text:
    Gerald BURGE v. STATE of Louisiana.
    No. 2010-C-2229.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
    See also 187 F.2d 452.
   PER CURIAM.

_JjThe Plaintiff, Gerald Burge, was charged with second degree murder of Douglas Frierson (“victim”) in the 22nd Judicial District Court in St. Tammany Parish, convicted and sentenced to life imprisonment in 1986. Subsequent to his sentencing, Mr. Burge discovered that the lead investigating detective, Gary Hale had exculpatory, material evidence, such as investigatory reports, tapes, and statements, hidden in the trunk of his car. When asked why was he hiding these reports, Hale admitted to his former Chief of Detectives E.L. Herman, “Some of the stuff could ^probably make us lose the case.” When Mr. Burge’s attorney discovered that the State failed to produce exculpatory or material evidence, he filed on September 22, 1989, a Petition for Post Conviction Relief, arguing that defendant’s Brady rights were unconstitutionally violated. Defendant argued that Hale facilitated his conviction by suppressing a pretrial statement by Jean Frierson, the victim’s mother, which would have impeached her perjured testimony that she saw the victim leave her house with Mr. Burge shortly before his murder. The 22nd Judicial District Court of St. Tammany Parish granted Mr. Burge a new trial in June 1990.

On September 10, 1992, Mr. Burge was tried again by a second jury. At the second trial, the victim’s mother admitted that she lied at the 1986 trial. At the conclusion of the second jury trial, the 22nd Judicial District Court found Mr. Burge not guilty, and exonerated him of all charges.

On July 27, 2007, Mr. Burge filed a “Wrongful Conviction Application for Compensation” in the 19th Judicial District Court pursuant to LSA-R.S. 15:572.8. He argued that the record reflected that the 22nd Judicial District Court reversed his wrongful conviction and vacated his sentence, and after a second trial, a jury found him innocent of killing Doug Frier-son. Mr. Burge requested compensation for the years he served in prison from 1986 to 1992 pursuant to LSA-R.S. 15:572.8(0(3). When the application was filed, Mr. Burge did not include any service request, and the record is void of any service information or return of citation. In response, the State filed a Declinatory Exception of Insufficiency of Service of Process, arguing that Mr. Burge’s failed to request service on the State within 90 days pursuant to LSA-R.S. 13:5107(D)(1), (2). The trial court granted the State’s exception, finding |sthat Mr. Burge failed to comply with LSA-C.C.P. art. 1201(C), which provides, in pertinent part, that “[s]ervice of the citation shall be requested on all named defendants within ninety days of commencement of the action.” The court of appeal affirmed the trial court’s ruling. Burge v. Louisiana, 10-0051(La.App. 1 Cir. 6/11/10), 43 So.3d 235. The court of appeal found that LSA-C.C.P. art. 1201(C), was not the “pertinent authority for service,” of the “Wrongful Conviction Application for Compensation” filed by Mr. Burge, but instead noted that “the more specific rule of service in ‘all suits filed against the State of Louisiana’ is set out in LSA-R.S. 13:5107.” Id. at 237. The court of appeal further stated that LSA-R.S. 15:572.8 does not supersede LSA-R.S. 13:5107. Id.

DISCUSSION

The issue before this Court is whether the court of appeal erred in affirming the district court’s dismissal of Mr. Burge’s Wrongful Conviction Compensation Application based upon the State’s Exception of Insufficiency of Service.

In 2005, the legislature enacted LSA-R.S. 15:572.8 to create an application for those wrongfully convicted and imprisoned. This statute provided in pertinent part:

A. An applicant is entitled to compensation ... if he has served in whole or in part a sentence of imprisonment under the laws of this state for a crime for which he was convicted and:
(1) The conviction of the applicant has been reversed or vacated; and
(2) The applicant has proven by clear and convincing scientific or |4non-scienti-fic evidence that he is factually innocent of the crime for which he was convicted.
C. (1) All applications for compensation ... shall be filed in the Nineteenth Judicial District Court ... and shall be allotted to the civil division as provided by Code of Civil Procedure article 253.1 and applicable rules of court. The court shall render a final decision on all applications for compensation filed in accordance with the provisions of this Section and shall be tried by the judge alone.... The court shall submit a copy of any application filed ... to the sentencing court and the district attorney within fifteen days of receiving such application.

[Emphasis added.]

We note that the 2005 version of LSA-R.S. 15:572.8(C) is devoid of any requirement for service of process. Rather, the legislature provided for the giving of notice by requiring “[t]he court [to] submit a copy of any application filed ... to the sentencing court and the district attorney within fifteen days of receiving such application.” In July 2007, Mr. Burge properly followed the language of the then applicable law. The statute was not amended until August 15, 2007, when it was substantively changed to read, in pertinent part:

C. All petitions for compensation as provided in this Section shall be filed in the district court in which the original conviction was obtained, ... and shall be governed by procedures outlined herein and randomly re-allotted by the court.
E. The attorney general shall represent the state of Louisiana in these proceedings. The court shall serve a copy of any petition filed ... upon the attorney general and the district attorney of the parish in which the conviction was obtained and upon the court that vacated or reversed the petitioner’s conviction or upon the pardon board if the conviction was vacated through executive clemency within fifteen days of receiving such petition.... [Emphasis added.]

The legislature, in amending the statute in 2007, changed the process to be utilized from an “application process” to a “petition process.” The 2007 changes to the law made clear that the Attorney General is the proper party defendant to proceed against contradictorily, when filing the petition for compensation. LSA-R.S. 15:572.8(E). This amended statute placed the burden upon the court to serve a copy of the petition |fiupon the attorney general and the district attorney within fifteen days of receiving the petition. Id. Because the amended statute requires the court to serve the defendants with a copy of the petition, the petitioner has no obligation to request service of citation at all.

The general rule of statutory construction is that a specific statute controls over a broader, more general statute. “It is a well-settled canon of statutory construction that the more specific statute controls over the general statute.” State v. Sharp, 05-1046, pp. 5-6 (La.App. 1st Cir.6/28/06), 939 So.2d 418, 421. This Court has held that “It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” State v. Campbell, 03-3035, p. 8 (La.7/6/04), 877 So.2d 112, 118.

The language of LSA-R.S. 13:5107, which is a part of the Louisiana Governmental Claims Act, does not apply to the compensation application of wrongful convictions; instead, it applies to any suit in contracts, personal and property injury, civil suits against the state, state agencies, political subdivisions of the state, and the employees of those entities. LSA-R.S. 13:5101. Although the statute governs lawsuits involving the state generally, nothing in Section 5107 authorizes its application to a compensation proceeding for a wrongful criminal conviction.

Mr. Burge’s application for wrongful conviction is not governed by LSA-C.C.P. art. 1201(C) because this application is not a civil lawsuit. Instead, the only ^relevant authority governing Mr. Burge’s application is contained in the Wrongful Conviction Compensation Statute, LSA-R.S. 15:572.8, which explicitly requires the court to submit the application to the Attorney General, the prosecuting district attorney, and the court that reversed the conviction.

LSA-R.S. 15:572.8 is sui generis, and governs a unique situation. It provides compensation from a special fund set aside in the state treasury to innocent persons wrongfully convicted. The statute sets out a unique notice procedure and, in its original version and in the amended version, places the notice requirement not on the petitioner, but on the court. So, it is fair to say that the ordinary requirements for service of petition involving claims against the state do not apply to this unique situation.

For the reasons stated above, we find that the court of appeal erred in affirming the district court’s ruling. We therefore reverse the ruling of the court of appeal, and remand this matter to district court for further proceedings.

CLARK, J., dissents.

REVERSED and REMANDED.

      .Detective Hale, upon resigning from the St. Tammany Parish Sheriff's Office, married the victim's sister, "whom he met and began dating during his investigation of her brother’s murder.” See, Burge v. Parish of St. Tammany, (5th Cir.8/25/99), 187 F.3d 452, 459. In June 1991, Mr. Burge filed a federal civil suit in June of 1991, seeking damages against the district attorney, assistant district attorney, sheriff, and deputies for deprivation of his constitutional right to due process and a fair trial under 42 U.S.C.A. § 1983 by destroying and concealing of certain exculpatory, material evidence. The Fifth Circuit Court of Appeals noted:
      The record reflects that there was a failure to disclose several items of evidence favorable to the defense within the knowledge of officers acting on the State’s behalf in the case.... Because the net effect of the State-suppressed evidence favoring Burge raises a reasonable probability that its disclosure would have produced a different result at the first trial, the failure to disclose that evidence violated Burge's constitutional rights. See Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

        Burge, at pp. 474-475.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . LSA-R.S. 13:5107(D)(1), (2) provides in pertinent part:
      (1) In all suits in which the state ... is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state ... as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
      (2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, ... who has not been served.

      . 2005 La. Acts, No. 486, § 1, effective September 1, 2005.

      . In reviewing Mr. Burge’s petition, which was captioned Gerald Burge v. State of Louisiana, there is no indication, other than the caption, that the State was actually named as a defendant in his July 27, 2007 pleading so as to trigger the commencement of 90-day period provided for in LSA-R.S. 13:5107(D)(1). Because Mr. Burge did not name any state agency as a defendant, the State cannot use LSA-R.S. 13:5107(D) to obtain a dismissal of Mr. Burge’s application. See, Corbin v. Louisiana Dept. of Highways, 44,882 (La.App. 2 Cir. 12/9/09), 26 So.3d 945, 947-49.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Michelle MORGAN, Plaintiff-Appellee v. LOWE’S HOME CENTERS, INC. and Specialty Risk Services, LLC, Defendants-Appellants.
    No. 45,699-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Taylor, Wellons, Politz & Duhe’, New Orleans, LA by Patrick F. Robinson, for Appellants.
    Robert M. Hanna, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

Defendants, Lowe’s Home Centers, Inc., and Specialty Risk Services, appeal from a judgment entered by default in favor of plaintiff, Michelle Morgan, awarding her temporary total disability benefits, penalties, and attorney fees. A Joint Motion to Vacate Trial Court Judgment and Remand for Further Proceedings was filed in this court by both plaintiff and defendants. Thereafter, no brief was filed by plaintiff/appellee.

A ruling on the motion was referred to the merits of the case. Considering, inter alia, that the medical evidence presented was insufficient under La. R.S. 23:1316.1(0 to prove plaintiffs entitlement to a default judgment, we now grant the motion and vacate the default judgment rendered in the trial court and remand for further proceedings.

Costs of this appeal are assessed one-half to plaintiff and one-half to defendants.


author: DREW, J.

text:
    Ricky JIMMERSON, Plaintiff-Appellant v. The SHAW GROUP, Defendant-Appellee.
    No. 45,672-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Robert M. Hanna, for Appellant.
    Rabalais, Unland & Lorio by John J. Rabalais, Mandeville, Louisiana, Janice B. Unland, Matthew D. Crumhorn, Coving-ton, Louisiana, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

|]The judgment finding that Supplemental Earnings Benefits were paid timely and denying Ricky Jimmerson’s request for penalties and attorney fees was signed on December 8, 2009. Notice of judgment was mailed to the parties by certified mail on December 8, 2009. A motion for appeal was filed by Ricky Jimmerson on February 15, 2010. The Shaw Group argues in its “Memorandum in Opposition to Devolu-tive Appeal” that Jimmerson’s appeal is untimely under La. R.S. 23:1810.5.

La. R.S. 23:1310.5(B) provides, with our emphasis added:

The decision of the workers’ compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.

In Davis v. Wal-Mart Stores, Inc., 44,621 (La.App.2d Cir.4/22/09), 11 So.3d 63, writ denied, 2009-1012 (La.6/19/09), 10 So.3d 744, this court concluded that the customary delays allowed for new trials and appeals in ordinary civil cases apply in a workers’ compensation case only when a party actually files a motion for new trial. When no motion for new trial is filed in a workers’ compensation case, the delay for appealing does not incorporate any delay for filing a motion for new trial. Id.

Jimmerson did not file a motion for new trial. Therefore, his appeal is untimely under La. R.S. 23:1310.5 and is dismissed.

| ¡We note that the “Notice of Signing Judgment” sent by the Office of Workers’ Compensation states:

If no Motion for New Trial is filed and you disagree with this judgment you must file an appeal. If you do not file an appeal within the time delays allowed by law pursuant to La. C.C.P. Arts 2087 and 2123, this judgment will become final.

This language is misleading and would likely lead a pro se claimant astray. If this is standard language that is used in the Office of Workers’ Compensation’s notices of judgment, then it needs to be changed to accurately reflect La. R.S. 23:1310.5(B).

DECREE

At Jimmerson’s cost, the appeal is DISMISSED.


author: LOLLEY, J.

text:
    Leola HARRISON, Plaintiff-Appellant v. Will Henry ROGERS, USAgencies, Casualty Insurance Co., Leonard E. Street, State Farm Insurance Co., Imperial Fire & Casualty Co., Defendants-Appellees.
    No. 45,641-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Raymond Lee Cannon, Tallulah, Louisiana, for Appellant, Leola Harrison.
    Hudson, Potts & Bernstein by Mark J. Neal, Monroe, Louisiana, for Appellants, Will Rogers & USAgencies.
    Nelson, Zentner, Sartor & Snellings by George M. Snellings, IV, Monroe, Louisiana, for Appellees, Leonard Street & State Farm Ins.
    Richie, Richie & Oberle by Byron A. Richie, Paul Oberle, Shreveport, Louisiana, for Appellee, Imperial Fire & Casualty-
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

I,Leola Harrison, Will Henry Rogers, and USAgencies Casualty Insurance Company (“USAgencies”) appeal a judgment by the Sixth Judicial District Court for the Parish of Madison, which dismissed all claims against Imperial Fire & Casualty Insurance Company (“Imperial”) in litigation over coverage of damages from an automobile collision. The judgment was entered in response to Imperial’s motion for summary judgment. For the following reasons, we dismiss this appeal as untimely.

Facts

On November 19, 2005, Rogers was driving a 2000 Buick Regency (“Buick”) in the right lane of North Cedar Street in Tallu-lah, Louisiana. This vehicle was owned by Rogers’ step-daughter, Tiffany Curry, and Harrison was a passenger in the vehicle. Simultaneously, Leonard Street was driving his vehicle in the left lane of North Cedar Street. When Rogers attempted to change lanes, the vehicles collided. The impact caused Rogers to then hit a telephone pole. Rogers and Harrison were taken to Madison Parish Hospital after the accident. Harrison claimed she had suffered both medical injuries and economic loss as a result of the accident.

Harrison sued Rogers, Street, USAgen-cies, State Farm Mutual Automobile Insurance Company (“State Farm”), and Imperial. USAgencies insured Curry and her vehicle-the Buick that Rogers was driving when he was involved in the accident. State Farm insured Street and his vehicle, which Street was driving when he was involved in the accident. Imperial insured Rogers and the vehicle he owned (“Alero”), which was not in use at the time of the accident. Imperial, among other parties, moved for summary | ¿judgment. The trial court granted Imperial’s motion for summary judgment on January 20, 2009, dismissing all claims against Imperial after a determination that Rogers’ policy with Imperial did not cover his use of Curry’s Buick. This appeal ensued.

Discussion

A judgment dismissing a party from a lawsuit is governed by La. C.C.P. art. 1915(A) and is immediately appealable in the absence of a determination and designation that the judgment is appealable. See, e.g., Ricks v. Butler, 2006-0847 (La.App. 4th Cir.11/08/06), 945 So.2d 136; Posey v. Singletary, 37,425 (La.App.2d Cir.09/24/03), 855 So.2d 853. For a devolu-tive appeal, the time period for filing a notice of appeal is the delay for applying for a new trial under La. C.C.P. art. 1974 (seven days), plus 60 days from the date of the judgment. La. C.C.P. art. 2087. These appeal delays are jurisdictional in nature and not subject to interruption. Therefore, if an appellant fails to timely file a devolutive appeal and thus causes a jurisdictional defect, neither the court of appeal, nor any other court has the authority to reverse, revise, or modify that final judgment. Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191 (La.1991).

In the case sub judice, the trial court clerk mailed notice of the judgment to all parties on February 10, 2009. In March, Harrison’s counsel went to the clerk of court’s office at the district court and brought a motion and order for devol-utive appeal, among other filings. However, Harrison’s counsel, believing the judgment was not final at that time and, therefore, not appealable, requested the clerk not file the motion and order to appeal. |» Although the judgment was final at this stage and a filing at this point would have been timely, no such motion was actually filed. In April, Harrison’s counsel submitted an amended judgment to the trial court which added a certification that the judgment was appealable, under the mistaken belief that this was necessary in order to appeal the judgment. It was not until November 2009 that the trial court signed the amended judgment again dismissing the plaintiffs lawsuit against Imperial. Notice of the amended judgment was mailed to all parties in November 2009. Harrison, Rogers, and USAgencies all subsequently filed motions for devolutive appeal from this amended November judgment, well after the time period for filing a devolutive appeal had lapsed. The judgment in this case was not a partial judgment-the judgment dismissed all claims against Imperial-and, thus, La. C.C.P. art. 1915(B) requiring a designation as a final judgment does not apply. Therefore, the motion to certify was unnecessary and did not suspend appeal delays. Accordingly, Harrison’s motion for appeal filed in November was untimely, leaving this court without jurisdiction to consider the appeal.

Conclusion

For the foregoing reasons, the appeal is dismissed, and all costs of this appeal are assessed to Leola Harrison, Will Henry Rogers, and USAgencies Casualty Insurance Company.

APPEAL DISMISSED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. William H. PAINICH, Appellant.
    No. 45,671-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Louisiana Appellate Project by James E. Beal, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Robert N. Anderson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

|¶ The defendant, William H. Painich, appeals his conviction for the second degree murder of Wanda Dale Goettig. Finding no merit to his assigned error of insufficiency of the evidence, we affirm.

FACTS

Painich was charged by bill of indictment with second degree murder, a violation of La. R.S. 14:30.1, and with unauthorized use of a movable, a violation of La. R.S. 14:68.4, both stemming from events that occurred between December 10 and December 12, 2006, in Monroe, Louisiana. A jury found Painich guilty as charged on both counts. This appeal concerns only the sufficiency of the evidence in support of the second degree murder conviction for which he received a life sentence. We will review the evidence presented at trial to determine whether, when viewed in the light most favorable to the prosecution, it was sufficient to convince a rational trier of fact that all the elements of second degree murder had been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

TRIAL TESTIMONY and EVIDENCE

Rita Townsend testified that she spoke almost daily to Goettig, who was her twin sister, and that they last spoke around 10:30 p.m. on Sunday, December 10, 2006, after the victory of the New Orleans Saints over the Dallas Cowboys. Townsend called Goettig several times the next day but got no answer. When she still could not reach Goettig on the morning of Tuesday, December 12, 2006, Townsend went to her apartment where she saw Goettig’s car, a gray Ford Taurus, in the parking lot but not in its usual Rspot. Townsend knocked on Goettig’s door and called out her name. She could hear a television playing inside, but no one responded.

Townsend asked the maintenance supervisor, Michael Young, to open the door of Goettig’s apartment. Young unlocked the door with a master key, but a safety chain was hooked on the inside. They then knocked on a window at the rear Goettig’s apartment, but no one answered. Townsend noticed two bags on the grass behind the apartment. She described them as a red “Marlboro” bag and a “bag like you might roll.” One bag had a tag with the name “Bearl Wheeler,” who was later identified as Painieh’s “adoptive father.” Young corroborated Townsend’s testimony and stated that he advised her to call the police. Townsend testified that when she returned to her car in the parking lot, Goettig’s car was gone.

While Townsend and Young were behind the apartment, James Lynn Owens called out to them. Owens lived in an apartment complex located behind Goettig’s apartment and her bedroom window overlooked Goettig’s rear patio area. Owens testified that when she opened her bedroom blinds that morning, as was her daily routine, she noticed a white, heavyset male with a big, black tattoo on his right arm. (This description fits the defendant.) Because he seemed to be “doing strange things,” she paid attention to him. She described him as pacing back and forth and looking around. She saw him throw luggage and “scrub shoes” over the fence. Crime scene photos introduced into evidence show a red bag and a smaller blue bag behind a wooden privacy fence at the rear of Goettig’s apartment | .¡and a pair of blue shoes in the grass behind a chainlink fence between the two complexes.

Owens further testified that the man was “ducking down, like ducking low” as he left the apartment through the privacy fence gate and looking about as though trying to see if anyone was around. She said that he ran to the parking lot, returned to the apartment, and again ran to the parking lot a few minutes later. Shortly after, Owens saw Townsend knocking on the rear window of Goettig’s apartment and called out to tell her that a man had just left the apartment. Owens could not conclusively identify the defendant as the man she saw behind the apartment.

Corporal Tommy Crowson and Officer Joe Stewart of the Monroe Police Department arrived to check Goettig’s apartment. Crowson testified that upon entering the rear patio area, which was surrounded by a privacy fence, they saw that the sliding glass door was open and could hear a television playing at a high volume. While searching the apartment, they found Goet-tig on the floor of the second bedroom. Her body was covered with a bedspread. Crowson checked for vital signs and found none. They completed their search and then secured the apartment as a crime scene.

Detective James R. Willis testified that while he and other officers were looking for Goettig’s car, he noticed a car matching the description of the Ford Taurus parked in a vacant field near a canal and positioned so that the license plate could not be seen. The trunk and doors were open, and the defendant was standing outside the car. Willis along with two other detectives approached Painich and took him into custody by handcuffing |4him and reading him his rights. Willis described Painich as being steady, coherent, and not appearing to be under the influence of drugs or alcohol. Among items removed from Painich’s pockets was a photograph of some children. When Willis asked if the children in the photograph were his, Painich began crying and stated that it didn’t matter anymore, that he had done something bad, and that he was going to prison. When asked what he had done, Painich did not elaborate. Willis transported him for questioning.

At the police station, Detective Quinton Holmes Mirandized and then interviewed Painich. Their conversation was videotaped, and the tape was deemed admissible following a free and voluntary hearing outside the jury’s presence. The video was then played for the jury.

Painich stated that he met Goettig, who had been friends with his father and recognized him as “Jinx’s son,” on Monday, December 4, 2006, at O’Banion’s Pool Hall. He had recently left a rehab facility. Pai-nich drove her to a pool tournament that night, and she agreed to let him stay with her for $30 a day. He claimed that he gave her money about three times and that Goettig did not want anyone to know he was staying with her because it was a government apartment. Painich said that they had a “mother and son” relationship. He claimed that she let him use her car, that she sent him to the ATM for money at least 10 times, and that she let him do drugs and did some with him.

| ¡Painich stated that he slept all day Sunday, December 10, 2006, and then watched the football game with Goettig, whose sister called during the game. After the game, Painich used Goettig’s car to get money and crack. He stated that he went to several ATMs and withdrew between $100 and $200 from her account. He then drove to Lilac Street where he bought $100 of crack from “several different ones.” Next, he claimed that he and Goettig smoked eight rocks of crack in about an hour. Initially, Painich stated that he brought two people to the apartment after the game to smoke crack, but he also claimed that he and Goettig smoked crack with “Gavin” at the kitchen table of his apartment. Sometime late Sunday night, Painich left Goettig’s apartment. He said Goettig was on the couch when he left.

Painich next recalled returning to Goet-tig’s apartment around 1:00 a.m. on Tuesday morning with Amanda Parker, a woman he met at “Twins’ house.” He claimed that Parker called three guys to come to the apartment and that she bought crack from them. Painich said that he and Parker did drugs, had sex, and watched television. Painich stated that he told Parker to be quiet so as not to awaken Goettig, whom they did not see while at the apartment. Painich said that Goettig was a “hard sleeper” due to medications she took. Painich and Amanda left the apartment sometime before daylight and at some point got “split up.” He mentioned that Goettig’s wallet had been in her car and that Parker had gotten one of Goet-tig’s ATM cards and he had the other one.

Painich testified that he returned to Goettig’s apartment around 3:30 a.m., entering through the unlocked sliding glass door. He did not have a |fikey to the apartment. Painich stated that he used the bathroom; ate cheese, crackers, and soup; drank some milk; tripped over the coffee table and knocked some candle wax onto the floor; and then knocked on Goet-tig’s bedroom door around 5:00 or 5:30 a.m. He opened the door, found Goettig dead on the floor, and covered her with a blanket from the bed. Painich said that he vomited in the doorway and did not clean it. Painich claimed that he was high and paranoid due to smoking crack for days and that he had never before found a dead body. So, he panicked and began throwing his clothes into the Marlboro bag and a blue bag. He then heard someone banging on the door. Looking through the peephole, he saw a woman. Instead of answering the door, Painich threw his bags and shoes over the fence behind the apartment. He intended to retrieve his belongings, but a locked gate prevented him from getting to them, and he could not squeeze through or get over the fence. He then left in Goettig’s car.

Painich admitted that he pawned some rings and silver dollar coins. He claimed not to know whom the rings belonged to, but indicated that they were in a camouflage billfold in Goettig’s car. He said that the coins were his, but he admitted that Goettig kept coins on top of her refrigerator. Finally, he said that he last visited the ATM sometime Monday morning.

Amanda Parker testified that she saw Painich at the home of Terius Jenkins and that Painich asked if she wanted to see his apartment. She left with him in a car which he said was his. They made two stops at banks for Painich to get money using an ATM card. They entered the apartment [7through a sliding glass door. Painich told her that he had a woman roommate, but Parker did not see anyone at the apartment. Painich showed her some but not all the rooms, he let her pick out some clothes to wear, and she used some makeup left in the bathroom. Parker testified that Painich left her alone in the apartment for about an hour. She said that before leaving, Painich went to the back bedroom of the apartment and that she heard him say something. While alone, she watched television and did not look in any of the rooms. He returned with some crack. Parker stated that Pai-nich also gave her two Somas and told her that she could take some Valium from a bottle on top of the refrigerator. She took four or five of the pills. Parker explained that she has a “high tolerance for drugs.” Parker also testified that she sprayed some “409” cleaner on a spot that looked like blood near the small couch. Painich told her it was from his kid. Parker stated that she was at the apartment until about 4:30 a.m., that Painich dropped her off in West Monroe, and that she fell asleep at an abandoned house. In the morning, she tried to use a bank card that belonged to Goettig to get some food, but it did not work. She was not sure how she came to have the card. Parker left a white “hoodie” at the apartment. When she returned to get it, she saw police cars and yellow tape. She asked the police about the hoodie when they picked her up for questioning and claims the police told her it was full of blood.

Detective Holmes testified about the investigation. He noted the inconsistency between Painich’s claim that three men came to the apartment while he and Parker were there and Parker’s claim that she and Painich were |salone at the apartment. He also noted that Painich’s claim that he tried to climb over the fence to retrieve his bags was inconsistent with what Ms. Owens reported seeing him do. Detective Holmes said that Parker’s hoodie, which appeared to have blood on it, was found next to the sliding glass door and sent to the crime lab for testing. Drug paraphernalia used for smoking crack was found on the kitchen table. Crackers and a milk carton were found in the trash can and a soup can was in the kitchen. A used condom was also found in the trash can. A piece of cord, which the police believed was used to strangle Goettig, was found next to her and sent to the crime lab. The cord appeared to be broken, but the other piece was not found. However, the police recovered a hotplate in one of Painich’s bags and believed that the cord came from it. Detective Holmes testified that Luminol, which is used to detect areas of blood, was sprayed in the apartment almost two months into the investigation. He said that the Luminol glowed from a spot in the living room, down the center of the hallway, and into the bedroom where Goettig was found. A cutting of the carpet with red spots on it was sent to the crime lab, but did not test positive for blood.

Detective Holmes testified that Goettig’s bank and credit card records showed numerous transactions on December 11, 2006. Goettig’s AmSouth account records showed one checkcard purchase and over 10 withdrawals totaling over $700 made at ATMs at seven different locations. Her Washington Mutual credit card records showed four cash advances totaling over $450.

|Finally, Detective Holmes testified that he interviewed James Collins, Goettig’s ex-boyfriend, and that his alibi checked out. He further testified that there was no reason to suspect Collins, and there was no indication that Amanda Parker was involved in Goettig’s murder. All the evidence pointed to Painich.

James Collins testified that he had a 12-year relationship with Goettig that ended in a domestic altercation in May 2006. He described their relationship as “stormy.” He testified that he had seen her a few times after their breakup and did things for her. He last saw her at O’Banion’s Pool Hall on December 7, 2006, at which time she introduced him to Painich. Collins testified that he was not upset about seeing her with someone else, and he stated that he did not kill her.

Dr. Patrick Wojtkiewicz, the DNA unit supervisor at the North Louisiana Crime Lab, qualified as an expert in forensic biology and forensic DNA and testified about the evidence submitted for testing. Neither Parker’s white “hoodie” nor the piece of carpet from Goettig’s apartment tested positive for blood. The piece of cord found by Goettig was submitted to two types of DNA tests. The first was the basic DNA test which uses PCR, or polymerase chain reaction, to amplify the DNA found on a item. Wojtkiewicz explained DNA from two people will show up on the PCR test if both contributed DNA in equal amounts, but the PCR test will not show a second contributor of DNA if the first person’s DNA makes up 20 times or more of the DNA on the item. The majority of the DNA on the cord was Goettig’s, which was consistent with the theory that the cord was used to |10strangle her. The PCR test excluded Painich as a donor of DNA on the cord.

The second test was the YSTR test, which is used to identify certain DNA found only in males. The YSTR test works well to “fish out” the male DNA when there is a mixture of male and female DNA. The lab obtained a YSTR profile from the cord. Wojtkiewicz explained that all males in the same paternal linkage, such as fathers, male children, and brothers, would have the same YSTR profile. Thus, the profile was consistent with being from more than one male. Painich’s DNA profile had enough of the same characteristics as the YSTR profile that he could not be excluded as the donor. However, Wo-jtkiewicz conceded that Painich also could not be conclusively identified as the donor. Moreover, there was nothing to indicate when the DNA would have been left on the cord.

Dr. Frank Peretti, an expert in forensic pathology, performed the autopsy on Goet-tig. Dr. Peretti determined the cause of death to be ligature strangulation. Goet-tig also suffered from blunt force head injury as indicated by multiple facial abrasions, a black eye, and internal bruising in areas on the left side of her head. These injuries were consistent with being punched or slapped. Dr. Peretti categorized bruising on Goettig’s arms as defensive injuries indicating she had been involved in a struggle. Dr. Peretti noted that scrapes present on Goettig’s knees likely happened perimortem (about or near the time of death) or postmortem and were consistent with her falling to the ground, He also found that she had cirrhosis of the liver, which did not contribute to her death. The toxicology report revealed hnumerous drugs in Goettig’s system, but no illicit drugs or alcohol. No cocaine or cocaine metabolites were found.

The defense called three witnesses. Bearl Wheeler, identified as Painich’s “adoptive father,” testified that Painich collected coins and that Painich had told him about staying with Goettig. Vicky Johnston testified that she had seen Goet-tig and Painich at O’Banion’s Pool Hall about a week before her death. She also knew James Collins and believed he was Goettig’s husband. She saw Collins at a “wake” held for Goettig at O’Banion’s and described him as having a good time. Becky Griggs testified that she called the police with information that Amanda Parker had a credit card belonging to Goettig. Detective Holmes was recalled and testified that he spoke to Griggs but already knew about Parker having the card.

APPLICABLE LAW AND ANALYSIS

When examining the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. See also La. C.Cr. P. art. 821. The appellate court does not substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. We neither assess the credibility of witnesses nor reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The Injury’s decision to accept or reject the testimony of a witness in whole or in part is given great deference. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard applies in cases involving both direct and circumstantial evidence. Conflict in the direct evidence is resolved by viewing it in the light most favorable to the prosecution. The facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a credibility determination, the matter is one of the weight of the evidence, not its sufficiency. Id. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. It is also the proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Mims, 39,757 (La.App.2d Cir.6/29/05), 907 So.2d 237. When a conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438. Whether circumstantial evidence excludes every reasonable hypothesis of innocence is a question of law. State v. Van Sales, 38,138 (La.App.2d Cir.3/3/04), 867 So.2d 849, writ denied, 2004-1305 (La.4/22/05), 899 So.2d 569.

Second degree murder is the killing of a human being where the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is a state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10.1. It may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Wiggins, 44,616 (La.App.2d Cir.9/23/09), 22 So.3d 1039, writ denied, 2009-2329 (La.4/23/10), 34 So.3d 271. A jury may consider flight and attempts to avoid apprehension as evidence of a guilty conscience. Id.

The blunt force head injury and sti'angulation indicate a specific intent to kill. The issue is whether Painich was the perpetrator.

Painich argues that, with the exception of his ambiguous post-arrest statement that he had done something bad and was going to prison, this is a largely circumstantial case. He further argues that the circumstantial evidence did not exclude other possible suspects.

JjjThe state counters that there was strong direct and circumstantial evidence supporting the conviction and that the evidence at trial clearly established that Pai-nich was the person who murdered Goet-tig.

Having closely considered the evidence presented by the state in light of the Jackson standard, we find no merit to Painich’s argument that the evidence was insufficient to convict. The evidence placed Pai-nich in Goettig’s apartment near the time of her death. In his statement to the police, Painich claimed that he left the apartment sometime late Sunday night, December 10, 2006, after watching a football game with Goettig and then doing drugs. Contrary to Painich’s claim that Goettig smoked crack with him, the toxicology report on Goettig was negative for illicit drugs, cocaine, or cocaine metabolites.

We note that Painich claimed to have been doing drugs for days and to still be high even at the time of his taped interview. However, he appeared alert and coherent. He understood the questions and formulated detailed answers regarding his actions and whereabouts except from the time he stated that he left the apartment Sunday night until he returned there with Parker Monday night or the early hours of Tuesday morning.

Parker’s testimony established that Pai-nich told her that both the car he was driving and the apartment were his, and he let her pick out clothes from the apartment to wear. However, he did not let her see all the rooms in the apartment. Both Parker’s testimony and Painich’s statement established that Parker did not see Goettig while at the apartment. Parker also contradicted Painich’s claim that three men came to the apartment while fythey were there. Even though Parker admitted that she tried to use a card belonging to Goettig to buy food the next morning, the police found no evidence indicating her involvement in Goettig’s murder. In fact, Painich’s statement indicated that Parker got the card out of Goettig’s car. The jury could have reasonably discounted the possibility that Parker or any of the three men alleged by Painich to have visited the apartment murdered Goettig. Additionally, the police questioned Goettig’s former boyfriend, James Collins, and found no connection between him and the murder.

Direct evidence placed Painich at Goet-tig’s apartment almost immediately before her body was found. Owens observed a man throw his bags and shoes over the privacy fence behind the apartment. She testified that he was acting strangely and ducking as if attempting to avoid detection while running to the parking lot. Though Owens could not positively identify Pai-nich, his own statement indicated that he was the man Owens saw and that he was attempting to flee the apartment and avoid detection by the woman, apparently Townsend, who began knocking on the door. Furthermore, Townsend testified that Goettig’s car was in the parking lot, but not in its usual spot, when she arrived, but that it was gone by the time she returned to her car. This coincides with Painich fleeing the apartment.

Painich was found with Goettig’s car and a bank card in his possession. Goettig’s bank and credit card records showed that over 10 withdrawals totaling over $750 were made from her account on December 11, 2006, after the presumed time of her death, and over $450 in cash advances were made on her credit card. Painich’s statement to Officer | mWiIlis that he had done something bad and was going to prison is indicative of his culpability for Goet-tig’s murder. Considering the facts that Painich was found with Goettig’s car, bank card, and other items in his possession, the jury reasonably chose to believe that the statement referred to the murder and not to an admission of drug use. Finally, when the piece of cord found next to Goet-tig was tested specifically for male DNA, Painich could not be excluded as a donor to the DNA profile.

A rational jury considering all the facts established by direct and circumstantial evidence could reasonably conclude that Painich murdered Goettig and then used her bank card to get money and do drugs until the morning of Tuesday, December 12, 2006, when Goettig’s sister came to the apartment to look for her. At that point, Painich hurriedly removed his belongings from the apartment and fled so as to avoid detection. The defendant offered no reasonable hypothesis of innocence. The jury could have reasonably disbelieved Painich’s claim that three men came to the apartment and believed Parker’s testimony that she was alone at the apartment with Pai-nich. Furthermore, there was no evidence to support the defense’s effort to point to James Collins as the murderer. While none of the facts standing alone would suffice to prove the state’s case, the evidence considered in the light most favorable to the prosecution suffices to prove beyond a reasonable doubt that Painich committed the second degree murder of Goettig.

1,.CONCLUSION

For the reasons stated, we affirm the defendant’s conviction for second degree murder and life sentence.

AFFIRMED.

      . A free and voluntary hearing was conducted outside the presence of the jury to determine whether the defendant's statement to Det. Willis would be admitted. The trial judge found it admissible.

      . The pawn ticket describes the pawned items as, "Ring Jewelry, 10 KT, 4.70 DWT, 3 Ladies 10k Gold Rings 2 White Gold and 1 Yellow Gold [with] 4 Silver.”


text:
    BOGGS & POOLE CONTRACTING GROUP, INC., Plaintiff-Appellant v. CADDO-BOSSIER PARISH PORT COMMISSION, Defendant-Appellee.
    No. 45,669-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      John 0. Hayter, III, Mike Boggs, Shreveport, Louisiana, for Appellant.
    Charles G. Tutt, Shreveport, Louisiana, for Appellee.
    Wiener, Weiss & Madison by James R. Madison, John M. Madison, Jr., Shreveport, Louisiana, for Intervenor-Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

|2Boggs & Poole Contracting Group, Inc. (“Boggs & Poole”) appeals the judgment of the First Judicial District Court for the Parish of Caddo, Louisiana, which denied its petition for injunctive relief against the Caddo-Bossier Parishes Port Commission (“the Port”). For the following reasons, we affirm the judgment of the trial court.

Facts

In mid-2009, the Port was taking bids for the construction of the Regional Commerce Center (“the Project”). As part of its bid package, the Port required all contractors to complete and submit a Louisiana Uniform Public Work Bid Form contained in the bid package. The Port received eight bids, among those included the bids by Boggs & Poole and Wieland-Davco Corporation (“Wieland-Davco”). On June 9, 2009, the submitted bids were opened. Boggs & Poole’s bid of $9,922,000.00 was the second lowest bid. The lowest bid for the Project (and the one accepted by the Port) was by Wieland-Davco in the amount of $9,237,000.00. On June 18, the contract was awarded to Wieland-Davco. However, Boggs & Poole maintained that Wie-land-Davco did not precisely follow the bidding requirements and its bid should have been rejected, leaving Boggs & Poole as the lowest bidder.

On June 23, 2009, Boggs & Poole filed its petition for preliminary injunction and permanent injunction and mandamus against the Port. Wieland-Davco subsequently intervened. As stated, Boggs & Poole maintained that Wieland-Daveo’s bid form was not completed properly, and it should have been rejected, making the bid by Boggs & Poole the lowest |sbid and the one that should have been accepted. A trial was conducted, and the trial court ruled in favor of the Port and Wieland-Davco, dismissing the injunction request by Boggs & Poole. This appeal by Boggs & Poole ensued.

Discussion

On appeal, Boggs & Poole raises one issue: whether the trial court erred in concluding that the Wieland-Davco bid followed the bid requirements? Specifically, Boggs & Poole submits that the bid requirement at issue in the present ease is “where are the proper places to enter the bid amount.” The Port maintains that the real issue for this court to decide is not whether it waived a bidding requirement in favor of Wieland-Davco, but whether the Port properly interpreted its own bidding requirements.

Boggs & Poole states that the bid form in question provided two places to enter the bid amount and that the Special Provisions of the Project specifications required the following:

If submitting a paper bid, the bidder must record his bid in ink in figures and only in figures. The total bid amount must be written in the proper places provided for on the proposal form. (Emphasis added).

Boggs & Poole states that the Project bid form looked like this for the entry of the bid:

_DOLLARS ($_)

It maintains that because the Project specifications state that “The total bid amount must be written in the proper places [plural] provided for on the Rproposal form,” then the bid form should have been submitted like its bid form as follows:

$9,922,000 00/100 DOLLARS ($9,922,00 00/100).

However, Boggs & Poole states that the Project bid by Wieland-Daveo looked liked this:

_DOLLARS ($9,237,000.00).

Thus, Boggs & Poole maintains that Wie-land-Davco did not write its bid in the “proper places,” but in only one place, rendering Wieland-Davco’s low bid non-responsive. We disagree.

Louisiana’s Public Bid Law, set forth in La. R.S. 38:2211, et seq., is a prohibitory law founded on public policy. Hamp’s Const., L.L.C. v. City of New Orleans, 2005-0489 (La.02/22/06), 924 So.2d 104; Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211 (La.03/18/04), 867 So.2d 651. Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions. Hamp’s Const., supra.

Louisiana R.S. 38:2212 A(l)(b) provides as follows:

The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.

The standard of review for the issuance of a permanent injunction is the manifest error standard. Metro Ambulance Service, Inc. v. Med Life Emergency Medical Services, Inc., 39,440 (La.App.2d Cir.03/17/05), 900 So.2d 184. The issuance of a permanent injunction takes place only after a |strial on the merits in which the burden of proof is a preponderance of the evidence, but a preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 2003-2220 (La.04/14/04), 875 So.2d 22; Metro Ambulance Service, Inc., supra.

In the case sub judice, Boggs & Poole relies on Hamp’s Const, supra, arguing that the case stands for the simple principle that public bid form requirements must be followed precisely and that if the requirement is not followed, the bid is non-responsive. Neither the Port or Wieland-Daveo dispute the holding of Hamp’s Const, only its applicability to the facts in this case. We also agree that the holding in Hamp’s Const, is not relative to the facts of this case, because we do not believe that Wieland-Daveo deviated from the bid requirements.

As noted by Boggs & Poole, the construction specifications for the Project state as follows:

If submitting a paper bid, the bidder must record his bid in ink in figures and only in figures. The total bid amount must be written in the proper places provided for on the proposal form.

However, despite the claims of Boggs & Poole, it does not appear that the Port allowed Wieland-Daveo to deviate from these bidding requirements in violation of La. R.S. 38:2212 A(l)(b).

As shown herein, the bid form contained two blanks. It is evident that the first blank was not intended for figures as it has the word “DOLLARS” after it. That blank seemingly should have contained the bid amount stated in words, but the construction specifications state that the bid |,;be made in “figures and only in figures.” The second blank following the open parenthesis and dollar sign is clearly the blank intended for a numerical expression of the bid amount, i.e., “figures.” Although the bid form contained more than one blank, that does not mean that there was more than one proper place to state the bid. Clearly, the only proper place to insert the required figures was in the blank following the word, “DOLLARS,” not before it. In fact, the trial court noted that “the proper place to place numbers is within the parentheses and not before the word dollars.” It certainly would appear from the form that was the only reasonable and proper place to insert a numerical figure. We do not believe the conclusion by the trial court was an abuse of discretion or in error.

Conclusion

Considering the foregoing, we affirm the judgment in favor of the Caddo-Bossier Parishes Port Commission and Wieland-Davco Corporation as intervenor. All costs of this appeal are assessed to Boggs & Poole Contracting Group, Inc.

AFFIRMED.

      . Interestingly, Boggs & Poole was the only bidder who submitted a bid in figures placed on both blanks.


text:
    STATE of Louisiana, Appellee v. Andre T. WILLIAMS, Brushun D. Green, Catrenia N. Maynor, Appellants.
    Nos. 45,755-KA, 45,756-KA, 45,757-KA, 45,758-KA, 45,759-KA, 45,760-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Edward K. Bauman, Mark 0. Foster, Annette Roach, Louisiana Appellate Project, for Appellants.
    W. Mark McKee, District Attorney, Charles L. Cook, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ] These appeals arise from the judgments of the 37th Judicial District Court, Parish of Caldwell, State of Louisiana where, following a jury trial, Andre Williams, Brushun Green, and Catrenia Maynor were each found guilty of armed robbery and false imprisonment with a dangerous weapon, violations of La. R.S. 14:64 and La. R.S. 14:46.1, respectively. Williams was sentenced to 10 years for false imprisonment and 60 years for armed robbery without benefit of parole, probation, or suspension of sentence, sentences to run consecutively; Green was sentenced to 10 years for false imprisonment and 90 years for armed robbery without benefit of parole, probation, or suspension of sentence, sentences to run consecutively; and, Maynor was sentenced to 10 years for false imprisonment and 30 years for armed robbery without the benefit of parole, probation, or suspension of sentence, sentences to run concurrently. For the following reasons, we reverse in part and affirm in part.

Facts

James Norris owns a home on Judge Road in rural Caldwell Parish where he has lived for many years. For nearly a decade, Norris lived in this home with his then-girlfriend, Julia Gill. Gill’s daughter, Catrenia Maynor, also lived with Norris for some of that time. Norris and Gill separated around 2005, at which time Gill moved out of Norris’ home.

Norris works out of the country on a rotating schedule; since he is often gone for long periods he entered into an arrangement with Betty Johnson to stay at his home, pay his bills, and care for his pets when he was away.

[2On December 14, 2008, Johnson was staying at Norris’ home while he was working in Kuwait. Johnson’s friend, Bobbie Jo Anders, was staying with her in the home as well. That afternoon a suspicious phone call came into the house phone. When Johnson answered, the caller claimed to have bought a vehicle from Norris and requested the title to that vehicle. Johnson’s suspicions were aroused because she did not know of a vehicle that Norris had sold; therefore, she called Norris’ brother and Julia Gill to inquire if either knew of this purported sale. Neither knew of any such transaction. Gill then reported the call to the Caldwell Parish Sheriffs Office (“CPSO”), which sent two deputies out to the house to speak with Johnson.

At around 11:00 that evening three individuals broke into Norris’ home with guns and began robbing the house. Johnson and Anders were held at gunpoint during the robbery until police arrived on the scene and the perpetrators fled. Three deputies chased down the three perpetrators as they ran from the home. The defendants were caught on the scene and arrested.

Williams, Green, and Maynor were each charged with one count of armed robbery and one count of false imprisonment with a dangerous weapon and tried together before a jury. All three defendants were convicted on all counts and sentenced. These appeals followed.

Discussion

On appeal, Williams’ appeal counsel brings four assignments of error, along with one assignment of error raised by Williams in his pro se |scapacity. Green’s appeal counsel brings three assignments of error, along with one assignment of error raised by Green in his pro se capacity. Maynor raises four assignments of error through her appeal counsel.

Sufficiency of the Evidence

In this first assignment of error, Williams and Green each claim that the evidence was insufficient to support their convictions of both false imprisonment with a dangerous weapon and armed robbery. Specifically, Williams maintains that there was no physical evidence linking him to the crimes and that Johnson, the only eyewitness who testified, and Deputy Morris were not credible. Green maintains that the State did not provide proof of his identity as a participant in the crimes, or proof that he took anything of value from the victims. We disagree.

Elements of the Crime

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Henson, 38,820 (La.App.2d Cir.09/22/04), 882 So.2d 670. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Henson, supra. A previewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Additionally, a person may be guilty of a crime by being a principal to such crime. Louisiana R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Not all principals are automatically guilty of the same grade of offense; an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State v. Smith, 2007-2028 (La.10/20/09), 23 So.3d 291.

To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from the person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App.2d Cir.10/31/01) 799 So.2d 684. To convict a defendant of false imprisonment with a dangerous weapon, the state is required to prove that the defendant intentionally confined or detained another while armed with a dangerous weapon. La. R.S. 14:46.1.

Here, the evidence was sufficient to convict both Williams and Green of the crimes of armed robbery and false imprisonment ■with a dangerous weapon. It is apparent that the jury found Johnson and the officers who |fiwere on the scene to be credible, and it is not within the discretion of this court to re-assess that determination. Williams was armed with a handgun when he and Green broke down the door to Norris’ home. As Johnson explained, Williams took her firearm from her before both Williams and Green ransacked the bedroom looking for valuable property while Maynor held the women at gunpoint. There was ample evidence to convict both Williams and Green of the crimes of armed robbery and false imprisonment with a dangerous weapon through either their direct commission or through their active participation as principals.

Identity

Beyond proving the elements of the offense, it is necessary to prove the identity of the defendant as the person who committed the crime. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Youngblood, 41, 976 (La.App.2d Cir.05/09/07), 957 So.2d 305, writ denied, 2007-1226 (La.12/14/07), 970 So.2d 530; State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 1997-0383 (La.10/31/97), 703 So.2d 12. In cases involving a defendant’s claim that he was not the person who committed the crime, the state must negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.04/12/96) 677 So.2d 1008, writ denied, 1996-1807 (La.02/21/97) 688 So.2d 520.

In the case sub judice, ample evidence was presented to show that Williams and Green were indeed the individuals who committed the crimes |fifor which they were convicted. Johnson positively identified all defendants as the perpetrators that night, after having time to view the perpetrators’ faces as she was held at gunpoint in the home. Notably, none of the perpetrators was wearing masks or concealing their identities. Caldwell Parish Sheriff Steven May himself also saw and recognized Williams in the home before all three defendants were caught fleeing from the home.

The record contains sufficient evidence to support the defendants’ convictions in this case. When the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes of armed robbery and false imprisonment with a dangerous weapon beyond a reasonable doubt. Thus, these assignments of error are without merit.

Double Jeopardy

In the next assignment of error Williams, Green, and Maynor assert that they were subjected to double jeopardy when they were each convicted of both the offense of armed robbery and false imprisonment with a dangerous weapon based on the same course of conduct. We agree.

A person cannot twice be put in jeopardy for the same offense. U.S. Const, amend. V; La. Const. Art. 1 § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Ceasar, 37,770 (La.App.2d Cir.10/09/03), 856 So.2d 236. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be ^applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Louisiana also uses the broader “same evidence” test which dictates that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy and a defendant can be placed in jeopardy for only one.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988).

If double jeopardy is found, the proper remedy is a vacation of the conviction and sentence for the lesser-punishable offense. State v. Price, 39,582 (La.App.2d Cir.03/23/05), 899 So.2d 633.

While Louisiana courts have examined the double jeopardy issue regarding other combinations of crimes with armed robbery, it seems the combination of armed robbery and false imprisonment with a dangerous weapon has not been so examined for a double jeopardy violation. See State v. Rabun, 38,655 (La.App.2d Cir.08/18/04), 880 So.2d 184 (convictions for armed robbery and conspiracy to commit armed robbery violated double jeopardy); State v. Robertson, 386 So.2d 906 (La.1980) (convictions for first degree murder and armed robbery when armed robbery was the underlying offense violated double jeopardy); State v. Joseph, 2005-186 (La.App. 3d Cir.11/02/05), 916 So.2d 378 (convictions for armed robbery and aggravated burglary violated double jeopardy).

|sAs already noted herein, the elements of armed robbery are (1) a taking, (2) of anything of value, (3) from the person or in the immediate control of another, (4) by the use of force or intimidation, (5) while armed with a dangerous weapon. False imprisonment while armed with a dangerous weapon is the unlawful intentional confinement or detention of another while the offender is armed with a dangerous weapon. Although no Louisiana court has considered these two crimes together, we conclude that under the Blockburger test, these are clearly two separate offenses. Armed robbery requires proof of a taking, which false imprisonment with a dangerous weapon does not. Conversely, false imprisonment requires proof of “confinement or detention” not required to prove armed robbery.

The same evidence test, however, is a broader test that assesses the evidence required to convict a defendant of each crime. In the case sub judice when the defendants are charged with both armed robbery and false imprisonment while armed with a dangerous weapon, the same evidence was indeed used to convict them of both crimes. In this case, using the principles of double jeopardy and applying them to the specific facts of this case we find that the evidence required to support the conviction of false imprisonment while armed with a dangerous weapon would also have supported the conviction for armed robbery. Thus, under the “same evidence” test, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. When the defendants entered Norris’ home armed with a dangerous weapon and forced Johnson to remain at gunpoint while they ransacked the home after 19taking her weapon from her person, the defendants simultaneously committed the acts which could have supported a conviction for either offense. In presenting the facts to prove one offense, the state simultaneously proved the other. Therefore, since the same evidence will support a conviction for either offense, the defendants cannot be put in jeopardy for the two separate offenses.

Because false imprisonment with a dangerous weapon is a lesser offense as compared to armed robbery, the convictions of each defendant for false imprisonment •with a dangerous weapon are hereby reversed.

Batson Challenge

In this assignment of error defendants Green and Maynor allege that the trial court erred in allowing the state to exercise a peremptory challenge against potential juror Angela Tatum, after having already sustained the defense’s Batson objection to the state’s prior peremptory challenge of the same juror.

It is well settled that the' use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, 54 USLW 4425 (1986). The Batson decision is codified in our law in La. C. Cr. P. art. 795. State v. Bess, 45,358 (La.App.2d Cir.8/11/10), 47 So.3d 524. Striking a single juror can constitute an equal protection violation. State v. Collier, 553 So.2d 815, 819 (La.1989). In State v. Draughn, 2005-1825 (La.01/17/07), 950 So.2d 583, cert. denied, 522 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the court explained the review of a Batson claim:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Citations omitted.)

The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demean- or of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. Bess, supra, citing State v. Myers, 1999-1803 (La.04/11/00), 761 So.2d 498. A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, supra; Bess, supra.

When the prosecution exercised a peremptory strike against Tatum, Williams and Green both raised a Batson challenge to the strike. The trial court then required the prosecutor to provide a race-neutral reason for the challenge. He responded:

|1TI watched her body language. And I watched her, I was watching her, specifically, when [Williams’ attorney] was talking about black defendants. He uses something that I particularly wouldn’t use myself in voir dire when he says, “All defendants that are on trial on television are black. They’re all black.” And she’s sitting there like this (nods yes). And that really struck me. First of all, I didn’t care for it when he asked the other panel. Because that’s not true. I didn’t watch a lot of television, but I think there are a lot of other people that are on trial. But she agreed with that. And that gave us the impression that she’s agreeing that ... here we’ve got some more black people on trial. She’s the only black person that we’ve even moved to strike. And we have stricken other people. And guarantee you the people that we’ve moved to preempt [sic] on this particular panel were other white people. And they couldn’t tell me why we struck them, because they liked them.

The defense attorneys then noted that “all the rest of the white jurors” nodded their heads at the “black defendants on television” example as well. The court responded:

In reviewing the questions, in all candor, I did not hear anything that would cause, that indicated that the State had reasons to remove her. I’m going to grant the motion and put her back on the jury.

The following day after the next panel of jurors was questioned, the parties were given the opportunity to exercise strike backs. The prosecution again exercised a peremptory challenge against Tatum. He argued:

Yesterday, and to be quite frank with Your Honor, some of what I’m about to tell the Court, I was a little surprised by what happened, because we didn’t feel that they had met the prima facie case of racial discrimination in this case to put the burden or shift the burden to us under the law, but we did have to make a statement, and we did, and the Court didn’t find it sufficient. However, a remark was made during [Mr. Williams’ attorney’s] voir dire that, you know, he represented her. And then he moved over there in his fashion and said, and ... “Mister, Mr. McKee was on the other side, wasn’t he?” She said, “No. Huh-uh.” Everything, and that’s what I said yesterday, everything he said, she was sitting there nodding or agreeing with. And, we’d submit a copy of the lawsuit that was filed in |12that case. She was the person that Mr. McKee [the district attorney] sued. Now, if that’s not against her, I don’t know what it would be.
And [Mr. Williams’ attorney] knew that. He may say, well, it settled, and everything else. But the point is, it doesn’t matter whether it settled before it actually went to trial, he was directly suing that lady that was sitting there.
Another thing is, our office has check charges against this lady. She’s set for ... trial in August. And one of those checks is for $21.07, the other check is for $245.00, which could be a felony. [The D.A.’s office is going to treat the charges as misdemeanors.] It doesn’t disqualify her because she’s not under indictment for a felony. But we do have active, pending cases against her. And we’re prosecuting her for something. And we do not feel that that lady can sit here and be impartial in this case knowing that the very people that are trying to convince her that somebody else did something, and she’s gonna vote ... guilty. Our position is that we have these open, pending cases, and they’ve been in existence for awhile, and we should be allowed to preempt [sic] her. We’re not challenging her for cause.

The district attorney then told the court that he did not believe the defendants had made a prima facie showing of racial discrimination and that race was not the reason for the challenge to Tatum. Defense counsel responded that his recollection of the lawsuit at issue was that the district attorney “wasn’t going after her” and that the matter had settled, and that the prosecutor could have, but did not raise those issues in the previous challenge. The trial court then stated:

The Court took the position yesterday that, based on the question that I heard, I heard no question elicited that caused me a great amount of concern. I took, and because this is a racial issue has been raised, the Court was listening for some race-neutral reason. Yesterday, I heard none. Today ... I hear a different reason. What I heard from this lady yesterday, and I took the position, or assumed from [Mr. Williams’ attorney’s] question, that they were almost co-counsel. I did not, in any way, assume that she was a ... being sued by Mr. McKee or, it may have been a direct action. I understand how these things go. But that’s not how I took it. I think they have a right to a fair trial. And I think a Batson challenge can be denied, and it | ^doesn’t have to rise to the standard of cause. I think they have to show a reasonable reason to use a preempt [sic], based on something other than race.
I think, even more than the statement made about [District Attorney] Mark [McKee] being adverse to her, I think the fact that there are charges pending against her by the D.A.’s office, to me, would be sufficient to justify a preempt [sic]. And I don’t see anything wrong, I realize they didn’t meet that challenge yesterday, but I don’t see anything wrong with them raising that anew. And I’m gonna grant the backstrike.

In a criminal case, the fact that a potential juror is facing criminal charges brought by the district attorney’s office that is also prosecuting the defendant is a race-neutral reason for the exercise of a peremptory challenge. Likewise, prior litigation where the district attorney was adverse to the potential juror is a race-neutral reason for the exercise of a peremptory challenge.

We find no error in the trial court originally reseating Tatum after a finding that there were no race-neutral reasons for the first challenge. Additionally, we find no error in the trial court hearing grounds for a second peremptory challenge and finding that the prosecution had valid race-neutral reasons for dismissing Tatum. Accordingly, we find no merit in this assignment of error.

Denial of Motions for Mistrials

Defendants claim the trial court erred in denying two motions for mistrial regarding two separate circumstances, as well as a third circumstance where no motion for a mistrial was asserted. We disagree.

| uCertain events require the trial court to grant a mistrial upon motion of the defendant: if the judge, district attorney, or court official makes an irrelevant and prejudicial remark about race, the defendant’s failure to testify, or the judge’s refusal to direct a verdict; or, if inadmissible other crimes evidence is adduced. La. C. Cr. P. art. 770. When a remark is made that does not fall under art. 770, a mistrial is not mandated. Instead, the court must admonish the jury, if this is requested, and only grant a mistrial if, within the court’s discretion, the admonishment is not sufficient to assure a fair trial. La. C. Cr. P. art. 771. A trial court’s ruling denying a mistrial will not be set aside absent an abuse of discretion. State v. Narcisse, 426 So.2d 118 (La.1988), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).

A mistrial must also be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. La. C. Cr. P. art. 775. The court explained in State v. Adams, 30,815, (La.App.2d Cir.06/24/98), 715 So.2d 118, writ denied, 1998-2031 (La.03/19/99), 739 So.2d 774:

Mistrial is a drastic remedy and proper only when misconduct deprives the defendant of any reasonable expectation of a fair trial. Whether prejudice has resulted lies in the sound discretion of the District Court.
In a criminal case, any private communication, contact or tampering directly or indirectly with a juror during a trial about a matter pending before the jury is deemed presumptively prejudicial. However, not every contact between a juror and a witness will result in mistrial; prejudice must be established. (Citations omitted.)

h fMotion for Mistrial Because of Statement

The first motion for a mistrial was made after the state referenced, in the presence of the jury, that defense counsel had argued something outside of the jury’s presence. During direct examination by the state of a witness, the following occurred:

Mr. Cook: Now, when you talked to Betty, did uh, tell the Jury whether or not she related to you that she was concerned about this call—
Mr. Champagne: Objection, Your Hon- or, I think he’s testifying, I think he’s leading and testifying, he’s been doing it now for the last couple of minutes, now, and I let it go. I object.
Mr. Cook: Your Honor, they’re the ones that argued outside the presence of the Jury that all this was his investigation—
Mr. Champagne: I object to that, Your Honor.
Ms. Domangue: Move for mistrial.
The Court: No, no, no — I’m gonna overrule the objection, you may proceed.
Mr. Cook (continuing): You talked to Betty and Betty got two phone calls—
Mr. Champagne: Your Honor, I move for mistrial at this point.

The motion for mistrial was later denied and the jury was admonished regarding that statement:

The Court: The Jury’s back. Y’all may be seated. I’ll advise the Jury, you are to disregard any comments or uh, about any conversations or discussions that might take place outside your presence. You may proceed.

Williams and Maynor appeal this denial of the motion for mistrial claiming the comment prejudiced their cases. We disagree.

| )fiIn this case, the remark complained of does not satisfy the requirements for a mandatory mistrial under La. C. Cr. P. art. 770 as the statement did not relate to race, failure to testify, refusal to direct a verdict, or other crimes. The trial court properly found that defendant’s remedy was under art. 771 and administered an admonishment to the jury. Further, the trial court made the jury aware several times prior to this incident that in the normal course of a trial some things will be discussed outside their presence, and that those things should be ignored. We see no reason why these admonishments would not have been sufficient to ensure a fair trial. Therefore, we find no abuse of the trial court’s discretion in its denial of defendants’ motions for mistrial. Accordingly, we find this assignment of error to be without merit.

Motion for Mistrial Because of Juror Intimidation

The second motion for a mistrial was made after an incident when Maynor’s brother made a threatening comment to two jurors outside the court. The morning of the first day of trial, two jurors, William Hoof and Edward Hooter, were outside the courthouse awaiting the trial to begin. Hoof noticed a group of people, who appeared to him to be Maynor’s family, near them. Hoof told Hooter this observation. Subsequently, Maynor’s brother approached the jurors and asked them to tell him what they said. The jurors told him they were not talking about them. When it came time to enter the courthouse the jurors walked past Maynor’s brother. Hoof heard Maynor’s brother say, as they passed him, ‘You better get your shit straight, old man, or I’ll take care of you.” Hoof further stated |)7Maynor’s brother began making faces at him in the courtroom throughout the trial after this incident. Hooter did not testify to hearing Maynor’s brother make any comment as the jurors walked by or to seeing anyone make faces at him throughout the trial. Hoof reported the incident to the bailiff later that day. The trial court called both jurors in to discuss the incident, questioning them about how this affected them and their responsibilities as jurors. Both men stated they did not feel threatened nor did they think they were targeted as jurors. The trial court then excluded Maynor’s brother from the courtroom for the remainder of the trial. At this time, defense counsel moved for a mistrial on the basis that this interaction was prejudicial to the defendants’ cases. The trial court denied the motion stating that the jurors indicated this interaction would not affect their service on the jury. In an unrelated matter, Hoof was removed from the jury for an injury to his ankle and was replaced by the alternate juror. Therefore, Hooter was the only questionable juror who deliberated. Williams, Green, and Maynor appeal this denial claiming the trial court erred in not granting it. We disagree.

In this case, the trial court conducted a careful inquiry into the incident, heard from both jurors, and determined that the jurors were not even certain whether the man who made the comments was a relative of a defendant or not. Additionally, neither juror felt intimidated and neither juror felt this incident would affect his service on the jury. Also, Hoof was the only juror who heard the statement that Maynor’s brother would “take care of [him]” and Hoof was subsequently taken off the jury for unrelated | ^reasons. Further, even if Hooter was compromised in some way, the jury was unanimous in its decision; therefore, Hooter’s vote could have gone either way without altering the final outcome of the trial. We see no abuse of the trial court’s discretion in its denial of defendants’ motions for mistrial. Accordingly, we find this assignment of error to be without merit.

Closing Argument

Maynor asserts that a statement made by the prosecution during closing arguments, regarding charges related to the unavailable victim Anders, was prejudicial; however, neither an objection nor a motion for mistrial was made in response to this statement. As such, the error was not preserved for appellate review by a contemporaneous objection as required by La. C. Cr. P. art. 841 and it will not be addressed. State v. Owens, 32,640 (La.App.2d Cir.10/27/99), 763 So.2d 628, writ denied, 2000-0010, (La.06/16/00), 764 So.2d 963.

Consolidation

In this assignment of error May-nor claims the prosecution did not follow proper procedure in consolidating the cases against the defendants for trial and in severing the charges involving the unavailable victim, Bobbie Jo Anders, from the trial as well. Maynor contends the defendants are the proper parties to move for consolidation of a trial, not the court or the prosecution. And since the prosecution procured separate trials in this case, she claims a new trial should be ordered on these grounds. We disagree.

|, 9When more than one defendant is charged in separate bills of information the proper procedure for consolidating the trials is through motion of the defendant(s). La. C. Cr. P. art. 706. If the state chooses to consolidate the trials, they may do so by dismissing all charges and recharging in a consolidated form. Official Comment (b) to art. 706. Despite this rule, the Louisiana Supreme Court has held that once a verdict has been rendered in cases where this proper procedure was not followed, the defendant must show prejudice to establish the consolidation affected his substantial rights. State v. Crochet, 2005-0123 (La.06/23/06), 931 So.2d 1083.

In the case sub judice, defendants did not object to the consolidation in the trial court, with the exception of Green’s motion to sever which he later withdrew. Therefore, it appears Maynor did not object to the consolidation in the trial court, and thereby did not preserve this issue for appeal. Assuming arguendo that Maynor has a right to complain about this error on appeal despite the lack of objection, there exists no evidence of prejudice. The proof of the defendants’ identities was essentially conclusive as they were caught fleeing from the scene. The facts of the case were simple enough to allow a jury to separate each defendant’s participation without difficulty. There is no evidence Maynor was prejudiced by the decision to consolidate the trials of the defendants, or the decision to sever the charges relating to Anders. This assignment of error is without merit.

| ¾0Confrontation Clause

Williams argues in his pro se capacity that the trial court erred in allowing Detective Tony Childress of the Caldwell Parish Sheriff’s Office to testify about what he learned from Julia Gill, who did not testify in this case. No objection, however, was raised to that testimony at trial; therefore, according to La. C. Cr. P. art. 841(A) this issue may not be heard on appeal. Further, allowing this testimony appears to have been a part of the defense strategy, as defense counsel later described the testimony as exculpatory. This assignment of error is without merit.

Excessive Sentence

Defendants Williams and Maynor each challenge their sentences as excessive. When a defendant’s motion for reconsideration alleges generally that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1998), writ denied, 634 So.2d 373 (La.02/11/94), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness. Mims, supra; State v. Lofton, 41,423 (La.App.2d Cir.9/27/06), 940 So.2d 702, writ denied, 2006-2952 (La.9/28/07), 964 So.2d 359. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.04/06/05), 899 So.2d 733.

However, there is a two-pronged inquiry for appellate review of sentences for excessiveness when there is a substantive motion to |⅞1 reconsider. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 1994-0461 (La.09/05/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App.2d Cir.12/09/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, supra; State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/03/03), 861 So.2d 144; State v. Linnear, supra. The second prong is the constitutional ex-cessiveness standard, discussed above.

Williams makes a general claim of exces-siveness of sentence; therefore, his issue will be reviewed using the broader constitutional excessiveness standard. His 60-year sentence for armed robbery, and his consecutive 10-year sentence for false imprisonment, are hardly “grossly disproportionate” or “shocking.” He was the leader of the group of robbers and he was the only person who brought a firearm into the victim’s home. He is the person who kicked down the door and he is the one who forcibly disarmed Johnson. He is a third felony offender who was not charged as such. If he had been so charged, he would face a life sentence.

For Maynor, whose motion to reconsider sentence alleged that the trial court did not take into account the relevant mitigating factors, the inquiry is the broader two-step analysis. Her sentence is likewise | ^appropriate. The record reflects that the trial court took her age and family status into account in imposing the sentence, and, subsequently, the trial court chose to run her robbery and false imprisonment sentences concurrently rather than consecutively. However, the record fully supports the trial court’s conclusion that, were it not for the swift response of the CPSO, one or more of the victims were at great risk of death. Maynor had identified herself to Johnson, none of the robbers wore masks, Maynor repeatedly threatened to blow off the victims’ heads, and the defendants severed the phone lines to the victims’ home before entering. It is apparent the defendants had little regard for the lives of the victims, and this is reflected in the sentences.

Because we have reversed the respective convictions for false imprisonment, those portions of the defendants’ sentences are reversed as well. Otherwise, we deem defendants’ sentences for their armed robbery convictions to be reasonable and appropriate. These assignments of error are without merit.

Conclusion

For the foregoing reasons, the convictions of Andre T. Williams, Brushun D. Green, and Catrenia N. Maynor are reversed in part and affirmed in part, as amended.

REVERSED IN PART, AFFIRMED IN PART, AS AMENDED.

      . It is important to note in this case where three defendants were tried together that pursuant to La. C. Cr. P. art. 842, "If an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all the defendants."

      . There were no objections made to the denials of the motions for mistrial. While it is questionable under La. C. Cr. P. art. 841 whether such objections are necessary to preserve the issues for appeal, out of an abundance of caution we have chosen to address these assignments of error.