author: MAX N. TOBIAS, JR., J.

text:
    STATE of Louisiana v. Earl S. VINCENT III.
    No. 2010-KA-0764.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, fOR Appellee, State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., J.

hOn 9 June 2009, the state charged the defendant, Earl S. Vincent, III (“Vincent”) by bill of information with one count of unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. At his arraignment on 16 June 2009, Vincent pled not guilty. Following a two-day trial, a six-member jury found the defendant guilty of attempted unauthorized use of a motor vehicle. On 16 December 2009, the court adjudged Vincent to be a fourth felony offender and sentenced him to serve 20 years at hard labor. This timely appeal followed.

STATEMENT OF FACT

On 27 April 2009, Officer John Blatcher and then police recruit and now police officer, Matthew Henderson, responded to a call relating to a, stolen vehicle. They met the victim at the intersection of St. Claude Avenue and Lizardi Street in New Orleans, and learned that while the victim was making a delivery, his delivery van was stolen. A short while later, as Officer Blatcher was questioning the victim, the victim noticed his van parked across the street from its original parking place. Officer Blatcher and Officer Henderson drove their vehicle over to the parked van. As they approached the van, Vincent jumped from the van and fled on St. Claude Avenue, but not before Officer Blatcher got a good look at him. Officer RHenderson broadcast the suspect’s flight and the fact that the suspect was clothed in black and wearing a blue and orange baseball cap. As Vincent fled through the neighborhood, he lost his cap in a yard on Egania Street. Officer Blatcher identified in court the cap, jeans, and shirt that Vincent wore on the day of incident. The clothing was subsequently logged into Central Evidence and Property by Officers Henderson and Blatcher. Although Officer Blatcher did not apprehend Vincent, he positively identified the defendant at a show up as the man he saw flee the van.

Officer Henderson testified and corroborated Officer Blatcher’s recounting of facts regarding the report of a stolen vehicle. Officer Henderson said he got a look at the defendant as he fled the van. He gave chase but lost sight of Vincent when Vincent jumped the gate of a nearby house. However, by that time Detective Sinegar and Officers Seibert and Lee had joined the pursuit. Officer Henderson saw the defendant after he was apprehended. He said that the defendant was wearing a white t-shirt and black pants.

Officer Terrell Seibert testified that he assisted in investigating the case. On the day of the incident he relocated to the area of Lizardi Street and St. Claude Avenue where he spoke with Officer Henderson, who advised that the suspect may be in the 1000 block of Lizardi. As he and his partner drove in the area, they were flagged down by an Entergy employee, who told them that the suspect was in the area. Upon further investigation, Officer Seibert located the shirtless suspect sitting on the front porch of 1025 Lizardi Street. Officer Seibert ordered the suspect from the porch and notified other units that he had a suspect who might be the person being sought. The other police units relocated to Officer Seibert’s location and received a positive identification on him from Detective Sinegar, who ] ¡¡had pursued the defendant on foot. At that point, Officer Sei-bert took Vincent into custody. Officer Seibert identified Vincent in court as the person he took into custody.

Detective Mark Sinegar testified that he received a call from Officers Blatcher and Henderson by police radio informing him of a complaint of a stolen vehicle at Lizardi Street and St. Claude Avenue. While Detective Sinegar and the other officers were speaking to the victim at the location, the victim noticed his van across the street. Detective Sinegar watched the victim approach his van and heard him yell something at someone in the van. At that point, Vincent exited the driver’s side of the van and fled. Officer Henderson chased the defendant on foot while Detective Sinegar followed in his unmarked unit. The pursuit took the officers to Egania Street and a neighborhood yard. Vincent ran from an empty lot near the middle of the block, stumbled, and lost his cap. Detective Sinegar exited his vehicle and chased the defendant until the defendant jumped a wooden fence. Detective Sine-gar lost sight of Vincent but radioed a description — black male, wearing all black clothing — to other units in the area. As the lead detective on the case, Detective Sinegar observed the scene and he identified in court the pictures taken of thereat. Once officers detained Vincent, Detective Sinegar positively identified Vincent as the man he pursued on foot. Detective Sine-gar also made an in court identification of the defendant.

Larry Class, the victim, testified that he worked two jobs, one of which was delivering Krispy Kreme donuts in a Chevrolet Astro van. On 27 April 2009, while in the service center on St. Claude Avenue, someone drove off with his van. He had been required to leave his van running to prevent the sugar on the donuts from running. When he realized his van was missing, Mr. Class called 911. As [4Mr. Class spoke with investigating officers, he noticed his van parked across the street from the service center. He approached the van and noticed a man seated in the driver’s seat. He reached into the van and turned off the ignition. At that point, the suspect jumped from the van and ran. Mr. Class identified Vincent in court as the man he saw seated in his van. He further verified that he did not give Vincent permission to be in his van.

Ms. Gesielle Roussell, Assistant Commander of the New Orleans Police Department Communications Division, testified that she supervises the 911 operations dispatchers. Ms. Roussell explained that when a 911 call comes in, the dispatcher gets the location of the incident, the caller’s name, and other pertinent information. She identified for the court the incident from this case. The tape of the 911 call was played for the jury.

Officer Gerald Lee testified that at the time the call concerning this incident came in, he was riding with his partner, Officer Seibert. When they arrived at the Lizardi Street and St. Claude Avenue scene, they set up a perimeter across the street from a gas station. After speaking with an En-tergy workman near the scene, the officers went to 1025 Lizardi Street where they found the defendant seated on a porch. Vincent told the officers that he lived at the house, but the officers learned from the resident of the property that he did not live at that address.

Ms. Jean Anderson, the owner of the property located at 1025 Lizardi Street, testified for the defense and stated that on 27 April 2009 she heard noise outside of her house. When she went outside, she saw that the police had the defendant handcuffed in the driveway. She asked what was going on, but the police told her to shut up and to stand aside. She further testified that Vincent was her second cousin and that he had come to her house at her request that day to do some chores |sfor her. Ms. Anderson stated that Vincent had raked leaves at her house the morning of the incident. On cross examination, Ms. Anderson admitted that she could not say for certain where the defendant was on that morning or if he raked the leaves.

ERRORS PATENT

An examination for errors patent on the face of the record reveals one. On 16 December 2009, Vincent filed a motion for new trial, which the trial court denied. That same day, the defendant was sentenced as a quadruple offender. La. C.Cr.P. art. 873 states that if a motion for new trial or motion in arrest of judgment is filed, the sentence shall not be imposed until at least 24 hours after the motion is denied, unless the defendant expressly waives the delay or pleads guilty. Vincent did not waive the delay.

Failure of the trial court to observe the mandatory 24-hour delay after denial of a motion for new trial, where such delay is not waived, requires the sentence to be vacated and the case remanded for resen-tencing. State v. Augustine, 555 So.2d 1331, 1333 (La.1990), superseded, in part, by statute in State v. Martin, 93-1915, pp. 2-3 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, 832. However, Louisiana jurisprudence has recognized exceptions to this requirement in cases where the failure to observe the delay is considered harmless. For example, the Louisiana Supreme Court in State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, held that the failure of the trial court to observe the mandatory 24-hour rule was harmless where the sentence imposed was mandatory in nature. Id. at p. 17, 684 So.2d at 380. In the case at bar, because Vincent’s sentence of 20 years is a mandatory | (¡sentence under La. R.S. 15:529.1, the trial court’s failure to observe the statutory delay is considered harmless error.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Vincent argues that the trial court erred in not declaring a mistrial when the prosecutor improperly interjected race into his closing argument.

At the outset, we noted that defense counsel objected to the prosecutor’s remarks but did not request a mistrial. Therefore, the issue has not been preserved for appeal. La.C.Cr.P. art. 841 A; State v. Camper, 08-0314 (La.App. 4 Cir. 10/1/08), 996 So.2d 571. Nevertheless, even if the issue were properly before this court on appeal, the assignment has no merit.

A mistrial is a drastic remedy, warranted only when an error at trial results in substantial prejudice and effectively deprives a defendant of a fair trial. State v. Edwards, 420 So.2d 668, 679 (La.1982). “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” State v. Jones, 03-0829, p. 19 (La.App. 4 Cir. 12/15/04), 891 So.2d 760, 774 (citing State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162,183).

La.C.Cr.P. art. 774 limits the scope of the argument to evidence, the lack of evidence, and conclusions that may be drawn there from. It specifically warns that “[t]he argument shall not appeal to prejudice.” Additionally, La.C.Cr.P. art. 775 provides for a mistrial in a jury case when prejudicial conduct makes it impossible for the defendant to obtain a fair trial. Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. 17 See, e.g., State v. Martin, 539 So.2d 1235, 1240 (La.1989); State v. Copeland, 530 So.2d 526, 545 (La.1988). Even assuming that remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that the remark influenced the jury and contributed to the verdict, for much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence. State v. Kyles, 513 So.2d 265, 275-76 (La.1987).

During closing argument, defense counsel told the jury, “But the officers, they stopped the first black man who had on black jeans that they saw.” In direct response to that assertion, the prosecutor, during rebuttal closing argument, stated:

You know one of the things that puzzles me — and quite frankly, bothers me a great deal — is when people stand in this court of law, and the very first thing they do is throw out the race issue ...
... it puzzles me because you’ve had numerous people come into this court building — and you’ve heard numerous different testimony from police officers. And I think 90 percent of the police officers that you heard were African American.
The fact that [the defendant is] an African American man is of no moment. Because if it had been someone of the Caucasian race, they would be sitting in that same exact seat.
So let’s take race out of the question, because that seems to be the common trend now. Everything is based on race; and it is not.

As the record indicates, the prosecutor did not raise the issue of race. The prosecutor recognized that the defense made race an issue and merely took the opportunity to point out to the jury that Vincent’s ethnicity was “of no moment.” We find no indication that the prosecutor had the intent to pursue the race issue in order to prejudice the jury against the defendant. See State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190.

| SM oreo ver, the prosecutor was responding to the argument made by defense counsel. La.C.Cr.P. art. 774 provides: “The state’s rebuttal shall be confined to answering the argument of the defendant.” The state was simply addressing the defense’s assertion concerning race. The mere reference to one’s race does not require the granting of a mistrial; race maybe a reasonable method of identification and, thus, material and relevant. State v. Jenkins, 340 So.2d 157, 178 (La.1976). It depends on the facts and circumstances present in each individual case. To require a mistrial the remark must be immaterial and irrelevant and must be such that it might create prejudice against the defendant in the mind of the jury. Id. We find nothing improper about the prosecutor’s statement in the context of this case. This assignment of error is without merit.

ASSIGNMENT OF ERROR 2

In this second assignment of error Vincent argues that: (1) there is no multiple bill in the record; (2) his multiple offender adjudication must be vacated because he was not charged as such by a bill of indictment or afforded a jury trial on his adjudication as a quadruple offender; and (3) the state failed to prove his identity during the multiple bill hearing.

As to first assertion, no bill of information is in the record on appeal; however, this does not mean that a multiple bill was not filed. The transcripts show that the multiple bill proceeding was heard on 16 December 2009, and conducted pursuant to a valid multiple bill of information.

In State v. Burks, 02-1939, p. 2 (La.App. 4 Cir. 3/19/03), 843 So.2d 444, 446, this court upheld a sentence imposed pursuant to a habitual offender statute even when no multiple bill of information appeared in the record on appeal. The Burks court cited State v. Uqdah, 613 So.2d 1113 (La.App. 5 Cir.1993), noting |sthat the Fifth Circuit considered a case wherein the multiple bill was missing from the record, and that court held that the prior conviction could not be used to enhance the defendant’s sentence and remanded the case for resentencing. The Burks court said that the Fifth Circuit noted that Uqdah, unlike Burks and the case before it, was silent as to whether there was any indication in the record that a multiple bill was filed, and on that point Uqdah can be distinguished from Burks, and by extension, this case. In Burks, considering the minute entry referenced a multiple bill, and, in the case at bar, the transcript indicates that a multiple bill hearing was held, coupled with the fact that neither the defendant in Burks nor the defendant in the case before us objected prior to appeal that a written multiple bill had not been filed, we can assume that the multiple bill was filed herein.

Additionally, the purpose of a multiple bill of information is to give notice to the defendant. Vincent had notice that the state intended to multiple bill him as a fourth felony offender from the motion hearing and at the close of trial when the judge remanded him prior to sentencing. Moreover, Vincent concedes in his brief that he was aware the state was charging him as a quadruple offender. Just as important, Vincent failed to object to the multiple bill proceedings and fails to show any prejudice.

With regard to Vincent’s claim pertaining to not being indicted as a multiple offender, the Louisiana Constitution of 1974 does not require that the District Attorney institute proceedings by a bill of indictment where the maximum penalty for the charge is less than life imprisonment. The constitution mandates that prosecution of felonies be initiated by indictment or information applies only to the substantive crime for which the accused is charged. La. Const. 1974, art. I, § 15; La.C.Cr.P. art. 382. In State v. Alexander, 325 So.2d 777, 779 (La.1976), quoting State v. Jackson, 298 So.2d 777 (La.1974), the Court reasoned that the “(bill of) information [charging the defendant as a multiple offender] does not charge a crime but is merely the method of informing the sentencing court of the circumstances and requesting an enhancement of penalty.” Thus, the enhanced penalty proceeding does not charge the defendant with a crime; consequently no indictment is necessary. Id. Moreover, the charging instrument is dependent upon the classification of the substantive crime charged, not the enhanced penalty to which an individual may be subject upon conviction. Id. In State v. Tassin, 08-0752, p. 9 (La.App. 3 Cir. 11/5/08), 998 So.2d 278, 285, writ denied 08-2909 (La.9/18/09), 17 So.3d 385, the defendant asserted that the State v. Alexander needed to be reconsidered in light of U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The court reasoned that Booker was not applicable because it did not address a recidivism statute. Id. at 238, 125 S.Ct. 738. Thus, the Tassin court concluded that State v. Alexander was still “good law.”

Vincent was charged with unauthorized use of an automobile, the penalty for which is not life imprisonment. According to the jurisprudence, the proceedings were properly initiated by bill of information. This claim of error is without merit.

Next, Vincent argues that he was entitled to a jury trial on the issue of his multiple offender status. He suggests that the multiple offender statute violates the Fourteenth and the Sixth Amendments to the U.S. Constitution. He relies upon the United States Supreme Court cases Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004).

This court has determined that no constitutional right to a jury trial exists in multiple bill proceedings because all of the elements necessary to enhance the | n sentence “can be determined by reviewing the documents submitted in support of the multiple bill of information.” State v. Smith, 05-0375 pp. 3-5, (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839, citing Appren-di, supra. We find no merit to this claim.

Addressing the defendant’s claim that the state failed to prove his identity at the multiple bill hearing, we likewise find the claim to be without merit.

Vincent asserts that the state failed to prove that he was the same Earl Vincent who pleaded guilty in 2002 to possession of stolen property. He argues that the arrest register, which contains his fingerprints, was not sufficiently linked to the conviction documents. In essence, he argues that although he was the Earl Vincent arrested for the crime, he was not the Earl Vincent who pleaded guilty to the crime.

To obtain a multiple offender conviction, the state is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Hawthorne, 580 So.2d 1131 (La.App. 4th Cir.1991). Various methods are available to prove that the defendant on trial is the same person convicted of the prior felony offense, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver’s license number, sex, race, and date of birth. State v. Westbrook, 392 So.2d 1043 (La.1980). The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. State v. Curtis, 338 So.2d 662 (La.1976). In Westbrook, the Court found that along with the defendant’s name, his driver’s license number, sex, race, and date of birth were sufficient evidence for | ^the state to carry its burden of proving that the defendant then before the court was the same person previously convicted of another felony.

To support its charge that Vincent had a 2002 conviction for possession of stolen property, the state introduced the following evidence: the defendant’s fingerprints taken in court on the day of the multiple bill hearing (State’s Exhibit S-l), a certified copy of a fingerprint card (State’s Exhibit S-4), and a certified package (State’s Exhibit S-5) containing the following certified documents from criminal district court case number 434-123 in which Earl Vincent pleaded guilty to possession of stolen property and criminal damage: (1) the bill of information; (2) the waiver of constitutional rights plea of guilty form signed by Earl Vincent; (3) the docket master; (4) the minute entry of 24 October 2002 referencing the guilty plea; (5) two screening action forms accepting charge of possession of stolen property valued at more than $500.00 and simple criminal damage to property; and (6) two arrest registers.

Officer Joseph Pollard, an expert fingerprint examiner, testified that the fingerprints on State’s Exhibit S-l matched the fingerprints on State’s Exhibit S-4. He further testified that the following information contained in State’s Exhibit S-4 matched the information contained in State’s Exhibit S-5: the defendant’s birth date, the SID (folder) number, and the social security number. He further testified that folder numbers are never duplicated. He concluded that Vincent was the same person who pled guilty in 2002 to possession of stolen property by comparing defendant’s fingerprints in State’s Exhibit S-l to the fingerprints in State’s Exhibit S-4 to the unique information contained within State’s Exhibit S-5.

At the conclusion of Officer Pollard’s testimony, the trial judge stated: “... there is no doubt whatsoever, in my mind, as there was no doubt with Officer 11sPollard, that [Vincent] is one and the same person with a prior conviction under Case No. 434-123. He’s the same person with the prior conviction under Case No. 434-123.”

In State v. Henry, 96-1280 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, this court concluded that the state presented sufficient proof of identify at the habitual offender hearing, wherein the defendant conceded his identity to two prior convictions, but not as to the third for which the state had no arrest register. In place of the fingerprinted arrest register the state introduced a certified copy of the conviction, which bore the same Bureau of Identification Number of the defendant, the same physical description, same birth date, and same social security number as the other conviction documents.

In this case, as in the Henry case, the trial court found that the unique folder number, date of birth, and social security number were sufficient to establish that Vincent was the same defendant who pled guilty to possession of stolen property in 2002. Based upon the totality of the evidence submitted, the state proved that the defendant was the same Earl Vincent who pled guilty in 2002. We find that this assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3

In a final assignment of error, the defendant contends that his sentence is excessive. He also argues that the trial court failed to articulate the factual basis for his sentence, i.e., the sentencing factors enumerated in La.C.Cr.P. art. 894.1.

Vincent was adjudged a quadruple offender and as such was subject to a sentencing range of twenty years to life imprisonment. La. R.S. 15:529.1 A(l)(c)(i). The sentence imposed in this case is the minimum allowed by statute.

114The Legislature enacted the Habitual Offender Law pursuant to its sole authority under La. Const, art. Ill, § 1 to define conduct as criminal and to provide penalties for such conduct. State v. Dorthey, 628 So.2d 1276, 1280 (La.1993). The Louisiana Supreme Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. Id. However, courts have the power to declare a sentence excessive under La. Const, art. I, Section 20 even though it falls within the statutory limits provided by the Legislature. State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

The Court in Dorthey, relying in part on La. Const, art. I, § 20 (“No law shall subject any person ... to cruel, excessive or unusual punishment.”), emphasized the judiciary’s constitutional duty to review sentences for excessiveness:

... [W]e recognize that the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch. Accordingly, Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). According to Sepulvado, the 1974 Louisiana Constitution, Article I, Section 20 “‘gives the courts, in the exercise of their judicial power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel and unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.’ ” Id. at 766, citing “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La. L.Rev. 1, 63 (1974). Thus, “[t]he imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment ...” Id. at 767. Accordingly, under the 1974 Constitution “the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.” Id. at 764.

Dorthey, supra at 1280.

In State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, the Court recognized Dorthey limited holding:

We held [in State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d 552] that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular ease before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Lindsey, 99-3302, p. 4, 770 So.2d at 343.

As the jurisprudence indicates, the burden is on the defendant to present clear and convincing evidence that would justify a downward departure of the mandatory minimum sentence. Vincent herein pleads his age (twenty-eight) at the time of sentencing and notes that his first two nonviolent offenses occurred two months apart in June and August 2002 and were for “monetary instrument abuse” and possession of stolen property. He notes that he was put on probation for both, but the second violated his probation for the first. He further states that on 24 April 2009, only three days before his arrest on this charge, he pled guilty to possession of cocaine in December 2008, his third offense, and that he did not receive the benefit of treatment provided by probation. The foregoing does not amount to objective and exceptional facts and circumstances warranting a lesser sentence.

11fiMoreover, this circuit and others have upheld twenty year sentences for fourth felony offenders. See State v. Augillard, 03-0327 (La.App. 4 Cir. 6/4/03), 853 So.2d 17; State v. Yrle, 05-0202 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102; State v. Dorsey, 04-1358 (La.App. 1 Cir. 3/24/05), 907 So.2d 154.

As for articulating a factual basis for the sentence, “[w]hen the statute provides for a mandatory sentence, it is an exercise in futility for the trial court to enumerate its reasons for sentencing.” State v. Jefferson, 04-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, citing State v. Green, 99-2847, p. 8 (La.App. 4 Cir. 11/29/00), 779 So.2d 835, 840.

This final assignment has no merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of the defendant, Earl S. Vincent, III.

AFFIRMED.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    In re Raymond C. MULVIHILL, III, Applying for Intrafamily Adoption.
    No. 2010-CA-0826.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Morris Lee & Bayle, L.L.C., New Orleans, LA, for Appellants/Raymond C. Mulvihill III and Tricia Ann Fanning Mulvihill.
    Elizabeth 0. Rome, Elizabeth 0. Rome, LLC, Metairie, LA, for Appellee/Brian Potter.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

11 This is an appeal of a judgment denying a petition for the intrafamily adoption of G.B.P. brought by Raymond C. Mulvi-hill, pursuant to Louisiana Children’s Code article 1245. We affirm the judgment of the district court.

This case involves the denial of an intra-family adoption of 8 ⅜ year old G.B.P. Trida Fanning Spears (now Mrs. Tricia Mulvihill), the mother of G.B.P., met Ap-pellee, Larry B. Potter, in 1999. Subsequently, Mrs. Mulvihill and Mr. Potter moved in together. On December 14, 2001, G.B.P. was born. Ms. Mulvihill and Mr. Potter were never married. When G.B.P. was three (3) months old, they separated. After the separation, Ms. Mulvihill claimed that Mr. Potter did not pay child support for G.B.P. for a period in excess of eight (8) years. Ms. Mulvihill continued to work to pay for G.B.P.’s clothing, diapers, and to provide a home for him. G.B.P. received free formula from WIC and Medicaid insurance [ ¡¡coverage.

However, the relationship became contentious after a short while. By March 2002, Mrs. Mulvihill abruptly told Mr. Potter to move out of the house they had shared. She gave no explanation for why she wanted him out of the house. In October 2002, Mr. Potter agreed to a Consent Judgment requested by Mrs. Mulvi-hill, in the alleged belief that Mrs. Mulvi-hill would thereafter allow him to see G.B.P. whenever he wanted. Mr. Potter was unrepresented at the time.

Following this change in Mrs. Mulvihill’s domestic arrangements, she allegedly began to make access to G.B.P. more difficult for Mr. Potter. He was forbidden to visit with or even speak with G.B.P. alone, and was only allowed supervised visitation at either Mrs. Mulvihill’s house or her mother’s house. These visits were limited to 45 minutes to an hour in duration. Mr. Potter allegedly requested visitation with G.B.P. in the months following his breakup with Mrs. Mulvihill, but he was allegedly only allowed visitation on her terms, and then only rarely at best.

Subsequently Mrs. Mulvihill met Mr. Mulvihill. They dated and then moved in together for some time. On January 6, 2006, Mr. Mulvihill and Mrs. Mulvihill were married. On October 29, 2009, Mr. Mulvihill filed a petition for intrafamily adoption, seeking to adopt G.B.P., and to change the name of the minor child to “[G.B.] Mulvihill.” Mrs. Mulvihill consented to the adoption of G.B.P. by his stepfather.

On November 25, 2009, Mr. Potter filed an opposition to the intrafamily adoption. An attorney, Rennie Buras, was appointed to represent the minor child. The hearing was scheduled to be heard on December 10, 2009, and was continued by Mr. Potter’s counsel due to a previously scheduled matter. A pre-hearing |sconference was scheduled by the district court on January 28, 2010, and subsequently a contradictory hearing was held on March 11, 2010.

At trial, the Mulvihills argued that “all attempts by Mr. Potter to exercise his parental rights have failed, even though he made reasonable efforts to exercise them.” The Mulvihills represented that Mr. Potter had very little contact with G.B.P., and only attempted to visit his son approximately once every three to six months. They further argued that when Mr. Potter did visit with G.B.P., Mrs. Mulvihill allowed him to visit as long as he wanted; however, Mr. Potter left after 20 minutes into the visit, saying that he had other things to do or that had to go to work.

On April 26, 2010, the district court rendered Judgment denying Mr. Mulvihill’s request for a stepparent adoption. In its reasons for judgment, the district court opined that

Mr. Potter made reasonable efforts to communicate and visit with [G.B.P.] throughout [G.B.P.j’s life, however, such-attempts were thwarted by the mother. This court further finds that Mr. Potter did not refuse nor fail to visit, communicate or attempt to communicate with [G.B.P.] without cause for a period of at least six (6) months.

As to whether the adoption in in the best interest of G.B.P., the district court determined that,

[t]he totality of the evidence supports a finding that it would not be in the best interest of the child to terminate Mr. Potter’s parental rights and grant the Petition for Intrafamily Adoption.

This timely appeal followed, and the Mulvihills raise the following three (3) assignments of error on appeal:

|41. The trial court erred in finding that Appellee attempted to communicate with G.B.P. at least once every six months since December 2004;
2. The trial court erred in finding that it was not in the best interest of G.B.P. to be adopted by Appellant; and
3. The trial court erred in failing to apply an analysis of Louisiana Children’s Code Article 1138, to determine that Appellee had not established his parental rights because he had not demonstrated a manifestation of his substantial commitment to parental responsibilities.

DISCUSSION

It is well settled that “the standard of appellate review for factual determinations is the manifest error-clearly wrong standard, which precludes setting aside a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” In re Succession of Stamm, 2009-1469, p. 5 (La.App. 4 Cir. 7/14/10), 43 So.3d 326, 329 citing Rando v. Anco Insulations Inc., 2008-1163, p. 20 (La.5/22/09), 16 So.3d 1065,1082.

Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently. Upon full review of the record, the appellate court may not reverse reasonable findings, even if convinced it would have weighed the evidence differently sitting as the trier of fact.

Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, p. 24 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 182, writ denied, 08-1768 (La.10/31/08), 994 So.2d 539.

The party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. In re: Fleming, 2001-1403 (La.App. 5 Circuit 4/30/02) 817 So.2d 371, 376. Furthermore, pursuant to Ch.Code Art, 1245, a parent’s consent to the adoption is not required if he “failed to visit, | ¡¡communicate or attempt to communicate with the child without just cause for a period of six months.”

In the context of intrafamily adoption, the best interest of the child is determined by the court engaging in a “dual focus” analysis. W.E.B. Applying for Adoption, 2007-1395, p. 4 (La.App. 3rd Cir. 3/5/08), 980 So.2d 123, 127. Even if the technical requirements for dispensing with the natural parent’s consent are met, the primary consideration in adoption proceedings is whether the adoption is in the best interest of the child. In re: Miller, 95-1051, 95-1052, p. 5 (La.App. 1st Cir. 2/15/05), 665 So.2d 774, 777. Further, the legislature has mandated that when a court has granted custody to the parent married to the stepparent petitioner, there shall be a rebuttable presumption that the adoption is in the best interest of the child. Ch.Code Art. 1255 B.

Furthermore, La. Ch.Code art. 1193 requires the consent of the biological father for an intrafamily adoption. La. Ch.Code art. 1193, entitled, Persons whose consent or relinquishment is required, provides:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
(1) The mother of the child.
(2) The father of the child, regardless of the child’s actual paternity, if any of the following apply:
(a) The child is a child born of the marriage in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(b) The father is presumed to be the father of the child in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(3) The alleged father of the child who has established his parental rights in accordance with Chapter 10 of Title XI.
|b(4) The biological father of the child whose paternity has been determined by a judgment of filiation and who has established his parental rights in accordance with Chapter 10 of Title XI.
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

However, in certain limited circumstances set forth in article 1245, his consent may not be required, as art. 1245 provides in pertinent part:

Art. 1245. Parental consent not necessary; burden of proof
A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B, or C of this Article.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

In the instant matter, there is some dispute as to whether Mr. Potter had contact with his son since Christmas 2004. Particularly, the controversy in this case concerns whether Mr. Potter made at least one attempt to communicate with G.B.P. every six months since December 2004.

In their first assignment of error, the Mulvihills argue that Mr. Potter has not visited his son G.B.P., since December 2004, a period of over five and one half 17years. Moreover, the Mulvihills argue that Mr. Potter gave no real reason as to why he stopped visiting his son, except that he alleged that he had not been allowed to visit the child. The Mulvihills argue that Mr. Potter’s claim lacks veracity since he merely alleged that he went to Ms. Mulvihills’ home, knocked on the door and left when there was no answer. They also contend that Mr. Potter took no legal action, he produced no phone records, nor any other documentation which purported to establish he actually attempted to communicate with his son.

Still further, the Mulvihills argue that Mr. Potter gave conflicting testimony during cross examination regarding his attempts to visit with G.B.P. Particularly, they argue that Mr. Potter testified that he had stopped going to Ms. Mulvihills’ house in 2005, and that he gave no further explanation concerning his change in testimony.

The Mulvihills also argue that while Mr. Potter claims to have visited his son, he never brought presents to his son. They argue that Mr. Potter’s inconsistent efforts to buy presents for G.B.P., while not sending or delivering them to the child, cannot be considered as an attempt to communicate under the law. Still further, they argue that his testimony was that he stopped going to Ms. Mulvihills’ house, not that he was stopped.

The Mulvihills also argue that Mr. Potter failed to introduce any evidence that he sent G.B.P. [greeting] cards. They argue that in 2005, G.B.P. was only three years old and could not read. They argue that Mr. Potter could not recall, with certainty, the holidays he sent cards to G.B.P.

Furthermore, the Mulvihills argue that based on the totality of the evidence presented at trial, Mr. Potter did not make a sufficient showing that he made at | ¡¡least one attempt to communicate with G.B.P. every six months. The Mulvihills maintain that:

[W]hen Mr. Potter was faced with the impending adoption, he concocted the story about knocking on the door and the sending of the cards knowing that those actions could not be disproved by physical evidence and that it would come down to his word against [theirs].

The Mulvihills argue that the instant case is similar to the facts in In re: C.E.M., III, 09-787 (La.App. 5 Cir. 1/26/10), 31 So.3d 1138. In re C.E.M., III, a child’s stepfather, along with the child’s biological mother, filed a petition for intra-family adoption seeking to have child adopted by stepfather. The child’s biological father filed an opposition to petition for intrafamily adoption. In its decision, the Louisiana Fifth Circuit determined that the biological father’s actions were insufficient to require his consent to the adoption and held: (1) the statute placing the burden of proof on petitioner, rather than statute placing the burden of proof on the child’s alleged or adjudicated father to establish parental rights at the hearing of the opposition, was applicable; Id. p. 6, 31 So.3d at 1141(2) the petitioners met then-burden of proving that biological father’s consent to the adoption was unnecessary based on his failure to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months; Id. p. 8, 31 So.3d at 1142; and (3) the adoption was in child’s best interest. Id. p. 7, 31 So.3d at 1142.

Mrs. Mulvihill argues that she has lived in the same home for G.B.P.’s entire life, and has maintained the same employment with Gordon’s of Metairie. She argues that Mr. Potter testified that he never attempted to call her at work or contact her mother. Moreover, she contends that Mr. Potter had no telephone records to substantiate any telephone calls to Mrs. Mulvihill.

|9The Mulvihills also recalled two incidents in 2007 when Mr. Potter saw G.B.P. with the Mulvihill family: once at Skate Country, and again at Christ the King Fair. However, they argue that he did not make any attempts on either occasion to communicate with G.B.P. Further, they argue, Mr. Potter did not make any attempts to contact Ms. Mulvihill at her place of employment or at any family members’ homes, and made no attempts to visit G.B.P. from December 2004 until after these proceedings began.

The Mulvihills argue that Mr. Potter has failed to provide any financial support for G.B.P., and that he paid child support for his daughter, Brianna Potter, before G.B.P. was born, and continued to pay child support for his daughter until he requested the court terminate the child support prior to the opposition hearing in this matter.

After their separation, Mrs. Mulvihill indicated that she purportedly encouraged Mr. Potter to visit his son, and to provide consistency in life. However, she claimed that Mr. Potter failed to visit his son on a regular basis making only approximately ten attempts to contact his son during his first year of life. The Mulvihills argue that Mr. Potter’s assertion that he was somehow unable to communicate on any level “shows either an inexcusable lack of initiative on his part or an attempt to make a mockery of these proceedings.”

The Mulvihills argue that G.B.P. is now in a very stable, happy, structured and safe environment with his mother and Appellant. G.B.P. was approximately 1½ years old when Mr. and Ms. Mulvihill met and began dating. Mr. Mulvihill resided in the home with G.B.P. and Mrs. Mulvihill from September 2005 (four months prior to their wedding date), and the couple married on January 6, 2006, when G.B.P. was 4 years old. The Mulvihills argue that Mr. Mulvihill is the only |10father G.B.P. can remember, they love each other very much, and Mr. Mulvihill considers G.B.P. his son. Further, G.B.P. calls him “Ray Ray” and “dad.” Mr. Mulvihill plays outside with G.B.P., plays football with him, attends soccer games, and they ride four-wheelers together.

Mr. Mulvihill is an active participant in G.B.P.’s school functions and activities. He also takes G.B.P. on vacations, takes him fishing, and takes him to the zoo. He loves and nurtures G.B.P. Furthermore, the Mulvihills argue that Mr. Mulvihill has continuously maintained G.B.P. on his health insurance since he and Mrs. Mulvi-hill were married.

Finally, the Mulvihills argue that Mr. Mulvihill is committed to both Mrs. Mulvi-hill and G.B.P., and has proven himself to be fully committed to his self-imposed parental responsibilities over the past 8 years of G.B.P.’s life. They content that Mr. Mulvihill is “ready and willing to accept full responsibility for G.B.P. as if he was born to him and fully understands that he would be responsible for his mental, physical and financial well-being.”

Mr. Potter argues that he has attempted to see his son. In fact, he argues that in February 2002, during the time when G.B.P. was covered by Mr. Potter’s health insurance plan, he underwent surgery at Children’s Hospital and remained as an inpatient for approximately three nights. From the moment G.B.P. was admitted to the hospital, Mr. Potter never left his side — apart from the time he returned home to get clothes for himself and G.B.P. for the hospital stay. Mr. Potter thereafter remained at the hospital throughout G.B.P.’s stay, sleeping there overnight for three nights. Mr. Potter argues that Mrs. Mulvihill, on the other hand, left the hospital daily and never stayed with G.B.P. overnight while he was at Children’s. |nWhen G.B.P. was discharged, Mr. Potter was the one who was with him and signed the paperwork, and then drove G.B.P. home.

Mr. Potter also argues that following the change in Mrs. Mulvihill’s domestic arrangements, she began to make access to G.B.P. more difficult for Potter. He was forbidden to visit with or even speak with G.B.P. alone, and was only allowed supervised visitation at either Mrs. Mulvihill’s house or her mother’s house. These visits were limited to 45 minutes to an hour, and that Mr. Potter repeatedly requested visitation with G.B.P. in the months following his breakup with Mrs. Mulvihill, but Mrs. Mulvihill only allowed it on the terms set forth above, and then only rarely.

Mr. Potter also argues that his visits with G.B.P. continued with decreasing frequency, due to Ms. Mulvihill’s lack of cooperation, until December 2004, when Mr. Potter was allowed the only unsupervised outing he has had with G.B.P. since Mrs. Mulvihill asked him to move out. Mr. Potter spent two hours with G.B.P., and memorialized the special occasion by photographing G.B.P. with other family members. Thereafter, Mr. Potter — who by then was engaged to his current wife, Rachel — visited G.B.P. on Christmas Day, 2004, and gave G.B.P. both his birthday and Christmas presents. Mr. Potter indicated that both Mr. and Mrs. Mulvihill made him feel unwelcomed during this visit.

That Christmas of 2004 was the last time Mrs. Mulvihill allowed Mr. Potter to see them son, Mr. Potter argues, and that Mrs. Mulvihill frankly admitted that after 2004, she did nothing to facilitate a relationship between Mr. Potter and G.B.P. Mr. Potter argues he nevertheless persisted and continued to try to maintain contact, calling Mrs. Mulvihill’s house at least once a month and going by her house every six to eight weeks in an attempt to talk to G.B.P. Mrs. Rachel Potter 1 i2testified that she frequently witnessed Mr. Potter making telephone calls to Mrs. Mulvihill’s house and leaving messages, and twice accompanied Mr. Potter on visits to Mrs. Mulvihill’s house to try to visit with G.B.P. On no occasion did Mrs. Mulvi-hill accommodate Mr. Potter’s desire to see his son, or even open the door.

Mr. Potter testified that his visits with G.B.P. allegedly decreased in frequency, due to Mrs. Mulvihill’s lack of accommodating him, up until December 2004, when Mr. Potter was allowed the only unsupervised outing he has had with G.B.P. since Mrs. Mulvihill asked him to move out.

Mr. Potter testified that he was not allowed into G.B.P.’s life, and that any time he tried to get into G.B.P.’s life, he would be blocked by Mrs. Mulvihill. Mr. Potter married his current wife, Rachel, on March 12, 2005. He testified regarding an event which occurred in early March 2005, prior to his wedding. Mr. Potter testified that he called Mrs. Mulvihill to discuss having G.B.P. be a part of his then-upcoming marriage. Mr. Potter points out that during trial, while Mrs. Mulvihill initially denied that she had any contact whatsoever with Mr. Potter after 2004, she subsequently changed her testimony and conceded that Mr. Potter had called her about G.B.P. being in his wedding in March 2005.

Mr. Potter argues that he wanted G.B.P. to attend and be a part of the wedding. He even testified that he invited Mr. and Mrs. Mulvihill to attend the wedding in order to make it easier for G.B.P. to attend. Initially, Mrs. Mulvihill agreed, and Mr. and Mrs. Potter bought matching outfits for G.B.P. and their other son, but Mrs. Mulvihill refused to attend the wedding and ultimately refused to let G.B.P. be a part of, or even attend, his father’s wedding.

|1sHe also testified that he purchased Christmas gifts for G.B.P. in 2005, but Mrs. Mulvihill would not allow him to see G.B.P. or give them to him. Mr. Potter testified that since that time, he has purchased birthday and Christmas presents for G.B.P. every year, and has kept them in storage until such time he will finally be able to give them to him. He testified that he also regularly sends G.B.P. cards approximately four times a year — on his birthday, and on holidays such as Christmas, Halloween, Valentine’s Day and Easter.

Because the record before us establishes that there has been a contentious relationship between the biological parents which may have interdicted Mr. Potter’s opportunities to visit with his son as much as he would have liked allegedly because of the acts or omissions of Mrs. Mulvihill, we cannot say that the district court erred in its finding that an interfamily adoption was not warranted in the instant case. We cannot say that the district court is manifestly erroneous or clearly wrong in its factual determination that it was not the fault of Mr. Potter that he had infrequent contact with G.B.P. Therefore, this assignment of error does not have merit.

In his second assignment of error, Mr. Mulvihill argues that the district court erred in finding that it was not in the best interest of G.B.P. to be adopted by Mr. Mulvihill, Mr. Potter has testified that he has not visited with G.B.P. for over five and one half years. On the other hand, Dr. Van Beyer, an expert on custody evaluations and parent-child bonding, testified that if the adoption were granted, G.B.P. would not feel any loss concerning his relationship with his biological father. Moreover, Dr. Van Beyer testified that G.B.P. relates to Mr. Mulvihill “exactly as a little boy would relate to his father.” Further, she opined that G.B.P. |14is firmly attached psychologically Mr. Mulvihill, and that the adoption would be in G.B.P.’s psychological best interest.

The Mulvihills argue that Mr. Potter, who opposes this adoption, has put forth no evidence or any testimony as to why it is not in G.B.P.’s best interest to be adopted by Mr. Mulvihill, “the man who has assumed the role of Daddy in his life.” However, once again, we cannot say that the district court’s factual determination of the best interest of G.B.P. is to oppose this adoption. Thus we find no merit to this assignment of error.

In his final assignment of error, Mr. Mulvihill argues that the district court erred in failing to apply an analysis of Louisiana Children’s Code Article 1193, to determine whether Mr. Potter had not established his parental rights because he had not demonstrated a manifestation of his substantial commitment to parental responsibilities.

La. Ch. C. art. 1193, entitled Persons whose consent or relinquishment is required, provides:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
(1) The mother of the child.
(2) The father of the child, regardless of the child’s actual paternity, if any of the following apply:
(a) The child is a child born of the marriage in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(b) The father is presumed to be the father of the child in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(3) The alleged father of the child who has established his parental rights in accordance with Chapter 10 of Title XI.
_Jj¿(4)The biological father of the child whose paternity has been determined by a judgment of filiation and who has established his parental rights in accordance with Chapter 10 of Title XI.
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

In the instant matter, Mr. Mulvihill argues that although Mr. Potter is named on the birth certificate and considered an adjudicated father under La. Ch.Code art 1193, he still must prove that he manifested a substantial commitment to his parental responsibilities under Article 1138 of the Louisiana Children’s Code to be considered a parent whose consent is required for the adoption.

While Mr. Mulvihill argues that it was stipulated that Mr. Potter was present at the birth of G.B.P. and that he resided with G.B.P. and his Mrs. Mulvihill for three months after G.B.P.’s birth, he argues that Mr. Potter failed to provide financial support for G.B.P. Thus, under the provisions of Article 1138(B)(£), Mr. Mulvi-hill argues that Mr. Potter failed to provide consistent support for G.B.P.

However, Mr. Potter responds that no court order for support has ever existed. However, a court order of support is not required to establish his parental rights. The only requirement is a showing of consistent contributions of support before, during, and/or after birth of the child.

The district court denied Mr. Mulvihill’s request for a stepparent adoption. The district court found that the record in the instant matter does not demonstrate that Mr. Potter failed to take any action in the previous five years to assume any parental responsibility.

La. Ch.Code art. 1245(C)(2) required Mr. Mulvihill to prove by clear and convincing evidence that Mr. Potter failed to visit, communicate or attempt to ^communicate with G.B.P. The district court found that Mr. Mulvihill failed to carry his burden, concluding instead that Mr. Potter made reasonable attempts to visit and communicate with his son G.B.P. throughout G.B.P.’s life, but that both Mrs. Mulvihill and Mr. Mulvihill deliberately thwarted Mr. Potter’s efforts. The parties presented the district court with two opposing views of the evidence, and the district court’s factual findings in this case were based on its credibility decisions in resolving witness testimony that was in direct conflict. “Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review....” Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, p. 24 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 182, writ denied, 08-1768 (La.10/31/08), 994 So.2d 539, citing Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176. Furthermore, “[ujpon full review of the record, the appellate court may not reverse reasonable findings, even if convinced it would have weighed the evidence differently sitting as the trier of fact.” Id. Thus, we cannot say that the district court erred in denying the petition for intrafamily adoption.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

      . Pursuant to Uniform Rules, Courts of Appeal, Rule 5-2, entitled Confidentiality:

      To insure the confidentiality of a minor who is a party to or whose interests are the subject matter in the proceedings listed in Rule 5-1 (a) or (c) above, initials shall be used in all filings and in opinions rendered by the court of appeal to protect the minor's identity.

        Thus, for the sake of the privacy of the minor, only his initials will be used throughout this opinion.

      . This is an appeal by Mr. Mulvihill. Although Mrs. Mulvihill is not an appellant, her status as biological mother of the minor child are relevant to the fact of this case, and, she and Mr. Mulvihill will be mentioned in this matter as "the Mulvihills” when referred to collectively.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Ronald J. STANFIELD.
    No. 2010-KA-0854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe defendant appeals his conviction and sentence for simple burglary in violation of La.Rev.Stat. 14:62, arguing that the evidence is insufficient to support the conviction and that his sentence is excessive. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

In the early morning hours of June 30, 2009, between 2:00 and 4:00 a.m., Ms. Chy-vette Hays heard a loud noise that sounded like a gunshot. She looked out the window to the back of the property at 901 Jackson Avenue, owned by Harold Mitchell, and saw two men in the back of the house. She recognized one of the men as the defendant, whom she had known since 2001. Ms. Hays had an unobstructed view of the defendant’s face; he was not wearing a mask, and the area was well lit. As she looked closer, she saw that the defendant had a room air conditioning unit in his hands. She called Mr. Mitchell and advised him of the incident. When he arrived at the property, Mr. Mitchell saw that the back door was open and that an upstairs window air conditioner was missing. He reported the burglary and the police arrived approximately forty-five minutes later.

| ?The next day, Ms. Hays was interviewed by the police and she identified the defendant’s picture as the man who removed the air conditioner from Mr. Mitchell’s property.

On September 18, 2009, the State charged the defendant with simple burglary, a violation of La.Rev.Stat. 14:62. He pleaded not guilty at his arraignment on September 23, 2009. On November 19, 2009, the trial court denied the Motion to Suppress the Evidence and found probable cause.

The following evidence was adduced at the defendant’s trial on February 1, 2004. Mr. Mitchell, Ms. Hays, and Detective Kristen Krezemieniecki, the investigating officer testified. Detective Krezemieniecki stated that she investigated the burglary of the unoccupied residence at 901 Jackson Avenue belonging to Mr. Mitchell. Mr. Mitchell informed her that he received a telephone call from his neighbor, Ms. Hays, advising him that his property had been burglarized by the defendant, who removed a window air conditioning unit. The detective spoke to Ms. Hays a few days after the incident. Ms. Hays indicated that she had known the defendant from the neighborhood since about 2001 and gave her description of the defendant and a possible home address for him. From her discussion with Ms. Hays, Detective Krezemieniecki obtained a photograph of the defendant, which Ms. Hays positively identified as the burglar. Mr. Mitchell testified that he did not give the defendant permission to be in his property, nor did he authorize the defendant to remove the window air conditioner. Ms. Mitchell testified as to what she witnessed and identified the defendant as the perpetrator. At the conclusion of trial, the jury found the defendant guilty as charged.

On March 4, 2010, the trial court sentenced him to ten years at hard labor, with credit for time served. The defendant’s Motion for Post-Verdict Judgment of | oAcquittal was denied, as was his Motion to Reconsider Sentence. This appeal follows.

Errors Patent

A review for errors patent on the face of the record reveals none.

Counsel Assignment of Error

In this assignment, the defendant argues that his ten year sentence for simple burglary is unconstitutionally excessive.

In State v. Landry, 2003-1671, pp. 7-9 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240, this Court set forth the standard for reviewing an excessive sentence claim:

La. Const, art. I, § 20 explicitly prohibits] excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App.4Cir.4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.Code Crim Proc. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the |4circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

However, in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819 this court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

The defendant in this case was convicted of simple burglary, which carries a fíne of two thousand dollars and imprisonment with or without hard labor for not more than twelve years, or both. La.Rev. Stat. 14:62(B). The trial judge imposed a ten year sentence, rather than the maximum of twelve, and no fine. Although it does not appear from the record that the trial judge articulated the factual basis for the sentence, it is apparent from the sentencing transcript that the defendant was on parole at the time he was sentenced for the present conviction, and the State noted its intent to file a multiple bill of information. In selecting a proper sentence, a |fitrial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779.

In this instance, the trial court heard eyewitness testimony from Ms. Chyvette Hays, who lived next door to the burgled property. Ms. Hays stated that she knew the defendant from the neighborhood, and gave the police an address where they could find the defendant. She further stated that she saw the defendant jump from the victim’s property to the ground, and then saw him reach into the house and remove the window air conditioner unit. Although the trial court did not articulate reasons for the sentence, considering that the State asserted that it intended to file a multiple bill, coupled with the fact that the defendant was on parole at the time he committed the present offense, the record shows an adequate factual basis for the sentence imposed. Moreover, other circuits have upheld greater sentences for first offenders convicted of simply burglary. See State v. Morris, 719 So.2d 1076 (La.App. 5 Cir.1998) (upholding twelve-year sentence based upon the damages stemming from burglary despite the defendant’s lack of criminal record); State v. Johnson, 457 So.2d 732 (La.App. 2 Cir.l984)(upholding twelve-year sentence of first offender for burglary of a warehouse, even though the presentence investigation showed that the defendant |fihad no prior criminal record). The defendant’s excessive sentence claim has no merit.

Pro Se Assignment of Error

In a pro se assignment of error, the defendant complains that the evidence is insufficient to support the conviction.

The constitutional standard for testing the sufficiency of the evidence, 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. State v. Black, 2009-1664 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243 citing State v. Rosiere, 488 So.2d 965 (La.1986). In a case where there is no physical evidence to link a defendant to the crime charged, the testimony of one witness, if believed by the trier of fact, is sufficient support for a factual conclusion required for a verdict of guilty. State v. Marcantel, 2000-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

In this case, Ms. Chyvette, an eyewitness, testified that she heard a loud noise coming from the property next door. When she looked out her dining room window, she saw the defendant removing an air conditioning unit from Mr. Mitchell’s property. Clearly, the jury believed the testimony of Ms. Chyvette and concluded that the defendant was guilty of simple burglary of the Jackson Avenue property. This assignment of error is without merit.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.