loss. Millet v. Millet, 04-406 (La.App. 5 Cir. 10/26/04), 888 So.2d 291, 293. A compromise agreement which forms the basis for a consent judgment gets its binding force and effect from the consent of the parties. Nungesser v. Nungesser, 95-2298 (La.App. 1 Cir. 6/28/96), 694 So.2d 312, 314. The interpretation of the consent judgment is the determination of the common intent of the parties. Id. The meaning and intent of the parties is ordinarily determined from the four corners of the instrument. Millet, supra. Each provision in the contract is interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. Nungesser, supra. When the words of a contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. Id. Public policy favors these compromise agreements and the finality of the settlements. Millet, supra.

In this case, defendant voluntarily entered into a consent judgment with plaintiff in June of 2002, stipulating that defendant would pay plaintiff a total of $28,000.00 in support payments. The parties further stipulated that ^defendant would be given a credit of $12,000.00 in payments already made. Louisiana jurisprudence has long recognized that signatures to an instrument are not mere ornaments. First South Farm Credit, ACA v. Gailliard Farms, Inc., 38-731 (La.App. 2 Cir. 8/18/04), 880 So.2d 223; Tweedel v. Brasseaux, 433 So.2d 133 (La.1983); Boullt v. Sarpy, 30 La.Ann. 494. Had defendant found the provisions of the consent judgment to be incorrect he did not have to sign it. Defendant chose to enter into the consent agreement as drafted, as did his attorney.

Therefore we find the trial court did not err when it found that defendant owed interim spousal arrearage. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . We note that the transcript indicates that the trial judge ruled that defendant owes plaintiff $2,250.00. However, appellant explains in brief that the reason for the difference is a mathematical error corrected prior to submission of the judgment.

      . As typed, the consent judgment states "Gret-na, Louisiana this _ day of April, 2002. "20” is written in the blank by day and "April” has been scratched out and "June” written above it.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Darrell AMBEAU.
    No. 2005-KA-0711.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.

      Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, New Orleans, Counsel for Plain-tiffAppellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Counsel for Defendant/Appellant.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge MAX N. TOBIAS, Jr.)
   MAX N. TOBIAS, JR., Judge.

hOn 6 March 1992, the state of Louisiana charged Darrell Ambeau (“Ambeau”) by bill of information with one count of violating La. R.S. 14:64, armed robbery, and one count of violating La. R.S. 14(27)64, attempted armed robbery. On 13 March 1992, Ambeau appeared before the trial court for arraignment and pled not guilty to both charges. On 7 April 1992, the trial court heard the defendant’s motion to suppress and held a preliminary hearing. At the close of the hearings the trial court denied the defendant’s motion and found sufficient probable cause to substantiate the charges brought against him by the state.

On 27 April 1992, the state brought its case against Ambeau to trial. Ambeau waived the jury and elected to have his case tried before the trial judge. The state introduced two exhibits and presented testimony from three individuals. After the close of evidence, the trial judge found Ambeau guilty on both counts. The trial court sentenced Ambeau on 14 May 1992 to fifty years for the armed robbery conviction and twenty-five years for the attempted armed robbery [ ^conviction. The sentences were to run concurrently and both were at hard labor without the benefit of probation, parole, or suspension of sentence. We cannot determine from the record before us whether Ambeau’s counsel objected to the sentences, or made an oral motion to reconsider, because the record does not contain the transcript of the sentencing hearing. Further, the minute entry for 14 May 1992 is so faded as to be substantially illegible. The docket master notes no objections or motions from the defendant. However, a comparison of the docket master with the remainder of the record reveals that it fails to record any of the defendant’s in-court objections. Therefore, the docket master entries do not fully reflect what happened in open court or even the contents of the individual minute entries.

On 11 September 1992, the trial court adjudicated Ambeau a third-time felony offender as to the armed robbery conviction only. Ambeau was then resentenced to serve sixty-six and two-thirds years at hard labor without the benefit of parole. As with the minute entry for 14 May 1992, the entry for 11 September 1992 is largely illegible. However, examination of the entry shows that it contains information not included in the docket master summary. Accordingly, we cannot tell from the record before us whether Ambeau’s counsel made any objections to the state’s evidence or to the trial court’s sentence. Nevertheless, the record contains no written response to the multiple bill as required by La. R.S. 15:529.1(D)(l)(b).

| SNeither the record nor any of the legible minute entries indicates that Ambeau moved for an appeal. Ambeau contends that he moved for an out-of-time appeal, the appointment of new counsel, and for the production of trial documents on 24 July 1994. Nevertheless, the record is devoid of this purported motion. On 1 September 1994, Ambeau filed a writ of mandamus (number 94-K-1744 on the docket of this court) with this court complaining that the trial court failed to rule on his motions. On 10 November 1994, this court transferred the defendant’s motion to the trial court for consideration within thirty days of the order. This court in connection with writ 95-K-0823 issued a second order reiterating the order issued in connection with writ 94-K-1744. On 17 August 1995, the trial court granted Am-beau’s motion for an out-of-time appeal. However, this court never received notice of Ambeau’s appeal.

In writ 2001-K-1677, Ambeau sought to have the trial court’s judgment granting his out-of-time appeal enforced. He also sought to dismiss his retained counsel and have new counsel appointed. The docket master reflects that on 28 April 1997, the trial court allowed Ambeau’s retained counsel to voluntarily withdraw from the case. However, prior to withdrawing, Am-beau’s counsel filed an application for post-conviction relief. Because the record had not been made available for review, the claims raised by Ambeau’s counsel are unknown. Therefore, it is possible that Am-beau had since waived his right to an appeal. In light of these circumstances, the writ was granted and the trial court was ordered to enforce its judgment unless it specifically found that Ambeau waived his right to an appeal. If it found that Ambeau had not waived his right to an appeal, the ^district court was ordered to appoint counsel and file a notice of appeal in this court within sixty days of the order. Alternatively, if the trial court found that Ambeau had waived his right to an appeal, it was ordered to file a minute entry in this court within sixty days of the order reflecting its findings.

In writ 2004-K-1744 Ambeau asserted that the trial court failed to comply with this court’s prior orders. The writ was granted and the trial court was ordered to enforce its judgment unless it specifically found that Ambeau waived his right to an appeal. If it found that Ambeau had not waived his right to an appeal, the district court was ordered to appoint counsel and file a notice of appeal in this court within thirty days of the order. Alternatively, if it found that Ambeau had waived his right to an appeal, the trial court was ordered to file a minute entry reflecting its findings in this court within thirty days of the order.

Ambeau’s notice of appeal was filed in the trial court on 20 January 2005. The trial court appointed the Louisiana Appellate Project to act as Ambeau’s appeal counsel. On 2 May 1995, the trial court wrote a letter to this court wherein it stated that the transcript from Ambeau’s 14 May 1992 multiple offender hearing could not be located. Specifically, the trial court’s letter states that the pertinent court reporter could find no notes or transcripts for the 14 May 1992 hearing.

STATEMENT OF FACTS

The record shows that Ambeau was convicted for crimes involving two victims. The first victim to testify, Lisa Ford (“Ford”), stated that on 10 February 1992, she and Sheila Gains (“Gains”) were walking on the Thalia Courtway in the vicinity of South Galvez and Thalia Streets in New Orleans, Louisiana, between 10:00 and 11:00 p.m. Ford testified that as they walked on the sidewalk up the | scourtway she noticed a group of men outside. Ford stated that she knew the men and told Gains that they could go up the courtway. It was at this point that the incident at issue transpired. Ford described the incident accordingly:

And, as we walking, the guy walked up to us and said, “Are you looking for anything?” And, we said, “No.” And, he said okay, and he turned his back to us, and then he turned right back around, and when he turned right back around, he stuck the gun in my face. He said, “Give me whatever you all have. Give me what you got.” And, it was so close to the end of the building to where I had a chance to run around the building, and Ms. Gains was getting ready to. run, but when she ran be [sic] it was raining outside she tripped and fell. And, when she fell like she tripped, that’s when he pulled her back, and I made it around to the other side of the building. And, I looked up at him and her, down where she was taking all her stuff and giving it to him, the jacket, and so I went for help. And, when I came back she was running up the courtway crying.

Further, Ford identified Ambeau in court as her assailant and noted that prior to the incident she had known him for approximately fifteen years. Following the incident, Ford and Gains went to Gains’ house. Because Gains’ home lacked a telephone, and fearing retaliation from Ambeau, Gains and Ford did not call the police immediately after the incident. Rather, Gains and Ford called the police the following morning. The police did not come out to the scene of the crime. Rather, the police gave Gains and Ford an incident number and asked them to call in the event they saw Ambeau again. Gains and Ford saw Ambeau the following day, called the police, and gave a description of the clothes that Ambeau was wearing at the time. Ford testified that Ambeau was wearing a pair of blue jeans and a “green, turquoise green like shirt with a stripe going across his chest.” Ford also stated that she told the police what Ambeau was wearing at the time of the incident. Specifically, Ford testified that at the time of the incident Ambeau was wearing blue jeans and a light, cream-colored windbreaker.

1 ^Later the police arrested Ambeau and took him before Gains and Ford so that they could attempt to identify him. Ford testified that when the police arrived she and Gains again described the clothes that Ambeau .was wearing at the time they spotted him. The police then took Am-beau out of their car and asked Gains and Ford if they could identify him. Ford identified Ambeau as the assailant from the 10 February 1992 incident. In court, Ford further identified State Exhibit One as the clothes worn by Ambeau at the time of the post-incident identification. Ford also identified State Exhibit Two as the ring and anchor pendant taken from Gains by Ambeau and recovered by the police.

At trial, Gains testified that on the date of the incident she was walking with Ford on the Thalia Courtway at approximately ten-thirty or eleven p.m. She testified that she turned around when she heard Ford say “Oh, Lord!”, and then saw a gun in her face. Gains testified that Ford grabbed her and that she tried to run. However, Gains slipped on the wet ground. The assailant then took Gains’ coat, a ring, two chains, and an anchor. Gains identified Ambeau in court as her assailant and noted that she knew him from around the project. Additionally, Gains identified State Exhibit Two as the ring and anchor pendant taken from her by Ambeau on the night of the incident.

Like Ford, Gains testified that she did not call the police on the night of the incident because she was afraid and unable to get to a phone. Like Ford, Gains also testified that they called the police the next day. According to Gains, the police told her to call them back if ever they should see Ambeau again. Gains testified that she and Ford spotted Ambeau the next day in the courtway. Gains stated that she and Ford then called the police. An officer came to meet them, and Gains and Ford described Ambeau to the officer. The officer then went and found |7Ambeau. After arresting Ambeau, the officer took him back to Gains and Ford for identification. Gains stated that she identified Am-beau as the man who robbed her on the night of the incident.

Clifford Wood, an officer with the New Orleans Police Department, Sixth District, also testified at trial. Officer Wood testified that he arrested Ambeau on 12 February 1992. Officer Wood also identified Ambeau in court as the person he arrested on 12 February 1992. Officer Wood testified that on 12 February 1992, he responded to a call that the victims of the present incident had spotted, and described, a man wanted on an armed robbery charge at the intersection of Thalia and South Galvez Streets. Officer Wood and several other police units converged on Thalia and South Galvez. Officer Wood stated that Ambeau began to walk away from the intersection when he spotted the first marked unit approach the intersection. The officers stopped Ambeau before he could leave the scene and advised him that he was under investigation for armed robbery. After patting down Ambeau for weapons, the officers took him before Gains and Ford, who identified him as the perpetrator. Officer Wood testified that he confiscated a gold anchor on a chain, a small ring, and Ambeau’s shirt upon his arrest. Officer Wood identified the foregoing items in court as State Exhibits One and Two. Officer Wood also noted that Gains identified the jewelry as belonging to her at the time of the post-incident identification. Finally, Officer Wood testified that the police never recovered the weapon used in connection with the armed robbery.

ERRORS PATENT

A review of the record reveals no errors patent.

| ^ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, Ambeau asserts that he has been denied his constitutional right to a full review of his multiple offender adjudication due to the fact that the transcript of the proceedings cannot be found. Accordingly, he urges this court to vacate his multiple offender adjudication and remand his case to the trial court for a new multiple offender hearing. After reviewing the record and relevant case law, we are of the opinion that Ambeau’s assignment has merit.

The state constitution provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” La. Const. Art. I, § 19. In felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel” is statutorily required. La.C.Cr.P. art. 843. The court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the trial proceedings required. La. R.S. 13:961(C).

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal require reversal. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214. On the other hand, “inconsequential omissions or slight inaccuracies do not require reversal.” State v. Harry, 01-2336, pp. 4-5 (La.App. 4 Cir. 6/26/02), 823 So.2d 987, 991-92, citing State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1. Further, “a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice...” Id.

In State v. Ford, 338 So.2d 107, 110 (La.1976), the Louisiana Supreme Court stated:

19Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.

In Ford, the Court found the omission of the testimony of four state witnesses, voir dire, and opening statements made it impossible for counsel, who was appointed for the appeal, to adequately review the record for errors. In State v. Belt, 01-0081 (La.App. 4 Cir. 08/29/01), 798 So.2d 1038, the defendant was found guilty of distributing cocaine and sentenced as a third-time felony offender. On appeal, the defendant argued that the loss of the transcript on his multiple bill hearing deprived him of his constitutional right to an appeal. After noting that the relevant minute entry reflected the defendant’s objection to the admission of all evidence at the multiple offender hearing, this court held that the failure to produce the transcript of the multiple offender hearing deprived the defendant of his constitutional right to an appeal. Belt, 01-0081 at p. 3, 798 So.2d at 1040. Similarly, in State v. Santee, 02-0693 (La.App. 4 Cir. 12/04/02), 834 So.2d 533, this court held that a defendant’s adjudication and sentence under the multiple offender statute had to be reversed in light of the fact that those exhibits introduced by the state at the multiple bill hearing could not be located for the appellate record.

In the present case, the record does not contain any written objection from defendant to the state’s multiple bill pursuant to the requirements of La. R.S. 15:529.1(D)(l)(b). On the other hand, the minute entries for all dates relevant to |inthe defendant’s multiple bill are illegible. Accordingly, we cannot ascertain from the minute entries: (1) whether the defendant was arraigned on the multiple bill; (2) the defendant’s plea to the multiple bill; (3) whether the defendant’s attorney made any objections at the multiple bill hearing; and (4) whether the defendant’s attorney objected to the trial court’s sentence on the multiple bill. Accordingly, we cannot ascertain from the record whether the defendant waived his right to contest his conviction and sentence on the multiple bill. Additionally, it does not appear that the loss of the multiple offender hearing transcript is attributable to the defendant. Although Ambeau failed to move for an appeal until the passage of two years after his initial conviction and sentence, the record nevertheless shows that he has consistently, though to little avail, attempted to secure an appeal with this court. Moreover, a review of the record suggests that those delays associated with the present appeal are largely attributable to the criminal justice system. Further, it is important to note that Ambeau’s appellate attorney did not represent Ambeau at trial. Therefore, the defendant’s attorney has no way of knowing what transpired at the multiple offender hearing.

We conclude that Ambeau has been prejudiced by the absence of the transcript of his multiple bill hearing in light of: (1) the illegible minute entries; (2) the absence of his present attorney from the trial of this matter; (3) the defendant’s repeated unsuccessful attempts over the past ten years to enforce his appeal rights; and (4) the defendant’s effective life sentence.

MOTION TO DISMISS

While this appeal was pending in this court, the state filed a motion to dismiss Ambeau’s appeal urging that it is untimely. In view of our findings and | n conclusions above, we find that substantial justice requires our disposition of this appeal as timely. Accordingly, we find the state’s motion to dismiss is appropriately denied.

CONCLUSION

After reviewing the record and the applicable case law, Ambeau’s multiple offender conviction and sentence under La. R.S. 15:529.1 are vacated and the case is remanded for a new trial on the state’s multiple bill. Additionally, the state’s motion to dismiss the appeal is denied.

MULTIPLE OFFENDER CONVICTION AND SENTENCE VACATED; REMANDED; MOTION TO DISMISS DENIED.

      . For example, the docket master indicates that the state filed a multiple bill on 15 June 1992. The foregoing entry also notes that the trial court set arraignment on the multiple bill for 8 July 1992. The 8 July 1992 entry notes that Ambeau was present in court but that the trial court continued the matter on the state's motion. Although the multiple bill hearing eventually took place on 11 September 1992, no mention is made in the docket master about arraignment. Ambeau was no doubt arraigned on the multiple bill. The docket master, nevertheless, fails to reflect this fact.

      . It does not appear that the trial court ever made a ruling on the application. The 4 September 1997 docket master entry indicates that the matter was continued without date.


author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Sylvester TRACKLING.
    No. 2004-KA-0759.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2006.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   ON REMAND FROM THE LOUISIANA SUPREME COURT

DAVID S. GORBATY, Judge.

_|_1This court originally considered this matter on December 1, 2004, and reversed the defendant’s conviction and sentence. We held that the trial court erred when it denied defendant’s motion to quash because the charged offense, attempted sexual battery, is not a valid crime in Louisiana. State v. Trackling, 04-0759 (La.App. 4 Cir. 12/1/04), 888 So.2d 1169. The State filed an application for writs to the Louisiana Supreme Court. The Supreme Court granted certiorari, and held that attempted sexual battery is a cognizable offense in Louisiana, and for that reason, the trial court did not err in denying the defendant’s motion to quash. State v. Trackling, 04-3222 (La.1/19/06), 921 So.2d 79. The Supreme Court reversed our prior decision overturning defendant’s conviction and sentence, and remanded the case for this court to consider the pretermitted assignments of error. For the reasons set forth below, we affirm.

STATEMENT OF THE FACTS

A complete recitation of the facts and procedural history can be found in our prior decision, State v. Trackling, 04-0759 (La.App. 4 Cir. 12/1/04), 888 So.2d 1169.

1 ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the appellant argues that, if the charge of attempted sexual battery is deemed valid, his conviction should be reversed for lack of sufficient evidence. His argument is not as to the particulars of the allegations, but rather that the victim’s testimony was not credible because it conflicted with other evidence.

The test for determining the sufficiency of evidence to support a conviction was set forth in State v. Armstead, 2002-1080, pp. 5-6 (La.App. 4 Cir. 11/6/02), 832 So.2d 389, 393, writ denied 2002-3017 (La.4/21/03), 841 So.2d 791:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 [(]La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432.

In the instant case, the victim testified to the actions of the defendant. Michelle Roberts corroborated that the victim was very upset when she approached her and told her about the attack. Although the appellant contends that there was no physical evidence to support the victim’s testimony, the lack of any does not contradict the victim’s account. She stated that the defendant grabbed her hands and placed his hand between her shorts and her underwear; she was then able to break free and run. The lack of bruises, scratches, or torn clothing does not contradict AD.’s account. Further, A.D. testified that there was a box in front of the area where the defendant held her when he groped her. Michelle Roberts and C.D. corroborated the existence of the box, although the defense witnesses testified that there was no box. Although the photographs taken did not depict a box anywhere, the investigating officer testified that he failed to have the crime scene officer take a photograph of the area between the houses, and it was in this area that the victim said the box was located. Similarly, although there was evidence that the defendant has a speech impediment, both the victim and Officer O’Hern testified he was understandable. Notably, Henry Voss, a defense witness, testified that the defendant asked to borrow a shovel and also a dollar from him; apparently Mr. Voss had no trouble understanding the defendant’s requests. Thus, the victim’s testimony that she could understand the defendant was corroborated.

The jury was able to observe the demeanor of all witnesses and apparently found the victim credible. Contrary to the appellant’s argument, the victim’s testimony was not so suspect as to render it invalid. Viewing the evidence in theUlight most favorable to the prosecution, the jury could have easily found the appellant committed an attempted sexual battery on the victim.

ASSIGNMENT OF ERROR NUMBER 3

In his third and final assignment of error, the appellant contends that the trial court erred when it denied a motion for mistrial predicated on improper remarks made by the State during its closing argument.

The first basis for the defendant’s motion for mistrial arose from the prosecutor’s reference in closing argument to evidence that the court had held inadmissible. During Detective O’Hern’s testimony, he was asked whether, in his “training and experience in sex crimes,” was A.D.’s appearance when he interviewed her “consistent with fact she told you of what happened?” Detective O’Hern responded affirmatively. The defense then objected, and the court sustained the objection. Defense counsel requested an admonishment, which the court gave to the jury. No request for mistrial was made. However, during closing argument, the prosecutor attempted to refer to this testimony stating:

We also heard information from Detective O’Hern that although her clothes weren’t necessarily disheveled or whatever, her testimony was consistent with the type of crime. We are not saying that there was a knockdown, drag-out fight on the street.... So there’s not necessarily going to be any blood or any scratching. And he said that in his years of experience her testimony, of what she said happened—

Defense counsel objected, noting “[t]hat was stricken from the record and she’s arguing it in close.” The court immediately admonished the jury,

Ladies and gentlemen, arguments are not to be considered as evidence in this case. What the lawyers tell you in closing argument | ¡js not to be considered as evidence in this case. This is their argument on the matter. You are to confine yourself to what you heard come from the witness stand during this trial.

In addition to the objection to the stricken testimony of Detective O’Hern, defense counsel objected during the State’s rebuttal to the comment that the victim had “been strong this whole time. She has been one of the best — ” The court responded to the defense objection by cautioning the State not to “personalize.” Later, after the jury had retired to deliberate, the defense moved for a mistrial noting both of the above portions of the State’s argument as the bases. The court denied the motion without comment.

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw there from, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless it is “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Even where the prosecutor’s statements are improper, credit ^should be accorded to the good sense and fair-mindedness of the jurors who heard the evidence. State v. Williams, 708 So.2d 703 (La.1998); Ricard.

Neither remark of the prosecutor appears to be so egregious that a mistrial was warranted. The defense counsel successfully objected to the prosecutor’s comment about Detective O’Hern before the improper reference to the stricken testimony was completed. The trial court gave a thorough admonishment to the jury, reminding it not to consider as evidence anything the parties said in closing argument.

As to the second comment, it was made during rebuttal, in response to defense counsel’s own comments:

All they got to say is, “Well believe her credibility because there would be no reason for her to come to court and lie.” And we all know that’s a fallacy. Sometimes you do things and you never know the implications of why when you do it, you know. To say well you’d be here in a courtroom a year later having to testify, that was a clue that never went through, probably, a teenager’s mind.

The prosecutor was merely countering the defense’s argument that the victim had lied for some unknown reason and then was unable to change her mind. As such, it was not improper rebuttal argument. This assignment of error lacks merit.

CONCLUSION

Accordingly, for the foregoing reasons, the defendant’s conviction and sentence are affirmed.

      . To protect the identity of the minor victim and her mother, only their initials will be used.