author: JONES, Judge.

text:
    ASSOCIATED ACQUISITIONS, L.L.C. v. CARBONE PROPERTIES OF AUDUBON, L.L.C., Carbone Hotel Properties, L.L.C., R.P. Carbone Construction Company D/B/A R.P. Carbone Company, Ross P. Carbone and Vincent P. Carbone.
    No. 2007-CA-0120.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2007.

      J. Konrad Jackson, Robert G. Jackson, Daniel W. Dilzell, Jackson & Jackson, PLLC, New Orleans, LA, for Plaintiff/Ap-pellee.
    Mark G. Duncan, Stephen I. Dwyer, Dwyer & Cambre, Metairie, LA, for Defendants/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   JONES, Judge.

|! Defendant-Appellant, Carbone Properties of Audubon appeals an adverse judgment relating to its motion for summary judgment and exception of no cause of action. We affirm.

On or about December 22, 2004, the Petitioner-Appellee, Associated Acquisitions, L.L.C. (hereinafter, “AA”) entered into a Sale Agreement (hereinafter, the “Sale”), in which it contracted to sell its eleven percent (11%) membership interest in Defendant-Appellant Carbone Properties of Audubon, L.L.C. (hereinafter, “CPOA”). CPOA is the owner of the historic “Audubon Building” at 931 Canal Street in New Orleans. During the time of the Sale, the property owned by CPOA was being developed into a Hilton Hotel.

Pursuant to the Sale, AA sold its eleven percent (11%) membership interest to the Appellant, Carbone Hotel Properties, L.L.C., (hereinafter, “CHP”) and CPOA. The sale price for the membership interest was a twenty-five thousand dollar ($25,000) non-refundable down payment, one secured purchase note to AA in the amount of one million dollars ($1,000,000), another secured purchase note to 12AA in the amount of one million five hundred thousand dollars ($1,500,000) and interest in the future contingent upon certain events.

The second secured purchase note provides that upon the occurrence of any default thereunder, the “lender has the right to prospectively adjust and fix the simple interest rate under [the] note until [the] note is paid in full, at the rate of sixteen percent (16%) per annum.” The note also provides that in the event the lender refers the note to an attorney for collection, or files suit against the borrower to collect, the borrower agrees to pay reasonable attorneys’ fees incurred by the lender. The note was secured by the pledge of the membership interest that was the subject of the Sale, the personal guaranty of the Appellants, and the first position assignment and lien on any and all payments, fees, and/or distributions to CHP, or its affiliates.

On December 30, 2004, CPOA obtained a construction loan from Marshall Investments Corporation (hereinafter, “Marshall”) for over twenty-six ($26) million dollars to build the hotel. When the loan closed, CPOA paid the first note in full. Construction and demolition began, but revealed a number of unforeseen conditions, which required additional funding, not considered during the calculation of the original budget. CPOA requested additional financing from Marshall; however, unresolved issues resulted from these transactions. The disagreements between CPOA and Marshall began prior to Hurricane Katrina. As 13CPOA and Marshall attempted to resolve the issues the hurricane struck New Orleans on August 29, 2005. CPOA claims that the storm drastically affected its construction, and thus should be cause for dissolution of its agreement with AA.

On January 18, 2006, AA notified CPH of the interest payment, in the amount of $35,215.15, due on February 20, 2006. CPH did not respond, nor did they make any payment toward the note, and on February 22, 2006, AA sent CPH a notice of default. Thereafter, AA instituted the foregoing action.

On September 15, 2006, the trial court granted AA’s Motion for Summary Judgment and Exception of No Cause of Action, rendering judgment in favor of AA in the sum of $1,546,422.40 pursuant to the Second Note, with interest thereon. Additionally, the court granted a declaratory judgment in favor of AA, in which the court stated that the provisions of Section 2.4 of the Sale are legally enforceable terms of the agreement that the Defendant-Appellants must comply with. The district court also recognized AA’s security of the performance of the obligations as being the valid pledge and assignment of the 11% membership interest and the in solido personal guaranty of R.P. Carbone Construction, Ross Carbone and Vincent Carbone as being fully enforceable in ac-cor dance with the terms thereof. No reasons for judgment were provided.

CPOA asserts that the trial court erred in holding that there was no genuine issue of fact to be determined at trial regarding (1) the intent and purpose of the Sale and corresponding promissory notes as they were connected to the hotel ^construction project, (2) the unlawful actions of CPOA’s construction lender following the storm which effectively ended the hotel project, and (3) the manner in which these events rendered performance of the sale and notes impossible, and thus erred in granting the Motion for Summary Judgment and sustaining the Exception of No Cause of Action.

DISCUSSION

Appellate courts use the same standard of review applied by the trial courts, de novo, to determine whether the summary judgment is appropriate. Williams v. Metro Home Health Care Agency, Inc., 02-0534, p. 2 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1226, (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, c/w 99-2257, (La.2/29/00), 755 So.2d 226, 230). The supporting documentation submitted by the parties should be scrutinized equally, and there is no longer any overriding presumption in favor of trial on the merits. Schully v. Hughes, 00-2605, p. 2 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1220 (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, c/w 99-2257, (La.2/29/00), 755 So.2d 226, 231). Additionally, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is favored and shall be construed to accomplish these ends. La.C.C.P. art. 966(A)(2).

Louisiana Code of Civil Procedure article 966(B) provides that a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. However, if the mov-ant will not bear the burden of | sproof at trial on the matter that is before the court, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2).

Pursuant to La. C.C.P art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists. After the mover has met its initial burden of proof, the burden then shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwartz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

CPOA asserts that the intent and purpose of the Sale lends its way to a genuine issue of material fact, and thus the district court should have denied AA’s Motion for Summary Judgment. Contracts have the effect of law for the parties and may only be dissolved through the consent of the parties involved or on grounds provided by law. La. Civ.Code art. 1983. When discerning the intent of the parties, “[t]he interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally | ^prevailing meaning.” SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 20 (La.6/29/01), 808 So.2d 294, 307, citing La. C.C. arts. 2045, 2047; see e.g. Amend v. McCabe, 95-0316, p. 7-8 (La.12/1/95), 664 So.2d 1183, 1187. Louisiana Civ.Code art. 2046, states that, “when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Additionally, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole,” La. Civ.Code art. 2050. “When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” American Deposit Ins. Co. v. Myles, 00-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1286.

The intent of the parties of this contract is clear. CPOA intended to buy the eleven percent (11%) membership interest from AA for a price. AA reciprocated and accepted that offer for the sale of their eleven percent (11%) membership interest. Pursuant to the Sale, transfer, assignment of membership interest, and resignation of a member of the executive committee, CPH “desirefd] to purchase the [mjembership [i]nterest from [AA] ... and to settle all disputes between the parties.” Likewise, AA signed the Sale agreement and desired the same. In accordance with the sale, AA sold, transferred, and assigned CPH all of their rights, title, and interest in Carbone Properties of Audubon, L.L.C. The intent of the parties was to transfer the membership interest and in fact that transfer has taken place. The Sale became effective as of November 20, 2004, “on and only on its execution and delivery by each party, payment of the initial twenty-five |7thousand dollars ($25,000) ... and recordation of the mortgage and security documents provided for [in the Sale agreement].” CPOA has offered no evidence to rebut these and other factual assertions, has presented no genuine issues of material fact that are in dispute, and thus AA’s Motion for Summary Judgment was granted. Thus, the judgment of the district court must be affirmed.

CPOA also asserts that the contract should be dissolved based on a fortuitous event, which made their performance impossible. An Act of God or “a fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen.” La. Civ.Code art. 1875. As the Appellants (CPOA) state, there is little question that Hurricane Katrina was a fortuitous event. Even with our foreknowledge that the hurricane was rearing its way toward the state, the damage and effects of the storm were unexpected and unprecedented. And although its damages left some obligations impossible to fulfill, not all contracts are nor should they be rendered dissolved unless the law requires.

For further guidance, the Louisiana Civil Code in Article 1873 provides in pertinent part that, “[a]n obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible.” This article introduces the defense of impossibility of perform-anee. La. Civ.Code art. 1873, com. (c). The contract can be dissolved if, “the entire performance owed by one party has become impossible because of a fortuitous event.” La. Civ.Code art. 1876. Then the other party may recover any performance he has already rendered. Id. Article 1873 also provides that, “an obligor is liable when the fortuitous event occurred after he has been put in default.”

The Supreme Court held in Dallas Cooperage & Woodenware Co. v. Creston Hoop Co., 161 La. 1077, 109 So. 844, (La.1926) that “[t]he nonperformance of a 1 scontract is not excused by a fortuitous event where it may be carried into effect, although not in the manner contemplated by the obligor at the time the contract was entered into.” Id.

This same disposition was reiterated by this Court, in Schenck v. Capri Construction Co. Inc., 194 So.2d 378 (La.App. 4 Cir.1967), which concerned the performance of a contract after a hurricane. Schenck involved an action by homeowners to cancel a construction contract for an addition to their home. The performance of the contract only became more difficult for homeowners after the hurricane because of the expenses in repairing their home. The “plaintiffs’ contention [was] not based on a matter of storm damage to the building but [rather] upon economic feasibility.” Schenck, 194 So.2d at 380. However, this Court determined that performance of the contract “was not rendered impossible but only more difficult or more burdensome.” Schenck, 194 So.2d at 380.

The case at bar, very much like the Schenck case, brings the same problem to light. Marshall has terminated CPOA’s construction loan and the hotel franchise agreement has been terminated. CPOA can not now rescind its agreement with AA or try to dissolve the contract simply because the means of fulfilling that agreement have become more difficult. It is “immaterial to the plaintiff how the defendant secure[s] the article [or rather the financing] which it [is] obligated to deliver.” Dallas Cooperage & Woodenware Co., supra, 161 La. 1077, 109 So. 844, (La.1926). The defendant can only claim force majeure as an excuse when encountered by an “insurmountable obstacle that make[s] the performance actually impossible.” 5 La. Civ. L. Treatise, Law of Obligations § 16.17 (2d. ed.).

In Picard Const. Co. v. Bd. Of Com’rs of Caddo Levee Dist., 161 La. 1002, 109 So. 816 (La.1926), a construction company undertook excavating work and ran into a peculiarly hard subsoil formation. The Supreme Court concluded that the agreements legally entered into have the effect of law for the parties and must be performed in good faith, thus, “it follows that a party is obliged to perform a contract entered into by him if performance be possible at all, and regardless of any difficulty he might experience in performing it.” Id. at 818; See also Hughes v. Grant Parish School Bd., 145 So. 794, 797 (La.App. 2d Cir.1933). Thus the case at bar should follow settled Louisiana jurisprudence. The unexpected and unforeseen damage of Hurricane Katrina does not change the agreement between these parties; therefore, this is an agreement which can still be performed. The contract is valid and the judgment of the district court stands.

CPOA’s next assignment of error addresses the district court’s granting of the exception of no cause of action. The appellate courts review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 07-0050 (La.App. 4 Cir. 5/16/07), 958 So.2d 1200; (citing City of New Orleans v. Bd. Of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253). Louisiana Code of Civil Procedure article 931 provides that, “no evidence can be introduced to support or to controvert an exception of no cause of action,” but rather, the issue must be decided on the face of the petition, whether the plaintiff is Illegally entitled to the relief sought. Brookewood Investments, Id. at 1201 (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993)). Louisiana has a system of fact pleading, and “it is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions.” Id. The question in the matter sub judice is whether the appellants state a valid cause of action. The appellants are seeking a dissolution of the Sale based on the defense of impossibility of performance, but just as previously recognized, the Sale should be upheld. The Sale only became more burdensome, but not impossible. Thus, the appellants do not state a cause of action.

DECREE

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

      . Associated Acquisitions, L.L.C. was the owner of eleven percent (11%) of the Capital Membership Interest in Carbone Properties of Audubon, L.L.C. pursuant to an operating agreement dated May 31, 2000, by and between Associated Acquisitions, L.L.C. and Carbone Hotel Properties, L.L.C., as amended on April 11, 2001, and April 20, 2001.

      . The second note is the basis for the present cause of action. Pursuant to the Sale, the interest of the second note became payable quarterly beginning on February 20, 2004, with the principal due and payable on or before the earlier of (1) sixty (60) days from achievement of Stabilization by Audubon, or (2) December 31, 2011.

      . The future interest on the second note depended upon the sale of the property, CPOA obtaining financing, or making distributions to members as set forth in the Sale, sections 2.3 and 2.4.

      . Appellants and Carbone affiliates are Ross Carbone, Vincent Carbone, and R.P. Carbone Construction Company.

      . Marshall filed a Complaint on December 13, 2005 against CPOA alleging various reasons for their defaulting on the loan.

      . CPOA claims that the storm halted construction, that it and Hilton Inns mutually agreed to terminate the Franchise Agreement between them, and that Marshall became apprehensive of the hotel market after Hurricane Katrina.

      . Associated was granted $1,546,422.40 plus contractual interest at the rate of sixteen percent (16%) on the principal amount from February 23, 2006, until paid, plus legal fees of fifteen percent (15%) of the sums paid, plus all court costs.

      . Thomas T. Cloke, a representative of Associated Acquisitions, L.L.C., who, pursuant to the Sale resigned from the executive committee of Carbone Properties of Audubon, L.L.C.

      . Force Majuere is an event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (e.g. floods and hurricanes) and acts of people (e.g. riots, strikes, and wars). Black’s Law Dictionary 673 (8th ed. 2004).

      . Similarly, the court held in this Second Circuit case that "the defense of fortuitous event will not avail where the performance of the contract is not made impossible, but merely inconvenient, difficult, or undesirable.” Hughes v. Grant Parish School Bd., 145 So. 794, 797 (La.App. 2d Cir.1933).


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Carl D. JONES, Jr., Appellant.
    No. 42,301-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 25, 2007.

      E. Roland Charles, Robert S. Noel, II, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Carl D. Jones, Jr., was convicted of armed robbery, a violation of La. R.S. 14:64, and conspiracy to commit armed robbery, a violation of La. R.S. 14:26 and 14:64. Defendant received 30 years at hard labor without benefit of parole, probation, or suspension of sentence on the armed robbery charge, and 15 years at hard labor on the conspiracy conviction. The trial court ordered the sentences to be served concurrently. Defendant appeals his sentence as excessive. We affirm.

Facts

Around 4:30 a.m. on June 8, 2003, defendant, along with Callie Swinson, went to the home of James Campbell to rob him. They had worked out a plan for the robbery that night. Swinson knocked on the door, and Campbell, who was in bed asleep went to the door. The victim recognized Swinson and opened the door. Defendant burst into the house and ordered the victim -to the floor at gunpoint. Defendant and Swinson searched Campbell’s pants and took his money. At one point, the victim who was down on the floor believed that he would be executed and tried to wrest the gun away from defendant. During the fracas, the gun discharged and a bullet struck Campbell in the arm. Defendant then began pistol whipping the victim who momentarily lost consciousness. Campbell suffered a broken neck as a result of the brutal beating. In fact, the police were unable to interview Campbell for approximately five months after the robbery because of the injuries inflicted upon him by defendant.

Callie Swinson was later arrested and admitted her involvement in the robbery. In exchange for her testimony against defendant, Swinson pled | ¡.guilty to conspiracy to commit armed robbery and received probation. Defendant was charged with armed robbery and conspiracy to commit armed robbery. The trial court appointed a sanity commission to examine defendant’s mental condition. Defendant was assessed by two psychiatrists whose findings were submitted to the trial court. Thereafter, the court ruled that defendant possessed the requisite mental capacity to stand trial. Defendant entered a plea of not guilty and not guilty by reason of insanity. A jury convicted defendant of both charges, and the trial court imposed concurrent 30-year (without benefit) and 15-year sentences. ■

Pursuant to a motion for an out-of-time appeal, the trial court allowed present counsel to move for reconsideration of sentence. This motion was denied and defendant has appealed, urging that his sentence is excessive.

Discussion

According to defendant, the trial court discounted evidence of his mental illness presented in the findings of the sanity commission and in the testimony of his family members. Defendant argues that in commenting on his drug use, the trial court failed to consider that mental illness is often accompanied by drug use. Claiming that his mental illness was never adequately addressed at sentencing, defendant seeks a remand for an evidentiary hearing on his mental state and a reduction in his sentence.

In order to determine defendant’s mental capacity to stand trial, the court appointed a sanity commission made up of two experts, Drs. Saxon Elliott and Richard Williams. Specifically, the purpose of the commission was to determine whether defendant had a mental disease or defect which lawould impair his ability to understand the proceedings against him or to assist counsel in his defense.

Both experts concluded that defendant was not suffering from a mental disease or defect which would preclude his competency to stand trial. Particularly, they found that defendant possessed the ability to consult with his attorney with a reasonable degree of rational understanding and had a rational and factual understanding of the proceedings against him. After these findings were submitted to the trial court, the court ruled that defendant was mentally competent to assist his attorney in his defense.

At trial, as related to defendant’s plea of not guilty by reason of insanity, the jury heard that part of Dr. Elliott’s report in which he concluded with reasonable certainty that defendant was not suffering from a mental disease or defect that rendered him incapable of distinguishing right from wrong at the time of the instant offense. The jurors also heard portions of Dr. Williams’ report detailing defendant’s psychiatric history, including a statement by defendant that he had been in and out of psychiatric hospitals since he began hearing voices at the age of 14. The jury also heard excerpts from Dr. Williams’ report in which defendant stated, without being specific, that he had been diagnosed with schizophrenia and had been admitted to several psychiatric facilities. Clearly, the jury had sufficient evidence from which to weigh defendant’s mental status at the time of the offense, and the trial court had the full reports of both experts for consideration prior to sentencing.

I/The trial court also considered defendant’s criminal history, which began when he was 17 and included offenses such as attempted simple burglary, conspiracy to commit simple burglary, possession of marijuana, among many others. Defendant was placed on supervision three times, twice on probation and once on parole. Defendant had his supervision revoked each time for failure to comply with the prescribed conditions. Of significance to the sentencing court was that, after being charged with the instant offense but prior to his trial and conviction, defendant was arrested for another armed robbery in Ouachita Parish on September 1, 2005. The court observed that defendant never admitted his participation in the instant crime.

The trial court further contemplated the seriousness of the offense and the likelihood of rehabilitation. The victim, an elderly man, was severely injured during defendant’s attack. In addition to being shot, the victim suffered a broken neck which required him to miss 8⅜ months of work while undergoing extensive medical treatment. The trial court found that there was a very high likelihood that defendant would commit this type of offense in the future if he was not incarcerated.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939

1 sGiven the circumstances of this case and defendant’s background, we cannot say that this sentence is excessive. Defendant is a repeat offender with a history of revoked probations. His victim was mercilessly pistol-whipped, seriously injured, and could have easily been killed when the gun discharged. Defendant’s sentence (concurrent 30-year and 15-year terms for a total term of 30 years) is. clearly proportionate to the seriousness of the crimes of conviction.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . La. R.S. 14:64(B) provides for a term of imprisonment at hard labor for not less than ten years and not more than ninety-nine years; the entirety of this sentence must be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:26(B) and (C) provides that whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned or both in the same manner as for the offense contemplated by the conspirators. Subsection (C) of La. R.S. 14:26 further provides that this fine or imprisonment shall not exceed one-half of the largest fine or one-half of the longest term of imprisonment prescribed for such offense (or both).


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Woodson McGUFFIE, Appellant.
    No. 42,069-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 1, 2007.
    Rehearing Denied Sept. 13, 2007.

      Charles D. Jones, New Orleans, for Appellant.
    Jerry L. Jones, District Attorney, George D. Ross, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

LA jury convicted Woodson McGuffie of one count of malfeasance in office relating to his position as assistant parish administrator for the Ouachita Parish Police Jury. For the conviction, McGuffie received a sentence of five years at hard labor with the first three years to be served without benefit of suspension of sentence. Upon completion of the first three years at hard labor, the remaining portion of the sentence was to be suspended and McGuffie placed on supervised probation for three years, consecutive to the period of incarceration. The court ordered restitution to the Ouachita Parish Police Jury in the amount of $553.09 as well as restitution to the Ouachita Parish Sheriffs Office in the amount of $421.31. The court also ordered McGuffie to pay a fine of $3,500.00. We affirm the conviction, vacate the sentence and remand for resentencing.

Facts

Woodson McGuffie’s malfeasance in office resulted from his use of a Ouachita Parish employee, vehicle and equipment for tree trimming work on his private property in December 2000. At the time, he was the assistant parish administrator for the Ouachita Parish Police Jury. During an interview with Earl Stone, a former employee of the Ouachita Parish Public Works Department, on an unrelated matter, sheriffs deputies received information that Stone had performed tree cutting services on McGuffie’s Union Parish property. At the time of the incident, Stone’s department was headed by Bo Boyte. Stone indicated that Boyte initially called him into his office and told him that McGuffie needed tree work done at his home. | aStone also claimed that he and Boyte initially called McGuffie by phone and that Stone then went to McGuffie’s office where he obtained directions to McGuffie’s home. Concerning that meeting with McDuffie, Stone admitted that McGuffie had not asked him to come to his house in a public works truck, to bring any equipment or to cut any trees. Stone stated that he traveled to McGuffie’s property to assess the work needed to be performed before he actually did the work. He traveled to the location in a public works vehicle and performed the work on December 18, 2000, with public works equipment.

Stone testified that he and his grandfather arrived at McGuffie’s property at about 8:00 a.m., talked to McGuffie and departed at 3:00 in the afternoon. He admitted that although McGuffie offered to pay him for the work, he refused because Boyte told him not to accept any money for the work. He denied that his grandfather accepted any money from McGuffie.

At trial, Boyte testified that McGuffie was second in command to the parish administrator and that McGuffie had authority to instruct him to perform certain work. Boyte testified that he received a phone call from McGuffie who asked him if the public works department still had chain saw trimmers on poles. McGuffie also inquired as to whether “the man that cut the trees,” referring to Stone, was still working for the department. McGuffie told Boyte that he had trees on his property that were in danger of falling on his power lines and asked Boyte if he could arrange for Stone to cut the trees. Boyte admitted that he instructed Stone to make contact with McGuffie and be prepared to go to his house on the following day, a ^Saturday. Boyte instructed Stone as to what public works vehicle to take and to utilize any public works equipment he might need. The work was done the following day. Boyte acknowledged instructing Stone on how to fill out the work order so as to reflect ten hours of work for which Stone was paid overtime. Boyte admitted he told McGuffie he would cover the work through the public works department.

At trial, McGuffie admitted that he had approached Boyte but claimed that it was merely to inquire about the name of a certain piece of trimming equipment so that he could go and buy it to trim his trees. McGuffie claimed that neither Boyte nor Stone worked under his authority. He also denied asking anyone to be sent to his property in a Ouachita Parish truck or to bring parish equipment to the property to cut his trees. McGuffie and his wife claimed that Stone and his grandfather showed up on their property when McGuffie was not home. The McGuffies claimed that it was not until the men were “almost through” that McGuffie drove up. He inquired of Stone as to why he was on his property and Stone informed McGuffie that Boyte sent him there. McGuffie then allegedly asked his wife for $40 to pay the men for their trimming work. McGuffie claimed that Stone’s grandfather took the money. McGuffie admitted that he did not ask the men to leave and that he knew that police jury employees were not allowed to utilize police jury property to work on private property. McGuffie also claimed that he also paid Stone an additional $100 to cut down another tree.

Based upon these facts, McGuffie was charged by grand jury indictment with one count of malfeasance in office in violation of La. R.S. |414:134. A jury convicted him as charged and the trial court imposed the maximum five-year sentence, two of which were suspended, and a $3,500 fine. Although McGuffie did not seek a new trial nor reconsideration of his sentence, he ultimately lodged this appeal of his conviction and sentence.

Discussion

In his first assigned error, McGuf-fie complains that the trial court erred in not allowing him to exercise all of his available peremptory challenges during jury selection. In particular, McGuffie contends that his defense counsel had two remaining peremptory challenges which the trial court failed to allow him for challenging jurors before the jury was sworn. In support of his claim, McGuffie cites the provisions of La.C.Cr.P. art. 799.1 which refers to the practice of strike backs and reads as follows:

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

A review of the record shows that McGuffie made no contemporaneous objection relating to his counsel’s use of strike backs. The only mention of such a practice was made by the trial court who reminded the attorneys that mutual peremptory challenges counted against each side and that “strike backs” would be allowed “unless we get our six in |fithe first round, then that’s it.” No objection to that statement occurred. Nor is there any evidence of counsel’s request to utilize strike backs prior to the time the jury was sworn in. Any irregularity or error cannot be availed of after the verdict unless it was objected to at the time of the occurrence. La. C.Cr.P. art. 841; State v. Smith, 39,698 (La.App.2d Cir.6/29/05), 907 So.2d 192. Accordingly, McGuffie is precluded from now raising this issue on appeal.

McGuffie next complains that the trial court erred in allowing testimony of a police officer regarding taped interviews of McGuffie when the tapes, transcribed notes and investigating officer’s notes were lost, thereby denying him pre-trial discovery, the right to adequately prepare for cross-examination and his right to confrontation.

The record shows that immediately prior to the beginning of trial, as the attorneys discussed pre-trial discovery compliance, counsel for McGuffie noted for the record that the state had informed him in discovery that certain tape recordings and the transcript of an interview of McGuffie by Deputy Richard Medaries had been lost and were unavailable. The prosecutor explained that a sheriffs employee had cleaned out tapes and possibly erased a number of existing tapes from more than one case. The court inquired of Deputy Medaries as to his knowledge of the alleged erasure. The deputy had no independent knowledge of what happened to the tapes. The court then proceeded with trial.

Prior to Deputy Medaries’ testimony, McGuffie’s counsel revisited the matter and orally urged a motion in limine outside the presence of the | ftjury arguing that the deputy should not be allowed to testify as to McGuffie’s statements due to the missing tapes and transcripts. Defense counsel informed the court that the state had given him notice of the missing tapes by way of letter on February 13, 2006, eight days before trial, and acted in good faith concerning the error. Counsel also stipulated that McGuffie’s statement was freely and voluntarily given and conceded that he did not know the content of the statement. He ultimately argued that the prejudicial effect of the missing tape outweighed the probative value of the information and the testimony of the statements should be excluded.

Prior to ruling, the court reviewed the procedural history of the case and noted that discovery was propounded to the state on February 6, 2004. The state issued a formal response to discovery on April 4, 2005, which included the offense report which contained a narrative of the statement given by McGuffie. The court read the report verbatim into the record. The court also took notice of the state’s letter to McGuffie’s counsel of February 13, 2006, informing counsel that the tapes were lost and had not been transcribed. Considering this evidence and related jurisprudence, the court denied McGuffie’s motion in limine and allowed the testimony of Deputy Medaries regarding the contents of McGuffie’s statements. McGuf-fie’s counsel lodged an objection to the ruling. At the time of Medaries’ testimony relating to the statement, the jury was again removed from the courtroom and the parties formally stipulated to the free and voluntary nature of McGuffie’s statement although McGuffie’s counsel declined to stipulate to the accuracy of the deputy’s testimony regarding the statement. 17Counsel conceded to the court that any statement against interest made by McGuffie to Deputy Medaries would be admissible as evidence.

Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford. La. R.S. 15:450. This statute embodies a rule of fairness observed in American jurisdictions. The principle derives from the common-law rule of completeness which provides that when one party introduces a part of a writing or recorded statement, an adverse party may require the introduction of any other part of the statement which ought to in fairness be considered contemporaneously with it. State v. Duke, 97-3059 (La.10/30/98), 724 So.2d 730. This principle secures the tribunal’s complete understanding of the total tenor and effect of the statement and guards against the danger that an out-of-context statement may create such prejudice that is impossible to repair by a subsequent presentation of additional material. Id. The fact that the purported statement of the accused as testified to by the investigating officer does not consist of a verbatim recitation of the conversation between them, due to the witness’ inability to recall or other valid explanation, does not violate the rights of an accused under La. R.S. 15:450. State v. Marmillion, 339 So.2d 788 (La.1976); State v. Peterson, 619 So.2d 786 (La.App. 4th Cir.1993); State v. Arnold, 466 So.2d 520 (La.App. 3d Cir.1985), writ denied, 470 So.2d 124 (La.1985). The law does not require the production of nonexistent portions of a confession or portions which cannot be recalled. Id.

|sThe admissibility of a relevant videotape is well settled as being largely within the discretion of the trial judge. State v. Johnson, 30,078 (La.App.2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. While La. C.E. art. 1002 requires the original document to prove the contents thereof, under La. C.E. art. 1004(1), the original of a writing, recording or photograph is not always required to prove its contents, and other evidence of the contents of a writing, recording, or photograph is admissible if all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. The “best evidence” rule is to be applied sensibly and with reason. State v. Gaskin, 412 So.2d 1007 (La.1982).

Moreover, absent a showing of prejudice, a conviction will not be overturned on the ground that the best evidence was not produced. Id. It has been held that the testimony of one who hears a confession is always best evidence of it. People v. Vaughn, 155 Cal.App.2d 596, 318 P.2d 148 (1957). Likewise, testimony by participants of what was said in a conversation have been held as equally admissible as a tape of the conversation to establish what was said. United States v. Gonzales-Benitez, 537 F.2d 1051 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976); United States v. Rose, 590 F.2d 232 (7th Cir.1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979). Louisiana courts have allowed officers to testify in the place of playing taped video or audio recordings of confessions to the jury. See State v. Gaskin, supra, which sanctioned an officer’s testimony from a transcribed | acopy of a defendant’s confession in lieu of the taped confession which included referenced to a third person. See also State v. Williams, 32,993 (La.App.2d Cir.3/1/00), 754 So.2d 418, which denied an ineffective assistance of counsel claim based upon counsel’s failure to object to an officer’s testimony concerning a tape-recorded statement of the defendant where the tape was inaudible; and State v. Johnson, supra, which found admissible the testimony of two police officers and defendant’s parole officer as to the incul-patory content of a video tape which had been erased prior to trial where no bad faith had been demonstrated.

In this case, counsel for McGuffie conceded at trial that the state complied with discovery and disclosed the missing tapes prior to trial. Indeed, the trial court placed upon the record the contents of the alleged statement made by McGuffie which had been provided to the defense by the state in pre-trial discovery. Thus, any complaint as to the denial of pre-trial discovery or the right to adequately prepare for cross-examination is without merit.

We also find no merit to McGuffie’s claim that he was denied his right to confrontation because of his inability to cross-examine Deputy Medaries regarding the full content and context of the taped confession. McGuffie conceded that the state was not in bad faith regarding the loss of the tape or the lack of transcription of its contents. As a result of these circumstances, Deputy Medaries was required to testify as to his recollection of the contents of McGuffie’s statement. The jurisprudence supports the introduction of this testimony in lieu of the tape when there are |1flno allegations of bad faith. Moreover, Deputy Medaries’ testimony constitutes the entirety of McGuffie’s confession and presents no violation of La. R.S. 15:450. State v. Marmillion, supra. The fact that the tape may have been more reliable than Deputy Medaries’ testimony goes to the weight, rather than admissibility of the evidence. McGuffie’s counsel was given the opportunity to cross-examine the deputy as to the contents of the statement. Likewise, McGuffie took the stand in his own defense and could supply any exculpatory statements made during his prior statements to Deputy Medaries. In these circumstances, no violation of La. R.S. 15:450 or McGuffie’s right to confrontation occurred.

In McGuffie’s next assignment of error, he argues that the trial court erred in allowing the testimony of Boyte because the state did not disclose his immunity to the defense. We find no merit to this argument as the record discloses that the state disclosed Boyte’s immunity grant given in exchange for his testimony in its discovery response to McGuffie. Further, although the state disclosed in discovery that Boyte had violated the terms of immunity and would not be used as a witness, McGuffie lodged no objection to Boyte’s testimony at trial. By being placed on notice of Boyte’s immunity agreement and failing to object to his testimony at trial, McGuffie has failed to preserve this assignment of error for appeal. La.C.Cr.P. art. 841.

Finally, as a first offender, McGuf-fie presents an excessive sentence claim on appeal. Because McGuffie failed to file a motion to reconsider sentence, he is limited on appeal to a bare claim that the sentence is In unconstitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993). We find merit to this claim.

The crime of malfeasance in office is defined in La. R.S. 14:134, in pertinent part, as follows:

Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
* * *
Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor and shall be fined not more than five thousand dollars or both.

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, 01-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in the light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992). As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Adger, 35,111 (La.App.2d Cir.9/26/01), 797 So.2d 146.

The crime of malfeasance in office is intended to protect the public by deterring elected officials and governmental employees alike from the abuse |12of public office and duties. The present malfeasance was not committed by an elected public official whose duties and power in office were great. It was committed by a public employee who, relatively speaking, with regard to the other employees involved, did not possess great power to abusively wield. McDuffie could be expected to lose his employment immediately for the misuse of public resources. McDuffie did in fact lose his job. The results of the crime inherently impose public humiliation on this offender. There is no indication in the evidence that McGuffie exhibited any prior pattern of misusing public resources. This offense also involved another employee’s, Boyte’s, control and actions.

McDuffie is a 58 year-old first time offender with no criminal record in any regard. The pre-sentence investigation report contained documentation concerning his serious medical condition, noting that the costs of medication alone during his incarceration will be approximately $3,000 per month. The probation and parole officer’s conclusions correctly indicate that incarceration will involve “astronomical” expense so as to not serve the public interest.

While the jury correctly found that McGuffie acted to his gain and committed the crime by not stopping the work at his residence, the facts regarding the directives for the work before commencement of the job were in much dispute. This single instance of abuse under these circumstances is far from the most egregious act of malfeasance or abuse of public position so as to justify this near maximum sentence. The record established that both Stone’s wages for his work on defendant’s property and the actual outjof-pock-et13 expenses to the parish for use of the public equipment amounted to less than $300. The crime of theft of less than $300, a misdemeanor, carries a maximum sentence of not more than six months. La. R.S. 14:67(B)(3).

La.C.Cr.P. art. 881.4(A) mandates that an appellate court remand for resentenc-ing if it determines that a sentence must be set aside on any ground. Because we conclude that the imposed sentence is constitutionally excessive, we vacate McGuf-fie’s sentence and remand for resentencing in accordance with this opinion. While not recommending a jail sentence, the maximum sentencing range we could affirm for McGuffie’s conviction may extend up to one year without hard labor with an imposed fine of no more than $3,500. Restitution is appropriate as a condition of probation. La.C.Cr.P. art. 895.1.

Conclusion

For the reasons stated above, we affirm McGuffie’s conviction. The imposed sentence is vacated, and the case is remanded to the trial court for resentencing in accordance with the opinion expressed herein.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and CARAWAY, JJ.

Rehearing denied.

      . Notably, the provisions of La.C.Cr.P. art. 799.1 were not enacted until 2006, after the date of McGuffie's trial.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Larry THOMAS, Jr., Appellant.
    No. 42,322-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Peggy Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Geya D. Williams Prudhomme, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, Larry Thomas, Jr., was convicted as charged of armed robbery. Following his adjudication as a second felony offender, he was sentenced to 50 years at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals. We affirm.

FACTS.

On January 9, 2005, the victim, the director of religious education at Holy Rosary Catholic Church, drove to the church to attend services and work with the church’s children. After she exited her car, she said good morning to a man walking toward her. The man walked up to her and demanded her purse. She refused. He brandished a knife and demanded the purse again. They struggled, and the victim received a scratch from either the knife or the assailant’s fingernails. The purse strap broke as the man ripped the purse from her shoulder.

A nearby police officer responded to the victim’s screams. When the man saw the patrol car, he dropped the purse as he fled across the street. The officer gave chase and radioed for assistance. This officer brought a man back to the scene, but the victim stated that he was not her assailant.

Another officer who heard the radio call saw the defendant running through backyards and looking over his shoulder. The officer stopped him; a knife was found in his pocket. Within about 10 minutes of the robbery, the victim was brought to the location where the defendant was. She positively identified him as the man who stole her purse. According to her, he was still wearing the same clothes. She also identified his knife as the | ?one with which she was threatened during the incident. The defendant was arrested and charged with armed robbery.

Two days later, the defendant was interviewed in jail by a police detective. The defendant admitted being at the scene of the crime and told the officer that the robbery was a “spur of the moment” incident. He claimed that another man with him actually took the purse, and he denied pulling his knife on the victim.

Following a jury trial, the defendant was convicted as charged of armed robbery. The defendant’s motion for post verdict judgment of modification was denied. The state filed a habitual offender bill of information based upon the defendant’s 2002 conviction for purse snatching. The trial court adjudicated him a second felony offender and sentenced him to 50 years at hard labor without benefits. Motions for reconsideration filed by defense counsel and by the defendant in proper person were denied. This appeal followed.

SUFFICIENCY OF EVIDENCE

Law

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.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 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.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. The reviewing court accords great deference to the judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Morrison, 40,852 (La.App. 2d Cir.4/12/06), 927 So.2d 670.

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 to support 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. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App. 2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Zeigler, 40,673 (La.App. 2d Cir.1/25/06), 920 So.2d 949.

La. R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the | immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Discussion

The defendant argues that the state failed to prove a “taking” of the victim’s purse, asserting that it was merely “dropped.” Also, he contends that the victim gave differing descriptions of the knife used by her assailant.

With the testimony of the victim alone, the state satisfied its burden of proving beyond a reasonable doubt that the defendant committed the offense of armed robbery. The victim testified that the defendant approached her, demanded her purse, and then pulled a knife and took the purse from her grasp during a struggle. The victim positively identified the defendant as the robber both immediately after the robbery and during trial. She was unwavering in her identification of the defendant and her description of the event. None of the small discrepancies in the victim’s description of the robber’s weapon overcome the overwhelming evidence that the defendant was guilty of armed robbery.

This assignment of error is without merit.

VOIR DIRE

The defendant contends that the trial court should have allowed him to inform and question the jurors about the penalty for armed robbery during voir dire.

As a general matter, an accused in a criminal case is constitutionally entitled to a full and complete voir dire examination of prospective jurors. La. Const. art. 1, § 17(A); State v. Ball, 2000-2277 (La.1/25/02), 824 So.2d 1089, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002).

The scope of voir dire examination lies within the sound discretion of the trial court, and its rulings will not be disturbed by the reviewing court absent clear abuse of that discretion. La. C. Cr. P. art. 786; State v. Ball, supra; State v. Roy, 95-0638 (La.10/4/96), 681 So.2d 1230, 1240, cert. denied, 520 U.S. 1188, 117 S.Ct. 1474, 137 L.Ed.2d 686 (1997); State v. Jackson, 29,470 (La.App. 2d Cir.8/20/97), 707 So.2d 990. While limitations of voir dire may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and the intelligent exercise of peremptory challenges, an appellate court should undertake a review of voir dire as a whole in deciding whether the defendant has been afforded sufficient latitude in examining potential jurors. State v. Jackson, supra; State v. Hamilton, 92-1919 (La.9/5/96), 681 So.2d 1217, cert. denied, 520 U.S. 1216, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997).

In this case, the defendant was given ample latitude in voir dire to determine the suitability of the jurors to serve in that capacity. In this non-capital case, the jurors’ opinions about the sentences for the charged offense and the various responsive verdicts were irrelevant to their suitability as jurors. Because the court, not the jury, determines the defendant’s sentence, information about the penalty provisions for the crime and the responsive verdicts tends to confuse the issue and detract from the jury’s role as factfinder. The trial court did not err in limiting voir dire on this point.

This assignment of error is meritless.

(¡MISTRIAL

The defendant asserts that a remark made by a police officer about other purse snatchings in the area warranted a mistrial.

Law

La. C. Cr. P. art. 770 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial. ■

The relevant portion of La. C. Cr. P. art. 771 states:

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:
(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.

|7As this court observed in State v. Brooks, 40,186 (La.App. 2d Cir.10/26/05), 914 So.2d 110:

While a mistrial is mandatory when a judge, district attorney, or court official refers to inadmissible other crimes evidence in the presence of the jury, our jurisprudence has held that a police officer is not a “court official.”
When a police officer makes such a reference, factors which may be considered in determining whether a mistrial is warranted are whether the statement was deliberately elicited by the district attorney, whether it was responsive to the question, and whether the witness purposely uttered it to prejudice the defendant. Generally, ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. [Citations omitted.]

Discussion

Corporal James Germain, the first officer on the crime scene, testified at trial. In describing his actions after the foot pursuit began, he said:

I continued the foot pursuit. I radioed in the description, the possible problem, that it was a possible purse snatching. We had been having a series of purse snatchings — •

At that point, defense counsel objected, and there was an unrecorded bench conference. When court resumed, the prosecutor instructed the witness only to testify about the instant offense. The matter was later argued on the record. The defense’s motion for mistrial was denied.

The officer’s remark was not elicited by the prosecutor; the officer was explaining the circumstances of the foot pursuit and the presence of the other units in the area. The remark was not responsive to the prosecutor’s question, which simply asked the officer to give the facts of the foot chase, |Rand the remark was calculated only to explain the officer’s radio communication to other officers, not to prejudice the defendant, whom the officer did not identify as the perpetrator of any other offense. After the objection of the defendant, the officer’s testimony was appropriately limited, and the defendant was not prejudiced by the remark.

This assignment of error is without merit.

SENTENCE

The defendant argues that the sentence imposed of 50 years at hard labor without benefits was excessive. He also contends that the trial court failed to sufficiently comply with La. C. Cr. P. art. 894.1.

As a second felony offender, the defendant faced a minimum sentence of 49½ years and a maximum sentence of 198 years imprisonment without benefits. Since the underlying offense of armed robbery requires the sentence to be imposed without benefit of parole, the habitual offender sentence likewise is to be imposed without parole despite La. R.S. 15:529.1(G). See, e.g., State v. Hailey, 41,897 (La.App. 2d Cir.2/28/07), 953 So.2d 979.

The defendant’s sentence is only six months longer than the minimum sentence; thus, the trial court essentially sentenced the defendant to the mandatory minimum term provided by law. Where there is a mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally required to impose. State v. Thomas, 41,734 (La.App. 2d Cir.1/24/07), 948 So.2d 1151.

|sThe Louisiana Supreme Court has stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution. However, that power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Thomas, supra.

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App. 2d Cir.4/4/01), 784 So.2d 714. The courts have held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, supra; State v. Gay, supra; State v. Thomas, supra.

The defendant’s minimum sentence for this offense is adequately justified by the circumstances of the crime where he not only used a dangerous weapon but also struggled with the female victim during the course of the crime. We note that his prior offense also involved stealing a purse. The defendant has not shown how the imposition of the minimum [insentence upon him is unjustified under the constitution or La. C. Cr. P. art. 894.1.

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. David Earl JOHNSON, Appellant.
    No. 42,323-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    Paul J. Carmouche, District Attorney, Dhu Thompson, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

hThe defendant, David Earl Johnson, was convicted as charged of three counts of molestation of a juvenile. He was adjudicated a third felony habitual offender on the first count and sentenced to 30 years on count one and 15 years on counts two and three, imposed consecutively and without benefits. The defendant now appeals. We affirm the defendant’s convictions and sentences; however, we delete those portions of the sentences which deny parole.

FACTS

The defendant, a resident of Shreveport born in 1967, had a relationship with a woman, MJD, from the late 1980’s until about 1996. MJD had two daughters before she met the defendant, LD1, born on May 16, 1983 and JD, born on July 27, 1985. The defendant and MJD had three children together. Two of the children were boys, but there was one daughter, LD2, born on August 14,1990.

In 1996, the Office of Community Services (“OCS”) received a report that the defendant was molesting one or more of these children. LD1 confirmed to an OCS worker, Mardie Fisher Griffin, that Johnson had touched her vaginal area several years prior to 1996, that knowledge of this incident had caused MJD to kick the defendant out of the house, but that MJD had allowed the defendant to return after a month.

In a separate interview by Griffin, the defendant admitted “rub[bing] his hand on LDl’s crotch” twice about two and one-half years prior to the interview, and he also admitted that it would be in the children’s best [2interest if he were not to be left unattended with the children.

The matter was not pursued criminally at that time. In 2000, authorities received a report that Johnson had molested a child named LW. LW told police that Johnson had put his finger in her vagina, but police were later unable to locate LW (who moved out of state) or the defendant.

In 2001, authorities received another report that Johnson was molesting one or more of the children. The police report indicates that one of the victims’ brothers told police that he had seen Johnson “hunching” his sisters in December 2000. Physical examinations of LD2 and another child, “P”, revealed normal results. MJD apparently opted not to pursue the matter further at that time.

In 2002, the children were sent to live with a maternal aunt away from their father and mother. In January 2002, the OCS interviewed the entire family and through interviews confirmed that Johnson had molested JD, LD1 and LD2. LD2 was interviewed at the Gingerbread House, a facility for conducting forensic interviews with child victims; LD1 and JD were interviewed at home. The interviews were conducted in the presence of Shreveport Police Department (“SPD”) Corporal Rita Caldwell. Then 11-year-old LD2 said in her interview that Johnson had “put hair grease on her private ... [and] put his privates in her.” JD said that the defendant would touch her breasts and her privates when she was in bed. LD1 said that the defendant would come into the room where she and JD slept and touch their privates. LD1 also said that when she reached age 10, the defendant commenced having sex with her by “actually putting his private in my |sprivate.” Physical examinations revealed no signs of child abuse.

Shreveport police interviewed the defendant on February 1, 2002. Corporal Caldwell was one of the interviewers. The defendant initially denied any inappropriate conduct with the children. However, after continued questioning, the defendant admitted:

-Rubbing on then nine-year-old LDl’s “booty” and achieving an erection;
-Licking then twelve-year-old LDl’s vagina;
-Attempting but failing to put his penis in then thirteen-year-old LDl’s vagina, and then masturbating to ejaculation;
-Rubbing on JD’s breasts.

The defendant denied any improper contact with LD2, his biological daughter. He admitted to touching another child, LW, between her legs.

On March 25, 2002, the state charged Johnson with four counts of molestation of a juvenile citing LW, LD2, JD and LD1 as the victims. Each charge in the bill of information alleged that the defendant committed the crime while he had control or supervision over the child. The charge pertaining to LW was later dropped and the matter went to jury trial on the charges relating to the other three children.

LD2, 15 year's old at the time of trial, lived with the defendant and his wife for a time when she was about 10 years old. LD2 said that when she lived with the defendant and his wife, she had to mind them. She said that when she was around 10 years old, the defendant raped her by “put[ting] his private part inside my private part.” She said that the defendant put hair 14“grease” on her private part and put his private part into hers; LD2 said that this “hurted ... bad, very.” She said this happened more than three times. She said that she was about 11 years old when she made her first report of the incident. She told her brother, who then told her older sister who called the police.

LD1, 22 years old at the time of trial, testified that the defendant started touching her on her vagina and breasts when she was about 7 or 8 years old. She said that this happened about twice a week, and that she did not report this until she was 10 or 11 years old because she was frightened. She said that the touching escalated into sexual intercourse by the time she was 13 years old and that this continued when she was 14 years old. LD1 said that when she lived with the defendant, the defendant was able to punish her. She also testified that she walked into the defendant’s room and saw the defendant “on top of’ her sister JD when JD was about 7 or 8 years old.

JD, 20 years old at the time of trial, testified that when she was 9 or 10 years old, the defendant put his hand under her gown and felt her breasts. She testified that this occurred until she was about 11 or 12 years old, but that the defendant never touched her anywhere else. JD testified that when she lived with the defendant, she looked to him as her stepfather and that he could tell her what she had to do and punish her when she had done wrong.

Mardie Griffin, the OCS worker, testified that LD1 had told her in 1996 that the defendant had touched her (LD1) vaginal area (through her clothes) twice about two years previously. Ms. Griffin also testified that the |Bdefendant told her that he had touched LD1 in her vaginal area on at least two occasions about two years prior to the interview.

Dr. Jennifer Rodriguez, a pediatrician, testified that she had performed two physical examinations of LD2 when the child was 11 years old. Both examinations revealed no sign of abuse, although the doctor explained that the genital area normally heals very quickly if injured. Dr. Ann Springer, a pediatrician and expert in child abuse matters, also testified that it is normal to have no positive physical findings in child abuse cases because of the rapid healing of the tissues involved.

SPD Corporal Rita Caldwell testified about her 2002 interviews with the children and with the defendant. Defense counsel apparently objected to the admission of the officer’s testimony about the girls’ statements, although neither the objection itself, nor the grounds therefore, are on the record; the transcript reveals only a sidebar conference. Corporal Caldwell said that LD2 said that the defendant had raped her by getting on top of her and “hunching and moving up and down.” The officer testified that JD didn’t want to give her a statement because the events had traumatized her but said that JD later described “some things” to her. The officer also testified that she interviewed LD1 who told her that certain incidents began when the child was 6 or 7 years old and progressed to sexual intercourse sometime after the child turned 10 years old. The jury also heard a redacted version of the defendant’s 2002 confession.

After the corporal testified, the defendant’s objection to her testimony was heard by the court on the record. The defendant’s objection was that | (¡the corporal’s testimony was hearsay; the court noted that it entertained and overruled the objection at the time it was made. The case then went to the six-member jury, who unanimously found the defendant guilty on all three counts.

The state filed an habitual offender bill against Johnson on March 9, 2006, alleging that he was a third felony offender as to count one of the molestation matter (under the revised bill, the victim of count one would be LD2). On May 23, 2006, the matter came on for hearing. Caddo Parish Sheriffs Deputy Owen McDonnell testified on behalf of the state. Through McDonnell’s testimony, the state introduced proof that Johnson had been convicted on February 15, 1990, of attempted possession of Schedule I CDS with intent to distribute, and the defendant had also been convicted of attempted possession of Schedule II CDS with intent to distribute on March 18, 1993. The deputy testified that the fingerprints on the previous bills of information matched the defendant’s prints, and the court found Johnson to be a third felony offender.

A variety of character witnesses testified on behalf of the defendant and attested that they believed him to be of good character. None of these witnesses were fully aware of the nature of the acts for which the defendant had been convicted. The defendant himself testified; he expressed regret for what he called the attempted molestation of the two older girls, but he denied any inappropriate conduct with his own daughter. He also admitted that he was the person who had been convicted of the two drug offenses that formed the basis of the habitual offender bill.

|7The court sentenced Johnson to serve 30 years imprisonment at hard labor on count one (enhanced by the multiple offender bill) and 15 years imprisonment at hard labor on counts two and three, with all sentences to be served consecutively and without benefit of parole, probation or suspension of sentence. Johnson filed a motion to reconsider sentence, arguing that his sentences were excessive and should not have been imposed without benefit of parole, probation or suspension of sentence. The court denied that motion, and Johnson now appeals.

DISCUSSION

Assignment of Error No. 1. The trial court erred in allowing hearsay evidence to impermissibly bolster the alleged victim’s testimony and ease the State’s burden of proof.

In his first assignment of error, the defendant urges that his rights were violated when the trial court allowed SPD Corporal Rita Caldwell to testify about the substance of the statements made to her by the three child victims. The defendant argues that the officer’s testimony was hearsay and not admissible under any exception. Specifically, the defendant argues that the officer’s testimony was inadmissible under the first report of child sexual assault provision of La. C.E. art. 804(B)(5), which provides:

B.Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Complaint of sexually assaultive behavior. A statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexually as-saultive behavior.

(Emphasis added.) In the instant case, each of the three young women was available as a witness, and indeed each of the victims actually testified at the | atrial. La. C.E. art. 801(D) provides, in part:

D.Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive;

The officer’s testimony was not hearsay because the declarants actually testified at the trial, were subject to cross-examination, and the evidence was offered to rebut a defense challenge to the implication that the victims’ testimony contained exaggerated descriptions of events in order to bolster the state’s case. See State v. Mickens, 31,737 (La.App. 2 Cir. 3/31/99), 731 So.2d 463, writ denied, 1999-1078 (La.9/24/99), 747 So.2d 1118; State v. Small, 29,137 (La.App. 2 Cir.1997), 693 So.2d 180.

This assignment of error is without merit.

Assignment of Error No. 2. The trial court erred in imposing unconstitutionally excessive sentences on David Earl Jones by exceeding the ten year maximum and adding the “without benefit of parole, probation or suspension” restrictions, though the jury had not been instructed on, or made, the finding of the additional facts necessary for that restriction.

The crime of molestation of a juvenile is set forth in La. R.S. 14:81.2, in part, as:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing 19or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.
B. Whoever commits the crime of molestation of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
C. Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

The maximum punishment for the offense may thus be more severe when the state proves that the offender has control or supervision over the juvenile. The judge sentenced the defendant under Section C of the statute. In his motion to reconsider sentence, Johnson did not complain about being sentenced under Section C instead of Section B; indeed, he indicated that the penalty range was that provided in Section C. However, on appeal, he argues that there is no evidence that the jury found the “control or supervision” element, so the court was only empowered to sentence him under Section B.

In the instant case, the bill of information charged Johnson by reciting part of the definition of molestation of a juvenile given in La. R.S. 14:81.2, including the description: “by the use of force, duress, menace, psychological intimidation, and by the use of influence by virtue of a Imposition of control and supervision over said juvenile.” (Emphasis added.) The statutory definition uses the word “or” in place of the word “and” that is used in the bill of information. Thus, the defendant had notice that he was being charged with the more serious offense under Section C.

However, the charge to the jury included this definition of the offense:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

This is the exact definition provided in La. R.S. 14:81.2(A) and uses the word “or” before the “control or supervision” element. Sentencing for this base offense is provided in La. R.S. 14:81.2(B). The recitation of the charges in the jury charge did not mention the control or supervision element.

At trial, the state introduced the testimony of each of the victims asserting that Johnson acted with parent-like authority over the victims during the time the victims lived with the defendant and during the time of these offenses. Our review under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), shows that the evidence introduced by the state was sufficient to prove beyond a reasonable doubt that the children were under Johnson’s supervision or control at the time he molested them. However, the jury charge did not specifically ask the jury to find whether 171 Johnson had control or supervision over the children at the time of the crimes.

The defendant did not object to the jury charge. The jury verdict forms gave the jury options for molestation of a juvenile, attempted molestation of a juvenile, indecent behavior with a juvenile, attempted indecent behavior with a juvenile, or not guilty. There was no specific option for molestation of a juvenile while the juvenile was under the offender’s control or supervision. The jury found the defendant to be “guilty as charged” of molestation on all counts.

Even though Johnson did not challenge the imposition of the Section C penalty in his motion to reconsider sentence, La. C. Cr. P. art. 881.2 provides, in part:

A. (1) The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence. The defendant also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions.

The defendant argues that the jury did not find him guilty of the more serious “control or supervision” offense, and therefore contends that his sentence exceeds the maximum authorized by the statute of conviction and also the applicable enhancement provision (here, only La. R.S. 15:529.1). Thus he contends he is entitled to raise this issue on appeal. See also La. C. Cr. P. art. 882, which allows correction of an illegal sentence at any time.

After review of the trial record, we conclude that the jury did in fact convict the defendant of the more serious “control and supervision” offense. The facts in this case distinguish the holdings under Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, supra. Shepard held that any external materials or issues that do not appear on the face of certified court documents or were not admitted, must be decided by a jury or proven beyond a reasonable doubt if they are relied on to increase a sentence.

The jury verdict form in this case generically refers to the basic crime of molestation of a juvenile and does not include as an additional element of the offense committed with supervision or control.

Although the jury verdict form does not expressly show a jury finding convicting defendant of the more serious offense committed with supervision or control, the bill of information clearly charged the defendant with the more serious grade of the offense. This fact distinguishes Apprendi supra, where the second degree possession of a firearm charge did not refer to the state’s “hate-crime” statute which the court used to enhance the defendant’s sentence. Rather, in this instance, the penalty-enhanced charge was read to the jury before the opening statement, the I^ADA mentioned this factor as an element in his opening statement and in his closing statement, and the jury verdict also states that the defendant was “guilty as charged....” Cf. Blakely, supra. Our review of the trial testimony discloses that the evidence submitted to the jury is clearly sufficient to convict defendant of the more serious grade of the offense charged. Cf. Shepard, supra.

On the other hand, La. R.S. 14:81.2(0) does not permit the imposition of a sentence without benefit of parole, probation or suspension of sentence. La. R.S. 15:529.1(G) requires that an habitual offender sentence be imposed without benefit of probation or suspension of sentence, but does not mention a disability against parole, and here, La. R.S. 14:81.2(0) does not impose a parole disability. Thus this assignment of error has merit.

Accordingly we delete that part of Johnson’s 30-year sentence that imposes a sentence without benefit of parole, and we delete from the other two 15-year sentences those parts of the sentences that impose sentences without benefit of parole, probation or suspension of sentence.

Assignment of Error No. 3. The trial court erred in finding David Earl Johnson to be a third offender on evidence that did not meet the burden of proof under R.S. 15:529.1 for proving less than a ten year time lapse and for proving adequate Boykinization during the prior pleas; further, the enhancement of his sentence without a jury trial on the multiple bill allegations, violated his Constitutional rights.

The defendant argues that his habitual offender adjudication was invalid because the state failed to prove (1) that his prior convictions were 114sufficiently close in time to his latest conviction and (2) that his guilty pleas for the prior offenses were constitutionally valid.

La. R.S. 15:529.1(0) provides:

C. The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

As noted above, Johnson was convicted (by guilty plea) on February 15, 1990, of attempted possession of Schedule I CDS with intent to distribute. The court sentenced Johnson to serve 2⅜ years imprisonment, suspended in favor of supervised probation. On September 26, 1991, the defendant’s probation was revoked. The defendant was also convicted (by guilty plea) of attempted possession of Schedule II CDS with intent to distribute on March 18, 1993. The court sentenced Johnson to serve one-year imprisonment at hard labor for this offense.

In State v. Everett, 2000-2998 (La.5/14/02), 816 So.2d 1272, the supreme court stated:

Subsection (C) [of La. R.S. 15:529.1], however, provides that “[t]his Section,” i.e., the Habitual Offender Law, “shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions ... and the time of the | ^commission of the last felony for which he has been convicted.” We interpret this subsection to mean that in order to determine whether the Habitual Offender Law applies at all to enhance a defendant’s sentence after conviction of a subsequent felony, we must look to that time period between defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony. If that time period encompasses more than ten years, then the Habitual Offender Law is inapplicable to defendant’s case and he cannot be sentenced as anything other than a first offender. If, on the other hand, ten years or less have elapsed between the defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony, then the Habitual Offender Law is applicable and subsection (A) is employed to determine the appropriate sentence. Under subsection (A), defendant’s felony convictions are simply counted, either second, third, or fourth or subsequent, and the applicable penalty is imposed. As defendant himself correctly recognizes, subsection (C) is concerned only with that period of time between the expiration of the sentence for the last previous felony conviction and the commission of the last felony. It is only that time period which the legislature has made relevant to determine whether defendant will be sentenced under the Habitual Offender Law.

Footnote omitted.

LD2 testified that the defendant’s sexual misconduct with her commenced when she was about 10 years old. LD2 was born in 1990, so the misconduct would have occurred in 2000 or 2001, long before the expiration of the ten-year “cleansing” period for Johnson’s release from custody for his 1993 conviction. Under the interpretation of the statute announced in Everett, the defendant was properly adjudicated a third felony offender.

In addition, the defendant urges that his prior guilty pleas were constitutionally infirm. Although the defendant filed a motion to quash the multiple offender bill, he did not raise that claim in his motion to quash; the |1fimotion to quash urged only that the state had to prove the defendant’s habitual offender status to a jury. La. R.S. 15:529.1(D)(1)(b) provides:

(b) Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

The defendant did not raise this challenge to his prior convictions in his response to the bill or prior to the imposition of sentence, so he may not now complain of any errors in those convictions. Further, such a complaint would be without merit. The plea colloquies introduced by the state show that, prior to accepting the defendant’s pleas, the court informed the defendant of his rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that the defendant indicated that he understood his rights in both cases.

The defendant also re-urges his claim that his habitual offender adjudication is in violation of his right to a jury trial, citing Apprendi, supra, and Blakely, supra. This court has previously rejected this argument. See State v. Winn, 39,104 (La.App. 2 Cir. 12/15/04), 890 So.2d 697, writ denied, 2005-0401 (La.5/13/05), 902 So.2d 1018:

117Prior convictions are specifically excluded from the rulings in Apprendi and Blakely because, unlike virtually any other consideration used to enlarge the possible penalty for an offense, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.
This assignment of error is without merit.

Assignment of Error No. ⅛. The trial court erred in imposing unconstitutionally excessive sentences on David Earl Johnson, particularly by ordering that the sentences be served consecutively.

A trial judge has wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710. He or she is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Boudreaux, 41,660 (La.App. 2 Cir. 12/13/06), 945 So.2d 898; State v. Robinson, 33,921 (La.App. 2 Cir. 11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App. 2 Cir. 04/05/00), 756 So.2d 1218, writ denied, 00-1572 (La.03/23/01), 787 So.2d 1010.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Boudreaux, supra; State v. Mitchell, 37,916 (La.App. 2 Cir. 03/03/04), 869 So.2d 276, writ denied, 04-0797 (La.09/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005); State v. Maxie, 30,877 (La.App. 2 Cir. 08/19/98), 719 So.2d 104. Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2 Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2 Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4 Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1 Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2 Cir.1987); and whether defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra. See also State v. Maxie, supra. Failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Boudreaux, supra; State v. Hampton, 38,017 (La.App. 2 Cir. 01/28/04), 865 So.2d 284, writ denied, State ex rel. Hampton v. State, 04-0834 (La.03/11/05), 896 So.2d 57, writ denied, State ex rel. Hargrove v. State, 04-2380 (La.06/03/05), 903 So.2d 452.

The record indicates that Johnson knew he had a problem, yet he continued to molest these children on numerous occasions over a span of years and the abuse started when the children were very young. The consecutive sentences imposed are justified by the record in this case, and accordingly, we find no abuse of the trial court’s discretion in imposing these consecutive sentences.

CONCLUSION

For the foregoing reasons, the convictions and sentences are affirmed. That part of the defendant’s 30-year sentence that imposes the sentence without benefit of parole is deleted; the parts of defendant’s two 15-year sentences that impose 15-year sentences without benefit of parole, probation or suspension of sentence are deleted. In all other respects the 30-year and 15-year consecutive sentences are affirmed.

AFFIRMED.

      . The defendant lias a number of aliases and has given various birth dates, but he was clearly over the age of 17 when these events occurred.

      . Notably, this law was amended in 2006 by Act 36 of 2006 to increase the minimum sentence in section C from 15 to 20 years imprisonment. In addition, Act 103 of 2006-amend-ed the statute to include a new paragraph E providing for a minimum hard labor sentence of 25 years imprisonment when the slate proves that the victim was under age 13.

      . Since the trial court did not place Johnson on probation or suspend his sentence, nor express an intent to do so, the portion of the sentence imposed without probation or suspension of sentence is now moot.