text:
    STATE of Louisiana v. Jose SIERRA.
    No. 11-KA-161.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Scott U. Schlegel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON, Judges.
   WALTER J. ROTHSCHILD, Judge.

|gOn June 10, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Sierra, with possession of cocaine in excess of 28 to 200 grams in violation of LSA-R.S. 40:967(F). Defendant pled not guilty to this charge at his arraignment on July 23, 2010. The trial court denied defendant’s motions to suppress the evidence and statement on September 23, 2010.

On October 25, 2010, defendant entered a plea of guilty as charged pursuant to State v. Crosby. On this same date, defendant was sentenced to six years imprisonment with the Department of Corrections. The first five years of the sentence was ordered to be served without benefit of parole, probation, or suspension of sentence.

Defendant now appeals on the basis of two assignments of error: 1) the trial court erred in denying his motion to suppress the evidence, and 2) the trial court |serred in denying his motion to suppress the statement. For the reasons stated herein, we affirm the conviction and sentence, but remand the matter to the trial court for correction of the commitment.

At the suppression hearing in this matter, JPSO Detective Elvin Módica testified that on the evening of April 22, 2010, he was assisting Detective Eric Boland and set up surveillance at the Best Buy on Veterans Highway in Metairie. Detective Módica explained that information was received from a reliable confidential informant (Cl) that a Hispanic male would be arriving at the Best Buy at 6205 Veterans Boulevard between 7:30 and 8:00 to deliver a quantity of cocaine in a silver Dodge Durango. According to Detective Módica, the informant gave Detective Boland a physical description of the Hispanic male. The informant said that the male was approximately 26 years old and about 5'8" with a heavy/large build. Because of this information, surveillance was set up during the time frame provided by the informant. Detective Módica testified that Detective Boland observed the vehicle arrive at Best Buy and a Hispanic male exited the vehicle while speaking on a cell phone. Detective Módica said at that point they decided to conduct an investigatory stop.

As Detective Módica and a second detective approached defendant, they identified themselves as police officers. Detective Módica said defendant appeared to get nervous. Detective Módica testified that defendant was holding a Marlboro cigarette box in his hand and “kind of turned and tried to discretely drop the box and began to walk away” from them. Detective Módica testified that he did not lose sight of the box after it was dropped. Defendant was detained. The second detective retrieved the Marlboro cigarette box and it contained an off-white powder inside that later tested positive for cocaine. Defendant was turned over to Detective Boland.

|4Detective Eric Boland testified that he had received specific information from a Cl, who had been used in the past many times and was paid by the Jefferson Parish Sheriffs Office, that a Hispanic male would be delivering a quantity of cocaine to the parking lot of Best Buy on Veteran’s Highway and would be arriving in a 2002 Dodge Durango. The Cl described the male as approximately 5'8" and as having a heavy-build. He testified that surveillance was set up in the parking lot and a vehicle matching the description given by the Cl arrived. He said that defendant matched the description of the male who was supposed to deliver the cocaine and that he exited the passenger side of the vehicle. He stood by his vehicle and immediately used his cell phone. He did not make any attempt to walk towards the store. It was decided that an investigatory stop would be conducted.

Detective Boland testified that defendant was advised of his rights, appeared to have understood them, and did not ask for an attorney. He said that they conversed in English and that there was no need for an interpreter, but out an abundance of caution, he obtained a Spanish interpreter. Detective Boland denied that defendant was forced, threatened, or coerced into making statements. He also denied that defendant was promised anything in exchange for his statement.

Detective Dmitri Ikonitski testified that he also assisted Detective Boland in this investigation. He explained that he was asked to assist as an interpreter because he is fluent in the Spanish language. He testified that he assisted with translation and in advising defendant of his rights. He stated that he advised defendant of his rights in Spanish and read the Miranda rights from a Spanish card. He testified that defendant was also asked if he understood his rights, and with these rights in mind, whether he wanted to answer questions and speak to the officers. He said that defendant responded positively. He said that defendant never requested an attorney. He testified that defendant was not forced, threatened |5or coerced into making a statement, but was cooperative. He also testified that defendant was not promised anything in exchange for making the statements. Detective Ikonitski testified that defendant fully understood his rights and voluntarily signed the waiver form, agreeing to speak with him.

Detective Ikonitski also obtained a consent to search from defendant. He identified his own writing in the Spanish consent to search form. Detective Ikonitski said he read the form to defendant and defendant had a chance to read the form and to comprehend its contents. Detective Ikon-itski testified that he went over this form with defendant, who was consenting and giving them permission to search the entire premises of his house at 424 Urban-dale Street, Apartment # 1, in Marrero. Detective Ikonitski testified that defendant was not forced, threatened, or coerced into signing the form and was not promised anything in exchange. Detective Ikonitski stated that defendant signed the form and freely allowed a search of his home.

Detective Ikonitski testified that Jennifer Rodrigue, who he believed was defendant’s wife or live-in girlfriend, also consented to a search of the residence. Detective Ikonitski identified the consent form and recognized his signature. He testified that no one forced, threatened, or coerced her into signing the form.

At the conclusion of the hearing, the trial court found no constitutional violations with the evidence seized, the search, or the statements given by defendant. The trial court denied all motions to suppress.

By this appeal, defendant raises two issues involving the trial court’s ruling on the motions to suppress. The State contends that these issues were not properly preserved for appellate review, and that the appeal should therefore be dismissed.

The record in this case indicates that defendant’s guilty plea was accepted pursuant to Crosby, which allows appellate review if, at the time the plea is Centered, defendant expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, 338 So.2d 584 (La.1976). Absent specification of the specific adverse ruling, the Louisiana Supreme Court has held that an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which go to the heart of the prosecution’s case, such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196.

In the present case, the transcript of defendant’s guilty plea indicates that, in entering the Crosby plea, defendant was “preserving for review his ability to go to trial on this case.” At the time of the Crosby plea, defendant failed to specify the errors in the motion to suppress ruling that he now advances on appeal. Nevertheless, in light of the decision in State v. Joseph, supra, we find that defendant’s failure to specify the adverse ruling limits the scope of the appellate review, but it does not preclude review altogether. As the rulings on the motion to suppress are evidentiary rulings which go to the heart of the prosecution’s case, we find that defendant’s pre-trial motions to suppress are reviewable on appeal.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to grant the defense’s motion to suppress the evidence because the evidence was illegally retrieved.

Defendant argues it was the officers’ intent upon their approach to arrest defendant. Defendant contends that if the Court considers that defendant was under arrest when the police decided to stop defendant, there was no probable cause, and if there was no probable cause, then the evidence should have been suppressed as fruits of the poisonous tree. Defendant further argues that even assuming this was considered a stop, the police lacked the requisite reasonable 17suspicion to make an investigatory stop. Defendant argues that the Cl’s tip was vague and the stop was premature. He contends that the police could not articulate suspicion that he committed, was committing, or was about to commit a crime. Defendant argues that the officers testified that nothing unusual or suspicious was observed prior to the decision to stop defendant. He argues that the police had no cause to stop much less approach defendant without any indication of suspicious activity. Defendant concludes that there was no reasonable suspicion to stop him and insufficient probable cause to arrest him, and therefore, the trial court erred in denying the motion to suppress.

The State contends that there was no actual or imminent stop at the time defendant discarded the cigarette pack and, therefore, the narcotics found inside the pack were abandoned when defendant threw it to the ground and the officers seized it. The State concludes that the trial court was not manifestly erroneous in denying defendant’s motion to suppress.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 09-508, pp. 4-5 (La.App. 5 Cir. 12/29/09), 30 So.3d 897, 901. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Loeb, 09-341, pp. 5-6 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 921, writ denied, 10-0681 (La.10/15/10), 45 So.3d 1110.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of proof. See LSA-C.Cr.P. art. 703(D). The trial court’s Ldecision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bellow, 07-824, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, 829. A determination of credibility lies within the sound discretion of the trial court and should not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as federal and state jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). A law enforcement officer may stop and question a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a criminal offense. State v. Sam, 08-220, p. 5 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577. Investigatory stops require reasonable suspicion of criminal activity. State v. Boss, 04-457, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. Sam, 08-220 at 5, 988 So.2d at 769. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. Boss, supra.

The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. Sam, supra. In determining whether an officer acted reasonably 19in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. A reviewing court must take into account the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes are factors that may support reasonable suspicion for an investigatory stop. Sam, 08-220 at 5-6, 988 So.2d at 769-70. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Loeb, 09-341 at 7, 34 So.3d at 922.

When evaluating the totality of the circumstances, a defendant’s evasive conduct in response to police presence is a factor that is accorded significant weight. State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 13. The Louisiana Supreme Court has recognized that it has expressly held or at least implied that the defendant’s flight from police officers is the most important factor in the totality of the circumstances analysis. State v. Morgan, 09-2352, (La.3/15/11), 59 So.3d 403, 408.

Under certain circumstances, an informant’s tip can supply reasonable suspicion to detain and question a person. State v. Francois, 04-1147, p. 6 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010. Generally, the informant’s tip must contain predictive information regarding the future behavior of the reported suspect, and the tip must be corroborated. Id. Whether an informant’s tip creates reasonable suspicion necessary to conduct an investigatory stop is determined under the totality of the circumstances. Id. An informant’s tip may provide reasonable suspicion for an investigatory stop if the tip accurately predicts the suspect’s future conduct in sufficient detail to support a reasonable belief that the |10informant possessed reliable information regarding the suspect’s illegal activity. The ability to predict the suspect’s future behavior goes towards reliability because it demonstrates inside information and a special familiarity with the suspect’s affairs. Id.

In applying the totality of the circumstances analysis, independent corroboration by police investigation of the details of an informant’s tip is valuable. Francois, 04-1147 at 6-7, 900 So.2d at 1010. Even a non-predictive anonymous tip coupled with either police corroboration or independent police observation of unusual suspicious conduct can supply police with the necessary reasonable suspicion to temporarily detain the suspect. Francois, 04-1147 at 7, 900 So.2d at 1010.

An arrest occurs when the circumstances indicate intent to affect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Bazley, 09-358, p. 27 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 24, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039. A seizure is an arrest, rather than an investigatory stop, when a reasonable person, in the defendant’s position would have understood the situation to be a restraint on freedom of movement of the degree that the law associates with a formal arrest. Id. An individual is seized within the meaning of the Louisiana Constitution when either he is “actually stopped” or when an “actual stop” of the individual is “imminent.” See State v. Tucker, 626 So.2d 707, 712 (La.1993).

“[I]f ... property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.” Belton, 441 So.2d at 1199. See also Loeb, 09-341 at 10, 34 So.3d at 924 (Property may be lawfully seized when it is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference).

In the present case, we find that the officers had reasonable suspicion to conduct an investigatory stop of defendant. The CI, who had been used by the officers in the past many times, provided information regarding the delivery of cocaine at a specific location and at a specific time, within a 30-minute time frame. The CI gave a description of the vehicle that the seller would arrive in, including the year, color, make, and model, and gave a description of the seller, including his ethnicity, age, height, and build. The police set up surveillance and corroborated the information provided by the CI, who had been used many times in the past. Defendant matched the description of the seller and arrived in a vehicle that matched the vehicle described by the CI. After defendant exited the vehicle, he did not proceed towards the store but instead stood outside of the vehicle and used his phone. Upon the approach of the officers, defendant appeared to get nervous and tried to discretely drop the Marlboro box and walked away from the officers. We find that the information from the CI, which was corroborated by the officers during surveillance in the parking lot, provided reasonable suspicion to conduct an investigatory stop of defendant. Further, defendant’s own actions upon the officers’ approach and their identification of themselves would have offered a further basis for suspicion. We also note that after defendant dropped the box containing cocaine, there would have been probable cause to arrest him, and we fail to find merit in his argument that he was arrested prior to this time.

We further fail to find that the officer’s actions constituted an actual or imminent stop. No testimony was elicited that the officers approached with drawn weapons or in a threatening or forceful manner. The record indicates that | ^defendant appeared nervous, dropped the cocaine, and attempted to walk away upon the officers’ approach and identification of themselves as officers. In State v. Jackson, 00-3083, pp. 2-3 (La.3/15/02), 824 So.2d 1124, 1126 (per curiam), the Louisiana Supreme Court held that “by merely identifying themselves as the police, before they asked respondent any questions, drew their weapons, or otherwise asserted their official authority over him, the officers had not yet ‘seized’ respondent when he discarded his cocaine packet.”

For the reasons stated herein, we find no error in the trial court’s ruling denying defendant’s motion to suppress evidence.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in failing to grant the defense’s motion to suppress the statement.

Defendant next argues that he was a Spanish speaking man who did not really speak or understand English, but was arrested and questioned in English. Defendant contends that he gave the police a statement and consent to search his home before they called the fellow officer to advise him of his rights in Spanish, using a Spanish form that defendant eventually signed. He contends that the recorded waiver is insufficient to convey to appellant the rights he possessed under Miranda, noting that it was signed after he gave a statement and after he gave consent for the police to relocate and search defendant’s home. Defendant concludes that the circumstances of this case fail to satisfy the knowing and intelligent waiver standard required and, therefore, the court erred in denying the motion to suppress.

The State argues that defendant’s claim that he was not advised of his rights in Spanish but rather was Mirandized only in English, which he claims he has limited comprehension of, has no merit. The State asserts that the record shows 11sdefendant was Mirandized in English, a language that he fully understands, and was also Mirandized in Spanish, his native language. The State notes that defendant’s counsel said that defendant speaks English and the trial judge noted that while in court defendant was seen engaging in a conversation with another inmate who was speaking English. The State contends that he was not coerced, threatened, or promised anything in exchange for his statement. The State claims that although defendant contends that the waiver of rights form was signed after defendant gave a statement, the record does not support this. It contends that the record shows that after seizing the abandoned cigarette box and, after learning the box contained drugs, defendant was Mirandized and arrested. The State further contends defendant gave a statement only after waiving his rights with a waiver in which he fully understood.

The State has the burden of proving the admissibility of a purported confession or statement by the defendant. State v. Arias-Chavarria, 10-116, p. 11 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 433, writ denied, 10-2432 (La.2/25/11), 58 So.3d 460 (citing LSA-C.Cr.P. art. 703(D)). Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. Arias-Chavarria, 10-116 at 11-12, 49 So.3d at 433. See also LSA-R.S. 15:451.

A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and the judge’s | ^conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id., 10-116 at 12, 49 So.3d at 433. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. Id.

Initially, it is noted that defendant filed a written motion to suppress his statement that simply and generically argued that his statement was “illegally and unlawfully obtained.” Further, at the conclusion of the suppression hearing, without further argument, defense counsel said he “would submit based solely on the testimony.” As such, we find that defendant is raising this more specific argument for the first time on appeal.

A defendant bears the burden of asserting the basis for his motion to suppress in order to give the State adequate notice so that it may present evidence and address the issue. State v. Lobo, 11-51, 2011 WL 5061411 at *7 (La.App. 5 Cir. 10/25/11). After the defendant files a motion to suppress, the state has the burden to prove the defendant’s confession was of a free and voluntary nature. Therefore, the defendant is limited, on appeal, to the grounds he articulated at trial; a new basis for the claim, even if it would be meritorious, cannot be raised for the first time on appeal. Id.

Nevertheless, after considering the circumstances of this case, we find that defendant’s statement was freely and voluntarily made after a knowing and intelligent waiver of his constitutional rights. Detective Ikonitski and Detective Boland both testified that defendant indicated that he understood his rights he was waiving. Testimony was presented that defendant was not forced, threatened, or coerced into making a statement. Further, testimony was presented that defendant was not promised anything in exchange for his statement. Detective Ikonitski 11f,testified that defendant fully understood his rights and voluntarily signed the waiver of rights form, agreeing to make a statement. Detective Boland also testified that defendant was advised of his rights and appeared to have understood his rights. Although defendant argues that he “did not really” speak or understand English, the record indicates that defendant was advised of his rights in English and in Spanish through the use of an interpreter. Defendant suggests that he gave his statement and consent prior to being advised of his rights in Spanish. Even if the transcript supported this contention, Detective Boland testified that he and defendant conversed in English and said that there was no need for an interpreter, but only obtained one out of an abundance of caution. The judge’s conclusions on credibility relating to the voluntary nature of the statement are entitled to great weight, and the testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. See Arias-Chavarria, 10-116 at 12, 49 So.3d at 433.

Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress defendant’s statement.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The following matter was discovered:

|1(iThe commitment describes the offense as “40:967.F F II POSS/WITD CDS OVER 28 GRAMS — poss. cocaine in excess of 28 to 200 grams.” The transcript reflects that defendant actually pled guilty to possession of 28 to 200 grams of cocaine in violation of LSA-R.S. 40:967(F). The commitment appears confusing in that it suggests that the offense could be possession with intent to distribute. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore remand this case for correction of the commitment to accurately reflect the offense. See State v. England, 09-746, p. 11 (La.App. 5 Cir. 3/9/10), 38 So.3d 383, 390.

Accordingly, we remand this case to the district court for correction of the commitment for this error. We hereby direct the district court to make the entries in the commitment reflecting the changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam). We also direct that the minute entry be sent to the Department of Correction’s Legal Department.

For the reasons stated herein, defendant’s conviction and sentence are affirmed. The case is remanded with instructions as set forth herein.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS

      . 338 So.2d 584 (La.1976).

      . See Tucker, 626 So.2d at 712-13, for a discussion of factors to consider in determining if an actual stop is "imminent."

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . In the present case, after the suppression hearing, a contempt hearing was conducted. The record reflects that the judge believed that defendant was speaking to someone next to him in court and understanding the person who was speaking English. The judge specifically stated ”[h]e lied and said he wasn’t talking, which is really interesting that we have an interpreter because he doesn’t understand me, but he understands the guy next to him that’s speaking English, and he understood Detective Boland on the scene." Defendant's counsel commented that defendant did speak English, but just not "anywhere near as well as he speaks Spanish.”


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James PERKINS.
    No. 11-KA-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Scott U. Schlegel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|?Defendant, James Perkins, appeals his convictions and sentences for sexual battery upon a juvenile and indecent behavior with a juvenile. For the following reasons, we affirm defendant’s convictions and sentences and remand this matter with instructions to correct an error patent.

STATEMENT OF THE CASE

On March 10, 2010, the Jefferson Parish District Attorney’s office charged the defendant, James Perkins, with one count of sexual battery upon a known juvenile (Count One) and one count of indecent behavior with a juvenile (Count Two), violations of LSA-R.S. 14:43.1 and LSA-R.S. 14:81 respectively. The defendant pleaded not guilty at arraignment.

On June 2, 2010, a jury trial was held in this matter. At the conclusion of the trial, the jury returned verdicts of guilty as charged as to Count One and Count |aTwo. The defendant filed a motion for a new trial, which the trial court denied immediately prior to sentencing on June 17, 2010. After the defendant waived sentencing delays, the trial court sentenced the defendant to a term of two years imprisonment “in the Department of Corrections” without benefit of parole, probation, or suspension of sentence on Count One. The trial court sentenced the defendant to a term of imprisonment of two years “in the Department of Corrections” on Count Two.

The defendant filed a motion to reconsider sentence, which the trial court denied immediately. Defendant now appeals his convictions.

FACTS

B.H., the victim in this case, testified that she was 15 years old at the time of trial. B.H. testified that the defendant had lived with her and her mother, R.H., for about fourteen years and that she considered the defendant to be a father figure.

While B.H. was on the witness stand, the State played a recording of a statement that she gave to Stacie Lansa of the Jefferson Children’s Advocacy Center (“CAC”) on December 9, 2009. In the recording, B.H., related several “incidents” that had occurred between her and the defendant, who she referred to as her “stepdad.” B.H. informed Ms. Lansa that the defendant “used to touch” her and that the defendant had touched her inappropriately on about five occasions. B.H. also noted that the defendant touched her on her chest and between her legs with his hands.

B.H. indicated to Ms. Lansa that the first “incident” occurred when she was in the sixth grade and that she and her sister, B.P., were asleep in her mother’s bed. B.H. reported to Ms. Lansa that she awoke during the night to the defendant’s hand underneath her clothes and touching the outside of her vagina on the skin. B.H. did not do anything and eventually went back to sleep.

|4In her recorded statement, B.H. recounted other instances where the defendant touched her or behaved in an inappropriate manner. B.H. recalled an incident where she had gotten out of the shower and was wearing a towel after leaving the bathroom. When she walked out of the bathroom, the defendant “grabbed the top of [the towel] and just pulled it off.” B.H. told Ms. Lansa that she was not wearing anything under the towel.

B.H. additionally indicated to Ms. Lansa that the defendant pulled her shirt at the top and looked down her shirt a “few times” and that he would pull her shirt and let go.

B.H. also recalled an incident where she and the defendant were on the couch watching television and “tickling” each other by poking each other in the sides. B.H. said that the defendant pushed her down on her side, then got on top of her, opened her legs, and started kissing her on her neck. B.H. responded by biting the defendant on his shoulder.

B.H. estimated in the recorded statement that she was around 13 years old when the last incident occurred. B.H. indicated to Ms. Lansa that the first person that she told of these incidents was her boyfriend at the time.

At that point, the statement ended and B.H. resumed her trial testimony. B.H. testified that she told her school counselor, Ms. Bose, that “something had happened between [her] and the defendant.” According to B.H., she told Ms. Bose what she believed to be the truth at the time, but she was not sure at trial that what she told Ms. Bose was entirely accurate. B.H. also admitted that she could not recall what she told Ms. Bose, nor could she recall when she talked to Ms. Bose. B.H. also indicated that she told her psychologist, Dr. Varnado, her mother, and teachers at her school what she believed to be the truth at the time.

|fiB.H. repeatedly stressed at trial that she was uncomfortable testifying as to what had happened between her and the defendant. However, B.H. did acknowledge in her trial testimony that there were two “incidents” that took place between her and the defendant. The first incident occurred when B.H., R.H., and the defendant lived at 429 Avenue B in Marrero. B.H. indicated that the second incident occurred at 1745 Penny Street in Marrero. B.H. testified that she thought the first incident may have been a dream because “it happened in the middle of the night and I don’t know if I actually woke up or not.” However, she was awake for the second incident. B.H. acknowledged that she told Ms. Lansa “exactly what happened” during the recorded statement.

On cross-examination, B.H. testified that she began having difficulties at school in 2010, at which time she began seeing Dr. Varnado. She also indicated that she did not think that the defendant sexually assaulted her in any way.

On redirect, B.H. admitted that the “dream thing came up first only about ... a few months ago.” According to B.H., her mother found out that she had seen the school counselor when her mother began reading the text messages on her cell phone. The prosecutor then asked B.H. if she had been truthful in speaking with Ms. Bose, her school teachers, Ms. Evans, a child protection investigator, her mother, and the police officers. B.H. responded that she had been truthful to each of these individuals about the incident in the middle of the night. She also testified that she had testified to the truth under oath and thought the incident had happened when she told the story before, but now did not think it had happened.

Sylvia Bose, B.H.’s school counselor, testified that she spoke with B.H. sometime in 2008. When Ms. Bose spoke to B.H., B.H. disclosed that her stepfather had sexually abused her in the past and that “she was having trouble | ^dealing with it.” Ms. Bose did not contact the authorities because “it was not an ongoing situation.”

R.H. testified that she lived with the defendant for ten years and that they had one child together. According to R.H., in 2004, she was working nights at Wal-Mart while the defendant stayed home with the children. R.H. testified that B.H. would have been approximately 11 years old at the time.

R.H. testified that she discovered the allegations of sexual abuse by reading a text message on her daughter’s cell phone. R.H. asked her about the text message, and B.H. told her “a part of it.” Ms. Bose called R.H. approximately one week later and told R.H. what B.H. had told her.

R.H. testified that after speaking with Ms. Bose, she threw the defendant out of the house for approximately two weeks. She did not call the police or the Office of Community Services because “deep down inside [she] did not think that he did it.” R.H. testified that OCS informed the police of B.H.’s allegations. According to R.H., B.H. began seeing Dr. Varnado in 2008 because she was having anxiety attacks.

On cross-examination, R.H. testified that in 2008, B.H. had a cell phone and often stayed up late talking on the phone and sending text messages. R.H. admitted that the defendant took B.H.’s phone away and that B.H. was “very mad” afterwards. This precipitated a fight, which occurred before R.H. spoke to Ms. Bose.

Kay Evans, a child protection investigator with the Jefferson Parish Office of Community Services testified that in November of 2009, she investigated the allegation of sexual abuse relating to B.H. Ms. Evans responded to R.H.’s home and interviewed B.H. and R.H. She described B.H.’s demeanor as “somber” and indicated that R.H. was “not happy with [her] being there, but was as cooperative |7as she needed to be” for the investigation. R.H. told Ms. Evans that she did not report the alleged abuse to OCS because she did not want the defendant to be out of the home for financial reasons. According to Ms. Evans, B.H. recounted her story twice and was consistent both times.

On cross-examination, Ms. Evans testified that she spoke to R.H. about the alleged abuse and that R.H. told her that she did not believe that abuse had occurred.

Robert A. Varnado, a psychiatric mental health nurse practitioner, testified that he met with B.H. in November of 2009 for a psychiatric evaluation. B.H. reported to Dr. Varnado that she was anxious, had a loss of interest and stamina, was having trouble falling asleep, and was having thoughts of death. Dr. Varnado diagnosed B.H. as suffering from major depression at that time.

Dr. Varnado met with B.H. several other times. Dr. Varnado testified that during their second visit, B.H. told him that she wanted to talk to him alone. B.H. proceeded to tell Dr. Varnado that her mother’s boyfriend had fondled her by touching her breast and vagina more than a year prior to the meeting. B.H. wanted Dr. Varnado to “do something about it.” Dr. Varnado prescribed Lexipro, a SSRI anti-depressant drug, to treat B.H.’s depression. He also “started the process of trying to notify child protection.”

The defendant testified that he had never touched B.H. in a sexual manner. The defendant maintained that the sexual assault allegations resulted from arguments over B.H.’s use of her phone and wanting to date. The defendant claimed that the victim was “occasionally” vindictive, and he contended that she would make up an allegation of sexual abuse in order “to be on the phone with her boyfriend.”

\ ASSIGNMENT OF ERROR NUMBER ONE

In his sole assignment of error, the defendant contends that the evidence presented by the State at trial was insufficient to sustain convictions for sexual battery upon a known juvenile and indecent behavior with a juvenile. He contends that the evidence used to convict him was insufficient because B.H. “recanted” the testimony she gave during the CAC interview and “denied her allegations no less than 26 times during the trial.”

The State disputes that B.H. “recanted” her testimony. The State argues the victim consistently maintained that she told the truth at the time of all of her previous statements. The state maintains that the minor victim’s reluctance to testify and recently developed willingness to consider part of the charged conduct to possibly be a “dream” did not stem from a lack of accuracy or candor as to her earlier reports of sexual abuse. Rather, as her testimony evidenced, B.H. was a conflicted young teenager at the time of trial who had suffered sexual abuse by a loved one and was subject to the pressures placed upon her by such a situation. The State contends that the jury chose to credit B.H.’s earlier testimony rather than that of the defendant.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

The defendant was convicted of sexual battery upon a known juvenile, a violation of LSA-R.S. 14:43.1. At the time of the offenses, LSA-R.S. 14:43.1(A) pertinently defined sexual battery as the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of |9the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained 15 years of age and is at least three years younger than the offender.

The defendant was also convicted of indecent behavior with a juvenile, defined as, in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person;
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense;

LSA-R.S. 14:81.

Accordingly, to convict a defendant of indecent behavior with a juvenile, the State must prove that (1) the defendant was over the age of seventeen and more than two years older than the victim, who was not yet seventeen; (2) the defendant committed a lewd or lascivious act upon the person or in the presence of a child; and (3) that the defendant intended to arouse or gratify either his own or the victim’s sexual desires. State v. Schenck, 518 So.2d 1159, 1165 (La.1987).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier-of-fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La.App. 5 Cir.5/31/05), 904 So.2d 816, 823, writ denied, 2005-2591 (La.5/26/06), 930 So.2d 20. With sexual offenses, the victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even if the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243 (La.App. 5 Cir.11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

The defendant contends that B.H.’s testimony was not reliable and that the jury erred in giving it more weight than that of the defendant. In State v. Johnson, 97-1519 (La.App. 4 Cir. 1/27/99), 726 So.2d 1126, writ denied, 99-0646 (La.8/25/99), 747 So.2d 56, the defendant was charged with raping his daughter, C.G. C.G.’s mother testified that while doing laundry she noticed stains on C.G.’s underwear. Later C.G. complained of burning in her genital area, and her mother took her to Charity Hospital for a physical exam and tests, where she tested positive for gonorrhea. Id. at 1128-29.

At trial, C.G. testified: “I had a dream — I don’t know if it’s a dream or it’s not a dream. He had on a black like a ninja outfit, and he came in [her sister’s bedroom], and he climbed on top of me.” Id. at 1129. C.G. said she did not tell anyone about the “dream” until she went to the hospital, where she told her mother. Id. at 1130.

On appeal, the defendant argued the evidence was insufficient to convict of aggravated rape of C.G. because C.G. testified that she did not know whether “it’s a dream or it’s not a dream.” Id. at 1132. The Fourth Circuit disagreed, holding that “the evidence in the light most favorable to the prosecution ... was sufficient to convict of the aggravated rape of C.G.” Id.

In State v. Holley, 01-0254 (La.App. 3 Cir. 10/3/01), 799 So.2d 578, the victim testified that the incident occurred when she accompanied the defendant to look at some calves to purchase. She claimed that, on the way to look at the calves, the defendant raped her. Id. at 581-82. In support of the victim’s testimony, the State presented evidence from a social worker with OCS and the |nvictim’s babysitter, both of whom testified that the victim told them that the defendant raped her. Id. at 582.

In an attempt to discredit the victim’s testimony, the defendant presented evidence that the victim recanted her story of the alleged rape on several occasions. The defendant introduced the testimony of several witnesses who heard the victim state that the rape incident did not happen. Id. The defendant also testified on his own behalf.

On appeal, the Third Circuit held that the evidence was sufficient to support a conviction for attempted forcible rape, reasoning:

Here, the trial judge, as the trier of fact, was presented with the contradictory testimony of the victim and the defendant regarding the events of March 23, 1996. Ultimately, the trial judge chose to accept [the victim’s] version of events, finding the defendant guilty of attempted forcible rape. As stated previously, it is the primary function of the factfin-der to weigh the respective credibility of each witness, and the resulting credibility determinations should not be second-guessed on appeal beyond the sufficiency evaluations under the Jackson standard of review.
Therefore, after viewing the facts of this case in the light most favorable to the State, we find no clear error in the trial judge’s decision to credit [the victim’s] testimony or in the determination that the State carried its burden of proving the essential elements of attempted forcible rape. This assignment of error is without merit.

Id. at 583 (citations omitted).

In this case, the jury was confronted with conflicting testimony offered by defendant and various witnesses for the State. The defendant testified that he never touched B.H. inappropriately. B.H. testified in her statement to Ms. Lansa that the defendant had rubbed the outside of her vagina with his hand on several occasions. B.H. also testified in her statement to Ms. Lansa that the defendant held her down and began kissing her in a romantic way on another occasion. Dr. Var-nado testified that B.H. told him that the defendant had touched her breast and | |2vagina inappropriately. Ms. Bose testified that B.H. told her that she was suffering from “some past abuse issues.”

The defendant denied that he touched B.H. inappropriately. He contends that B.H.’s trial testimony is not credible because she “recanted” the story she told in the recorded statement with Ms. Lansa. However, B.H. did not testify that the previous statement that she gave to Ms. Lansa was not true. B.H.’s trial testimony indicates that she told Ms. Lansa, Ms. Bose, and Ms. Evans the truth, as she perceived it to be at the time. B.H.’s trial testimony further indicates that she now believes that the events she described to Ms. Lansa may not have occurred and that she may have merely “dreamed” that they occurred.

Evidently, the jury chose to believe the recorded statement and the State’s other witnesses. It is manifest that the trier-of-fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to assess the credibility determinations of the trier-of-fact or to re-weigh the evidence. Id.

Therefore, we find that, viewing the evidence in a light most favorable to the State, the evidence presented was sufficient to convict the defendant of sexual battery upon a known juvenile and indecent behavior with a juvenile. B.H. indicated that the defendant touched and rubbed her vagina with his hand. Such is sufficient to sustain a conviction for sexual battery. B.H. also indicated that the defendant held her down and kissed her on her neck, which is sufficient to sustain a conviction of indecent behavior with a juvenile. Accordingly, we find that the evidence presented on both counts was sufficient and that this assignment of error has no merit.

\ rJERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review notes one error patent for correction.

There are two discrepancies between the commitment and the transcript, to wit:

(1) The transcript indicates that the defendant was sentenced to terms of imprisonment “in the Department of Corrections.” The commitment indicates that the defendant was sentenced to terms of imprisonment at hard labor.
(2) The commitment indicates that the trial court informed the defendant of his Boykin rights and that the defendant executed a waiver of rights form. The transcript does not reflect either.

The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this matter to the trial court with instructions to amend and correct the commitment to conform to the transcript.

Accordingly, defendant’s convictions of sexual battery upon a known juvenile and indecent behavior with a juvenile, as well as his sentences, are affirmed. This matter is remanded for corrections, as noted in the error patent review above.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Kevin BESSE.
    No. 11-KA-230.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Kevin Besse, In Proper Person, Cotton-port, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12Defendant/appellant, Kevin Besse (“Besse”), appeals his conviction of two counts of criminal activity, as well as his adjudication and sentence as a fourth felony offender.

Besse was charged with two counts of home invasion in violation of La. R.S. 14:62.8. Besse entered a plea of not guilty at the arraignment. Afterward, the State amended the bill of information to change the offenses charged to two counts of unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3. The matter was tried before a six-person jury, and Besse was found guilty of criminal trespass on Count 1 and guilty as charged on Count 2. The trial court sentenced Besse to thirty days in parish prison on Count 1 and to imprisonment at hard labor for six years on Count 2. The sentences were made to run concurrently.

^Subsequently, the State filed a multiple offender bill of information alleging that Besse was a fourth felony offender. Besse denied the allegations in the multiple bill. After a hearing on the matter, the trial court found Besse to be a fourth felony offender as charged. The court vacated the “previous sentence” and imposed an enhanced sentence of thirty years at hard labor without benefit of probation or suspension of sentence. A timely appeal motion was granted by the trial court.

FACTS

Anastasia Rey (“Rey”), William James (“James”), and Besse met each other while they were patients at River Oaks Hospital undergoing substance abuse treatment. When Rey, age 29, and James, an elderly gentleman, were released from River Oaks, they decided to rent a duplex together at 546 Orion in Jefferson Parish. Besse was released shortly thereafter and contacted Rey. He and Rey had a brief romantic relationship. During that time, Besse stayed with Rey overnight at her house on Orion, but he never moved into that house. Rey testified that she did not like Besse’s possessive and controlling behavior, so she ended their relationship and asked Besse to leave the house.

Besse refused to leave the home, so Rey left with James and instructed Besse to get his clothing and other belongings and leave her house by the time she returned. Rey and James left and drove around the neighborhood. They both agreed that Besse was “shady” and should not be in their house. While they were talking, Rey noticed that James’ cell phone was on and that Besse was listening to everything they were saying.

Rey and James went to a bar near their house called “Mama’s Place” to give Besse time to leave the house. While she was playing video poker, James was sitting next to her drinking. At some point, Besse walked into the bar and punched 14James in the face. The bartender told Besse to leave, which he ultimately did, and the bartender called the police.

When Deputy Jason Melito of the Jefferson Parish Sheriffs Office arrived, he asked James if he wanted to press charges, but James declined to do so. At that point, Besse called Rey’s cell phone. Deputy Melito got on the cell phone and told Besse that Rey did not want anything to do with him, and if Besse was found at her house, he would go to jail.

After the officer left, Rey and James went home. James, who was drunk, stayed outside in the car and smoked cigarettes. Rey walked inside the house to change clothes. She went into her bedroom, turned on the television, and sat on the futon to watch it. Suddenly, Rey saw Besse standing in the doorway. Besse told Rey she was going to talk to him now. Rey “freaked out” and tried to go to the door, but, when she reached for it, Besse grabbed her and started wrestling with her. Besse was choking her, and they struggled all the way to the front room. Besse had his arm around her throat starting to cut off the air.

Rey said to Besse, “You’re going to kill me,” and he replied, “Yeah, Pm going to f. ..eking kill you.” She kept trying to open the [front] door with her arms and legs, because she thought Besse would kill her if the door closed. Rey, who was screaming, was able to get out of the house. She opened the passenger side door of her car and screamed for James to help her; however, James was “out of it.” At that point, Besse jumped in the front seat, and Rey took off running. Her cell phone was not working so she ran to Mama’s Place and asked the bartender to call the police, which she did.

IsRey was shaken up, her shirt was ripped, she was barefoot, and her pants were covered in grass. She was sore all over her body, and she had fingerprints around her neck and a bruise on her leg. Deputy Melito responded to the call at Mama’s Place, and he and Rey drove back to the house.

Other officers, who were already there, had searched the interior of the house, but they could not find anyone there. At that time, Rey told the officers to check the passenger side door of her car for James. They found James slumped over and unconscious. His face was beaten and “unrecognizable.” He had a severe laceration to his right eye, and severe swelling to his face and left eye. An ambulance was called, and James was taken to the hospital.

Meanwhile, Rey followed the detective in her car to the bureau and gave a statement. Afterward, Rey went back home. At Deputy Melito’s suggestion, Rey called 911 to ask them to send an officer to her house to walk through it with her before she entered the house. While Rey was waiting for the officer to arrive, she noticed that Besse had sent her several text messages, which were: (1) “I was not going to hurt you. I do love you. Sorry. I just want to talk and be friends;” (2) “From Kevin, James attacked me in the car;” (3) “Please call me!;” (4) “Do you know he was drinking? I bet not;” and (5) “I will not ever hurt you, and I did not. I just want to talk. Please forgive me.”

Deputy Carey Dials eventually arrived at the house, and Rey showed her the text messages from Besse. Afterward, Rey and Deputy Dials went inside the house. Rey went into a spare room and opened the closet. When she did so, the equipment began moving and Besse jumped out. Rey screamed, alerting Deputy Dials who came in and handcuffed Besse. Besse identified himself to the officer as “Steven.” The deputies noticed that Besse had a severe laceration on the knuckle of his right hand. When Deputy Melito asked Besse for his address, Besse |fisaid he had lived at the Orion house for a week, but his current address where he had lived for the longest time was 2429 Idaho Street in Kenner.

Besse testified that, when he was released from River Oaks, he and Rey began living together on Lake Avenue for a couple of weeks, but they were trying to find a larger place for him, Rey, and James to live. Besse explained that he was not involved in getting the house on Orion and that house was “strictly” Rey and James’, and he did not want “any part of that.” Besse claimed that Rey did not feel comfortable with James, and she would not move into the Orion house unless Besse moved in with them, so he did.

Besse asserted that James rented the Orion house, that Besse and Rey moved into that house together, and that the three of them lived there for approximately two or three weeks. He claimed that he gave Rey $300 for rent. Besse admitted he got into a conflict with James one time that night at Mama’s Place and slapped him on the side of the face because James allegedly gave Rey $900, and Besse was concerned Rey would use that money for drugs. He denied punching James at Mama’s Place.

Besse testified that the three of them “relapsed” on the day in question and that led to problems and a big fight. He denied talking to a deputy on the cell phone. After Besse left Mama’s Place, he went home to the Orion house. Rey came in, and Besse said he needed to talk to her about James’ drinking. Besse denied that he and Rey had a physical conflict. He testified that he just wanted to talk to Rey, but she would not talk to him, so he grabbed her arm when she tried to go out the door. Besse explained that he was not trying to hurt her, but trying to get her attention. He denied that Rey asked him to leave and not come back.

Besse admitted texting Rey a few times that night. He explained that he was in the closet because Rey had him sleep there when he snored since they had no 17furniture other than her futon and the bed Besse gave to James. He tried to tell the deputy why he was in the closet and that he lived in the Orion house, but the deputy kept telling him to “shut his mouth.” Besse denied causing the injuries to James’ face, and he suggested that James might have sustained those injuries by falling down while he was drunk. He stated that James needed a cane, but did not have it that night. Besse explained that the injury to his knuckle occurred when he broke a beer bottle at the bar and tried to pick it up. He also explained that he was being sarcastic when he told the officer his name was “Steven,” as Rey knew who he was.

Besse testified that he did not sign a lease or a sublease, but he had a verbal contract to stay at the Orion house. He admitted that he had prior convictions and that he had pled guilty to second degree battery, cruelty to the infirmed, battery, violating a protective order, worthless checks, and shoplifting.

LAW AND ANALYSIS

In a pro se brief to this Court, Besse assigns two errors for our review. In the first, Besse argues that the evidence was insufficient to prove that he committed unauthorized entry of an inhabited dwelling. He contends that he did not have the specific intent to enter the residence because he was already in the residence and never left it on the day in question. Besse further contends that the State failed to exclude every reasonable hypothesis of innocence because the State did not sufficiently prove that he did not pay rent and that he and Rey were not living together. He asserts that the State did not prove that James, the lessee, had |8not given him authorization to live at the Orion residence. Besse further asserts that, because Rey did not own or lease the residence, she could not give authorization for anyone to occupy the home in which they all lived.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.

In cases involving circumstantial evidence, the trial court must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

Besse was charged with two counts of unauthorized entry of an inhabited dwelling. He was convicted of the lesser included offense of criminal trespass on the first count and guilty as charged on the second count. He does not challenge the sufficiency of the evidence with respect to his criminal trespass conviction.

Unauthorized entry of an inhabited dwelling is defined by La. R.S. 14:62.3(A) as the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person. An unauthorized entry is an entry |9without consent, express or implied. In the case of a private residence, a person must have the consent of the occupant or an occupant’s agent to constitute a defense to unauthorized entry. Unauthorized entry of an inhabited dwelling requires general intent. General criminal intent is present when the circumstances indicate that the offender “in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act.”

At trial, the jury apparently found the State’s witnesses to be more credible than Besse. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal.

Upon review, we find the evidence, as accepted by the jury, shows that Besse entered Rey’s residence without authorization. Rey clearly told Besse that she wanted him to leave the house and take his belongings with him. The officer also told Besse on the phone that Rey did not want anything to do with him and that he should not go back to Rey’s house. Nevertheless, Besse returned and entered the house thereafter on two occasions without permission. Accordingly, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support his conviction for unauthorized entry of an inhabited dwelling. This assignment is without merit.

In his second assignment of error, Besse argues the trial court erred in admitting evidence of other crimes. Specifically, Besse’s argument is that photos |10of injuries sustained by James on the day of the incident were only meant to inflame the jury and were more prejudicial than probative.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule.

Evidence that constitutes an integral part of the crime, formerly known as “res gestae,” is admissible without any prior notice to the defense. A close con-nexity is required between the charged and uncharged conduct to assure that the purpose served by admission of the other crimes evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place, rather than to depict the defendant as a bad man. Evidence constituting an integral part of the crime includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, provided a continuous chain of events is evident under the circumstances. As recognized by this Court,

The test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State’s case of narrative momentum and cohesiveness, “‘with power not only to support conclusions but to |nsustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ”

The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Clearly, evidence of other crimes or bad acts is prejudicial since all evidence which tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence will not be disturbed.

After some discussion, the trial court allowed the officer to testify to the physical condition in which James was found during the investigation of the crime. The trial court also allowed certain photos of James to be shown to the jury.

Defense counsel argued that the photographs showed a crime not included in the crimes charged. The prosecutor responded that this evidence was “res gestae,” as it occurred during the middle of the home invasion, and it was a single course of criminal conduct. The trial judge asked to see the photograph before it was admitted. She said she would have to determine whether the probative value outweighed the prejudice. The prosecutor commented that the photographs were highly probative of authorization, that he had already informed the jury they were going to see the photographs, and that there was no objection by the court or the defense at that time. After hearing arguments of counsel, the trial judge ruled that |12the photographs supported the credibility of the police officer as to what he observed, and she allowed them to be admitted.

Deputy Melito then testified at trial that State’s Exhibits 1 through 4 depicted James and the injuries he observed on James when he saw James in the car. Deputy Melito explained that the photographs showed a severe laceration to the right eye and severe swelling to James’ face and left eye. He further explained that James was going in and out of consciousness, and he dispatched for medical and crime scene technicians to come out.

We find the trial court correctly admitted the evidence under the “res ges-tae” or integral act evidence rule since the attacks on James occurred during one continuous chain of events that night. The testimony indicates that Besse punched James in the face at the bar before going back to the house the first time and that Besse got into the car with James and severely beat him after Besse tried to strangle Rey, but before Besse re-entered the house a second time. There was a close connexity between the charged and uncharged conduct, which assured that the purpose served by admission of the evidence in question was to complete the story of the crime on trial by proving its immediate context of happenings near in time and place, rather than to depict the defendant as a bad man.

This assignment is meritless.

Besse also assigns two errors through appellate counsel. In the first, he asserts the trial court erred in adjudicating him as a fourth felony offender. We find merit in this assignment.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was | ]¡¡convicted of the prior felonies. The latter can be established through the use of expert testimony that the defendant’s fingerprints match those from the prior convictions.

This Court has found sufficient linkage where the State connects the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers. Identification of the accused may also be by testimony of witnesses or by photographs contained in the duly authenticated record

When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status and the defendant denies the habitual offender bill, the State’s burden of proof is governed by State v. Shelton, Under Shelton, it is initially the State’s burden to prove: 1) the existence of the prior guilty pleas; and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such a showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived his right to trial by jury, his privilege against self-incrimination, and his right of confrontation.

114If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.”

On September 24, 2010, the State filed a multiple bill alleging that Besse was a fourth felony offender with the following prior convictions: (1) guilty plea on December 4, 2008, to a violation of La. R.S. 14:71 (issuing worthless checks) in case number 07-1109 in the Twenty-Fourth Judicial District Court; (2) guilty plea on March 20, 2002, to a violation of La. R.S. 14:34.1 (second degree battery) in ease number 00-6451 in the Twenty-Fourth Judicial District Court; (B) guilty plea on April 14, 1999, to a violation of La. R.S. 14:67.10 (theft of goods) in case number 98-363 in the Twenty-Fourth Judicial District Court; and (4) guilty plea on July 17, 1997, to a violation of La. R.S. 14:93.3 (cruelty to the infirmed) in case number 95-4526 in the Twenty-Fourth Judicial District Court.

Besse denied the allegations in the multiple bill.

At the multiple bill hearing, Deputy Chris Jones of the Jefferson Parish Sheriffs Office testified that he was the bailiff in Division “K” on September 14, 2010, and he was present during the jury trial in the instant case when Besse admitted to having convictions for second degree battery, cruelty to the infirmed, simple battery, violating a protective order, issuing worthless checks, and shoplifting. He identified State’s Exhibit 1 as an accurate transcript of those proceedings. The State also introduced at that hearing copies of Besse’s prior convictions, State’s Exhibits two through five, which corresponded to the case numbers contained in the multiple bill.

| ir,State’s Exhibit 2 contained a bill of information, fingerprint card, guilty plea form, and minute entry in case number 07-1109; State’s Exhibit 3 contained a bill of information, multiple bill, minute entry, and guilty plea form in case number GO-6451; State’s Exhibit 4 contained a bill of information, fingerprint card, multiple offender guilty plea form, multiple bill, guilty plea form, and minute entry in case number 98-363; and State’s Exhibit 5 contained a bill of information, fingerprint card, guilty plea form, and minute entry in case number 95-4526.

Following Deputy Jones’ testimony, the prosecutor argued that Besse admitted during cross-examination that he had numerous felony convictions which corresponded with the certified convictions he had provided to the court. Afterward, the trial judge stated that she was present during Besse’s testimony and that the certified convictions were in order. Accordingly, the trial judge found that Besse “was a multiple offender within the meaning of the multiple offender statute.”

Defense counsel responded that the State did not prove its case beyond a reasonable doubt, arguing that it called no witnesses to prove through fingerprint evidence or other evidence that Besse was the same individual convicted in those previous cases. Defense counsel also argued that the State had not shown any dates on which the convictions occurred.

The prosecutor replied that fingerprint evidence was only one way to convict. The trial judge stated that “it is corroborated by the certified convictions and by the testimony of the defendant himself during his most recent trial.” She again found that Besse was a “multiple offender within the meaning of the multiple offender statute.” Defense counsel noted his objection.

After reviewing the foregoing, we find that the State did not meet its burden in establishing that Besse was the same person convicted of the prior felonies listed |t(iin the multiple bill. The State did not call a fingerprint expert to link Besse’s fingerprints to those found in the prior convictions. Rather, the State used Besse’s trial testimony and copies of his prior convictions to prove that he was a multiple offender. Besse admitted at trial that he had prior felony convictions for second degree battery, cruelty to the in-firmed, issuing worthless checks, and theft of goods, which were the same offenses listed in the multiple bill. However, Besse did not provide the dates on which those offenses occurred, or the corresponding case numbers for those offenses, and he did not identify State’s Exhibits 2 through 5 as his prior convictions.

Additionally, Besse denied at trial that his date of birth was September 16, 1966, which was the date of birth on the bills of information and given by Besse at the time he pled guilty in State’s Exhibits 3 and 4. He did not testify as to his correct date of birth at trial; however, the bill of information in the instant matter lists his date of birth as September 26,1966.

Although Besse’s name is on the prior convictions, the Louisiana Supreme Court has found that that is insufficient evidence of identity. We find on this record that the State failed to meet its burden of proving that Besse was a multiple offender; accordingly, we reverse the multiple offender adjudication and vacate the enhanced sentence.

The final assignment of error is that the enhanced sentence is excessive. Because we have vacated that sentence, the issue of excessiveness is now moot.

We have reviewed the record on its face for errors patent. We find that Besse was not re-arraigned after the bill of information was amended to change the | t7charges against him. However, the failure to re-arraign a defendant on an amended charge is waived if the defendant enters the trial without objecting to the omission.

We also find several errors that relate to the adjudication of Besse as a multiple offender and the enhanced sentence. We note that the trial court merely found Besse to be a multiple offender, without a finding of whether he was a second, third or fourth offender.

We also note that the transcript of the enhanced sentencing reflects that the trial judge vacated the “previous sentence” before imposing the enhanced sentence. She did not specify whether the sentence vacated was on Count 1 or Count 2. However, the commitment shows that the trial judge vacated the sentence on Count 2. When there is a conflict between the transcript and the commitment, the transcript prevails.

Since by this opinion we vacate both the multiple offender adjudication and the enhanced sentence, discussion of those errors is unnecessary. However, in the event the State files a second multiple bill of information, the trial judge is instructed to be specific as to the findings in the adjudication and the sentence being vacated.

For the reasons set forth in this opinion, we affirm the convictions of unauthorized entry of an inhabited dwelling and criminal trespass. We vacate the | ^multiple bill adjudication and the enhanced sentence. Further, we hereby reinstate the original sentences on Count 1 and Count 2.

AFFIRMED IN PART; REVERSED IN PART; MULTIPLE OFFENDER ADJUDICATION VACATED; ENHANCED SENTENCE VACATED; ORIGINAL SENTENCES AFFIRMED AND REINSTATED; MATTER REMANDED

      . Rey testified that, prior to December 1, 2009, she and James had keys to the house, but Besse did not. She further testified that, on the date in question, she did not have her keys because a person upstairs had taken her keys or she had lost them. Therefore, for "those couple of days,” they were using the front window or the back door to get into the house.

      .When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . La. R.S. 15:438.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

      . State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 224.

      . Id.

      . State ex rel. D.J., 00-1592 (La.App. 5 Cir. 3/28/01), 783 So.2d 558, 561.

      . La. R.S. 14:10(2).

      . State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . La. C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La.1973).

      . State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165.

      . State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708.

      . Id.

      . State v. Bennett, 10-393, p. 7 (La.App. 5 Cir. 3/29/11), 63 So.3d 251, 257.

      . State v. Rhea, 03-1273 (La.App. 5 Cir. 2/23/04), 868 So.2d 863, 867 (citing State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1076 (quoting Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997))).

      . State v. Dauzart, 02-1187, (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165-66.

      . State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

      . State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

      . State v. Thomas, 06-654 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-464 (La.11/21/07), 967 So.2d 1153.

      . Id.

      . State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 33, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669.

      . State v. Curtis, 338 So.2d 662, 664 (La.1976).

      . 621 So.2d 769, 779-80 (La.1993).

      . Id.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Shelton, 621 So.2d at 780.

      .It is noted that, in State's Exhibit 5, defendant reported his date of birth as September 26, 1966 at the time of his guilty plea, but the bill of information showed a date of birth of September 16, 1966. In State’s Exhibit 2, Besse reported his date of birth as September 26, 1966 at the time of his guilty plea, and the bill of information showed a date of birth of September 26, 1966.

      . State v. Curtis, 338 So.2d at 664.

      . La.C.Cr.P. art. 555; State v. Narcisse, 01-49 (La.App. 5 Cir. 6/27/01), 791 So.2d 149, 152, writ denied, 01-2231 (La.6/14/02), 817 So.2d 1152.

      . State v. Lynch, 441 So.2d 732 (La.1983).

      . Since double jeopardy principles are inapplicable to sentence enhancement proceedings, the State may retry Besse as a multiple offender. State v. Raymond, 98-119 (La.App. 5 Cir. 8/25/98), 718 So.2d 1010, 1014.