author: PETERS, J.

text:
    STATE of Louisiana v. Rodney Ian BARNES.
    No. KA 11-1242.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Van Hardin Kyzar, District Attorney, Robert Stuart Wright, Assistant District Attorney, Natchitoches, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Rodney Ian Barnes.
    Rodney Ian Barnes, Angola, LA, Pro Se.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PETERS, J.

_JjA jury convicted the defendant, Rodney Ian Barnes, of the offense of second degree murder, a violation of La.R.S. 14:80.1. After the trial court sentenced the defendant to serve life in prison without the benefit of parole, probation, or suspension of sentence, the defendant perfected this appeal. In this appeal, the defendant’s appellate counsel has asserted two assignments of error, and the defendant has asserted two pro se assignments of error. For the following reasons, we vacate and set aside the conviction and sentence and remand the matter to the trial court for a new trial.

OPINION

The underlying facts giving rise to this prosecution are not in dispute. In June of 2010, the defendant and his then girlfriend, Chakawanda Beard, became involved in an argument which turned violent. The defendant struck Ms. Beard and she fell onto a bed. Before she could get out of the bed, the defendant shot her in the neck. She later died of the bullet wound. The defendant’s defense to the second-degree-murder charge is that the shooting was an accident.

Errors Patent Review

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We have performed this review in the matter now before us and find no such errors.

Appellate Counsel’s Assignment of Error Number One

The defendant argues in this assignment of error that the evidence is insufficient to support his conviction. Specifically, he asserts that the conviction should be reduced to manslaughter.

Louisiana Revised Statutes 14:30.1 defines the offense of second degree murder. With regard to the matter now before us, it states, in pertinent part, that |2“[s]econd degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[J” La.R.S. 14:30.1(A)(1).

On the other hand, the offense of manslaughter is defined by La.R.S. 14:31. With regard to the matter now before us, that statute states that manslaughter is:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committedf.]

La.R.S. 14:31(A)(1).

Although the defendant argues that this statute should apply to his criminal conduct, he does not make the act of provocation he relies upon clear. At best, he mentions that he and the victim argued before the offense because he thought she was not being faithful to him.

As explained by the Louisiana Supreme Court in State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, “sudden passion” and “heat of blood” are not elements of manslaughter. “Rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed in the absence of these factors.” Id. at p. 4, 837-38. If a defendant establishes, by a preponderance of the evidence, the presence of these mitigating factors, he or she is entitled to a verdict of manslaughter. Id. See also State v. Lombard, 486 So.2d 106 (La.1986).

State v. Brown, 00-1021, p. 6 (La.App. 3 Cir. 1/31/01), 780 So.2d 536, 540, writ denied, 01-912 (La.2/1/02), 807 So.2d 854.

Additionally,
Regardless of the words exchanged, “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135, 1143 (La.App. 2 Cir.1988). See also State v. Mitchell, 39,202 (La.App. 2 Cir. 12/15/04), 889 So.2d 1257, writ denied, 05-132 (La.4/29/05), 901 So.2d 1063, quoting State v. Conerly, 48 La.Ann. 1561, 21 So. 192 (1897). “Further, an argument alone will not be a sufficient [.^provocation in order to reduce a murder charge to manslaughter. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98); 720 So.2d 829, citing State v. Gauthier, 546 So.2d 652 (La.App. 4 Cir.1989).” State v. Charles, 00-1611, p. 4 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519 unit denied,, 01-1554 (La.4/19/02), 813 So.2d 420.
In reviewing the Defendant’s claim, this court must determine “if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence.” State v. Hamilton, 99-523, p. 7 (La.App. 3 Cir. 11/3/99), 747 So.2d 164,168.

State v. Johnson, 06-623, pp. 8-9 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, 702, writ denied, 06-3024 (La.9/14/07), 963 So.2d 995.

In the matter now before us, the defendant acknowledges that he asked the victim about the location of her gun and retrieved it from under a mattress. He also does not dispute the eyewitness testimony of the victim’s two teenaged daughters that he told the supine victim to get up, counted to five, and shot her. Given the facts before us, we find no merit in this assignment of error.

Appellate Counsel’s Assignment of Error Number Two

We find that part of the second assignment of error asserted by the defendant’s appellate counsel has merit. In this assignment of error, the defendant asserts that the trial court erred in denying challenges for cause against two potential jurors, Marco Dale and James Nelson.

When questioned concerning their ability to sit as jurors, both Mr. Dale and Mr. Nelson initially expressed an inability to accept the trial court’s instruction to the effect that when a defendant chooses not to testify or present evidence in his defense, a juror may not hold either of those decisions against the defendant and must decide the case based on the evidence before it. After substantial rehabilitative questioning by the trial court, Mr. Nelson finally stated that he would not hold it against the defendant if he failed to testify. On the other hand, no amount of rehabilitation efforts could change Mr. Dale’s mind. When confronted |4with the obligation to follow the trial court instruction, the best responses Mr. Dale made were that “I honestly don’t know” and that “I’m just not sure.” When the trial court rejected his motion to dismiss the potential jurors for cause, the defendant used peremptory challenges to remove Mr. Nelson and Mr. Dale from the jury. By the time the jury selection process was completed, the defendant had exhausted all of his peremptory challenges.

When an accused has exhausted all of his peremptory challenges before completion of the jury panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. State v. Monroe, 366 So.2d 1345 (La.1978), appeal after remand, 397 So.2d 1258 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411, reh. denied, 463 U.S. 1249, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983).

State v. Scriber, 605 So.2d 661, 664 (La.App. 2 Cir.1992).

As it applies in this matter, La.Code Crim.P. art. 797(4) provides that “[t]he state or the defendant may challenge a juror for cause on the ground that ... [t]he juror will not accept the law as given to him by the court[.]” Additionally, the supreme court has held that:

Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Kang, 02-2812, p. 3 (La.10/21/03), 859 So.2d 649, 651; State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280. A district court’s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error. Kang, 02-2812, at p. 3, 859 So.2d at 652; State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686; State v. Bourque, 622 So.2d 198, 225 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16; State v. McIntyre, 365 So.2d 1348, 1351 (La.1978). When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant must show: (1) erroneous denial of the challenge for cause; and (2) use of all peremptory challenges. Kang, 02-2812, at p. 3, 859 So.2d at 652; Cross, 93-1189 at p. 6, 658 So.2d at 686; Robertson, 92-2660 at p. 2, 630 So.2d at 1280; State v. Lee, 559 So.2d 1310, 1316 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). In the |sinstant case, defendant exhausted all of his peremptory challenges, and therefore, his objection to the ruling refusing to sustain his challenge for cause is properly before the court.

State v. Lindsey, 06-255, pp. 2-3 (La.1/17/07), 948 So.2d 105,107.

In the present case, we find that the trial court was able to rehabilitate Mr. Nelson, but not Mr. Dale. That being the case, the defendant’s assignment of error as to Mr. Dale has merit and requires that we set aside the conviction and sentence and remand this matter to the trial court for a new trial.

Defendant’s Pro Se Assignments of Error

Because we find merit in the assignment of error set forth above, we need not consider these assignments of error.

DISPOSITION

For the foregoing reasons, we vacate the defendant’s conviction and sentence and remand this matter to the trial court for a new trial.

CONVICTION AND SENTENCE VACATED; REMANDED FOR NEW TRIAL.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Letrakus TYLER a/k/a Trey Tyler.
    No. 11-1256.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Michael Harson, District Attorney, Fifteenth Judicial District, James Nathan Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Letrakus Tyler a/k/a Trey Tyler.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

bln this criminal case, Defendant, Letra-kus Tyler, a/k/a Trey Tyler, appeals his convictions of aggravated rape, attempted first degree murder, and aggravated burglary. He assigns as error insufficient evidence to support his conviction of attempted first degree murder, trial court error in allowing him to waive his right to a jury trial, and double jeopardy when he was convicted of both aggravated burglary and aggravated rape. For the following reasons, we affirm Defendant’s convictions in their entirety and instruct the trial court to inform Defendant of his post-conviction relief rights.

FACTS AND PROCEDURAL HISTORY

On March 8, 2009, Defendant entered the home of D.C., a ten-year-old girl, through her bedroom window and raped her. During the act of rape, Defendant held his hand over D.C.’s mouth, held her neck, tried to smother her with his shirt, threatened to kill her, and struck her several times on the back. Defendant was the ex-boyfriend of D.C.’s mother, and a protective order was in effect at the time of the offenses.

Defendant was charged on May 13, 2009, by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42; attempted first degree murder, a violation of La. R.S. 14:27 and La.R.S. 14:30; and, aggravated burglary, a violation of La.R.S. 14:60. Defendant entered a plea of not guilty to all charges on June 23, 2009.

Defendant waived his right to trial by jury, and a bench trial commenced on April 13, 2011. The trial court subsequently found Defendant guilty of aggravated rape, attempted first degree murder, and aggravated burglary. On April 21, 2011, |2Pefendant was sentenced as follows. On his conviction for aggravated rape, he was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence; on his conviction for attempted first degree murder, he was sentenced to fifty years at hard labor without benefit of parole, probation, or suspension of sentence; and, on his conviction for aggravated burglary, he was sentenced to thirty years at hard labor. The trial court ordered that these sentences be served concurrently.

Defendant has appealed, asserting three assignments of error. He contends that the evidence was insufficient to convict him of attempted first degree murder, that the trial court erred in not assuring he knowingly and voluntarily waived his right to a jury trial, and that he was subjected to double jeopardy when he was convicted of both aggravated burglary and aggravated rape.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note one error patent.

The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Therefore, we instruct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and to file written proof of same in the record of these proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, OS-1762 (La.2/10/06), 924 So.2d 163.

\ ^ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends that the evidence was insufficient to prove all of the elements of attempted first degree murder.

When a sufficiency of the evidence claim is raised on appeal, the standard of review 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. State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

State v. Jasper, 11-488, p. 4 (La.App. 3 Cir. 11/2/11), 75 So.3d 984, 987.

Defendant was convicted of attempted first degree murder.

First degree murder is the “killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years.” La. R.S. 14:30(A)(5).... Attempt is defined as “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.” La. R.S. 14:27(A).
The crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 897. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Lewis, 97-160 (La.App. 5 Cir. 7/29/97), 698 So.2d 456, 459, writ denied, 97-2381 (La.3/27/98), 716 So.2d 881.

State v. Alsay, 11-562, pp. 7-8 (La.App. 5 Cir. 12/13/11), 81 So.3d 145,149.

D.C. testified that she was ten years old when Defendant raped her. When interviewed, D.C. told the interviewer that Defendant raped her. She explained that rape meant he put his private in her and touched her where she did not want to be touched. D.C. said that Defendant entered her room through a window while |4she was sleeping and got on top of her back and said, “Don’t scream, or I’ll kill you.” Defendant then pulled down her pants. D.C. started crying, and he put his hand over her mouth. She then said that Defendant put his “private in my behind, and his finger, and he started to put his private in my private. And I kept trying to get him to stop, and he slapped me on my back, every time I didn’t open my legs.” After Defendant concluded these heinous acts, he told D.C. to get him back together with her mother. D.C. further stated:

Whenever he had put me on the floor, and started to try and smother me with um ... his shirt, or I think a pillow, I’m not sure about that one[,] but he tried to smother me on the floor. And[,] ... he tried to put his private in me then. And then after that, he put me on the bunk bed, where the wood’s at [sic] and he pushed me against it[;] then[,] he put his butt in my private, every time he would like, feel me screaming, or trying to scream, he would put his private deeper in my butt.

When asked about Defendant’s attempts to smother her, D.C. stated, “He tried to push it down on my face, but he couldn’t because ... well, he did, but ... I had my face like that, and he didn’t notice.” D.C. then stated she had her face turned sideways. D.C. again stated that Defendant slapped her on the back every time she would not open her legs, and then he would put his private in her private.

Dr. Christopher Lawrence, an emergency room physician, testified that D.C. was brought by ambulance to the emergency room on March 8, 2009. Dr. Lawrence stated that D.C. told him that Defendant said, “Don’t scream or I’ll kill you.” D.C. also stated that Defendant restrained her by holding her mouth with his hand and holding her neck and that he slapped her on the back.

Dr. Lawrence further testified that D.C. had swelling to her right lip, abrasions to the lips, abrasions to the right cheek, and scratches and bruising on both sides of the neck. Dr. Lawrence also testified that the abrasions had to be |ficaused by a fairly rigid or semi-sharp object and that they could have been caused by “hands, any kind of choking maneuver with fingernails.”

Nancy Mire, a registered nurse, testified that D.C. stated the following when asked what occurred:

He came in through my window. He laid on top of my back and said, “Don’t scream or I’ll kill you.” He pulled my pants down and started to put his private part in my butt. He started to put his finger in the bottom.... He put his private part in my private. He kissed me and put his tongue in my mouth.... He put [me] on my knees against the wall — against the wood of [the] bunk bed and started to put his private part into my bottom. He put me on the floor and tried to smother me with his T-shirt. He started to talk to me, told me he was sorry and help me get — get me and your mom back together and tell your brother to help me and your mom get back together. He stated your mother does not tell you the truth about how your dad died. Patient states he had his hand over her mouth the whole time. He wiped the window sill with his shirt and put the screen back on the window.

Trinh Landry, a DNA analyst, testified that Defendant’s DNA was found on vaginal and rectal swabs taken from D.C.

In support of his ai'gument that the State failed to prove he had the specific intent to kill D.C., Defendant cites numerous cases involving dangerous weapons and vehicles. He then asserts that the testimony he told D.C. to help him reunite with her mother is inconsistent with a finding that he had the specific intent to kill D.C. Defendant further asserts there was no evidence that he attempted to deprive D.C. of oxygen and suffocate her. He contends that the acts of putting a hand and shirt over D.C.’s mouth were consistent with attempting to prevent her from screaming and that more would be necessary to prove he had the specific intent to kill her.

The State argues that Defendant’s act of threatening to kill D.C., placing a shirt over her face, and the marks on D.C.’s face and neck indicate that he had the specific intent to kill her.

| nIn State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62, the victim got into her van and was grabbed by the defendant, who put a large cloth over her mouth with one hand and grabbed her throat and squeezed it with the other. The defendant then stated, “I’m going to kill you.” Id. at 368. The victim and the defendant struggled, and the victim was able to release the defendant’s grip from her neck so that she could speak. The victim continued to struggle and was eventually able to open the van door, falling out of the van and onto her neck. She then ran to the car of a co-worker. The defendant was convicted of attempted second degree murder.

On appeal, the defendant, in Wommack, argued that the State failed to prove he had the specific intent to kill the victim. In finding the evidence was sufficient to support the defendant’s conviction, this court stated:

[W]e find sufficient evidence to support a finding of specific intent to kill. Ms. Smith testified that the assailant grabbed her by the throat, making it impossible to breathe. It was only after she continued to struggle that she was able to breathe and speak. The struggle, which included Ms. Smith being placed in a chokehold, lasted long enough for several verbal exchanges and was severe enough to have caused blood-producing injuries. The pressure was sufficient to produce bruising on Ms. Smith’s neck which is evident in photos presented to the jury. Furthermore, Ms. Smith’s testimony indicated that the assailant verbalized his intent to kill her. These factors support the jury’s conclusion that the defendant’s intent was to kill or inflict great bodily harm. See La.R.S. 14:30.1. Furthermore, the jury reached its decision in the face of the possibility of convicting the defendant of aggravated battery, the elements of which were included in the instruction. This assignment lacks merit.

Id. at 373.

Based on Wommack, we find that Defendant’s verbalizing of his intent to kill, along with the fact that he placed his hand over D.C.’s mouth, his putting of a shirt over her face to suffocate her, and his holding of her neck hard enough to 17cause bruising were sufficient for the trial court to infer that he had the specific intent to kill D.C. Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends that the trial court erred in not assuring he knowingly and voluntarily waived his right to trial by jury.

Louisiana Code of Criminal Procedure article 780(A) provides in pertinent part that “[a] defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.” Additionally, the defendant, with the permission of the trial judge, “may exercise his right to waive trial by jury at any time prior to the commencement of trial.” La. Code Crim.P. ai't. 780(B). While the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. See State v. Frank, 549 So.2d 401 (La.App. 3 Cir. 1989).
As in the case of other significant rights, waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Wilson, 437 So.2d 272, 275 (La.1983). While the Louisiana Supreme Court has rejected an absolute rule which would require the trial judge to personally inform the defendant of his right to a jury trial, Kahey, supra; State v. Moya, 539 So.2d 756, 758 (La.App. 3d Cir.1989), the preferred method of ensuring the right is for the trial judge to advise the defendant personally on the record of his right to a jury trial and to require the defendant to waive the right personally either in writing or by oral statement in open court on the record. State v. Wilson, 437 So.2d at 275; State v. Jones, 537 So.2d 1244, 1247 (La.App. 4th Cir.1989); State v. Moya, 539 So.2d at 758.
State v. Abbott, 92-731 [92-2731], pp. 3-4 (La.App. 4 Cir. 2/25/94), 634 So.2d 911, 913-914.

State v. Roberts, 01-154, p. 13 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, 788, writ denied, 01-2974 (La.9/20/02), 825 So.2d 1163.

Defendant was entitled to a jury trial on the charges of aggravated rape, attempted first degree murder, and aggravated burglary. See La.Code Crim.P. art. 779; La. R.S. 14:42; La.R.S. 14:30 and La.R.S. 14:27; and La.R.S. 14:60. On |sFebruary 7, 2011, a Motion and Order to Waive Jury was filed. The motion was signed by defense counsel but not by Defendant. An order waiving the jury trial was signed by the trial court on February 9, 2011.

The issue of waiving a trial by jury was raised again in the trial court on February 14, 2011. The transcript for that date indicates the following occurred:

BY MR. PRATHER:
Judge, the issue [as] to waiving the Jury and be heard as a Judge Trial. I don’t object to—
BY THE COURT:
Is that correct, Mr. Alonzo?
BY MR. ALONZO:
That is correct, Your Honor.
BY THE COURT:
Is that correct Mr. Tyler, you wish to waive the jury?
BY MR. TYLER:
Yes, Sir.
BY THE COURT:
I grant the Continuous [sic] and grant that this case be heard as a Judge Trial and set this case for [the] next trial date.

Defendant contends that there is no indication that he made a valid waiver. He alleges nothing in the record states that he was made aware of his right to trial by jury. Defendant contends that defense counsel’s motion was insufficient to establish a knowing waiver and that the record does not indicate that the judge questioned him about his educational background or his ability to understand a waiver of his right to a trial by jury.

|ff An issue similar to that in the case at bar arose in State v. Bryant, 06-1154 (La.App. 4 Cir. 1/10/07), 950 So.2d 37. Therein, the defendant alleged that the trial court erred in permitting him to waive his right to a trial by jury without first obtaining an adequate waiver of that right. The pre-trial colloquy regarding the issue read as follows:

Trial court: How are [sic] feeling today, Mr. Bryant?
Bryant: Sore.
Trial court: You’re sore?
Bryant: Yes.
Trial court: But I mean the medicine isn’t having any affect [sic ] on you from yesterday or yesterday’s accident?
Bryant: Yes, it has an affect [sic]. I don’t hurt as much.
Trial court: You don’t what?
Bryant: I don’t hurt as much.
Trial court: Oh, so you don’t hurt as much, so a positive affect [sic]. So, you’re aware of what you’re doing here today, correct?
Bryant: Yes, sir.
Trial court: And Mr. Fuller [defense counsel] has indicated that today you’ve chosen to go to trial by judge rather than jury; is that correct?
Bryant: Yes, sir.
Trial court: Have a seat, sir.

Id. at 40.

The fourth circuit, in Bryant, denied the defendant’s claim, stating the following:

[T]he trial court in the present matter was not required to personally inform Bryant of his right to a jury trial. The transcript in the present matter reveals that Bryant’s counsel informed the trial court that Bryant wished to waive the jury and to proceed to trial by judge. Further, the transcript in the present matter shows that the trial court addressed Bryant personally and that Bryant confirmed that he wished to go to trial by judge rather than jury.
In Abbott, 634 So.2d at 914, the defendant argued in a pro se assignment of error that he did not knowingly, intelligently, and voluntarily waive his right to trial by jury. After reviewing the applicable jurisprudence, this Court wrote: “The transcript indicates that the trial judge was advised by counsel that the defendant wanted to waive the jury. The judge then addressed the defendant personally, who confirmed that he sought to waive the jury. This assignment has no merit.” Id. The facts of this case are substantially similar to the facts of Abbott. In light of this observation, and the principle that thej^trial court is not required to personally inform a defendant of his right to trial by jury, we conclude that Bryant’s assertion that he did not knowingly and intelligently waive his right to a trial by jury lacks merit.

Id. at 41. See also State v. P.T., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26 (La.5/30/08), 983 So.2d 895.

We find that the trial court was not required to personally inform Defendant of his right to trial by jury. Further, Defendant in the case at bar, just like the defendants in Bryant, 950 So.2d 37, and Abbott, 634 So.2d 911, confirmed his desire to waive his right to trial by jury when personally addressed by the trial court. Accordingly, we find Defendant’s assertion that he did not knowingly and intelligently waive his right to trial by jury lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant contends that he was subject to double jeopardy when he was convicted of both aggravated burglary and aggravated rape arising from the same course of criminal conduct.

In State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, 438, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972, this court set forth the tests to be applied when reviewing a double jeopardy claim, explaining:

Both the United States and Louisiana Constitutions prohibit double jeopardy; the imposition of multiple punishments for a single criminal act. See U.S. Const, amend. V; La. Const. art. 1, § 15. See also, La.Code Crim.P. art. 591. Louisiana courts use two methods, the “Blockburger Test” and the “same evidence test”, to determine whether double jeopardy exists. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306 (1932), the United States Supreme Court interpreted the Fifth Amendment’s prohibition of double jeopardy and enunciated the following test to be employed by the federal courts, as follows:
|nThe applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
In interpreting Article 1, Section 15 of the Louisiana Constitution, Louisiana courts have also used the broader “same evidence test” which provides:
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
State v. Cotton, 00-850, p. 5 (La.1/29/01), 778 So.2d 569, 573, quoting State v. Steele, 387 So.2d 1175, 1177 (La.1980).

Blockburger Test:

Defendant was convicted of aggravated burglary. Louisiana Revised Statutes 14:60 defines aggravated burglary as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Defendant was also convicted of aggravated rape. Louisiana Revised Statutes 14:42 provides, in pertinent part:

A. Aggravated rape is a rápe committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

We find no violation of double jeopardy under the Blockburger test. Aggravated burglary requires the unique element of unauthorized entering of an inhabited dwelling; whereas, aggravated rape requires proof of the unique element of sexual intercourse. See State v. Anderson, 11-106 (La.App. 3 Cir. 6/1/11), 66 So.3d 568, writ denied, 11-1493 (La.9/23/11), 69 So.3d 1167; State v. Williams, 05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.12/15/06), 944 So.2d 1284.

Same Evidence Test:

Defendant alleges that the battery in the case at bar cannot be separated from the act of rape, as there was not a separate battery apart from the actual acts constituting the rape allegation. Defendant contends that the slaps to D.C.’s back and the holding of her face and mouth were part of the aggravated rape and not separate acts of battery.

The State asserts Defendant could have been convicted of aggravated burglary without proof that a rape occurred, considering the fact that D.C. stated that Defendant hit, smothered, and strangled her after forcefully gaining entrance into the residence. In support of this argument, the State cites State v. Anderson, 499 So.2d 1252 (La.App. 4 Cir.1986), writ denied, 503 So.2d 490 (La.1987).

In Anderson, 66 So.3d at 588-90, this court stated the following:

We have found no reported cases specifically addressing whether a double jeopardy violation occurs when Defendant is convicted of the felony and the intent to commit the same felony is used for a burglary conviction. However, in State v. Solomon, 379 So.2d 1078, 1079-80 (La.1980), the court implied no such violation, holding in pertinent part:
11sBecause the defendant plead guilty to the burglary charge, there is no trial transcript to review in order to determine whether evidence in the theft trial would be the “same evidence” to prove the burglary charge. We do have the testimony from the motion to quash which may be utilized for this purpose. Testimony of the arresting officers at the trial of the motion to quash set forth the facts on which the simple burglary charge was based. Their testimony establishes that the burglary and theft charges deal with the same incident of defendant entering Officer Bourgeois’ vehicle on the night of November 28,1978. Therefore, it can be determined that the exact same evidence is not required for a conviction of the defendant on both the burglary and theft charges because a conviction of burglary requires the additional proof of an unauthorized entry with the intent to commit a felony or any theft therein. R.S. 14:62. Furthermore, the two charges are not based on the exact same conduct as was the case in [State v. Bonfanti, 262 La. 158, 262 So.2d 504 (1972); State v. Didier, 262 La. 364, 263 So.2d 322 (1972)]. The crime of burglary was completed upon entry into the car with the intent to commit the theft therein, whereas the theft did not occur until the defendant actually took the watch from the glove compartment. This distinction makes it clear that burglary of the automobile and the theft of the watch were two separate and distinct offenses[;] and[,] therefore, the conviction of one would not bar a conviction of the other on the grounds that the defendant would be placed twice in jeopardy for the same offense.

Additionally, in Archield, 34 So.3d 434, on appeal, the defendant challenged his convictions of aggravated rape and aggravated burglary on the basis of double jeopardy. This court found no double jeopardy violation wherein the intent to commit the rape and the conviction for the rape were not questioned, and no other facts were set forth to show that the defendant entered the house with the intent to commit a theft or any felony other than rape. This court held in pertinent part:

The record supports the determination that in the present matter the crimes of aggravated rape and aggravated battery were separate and distinct offenses. The defendant could have been convicted of aggravated rape without proof that an aggravated burglary occurred. The evidence adduced through testimony showed that the defendant had non-consensual sexual intercourse with C.S.[,] and C.S. was prevented from resisting because the defendant threatened to kill her with the apparent power to execute that threat. La. R.S. 14:42(A)(2).
| uFurther, the defendant could have been convicted of aggravated burglary without proof that any rape occurred, considering that he committed battery upon C.S. by hitting, dragging and shoving her, after he forcibly gained entrance into the house. La. R.S. 14:60(3). Also, aggravated burglary could have been proven under the second aggravating factor of La. R.S. 14:60 — when a perpetrator arms himself with a dangerous weapon after entering the inhabited dwelling. A dangerous weapon is defined as instrument “which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3). A vase[,] held over one’s head in the manner presented in this case, arguably constitutes a dangerous weapon.

Id. at 440 (footnote omitted).

In State v. Davis, 09-1061 (La.App. 3 Cir. 4/7/10), 36 So.3d 351, the defendant was convicted of aggravated rape and aggravated burglary. On appeal, the defendant asserted a double jeopardy violation. Although this court did specifically address whether the use of intent to commit the rape and the completed rape violated double jeopardy, it stated in pertinent part:

In the current case, as in [State v. Anderson, 499 So.2d 1252 (La.App. 4th Cir.1986), writ denied, 503 So.2d 490 (La.1987) ], it was apparent from, the facts that Defendant intended to commit a rape when he entered the trailer, a felony. Further, the physical abuse constituted the battery element of aggravated burglary, and, as in Anderson, “[although the victim’s beating fulfills one element of both crimes,” the battery did not fulfill the distinguishing elements of each, i.e., the unauthorized entry and sexual intercourse.

Id. at 361 (emphasis added).

Considering the foregoing, we find no violation of double jeopardy under the same evidence test based upon the use of intent to commit a felony, the rape, and the completed act of the rape.

Moreover, in the instant case, R.G. testified that before the rape, Defendant grabbed her throat and choked her. Additionally, R.G. testified that Defendant threatened to kill her if she did not do what he wanted her to do, and he raped her.

We find that the evidence of the unlawful entry into R.G.’s apartment and Defendant choking R.G. were not necessary for a conviction of forcible rape. The crime of aggravated burglary was | ^completed when Defendant entered the apartment, with the intent to commit a felony, and choked R.G. Additionally, the evidence showed that Defendant had non-consensual sexual intercourse with R.G., and R.G. was prevented from resisting because Defendant threatened to kill her with the apparent ability to carry out the threat. La.R.S. 14:42.1(A)(1). Thus, we find that the record supports the premise that the crimes of forcible rape and aggravated burglary were separate and distinct offenses. Therefore, there is no double jeopardy violation regarding crimes against R.G.

Regarding the crimes against J.S., she testified that when she woke up and saw the man in her apartment, she screamed. J.S. stated Defendant reached for her neck, straddled over her, and began to choke her with both of his hands. J.S. testified in pertinent part: “I tried to fight him off, and I pushed his eyes in his head with both my hands because that’s really all I could do, all I could see. Then, I tried to get him off of me and I could not.” J.S. explained that Defendant was on top of her and stated, “He was pulling on my clothes and holding me down with one hand.... ”
We find that the evidence of the unlawful entry into J.S.’s apartment, with the intent to commit a felony, and Defendant choking J.S. were not necessary elements for a conviction forcible rape. The crime of aggravated burglary was completed when Defendant entered the apartment and choked J.S. Additionally, the evidence showed that Defendant had non-consensual sexual intercourse with J.S. and that J.S. was prevented from resisting because Defendant held her down despite her efforts to fight him off. La.R.S. 14:42.1(A)(1). Thus, we find that the record supports the premise that the crimes of forcible rape and aggravated burglary were separate and distinct offenses. Therefore, there is no double jeopardy violation regarding the crimes against J.S.

In the instant case, as in the above-mentioned cases, we find that the record supports the determination that the crimes of aggravated rape and aggravated burglary were separate and distinct offenses. Defendant could have been convicted of aggravated rape without proof that an aggravated burglary occurred. The evidence adduced showed that Defendant had non-consensual sexual intercourse with D.C., who was under the age of thirteen at the time of the offenses. La.R.S. 14:42(A)(4). Further, Defendant could have been convicted of aggravated burglary without proof that sexual intercourse occurred, considering that he 11(icommitted battery upon D.C. by hitting her on the back after he gained entry into her home.' For these reasons, we find this assignment of error lacks merit.

DISPOSITION

Defendant’s convictions are affirmed. We order the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within thirty days of the rendition of this opinion and to file written proof of same in the record.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the initials of the victim will be used to protect her identity.


author: THIBODEAUX, Chief Judge.

text:
    Nan L. ALLEN v. Leon B. COTTEN, et al.
    No. 11-1354.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    Donald Wilson, Richard Joseph Wilson, Wilson & Wilson, Jena, LA, for Defendants/Appellees, Leon B. Cotton; et al.
    Eugene Allen, Columbia, LA, for Plaintiff Appellant, Nan L. Allen.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| ,Plaintiff, Nan Allen, owns twenty acres in Caldwell Parish. She filed suit, seeking a right of passage across the Defendants’ property (the “Cotten property”) located to the south, in LaSalle Parish. The trial court held that, prior to her ownership, Ms. Allen’s property became enclosed through a “voluntary alienation or partition,” as defined by La.Civ.Code art. 694. Accordingly, she was entitled to request gratuitous passage across the property on which passage was previously exercised. The trial court found that the Cotten property did not contain the previous point of passage. Specifically, the trial court held that Ms. Allen had no right of passage across the Cotten property, reasoning that the existence of a gratuitous right of passage is mandatory in nature, and no right of predial servitude should be judicially decreed. Instead, the trial court opined that Ms. Allen may have a gratuitous right of passage across the property located to her east, on which passage was previously exercised. Ms. Allen appeals.

I.

ISSUES

We shall consider whether:

(1) the trial court committed manifest error by finding that the Allen property was enclosed as a result of voluntary partitions in 1972;
(2) the trial court committed manifest error by rendering a ruling affecting property outside the jurisdiction of the court; and,
(3)the trial court committed manifest error by failing to find the remedy for Ms. Allen was across the Cotten estate.

_1¿L

FACTS AND PROCEDURAL HISTORY

The southern line of Ms. Allen’s twenty acres is adjacent to the northern line of the Cotten property. The chain of title to the two respective properties does not indicate a common ancestor in title.

Ms. Allen’s property was carved out of a larger 160-acre tract, originally partitioned into two, eighty-acre tracts in 1912. Irvin Washington owned the northern eighty-acre tract, and Harriet Washington owned the southern eighty-acre tract. The record reveals that three roads existed on Irvin’s tract, and one road existed on Harriet’s tract. Harriet’s tract was acquired by mesne conveyances by Travis S. Gore, Dr. R.E. King, and Citizen’s Progressive Bank. By operation of law, a right of gratuitous passage was created for the access of Harriet’s road by the subsequent partition of the South one-half of the Southeast Quarter between Gore, King, and Citizen’s Progressive Bank.

In 1972, Gore, King, and the Bank partitioned their eighty-acre tract, with King receiving the South one-half of the Southwest Quarter of Section 14, Township 11 North, Range 2 East, now owned by Ms. Allen.

The trial court found that the 1972 partition resulted in the enclosure of Ms. Allen’s property. Applying the mandatory provisions of La.Code Civ.P. art. 694, the trial court held that it could not decree a right of predial servitude across the Cot-ten property. Instead, the trial court held that Ms. Allen was entitled only to a gratuitous right of passage over the land- on which passage was previously exercised, even if it is not the shortest distance to a public road. In dicta, the trial court opined that Ms. Allen may have a gratuitous right of passage across the Gore property, located to the east of her property.

JiH.

LAW AND DISCUSSION

Standard of Review

We review judgments regarding servi-tudes under the manifest error standard of review. Griffith v. Cathey, 99-923 (La.App. 3 Cir. 2/2/00), 762 So.2d 29, 'writ denied, 00-1875 (La.10/6/00), 771 So.2d 85. An appellate court may not set aside a trial court’s findings of fact unless they are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse under the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court’s finding and that the record shows the finding to be manifestly erroneous. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

Discussion

Applicability of La.Civ.Code Art. 694

Ms. Allen asserts that the trial court erred in finding that her property was enclosed through the 1972 partition and finding that La.Civ.Code art. 694 applies. We disagree. Louisiana Civil Code Article 694 provides that in the case of a partition, or a voluntary alienation of an estate or of a part thereof, if property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage. La.Civ.Code art. 694.

A neighbor, however, is not required to provide passage to the owner of an estate which became enclosed by the voluntary act or omission of its owner. La.Civ.Code art. 693. The right to demand gratuitous passage is still available to a purchaser who acquires an estate enclosed as a result of a voluntary alienation of ^property, even though that right is not available to the seller who voluntarily enclosed the estate. Spotsville v. Herbert & Murrell, Inc., 97-188 (La.App. 3 Cir. 6/18/97), 698 So.2d 31.

It is clear that Ms. Allen did nothing to enclose her property. Her dilemma was created prior to her ownership of the property. We agree with the trial court’s finding that the 1972 partition resulted in the enclosure of the King tract, which is now owned by Ms. Allen. After the partition, the Bank received the northern twenty acres, and Gore received the forty acres east of Ms. Allen’s twenty-acre tract. The Cotten property was never a part of the original tract that was partitioned in 1972.

Though Ms. Allen would prefer passage across the Cotten property, the law mandates that gratuitous passage shall be furnished by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to a public road. That land is not the Cotten property. Indeed, the trial court weighed public records against Ms. Allen’s testimony, and concluded that the Gore property contained the last access road and may be subject to Ms. Allen’s gratuitous right of passage in accordance with La.Civ.Code art. 694. We find no error in the trial court’s judgment.

Venue of the Trial Court

Ms. Allen asserts that the trial court acted outside its “jurisdiction” by-rendering judgment on property located in Caldwell Parish. Ms. Allen’s argument fails for two reasons. First, Ms. Allen confuses the terms “jurisdiction” and “venue.” Jurisdiction relates to the power of a court to act. Indisputably, the trial court had jurisdiction. The proper question is that of venue. Ms. Allen chose the venue of LaSalle Parish, and she chose it properly. Louisiana Code of Civil Procedure, Article 80 states:

| SA. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled:
(1)An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Article 72;
B. If the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought in any of these parishes.

La.Code Civ.P. art. 80.

Here, Ms. Allen asserted an interest in the Cotten property, located in LaSalle Parish. Venue, therefore, was proper in LaSalle Parish.

Second, the trial court’s conclusions regarding Ms. Allen’s rights to passage across the Gore property are decidedly dicta and in no way affect the trial court’s judgment that Ms. Allen does not have rights to passage across the Cotten property.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against appellant, Nan Allen.

AFFIRMED.

      . Ms. Allen testified that she knew of the enclosed nature of her property. She previously contacted and received permission for limited access to her property.


text:
    STATE of Louisiana v. Larry Joseph McKITHERN.
    No. 11-1402.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      John Foster DeRosier, District Attorney, 14th Judicial District Court, Karen C. McLellan, The Gray Law Firm, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Larry Joseph McKith-ern.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

h Larry J. McKithern was found guilty of armed robbery, a violation of La.R.S. 14:64, and aggravated arson, a violation of La.R.S. 14:51. At the sentencing hearing, the trial court found McKithern to be a second habitual offender. The court sentenced McKithern to the maximum term of one hundred and thirty years on the charge of armed robbery and thirty years on the charge of aggravated arson pursuant to La.R.S. 15:529.1. The court ordered both sentences to run consecutively. For the following reasons, McKithern’s convictions are affirmed. Because the State offered no proof that a ten-year cleansing period had not elapsed, McKith-ern’s adjudication as a habitual offender and sentences are vacated. This matter is remanded for further proceedings and re-sentencing.

I.

ISSUES

We shall consider whether:

(1) there was insufficient evidence to convict MeKithern, where the evidence largely centered on testimony of two witnesses, both of whom were intoxicated at the time of the offense;
(2) the State failed to prove the ten-year cleansing period had not elapsed between McKithern’s previous and present convictions, where McKith-ern was convicted and sentenced to eighteen years in 1988 and where the State did not show whether the date of McKithern’s discharge was actually eighteen years from the conviction or an earlier date;
(3) the trial court erroneously disallowed MeKithern to present an alternative theory, where McKithern’s first attempt to raise the alternative theory was during the closing argument;
(4) MeKithern received ineffective assistance of counsel because the counsel failed to object to allegedly hearsay testimony, where the testimony was regarding a person’s actions the witnesses personally observed;
(5) the jury instruction on reasonable doubt was deficient;
12(6) the counsel’s failure to object to jury instructions and to move to quash the indictment resulted in counsel’s defective performance that prejudiced MeKithern; and,
(7) the trial judge erred by not recusing himself because of bias and prejudice against MeKithern, where the judge allegedly issued the arrest warrant, set McKithem’s bond, presided over a bond-reduction hearing, sequestered McKithern’s witnesses without sequestering the State’s witnesses, and disallowed irrelevant questions.

II.

FACTS

On January 3, 2009, a deputy of the Jefferson Davis Sheriffs Office was dispatched to a house fire on Pujol Road. Upon arrival, he found an intoxicated elderly gentleman. The man told the deputy that he and three others were partying all night; one of them, Larry, “poured gasoline on the trailer while he was in it and ignited it with either a match or a lighter.”

Earlier that day, Gerald Endicott asked Joey Smith to take him from Beaumont, Texas, to Lake Charles to look at a vehicle he planned to buy. The pair arrived around lunchtime on that day and met Richard Green at the trailer. People were “hanging out,” and they “bought some beers and whiskey and made a day of it.” MeKithern and his “girlfriend” were present when Endicott and Smith arrived. When the party ended, Endicott, Smith, and Green went to bed in the trailer. All of them were intoxicated.

Larry returned after dark and asked if they had any beer left. He and Smith drank more beer, and Larry “started asking [Smith] weird things like if [he] was a cop.” Smith said goodnight and went inside. Larry again knocked on the door, “and this time, he stuck his knife in [Smith’s] face” and said to give him all his money. Smith gave Larry five dollars; Larry was not happy with that and checked Smith’s pants and took his cellular phone.

[sLarry then took two dollars from Green and twenty dollars from Endicott while holding the knife to Endicott’s neck. When Larry went outside, Smith tried to get out of the trailer, but Larry “had the door braced shut somehow.” When Larry came back inside, he had “a fire type of chemical” that he poured on the three men and around the trailer. He lit the coffee table on fire while Smith was three feet away from him with flammable fluid on him. Smith “dove on him and out the door [they] went, and the other two fellows went out the door” while “[t]he house was blazing.” “Larry” hit Smith in the face and kicked him a couple of times, then “broke the window out of [Smith’s] truck and walked off in the darkness.” Smith got in the truck to move it away from the fire; he and Endicott “started to head to town.”

Smith sustained multiple injuries (but no burns) and “couldn’t hold it together,” so he told Endicott to drive him to the nearest hospital. Smith passed out and awoke the next morning. Endicott was intoxicated and feared getting charged with driving while intoxicated, so he parked the truck behind a church “out in the woods,” somewhere close to Lake Charles, and hid. The next day, Smith testified he drove himself to a hospital in Beaumont, where “they put a rag type of a bandage on [his face] and sent [him] to Harris County Hospital in Houston.” At some point, Smith spoke to “a Detective Gertz” in Lake Charles.

Smith described the man they knew as Larry as “pretty husky fellow ... [h]ad tattoos around his neck, all the way around his neck where it stuck out of his T-shirt.” Smith did not see MeKithern in the courtroom at trial. Nevertheless, he later testified, “I guess that’s him, but it don’t [sic] look like him. His hair is longer. He’s just not the same as he used to look.” When asked about MeKithern’s tattoos, Smith said “you can see it on his neck through his shirt.” Smith testified again MeKithern “don’t [sic] look the same today as he did then.”

Green testified MeKithern and his “girlfriend” were at a barbecue at his trailer that day. Green also had difficulty identifying MeKithern at trial. When asked j 4if he saw MeKithern in the courtroom, Green replied, “[w]ait a minute. You know what, I don’t know. That might be him right there, but he’s changed (indicating). He— he never wore glasses.” When the trial court ordered MeKithern to remove his glasses, Green testified, “[y]eah, that’s him,” and then commented, “I’m sorry, Larry ... You shouldn’t have done that to me.” The court noted “that the witness has identified the defendant as Mr. Larry MeKithern.” Green testified MeKithern “was [his] best friend.”

According to Green, on the day of the incident, MeKithern returned to the trailer after dark and demanded the return of one hundred dollars he claimed Smith had stolen from him. MeKithern “threw gas all over [them] all and blockaded the door and walked out and lit it and just walked out the door and blockaded the door.” MeKithern took all their cellular phones. Green testified MeKithern first beat Smith with a club inside the trailer and then outside before he threw the gas on them and blocked the door. MeKithern told Green, “this ain’t about you,” but Smith owed him one hundred dollars and he was “going to get it.” Green “got up and went to the bathroom” and shut the door when the fighting started. When he came out, MeKithern and Smith were fighting outside. MeKithern said he would kill all of them before he lit the fire. Green’s nylon coat melted onto him, and he had to have it cut off at the hospital as a result of the fire.

Green testified they were able to get out of the burning trailer because Endicott “backed up and he knocked the hinges off the door.” When asked whether he was drunk that day, Green responded, “[o]h, no, I was inherent [sic]. I knew what I was doing. I was cooking. I cooked all day ... I don’t get drunk.” He also testified he had consumed alcohol and was impaired that day; he had “sipped all day.” According to Green, McKithern and Smith had left together around noon, and “they were gone a long time.” When they returned, they were “messed up;” Green believed “[y]ou can look at somebody and know when they’re messed up.”

| .^Admitted into evidence as Exhibit S-3 were four photographs alleged to depict burns on Green’s face and hands. Green, however, did not know who took the photographs or where or when they were taken. He assumed “the cops” took them “when they were at the burn scene,” but said he “was in shock” and “[didn’t] even remember what happened.” The trial court admitted the photographs into evidence over McKithern’s objection because “they accurately represent his condition after this event.” No photos were shown to depict the burns allegedly caused by the melted coat.

Jason Gertz, Calcasieu Parish Sheriffs. Office violent crimes detective, obtained an arrest warrant for McKithern based on the consistent statements obtained by the Sheriffs Office. His investigation began on January 9, 2009. He observed burns on Green’s hands and later learned he had sustained second-degree burns.

Endicott was not present and did not testify at trial. On January 9, 2009, a deputy took photographs of what purported to be Endicott’s injuries sustained on January 3 or 4, 2009, including bruising to the back of his calves and arm. One of the photographs showed a piece of fabric from Endicott’s jeans that was cut off to test for the presence of accelerants. The fabric was submitted to the crime lab on January 9, 2009, but at the time of trial, no lab analysis had been received. Deputy Gertz admitted he could not dispute whether the brown stains shown on the jeans in the photographs were barbecue stains.

McKithern’s wife, Reva McKithern, testified at trial that on January 3, 2009, Green had invited them to a barbecue. They arrived around 11:00 a.m., 12:30 p.m. at the latest. They left around forty-five minutes later and went to their home on Mark Lebleu Road. She did not return to Green’s home that day, and, to her knowledge, McKithern did not return either. Rather, McKithern and a friend worked on the friend’s truck in their yard; they went to the store, but were not gone long. Ms. McKithern believed McKithern was in bed with her from the time she fell asleep Isaround 10:00 or 10:30 p.m. until she awoke around 7:30 the next morning. The McKitherns had Chihuahua dogs who barked if they got up during the night. Ms. McKithern did not get up during that night, and the dogs did not wake her. She admitted she could not account for McKithern’s whereabouts while she was asleep.

III.

LAW AND DISCUSSION

Error Patent

The trial court gave McKithern erroneous advice as to the time period for filing post-conviction relief. McKithern was advised at sentencing that he has two years from the date of sentencing to apply for post-conviction relief. According to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years, and it begins to run when a defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Because, for the reasons expressed below, we remand this case for resentencing, the trial court is instructed to notify McKithern of the La. Code Crim.P. art. 930.8 provisions at re-sentencing.

(1) Sufficiency of Evidence

McKithern claims the evidence at trial was insufficient to find him guilty beyond a reasonable doubt. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to 17substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. 120, -, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La. 1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

[s“Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.” La.R.S. 14:51. “Armed robbery is 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.” La.R.S. 14:64.

The State offered evidence McKith-ern poured a flammable liquid on the trailer and the three men and set fire to the trailer. The State also offered evidence McKithern held a knife to Endicott’s throat and took money from him, Green, and Smith. Nevertheless, the evidence largely centered on testimony from Green and Smith, both of whom were intoxicated throughout the events of January 3, 2009. No physical evidence was presented to confirm the presence (or absence) of any type of accelerant or to verify the cause or extent of the injuries to Green and Smith. The rather bizarre facts of this incident certainly give rise to a number of questions. Nevertheless, the jury was able to reach guilty verdicts on both counts, indicating they found the witnesses credible enough to accept their testimony and reject Ms. McKithern’s testimony suggesting McKithern was at home all night. Therefore, this assignment of error lacks merit.

(2) Habitual Offender Cleansing Period

McKithern argues the State failed to prove the ten-year cleansing period had not elapsed between his prior manslaughter conviction and his convictions in this case. At the sentencing/habitual offender hearing, McKithern argued against the habitual offender adjudication because the State did not sufficiently identify McKith-ern as a prior felon. McKithern did not formally object after the trial judge pronounced him to be a second habitual offender. McKithern objected to the sentence the trial judge originally pronounced. After a lengthy discussion, both on and off the Rrecord, and several attempts to correctly calculate the habitual offender sentence, McKithern objected to “those findings.” On appeal, McKithern contends the State failed to prove the required ten-year cleansing period had not lapsed, even though he did not unequivocally preserve that argument for appeal in the trial court.

In State v. Carter, 08-1469, p. 5 (La.App. 3 Cir. 6/3/09), 12 So.3d 1091, 1094, writ denied09-1521 (La.3/5/10), 28 So.3d 1004, the “[defendant argue[d] for the first time on appeal that the State did not prove ten years had not elapsed between his release from State custody and the current conviction.” The defendant did not file a motion to quash the multiple offender bill, and he failed to object because the State failed to prove the cleansing period had not lapsed. This court held the issue was not preserved for appeal and was not properly before the court. Nevertheless, where “the interest of justice clearly requires otherwise,” an appellate court may consider an issue not submitted to the trial court. Uniform Rules — Courts of Appeal, Rule 1-3.

This court considers McKithern’s objection to “those findings” to include the finding that the State had proved his multiple offender status. Even if, arguendo, this is not an objection sufficient to preserve this issue for appeal, this court finds that the interest of justice requires review because McKithern was adjudicated a multiple offender where the State did not prove the ten-year cleansing period had not elapsed.

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 between the expiration of the maximum sentence or sentences of each preceding conviction or convictions 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 parole, probation, or incarceration 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 | inperiods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

La.R.S. 15:529.1(C). The State bears the burden of proving the cleansing period has not elapsed in cases where more than ten years have passed between a defendant’s release from custody and the present felony. State v. Samuel, 08-100 (La.App. 3 Cir. 5/28/08), 984 So.2d 256, writs denied, 08-1419, 08-1487 (La.2/20/09), 1 So.3d 498, 495 (citing State v. Thomas, 05-2210 (La. App. 1 Cir. 6/9/06), 938 So.2d 168, writ denied, 06-2403 (La.4/27/07), 955 So.2d 683). The “expiration of the maximum sentence” language of La.R.S. 15:529.1 equates with the date of discharge from parole supervision. Samuel, 984 So.2d 256 (citing State v. Gamberella, 633 So.2d 595, 607 (La.App. 1 Cir.1993), writ denied, 94-200 (La.6/24/94), 640 So.2d 1341). This court upheld the Samuel defendant’s habitual offender adjudication because the State produced evidence of the date of his release from prison pursuant to parole for the remainder of his sentence and, thereby, showed the cleansing period had not lapsed.

The State bears the burden of showing that the predicate convictions fall within the cleansing period. The imposed sentence does not govern the determination of the expiration of the cleansing period. Rather, the actual discharge from supervision by the Department of Corrections controls. Thus, the commencement of the cleansing period is from the date of discharge from state supervision, because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole revocation. (Citations omitted).

State v. Humphrey, 96-838, pp. 13-14 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35. McKithern pled guilty to manslaughter in Plaquemines Parish on March 8, 1988, and was sentenced to eighteen years at hard labor. The State did not show whether the date of discharge was actually eighteen years from conviction or an earlier or later date. Accordingly, the State did not prove the ten-year cleansing period had not elapsed, and McKithern’s habitual offender adjudication is set aside.

In(3) Case Theory

McKithern argues the trial court erred when it sustained the State’s objection and denied him the right to present his theory that the fire occurred as a consequence of a methamphetamine laboratory. The record shows McKithern did not attempt to introduce any such evidence. The defense offered the testimony of only one witness, Reva McKithern, and then rested. Ms. McKithern’s testimony did not address the subject of a possible methamphetamine laboratory.

Only in closing arguments did McKith-ern attempt to raise the possibility that Green’s testimony about McKithern and Smith’s leaving the party for a period of time was not only for the purpose of “getting messed up, but they were getting chemicals and other stuff for a clandestine lab.” No evidence of such a possibility was presented, and the court sustained the State’s objection during McKithern’s closing statement for that reason. This assignment of error lacks merit.

(4) Ineffective Assistance of Counsel

McKithern claims his trial counsel was ineffective because he failed to object to, allegedly, hearsay testimony about Gerald Endicott, who was not present at trial. Endicott’s name was mentioned numerous times at trial; McKithern asserts it was mentioned ninety-six times. Additionally, photographs of Endicott were admitted into evidence without objection. Detective Jason Gertz testified they fairly and accurately depicted what he observed.

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. Yet, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id. If this court considers this claim on appeal, McKithern must satisfy a twojparfy test when making a claim of ineffective assistance of counsel. He must show that counsel’s performance was deficient, and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The record fails to reveal where witnesses testified about out-of-court statements Endicott made to prove the truth of the matter at issue. Rather, the witnesses testified about what they saw Endicott do and why they believed he did it. They testified about what they personally observed.

McKithern further complains his counsel did not call particular witnesses to testify at trial and, thereby, his rights under the Confrontation Clause were violated. The decision to call or not call witnesses is a matter of trial strategy and does not necessarily indicate counsel’s ineffectiveness. State v. Stringer, 06-800 (La.App. 3 Cir. 12/6/06), 949 So.2d 464, writ denied, 07-4 (La.9/14/07), 963 So.2d 996. McKithern has not shown how calling any of these witnesses would have changed the outcome of the trial.

The record on appeal sufficiently shows counsel was not ineffective. This argument lacks merit.

(5) Jury Instructions

McKithern alleges the trial court deprived him of his rights to due process and a fair trial by not including a definition of “reasonable doubt” in its jury instructions.

The trial court instructed the jury:

While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say that you are firmly convinced of the truth of the charge.

|1sIn State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998), the Louisiana Supreme Court considered a jury instruction that stated, in part:

Now while the State must prove guilt beyond a reasonable doubt, the State does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based upon reason and common sense, and it’s present when after you’ve carefully considered all of the evidence you cannot say that you are firmly convinced of the truth of the charge.

Id. at 717, n. 9. The court held this and other language from the instruction concerning reasonable doubt was not a constitutional violation.

Additionally, this court has found that the language of the instruction given to the jury here “adequately informed the jury that the defendant was presumed innocent until proven guilty and was entitled to the benefit of any reasonable doubt.” State v. Watts, 596 So.2d 306, 310 (La.App. 3 Cir.), writ denied, 599 So.2d 316 (La.1992). This part of McKithern’s assignment of error lacks merit.

McKithern also contends the trial court erred by failing to instruct the jury on the lesser responsive verdict of aggravated arson. The record does not indicate McKithern requested any different jury instruction or made any objection to the charge given. The trial judge instructed the jury: “[t]here are no lesser responsive verdicts to the crime of aggravated arson. Therefore, in response to the charge of aggravated arson, the following verdicts may be returned: 1, guilty of aggravated arson; 2, not guilty.” The responsive verdict to a charge of aggravated arson includes simple arson only where “the words ‘belonging to another and with damage amounting to _ dollars’ are included in the indictment.” La.Code Crim.P. art. 814(A)(30). Otherwise, the only responsive verdicts are “guilty” and “not guilty.” McKithern’s indictment fails to include the language required to warrant simple arson as a responsive verdict. Thus, the trial court’s jury instruction was correct as it applied to this case.

|14(6) Counsel’s Failure to Object to Jury Instructions and to Move to Quash the Indictment

McKithern alleges his counsel was deficient for not objecting to the jury instructions concerning responsive verdicts. As discussed above, the jury instructions did not misstate the law. McKithern further argues his counsel’s deficient performance was in failure to move to quash the indictment as being defective on its face. He contends he was prejudiced by this deficient performance.

The indictment states McKithern “committed aggravated arson of a dwelling, structure, water craft of movable, to wit: 2101 Pujol Road, Lot 808, Lake Charles, Louisiana, wherein it was foreseeable that human life was endangered.” McKithern seems to allege the indictment is defective because it fails to include the words “belonging to another with damage amounting to_dollars.”

“Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.” La.R.S. 14:51. The wording of the indictment contains the elements of the statute, and the language McKithern would have included in the indictment is not required. Because McKithern has not alleged a valid basis for a defective indictment, he has failed to allege a basis for counsel’s ineffectiveness. This assignment of error lacks merit.

(7) Recusal

McKithern contends the trial judge should have recused himself according to La.Code Crim.P. art. 671(A)(5) and (6). That article provides a judge “shall be recused when he: (5) Has performed a judicial act in the case in another court; or (6) Would be unable, for any other reason, to conduct a fair and impartial trial.”

McKithern has identified no other court in which the trial judge presided in any matter involving him. McKithern contends the trial judge was biased because 11Bhe could have empaneled the grand jury that indicted McKithern, he issued an arrest warrant and set McKithern’s bond, and he presided over a bond-reduction hearing.

McKithern further contends these actions showed the “real possibility that [the trial judge] had already formed an opinion as to [McKithern]’s guilt.” We note this was a jury trial, not a bench trial. The trial judge was not the finder of fact, and it was the jury that found McKithern, guilty.

McKithern also alleges the trial judge failed to correct a statement by the State’s attorney during voir dire, that “every defendant is presumed guilty until proven innocent beyond a reasonable doubt.... ” No objection was made to this mistake, and no attempt to correct it was made. Throughout the voir dire and during the jury charge, the jury was told the proper standard. McKithern has not shown any prejudice by this remark.

McKithern complains that his witnesses were subjected to sequestration while the State’s witnesses were not, resulting in the parties being treated dissimi-larly. Yet, he fails to cite a single instance where any witness behaved in a manner that would have violated a sequestration order had it been given. Although Green indicated he saw Smith in the hallway at trial for the first time since the incident, McKithern fails to show they spoke of anything that should not have been discussed. Moreover, no further request for sequestration of witnesses was made after the first part of the trial.

Continuing with grounds for his argument for recusal, McKithern claims the trial judge showed bias and prejudice against him by “directing the defense counsel’s line of questioning to irrelevant questions allowable by the court.” In fact, the portions of the record cited by McKith-ern reflect a sidebar conference in which the trial judge indicated testimony sought by defense counsel was irrelevant, and he did not allow it as stated. The trial judge did, however, allow the defense to elicit testimony that Ms. McKithern’s dogs did not wake her the night of the incident. 11f;McKithern fails to show how the prohibited testimony overcame the problems of irrelevance and speculation.

McKithern next assumes the trial judge had improper contact with a juror named “Abby” because of comments he made concerning a conversation with someone by that name. He fails, however, to identify any juror as “Abby.”

Based on discussion of the verdict form by counsel and the trial judge, McKithern alleges another constitutional violation. When the jury presented its verdict, the trial judge was concerned that it might not be in proper form. Counsel for both the State and McKithern saw no problem with the verdict form. The verdict form was signed by the foreperson below statements indicating the jury found McKithern guilty of each charge, and on an additional page, a jury representative had written an indication of guilty of each charge. McKithern has submitted nothing to suggest bias or prejudice by the trial court regarding the form of the verdict. None of the other portions of his argument indicates the necessity for a recusal.

IV.

CONCLUSION

For the reasons above, this court affirms McKithern’s convictions, vacates McKith-ern’s adjudication and sentences as a habitual offender, and remands the matter for further proceedings to determine McKithern’s habitual offender status and for resentencing. The trial court is instructed to notify McKithern of the provisions of La.Code Crim.P. art. 980.8 at re-sentencing.

CONVICTIONS AFFIRMED. HABITUAL ADJUDICATION VACATED; REMANDED.

      . The multiple offender bill is not included in the record.


text:
    STATE of Louisiana v. Larry J. McKITHERN.
    No. 11-1111.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    Rehearing Denied June 13, 2012.
    John Foster DeRosier, District Attorney, 14th Judicial District Court, Carla Sue Sigler, Assistant District Attorney, Karen C. McLellan, The Gray Law Firm, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Larry Joseph McKith-ern.
    Larry Joseph McKithern, Angola, LA, Defendant/Appellant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

liFor the reasons expressed in State v. McKithern, 11-1402 (La.App. 3 Cir 5/2/12), 93 So.3d 684, this court affirms Larry J. McKithern’s convictions, vacates McKith-ern’s adjudication and sentences as a habitual offender, and remands the matter for further proceedings to determine McKithern’s habitual offender status and for resentencing. The trial court is instructed to notify McKithern of the provisions of La.Code Crim.P. art. 930.8 at re-sentencing.

CONVICTIONS AFFIRMED. HABITUAL ADJUDICATION VACATED; REMANDED.