author: PATRICIA RIVET MURRAY, Judge.

text:
    Michael A. DUGAS v. Dwayne P. THOMPSON and American Vehicle Insurance Company.
    No. 2011-CA-0178.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.
    Rehearing Denied Aug. 12, 2011.

      Kevin C. Schoenberger, Kevin C. Scho-enberger, APLC, New Orleans, LA, for Plaintiff/Appellant, Michael A. Dugas.
    Lloyd N. Shields, Jeffrey K. Prattini, Jessica R. Derenbecker, Shields Mott Lund, LLP, New Orleans, LA, for Appel-lees, Hamp’s Enterprises, L.L.C. and Charlie Hampton.
   PATRICIA RIVET MURRAY, Judge.

hThe sole issue in this case is prescription. From a judgment sustaining the peremptory exception of prescription filed by the defendants, Hamp’s Construction, L.L.C., formerly known as Hamp’s Enterprise, Inc. (“Hamp’s”), and Charlie Hampton, the plaintiff, Michael Dugas, appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Mr. Dugas purchased property located at 1201 Governor Nicholls Street in New Orleans, which had situated on it an unoccupied, old house (the “Property”). During Hurricane Katrina, which struck the New Orleans area in August 2005, the Property sustained some damage. In October 2006, Mr. Dugas contracted with Dwayne Thompson to dismantle a portion of a leaning exterior brick wall and to reconstruct it. In November 2006, while Mr. Thompson’s work crew was performing the job, a large section of the wall collapsed, causing damage to the Property. According to Mr. Dugas, Mr. Thompson neither completed the job nor returned to clear the site.

In December 2006, the City of New Orleans (the “City”) notified Mr. Dugas by letter that the Property was in violation of the City’s Building Code, Ordinance 11,625 Section 102.4.1 — “Imminent Danger: Causing, allowing, and or permitting pan unsafe building to remain in a dangerous/hazardous condition that is harmful to the public health, welfare and safety of the public.” The City also notified him that he had ten days to take the following corrective action: “repair and brace the exterior brick wall of the main structure, secure building, and clean site of all debris and materials.”

Also in December 2006, the City entered into an “Imminent Danger Demolition Contract” (the “Demolition Contract”) with Mr. Hampton doing business as Hamp’s. The City hired Hamp’s to “remove existing building, structure, trash and grade lot,” and to “[sjalvage all salvageable materials.” The City ordered Hamp’s to proceed under the Demolition Contract within ten days. Hamp’s timely performed the demolition services and was paid by the City for its services.

While Hamp’s was performing its services, Mr. Dugas visited the Property. He observed Hamp’s employees removing bricks from the collapsed wall and removing portions of the scaffolding that were located at the Property. According to Mr. Dugas, Hamp’s employees told him, in response to his inquiries, that Hamp’s was hired by the City to rectify a hazard at the premises.

In November 2007, within one year of the wall collapsing, Mr. Dugas filed this suit against Mr. Thompson and his insurer, American Vehicle Insurance Company, for damages arising from the collapse of the wall and breach of contract. In June 2009, Mr. Dugas filed a first supplemental and amending petition adding Hamp’s as an additional defendant. In his petition, he alleged that Hamp’s was liable to him for improperly removing his materials from the Property. He averred that “Hamp’s cleared and removed all debris from the site, including but not limited to approximately 19,000 bricks and certain scaffolding which were the |splaintiffs property and which he intended to reuse.” He further averred that Hamp’s was jointly liable with Mr. Thompson for the losses he sustained as a result of the removal of the bricks and scaffolding.

In July 2010, Mr. Dugas filed a second supplemental and amending petition adding Mr. Hampton individually as an additional defendant. According to Mr. Dugas, after he filed the prior petition adding Hamp’s as a defendant, he obtained a copy of the Demolition Contract. The purpose of this petition was to make a “technical amendment” to the petition to reflect that the actual parties to the Demolition Contract were the City and Mr. Hampton doing business as Hamp’s. In this petition, Mr. Dugas averred that the Demolition Contract required Hamp’s to salvage the materials and that Hamp’s failed to do so. He further averred that Hamp’s “illegally removed his salvaged materials from his property, including but not limited to valuable old brick, millwork and scaffolding, which have not been returned and for which plaintiff has not been compensated.”

In response, Mr. Hampton and Hamp’s (collectively “the Hamp’s Defendants”) filed peremptory exceptions of no right of action and prescription. The Hamp’s Defendants contended that Mr. Dugas’ claims against them sounded in tort — conversion — and thus were subject to a one-year prescriptive period. Since Mr. Dugas failed to join the Hamp’s Defendants until more than one year after the removal of the materials from the Property, the Hamp’s Defendants contended that the claims against them were prescribed. The Hamp’s Defendants further contended that Mr. Dugas had no right of action under the Demolition Contract because he was not a party to the contract. Following a hearing, the trial court sustained the exception of prescription and dismissed Mr. Dugas’ suit against the Hamp’s Defendants. This appeal followed.

J^DISCUSSION

This case presents both factual and legal determinations for review. See Farber v. Bobear, 10-0985, p. 11 (La.App. 4 Cir. 1/19/11), 56 So.3d 1061, 1069 (citing Bell v. Glaser, 08-0279, p. 4 (La.App. 4 Cir. 7/1/09), 16 So.3d 514, 516)(noting that prescription generally is a factual determination); Peneguy v. Porteous, 01-1503, p. 6 (La.App. 4 Cir. 5/15/02), 823 So.2d 380, 384 (citing Landry v. Blaise, Inc., 99-2617, p. 4 (La.App. 4 Cir. 8/2/00), 774 So.2d 187, 190) (noting that appellate review of peremptory exceptions involves the determination of whether the trial court was legally correct). An appellate court reviews a trial court’s factual findings under a manifest error or clearly wrong standard of review. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). When a trial court commits a legal error, an appellate court is required to review the record de novo. Edwards v. Pierre, 08-0177, p. 9 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 656.

The applicable prescription statute governing delictual claims is La. C.C. art. 8492, which provides a one-year prescriptive period commencing from when injury or damage is sustained. The applicable prescription statute governing personal actions, including contractual claims, is La. C.C. art. 3499, which provides that, unless otherwise provided by legislation, a ten-year prescriptive period applies. Prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished by it. Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. The general rule is that the defendant-mover has the burden of proving prescription. However, if the plaintiffs claim is prescribed on the face of the petition, the burden shifts to |fithe plaintiff to negate prescription by establishing a suspension or an interruption. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992).

If Mr. Dugas’ claim against Hamp’s is delictual it is prescribed on its face as it was filed more than one year after the date of the alleged conversion of his property.

On appeal, Mr. Dugas advances two arguments in support of his contention that the trial court erred in sustaining the Hamp’s Defendants peremptory exception of prescription. He argues that his claim is a personal action subject to a ten year prescriptive period on the theory of a stipulation pour autrui or on unjust enrichment. Alternatively, he contends that, even if his claim is a delictual one, his suit is timely based on two alternative grounds: he and Mr. Thompson are joint tortfea-sors; or contra non valentem.

We first address Mr. Dugas’ contention that his suit is timely even if determined to be delictual, addressing each of his separate grounds.

Joint tortfeasors

Mr. Dugas contends that the Hamp’s Defendants and Mr. Thompson are joint tortfeasors and that his timely filed suit against Mr. Thompson, which is still pending, interrupted prescription. In support, he cites La. C.C. art. 2324(C), which provides that “[ijnterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” Mr. Dugas contends that the collapse of the wall set in motion the chain of events that led to the Hamp’s Defendants’ removal of his valuable materials. Mr. Dugas thus contends that the actions of the Hamp’s Defendants and Mr. Thompson, albeit occurring on different days, caused the same loss. According to Mr. Dugas, the Hamp’s Defendants and Mr. Thompson are | f,“joint tortfeasors because together they caused the damage sustained by [Mr.] Dugas.”

Mr. Dugas cannot prevail on this argument as the record reflects that the trial court granted a partial summary judgment in favor of Mr. Thompson on the issue of his liability for any damages caused by the Hamp’s Defendant’s actions. That partial summary judgment was certified as final; no appeal was taken. Therefore, there is a final judgment holding that these defendants are not joint tortfeasors.

Contra non valentem

Mr. Dugas next contends that prescription did not commence to run as to his claims against the Hamp’s Defendants until he obtained a copy of the Demolition Contract and discovered that it contained a salvage provision. He acknowledges that he knew from an earlier date that Hamp’s was responsible for removing the bricks. Nonetheless, he contends that the running of prescription was suspended because the Hamp’s Defendants concealed that they were required by the contract to salvage the bricks. In support of this contention, he cites McGuire v. Monroe Scrap Material Co., 189 La. 573, 180 So. 413 (La.1938).

The Monroe Scrap Material case relied on the equitable theory of contra non va-lentem to find an interruption of prescription until the plaintiff discovered the tort-feasor’s identity. The plaintiff was the victim of a theft, but did not know the thief s identity. When the plaintiff saw the items that were stolen from him at the defendant’s scrap yard, he filed suit against the defendant for taking his |7property. Rejecting the defendant’s contention that the plaintiffs claim was prescribed, the court held that the one-year prescriptive period did not commence to run until the plaintiff obtained knowledge of the thief s identity. Likewise, Mr. Du-gas contends that the one-year prescriptive period did not begin to run on his claim against the Hamp’s Defendants until he obtained a copy of the Demolition Contract, and discovered the salvage provision. He argues that, until this time, he was not aware that these defendants converted his property by failing to comply with that provision. Because his suit was filed within one year of obtaining a copy of the Demolition Contract, he contends that it is timely.

The Hamp’s Defendants counter that the Monroe Scrap Material case is distinguishable because the plaintiff in that case had no reason to know the tortfeasor’s identity and sued within a year of learning the tortfeasor’s identity. In contrast, the record establishes that Mr. Dugas was aware of Hamp’s identity in December 2006 when the demolition and removal of the materials from the Property occurred. They contend that prescription began to run at the time of the alleged tortious act of conversion — removal of the materials.

In Monroe Scrap Material, supra, the court noted that the contra non valentem theory would not have applied and that the prescription “plea would be good if plaintiff had known who committed the theft, when it was committed.” 189 La. at 578, 180 So. at 414. This is the circumstance present here. Mr. Dugas knew that Hamp’s removed his materials from the Property in December 2006 when the materials were removed. Prescription thus commenced to run at the time of the alleged tortious act. Mr. Dugas’ failure to obtain a copy of the Demolition Contract until after prescription ran cannot be used to extend the prescription period. As the Hamp’s Defendants contend, the fact Mr. Dugas “undertook an [ ^investigation of the matter by inquiring at City Hall for records authorizing [Hamp’s] to undertake this job,” but turned up nothing is of no merit because he was aware of Hamp’s identity at the time of the alleged conversion.

We turn next to Mr. Dugas’ contention that his is a personal rather than a delictual action, and, therefore, subject to a ten year prescriptive period. He argues that the Demolition Contract between the City and the Hamp’s Defendants contained a stipulation pour autrui of which he is the third party beneficiary.

Stipulation pour autrui

In support of his contention that he is the third party beneficiary of the Demolition Contract Mr. Dugas relies on the following provision of that contract:

THE CONTRACTOR AGREES TO:
Salvage all salvageable materials: include[d] but not be limited to wooden door frames, wooden window frames, brackets, doors, windows any decorative millwork structural lumber, bricks, cinder blocks, ironwork, baseboards, roofing slate, tile, shingles, floorboards, glasswork shutters, weather boards, cabinets, bathtubs, plumbing and wiring.

Mr. Dugas argues that the clear implication of the salvage provision is that the materials must be salvaged so that the property owner can retain use of them. He cites Cooper v. Louisiana Dep’t of Public Works, 03-1074, p. 17 (La.App. 3 Cir. 3/3/04), 870 So.2d 315, 330, for the proposition that Louisiana law “favors stipulations made in favor of third persons.” Id. Mr. Dugas also cites the following test enumerated in Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969), and applied in Cooper, supra, for determining whether a contract provides a benefit for a third person:

(1) The existence of a legal relationship between the promisee and the third person involving an obligation owed by the promisee to the beneficiary which performance of the promise will discharge;
(2) the existence of a factual relationship between the promisee and the third person, where (a) there is a possibility of future liability Reither personal or real on the part of the promisee to the beneficiary against which performance of the promisee [sic] will protect the former; (b) securing an advantage for the third person may beneficially affect the prom-isee in a material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended.

Andrepont, 255 La. at 358, 231 So.2d at 351 (citing J. Denson Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul. L.Rev. 18, 58 (1936))(“Professor Smith’s test”). Mr. Du-gas contends that part (2)(a) of the test applies in this case.

According to Mr. Dugas, Professor Smith’s test was applied, under circumstances similar to those presented in this case, in the Cooper case to find a stipulation pour autrui. In Cooper, supra, the plaintiffs, who were landowners, were found to be third party beneficiaries of a contract between the United States and the Louisiana Department of Transportation and Development (“DOTD”). In so finding, the court reasoned that the United States was “interested in having the DOTD undertake its obligation to compensate the Plaintiffs if construction resulted in the taking of their lands because, otherwise, the United States would be responsible for paying their claims for reimbursement.” Cooper, 03-1074 at 18, 870 So.2d at 331. Likewise, Mr. Dugas contends that the City was interested in having the demolition contractor, Hamp’s, salvage the materials because the City could otherwise be subject to the property owner’s claim for removal of his salvageable materials. For this reason, Mr. Dugas submits that the City had Hamp’s undertake this duty for his benefit.

The Hamp’s Defendants counter that that the Demolition Contract expressly precludes anyone from obtaining third party beneficiary status under it; particularly, they cite the exclusivity provision of the contract, which provides:

^EXCLUSIVE NATURE OF CONTRACT
Both the City of New Orleans and the Contractor acknowledges the direct nature of this contract in these services outlined herein and are directed to the original parties of this agreement, who have qualified for participation in the Demolition Program. Rights under this contract; therefore do not extend to any persons other than the original parties hereto.

The Hamp’s Defendants contend that the words of the Demolition Contract precluding third party beneficiary status are clear and explicit. See La. C.C. art. 2046 (providing that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”)

The Hamp’s Defendants point out that the general purpose of the Demolition Contract is to protect the public from the unsafe, hazardous condition and that the specific purpose of the salvage provision is to preserve and to recycle the reusable building materials. The Hamp’s Defendants further point out that any implied or incidental benefit resulting from the Demolition Contract is in favor of the general public, not the specific property owner who failed to remedy the dangerous condition on his property despite having been notified to do so by the City. They still further point out that the only reason Hamp’s was on the Property was because Mr. Dugas failed to take corrective action.

The Civil Code provides that a contracting party may stipulate a benefit for a third party who is not a party to the contract and who is “called a third party beneficiary.” La. C.C. art. 1978. Under Louisiana law a contract for the benefit of a third party is called a stipulation pour autrui — translated as a stipulation “for |nother persons.” Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 05-2864, p. 7 (La.10/15/06), 989 So.2d 1206, 1211, n. 5 (citing Black’s Law Dictionary 1427 (7th ed.1999)). “The stipulation gives the third party beneficiary the right to demand performance from the promisor.” La. C.C. art. 1981.

Although Article 1978 recognizes that a stipulation pour autrui may exist, the Civil Code provides few governing rules. Joseph, 05-2364 at p. 8, 939 So.2d at 1211 (citing La. C.C. arts. 1978-82). Nor does the Civil Code provide an “analytic framework for determining whether a third party beneficiary contract exists” in a particular case. Joseph, 05-2364 at p. 8, 939 So.2d at 1211. Each case must be decided on a case-by-case basis, and “[e]ach contract must be evaluated on its own terms and conditions in order to determine if the contract stipulates a benefit for a third person.” Joseph, 05-2364 at p. 8, 939 So.2d at 1212.

Three criteria are used to determine if a particular contract stipulates a benefit for a third party: (1) the stipulation for a third party must be “manifestly clear;” (2) there must be “certainty as to the benefit provided the third party;” and (3) the benefit must not be “a mere incident of the contract” between the contracting parties. Joseph, 05-2364 at pp. 8-9, 939 So.2d at 1212. In applying these criteria the ultimate determination must be based “on the words of Article 1978 that the contract must ‘stipulate a benefit for a third person.’ ” Joseph, 05-2364 at p. 9, 939 So.2d at 1212. “A person may derive a benefit from a contract to which he is not a party without being a third party beneficiary.” Joseph, 05-2364 at p. 12, 939 So.2d at 1214. “The party claiming the benefit bears the burden of 112proof.” Joseph, 05-2364 at p. 9, 939 So.2d at 1212 (citing Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897 (La.App. 1 Cir. 5/12/00), 762 So.2d 136). A stipulation pour autrui is never presumed. Joseph, 05-2364 at p. 9, 939 So.2d at 1212.

The language of the Demolition Contract demonstrates that Mr. Dugas cannot satisfy the first and second criteria set forth in Joseph for a stipulation pour au-trui. The contract does not provide a benefit that is “manifestly clear,” and there is no “certainty as to the benefit provided.” Joseph, 05-2364 at p. 9, 939 So.2d at 1212. The Demolition Contract mentions neither the property owner, in general, nor Mr. Dugas, in particular; rather, the contract mentions only the municipal address at which the demolition services are to be provided: “1201-03 Gov. Nicholls St., New Orleans.”

As noted, Mr. Dugas also contends that the City had a duty to him to salvage the materials in order to avoid a claim for compensation, and the City had Hamp’s undertake that duty for his benefit. A similar claim — that a municipality had a duty to compensate a landowner whose property was demolished for the value of the landowner’s salvageable materials— was rejected in Davis v. City of Baton Rouge, 383 So.2d 1057 (La.App. 1st Cir. 1980).

In the Davis case, the property owner claimed that the City of Baton Rouge’s failure to give him credit for the value of the salvageable materials from his house that was condemned and demolished constituted a taking. Affirming the trial court’s judgment finding of no taking, the appellate court in Davis reasoned:

The purpose of the law is to permit the City to remove a condition hazardous to public safety. The removal and disposition of the materials composing the structure is necessary to the accomplishment of that purpose. Ample opportunity is afforded the property owner to take the | ^salvageable materials prior to demolition. His failure to repair the structure, or to salvage the materials therein, can only be construed as an abandonment thereof.

383 So.2d at 1059. For the same reason, Mr. Dugas’ suggestion that the City had a duty to him that was served by including the salvage provision is misplaced. The purpose of the salvage provision was not to benefit the property owner who, in effect, abandoned the materials. Any benefit to the property owner is at best incidental. Hence, in this case, the third Joseph criteria — that the benefit not be a mere incident to the contract — is not met.

Summarizing, none of the three Joseph criteria is met. The most basic requirement of a stipulation pour autrui— that the contract manifest a clear intent to benefit the third party — is lacking in this case. The benefit, if any, to Mr. Dugas was purely incidental. The trial court thus correctly found that Mr. Dugas failed to establish a stipulation pour autrui.

Unjust enrichment

Mr. Dugas alternatively contends that the Hamp’s Defendants have been unjustly enriched at his expense and that he had ten years to bring a personal action for unjust enrichment. The jurisprudence has identified the following five elements required to establish an unjust enrichment claim: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and resulting impoverishment, (4) an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) no other remedy at law available to plaintiff. JCD Marketing Co. v. Bass Hotels and Resorts, Inc., 01-1096, p. 13 (La.App. 4 Cir. 3/6/02), 812 So.2d 834, 842 (citing Baker v. Maclay Properties Co., 94-1529, p. 18 (La.1/17/95), 648 So.2d 888, 897). The Legislature has codified unjust enrichment in La. C.C. art. 2298, which provides: “[a] person who has been enriched without l14cause at the expense of another person is bound to compensate that person.” La. C.C. art. 2298. Article 2298 further provides that “[t]he remedy declared here is subsidiary and shall not be' available if the law provides another remedy for the impoverishment.” Id.

Mr. Dugas’ unjust enrichment claim cannot succeed because he cannot establish an absence of another remedy at law available to him. La. C.C. art. 2298; Walters v. MedSouth Record Management, LLC, 10-0352, pp. 2-3 (La.6/4/10), 38 So.3d 241, 242. “The unjust enrichment remedy is ‘only applicable to fill a gap in the law where no express remedy is provided.’ ” Id. (quoting Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1st Cir.1988)). As the Hamp’s Defendants point out, Mr. Dugas had another remedy — a tort claim for conversion that he pled against them in his petitions. It is “of no moment that plaintiffs tort claims have been held to be prescribed. The mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment.” MedSouth Record Management, supra (citing Jim Walter Homes v. Jessen, 98-1685, p. 13 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 706). Stated otherwise, “[t]o find that [the plaintiff] ... now has no other remedy and to provide it one under unjust enrichment would be tantamount to allowing any plaintiff who let his cause of action prescribe ... to recover under an enrichment theory.” Jessen, 98-1685 at p. 13, 732 So.2d at 706. The trial court thus correctly found Mr. Dugas lacked an unjust enrichment claim.

FRIVOLOUS APPEAL DAMAGES

The Hamp’s Defendants in their appellee brief request that this court assess frivolous appeal damages, including attorneys’ fees and costs, against Mr. Du-gas pursuant to La. C.C.P. art. 2133 and La. Uniform Rules, Court of Appeal, Rule 2-[19.is However, the Hamp’s Defendants filed neither an appeal nor an answer to Mr. Dugas’ appeal. Although La. C.C.P. art. 2164 and Rule 2-19 provide for damages for frivolous appeals, such damages are not proper when the party seeking them fails to either appeal or answer the appeal. La. C.C.P. art. 2133; Legaux v. Orleans Levee Board, 99-2453 (La.App. 4 Cir. 5/17/00), 769 So.2d 19; Sears, Roebuck & Co. v. Appel, 598 So.2d 582, 584 (La.App. 4th Cir.1992).

Even if the Hamp’s Defendants had filed an appeal or an answer seeking frivolous appeal damages; La. C.C.P. art. 2164 and Rule 2-19, which allow damages for a frivolous appeal, are penal in nature and must be strictly construed in the appellant’s favor. See Levy v. Levy, 02-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650. Appeals are favored, and frivolous appeal damages are not granted unless they are clearly due. Haney v. Davis, 04-1716, p. 11, (La.App. 4 Cir. 1/19/06), 925 So.2d 591, 598. Even when an appeal lacks serious legal merit, frivolous appeal damages will not be awarded unless the appeal was taken solely for the purpose of delay or the appellant’s counsel is not serious in the position he advances. Elloie v. Anthony, 95-0238, p. 3 (La.App. 4 Cir. 8/23/95), 660 So.2d 897, 899. Applying these principles, we cannot conclude that this appeal is unquestionably frivolous.

DECREE

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

AFFIRMED

      . Although Mr. Dugas also cites Dumas v. State, Dep’t of Culture, Recreation & Tourism, 02-0563 (La.10/15/02), 828 So.2d 530, in support of his joint tortfeasor characterization, the Dumas case involves an unrelated issue regarding an original tortfeasor's liability for subsequent negligent medical treatment. The Louisiana Supreme Court in Dumas held that the original tortfeasor was entitled to present evidence of the fault of the negligent health care provider as an affirmative defense at trial. Mr. Dugas’ reliance on the Dumas case is misplaced.

      . The Hamp's Defendants also cite a provision of the City’s Building Code that has been amended to require that demolition contracts entered into by the City include a requirement that "demolition contractors recycle all salvageable construction materials.”

      . In Joseph, supra, the Louisiana Supreme Court noted that Professor Smith’s test is "an analytical tool to determine whether a stipulation pour autrui has been established — not a definitive analysis.” Joseph, 05-2364 at p. 8, 939 So.2d at 1212 n. 6.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Torrey D. BROWN.
    No. 10-KA-238.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Charles T. Carr, III, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Torrey D. Brown, Angie, LA, in Proper Person/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Torrey D. Brown (“Brown”), was charged by bill of information with two counts of attempted first degree robbery (Counts I and II), in violation of La. R.S. 14:27:64.1; one count of first degree robbery (Count III), in violation of La. R.S. 14:64.1; and carjacking (Count IV), in violation of La. R.S. 14:64.2. After pleading not guilty to all charges, a trial was held. On May 7, 2009, a twelve-person jury found Brown guilty as charged on Counts I, II, and IV and guilty of a lesser charge of simple robbery on Count III. Prior to sentencing, the State filed a multiple bill of information, alleging Brown was a third felony offender.

Brown was sentenced to serve ten years on Counts I and IV concurrently; five years on Counts II and III, to run consecutive to each other and to Counts I and IV, all to be served with the Department of Corrections. Additionally, the trial court imposed the sentences on Counts I, II, and IV to be served without the benefit of parole, probation, or suspension of sentence.

Following his original sentencing, Brown waived a formal reading of the multiple bill of information, which had been previously filed, and denied the allegations contained therein. Brown was subsequently adjudicated to be a third felony offender on Count IV. The trial court then vacated the previous sentence on Count IV and resentenced to him to twenty years with the Department of | ^Corrections on Count IV, without the benefit of probation, parole, or suspension of sentence, to run concurrently to Count I, and consecutively to Counts II and III. Ultimately, Brown received thirty years with the Department of Corrections given credit for time served. This timely appeal follows.

Relative to Count I, the testimony and evidence is as follows:

Deputy Jean Lincoln, employed with the Jefferson Parish Sheriffs Office, testified that on February 14, 2008 during roll call, at 6:00 a.m., and while patrolling, there were descriptions broadcast over the radio involving robberies at a McDonald’s located at 3407 Lapalco, a McDonald’s on Lafitte Larose, and an Exxon Station near Ames and Barataría. Specifically, Deputy Lincoln received information that there was an armed robbery, which involved a carjacking, and an armed and dangerous suspect possibly named “Torrey.” Additionally, a specific vehicle and license plate number was dispatched. Deputy Lincoln testified that, as a result of the information she received at roll call, she was looking for a tan Envoy, with a particular license plate number. Additionally, Deputy Lincoln was looking for a black male, wearing all black as a possible perpetrator.

Deputy Lincoln came upon a vehicle that matched the vehicle description and license plate number given earlier. It was parked on the side of the road, in front of 2051 Savage Street, a residence. Deputy Lincoln then saw a person, who matched the description of the possible perpetrator, exiting the vehicle. Subsequently identified as Brown, the man was wearing a black top and bottom.

As Brown banged at the front door of the residence, Deputy Lincoln exited her vehicle, drawing her weapon. Deputy Lincoln instructed Brown to stop and show his hands because he had something in his hand. Brown did not comply. The homeowner, later determined to be a relative of Brown, then opened the door and Brown forced his way into the home. Before entering, Deputy Lincoln observed |4Brown drop several papers. As Deputy Lincoln approached the door seconds after Brown had entered, Brown was thrown out of the residence by the owner. Ultimately, Brown was subdued by another officer. Inside the residence, some children pointed toward a sofa, underneath which Brown had thrown something. A dark wallet belonging to Ms. Kennedy was recovered by Deputy Lincoln, and the papers outside were bank slips belonging to one of the victims, Margaret Kennedy. Deputy Lincoln examined the interior of the vehicle Brown had been driving, and found a telephone receiver that had been taken from one of the stores.

Erica Jackson testified that, on February 14, 2008, at around 6:00 a.m., she was working as a shift manager at the McDonald’s on the corner of Alex Kornman and Lapalco in Jefferson Parish. She first noticed Brown, whom she recognized, leaning on the front counter as if he were going to place an order. Ms. Jackson was working in the grill area, when she saw two of her cashiers run behind the counter, toward the back, frightened in appearance. When she asked them what was wrong, they continued to run around a station, came back to the front, and ran out of the store. At the same time, Ms. Jackson saw someone coming around the counter; she looked up and saw that the person was Brown. She asked him, “Torrey what are you doing back here?” Brown yelled to her “don’t say my name.” She then responded back, “I know you all my life. That’s the name I know you.”

Next, Ms. Jackson walked up to the front register, threw her keys on the counter, and tried to use a customer’s cell phone to call 9-1-1 to report that someone, who did not work at McDonald’s, was behind the counter and that “something bad was happening.” When she reached for the customer’s cell phone, Brown grabbed it out of her hand, but the customer grabbed it back. Ms. Jackson then proceeded to walk out of the left side of the door. She was afraid because Brown “didn’t look like himself,” he walked behind the counter, and he was | (¡wearing all black. She further testified that he looked like he was very sick, “like he wasn’t feeling well.” The other two employees had already run from behind the counter into the kitchen area. Ms. Jackson had no doubt in her mind that the person she saw that day was Brown, and she identified him in open court.

A couple of hours later, the police brought Ms. Jackson to see if she could identify the person involved in the earlier incident. Ms. Jackson testified that she recognized Brown and that he was wearing black jeans and a black hoodie, the same clothes he was wearing in the store. Additionally, she testified that Brown didn’t get any money out of the register, but he did, temporarily, take the cell phone from her.

Mr. Randy Johnson, a truck driver, testified that, on the day of the incident, he was just getting off of work, and he went to McDonald’s for breakfast at around 6:00 a.m. When he first walked into the McDonald’s, he did not see anybody. Then he looked over and saw a male, wearing what looked like a McDonald’s uniform, black pants, a black and red shirt, with a black jacket. The male, later identified as Brown, was standing “where they do their french fries and hashbrowns.” Mr. Johnson looked down at the menu, then he and Brown looked at one another. As Brown proceeded to walk to the back, Mr. Johnson asked, “Hey, man, somebody is going to take my order?” Brown continued to walk to the back, and then returned walking fast behind the manager, who Mr. Johnson knows as “Erica.”

Mr. Johnson testified that he believed that Erica and Brown were involved in a domestic dispute because they were “calling out each other names, and he was cursing at her.” Brown was telling her, “Come back here.” When they came to the front, Erica ran from the service side of the counter to the customer side, going toward Mr. Johnson, and Brown followed. Erica grabbed Mr. Johnson, swung him |fiaround to get behind him, and asked him, “Randy, let me see your telephone. I want to call 9-1-1.”

Mr. Johnson then gave her his phone and she began to dial 9-1-1, with Brown standing in front of them. Mr. Johnson admitted that he did not remember Brown having a hood on at all. When Erica began to call 9-1-1, Brown walked on the side of Mr. Johnson and grabbed the phone out of her hand. Mr. Johnson then grabbed it back and believed that he and Brown were about to fight. Instead, Brown stepped back and “he (Brown) showed like had like something under his jacket.” Mr. Johnson further testified that he did not know what he had but “it had a little shape to it and it was pointing from up under his jacket.” Mr. Johnson believed that he thought it could have been a gun or a knife. Brown then told Mr. Johnson, “Don’t get hurt behind these people’s s* *t.” Mr. Johnson further testified that Brown was “out of it,” looked “like he was on drugs,” and was talking to himself.

At that point, Brown backed away, went around to the register, and told Erica, “If you don’t open this f* * *ing register I’m going to blow your brains out,” or “beat your brains out.” Mr. Johnson then knew that “it was a robbery or something shady going on.” Erica was standing behind Mr. Johnson, trying to get out of the store when Brown went around the register and tried to open it himself. As he did so, some other ladies ran from the back. Mr. Johnson then saw Brown beating on the counter, and heard him murmur to himself, “Well, f* * * it. I’m going to the safe.” Mr. Johnson stated that when Brown went to the safe “we (Mr. Johnson, Erica, and another older man who was in the store) all just ran out the store.” Brown did not try to take anything from Mr. Johnson.

Mr. Johnson went to the parking lot. When the police came, Mr. Johnson and the other people at the scene indicated that Brown was still in the store. After 17the police stated they did not see anyone inside, Mr. Johnson then saw a woman walking around saying that that somebody took her car. Mr. Johnson later identified Brown as the perpetrator from a photographic lineup and also made an in-court identification.

Ms. Whitney Whyte testified that she was working in the kitchen at the McDonald’s on Lapalco Boulevard on February 14, 2008. Ms. Whyte’s father drove her to work and she arrived at around 6:00 a.m. She then put her purse down on the counter and went back through the door to get her father some coffee. As she went through the door, she observed two persons at the front counter: an old man and someone, later identified as Brown, wearing black over his head. According to Ms. Whyte, Brown was wearing a jacket that was entirely zipped and remained zipped throughout the entire incident. She brought her father the coffee, came back inside, picked up her purse, and went to the “crew room.”

On her way back from the crew room, she heard an old lady, later identified as the cashier, “Ms. Rosetta,” in the front screaming for the manager, saying that “this man is trying to rob us.” Ms. Rosetta was running and Brown was coming behind her. At that time, Ms. Whyte encountered Erica, the manager, near the ice machine. Ms. Rosetta joined Ms. Whyte. Ms. Whyte observed Brown wearing a black sweatshirt with a hood over his head, with black pants.

Meanwhile, Erica recognized Brown and called him by name saying, “Torrey, get from behind the counter.” With his hand in his right pocket “like it was a gun,” Brown responded, “Just open the register, y’all going to lose y’all life over a few change, just open the register.” Ms. Whyte admitted that she believed it was a gun and was afraid.

While inside the store, Erica asked Ms. Whyte to use her cell phone and dial 9-1-1; however, before Erica could speak to the operator, Ms. Whyte took the Rphone back to call her father. At that time, Ms. Whyte, Erica, and Ms. Rosetta were running and Brown was walking around. Ms. Whyte then testified that she, Erica, and Ms. Rosetta went outside where she observed the other customer who was at the counter. Additionally, Ms. Whyte declared that there was a “prep lady,” named “Bianca,” who never left the store during the entire incident. When the police arrived, Brown was not there because “he took the lady car in the drive-thru.” Later, Ms. Whyte picked Brown out of a photographic lineup and also identified him in court.

The evidence regarding Count III is as follows:

Ms. Evelyn Dennis testified that she was the store manager at Exxon on Bara-taría on February 14, 2008. At around 7:00 a.m., Ms. Dennis was working in the store, with six or seven customers also inside. Ms. Dennis noticed a person, later identified as Brown, fumbling inside of his pockets with his hands, walking back and forth from the cooler to the front of the store, letting customers go ahead of him for a period of ten or fifteen minutes. Ms. Dennis testified that she observed Brown moving his hand “trying to pretend like he had a weapon in his pocket.” She kept watching him, and dialed 9-1-1 on the speaker phone. Particularly, Ms. Dennis testified that “[Brown] was trying to fix his finger, as if it’s a weapon. But [she] kept watching him, and he — he kept changing hands. That’s what made [her] notice it wasn’t a weapon.” Ms. Dennis further explained that she did not believe Brown had a gun in his pocket because she noticed him fumbling, “using both hands trying to figure out how he can pretend like it was a weapon.”

Brown then came up to the register with a pack of gum and one hand inside of his pocket. Ms. Dennis scanned the gum and when she told Brown the price of the gum he told her to “give him everything [she] had in the register.” Ms. Dennis 1 ^responded, “What are you going to shoot me with, your finger?” At the time the 9-1-1 operator answered, Brown heard it, and he went behind the counter. He struggled with the instrument which was mounted on the wall, “snatched the phone,” and left with the receiver end of the phone. Ms. Dennis testified that she did not have her hands on the phone at the time Brown took it.

Ms. Dennis identified Brown on the scene at Savage Avenue within thirty minutes of the incident. She also identified him in court. The phone receiver taken from the Exxon Station was later recovered by Deputy Lincoln inside of Ms. Kennedy’s vehicle and later returned to the store.

Darlene Morton testified that she was at an Exxon Station between 6:00 a.m. and 7:00 a.m. on the day of the incident. Ms. Morton observed a person, later identified as Brown, taking a telephone out of the store and leaving with it. While she was getting coffee, Ms. Morton heard the store manager say, “Take your hand out of your pocket,” and Ms. Morton turned and looked at Brown. She noticed that he was wearing a black hooded jacket, with the hood over his head, and his hand pointed up in the jacket. Brown told the store manager to “give me everything in the register,” at which point she heard the store manager say “take your hand out of your pocket and get out of here.” She also recalled the manager say, “What are you going to shoot me with, your finger?” Ms. Morton followed Brown outside and recorded the license plate number of the vehicle and gave it to the store manager of the Exxon Station.

In his defense, Brown testified that, on the morning of the incident, he was standing outside of his sister’s house on Caddy Drive, in Marrero, Louisiana, where he was living. He was dropped off at that location at around 7:10 or 7:15 a.m., and from there he proceeded to walk to his cousin’s house on Savage Avenue because his sister did not answer nor did he have a key. Brown asserted that he | inwas wearing “a black thermal, a red thermal, and black jeans on the day of the incident.”

On the way to his cousin’s house, Brown observed several police cars, one which was occupied by Deputy Jean Lincoln. He saw more police units, and because he had been stopped by police in the past, he hurriedly approached his cousin’s door, and began to bang on it. Several deputies, including Deputy Lincoln, drew their guns and Brown stopped banging on the door and put his hands up. At no point did he resist. Brown was tackled and punched, then handcuffed and put into the police unit.

Brown testified that, after he was arrested in front of his cousin’s house, the police officers removed him from the police unit and put a black hooded jacket on him provided by Detective Barteet. Brown also testified that the stolen SUV was not there when he walked up to his cousin’s house and knocked on the door. Rather, he observed the vehicle being driven onto the scene by Detective Barteet. Brown denied being at either of the McDonald’s stores or the Exxon Station on the day of the incident, and, further, denied ever robbing anyone from the stores. Additionally, he urged that he never saw or came into contact with Ms. Kennedy’s vehicle or personal effects, or the telephone receiver taken from the Exxon Station. He insisted that he was not the person in the pictures or videotapes recorded from the incident, which videotapes were played for the jury. Brown explained that a conspiracy to implicate him was fabricated by Erica, who lives next door to his mother, and the police, both of whom have a vendetta against him.

On cross examination, Brown admitted to lying under oath and pleading guilty to avoid jail time on a previous charge. When questioned as to how the black hooded jacket in State’s Exhibit 5 had grass on it if it was put on him after he was Intackled to the ground, he responded that another struggle ensued and he was thrown on the ground again.

Brown contends that the evidence was insufficient to convict him on Counts I and III. With regard to Count I, Brown urges that the bill of information was amended to list McDonald’s Restaurant rather than a human victim and that La. R.S. 14:64.1 specifically requires that the defendant “take something of value from someone,” not “someplace.” Here, the bill of information had previously named the victim as the cashier, Rosietta Miller, but was amended in open court to substitute “McDonald’s” as the victim. There was no objection to this amendment. Further, our error patent review discloses that, in addition to amending Count I, the State amended Count II to read that Brown attempted an armed robbery of McDonald’s, rather than of the named victim, Victoria Garland. In the interest of judicial economy, we will address both issues at once.

The technical sufficiency of the bill of information may not be questioned after conviction where the accused has been fairly informed of the charge against him by the bill, has not been prejudiced by surprise or lack of notice, has not raised an objection to the bill prior to the verdict, and is protected against further prosecution by examination of the pleadings and the evidence on the present conviction. Although the bill may have been technically defective by naming as victim a corporation rather a person, a review of the record reveals that Brown was fairly informed of the charge against him and has not been prejudiced by surprise or lack of notice. Moreover, he is protected against further prosecution by examination of the pleadings and the evidence on the present conviction.

As to the evidence, the constitutional standard for testing the sufficiency is whether after viewing the evidence in the light most favorable to the prosecution, | 12any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

Brown was charged and convicted of attempted first degree robbery on Count I, in violation of La. R.S. 14:27:64.1 and La. R.S. 14:27(A). La. R.S. 14:27:64.1 defines first degree robbery as the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. La. R.S. 14:27(A) provides that to attempt to commit a crime, an accused must do or omit an act tending directly toward the accomplishment of the crime while “having a specific intent” to commit the crime. Specific intent is a state of mind and, as such, need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. In order to prove an attempted first degree robbery, the State had only to prove that Brown had committed an act in furtherance of committing a robbery, and not that he actually took something of value.

The Louisiana Supreme Court has explained that the first degree robbery statute has both objective and subjective components. The Court stated:

It requires the state to prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon, and that the victim’s belief was objectively reasonable under the circumstances. The statute thus excludes unreasonable panic reactions by the victim but otherwise allows the victim’s subjective beliefs to |1sdetermine whether the offender committed first degree robbery or the lesser offense of simple robbery....
Direct testimony by the victim that he believed the defendant was armed, or circumstantial inferences arising from the victim’s immediate surrender of his personal possessions in response to the defendant’s threats, may support a conviction for first degree robbery....

In State v. Cook, this Court acknowledged that there was no testimony from the victim or from eyewitnesses that they believed the defendant in that case had a weapon. However, the victim did immediately comply with the defendant’s demands, and the defendant’s actions were sufficient to cause one of the witnesses to press the bank’s alarm button. Given these circumstances, we inferred that the victim believed the defendant had a dangerous weapon during the course of the robbery. In considering another count in that same case, the victim testified that, in the course of her encounter with the robber, he told her, “You don’t have to die over this.” She testified that the defendant jiggled his shirt, and she believed he was carrying a weapon under the shirt. We found this testimony clearly sufficient to prove that defendant induced a subjective belief in the victim that he was armed with a dangerous weapon, and such a belief was reasonable under the circumstances.

The present case is analogous. Although Ms. Jackson did not testify that she thought Brown had a weapon, she stated that he was behind the counter where he should not have been, causing her to throw her keys and run away from him. Mr. Johnson testified that she ran behind him, and Brown threatened to either “blow her brains out” or “beat her brains out,” and acted as if he had something under his shirt that he believed could have been a gun or knife. Mr. Johnson also stated Brown told him, “Don’t get hurt behind these people’s s* *t.” Ms. Whyte testified | uthat she heard the cashier screaming that Brown was trying to rob the place and that, while Brown was saying, “you’re going to lose your life over a few change,” he had his right hand in his pocket, “like it was a gun.” Ms. Whyte admitted that she believed it was a gun and she was afraid. Brown unsuccessfully attempted to open the cash register. Although Brown testified that he was not present and did not commit the alleged acts, the credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier-of-fact. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier-of-fact or to reweigh the evidence absent impingement on the fundamental due process of law.

Under the circumstances presented here, we find that Brown induced a subjective belief that he was armed with a dangerous weapon in his attempt to rob the restaurant and that such a belief was reasonable under the circumstances.

As to Count III, Brown contends that the State failed to prove beyond a reasonable doubt that defendant took something of value from the victim, Ms. Dennis, while leading her to reasonably believe that he was armed with a dangerous weapon, which was an essential element of the charge. Brown argues that Ms. Dennis never believed that he had a weapon.

Brown was charged with first degree robbery on Count III, in violation of La. R.S. 14:64.1; however, he was convicted of simple robbery, a violation of La. R.S. 14:65, which was a lesser included offense. In the statute, simple robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” The elements necessary to ^sustain a conviction of simple robbery are: 1) the taking of anything of value; 2) belonging to another; 3) from the person of another; 4) by use of force or intimidation. Black’s Law Dictionary (9th Ed.2009) defines force, in part, as power, violence, or pressure directed against a person or thing. Although Ms. Dennis did not testify that she was intimidated, she, nevertheless, was sufficiently alarmed to call 9-1-1; further, the act of going behind the counter after hearing the operator, grabbing at the phone which was in the immediate control of Ms. Dennis, and snatching the receiver constitutes force within the meaning of the statute.

The jury was presented with all of the evidence, and it apparently rejected Brown’s testimony. The evidence, viewed in a light most favorable to the State, was sufficient to establish that Brown was guilty of the essential elements of the crimes beyond a reasonable doubt on Counts I and III.

This assignment of error is without merit.

PRO SE ASSIGNMÉNT OF ERROR NUMBER ONE

Brown challenges the application of the multiple offender statute, contending that it provides an unconstitutional advantage to the prosecution because a defendant is not afforded the same procedural and adversarial protections as the prosecution. However, this issue was not raised in the trial court. This Court has held that the constitutionality of a statute cannot be raised on the first time on appeal. Further, because we find, infra, that the multiple offender proceedings were defective, we pretermit further discussion of the pro se assignments of error.

Brown requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920 | ^regardless of whether defendant makes such a request. Our review reveals one patent error requiring correction.

Pursuant to La. R.S. 15:529.1, the trial court shall inform defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. The record in the present case does not reflect that the trial court advised Brown, at the multiple offender hearing, of his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent.

Generally, a trial court’s failure to advise the defendant of his right to a hearing and his right to remain silent is considered harmless error, when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by admission of the defendant. In the instant matter, defense counsel stipulated what the testimony of the fingerprint expert would be if he testified, and further stipulated that Brown was the same person convicted of the predicate offenses. A hearing was held on defense counsel’s objections to the evidence on one of the predicate offenses, following which the trial court adjudicated Brown to be a third felony offender.

However, we find that, because Brown was never informed of his statutory rights under La. R.S. 15:529.1(D), his acknowledgment or confession of his prior felony convictions is invalid. The stipulation as to the testimony of the fingerprint expert does not change our analysis inasmuch as it, too, was made in the absence of the required advice. Further, although the State presented certified 117copies of Brown’s predicate convictions, it did not present sufficient proof that he was the same person that pled guilty to those offenses.

Establishing a defendant’s identity as the same person convicted of a prior felony offense may be accomplished by a variety of methods, including the testimony of witnesses, fingerprint analysis by an expert, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race, and date of birth. However, merely establishing that defendant’s name and that of the person previously convicted are the same is not sufficient evidence of identity under the multiple offender statute.

In viewing State’s Exhibits 1-5, we find that Brown’s identity was not sufficiently established in any other acceptable manner. There was neither witness testimony nor any authenticated photographs introduced into evidence. Most significantly, Brown’s birthdate listed on State’s Exhibit 1 for his underlying conviction is different from the birthdates listed in State’s Exhibits 2-5, for the predicate convictions.

In accord with the prevailing jurisprudence, we must reverse Brown’s multiple offender adjudication. We note that he is not protected by principles of double jeopardy from being tried again on the question of the prior felony convictions.

Based on the foregoing, we reverse Brown’s multiple offender adjudication, vacate his enhanced sentence, and we remand to the trial court for proceedings | ^consistent with this opinion. In all other respects, the underlying conviction and sentence are affirmed.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED

      . State v. James, 305 So.2d 514 (La.1974); State v. Butler, 41,985 (La.App. 2 Cir. 6/20/07), 960 So.2d 1208, writ denied, 07-1678 (La.5/9/08) 980 So.2d 685.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); See also, State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

      . State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

      . State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 449, writ denied, 09-158 (La.10/16/09), 19 So.3d 473.

      . State v. Cook, 98-848 (La.App. 5 Cir. 1/26/99), 729 So.2d 634, 639, writ denied, 99-570 (La.6/25/99), 745 So.2d 1185.

      . See, State v. Fortune, 608 So.2d 148 (La.1992).

      . State v. Fortune, 608 So.2d at 149 (citations omitted).

      . 98-848 (La.App. 5 Cir. 1/26/99), 729 So.2d 634, writ denied, 99-0570 (La.6/25/99) 745 So.2d 1185.

      . State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, writ denied, 09-2394 (La.10/15/10), 46 So.3d 1282.

      . Id.

      . State v. Robinson, 97-269 (La.App. 5 Cir. 5/27/98), 713 So.2d 828, 830, writ denied, 98-1770 (La.11/6/98), 727 So.2d 444.

      . State v. Lewis, 08-437 (La.App. 5 Cir. 11/12/08), 1 So.3d 535, 538, writ denied, 09-147 (La.10/2/09), 18 So.3d 102.

      . See, State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199; State v. Babineaux, 08-705 (La.App. 5 Cir. 1/13/09), 8 So.3d 621; State v. Bourgeois, 08-211, pp. 3-4 (La.App. 5 Cir. 10/28/08), 998 So.2d 165.

      . State v. Bourgeois, supra.

      . Id.

      . State v. Murphy, 09-805 (La.App. 5 Cir. 2/23/10), 34 So.3d 886, 889, writ denied, 10-0690 (La.10/15/10), 45 So.3d 1110 (citations omitted). See also, State v. Westbrook, 392 So.2d 1043, 1045 (La.1980).

      . Id.

      . See, State v. Babineaux, supra.


text:
    STATE of Louisiana v. Mike ALVAREZ.
    No. 10-KA-925.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Michael G. Morales, Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrie-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

|gThe defendant/appellant, Mike Alvarez (“Alvarez”), was charged with three counts of aggravated crime against nature upon a known juvenile, violations of La. R.S. 14:89.1.

Prior to trial, the State filed a Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to L.C.E. Article 412.2. That notice alleged that Alvarez was convicted of carnal knowledge of a juvenile in 1997. On June 17, 2010, a twelve-person jury returned guilty verdicts as to all three counts of aggravated crime against nature. Alvarez was sentenced to a term of imprisonment of fifteen years on each count, to be served consecutively, without benefit of parole, probation, or suspension of sentence.

The State indicated that it would be filing a multiple bill, which is the subject of a separate appeal.

P.B., the victim in this matter, was fourteen years old at the time of trial. She testified that, in the summer of 2001, when she was six years old, she was living at Duke Street in Kenner with her mother, T.B., and her mother’s boyfriend, Caesar Alvarez, who is Alvarez’s brother. P.B. testified that Alvarez “made me suck his private part” three times that summer. The first time, she was in the living room when Alvarez called her and told her to come downstairs. Alvarez then told P.B. |ato get on her knees and suck his private part. P.B. complied. Alvarez also showed her a sex tape. Afterwards, he made her get on top of him and was “making me roll on him and things.” He got her off of him, and then made her “suck his thing” again. The second time, Alvarez was in the bathroom when he told P.B. to suck his private part. According to P.B., some “white stuff’ came out and Alvarez told her to spit the white stuff into the sink and wash her mouth out. The third time, P.B. was in the kitchen. P.B. told her mother about these incidents, but she did not take her to a doctor or to the police. P.B.’s mother did tell Caesar Alvarez about it. Thereafter, after P.B.’s mother lost custody of her children, P.B. told her grandmother about Alvarez’s actions.

Detective Joseph McRae, of the Kenner Police Department’s Criminal Investigations Division, testified that, in February of 2007, he was contacted by the Children’s Hospital Care Center regarding sexual abuse of P.B. P.B. was at the care center with regard to physical abuse by her mother. Detective McRae interviewed P.B. thereafter. During that interview, P.B. told Detective McRae that “Mike” made her “suck” his “ding-a-ling.” Detective McRae arranged an appointment and interview at the Jefferson Children’s Advocacy Center. P.B. identified Alvarez from a photographic line-up during the subsequent interview.

Detective McRae interviewed Alvarez after he was arrested. Detective McRae testified that, during the interview, Alvarez adamantly denied P.B.’s allegations. He also told Detective McRae that he had never been inside the Kenner residence and had only seen the children twice, once outside the residence, and once in a department store. Alvarez declined to make a recorded statement.

Erika Dupepe, a forensics interviewer with the Gretna Police Department, testified that she was stationed at the Jefferson Children’s Advocacy Center in 2007. A DVD recording of an interview with P.B. at the Center was made and | identified by Ms. Dupepe and was played for the jury. In the interview, P.B. stated that Alvarez was staying at the house she shared with her mother and Caesar Alvarez to “get back on his feet.” P.B. described how Alvarez made her “suck his private part” on three occasions. On one of the three occasions, P.B. indicated that she swallowed “white stuff,” which she promptly spit out. She tried to tell her mother and Caesar Alvarez about what had happened, but Caesar refused to believe it.

S.B., P.B.’s grandmother, testified that she has never met Alvarez before. According to S.B., in the summer of 2001, P.B. was living with her mother on Duke Street in Kenner. S.B. visited the family during that time but did not see Alvarez there. S.B. testified that she learned of the offenses “in 2000 ... No it was in '99, I believe.” She indicated that P.B. was living with her at the time of trial because P.B.’s mother had abused the children, and the children had been taken away by OCS.

J.B., P.B.’s brother, testified that he, his mother, Caesar Alvarez, and Alvarez lived on Duke Street in Kenner in 2001. According to J.B., Alvarez did not reside at the Duke Street residence but, rather, was there “from time-to-time. Every other day, he would spend the night ... sometimes, you know.” He described Alvarez’s visits as “very frequent.” J.B. testified that P.B. told him what Alvarez had done approximately one or two months after the offenses occurred.

Alvarez presented several witnesses on his behalf. Kevin Buchner, a friend, testified that he used to work with Alvarez and that, in 2001, Alvarez lived on Frenchmen Street. Mr. Buchner indicated that he saw Alvarez frequently during that time. According to Mr. Buchner, he never mentioned visiting his brother, nor was he aware of Alvarez living anywhere other than Frenchmen Street at any time during 2001.

IsBobby Marshall, III testified that he worked with Caesar Alvarez and Alvarez at a Harahan Lazy Boy store in 2004. Mr. Marshall testified that he and Alvarez “double dated” with T.B. on at least one occasion in 2004. Mr. Marshall indicated that he did not know Caesar Alvarez, Alvarez, or T.B. in 2001.

Caesar Alvarez testified that he met T.B. early in 2001 and began living with her shortly thereafter. They lived in the Duke Street residence and Alvarez “never came to my [Duke Street] house.” Caesar Alvarez further indicated that T.B. did not have any friends visit the Duke Street residence in 2001. After living with T.B. in the Duke Street residence for approximately eight months, T.B. and Caesar Alvarez moved to Frenchmen. Street at the end of 2001. According to Caesar Alvarez, the first time that T.B. met Alvarez was in 2003 or 2004 when both he and Alvarez were working at Lazy Boy. To his knowledge, P.B. never saw Alvarez at the Duke Street house.

David Alvarez, another of the Alvarez’s brothers, testified that he was living in Kenner in 2001 and had visited Caesar Alvarez. According to David Alvarez, in 2001, Alvarez was living on Frenchmen Street and did not visit him or Caesar Alvarez that summer. Alvarez’s mother, Angilista Alvarez, also testified that Alvarez lived on Frenchmen Street in 2001.

On direct examination, Alvarez testified that he had a 1997 conviction for carnal knowledge of a juvenile. At the time, he was twenty years old. Although he denied knowing the victim of the 1997 crime was under eighteen, he, nonetheless, pled guilty to that charge because he “knew I did wrong.” He further testified that, during the summer of 2001, he had two jobs and was living at an apartment at 1842 Frenchmen Street. He had to be at work early and worked late, only having two days off. Alvarez stated that he did not visit David Alvarez or Caesar Alvarez that ^summer, and he did not hang out with his brothers. According to him, the first time he saw P.B. was on the day of trial. He denied molesting her.

On appeal, Alvarez contends that the evidence used to convict him of three counts of aggravated crime against nature was legally insufficient.

Alvarez argues that the evidence was insufficient because the State did not prove the offenses occurred between June 1, 2001 and August 16, 2001 as alleged in the bill of information; that his witnesses testified he was not at the Kenner house; and that the State did not negate the hypothesis that he was misidentified.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court must first determine the sufficiency of the evidence. The constitutional standard for testing the sufficiency of evidence requires that the evidence, direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. When circumstantial evidence forms the basis of a conviction, La. R.S. 15:438 requires that the elements of the offense be proven so that every reasonable hypothesis of innocence is excluded. “[T]he pertinent question on review [is] not whether the appellate court found that defendant’s hypothesis of innocence offered a reasonable explanation for the evidence at trial but whether jurors acted reasonably in rejecting it as a basis for acquittal.” All of the evidence, both direct and circumstantial, must be sufficient to satisfy a rational trier-of-fact that the defendant is guilty beyond a reasonable doubt.

|7In order to convict a defendant of aggravated crime against nature under La. R.S. 14:89.1(A)(6), the State must prove there is a crime against nature, and the victim is under the age of seventeen and the defendant is at least three years older than the victim. The ages of the victim and Alvarez in the present case are not in dispute. Oral sex constitutes “unnatural carnal copulation,” as contemplated by La. R.S. 14:89 and R.S. 14:89.1.

On appeal, Alvarez refers to S.B.’s testimony that she learned of the allegations in 1999 or 2000, before P.B. alleged they occurred. He also references the arrest register and probable cause affidavit, not admitted into evidence but discussed in Detective McRae’s testimony showing the offenses took place in 2003. However, the detective later testified that the report also indicated that P.B. was born in 1996 and was five or six at the time of the offenses.

Louisiana courts have held that the State is not required to present evidence proving the date of the offense when it is not an essential element of the crime. The date on which the aggravated crime against nature occurred is not an essential element of the offense. Therefore, the State was not required to prove the dates the offenses occurred. However, the evidence establishes that the offenses took place in the summer of 2001. Both P.B. and J.B. identified Alvarez and testified that he was frequently staying in the home during that period of time; P.B. testified that she was six years old at the time of the offense; and J.B. stated that she told him about it a month or two later.

IsThe credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency, and the credibility of witnesses will not be reweighed on appeal. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second-guess the rational credibility determinations of the fact finder at trial.”

Alvarez urges that P.B. is learning disabled and in special education, and there were discrepancies in her testimony. Alvarez also argues that the history of abuse in P.B.’s life and family impugns her testimony and gives rise to a reasonable hypothesis of innocence and that she was “possibly molested” by someone else.

It is well established that the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the state fails to introduce physical evidence to substantiate the commission of the offense. P.B. testified consistently that Alvarez made her perform the acts alleged on three occasions, and positively identified him. Alvarez’s theory of “possible” molestation by an unnamed person does not present another reasonable hypothesis. The jury was presented with all of the evidence, and it apparently rejected Alvarez’s version of events.

This assignment of error is without merit.

Alvarez also contends that the trial court erred by allowing the State to admit testimony and evidence of his conviction in 1997 of carnal knowledge of a | ¡juvenile. He does not dispute that the conviction occurred; rather, he contends that, although the prior conviction fit within the definition of Carnal Knowledge of a Juvenile, “the facts of the prior crime do not fall within the parameters of sexually assaultive behavior or the definition of a crime that indicates a lustful disposition toward children” so as to be admissible under La. C.E. art. 412.2. Alvarez urges that the victim of the crime told him that she was eighteen, looked old for her age, and was able to gain access to a nightclub at the age of thirteen.

The State called T.R., the victim of the 1997 offense. She testified that she met Alvarez in a nightclub, in 1997, when she was thirteen years old. She told him she was eighteen years old, they had a sexual relationship, and nothing was forced upon her. T.R. also testified that she had been subpoenaed by the defense, rather than by the district attorney, that she had refused to testify against Alvarez “a long time ago,” and that she testified because she wanted to “clear it up.”

Alvarez did not object to this testimony at trial. To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. La.C.Cr.P. art. 841(A). The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal.

| inSince Alvarez did not object to T.R.’s testimony at trial, this argument is not properly before us for review. We further note that Alvarez himself admitted to the prior crime on direct examination.

We have reviewed the record for errors patent and note the following:

Alvarez was charged with and convicted of La. R.S. 14:89.1, a “sex offense” as defined by La. R.S. 15:541(24). Aggravated crime against nature is considered a “sex offense,” which necessitates registration under La. R.S. 15:540, et seq. However, the trial judge did not provide written notification of the registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A). Failure to advise a defendant convicted of a sex offense of the registration requirements of La. R.S. 15:542 warrants a remand for notification.

Further, although the commitment/minute entry indicates Alvarez’s sentence was to be served at hard labor, the trial court failed to indicate that the sentences on the aggravated crime against nature convictions had to be served at hard labor as required by La. 14:89.1(B). When there is a discrepancy between the transcript and the commitment/minute entry, the transcript governs. Because the judge failed to state that the time was to be served at hard labor, the sentence is illegally lenient. La.C.Cr.P. art. 882(A) states that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. Therefore, we amend the sentence to reflect that it is to be served at hard labor without benefit of suspension of sentence, probation or parole.

| n Further, we remand the matter and order that the trial court inform Alvarez of the registration requirements of La. R.S. 15:542, by sending appropriate written notice to him within ten days of this opinion, and to file written proof in the record that he received such notice.

CONVICTION AFFIRMED; SENTENCE AMENDED; REMANDED WITH INSTRUCTIONS

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

      . State v. Bellow, 08-259 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, writ denied, 08-2109 (La.4/13/09), 5 So.3d 162 (citing State v. Schnyder, 06-29 (La.App. 5 Cir. 6/28/06), 937 So.2d 396).

        . Id. (citing State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517, 520) (per curiam ).

      . Id.

      . State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501; State v. Carter, 04-482 (La.App. 5 Cir. 10/26/04), 888 So.2d 928.

      . See, State v. Brown, 421 So.2d 854, 856 (La.1982); State v. S.L.D., 08-549 (La.App. 3 Cir. 11/5/08), 997 So.2d 759, writ denied, 09-0245 (La.10/30/09), 21 So.3d 272; State v. Trotter, 37,325 (La.App. 2 Cir. 8/22/03), 852 So.2d 1247, writ denied, 03-2764 (La.2/13/04), 867 So.2d 689.

      . State v. Johnson, 95-1002 (La.App. 3 Cir. 3/6/96), 670 So.2d 651.

      . State v. Vincent, 07-239 (La.App. 5 Cir. 12/27/07), 978 So.2d 967.

      . Id.

      . Id.

      . Id.

      . See also, State v. Enclard, 03-283 (La.App. 5 Cir. 6/19/03), 850 So.2d 845.

      . State v. Browning, 06-929 (La.App. 5 Cir. 4/11/07), 956 So.2d 65 (citing State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294).

      . State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589; State v. Torregano, 03-1335 (La.App. 5 Cir. 5/11/04), 875 So.2d 842.

      . See, State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165; also, State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154.

      . State v. Ronquille, 09-231 (La.App. 5 Cir. 11/24/09), 26 So.3d 823, writ denied, 10-0525 (La.2/25/11), 58 So.3d 455.