author: CARAWAY, J.

text:
    MK INTERNATIONAL, INC., Plaintiff-Appellant v. CENTRAL OIL & SUPPLY CORPORATION, Defendant-Appellee.
    No. 46,925-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      James A. Rountree, Monroe, LA, for Appellant.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC, by P. Scott Wolleson, Monroe, LA, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

hln this suit for an accounting, the owner of a convenience store sues a petroleum products distributor who supplied gasoline and petroleum products to the store. The products were delivered on a consignment basis and the dispute involved plaintiffs share of the difference between the defendant’s cost and the retail prices realized in customer sales. The trial court determined that only an implied, unwritten contract existed between the two parties and that the plaintiff was not entitled to reimbursement for the defendant’s pricing of the products and its charging of fees. This appeal by the convenience store owner ensued. Finding no manifest error in the trial court’s ruling, we affirm.

Facts

In 1981, Stephen Kelley and Ray Watson began the operation of a convenience store located at 101 Bernice Highway in Farmerville, Louisiana, which eventually came to be known as One Stop. Because the business also sold retail gasoline, the partners entered into a 10-year (August 12,1981-August 12, 1991) “Dealer’s Commission Contract” with Pinrod Petroleum, Inc., for the installation and maintenance of underground storage tanks, fuel pumps, and other fuel-related items at the convenience store. By the agreement, Pinrod also supplied fuel to the location on consignment and agreed to split profits from retail fuel sales with the partners. Specifically, that provision of the Dealer’s Commission Contract which dealt with the splitting of profits read as follows:

| gAll gasoline furnished by Seller shall be sold by Dealer at prices established by Seller. Dealer shall be compensated for work and services performed hereunder; a commission from Seller equal to one-half of the difference between Seller’s invoice cost for gasoline or other petroleum products, plus common carrier freight rate and the retail price at which such product is sold. Dealer will have a $.02 down stop on commission from Seller.

In 1997, the store property was acquired by Kelson Investment Group, Inc. (“Kel-son”), which was owned by Kelley. Kelson ceased operating the convenience store and leased the premises to other parties. Before it began leasing, on February 17, 1997, Kelson and Central Oil & Supply Corporation (“Central Oil”), the petroleum products distribution business which was a successor company to Pinrod, entered into a 15-year lease (hereinafter the “Lease”) under which Central Oil agreed to install and maintain a canopy, read-out equipment, sign and concrete pump islands and foundation for the canopy. Central Oil also agreed not to “arbitrarily refuse to supply Lessor with fuel while at the same time supplying other stations.”

Thereafter, Kelson leased the property to ZZ Corporation (“ZZ”) under a Commercial Lease with a term beginning on March 1, 1997 and ending February 28, 2002. Paragraph 10 of the Lease reads as follows:

Dealers Commission Contract: In addition LESSEE acknowledges and takes cognizance of that certain Dealers Commission Contract heretofore entered into by LESSOR, with CENTRAL OIL CO., INC., concerning the sale of gasoline at the subject premises, and LESSEE agrees to fully comply with and abide by all of the terms, conditions and provisions of the said Dealers Commission Contract, without exception whatsoever, a copy thereof having been heretofore furnished by LESSOR unto LESSEE. LESSEE agrees to indemnify and hold LESSOR from any liability to CENTRAL OIL CO., INC., in connection therewith, and to fulfill all of the terms, conditions and provisions thereof, as fully and as completely as LESSOR was obligated to do.

|sOn March 1, 1997, Central Oil and ZZ entered into an “Operating Agreement” or “Pump and Tank Agreement” (hereinafter the “Operating Agreement”) in which Central Oil agreed to “furnish the necessary petroleum products for the operation of retail petroleum products business on the said location.” In relevant part, the parties agreed that Central Oil was to be “responsible for all property taxes and assessments in the gasoline dispensing operation.” Further, Central Oil and ZZ agreed to “divide equally gross profits derived from the sale of petroleum products at retail in the location.” The agreement described the calculation of gross profits as follows:

a) The dollar revenue generated from gross sales of petroleum products at retail;
b) Minus the rack price of petroleum products including the least expensive cost of freight by motor carrier;
c) The resulting figure is the gross profits.

The term of the Operating Agreement was for the “period of time concurrent with a lease of the property to Supplier [Central Oil] by Stephen R. Kelley.”

ZZ operated One Stop until 1999, when Zia Corporation (“Zia”) purchased the business. Zia had been formed in 1999 by one of the partners of ZZ, Malik Zia. Kel-son and Zia entered into a 3-year commercial lease (May 15, 1999 to May 14, 2002) but no operating agreement with Central Oil was executed.

Zia sold One Stop to T.H. International, Inc. (“T.H.”) in January of 2001. Kelson entered into a new commercial lease with T.H. on January 11, 2001, but T.H. executed no operating agreement with Central Oil.

|4In July of 2001, the plaintiff, MK International, Inc. (“MK”), through its president, Manzoor Hussain Chaudhry, purchased the assets of One Stop from T.H. A “Contract for Purchase of Business Assets” was executed between the parties. The assets sold to MK included the goodwill of the business, the T.H./Kelson Commercial Lease, the inventory of goods, furniture, fixtures and equipment, and certain equipment leases. On July 6, 2001, Kelson and MK entered into a Commercial Lease for the property which contained the same language regarding the application of the Dealer’s Commission Contract quoted above. The original term of the lease was October 1, 2001 to September 30, 2010. MK apparently operated the convenience store until 2009. Throughout this time, Central Oil supplied the fuel sold at the gas pumps without a written operating agreement with MK. In its accounting for sale of gasoline, Central Oil used the rack price of the gas on the date of invoice and included Autosend, UST fees, Superfund tax, Oil Spill Liability Fund and Fuelman fees in the invoices. From this, Central Oil made the calculation of profits.

In June of 2003, Chaudhry wrote a letter to Central Oil complaining about the manner in which Central Oil calculated and split profits. Chaudhry urged the application of the provisions of the Operating Agreement between Central Oil and ZZ as the proper method. He contended that Central Oil’s use of the rack price on the day of invoice and inclusion of fees on the invoices were not in accordance with the agreement. When the parties could not reach an agreement, MK instituted this suit for | ^accounting and injunction against Central Oil seeking reimbursement for underpayment of profits and fees.

At trial, four witnesses testified. Hardeman Cordell, the president of Central Oil, testified that Central Oil had been in the convenience store business since 1985. He first operated Pinrod Petroleum, a predecessor to Central Oil, and contracted with Kelley and Watson. Cor-dell explained that in the original Dealer’s Commission Contract, Pinrod leased the piece of property in order to install petroleum dispensing equipment at the store. The original Dealer’s Commission Contract was extended through 1996 and carried forward until Central Oil and ZZ entered into the Operating Agreement. Cordell testified that the Dealer’s Commission Contract was essentially nonexistent after March 1, 1997, even though it was mentioned in the various leases. Cor-dell testified that fees related to tanks including Superfund taxes and underground storage fees were “pass through fees” that were not an expense of his company. Over the years fees came into existence that were mandated by the state including underground storage tank and oil spill fees.

Cordell testified that the Central Oil/ZZ Operating Agreement provided that Central Oil would be responsible for property taxes and assessments in the gasoline dispensing operation and also provided for a division of profits. The term of the Operating Agreement was the same as the Kel-son/Central Oil equipment lease.

16Cordell stated that from July 2001 to the end of 2009, Central Oil supplied fuel to MK for One Stop. Cordell identified the June 26, 2003, letter in which Chaudhry contested the division of profits and set forth MK’s calculations. Cordell testified that Chaudhry’s calculations were not correct because “we bill off a rack price,” although he understood Chaudhry’s method of calculating profits. He explained that the rack price was the price that Central Oil paid to the refiner when it purchased the product. In billing, Central Oil utilized the rack price on the date of the invoice, not on the day of MK’s purchase. Cordell explained that Central Oil usually received notice of the .rack price by six o’clock in the evening and that Central Oil used the rack price with all of its customers. Cordell testified that Chau-dhry’s calculations were based upon “average inventory costs,” which Cordell explained was what Central Oil paid plus freight. Cordell testified that the average inventory costs distribution of profits was not used because of the lag time between the distribution of the fuel and when costs could be calculated. He stated that when the market was rising and the prices moved fast, with the use of the average inventory cost method, Central Oil would get to the point where it would not collect enough money to replenish its inventory. Cordell testified that the rack price would “average out over a period of time.” He did concede that the average inventory costs method could be more reflective of the costs of the fuel in the tanks.

In Cordell’s opinion, One Stop had a turnover time for regular fuel that was “pretty often” while Premium and Plus fuel could take two to three 17weeks, Cor-dell considered One Stop to be a low volume store. Central Oil paid for the fuel that was put in the tanks and owned the gasoline until it was dispensed to customers. The costs associated with keeping up the dispatch was borne by Central Oil. Central Oil offered to allow MK to buy the fuel beforehand and “carry the inventory,” but MK declined. Central Oil drafted MK’s account twice a week. The amount of fuel sold by One Stop was determined by daily meter readings which were placed on a dispatch sheet. The dispatcher would call in the numbers daily. The information could also be punched into an auto send system.

. Cordell’s understanding of the agreement Central Oil had with One Stop is that Central Oil would take the rack costs of fuel on the day of billing and add freight and all applicable taxes and fees to the amount. From that number, the retail price would be deducted and the difference would be split with One Stop. Cordell testified that the difference between Central Oil’s costs and the retail price is profit and that the distribution of profits was 50/50 split.

Cordell testified that Central Oil never had a written agreement with MK for the division of profits and had no knowledge that ZZ assigned the Operating Agreement to any other corporation. He stated that upon MK’s taking over the convenience store, the business transactions with Central Oil continued as usual. Cordell acknowledged that he did not have anything in writing from MK by which the plaintiff agreed to utilize the rack price on the day of invoice; however, he stated “that’s the number we always use.” He added “that’s how we billed him and did that from day one.” Cordell [^testified that Chaudhry did not complain about the profits for two years before June 2003. He stated that Central Oil divided profits the same way with ZZ, Zia and T.H. and that the day-to-day operations between Central Oil and the convenience store owners has been conducted the same for years. Central Oil had no other disputes with any other operator.

Manzoor Chaudhry testified that he purchased One Stop in July of 2001. At the time of the purchase, he did not have an understanding of how he would be compensated for distributing Central Oil’s gas. Cordell showed him the Operating Agreement between Central Oil and ZZ and he received a copy of the document when he purchased the establishment. He understood that the Operating Agreement governed his relationship with Central Oil because the agreement stated that it was for a 15-year term for the location at 101 Bernice Highway and was applicable to all successors of the business. An unrelated dispute over an invoice sent to One Stop caused Chaudhry to examine all of the invoices from Central Oil more carefully. When he examined the invoices, Chaudhry “found that it was very imbalanced distribution of the gross profit between us and Central Oil.” He sent a letter of complaint to Cordell and referenced the Operating Agreement. Chaudhry felt that the average inventory cost was closer to the actual costs of the gas. He did not dispute that One Stop and Central Oil were to divide profits equally. He disputed the method used to divide the profits because Central Oil used the rack price on the day of invoice which had nothing to do with the gas actually sold. Chaudhry conceded that for lotwo years, he did not look into the invoice documentation sent to One Stop by Central Oil.

Chaudhry testified that he discussed the matter with Cordell on July 12, 2003, and waited for a response from Central Oil which never came. Chaudhry also met with Cordell in 2009. At the meeting, Cordell indicated that his method of calculating profits was in accordance with the Operating Agreement. Chaudhry testified that the Operating Agreement did not mention his responsibility for Autosend, underground storage tank fees, credit card fees, the Fuelman expenses, oil spill liability fund or taxes.

Chaudhry stated that his accountant, Joel Taylor, prepared a report which included a random sampling of invoices and calculation of benefits using the average inventory costs method. The calculations indicated that One Stop was underpaid $49,296 in profits and had overpaid $28,504 in fees.

Chaudhry admitted that MK had no contract with ZZ or received an assignment of the Operating Agreement. He could only assume that ZZ and Central Oil handled invoicing in accordance with his view of the Operating Agreement but he had no dii'ect knowledge of that fact. MK’s asset purchase agreement in 2001 did not reference the Operating Agreement between ZZ and Central Oil.

Joel Taylor testified on behalf of MK and was accepted as an expert in accounting. Taylor testified that he utilized the average inventory costs method to calculate the profit variances on gasoline prices sold at One Stop between July of 2001 and June of 2009 and prepared the report referred to | inby Chaudhry. Taylor admitted that the Operating Agreement only referred to rack price and that he saw no agreement which indicated that the average inventory costs method was the proper method to be utilized. Taylor assumed that the fees were not part of profit division between Central Oil and MK.

James Moore, former president of Moore Oil Company, testified on behalf of Central Oil and was qualified as an expert in petroleum products, marketing and distribution. Moore testified that Central Oil’s method of billing based on rack price would be consistent with industry standards and was a fair and reasonable way to divide profits, considering the volatility of the petroleum business and that the risk of market fluctuation was borne by the distributor. Moore believed that the use of average inventory costs was not a practical method of accounting. Moore testified that fees and taxes were pass through amounts for which Central Oil would not profit and could appropriately divide with MK.

After hearing the testimony and considering the evidence, the trial court rejected the claims of MK upon determining that Central Oil’s use of the rack price at invoice and inclusion of certain fees in the calculation of profits were in accordance with industry standards and constituted the agreement between the parties.

Law

A party claiming the existence of a contract has the burden of proving that the contract was contracted between himself and his opponent. La. C.C. art. 1831; Price Farms, Inc., v. McCurdy, 45,409 (La.App.2d Cir 17/7/10),11 42 So.3d 1099. The trial court’s conclusion regarding the existence of a contract is a finding of fact which may not be disturbed on appeal unless it is found clearly wrong. Id.

When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence. If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846. This sufficiency of proof is correlated with the credibility of witnesses and the trial court’s conclusions must be accepted, unless they are manifestly erroneous. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Kilpatrick v. Kilpatrick, 27,241 (La.App.2d Cir.8/23/95), 660 So.2d 182, writ denied, 95-2579 (La.12/15/95), 664 So.2d 444.

Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. A doubtful provision must be interpreted in light of the nature of the contract, equity, usage, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. Usage is a practice regularly observed in affairs of a nature identical or similar to the object of a contract subject to interpretation. La. C.C. art. 2055.

Rights and obligations arising from a contract are heritable and assignable unless, the law, the terms of the contract or its nature preclude such effects. La. C.C. art. 1984. The legal right that a person has against [12another person to demand the performance of an obligation is called a personal right. Distinct from a real right, which can be asserted against the world, a personal right is effective only between the parties. La. C.C. art. 1758; Eagle Pipe and Supply Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La.10/25/11), 79 So.3d 246. A personal right cannot be asserted by another in the absence of an assignment or subrogation. Eagle Pipe and Supply Inc., supra; Pinnacle Operating Co. Inc. v. Ettco Enterprises, Inc., 40,367 (La.App.2d Cir.10/26/05), 914 So.2d 1144; Rowan v. Town of Arnaudville, 02-0882 (La.App. 3d Cir.12/11/02), 832 So.2d 1185.

La. C.C. art. 3506(28) specifically defines successor as, generally speaking, the person who takes the place of another. There are in law two sorts of successors: the universal successor, such as the heir, the universal legatee, and the general legatee; and the successor by particular title, such as the buyer, donee or legatee of particular things, the transferee. The particular successor succeeds only to the rights appertaining to the thing which is sold, ceded or bequeathed to him.

Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale. La. C.C. art. 2439. The contract of sale is perfected when one party consents to give a certain thing for a price in money and the other consents to give the price in order to have that thing. Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980); Lawrence v. Terral Seed, Inc., 35,-019 (La.App.2d Cir.9/26/01), 13796 So.2d 115, writ denied, 01-3134 (La.2/1/02), 808 So.2d 341. Although there must be consent to give and to accept a price, it is not essential that the specific sum of the sales price be stated at the time of contracting. The parties can agree that the price may be ascertained by computation or that the price may be fixed by arbitration. Or the parties can consent to buy and to sell a certain thing for a reasonable price, and when they do, the contract of sale has been perfected. Benglis Sash & Door Co., supra.

Discussion

MK’s argument on appeal centers on its assertion that the 1997 Operating Agreement executed between Central Oil and ZZ is the binding written agreement which requires Central Oil to account in a different manner for the sale/consignment price of its products. MK claims Central Oil’s accounting method for the determination of the price violates that which is called for in the Operating Agreement. The trial court found that the parties “either orally or tacitly, agreed to split the profits from the gasoline sales” and that no written agreement exists between the parties. The important implications of that ruling are: (1) that there is no long-term contract between the parties constraining Central Oil to charge its prices in a particular manner, and (2) MK is not obligated to Central Oil to acquire and sell its gasoline products. Furthermore, since MK did in fact receive marginal revenue over and above Central Oil’s charge for each gallon sold to customers at One Stop, MK’s claim for $49,296 in damages represents 114onIy its loss of a higher net profit on such sales if a breach of contract occurred.

From our review of the testimony, documentary evidence, and the above law, we agree with the trial court that no existing written contract for a term governed the parties’ relationship. Upon its acquisition of the business in 2001, the two written contracts executed by MK were the “Contract for Purchase of Business Assets” with T.H. and the Commercial Lease with Kelson. In those contracts, MK did not assume any obligations of those parties with Central Oil concerning the purchase and pricing of Central Oil products.

The only prior contract which MK recognized in 2001 was referenced in MK’s lease agreement with Kelson. The lease stated that MK acknowledged the prior Dealer’s Commission Contract between Kelson and Central Oil “concerning the sale of gasoline at the subject premises.” In actuality, the original Dealer’s Commission Contract of 1981 was between the predecessors of both Kelson and Central Oil. The only contract existing between Kelson and Central Oil at the time of MK’s Commercial Lease in 2001 was the February 1997 Lease concerning the gasoline dispensing equipment which Central Oil maintained on the property. In the Kel-son/Central Oil Lease, Central Oil was obligated not to arbitrarily refuse to supply Kelson with fuel. Yet, no details regarding the pricing of fuel by Central Oil were specified. Moreover, even if MK somehow assumed any obligations of the 1981 Dealer’s Commission Contract that may have been Instill extant, MK makes no argument that its asserted accounting/pricing for Central Oil’s products is specified in the 1981 agreement.

Additionally, from our review of the 1997 Lease between Kelson and Central Oil, it is also important to note that at that time Kelson did not bind itself to the terms of the 1997 Operating Agreement. The 1997 Operating Agreement was therefore the personal contract existing solely between the two parties to the agreement, Central Oil and ZZ. Central Oil and ZZ were each lessees of Kelson under separate lease agreements for different uses and possessory rights to the One Stop premises. Therefore, the Operating Agreement would govern their relationship only as long as they remained in possession of their separate lease rights or for a maximum term of 15 years. When ZZ chose to end its lease of the store with Kelson, ZZ was authorized under the terms of the Operating Agreement to give 30-day written notice to Central Oil and to unilaterally withdraw from the Operating Agreement. Whether or not that notice was actually given in 1999, ZZ effectively ended its contractual relationship with Central Oil at that time. The rights and obligations of the Operating Agreement were never assigned by ZZ to another party at the conclusion of ZZ’s lease of the premises.

Accordingly, we affirm the trial court’s ruling that no written contract importing long-term obligations for the sale and purchase of Central Oil’s products governed these parties’ transactions. Since 2001, each delivery and sale of the product was a separate transaction. MK was at liberty to end its purchases upon becoming dissatisfied with Central Oil’s pricing.

116Finally, there is no showing from the evidence that any oral contract or meeting of the minds occurred whereby Central Oil ever agreed to charge prices calculated in the manner insisted by MK. Chaudhry’s testimony that Cordell referenced the prior Operating Agreement or impliedly adopted any specific accounting formula was rejected by the trial court. There was no showing of any new agreement obligating Central Oil to charge all future deliveries of its products according to Chaudhry’s accounting. Moreover, there was no evidence by MK challenging Cordell’s assertion that Central Oil’s method for accounting was the same which it employed for sales to ZZ pursuant to the former Operating Agreement.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. MK is cast with costs of the appeal.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . On May 6, 1991, the parties apparently extended the agreement to August 12, 1996.

      . On September 13, 2006, the trial court denied MK’s request for preliminary injunction.

      . Each party stipulated to the documentary evidence submitted by the other.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kattie Rosettia JACKSON, Appellant.
    No. 46,963-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Kenya Ellis, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

|,The defendant, Kattie Rosettia Jackson, was convicted of aggravated battery in violation of La. R.S. 14:34, for slashing the arm of the victim with a box cutter during a scuffle. The trial court sentenced Jackson to five years imprisonment at hard labor. The defendant now appeals her conviction and sentence. For the following reasons, we affirm.

Facts

Around 2:00 a.m. on August 16, 2010, Mikaylia Taylor was at her Shreveport home celebrating the birthday of Bianca Darby, the girlfriend of her brother Sank-eyno. Several other guests were present, including her half-brother and half-sister, Jemario Calais and Keyera Calais, and a friend of Bianca’s, Lasheonia Wilson. The defendant was not invited to the party even though she was involved in a relationship with Jemario Calais at the time. Jemario was the father of the defendant’s one-year-old baby and an unborn child that the defendant was carrying.

Although the defendant was not at the party, two of her cousins were seen driving past the house twice. A short time later the defendant suddenly appeared at the front door and angrily demanded to know who Jemario was “hugged up with.” Mi-kaylia and the others told the defendant several times to leave the premises. Tensions escalated and guests began to congregate outside the front of the house as Jemario forcefully led the defendant out to her car. Near her car the defendant began arguing with Lasheonia Wilson, whom she accused of being the woman “hugged up with” with Jemario. She retrieved an object from her car and began chasing Wilson in the front yard. Some of the witnesses realized that the defendant 1 ahad a blade in her hand.

The defendant fell down as she crossed a ditch while chasing Lasheonia, who ran to the side of the house and entered through a side door. When the defendant got up, she charged Mikaylia Taylor, who had walked into the front yard and was unaware that the defendant was armed. The two women began fighting. Shortly after the scuffle began, Mikaylia noticed that her arm was numb, and she was bleeding. She retreated to her house, and the defendant fled the scene.

Police were summoned to the disturbance. They spoke with the injured Mi-kaylia Taylor regarding the incident. They found the box cutter on the lawn and interviewed Jemario Calais, Keyera Calais and Bianca Darby, each of whom corroborated the victim’s account.

The defendant was arrested on August 17, 2010, for her part in the incident. Detective Shaunda Holmes of the Shreveport Police Department interviewed the defendant. She was later charged by bill of information with aggravated battery in violation of La. R.S. 14:34. Defendant came for trial before a jury on April 12, 2011.

After a one-day trial, the jury returned a verdict of guilty as charged. The defendant filed post-trial motions for new trial and for a post verdict judgment of acquittal, both of which were denied. The defendant was sentenced on April 18, 2011, to five years’ imprisonment at hard labor. After sentencing, the defendant filed a written motion to reconsider sentence which the record does not indicate was ever ruled upon.

|sThe defendant now appeals her conviction and sentence, raising two assignments of error and two errors patent related to her sentence. Because the errors patent concern the defendant’s sentence, we shall first consider the defendant’s sufficiency of evidence claim regarding her conviction.

Discussion

By her first assignment of error, the defendant alleges that the evidence adduced at trial is insufficient to sustain her conviction. She argues that her arrest and subsequent conviction was obtained as a result of poor police work: the box cutter was not examined for fingerprint identification and the police simply accepted Mi-kaylia’s version of the events. The defendant maintains that she went to the house only because Jemario asked her to bring his son to him. After she arrived, she was attacked by Lasheonia Wilson and the victim, Mikaylia, who, defendant claims, wielded the box cutter and accidentally cut herself in the struggle that ensued. After she left but before the police came, Mikay-lia convinced Keyera Calais and Bianca Darby to tell Officer Gary Holmes that the defendant attacked her with the box cutter and even told Officer Holmes that Jemario Calais was her boyfriend, thereby inferring that the defendant attacked her out of jealousy.

At oral argument, counsel argued that the state’s witnesses at trial were not credible because of inconsistencies in their testimony regarding possession of the box cutter. For example, Mikaylia said she did not see the box cutter, while Keyera and Bianca said they saw the defendant holding a |4blade. For these reasons, counsel urges in her brief that the appellate court should impinge on the jury’s discretion and role in determining the credibility of the witnesses to guarantee that fundamental due process requirements are met, citing State v. Mussall, 523 So.2d 1305 (La.1988). (Emphasis ours).

In reviewing the sufficiency of the evidence to support a conviction, the reviewing court must determine if the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 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. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

The Jackson v. Virginia doctrine, which is 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. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 5So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Shivers, 43,731 (La.App. 2 Cir. 12/3/08), 998 So.2d 877, 883 (same deference applies to bench trial).

“The principal criterion of a Jackson v. Virginia review is rationality.” State v. Mussall, supra at 1310. Due process demands that a criminal conviction cannot constitutionally stand if it is based on a record from which no rational trier of fact could find guilt beyond a reasonable doubt. This is why, under Jackson, the reviewing court views the evidence “from the perspective of a hypothetical rational trier of fact” to determine if an unconstitutional conviction has occurred. Id. As the Louisiana Supreme Court stated:

In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all of the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. (Citation omitted). If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. (Citation omitted.)

Id. at 1310.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022; State v. Mussall, supra. (Emphasis ours).

LThe Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App. 2 Cir. 8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Louisiana Revised Statute 14:34 defines aggravated battery as “a battery committed with a dangerous weapon.” Battery is “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La. R.S. 14:33. Further, as defined in La. R.S. 14:2(A)(3), a “dangerous |7weapon” is “any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

Five witnesses testified for the prosecution at the trial of this case. Only the defendant testified in her defense. We summarize the trial testimony as follows:

Gary Holmes of the Shreveport Police Department testified that he and a companion officer responded to a disorderly person call in the early morning hours of August 16, 2010, at 2602 Hassett Avenue in Shreveport, Louisiana. They found Mi-kaylia Taylor standing in the front yard “bleeding profusely” from her right arm. Officer Holmes said Mikaylia told him that the defendant came to her house in an agitated state looking for Mikaylia’s boyfriend, Jemario. When the defendant was told to leave, she produced a blue box cutter and struck Mikaylia with it. Holmes found a blue-handled box cutter resting on the front lawn. The defendant had left the premises. According to Officer Holmes, three other individuals on the scene, Jemario Calais, Keyera Calais and Bianca Darby, corroborated Mikaylia’s version of the events told to Holmes.

Mikaylia Taylor testified that earlier in the evening she noticed the defendant’s cousin, Brittany Jackson, drive by her home twice with her sister. Shortly thereafter, the defendant appeared at her front door demanding to know from Jemario “what ‘B’ he was ‘hugged up’ with.” Mi-kaylia testified that they repeatedly told the defendant to leave, but she | ¡¡did not do so. The defendant was angry and cursing at everyone.

Mikaylia testified that Jemario led the defendant toward her car parked on the street. Everyone moved outside to observe what was going on. When Jemario and the defendant were at the car, she saw the defendant begin to chase Lasheonia Wilson, apparently believing Wilson to be the woman Jemario was “hugged up with.” The defendant fell during the chase, at which point Mikaylia began to walk into the yard from where she was standing at her front door. As she did so, Mikaylia indicated that the defendant began running towards her. The two women started swinging at each other. Shortly after the altercation began, Mikaylia said she felt her arm go numb and looked down to find her arm had been cut. Mikaylia testified that her sister went in to call 911 while Mikaylia retreated into the house to get something for the wound. During this time, the defendant fled the scene. Mi-kaylia testified that she was unaware the defendant had a weapon until she had been cut.

Mikaylia then identified the photographs taken at the hospital of her injuries and placed into evidence. The most serious wound reflected in the photographs is a deep gash in the subject’s right forearm which Mikaylia testified required four levels of stitching. Another photograph depicts a cut across the palmar aspect of the subject’s middle and ring fingers. Other photographs depict superficial injuries to the victim’s forehead, cheek and legs, and blood splattered on her clothing.

Bianca Darby testified that she was at Mikaylia Taylor’s home on August 16, 2010, celebrating her birthday. At the time, Darby was dating | nSankeyno Taylor, one of the victim’s brothers. Darby asserted that there were approximately ten people in attendance. At around 2:00 a.m., the defendant arrived and knocked on the door which was answered by Keyera Calais. According to Darby, the defendant was cursing and asking which of the individuals present was there for Jemario. As Jemario forced the defendant back to her car, everyone gathered in front of the house. The defendant then retrieved something from the car. Jemario screamed that she had a blade when she started chasing Wilson. The defendant slipped and fell in the yard. When she got back up, she went after Mikaylia who, she said, was standing by Jemario and Keyera. After a short scuffle, they were pulled apart, and Mikaylia commented that she had been cut. Darby stated that no one had attacked the defendant prior to her cutting Mikaylia. Although she did not see the box cutter, she said that she did see the silver part of the blade. She did not recall whether she had given a statement to the police.

The victim’s sister, Keyera Calais, testified that she lived with Mikaylia and was present on the evening in question. She testified that when the defendant came to the front door, she was upset and asked Keyera where Jemario was. Jemario came to the door and told the defendant to go home because she had their one-year-old son in the car. As he led her back to the car and the argument got louder, everyone came outside, including Lasheonia. The defendant, referring to Lasheonia, said that she must be the woman Jemario was “hugged up with.” The defendant got something from her car, presumably the box cutter, and chased Lasheonia with a blade. She 11flfell while crossing the ditch. When the defendant got up, she charged Mikaylia. The two women started to fight and Mikaylia’s arm was cut. Keyera said that she tried to break up the fight. In the process, Keyera turned her back to the defendant. She subsequently learned that the back of her shirt had been cut open. She said that no one had attacked the defendant prior to the fight.

Detective Shaunda Holmes testified that she took a statement from the defendant the day after the incident. After she advised the defendant of her Miranda rights, the defendant told Detective Holmes that Jemario Calais called her at 1:00 a.m. to bring their son for a visit. She went over to the victim’s home where she was jumped by a couple of girls. Defendant claimed that, during the altercation, Mi-kaylia was wielding a box cutter and that the defendant cut her hand while trying to disarm Mikaylia.

Detective Holmes also interviewed Mi-kaylia, who contradicted the defendant’s version of events. Detective Holmes admitted that she interviewed no other witnesses, but was aware that the responding officers had interviewed the witnesses on the scene. Detective Holmes also testified that, to her knowledge, no fingerprint analysis was conducted on the recovered box cutter.

The defendant took the stand in her own defense. She testified that Jemario called her at approximately 1:00 a.m. and asked her to bring their son over so he could see him. When she arrived, she went to the door and asked Keyera to get Jemario. When Keyera said “something smart,” the defendant started to walk back to her car and was joined by Jemario. Then lnLasheonia, whom the defendant did not know at the time, came up and said “that she was the ‘B’ who he was with.” When defendant asked Jemario if it was true, Jemario told her to leave and they began to argue. Defendant said that Jemario started to choke her and let go after about five seconds, at which time Lasheonia ran up and struck the defendant in the side of the head with her fist. That is when the defendant claims she started to chase Lasheonia and fell in the yard. As she got up, defendant said she told Mikaylia that she “down bad,” after which Mikaylia charged her with “something in her hand.” Defendant had no idea how Mikaylia got the cut on her arm but said the scratches to Mikaylia’s face came from the defendant’s rings. She could only speculate that the cuts received by both herself and Mikaylia took place as they struggled for whatever Mikaylia had in her hand. She said she then left the scene because her one-year-old son, who had been sitting in the vehicle, was screaming.

After review, we conclude that the testimony at trial simply consisted of two different versions of the altercation in front of Ms. Taylor’s home. While the defendant claimed that she acted in self-defense, it was her burden to prove this affirmative defense.

We find no reason to conclude that the jury acted outside the bounds of rationality in rendering its verdict based upon its obvious acceptance of the prosecution witnesses’ version of events. The fact that Officer Holmes testified that Mikaylia told him that Jemario Calais was her boyfriend instead of her brother could have been regarded by the jury as simply a misunderstood communication — certainly given the circumstances in which |12Mikaylia gave her statement to Officer Holmes right after the incident while she was bleeding profusely from the serious slash in her arm. Similarly, Mikaylia’s testimony that she did not know the defendant was armed with a box cutter even though her sister and friend testified that they saw the blade is neither incredible nor even unusual under the circumstances. It was within the jury’s purview to conclude that the defendant was the aggressor in the altercation and that she did not act in self-defense. See State v. Lafitte, 10-1253 (La.App. 3 Cir. 5/11/11), 63 So.3d 1195.

We therefore conclude that, interpreting all of the evidence most favorable to the prosecution, a rational trier of fact could have found the essential elements of aggravated battery were proven beyond a reasonable doubt.

This assignment is therefore without merit.

Sentencing

Before reviewing the assigned sentencing error, we note that the defendant assigns two errors patent, namely, the trial court failed to rule on her motion to reconsider sentence and it failed to advise her of the time delays for filing post-conviction relief.

Regarding the failure of the court to rule on a motion to reconsider sentence, this court held in State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297:

According to La. C. Cr. P. art. 916(3), the trial court retains jurisdiction to “take other appropriate action pursuant to a properly made or filed motion to reconsider sentence” even after an order of appeal is entered. Further, La. C. Cr. P. art. |1S881.1(C) states that “the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of that sentence.” In addition, no provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court’s failure to rule on a motion to reconsider sentence. Further, an appellate court may review a sentence for constitutional excessiveness even if the defendant fails to file a motion to reconsider sentence. Therefore, this court may review Defendant’s sentence for constitutional excessiveness in spite of the pending motion to reconsider sentence. Should the trial court later rule upon Defendant’s motion to reconsider sentence, Defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2).

Thus, the absence of a ruling on the motion to reconsider sentence does not affect this court’s ability to consider the constitutional excessiveness of the defendant’s sentence on appeal nor does it require a remand, since the trial court retains jurisdiction to rule on the motion to reconsider sentence and the defendant is within her rights to provoke same. Should the trial court later rule upon defendant’s motion to reconsider sentence, the defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2). State v. Lathan, supra.

As to the trial court’s failure to advise regarding post-conviction relief, the sentencing transcript reflects that the trial court did not advise the defendant of the time period within which to apply for same. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, abrogated on other \ ugrounds in State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735; State v. Hunter, 36,692 (La.App. 2 Cir. 12/20/02), 834 So.2d 6. The trial court should have advised defendant, but this court can also advise her. See State v. Pugh, 40,159 (LaApp. 2 Cir. 9/21/05), 911 So.2d 898.

By her second assignment of error, the defendant alleges that the sentence of five years at hard labor is excessive under the facts and circumstances of this case. She contends that the trial court disregarded the mental and emotional well-being of defendant’s children in imposing her sentence. Despite her volatile relationship with the father of her children, she was doing her best to ensure that he remained a part of his children’s lives.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, supra. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be | ^considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864. La. C. Cr. P. art. 881.1 applies to defendant’s sentence. This article precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App. 2 Cir. 12/17/03), | 16862 So.2d 1121; State v. Duncan, 30,453 (La.App. 2 Cir. 2/25/98), 707 So.2d 164.

Aggravated battery is punishable by a fine of not more than $5,000, imprisonment with or without hard labor for not more than 10 years, or both. La. R.S. 14:34.

While imposing the defendant’s sentence, the trial court noted that the defendant had a prior conviction for simple battery which had been pled down from a more serious charge, and that the defendant had inflicted serious injury with her conduct. The court found that the defendant was in need of a custodial environment as she appears to have a temper problem which makes her a risk to the public. While the court stated that the defendant’s conduct may have been provoked by jealousy upon learning that the father of her children might have been involved with another woman, the court found that fact was not justification for her conduct. When defense counsel asked the court to reconsider the sentence in light of the defendant’s obligation to her two young children, the court stated that the defendant’s conduct on the night of the incident indicated that the children would “be at least as safe with someone else while she’s in jail.”

The defendant presented no evidence of mitigating circumstances for the court to consider. While the facts presented ah trial informed the court that the defendant had one young child and was pregnant with another at the time she committed her crime, the court was within its discretion to accord marginal weight to the hardship defendant’s imprisonment would impose on her dependents. The trial court’s comment regarding her choice to take her | i7one-year-old son out at 1:00 o’clock in the morning to confront the child’s father about being with another woman, characterized by the defendant as “snide,” makes a valid point. Bringing an infant to a party at 1:00 a.m., whether it was carried out to either track his father down or make sure he is involved in the child’s life, was perhaps not the best decision.

The trial judge stated that he considered all of the appropriate factors and considered this to be a very serious crime causing serious injury that could have had a deadly result. In closing, the court noted that the defendant had refused to take any responsibility for her conduct.

This record supports the finding that the sentence of defendant is not unconstitutionally excessive. When defendant’s crime and sentence are viewed in light of the harm done to society by violent crimes, her five-year hard labor sentence does not shock our sense of justice.

This assignment is therefore without merit.

CONCLUSION

For the reasons stated above, the defendant’s conviction and sentence are affirmed. The defendant is hereby advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

CONVICTION AND SENTENCE AFFIRMED.

      . Officer Holmes insisted at trial that Mikay-lia told him Jemario was her boyfriend.

      . Jemario is actually Mikaylia’s brother and the defendant’s boyfriend.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. James Craig BENNETT, Appellant.
    No. 46,976-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Defendant-Appellant.
    Charles Rex Scott, District Attorney, John Aaron Crawford, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

|/The defendant, James Craig Bennett, was convicted of operating a vehicle while intoxicated, third offense. He was sentenced to serve five years at hard labor, with 75 days to be served without benefit of parole, probation, or suspension of sentence, and he was fined $2,000. The defendant appealed, claiming there was insufficient evidence to support his conviction. For the following reasons, we affirm the defendant’s conviction, and amend the sentence.

FACTS

In the evening hours of February 2, 2009, Emmett Carter, a part-time EMS worker and firefighter, saw a car on the side of Meriwether Road in Shreveport, Louisiana, in front of a church. He also saw a man, later determined to be the defendant, staggering on the driver’s side of the car and hanging over the car. The defendant looked intoxicated and his private parts were exposed. Mr. Carter called 911 and stayed in his truck until the police arrived. No one else was at the scene.

Officer Wiley Lee Lindsey of the Shreveport Police Department responded to the 911 call. Upon arrival at the scene, he saw the defendant le'aning against the driver’s side of the vehicle, passed out, with his private parts exposed. The motor of the vehicle was running and the door was open.

Corporal Michael Murphy of the Shreveport Police Department also responded to the 911 call. He arrived at the scene shortly before midnight. Two other officers were present and were just making contact with the defendant when Corporal Murphy approached. The area was on a two-lane |2road that was very dark. A church was located close by, but no one was present at that time of the night and the parking lot was closed off. Corporal Murphy observed a man he identified as the defendant, asleep, leaning against the vehicle. The driver’s door was open and the vehicle was running. The odor of alcohol was extremely strong on the person of the defendant, his eyes were glossy, his speech was slurred, and he was unable to stand without leaning. There was a puddle under the defendant at the driver’s door of the vehicle, the front of the defendant’s pants was wet, and his private parts were exposed. According to the officer, it appeared that the defendant had “slipped out of the door and done whatever he was going to do right there.” Corporal Murphy tried to talk to the defendant, but he refused to talk. No empty alcohol containers were found at the scene or in the car. Corporal Murphy stated that from his experience of dealing with alcohol-impaired people, the defendant was intoxicated.

Based upon safety concerns, Corporal Murphy took the defendant into custody and transported him to the Shreveport Police Department’s DWI testing facility. The vehicle was not impounded, but was secured in the area. Neither Corporal Murphy nor Officer Lindsey saw the defendant drive the car. The defendant was identified through his driver’s license and vehicle registration.

Corporal Kevin Anderson of the Shreveport Police Department was certified to administer field sobriety and Intoxilyzer tests. He came into contact with the defendant on February 2, 2009, at the police DWI facility. The defendant had a strong odor of alcohol, and was exhibiting emotional | Sswings, going from being very calm to very agitated. The defendant was unsteady on his feet and had bloodshot eyes. The officers read the defendant his Miranda rights and several field sobriety tests were administered. The results of the testing indicated that the defendant was intoxicated. The defendant was adamant that he was not driving the vehicle. He refused to take an Intoxilyzer breath test. He was arrested and charged with operating a vehicle while intoxicated, fourth offense.

The defendant was tried by jury in February 2011. The defense stipulated that the defendant had three prior convictions for operating a vehicle while intoxicated. Mr. Carter testified at trial along with Officer Lindsey, Corporal Murphy, and Corporal Anderson. Officer Lindsey identified a video recording of the incident recorded on his patrol unit’s MVS system. The video recording was admitted into evidence and played for the jury. The jury-found the defendant guilty of DWI, third offense. The defendant filed a motion for new trial and a motion for post verdict judgment of acquittal, arguing that his conviction was contrary to the law and evidence because there was no showing that he operated the vehicle, an essential element of the charge of DWI. The motions were denied by the trial court.

The defendant was sentenced to serve five years at hard labor; 75 days of the sentence were to be served without benefit of parole, probation, of suspension of sentence. The defendant was ordered to pay a fine of $2,000, and court costs. The sentence was ordered to be served consecutively with any other sentence. The defendant was granted credit |4for time served. A motion to reconsider sentence was filed by the defendant and denied by the trial court.

The defendant appealed, arguing that there was insufficient evidence to support his conviction.

SUFFICIENCY OF EVIDENCE

The defendant argues on appeal that there is not sufficient evidence to prove beyond a reasonable doubt that he operated his vehicle while intoxicated, an essential element of a conviction of operating a vehicle while intoxicated. This argument is without merit.

Legal Principles

The constitutional standard of review for sufficiency of evidence to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); La. C. Cr. P. art. 821. 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. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.p/25/09),;-, 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769.

When circumstantial evidence is used to convict, the statutory rule is that assuming every fact to be proved that the evidence tends to prove, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The circumstantial evidence rule does not establish a stricter standard of review than Jackson v. Virginia, but it emphasizes the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Nealy, 450 So.2d 634 (La.1984).

The offense of operating a vehicle while intoxicated is defined, in part, as the operation of any motor vehicle when the operator is under the influence of alcoholic beverages. La. R.S. 14:98. The term “operating” is broader than the term “driving.” Operating in some circumstances may mean handling the controls of a vehicle. The definition of operating, Lhowever, should not dictate the result in all cases. The result should be determined by the sufficiency of the evidence in each particular case. City of Bastrop v. Paxton, 457 So.2d 168 (La.App. 2d Cir. 1984); State v. Wiltcher, supra.

Several cases have discussed circumstantial evidence used to prove the offense of operating a vehicle while intoxicated. In State v. Lindinger, 357 So.2d 500 (La.1978), the Louisiana Supreme Court found that there was not sufficient circumstantial evidence to support a conviction of driving while intoxicated. The defendant was found resting against a pickup truck in a field 50 to 100 feet off the highway. The defendant appeared to be intoxicated and officers found a bottle of whiskey in the truck which was three-quarters empty. Skid marks indicated that the truck skidded off the highway into the field. The evidence did not show how long the defendant or the truck had been in the field, whether the defendant was driving the truck when it left the highway, or whether it could be inferred that the defendant was intoxicated at the time the vehicle left the highway. Without any showing of how long the truck had been in the field, there was a reasonable hypothesis that the defendant consumed the whiskey after the vehicle skidded off the highway.

In State v. Phinney, 460 So.2d 1188 (La.App. 2d Cir.1984), police were called to the scene of an accident in the early morning hours. The defendant was found standing near a vehicle that had crashed through a fence and was upside down with a broken windshield. The defendant appeared to be intoxicated. Other people were standing some distance 17away. The vehicle was registered in a slightly different name than the defendant. In finding insufficient evidence to support a conviction of driving while intoxicated, this court observed that it was not shown how long the vehicle had been off the highway, whether the defendant was related to the person in whose name the vehicle was registered, whether the defendant or others occupied the vehicle as driver or passengers, why the defendant was standing nearest the vehicle, whether the defendant was incoherent because he was drunk or because he was injured, how or when the defendant reached the scene, or whether, after arriving at the scene, the defendant consumed alcohol. See also City of Bastrop v. Paxton, supra and State v. Rutan, 448 So.2d 267 (La.App. 3d Cir.1984).

By contrast, some cases have found sufficient circumstantial evidence to support a conviction of driving while intoxicated. In State v. Phillips, 389 So.2d 1260 (La.1980), a state trooper observed the defendant’s pickup truck parked at an intersection with the rear wheels on the roadway and the front wheels on the shoulder, off the road. It was the middle of the afternoon and the truck’s lights were on. The defendant was seated at the steering wheel with his lower torso under the wheel and his upper body slumped on the seat. The defendant smelled strongly of alcohol and was barely conscious. The Louisiana Supreme Court found these facts distinguishable from State v. Lindinger, supra, and determined that this evidence excluded any reasonable possibility that some other person had driven the truck to that location and then abandoned it in that manner to the defendant, or that the defendant had driven to that location and, with his flights on and his rear wheels poking out into the roadway, begun drinking himself into a stupor.

Similarly in State v. Sims, 426 So.2d 148 (La.1983), the Louisiana Supreme Court found sufficient evidence to support a conviction of operating a vehicle while intoxicated. A law enforcement official spotted the defendant’s vehicle shortly after midnight on the shoulder of a highway. The headlights were on and the motor was running. The defendant was seated in the vehicle, under the steering wheel, slumped over and asleep. The officer got the defendant out of the vehicle and the defendant performed poorly on field sobriety tests. The defendant was arrested for DWI. An inventory search of the vehicle did not disclose any alcoholic beverage containers. Under these facts, the supreme court found that the only reasonable hypothesis was that the defendant operated his vehicle while intoxicated.

Discussion

In the present case, the evidence shows that the defendant was intoxicated when police responded to Mr. Carter’s 911 call and found the defendant leaning against his vehicle on the side of the road. It was late at night on a dark road, near a closed church. The officers testified that the defendant appeared to be intoxicated and smelled of alcohol. The recordings of the field sobriety tests also support the conclusion that the defendant was intoxicated. He does not argue that the evidence was insufficient to show that he was intoxicated. Rather, he contends that the prosecution failed to show that he operated the vehicle while intoxicated.

l9The defendant points out that another officer arrived on the scene before Officer Lindsey. That officer did not testify at trial. The defendant claims that there was no evidence to establish how long the car had been on the side of the road, whether the defendant had been in the car or whether he had driven it. According to the defendant, there was no evidence as to when he became intoxicated. He contends that there was no evidence whether there were alcoholic beverage containers on or near the defendant or his vehicle. The defendant argues that there was a gas station a mile from the scene and that someone could have left the defendant on the road drunk or the defendant could have parked his vehicle and then became intoxicated.

The defendant’s arguments are without merit. Corporal Murphy testified that he, Officer Lindsey, and another officer all arrived at the scene at about the same time. The defendant was leaning over the driver’s side of his own vehicle, the driver’s door was open, and the engine was running. The defendant had recently urinated. The ground by the driver’s door and the defendant’s clothing were still wet. Corporal Murphy testified that there were no alcoholic beverage containers in the vehicle or at the scene. The vehicle was registered in the defendant’s name. No other persons were located in or near the defendant’s vehicle.

The evidence shows that the defendant was intoxicated when the officers arrived at the scene. The defendant does not argue to the contrary. Further, strong circumstantial evidence establishes that the only reasonable hypothesis is that the defendant, while intoxicated, drove his vehicle to the | ^location where he was apprehended and therefore, he was guilty of operating his vehicle while intoxicated.

ERROR PATENT

We note that the trial court erred in the sentence imposed in this case. The trial court sentenced the defendant to serve five years at hard labor, with 75 days of the sentence to be served without the benefit of probation, parole, or suspension of sentence. The trial court also imposed a fine of $2,000. When this offense was committed, La. R.S. 14:98 provided that a person convicted of a third offense of operating a vehicle while intoxicated shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined $2,000. Forty-five days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. Therefore, the trial court erred in ordering that 75 days of the defendant’s sentence be served without benefit of probation, parole, or suspension of sentence.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882(A). The appellate court may notice sentencing errors as error patent. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. Therefore, we amend the defendant’s sentence to provide that only 45 days of the sentence be served without benefit of probation, parole, or suspension of sentence.

^CONCLUSION

For the reasons stated above, we affirm the defendant’s conviction, and amend and, as amended, affirm his sentence.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.