text:
    STATE of Louisiana, Appellee v. Rory GULLETTE, Appellant.
    No. 43,032-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project, by: William Jarred Franklin, for Appellant.
    Rory Gullette, pro se.
    Paul Joseph Carmouche, District Attorney, Jonathan Dhu Thompson, John Ford McWilliams, Jr. Sarah Midboe, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

| T Rory Gullette was convicted by a jury of forcible rape and adjudicated a fourth felony habitual offender. He was sentenced to 47 years of imprisonment at hard labor, with three years to be served without benefit of parole, probation, or suspension of sentence. The defendant appeals. We affirm.

FACTS

On August 13, 2005, the 57-year-old victim, S.S., who lived alone in a mobile home in Keithville, fell asleep on her daybed while watching television. She woke up at about 1:30 a.m. to a quiet and dark house. She saw movement next to her — a man, whom she later identified as the defendant. Her arm hit and felt his pants zipper and penis. Frightened, she began struggling, but the defendant grabbed her hands and feet and told her he was not going to hurt her — all he wanted was to “make love” to her. She unsuccessfully tried to fight off the defendant. He pinned her down, pushed her arms over her head, pushed her legs apart, and touched her vagina with his mouth and fingers. The defendant attempted vaginal sexual intercourse, but didn’t have enough room on the daybed, so he moved the victim to her bedroom. There the defendant made the victim lie back on the bed, held her hands over her head and again touched his mouth and fingers to her vagina. Her panties were removed and her gown was pushed up around her neck. He fondled her breasts and this time succeeded in penetrating her vagina with his penis, but he was unable to maintain an erection. He finished the attack by using his mouth and fingers on her vaginal area. The victim ^described the defendant’s use of his fingers as “very rough,” as if he were trying to put his “whole damn hand” inside her. She was afraid for her safety and unable to stop him from raping her.

The defendant wore a baseball cap decorated with gold braid, which he wore backwards during the first part of the attack, and then later turned around. After the attack, the defendant asked the victim if he could use her bathroom. The victim told him, “It’s right in there.” While he was in the bathroom, the victim got dressed.

The victim went into the kitchen and tightened the lightbulb that the defendant had apparently loosened to darken the home, and began making coffee and smoking a cigarette. The defendant came into the living area and asked for one of her cigarettes. In an attempt to keep the situation calm and avoid further harm, the victim handed the defendant a cigarette. In the well-lit room, the victim recognized the defendant as “Rory,” a regular customer of Bentley’s, a convenience store where she had been employed as a cashier about ten years earlier. The victim offered him a cup of coffee, which he accepted. They conversed and smoked for about an hour. The victim asked him how he had gotten into her house and he told her she had left the door unlocked. She told him that she had not, but he insisted that she had. She ignored that and they talked about some problems he said he was having with his wife. At about 3:00 or 3:30 in the morning, the victim looked at the clock and told the defendant, “Damn, you’ve got to go.” He asked why, and she related that she had to get up and have breakfast with some friends that morning. He said, “Oh, okay,” got up and walked out the |sback door. He then turned and asked, “Can I come back and visit you sometime?” The victim told him, “Sure, just make it during the daytime.” He then left.

The victim had been through menopause and had not had sexual intercourse in the years prior to the attack, which left her with a “raw” and painful vaginal area. The victim dumped out the defendant’s coffee cup and cigarettes. She observed that other light bulbs had also been unscrewed. She later observed that the back door frame had been pried away from the door.

Afraid that the defendant would return, she purchased and installed bolt locks, a door plate, a padlock door lock, and a deadbolt. Her main concern was to repair and secure the door and to try to “forget that it happened.”

The following day, August 15, 2005, the victim contacted her friend and neighbor, Tammy Hegpeth, to get the phone number of their mutual friend, Carnie Burcham. The victim asked Burcham, a criminal investigator for the Louisiana Department of Agriculture and Forestry, how to get in touch with the police to report a rape. She told Burcham that she had been raped by a man she knew as “Rory.” She also informed him that she bought a gun that day to use for protection. Burcham discussed with her the “rules of engagement” and suggested that she take a gun safety course, recommending that she contact Detective Michael Escude of the Caddo Parish Sheriffs Office.

14An appointment was scheduled for the next day, August 16, 2005, for the victim to meet Det. Escude at the hospital for a forensic rape examination. Chris Philbar, an expert in the area of sexual assault nurse examinations, performed the victim’s physical examination. The victim’s injuries included vaginal and urethral pain, abrasions and tears, as well as purple marks on her breasts and abdomen. A significant tear in the labia minora was three centimeters long. The victim was unable to tolerate a vaginal exam with a speculum because of the pain. Philbar opined that it was possible, but not probable, that the victim’s injuries were sustained during consensual sex. Between the rape and the examination, the victim had taken two baths, frequently urinated, and washed the clothes she was wearing at the time of the attack. Swabs were taken for DNA testing, and blood was drawn.

Det. Escude interviewed the victim after the examination. She related the defendant’s name, “Rory,” and described the defendant’s appearance, including his build and severe facial scars. The victim also described the defendant’s clothing, including his baseball cap and big, brown work boots. Det. Escude then accompanied the victim to her home, where the Caddo Parish Crime Scene Investigation Unit collected physical evidence, including the coffee cup and cigarettes from the trash, a comforter, clothing, and a tool that did not belong to the victim. The tool, which the victim had moved from the bedroom to a utility room, was determined to be a steel chainsaw tool commonly used to tighten or loosen chainsaws. The tool and the coffee cup were swabbed for forensic DNA analysis. The visible pry |fimarks on the rear door were also observed and documented. The victim was subsequently shown a six-person photographic lineup from which she confirmed the identity of the defendant as her assailant.

The defendant was arrested while on the job at Asplundh Tree Service Company and was charged by bill of information with one count of forcible rape, in violation of La. R.S. 14:42.1(A)(1), for having vaginal and oral intercourse with the victim. His baseball cap and brown work boots were seized. The cap was later identified by the victim as the same one worn by the defendant during the attack, and the boots were identified as similar to those worn by the defendant. A buccal swab was taken from the defendant for forensic DNA analysis. After being advised of and waiving his Miranda rights, the defendant gave a recorded custodial statement to Det. Escude on August 18, 2005. The defendant explained that on the night of August 13 and the early morning hours of August 14, he was at his mother’s home with his mother and wife. Det. Escude spoke to the defendant’s wife, who confirmed the alibi; however, the defendant’s mother did not. Det. Escude then confronted the defendant’s wife, who recanted and said she lied because she wanted to protect the defendant. Det. Escude then re-interviewed the defendant, who told Det. Escude that he had forgotten that his wife had gone to her grandmother’s house in Greenwood, but who maintained that he was at his mother’s house during the time of the crime. Det. Escude testified that at no time during the investigation and trial preparation did he ever get information that the defendant claimed the intercourse to be consensual.

|fiThe victim made an in-court identification of the defendant as her assailant. She further denied having consensual sexual intercourse with the defendant prior to the crime, or knowing that he was married. The victim testified that she only knew the defendant because he had been a customer at Bentley’s, and did not know anything about his family or marriage. She testified that she first learned that the defendant’s mother, Faye, lived near her home from her conversation with Burcham, who knew the defendant and his family. However, Burcham testified that the victim remembered the defendant’s name was Rory, and that he was the son of her neighbor, Faye. The victim admitted telling Det. Escude that she knew the defendant’s mother’s name was Faye and that she lived on the adjacent street. However, on redirect examination, the victim clarified that she learned about the defendant’s mother from Burcham and later related that information to Det. Escude. DNA samples were consistent with the state’s theory of the case.

A 12-person jury rendered a verdict of guilty as charged by a vote of 10 to 2. The defendant’s motions for new trial and post-verdict judgment of acquittal were denied by the trial court. The defendant was charged and adjudicated to be a fourth felony habitual offender.

Before sentencing the defendant, the trial court noted that it had given both the defense and the state the benefit of knowing what the sentence would be prior to arguments. The trial court then listened to the arguments of the state and defense, including the state’s request that a life sentence be imposed. It then imposed the sentence of 47 years of imprisonment at hard labor, three years of which were ordered to be served without benefit of [ 7parole, probation, or suspension of sentence. It noted in accordance with La. C. Cr. P. art. 894.1 that any lesser sentence would deprecate the seriousness of the defendant’s crime. The trial court also specifically noted that it had looked at the defendant’s prior criminal history and the previous convictions that were the basis of the habitual offender bill.

Sufficiency

The defense argues that the state failed to prove that the rape was committed “without the lawful consent of the victim.” It argues that the victim’s testimony that she did not know the victim’s mother’s name and where she lived, which was contradicted by Burcham and by Det. Escude, shows the prior relationship between the victim and the defendant was more than the victim first indicated. The defense further argues that the defendant’s denial of his presence at the victim’s home was to conceal an extramarital affair. It concedes that the chainsaw tool is consistent with the defendant’s employment and its location at the victim’s home is easily explained as having fallen out of the defendant’s pocket during consensual sex. The defense argues that the victim’s injuries are consistent with rough consensual sex, and the lack of injuries to her arms, legs, or ankles indicate the absence of restraint. It contends that the victim’s lack of resistance to the defendant’s actions are consistent with her recognizing him and consenting to his actions. The defense also points to the victim’s actions in drinking coffee and smoking cigarettes with the defendant as inconsistent with a person who had just been raped, as was her failure to seek immediate | shelp. It concludes that there was insufficient proof that the defendant used force on the victim, and based on the victim’s actions, the jury was clearly wrong in not finding reasonable doubt.

The state argues that the evidence was sufficient to support the conviction because:

• the jury obviously resolved any conflict in testimony in favor of the victim;
• the defendant never denied that oral and vaginal sexual intercourse occurred;
• the only contested issue was that of lack of lawful consent, which was refuted by the victim’s testimony and the forensic evidence; and
• an appellate court does not assess credibility or reweigh evidence.

The defendant was charged with forcible rape (by vaginal and oral sexual intercourse) under La. R.S. 14:42.1(A)(1), which provides in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Our law on sufficiency is well settled.

|9In this classic case of “he said, she said,” the evidence is clearly sufficient, when reviewed under the Jackson standard, to support the defendant’s conviction of forcible rape based on the victim’s testimony alone. This one sexual assault victim’s testimony, obviously believed by the trier of fact, was clearly sufficient to prove the defendant guilty. Medical, scientific, and physical evidence proved the defendant had sex with the victim. The photographs show injuries which are logically inconsistent with consensual sex. The victim explained that her actions following the rape were motivated by fear of further harm and by self-preservation. The | ^defendant’s belatedly presented defense of consent was not even mentioned in his pretrial statement to Det. Escude.

Mistrial

During the state’s questioning of the victim, this exchange transpired;

Q: What was the nature of the conversation that was taking place between the two of you during this time period that you’re drinking-coffee and smoking cigarettes with him?
A. Just basically general conversation .... And we talked about the so-called properties that he owned, that he had three or four different properties around, and that he had just bought two houses in Stonewall from some guy that he was going to remodel and make some money off of. And he told me something about some felony convictions or something and that—
MR. GOINS: Objection, your Honor. Ask that the jury be removed.
THE COURT: Mr. Bailiff, will you take the jury out? (Whereupon the jury exited the courtroom.)
THE COURT: Will counsel approach the bench? (Conference at the bench between the Court and counsel.)

Thereafter, defense counsel moved for a mistrial due to the victim’s mention of the defendant’s prior felony convictions. Both Mr. Goins and the prosecutor agreed that the victim’s mention of the prior felonies was not in the police reports, nor was it in the victim’s taped statement. It came as “somewhat of a surprise” to both the defense and the state. The motion for mistrial was denied. There was no admonition given to the jury because of defense counsel’s concern that an admonition would draw unfair attention to the statement.

The defense argues that substantial prejudice was sustained when the victim testified about the defendant’s prior convictions, and it cannot be l^said that the information had no effect on the verdict. It contends that a jury’s knowledge of prior convictions caused it to afford less weight and credibility to his claim that the sexual contact was consensual. The defense asserts that the trial court erred in denying the motion for mistrial, and based on the substantial prejudice to the defendant, the conviction should be overturned.

The state argues that:

• if the statement is not found to be res gestae, citing State v. LeBlanc, 618 So.2d 949 (La.App. 1st Cir.1993), writ denied, 95-2216 (La.10/4/96), 679 So.2d 1372, then the proper remedy would have been an admonition, which was declined;
• the victim unequivocally identified the defendant;
• the defendant did not deny having sexual relations with the victim;
• any improper reference by the victim to other crimes did not make it impossible for the defendant to obtain a fair trial; and
• the evidence against the defendant was overwhelming.
Our law on this issue is well settled.

|12Even if technically considered res ges-tae, as argued by the state, the victim’s statement regarding the defendant’s criminal convictions was obviously a surprise to all of the parties. It is apparent from the record that the state did not know of and, therefore, never intended to offer this | ^statement as other crimes evidence. Hence, Prieur notice requirements are not applicable in determining whether the statement was “admissible” evidence.

What was said is more accurately analyzed as “prejudicial conduct” in the courtroom by a witness, not a court official. The record does not show that the prejudicial remark of the victim made it impossible for the defendant to obtain a fair trial. An admonition under La. C. Cr. P. art. 771 was declined, and unsolicited statements and spontaneous conduct of a witness are not usually grounds for a mistrial. Finally, trial error is harmless where the verdict rendered is “surely unattributable to the error,” as was the case here. The record supports the trial court’s denial of the motion for a mistrial.

Excessiveness

The defense cites the applicable law and argues that, given the defendant’s age (36) at sentencing, the 47-year sentence was, in effect, a life sentence. It argues that the sentence was primarily based on the defendant’s prior felony convictions, none of which were for violent offenses. The defense also argues that no weapons were used in the commission of the instant offense and that the victim suffered no serious physical injury. It concludes that the sentence is nothing more than the needless imposition of pain and suffering that serves no rehabilitative purpose.

The state argues that:

• the sentence is not constitutionally excessive;
• the sentence is in compliance with La. C. Cr. P. art. 894.1;
|14* forcible rape is listed as a crime of violence;
• the victim was emotionally traumatized;
• the defendant’s conduct was outrageous, as was his audacious assertion that the sex was consensual;
• the trial court has much discretion in imposition of sentences within statutory limits;
• the sentence meets the tests of constitutionality because it does not shock the sense of justice; and
• the defendant should be thankful that the trial court did not honor the state’s request for a life sentence.
Our law on review of allegedly excessive sentences is well settled.

As a fourth felony habitual offender convicted of forcible rape, with prior convictions of unauthorized entry of an inhabited dwelling and second |1fioffense marijuana possession, the defendant faced a sentencing range of a minimum of 40 years of imprisonment at hard labor to not more than his natural life. The defendant’s 47-year hard labor sentence is legal and clearly not an abuse of discretion. When the defendant’s crime and punishment are viewed in light of the harm done to society by sexual offenders in general, and to this victim in particular, it does not shock the sense of justice.

Pro Se Assignment of Error Relative to Habitual Offender Adjudication

The defendant was charged as a fourth felony habitual offender. The defense filed a motion to quash the habitual offender bill, alleging that the December 22, 1999, conviction in No. 205,508 for possession of marijuana, second offense, resulted in a double enhancement. At the habitual offender proceeding, the defense briefly argued the double enhancement issue. The state also briefly argued the contrary position, and the trial court denied the motion to quash.

This court must accept and consider a pro se or represented defendant’s briefed assignments of error. La. Const. art. I, §§ 2, 19, and 22; State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466; State v. Anderson, 29,282 (La.App. 2d Cir.6/18/97), 697 So.2d 651.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Jones, 41,299 (La.App. 2d Cir.11/9/06), 942 So.2d 1215; State v. Smith, 39,698 (La.App. 2d Cir.6/29/05), 907 So.2d 192; State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

|inThe defendant now argues pro se that the trial court erred in adjudicating him a fourth felony habitual offender because it should not have relied on the December 22, 1999, conviction for the reasons that:

• he was not properly Boykinized because he was not informed of the right against self-incrimination;
• he could not have waived something he did not understand; and
• the state failed to comply with the provisions of La. R.S. 15:529.1.

Although a motion to suppress was filed and argued and denied at the trial court level, and a motion was made to preserve review of that error, it was based on a different irregularity at the trial level. Because the issue that is the basis for this pro se argument was not preserved for review on appeal, it cannot be considered here.

Even so, there was no error. The fourth felony habitual offender adjudication was based in part upon a conviction for possession of marijuana, second offense, which was by guilty plea on December 22, 1999, in No. 205,508 on the docket of the First Judicial District Court in Cad-do Parish. To prove this prior conviction, the state introduced exhibits including a certified copy of the bill of information containing the defendant’s fingerprints, as well as copies of the district court minutes reflecting in part that the defendant was present with counsel and “WAS INFORMED OF HIS CONSTITUTIONAL RIGHTS AS PER BOYKIN V. ALABAMA.”

[17Our law on the review of habitual offender adjudications is well settled.

The minutes for the 1999 conviction reflect that the state met its burden of proving under State v. Shelton, 621 So.2d 769 (La.1993), the existence of this prior guilty plea and that defendant was represented by counsel when it was entered. The defendant, however, has not met his subsequent burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Therefore, the trial court did not err in adjudicating the defendant to be a fourth felony habitual offender based on this conviction.

TERROR PATENT

The court minutes incorrectly reflect that all of defendant’s sentence was to be served without benefit of probation, parole, or suspension of sentence. The transcript reflects that only the first three years were ordered to be served without benefit of probation, parole or suspension of sentence. The trial court is instructed to correct this error in the minutes, as the transcript controls over the minutes when there is a conflict. See State v. Lynch, 441 So.2d 732 (La.1983).

DECREE

Defendant’s conviction, adjudication, and sentence are AFFIRMED.

      . The victim's initials are used because of victim confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . The trial court further ordered the defendant to register as a sex offender in accordance with applicable law.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La. 10/1/99), 748 So.2d 434; State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048. This is equally applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2d Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir. 1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . La. C.E. art. 404 provides that evidence of other crimes, acts or wrongs is generally not admissible. When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, upon request of the defendant, the defendant's remedy is a request for an admonition or a mistrial pursuant to La. C. Cr. P. art. 771. State v. McGee, 39,336 (La.App. 2d Cir.3/4/05), 895 So.2d 780; State v. Holmes, 2002-2263 (La.App. 4th Cir.2/26/03), 841 So.2d 80.
      Discretionary mistrial is authorized when "prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial[.]” La. C. Cr. P. art. 775. The defendant’s relief in this regard is pursuant to La. C. Cr. P. art. 771 since the statement was made by a witness, and not a court official. State v. Smith, 418 So.2d 515 (La.1982).
      La. C. Cr. P. art. 771 provides:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
      Unsolicited statements and spontaneous conduct of a witness are not usually grounds for a mistrial. La. C. Cr. P. arts. 770, 775; State v. Newman, 283 So.2d 756 (La.1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). Mistrial under La. C. Cr. P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused. State v. Smith, supra; State v. Williams, 41,-731 (La.App. 2d Cir.1/24/07), 950 So.2d 126, writ denied, 2007-0465 (La.11/2/07), 966 So.2d 599. The court may grant a mistrial if it is satisfied that the admonition will not assure the defendant a fair trial, but this is within the court’s great discretion and will not be disturbed absent an abuse of discretion. State v. Taylor, 30,310 (La.App. 2d Cir.2/25/98), 709 So.2d 883. Also, State v. Ellis, 28,282 (La.App. 2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521.
      Even when other crimes evidence is improperly admitted at trial, the erroneous admission is a trial error and is subject to the harmless error analysis on appeal. State v. McGee, supra; State v. Bratton, 32,090 (La.App. 2d Cir.6/16/99), 742 So.2d 896; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Trial error is harmless where the verdict rendered is "surely unattributable to the error.” State v. McGee, supra; State v. Bratton, supra.

      The state cites State v. LeBlanc, 618 So.2d 949 (La.App. 1st Cir. 1993), writ denied, 95-2216 (La.10/4/96), 679 So.2d 1372, in arguing that the statement can be construed as being part of the res gestae. LeBlanc was decided in part on cases interpreting La. R.S. 15:448 (res gestae), which was repealed effective January 1, 1989, when the Louisiana Code of Evidence became effective.
      Evidence of other crimes, wrongs, or acts is generally inadmissible to impeach the character of the accused. La. C.E. art. 404(B); State v. Talbert, 416 So.2d 97 (La.1982); State v. Prieur, 277 So.2d 126 (La.1973). However, such evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or ... [res gestae].” La. C.E. art. 404(B)(1). When the other crimes are offered for a purpose allowed under Article 404, the state is required to prove that the defendant committed these other acts by clear and convincing evidence. See State v. Davis, 449 So.2d 466 (La.1984). Additionally, the state must provide the defendant with notice before trial that it intends to offer prior crimes evidence. Prieur, supra. Even when other crimes are relevant, the probative value of unrelated offenses must be weighed against their possible prejudicial effect. Id. See State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90, cert. denied, - U.S. -, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.
      There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379.

      . The state’s burden of proof in habitual offender proceedings under La. R.S. 15:529.1 was stated in State v. Shelton, 621 So.2d 769, 779-80 (La.1993):
      If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a "perfect” transcript, for example, a guilty plea form, a minute entry, an "imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. (Footnote omitted.)
      The Louisiana Supreme Court found that it was appropriate to shift the burden to the defendant after the state makes the initial showing that the defendant made the guilty plea with the representation of counsel because there is a presumption of regularity that attaches to final judgments. State v. Shelton, supra; State v. Zeigler, 41,617 (La.App. 2d Cir. 12/20/06), 945 So.2d 946.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, DOTD, Plaintiff-Appellant v. COLE OIL AND TIRE CO., INC., Defendant-Appellee.
    No. 43,030-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      See, also, 822 So.2d 229.
    Bernard L. Knobloch, Jr., for Appellant.
    Anna E. Dow, Martin S. Sanders, III, Baton Rouge, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

_JjThe State of Louisiana, through the Department of Transportation and Development (hereafter “DOTD”) appeals a judgment awarding Cole Oil and Tire Company, Inc., (hereafter “COT”) a total $372,642, plus costs and attorney fees, as just compensation for an expropriation of land to widen a highway. Finding no reversible error, we affirm the trial court’s judgment with an amendment of the expert fees.

FACTS

COT operated a bulk fuel plant in Jones-boro, Louisiana, alongside LA-US 167 on a triangular tract of land with a railroad right of way running along the rear of the tract. On March 10, 1997, DOTD filed a petition to expropriate part of the property (16,243 square feet) to widen the highway and deposited $10,267 into the registry of the court as just compensation for the taking. COT answered the petition on April 18, 1997, to demand total compensation of $460,000. COT claimed that the taking damaged the remainder of the property by rendering it unfit for operations of a bulk fuel plant due to the proximity of the fuel storage tanks to the highway right of way. Only by reconfiguring the site would COT be able to continue operations at its Jonesboro location.

Almost ten years after the taking, the issue of compensation due COT went to trial. For the intervening procedural history of this matter, which is not directly related to the issue before us now, see State of Louisiana, DOTD v. Cole Oil & Tire Co., Inc., 36,122 (La.App. 2d Cir.7/17/02), 822 So.2d 229, writ denied, 2002-2325 (La.11/15/02), 829 So.2d 436.

12At trial, Albert F. Cole, the majority shareholder of COT, testified that the taking made the site unsafe for continued operations of the bulk fuel plant and that he could no longer obtain insurance for operating the plant. Apparently, the taking placed the plant operations in violation of a National Fire Protection Act (NFPA) guideline that required a distance of at least 25 feet between tank car loading and uploading facilities dispensing Class I liquids and the nearest line of adjoining property that can be built upon. Cole testified that the loading dock was within 13 feet of the highway right of way line as shown by markers that DOTD had put down and the placement of a telephone pole. Though he had not surveyed the distance, he stated that his lawyers and others had measured it. Cole asserted that because he was unable to get insurance for the operations, he closed the tanks. However, the date of closure was not clearly established. Records for the Department of Environmental Quality (“DEQ”) showed that the tanks were out of service by 1998.

Cole also testified that the tanks could not be moved back on the property due to the presence of a railroad right of way and the fire danger posed by sparks from the railroad tracks igniting the overgrown brush on the right of way. He claimed that the only way to continue operations on the site would be to demolish the existing improvements and rebuild in a new configuration that would satisfy all applicable safety standards.

The need to and manner of reconfiguring the site was determined by engineers consulted by COT’s real estate appraiser, James A. Young. According to Young, the cost of demolishing the existing facilities and | ^rebuilding the site would total $403,068 as of the date of trial. His appraisal of compensation for the taking only amounted to $10,512. Young admitted that he did not determine the distance from the loading rack to the highway right of way and that he relied on the report from engineers with Jones Brothers Co., Inc., in making his appraisal. The Jones report did not include specific information about why the site would have to be reconfigured. It stated only that the proposed layout would be in compliance with current codes and regulations applicable to fuel facilities and adjacent rights of way.

Ronnie Rabalais, an expert in construction costs, testified on behalf of DOTD, which asked him to determine the replacement costs. of improvements on the site and whether changes were needed for operations to continue. Rabalais opined that the loading racks were set back far enough from the highway right of way to meet regulatory requirements. He also believed that the NFPA setback requirements would not apply to the highway right of way, which was not an area on which anything would be built. COT objected to this testimony as outside of Ra-balais’s area of expertise, and the trial court sustained the objection. Rabalais testified that COT could continue operations on the site without rebuilding, and he referred to other bulk fuel plants he had seen or inspected that were located closer to highway or railroad rights of way. However, he did not know whether these facilities were insured. Finally, Rabalais estimated replacement costs, if owed, to be $326,700 as of the date of the taking.

^Another DOTD witness from the petroleum marketing industry, John Fontenot, also testified that COT could continue operating under the present conditions. But Fontenot said he would not operate without insurance.

Finally, DOTD presented its own appraiser, Richard K. Moore, who had done an initial appraisal report prior to the taking and a second report in 2004. Moore’s initial report determined the market value of the property taken to be $10,543, and the severance value of the remaining property to be $8,500, for a total of $19,043. His 2005 report updated these figures to $15,300 for the property taken and $9,000 for the severance damages for a total of $24,300. These figures were based on the assumption that setback requirements were met. His calculation of replacement costs for the improvements, as indicated in his appraisal report, totaled $326,700 as of November 19, 2004.

After considering the testimony and documents offered into evidence, the trial court ruled in favor of GOT, awarding it $15,300 for the value of the property taken, $326,700 in replacement costs without depreciation for the improvements, $20,642 for demolition, and $10,000 for grading and rebuilding preparations. These awards totaled $372,642, and with the $10,267 already paid by DOTD, left $362,375 remaining to be paid with legal interest from the filing date of COT’s answer. The trial court also awarded attorney fees totaling $90,593.75, and costs associated with COT’s appraiser, James Young, totaling $27,400. DOTD has appealed this judgment.

1 .¡DISCUSSION

DOTD first argues that the trial court erred in overruling its hearsay objections to two letters offered by COT in support of Mr. Cole’s testimony. The first letter, which is dated March 15, 1996, was written to Mr. Cole from COT’s insurer, Federated Insurance, regarding an inquiry by its Louisiana consultant about the distance requirements applicable to loading and unloading tank vehicles. The letter indicates that the changes at the Jones-boro location would put the transfer point within 15 feet of the highway right of way and that the NFPA guidelines, which Federated follows when determining insurability, requires a distance of 25 feet for Class I liquids. However, the letter does not state whether insurance would be denied to COT.

The second letter, dated September 5, 1996, was written to DOTD by H.R. Perry of Perry and Sons, Inc., in support of COT’s contention that it could no longer operate on the Jonesboro site because of the taking.

We agree with DOTD that both letters are hearsay and should not have been admitted into evidence. It was not shown that any hearsay exception applied. COT argues that the letters were not admitted to establish the truth of the matters contained in them but to show what Mr. Cole believed at the time. However, it is clear that the letters were offered to bolster Mr. Cole’s testimony that he could not obtain insurance and that the taking rendered the plant useless due to the NFPA distance guidelines. In this sense, they were offered to establish the truth of COT’s claims and are inadmissible hearsay.

| (¡Though these letters were improperly admitted, an “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” La. C.E. art. 103(A); State Farm Mutual Automobile Ins. Co. v. Little, 34,760 (La.App. 2d Cir.6/20/01) p. 4, 794 So.2d 927, 930 and cases cited therein. Because other evidence supports the trial court’s judgment, we cannot say that these letters were persuasive to the outcome of the case such that the substantial rights of DOTD were affected by their improper admission.

DOTD argues that COT did not prove that the loading rack was less than 25 feet from the right of way line, that the NFPA guideline was violated, or that the taking required relocation of the loading rack for COT to obtain insurance. For these reasons, DOTD asserts that the trial court erred in awarding COT costs to reestablish operations and that the award should be reduced to $5,033 to reflect the value of the part taken ($15,300) less the deposit of $10,267.

When property is taken for a public purpose, the owner is entitled to just compensation. La. Const. Art. I, § 4; State, DOTD v. Griffith, 585 So.2d 629, 631 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1055 (La.1991). The owner is to be compensated to the full extent of his loss. La.R.S. 48:453(C); Griffith, supra. While the market value of the property may suffice to fully compensate the owner, unusual situations might entitle the owner to replacement value in an amount necessary to reconstitute the property. Griffith, 585 So.2d at 632. Two cases comparable to the matter 17at hand are examples of situations warranting additional compensation to reconfigure property after a taking.

In State, Department of Highways v. Randolph, 170 So.2d 397 (La.App. 3d Cir. 1965), the taking of a strip of land adversely affected a business that operated a gas station and restaurant and sold beer. Because of the taking, the gasoline tanks had to be removed, and there was no longer sufficient parking. Severance damages were awarded to the owner to compensate for the damage to the remainder of the property caused by the taking.

In State, Through Dept. Of Highways v. Browning, 315 So.2d 784 (La.App. 1st Cir. 1975), the owner of a gas station was awarded severance damages after a taking rendered the station useless. The only gasoline pump was located on the expropriated land, and the taking left inadequate distance from the road to allow the building to be used for commercial purposes. The experts agreed that the value of the service station was lost and that removal of the improvements would be necessary in order to rebuild the station.

When expert testimony is required in expropriation cases, the trial court’s evaluation and weighing of the expert testimony and factual findings on the valües of property will not be disturbed on review in the absence of manifest or clear error. Griffith, supra; Browning, supra. Where conflict ■ exists in the testimony, the trial court’s reasonable evaluations of credibility are not to be disturbed on appeal; where there are two permissible views of the evidence, the factfinder’s choice between | Rthem cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

DOTD argues that there was no evidence that Mr. Cole or anyone working for COT actually measured the distance from the loading rack to the highway right of way and that DOTD’s survey showed the distance to be 25 feet, as established by the testimony of Mr. Rabalais.

Mr. Cole testified that the loading dock was 13 feet from the right of way, but he could not name the exact person who did the measurement. He recalled that it was done by his attorneys and others working on the case. The trial court could have reasonably believed Mr. Cole’s testimony, particularly in light of the proposed reconfiguration obtained by COT’s appraiser to place the plant in compliance with codes and regulations applicable to fuel plants and rights of way. Neither Rabalais’s testimony nor DOTD’s topographic survey fully contradicts Mr. Cole’s testimony. The survey has two measurements from what appears to be the loading dock area, including the concrete area around it. One measurement is 24 feet, 7 inches, and the other is 14 feet, 11 inches. The right of way line appears to slope slightly. The effect of the slope and the points used for the measurement lead to different results. Rabalais’s testimony confirms this problem, though he believed that the total area was in the range of 25 to 26 feet and was close enough to satisfy the guidelines. In light of the conflicting evidence, the trial court could have determined that a distance | aof less than 25 feet existed between the loading dock area and the right of way. This finding is not manifestly erroneous.

DOTD also asserts that the NFPA does not apply to highway rights of way. However, the only testimony on this point was that of Mr. Rabalais, who was accepted as an expert in construction cost estimates. The trial court sustained an objection to Rabalais’s testimony on the meaning of the NFPA on the grounds that he was not an expert on regulatory matters. We find no error in the trial court’s failure to find credible Mr. Rabalais’s testimony on the meaning of the distance requirements in the NFPA.

DOTD also disputes the claim that the taking required relocation of the loading rack in order for COT to obtain insurance. DOTD argues that COT’s closing did not occur until after the highway construction was underway and was not due to lack of insurance.

Mr. Cole testified that he could not obtain insurance due to the effect of the taking on his remaining property. His testimony was uncontradicted. While the record does not show that COT immediately ceased operations upon the date of the taking, Mr. Cole testified that the loading dock was taken out of use at the time highway construction commenced, which he explained further as “before they completed the highway over to our area where we couldn’t operate any longer.” Presumably, the highway construction did not even begin until some months after the taking occurred. There was no showing that COT acted improperly or closed for reasons other than safety issues resulting from the taking.

|inThe preponderance of the evidence supports COT’s claim for additional compensation to make it whole. The trial court weighed the conflicting evidence, including the experts’ appraisals, and its judgment has not been shown to be manifestly erroneous. We find no reason to reverse the award of compensation and attorney fees to COT.

Lastly, DOTD disputes the trial court’s award of the full amount of fees claimed by COT’s expert appraiser, James A. Young. DOTD complains that the award of $27,400 improperly includes a charge of $13,350 for work done by one of Mr. Young’s associates. Young’s bill indicates that this charge is due for 133.5 hours of work at $100 per hour. DOTD believes this amount should not have been awarded because the associate, Mr. Sholar, was not qualified in court as an expert and did not testify at trial. However, the record does not show that DOTD contested the fees claimed before the trial court.

The trial court may render any judgment for costs that it considers equitable. La. C.C.P. art. 1920. The assessment of costs may not be reversed unless an abuse of discretion is shown. City of Shreveport v. Noel Estate, Inc., 41,148 (La.App. 2d Cir.9/27/06), 941 So.2d 66, writ denied, 2006-2774 (La.1/26/07), 948 So.2d 171. An expert witness is entitled to reasonable compensation for his court appearance and preparatory work. Id.

We note that Young’s invoice includes charges for two days in court. However, only one day was required for trial. We find that the expert fees awarded should be reduced by $1,800, the amount charged for one day. |nOtherwise, DOTD has not shown that the trial court abused its discretion in awarding the expert fees claimed by Young, inclusive of work done on the matter by one of Mr. Young’s associates in his business.

CONCLUSION

For the reasons explained in this opinion, we affirm the trial court’s judgment awarding additional compensation to Cole Oil and Tire Company, Inc. The award of attorney fees is also affirmed, but the award of expert fees is amended to $25,600. Costs of the appeal in the amount of $120 are assessed against DOTD, and the matter is remanded to the trial court to set the amount of trial and record preparation costs. La. R.S. 13:5112.

AFFIRMED, WITH AMENDMENT OF EXPERT FEES. REMANDED TO TRIAL COURT FOR DETERMINATION OF COURT COSTS.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. James Fredrick LINN, Appellant.
    No. 43,006-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    James Fredrick Linn, Pro Se.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, John Ford McWil-liams, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS, and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, James Fredrick Linn, was found guilty after trial by jury of the charged offense of creation and operation of a clandestine laboratory, a violation of La. R.S. 40:983(A)(1). He was sentenced to eight years at hard labor and now appeals. For the following reasons, we affirm Linn’s conviction, but vacate his sentence and remand to the trial court for resentencing.

Facts

On February 18, 2006, Linn was pulled over for a traffic infraction by Off. Sean Channell of the Vivian Police Department. Through the window of Linn’s vehicle, Off. Channell noticed several items on the seat which he immediately recognized as being used in the manufacture of methamphetamine. Officer Channell placed Linn under arrest for the offense of creation and operation of a clandestine laboratory, a violation of La. R.S. 40:983(A)(1), for which he was later charged by bill of information.

After a jury trial, Linn was convicted by a vote of 11-1 of the charged offense. Subsequently, a fourth felony habitual offender bill of information was filed; however, Linn was not found to be a fourth felony offender. On January 31, 2007, he was sentenced by the trial court to eight years at hard labor to be served concurrently with any other sentence, with credit for time served. The trial court also ordered Linn to reimburse “any agency” for the costs of “any clean-up costs,” adding that in default of that Linn was sentenced to an additional 18 months in the parish jail and that restitution was to be performed “within the first year after his release from jail.” The | atrial court gave no reasons for the sentence imposed. Linn’s counsel filed a motion to reconsider sentence, and Linn filed a pro se motion to reconsider sentence. In a written opinion rendered in May 2007, the trial court stated that it would consider the filings as a motion to amend, but the trial court denied the motions on the basis that it was without authority to amend or modify the sentence after the sentence had commenced. This appeal by Linn ensued.

Discussion

On appeal, Linn’s appeal counsel raises two assignments of error related only to the sentence in addition to several pro se assignments of error brought by Linn.

Sufficiency of the Evidence

In his first pro se assignment of error, Linn argues that the evidence was insufficient to convict him of the crime charged, and the jury’s verdict was contrary to the law and evidence. He specifically argues that the testimony of Sgt. Carl Townley, a supervisor at the Caddo Shreveport Narcotics Unit who was qualified at the trial as an expert on narcotics, was confusing, misleading and prejudicial. Linn also maintains that Off. Channell’s testimony was inconsistent and uncorroborated. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,-137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442; State v. Steward, 42,643 (La.App. 2d Cir.11/14/07), 969 So.2d 804. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual | conclusion. State v. Burd, 40,480 (La.App. 2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35.

Louisiana R.S. 40:983(A)(1) states that:

A. Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance is any of the following:
(1) The purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment, or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance.

At trial, Off. Channell testified that after he pulled Linn over and Linn had exited his vehicle, Off. Channell requested to see Linn’s vehicle registration and proof of insurance. Linn went to the passenger’s side to retrieve it, and Off. Channell went to the driver’s side (for safety reasons), looking into the vehicle with his flashlight “to see what he might be grabbing.” Officer Channell testified that he saw a 50-pound bag of caustic soda and a clear tube in the front seat and a 40-pound bag of ammonium sulfate, acetone, camp fuel, and “liquid heat” in the back seat. As Off. Channell testified, he recognized all of these items from his training as “basic sources of a clandestine lab.” He also stated that all of the items were in plain view in Linn’s vehicle. Officer Channell then arrested Linn and advised him of his Miranda rights, and, according to Off. Channell, Linn responded that he understood his rights. Officer Channell testified that Linn said that he knew the items in the car were used for making methamphetamine and that Linn was supposed to go with two other men later to “cook” the substance.

[^Officer Channell testified that he also located the following in Linn’s vehicle: a block of dry ice in the front passenger seat; a bottle of hydrogen peroxide; an empty box of Claritin; four lithium batteries; black electrical tape; a gallon pitcher; a clear mesh strainer; approximately 150 Claritin tablets; a two-gallon gas can; three syringes; and, a 60-ounce jar. Additionally, Off. Channell stated that Linn had store receipts showing purchases of most of the items. Officer Channell explained that he had been trained to recognize the components necessary to make methamphetamine, and he had thus recognized the items in Linn’s vehicle as such. He also testified that Linn had indicated to him he was going to use the syringes to shoot up methamphetamine after it had been manufactured. Finally, Off. Channell stated that he again gave Linn his Miranda rights at the police station and read to him a rights form that Linn signed. According to Off. Channell, Linn then told him that the components in the vehicle were used for making methamphetamine, he had bought all the ingredients, and he had been using the substance for twenty years.

Officer J.D. Phill, who at the time of the incident worked for the Vivian Police Department, also testified at Linn’s trial. He corroborated Off. Channell’s testimony regarding the items found in Linn’s vehicle and Linn’s statements to Off. Channell, including Linn’s admissions that the syringes were used for shooting up and “everything in the back seat was used for a meth lab.”

Linn also disputes the testimony of Sgt. Carl Townley who was qualified without objection as an expert in narcotics. He testified that he |fitaught “basic narcotics,” an advanced narcotics class, and a methamphetamine lab class. Sergeant Townley testified that he had actually cooked methamphetamine at several lab schools, that he had testified in 50-100 cases, including 25-30 methamphetamine cases, and that he had been tendered as an expert in clandestine methamphetamine laboratories. Sergeant Townley testified about the “Nazi method” of making methamphetamine and how the various items found in Linn’s vehicle were used in that method. He also indicated that there were other “recipes” as well. It was Sgt. Townley’s expert opinion that the combination of ingredients found in Linn’s vehicle were to be used for the manufacture of methamphetamine.

Although Linn’s son, Daniel, testified that the items found in his father’s vehicle were all legally obtained by Linn and were to be used for various legal reasons around the Linn residence, the jury was clearly within its province to reject his testimony and accept the testimony of Off. Channell and Sgt. Townley. The testimony of the law enforcement officers was not conflicting and appears to be entirely credible and believable from the record before us. The fact that the materials in Linn’s vehicle might have legitimate, legal, alternative uses did not defeat the testimony of Off. Channell that his training taught that such items were commonly used to make methamphetamine. Nor does Daniel’s testimony negate Sgt. Townley’s expert opinion that the items were likely going to be used by Linn to make methamphetamine, or Offs. Channell’s and Phill’s testimony that Linn admitted he was going to use the items to make methamphetamine. |7Clearly, there was sufficient evidence for this jury to determine that the essential elements of this crime existed to convict Linn. This assignment of error is without merit.

Ineffective Assistance of Counsel

In his second pro se assignment of error, Linn argues that he was denied effective assistance of counsel because his trial attorney failed to order the production of the preliminary examination hearing transcript for use to impeach Off. Channell. Linn argues that Off. Channell stated that he was coming from the airport when he spotted Linn’s vehicle at the intersection of Redbud and Airport Road; however, according to Linn, this location is not within the city limits of Vivian, which made Off. Channell outside his jurisdiction and without authority to make the arrest. Linn also seems to argue that there are other discrepancies between Off. Channell’s preliminary examination testimony and his trial testimony and that Linn was prejudiced by his trial counsel’s failure to order the production of the transcript.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2d Cir.06/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, this issue may be resolved on direct appeal in the interest of | judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, 40,816 (La.App. 2d Cir.04/12/06), 927 So.2d 659, 669, writs denied, 2006-1453 (La.12/15/06), 944 So.2d 1283, 2006-2502 (La.05/04/07), 956 So.2d 599.

However, this is not the exceptional case in which the issue of ineffective assistance of counsel should be resolved on direct appeal rather than on an application for post-conviction relief. Moreover, there is no evidence in the record that tends to support Linn’s assertions. Notably, Linn’s claims of ineffective assistance of counsel have never been argued to any court and at this point are mere assertions. Considering that the record is insufficient for this court to review the issue of ineffective assistance, we conclude that Linn’s remedy is post-conviction relief wherein the quality of the attorney’s performance can be fully developed and explored in an evidentiary hearing.

Expert Testimony

In another pro se assignment of error, Linn complains that the trial court erred in allowing Sgt. Townley to state his opinion that the components found in his vehicle were going to be used to produce methamphetamine. Linn asserts that allowing “this line of opinionated testimony” to be heard prejudiced his defense and warranted a mistrial. Obviously, Linn does not understand that Sgt. Townley was qualified as an expert without objection so that he could offer his opinion to be used against Linn. This assignment of error is completely without merit.

| sIllegal Seizure

In his final pro se assignment of error, Linn makes more than one contention; however, the essence of his argument is that the evidence found in his vehicle which was used to convict him was illegally seized, because it was obtained by a war-rantless search. Additionally, Linn argues that the evidence was seized in his driveway on private property not within the jurisdiction of the Vivian City Police. He also argues that the arrest was made on mere suspicion and not probable cause; his property was searched and the items seized without a warrant absent exigent circumstances; and, the stop was made on a pretext. He even tries to make a patently erroneous argument that Off. Phill’s testimony showed he worked for the Blanchard Police rather than the Vivian Police. Considering the facts of the case, none of his arguments have merit.

When a warrantless search is conducted, the state has the burden of showing the search was justified as an exception to the warrant requirement of the Fourth Amendment. One exception to the warrant requirement is the plain view doctrine. State v. Young, 39,546 (La.App. 2d Cir.03/02/05), 895 So.2d 753. The plain view doctrine renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2310, 110 L.Ed.2d 112 (1990); State v. Nolen, 29,284 (LaApp. 2d Cir.04/04/97), 691 So.2d 379.

|inAn officer who peers into the interior of a vehicle during a legitimate traffic stop is not conducting a search within the meaning of the Fourth Amendment. State v. Schouest, 351 So.2d 462 (La.1977); State v. Young, supra. The officer’s use of a flashlight is permissible when there is a need to do so, such as officer safety. State v. Young, supra.

Furthermore, there is absolutely no evidence to indicate that the stop of the vehicle was made on a pretext. Officer Channell testified that he was patrolling, looking for traffic infractions, when he spotted the vehicle Linn was driving with a burned-out headlight. Thus, Off. Chan-nell had probable cause for the stop. Notably, the constitutional reasonableness of a traffic stop does not depend on the actual motivation of the individual officer involved. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

The geographical jurisdiction question already has been discussed and, as noted, there is no evidence that the stop was made outside the jurisdiction of the Vivian Police. As for the arrest, Off. Channell’s testimony established, without contradiction, that a number of the methamphetamine supplies were in plain view in Linn’s vehicle. Officer Channell had a right to peer into the car’s interior while making the traffic stop, and the items’ incriminating character was immediately apparent to Off. Channell, who had training on the specific crime. This assignment of error is ■without merit as well.

|,,Sentencing

On the issue of sentencing, Linn’s appeal counsel raises two assignments of error and Linn, pro se, raises another. As we noted herein, the trial court sentenced Linn to eight years of hard labor; however, it neglected to give any reasons for the sentence. Furthermore, as already stated, Linn’s trial counsel filed a motion to reconsider sentence, and Linn himself filed a motion to reconsider sentence. In its written opinion, the trial court stated that it would consider the filings as a motion to amend, but the trial court denied the motions on the basis that it was without authority to amend or modify the sentence after the sentence had commenced.

The provisions of La. C. Cr. P. art. 881.1(A)(1) state that in felony cases, within 30 days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence. In the instant case, the motions for reconsideration were timely filed, and the trial court erred in concluding otherwise by considering the filings as a motion to amend. However, as acknowledged by the state on appeal, the trial court did not provide any reasons for the sentence imposed and did not refer to La. C. Cr. P. art. 894.1 at sentencing. Thus, even though the trial court failed to properly address the motions for reconsideration, we will not order the trial court to address those motions now because we vacate Linn’s sentence and remand for further articulation of the basis for the sentence imposed. See State v. Saunders, 393 So.2d 1278 (La.1981); State v. Williams, 567 So.2d 735 (La.App. 2d Cir. 1990). Furthermore, because the sentence should bejjgvacated for failure to articulate the basis of the sentence, this court need not address the assignments of error directed at the sentence other than perhaps to note the timeliness of the motions for reconsideration.

Conclusion

For the foregoing reasons, James Frederick Linn’s conviction is affirmed. However, his sentence is vacated and the matter remanded to the trial court for re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.


text:
    Scottie HARRELL and Mary Harrell, individually and on behalf of their Minor Son, Daniel Harrell, Plaintiffs-appellees v. CURRIE, Frank Ellis, individually and d/b/a Supersweep Service, Republic Vanguard Insurance Company and ABC Insurance Company, Defendants-Appellants.
    No. 43,001-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Davenport, Files & Kelly by Michael J. Fontenot, Clint R. Hanehey, Monroe, for Defendants Appellants Frank Ellis, Susan Ellis and Joshua Currie.
    Smith & Ungarino by Brian D. Smith, Shreveport, Matthew J. Ungarino, Metair-ie, for Third Party Appellee Community Financial Ins. Center.
    M. Randall Donald, West Monroe, for Third Party Appellees Frank Ellis and Susan Ellis.
    Richard L. Fewell, Jr., for Plaintiffs Ap-pellees Scottie Harrell, Mary Harrell and Daniel Harrell.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

1-iAt issue in this appeal from a summary judgment is the validity of an endorsement in a commercial lines liability policy providing full coverage up to the policy limits for listed drivers but only the statutory minimum required coverage for nonlisted drivers. The trial court found the endorsement binding on the parties to the policy and granted judgment in favor of the insurer, Republic-Vanguard Insurance Company. We affirm.

FACTS

This dispute arises from an automobile accident that occurred on October 27, 2003, when a vehicle driven by Daniel Harrell, a minor, was hit from behind by a street sweeper driven by Joshua Currie, an employee of Super Sweep Service (Super Sweep), a street cleaning business. The impact pushed Daniel’s vehicle into the vehicle ahead of him and that vehicle hit another. Daniel sustained a broken nose and other injuries. His parents, Scottie and Mary Harrell, sued Currie, Super Sweep, its owner Frank Ellis, and its insurer Republic-Vanguard.

Republic-Vanguard claimed that the commercial lines policy covering Super Sweep had been cancelled for nonpayment of the full premium prior to the accident. Denying the cancellation, Ellis and Super Sweep filed a third-party demand against Republic-Vanguard asserting its liability for any damages found due and attorneys fees for its failure to provide a defense for its insured. The cancellation issue was argued before the trial court and submitted for judgment. The trial court ruled that the policy was still in effect at the time of the accident due to Republic-Vanguard’s failure to |j>comply with La. R.S. 9:3550 by timely returning the unearned premiums to its insured after sending notice of cancellation.

After the adverse judgment on its cancellation defense, Republic-Vanguard alleged in a supplemental answer that an endorsement to the policy limited its exposure to the statutory minimum. The trial court granted an order allowing Republic-Vanguard to deposit $20,000 into the registry of the court. This amount was the total liability uncontested by the insurer. Republic-Vanguard then filed a motion for summary judgment. It alleged that though the policy provided $1,000,000 in liability coverage, an endorsement to the policy limited this coverage to “listed drivers.” Only Frank Ellis was a listed driver. Under the endorsement, coverage for the accident involving Currie, who was not a listed driver, was reduced to the statutory minimum required by state law. The policy application, the policy, and the endorsement signed by Susan Ellis, who procured the coverage for Super Sweep and is Frank Ellis’s wife, were offered in support of the motion.

In opposing summary judgment, Super Sweep and Ellis argued that there were issues of material fact, namely, that the endorsement was not a part of the policy when issued and that the premium was not reduced even though the endorsement reduced the coverage provided by the policy. They also argued that the endorsement violated public policy and La. R.S. 32:900(B)(2)(d) governing the exclusion of a named person as an insured. Additionally, Ellis and Super Sweep filed a third-party demand against the insurance agency, Community Financial Insurance Center, f/k/a Bankers 1¡insurance Center, L.L.C., and d/b/a Troy & Montgomery Insurance, L.L.C., that assisted in procuring the policy. They alleged that the agent, Matt Stevens, failed to properly explain the endorsement to Susan Ellis.

The trial court granted Republic-Vanguard’s motion for summary judgment thereby limiting its liability to the amount it had deposited into the registry of the court and dismissing the claims against it stemming from the accident, while reserving the rights of Ellis and Super Sweep on their demand relating to Republic-Vanguard’s initial failure to provide a defense.

Ellis and Super Sweep asked the trial court for a new trial on the summary judgment based on the affidavit of Matt Stevens. The affidavit states that Stevens assisted Susan with the insurance application and submitted it to Republic-Vanguard. After the coverage was issued, the insurer requested execution of the endorsement. Stevens explained it to Susan, who signed. It was then returned to Republic-Vanguard. Stevens said that Republic-Vanguard would have cancelled the policy if the endorsement had not been signed. As an alternative to a new trial, Ellis and Super Sweep sought to have the summary judgment certified as a final judgment for appeal.

The trial court refused to grant a new trial. Thereafter, Ellis and Super Sweep filed this appeal.

DISCUSSION

In seeking reversal of the trial court’s judgment, Ellis and Super Sweep argue that the endorsement is against pub-lie policy. The endorsement at issue states, in relevant part:

|4In consideration of the premium charged, it is hereby agreed that the policy limits afforded by this policy and all endorsements attached hereto, shall only apply to any claim arising from an “accident” which occurs while a covered auto is being driven, used or operated by a “listed operator.”
A “listed operator” shall be defined as any commercially licensed operator or driver specifically listed on your application for the insurance coverage provided herein and any additional drivers which subsequently may be added to the list of operators covered by this policy as set forth herein.
In order that an additional operator may be added to the list of operators covered by this policy, you shall notify your agent in writing of the name, date of birth, date of hire and commercial drivers license number of any such additional operators you wish to be added to the policy of insurance prior to such operator’s receipt of permission from you to operate a covered auto. In the event of your failure to so notify your agent, the new operator shall not be a listed operator under this policy and the coverage limits hereunder will be reduced as stated herein. All written request [sic] should be mailed to your agent.
The policy limits afforded by this policy for any claim arising out of an accident involving the operation or use of a covered auto by an individual, otherwise covered by this policy, who does not qualify as a listed operator, shall be the minimum statutory limits required by the State having jurisdiction where the covered auto is being used, operated, or driven at the time of the accident.

Susan Ellis initialed and signed the endorsement.

Though appellees claim this is a matter of first impression, an almost identical endorsement was held to be valid and enforceable by this court in Adams v. Falcon Equipment Corp., 30,754 (La.App.2d Cir.8/21/98), 717 So.2d 282, writs denied, 1998-2472 (La.11/18/98), 729 So.2d 1 and 1998-2451 (La.11/20/98), 729 So.2d 561. Falcon had leased equipment to Breck Construction Company. Because they had a sizeable lease agreement, Falcon loaned Breck a fifth wheel truck. A Breck employee, Eric Herndon, had just started the truck when it lurched backward hitting Guyon Adams I .^and injuring him. Adams sued Falcon and its insurer, Homestead Insurance Company. Homestead filed a motion for summary judgment asserting that coverage for nonspecified operators was limited by an endorsement to the minimum statutory limits required in the state where the accident occurred. In Adams, supra, that state was Arkansas. The endorsement in the Homestead policy referred to a “specified operator” as one either listed on the application or subsequently added to the policy. Homestead argued that Arkansas’s minimum limits applied, because Herndon was not a specified operator under the policy. Falcon and Adams argued that the endorsement was ambiguous, claiming it was unclear whether specified operators had to be employees of Falcon and claiming the policy contemplated full coverage for drivers who had permission to use the vehicle. They also argued that Homestead’s interpretation would result in no coverage for nonspecified operators in violation of Louisiana law, La. R.S. 32:900, requiring coverage for permittees.

This court rejected the arguments of Falcon and Adams. The opinion notes that the policy covered 48 vehicles and pieces of equipment and had a list of 40 individuals designated as specified operators. However, Herndon, who was not a Falcon employee, was not on the list. No ambiguity was found in the endorsement, and it applied to limit coverage to Arkansas’s statutory minimum. In reaching this result, the court stated:

However harsh the result of this contract may be for Falcon, Homestead had the right to impose conditions upon the obligation it contractually assumed which are not in conflict with statutory provisions or public policy. In the present case, no such conflict has been demonstrated in the endorsement limiting the higher amount of coverage to “specified operators” as that term is defined in the policy.

Adams, 30,754 p. 16, 717 So.2d at 290-291.

We find Adams, supra, to be determinative of this matter. In both cases, the endorsements at issue have the same effect, which is to establish two levels of coverage. Listed or specified operators are insured at the policy limits, whereas nonlisted or nonspecified operators are insured at the applicable state statutory minimum. The endorsement does not exclude coverage for nonlisted drives. Rather, it provides coverage at the state-approved statutory minimum.

An insurance policy is a contract that forms the law between the parties. Marcus v. Hanover Ins. Co., Inc., 98-2040, p. 4 (La.6/4/99), 740 So.2d 603, 606. The policy is to be enforced as written when its language is clear and expresses the parties’ intent. Id. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions on the obligations they contractually assume. Adams, 30,754 at p. 13, 717 So.2d at 289.

Provisions that narrow or restrict statutorily-mandated coverage will not be enforced. Marcus, 98-2040 at p. 4, 740 So.2d at 606. Here, the endorsement neither narrows nor restricts the statutorily mandated coverage. It simply applies that coverage to nonlisted operators.

The purpose of the state’s compulsory automobile liability law is not to protect the owner of an insured automobile from liability, but to provide compensation for persons injured by the operation of insured autos. Adams v. Thomas, 98-2003, p. 5 (La.4/13/99), 729 So.2d 1041, 1043. Therefore, the fact that Super Sweep may be exposed to an excess judgment due to its |7vicarious liability for its employee’s negligent acts does not mean that the endorsement, which provides the statutory minimum coverage approved by the state legislature, violates public policy.

Moreover, in two instances the supreme court has determined that two-tier coverage, such as that established by the endorsement at issue, does not violate public policy. In Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 2000-2668 (La.4/3/01), 784 So.2d 637, the endorsement lowered the policy limits of $1,000,000 to the statutory minimum when anyone used the covered auto outside the scope of permission of the named insured or outside the course and scope of that person’s employment with the named insured. In Lindsey v. Colonial Lloyd’s Ins. Co., 595 So.2d 606 (La.1992), the $500,000 policy limits were lowered to the statutory minimum when the insured and customer agreed to the lower limits. Citing Lindsey, supra, the Blackburn court reiterated that two-tier coverage, which provides the minimum liability coverage required by state law, does not violate public policy. Blackburn, 2000-2669 at p. 9, 784 So.2d at 643.

The same result holds here with regard to the public policy arguments put forth by Ellis and Super Sweep. While the result may be harsh for the insured, the policy is clear and unambiguous. The endorsement, in plain language, states its effect on coverage and the steps that must be taken to add a listed operator. Susan Ellis signed this endorsement. A signatory of a document is presumed to have done so with knowledge of its contents, regardless of whether he actually read it. Gasten v. Cordell, 26,487, p. 8 (La.App.2d Cir.1/25/95), 649 So.2d 123, 128.

|sFrom our de novo review of the record, we find that no genuine issue of material fact exists relevant to whether the endorsement may be enforced and that Republic-Vanguard is entitled to judgment as a matter of law. See La. C.C.P. Art. 966(B).

CONCLUSION

For the reasons explained, we affirm the trial court’s summary judgment, and assess costs against the appellants.

AFFIRMED.