text:
    Cynthia Dufour CANNATELLA v. Anthony Wayne CANNATELLA, Sr.
    No. 11-CA-618.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.
    H. Craig Cabral, Attorney at Law-, Me-tairie, LA, for Plaintiff/Appellant.
    Raymond C. Burkart, Jr., Attorney at Law, Covington, LA, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

J¡FACTS AND PROCEDURAL HISTORY

The parties, Cynthia Dufour Cannatella and Anthony Cannatella, were married on February 14, 1981. On May 12, 2010, Cynthia filed a Petition for Divorce, asserting that she was entitled to a divorce based on adultery, pursuant to LSA-C.C. art. 103(2). Alternatively, she sought a divorce based on living separate and apart for 180 days from service of the petition, in accordance with LSA-C.C. art. 102. On June 18, 2010, Anthony filed an Answer and Reconventional Demand, in which he denied the allegations of adultery and sought a divorce pursuant to LSA-C.C. art. 102 or, alternatively, LSA-C.C. art. 103.

On July 20, 2010, Cynthia filed a Motion to Set for Trial the merits of the divorce action based on adultery. On November 10, 2010, the merits of the divorce action came before the trial court, and the parties agreed to continue other pending issues, including permanent spousal support and fault, to another date.

13At trial, Anthony testified and admitted to the allegations of adultery. He testified that he started having an affair with Diane Perez in 2007 and it had continued since that time. He stated that Cynthia was not aware of the affair until May 2010, when she confronted them outside Ms. Perez’s home. Diane Perez was also called to the stand, and she admitted having a sexual relationship with Anthony since 2007.

Finally, Natalie Biondolillo testified that she is a Louisiana licensed investigator, and Cynthia hired her to perform surveillance of Anthony. She stated that she and another investigator established the surveillance outside Ms. Perez’s residence on May 11, 2010 at 5:30 p.m. At 6:52 p.m., Anthony and Ms. Perez arrived together in Anthony’s truck, parked under the carport, and entered the residence. The surveillance continued overnight, and neither Anthony nor Ms. Perez left the residence. The next morning, May 12, 2010, Ms. Perez left briefly and returned. Ms. Biondo-lillo testified that shortly thereafter, Anthony and Ms. Perez came out of the front door, embraced, and “had three kisses.”

At the conclusion of the testimony, the trial judge indicated that he was not finding that Anthony committed adultery, because the fault issues were reserved for a later date. Counsel for Cynthia argued that the issue to be determined later was whether Cynthia was free from fault, because she was the one seeking support. After further discussion, the trial judge granted the parties a divorce pursuant to LSA-C.C. art. 103, finding that they lived separate and apart for six months, not on the grounds of adultery. On December 1, 2010, the trial judge signed a judgment of divorce. In the judgment, the trial judge stated that he received testimony during the adultery trial indicating that the parties had lived separate and apart in |4excess of six months, pursuant to LSA-C.C. art. 103. He also indicated that the court was pretermitting the issues of adultery and Anthony’s fault until the fault trial, which was set for hearing on February 10, 2011.

On December 16, 2010, Cynthia filed a Motion for New Trial, asserting that a divorce pursuant to LSA-C.C. art. 102 or 103 on the grounds of living separate and apart was not valid or supported by the evidence. She also noted that a divorce action under LSA-C.C. art. 102 was not before the court for hearing on November 10, 2010, and the time required for a LSA-C.C. art. 102 divorce had not passed. The Motion for New Trial was set for hearing on January 13, 2011.

On December 31, 2010, Anthony passed away. Thereafter, the Motion for New Trial was reset to February 10, 2011. On January 21, 2011, the executor of Anthony’s succession filed a Motion to Dismiss or in the Aternative for Summary Judgment, seeking dismissal of the pending matters in this litigation, including Cynthia’s request to partition community property, her Motion for New Trial, the hearing on the issue of fault, her spousal support claims, and other pending issues. Cynthia filed an Opposition to this motion on February 1, 2011. In lieu of oral argument on the Motion to Dismiss, the matter was submitted on the briefs only. On March 2, 2011, the trial judge rendered a judgment granting the executor’s Motion to Dismiss without prejudice, and he ruled that Cynthia could re-urge her motions in the succession proceedings.

Cynthia appeals both the November 10, 2010 judgment and the March 2, 2011 judgment.

LAW AND DISCUSSION

In her first assignment of error, Cynthia asserts that the trial court erred in granting a divorce pursuant to LSA-C.C. art. 103(1), because neither party had | ¡¡filed for a divorce based on LSA-C.C. art. 103(1) and the evidence did not show that the requirements for such a divorce were met. She contends that the only petition for divorce pending before the trial court at the time of the hearing was her petition for divorce based on adultery or, alternatively, LSA-C.C. art. 102. She noted that the trial judge refused to make a ruling as to the allegation that Anthony committed adultery and indicated he would rule on this issue at a later date.

Anthony’s attorney responds that Anthony and Cynthia physically separated on March 29, 2010. He states that in Anthony’s Reconventional Demand, he sought a divorce pursuant to LSA-C.C. art. 102 or, alternatively, LSA-C.C. art. 103. Therefore, he concludes that the trial court properly granted a divorce pursuant to LSA-C.C. art. 103(1), because more than 180 days elapsed between the date of separation, March 29, 2010, and the date of the hearing, November 10, 2010.

The trial judge granted the parties a divorce pursuant to LSA-C.C. art. 103, which provides:

Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
(1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed;
(2) The other spouse has committed adultery; or
(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

LSA-C.C. art. 103.1 provides that the requisite period of time, in accordance with LSA-C.C. arts. 102 and 103, is 180 days when the parties do not have any minor children born of the marriage. In the present case, the petition reflects that one child was born of the marriage and is now a major.

|fiThe trial judge indicated that the LSA-C.C. art. 103 divorce was granted under (1), which, read together with LSA-C.C. art. 103.1, provides that spouses without minor children must be living separate and apart for 180 days “on the date the petition is filed.” In Parker v. Parker, 95-1373, p. 4 (La.App. 3 Cir. 4/3/96), 671 So.2d 1143, 1145, the Third Circuit stated:

The legislature clearly intended that parties could receive an immediate La. Civ.Code art. 103(1) divorce upon proof that they had been living separate and apart continuously for a period of six months or more on the date the petition is filed.

(Emphasis in original).

In the present case, both parties contend in their pleadings that they physically separated on March 29, 2010. Cynthia’s Petition for Divorce was filed on May 12, 2010. Although the parties had been separated for over 180 days as of the November 10, 2010 hearing, the parties clearly had not lived separate and apart for 180 days on the date the petition was filed. Thus, we find that the trial judge was without the authority to grant a divorce pursuant to LSA-C.C. art. 103(1).

However, the evidence presented at trial did establish that the requirements were met for a LSA-C.C. art. 103 divorce under (2), which provides for a divorce when the other spouse has committed adultery. At trial, both Anthony and his paramour admitted having a sexual relationship since 2007. Ms. Biondolillo, a private investigator, also testified that Anthony and Ms. Perez remained in Ms. Perez’s home overnight, and they were observed kissing the next morning. The direct admissions of Anthony and Ms. Perez, along with the testimony of the investigator, Ms. Biondolillo, establish that Anthony did commit adultery during his marriage to Cynthia.

LSA-C.C. art. 103 provides that a divorce “shall be granted” on the petition of a spouse upon proof that the other spouse committed adultery. In Cynthia’s petition, she sought a divorce based on adultery. The issue of whether or not |7adultery was committed by Anthony was set for trial and properly before the court on November TO, 2010. At trial, the evidence clearly established that Anthony committed adultery. Thus, Cynthia was entitled to a divorce on these grounds.

Accordingly, we affirm the Judgment of Divorce pursuant to LSA-C.C. art. 103. However, we amend the judgment to reflect that the LSA-C.C. art. 103 divorce is based on the grounds of adultery under (2), not living separate and apart for 180 days under (1).

In her second assignment of error, Cynthia contends that the trial court erred when it granted the Motion to Dismiss o,r in the Alternative for Summary Judgment. She states that a divorce action involving property rights of the parties is not extinguished on the death of one of the spouses, and her pending motions for partition of community property and reimbursement claims were not extinguished by Anthony’s death.

LSA-C.C.P. art. 428 provides that an action does not abate upon the death of a party unless the obligation or right is strictly personal. In Larocca v. Larocca, 597 So.2d 1000, 1007 (La.1992), the Louisiana Supreme Court held that the death of a party does not abate a divorce action to which there is an ancillary claim involving property interests. In McCann v. McCann, 10-1896, p. *5 (La.App. 1 Cir. 10/5/11), 77 So.3d 997, the First Circuit stated that while an action for divorce, alone, is a personal action, an action to divide the former community property and allocate debts is heritable and not a personal action.

In the present case, at the time of Anthony’s death, Cynthia had pending claims involving property interests, including claims to partition the community property. The trial judge dismissed Cynthia’s pending rules and motions, and found that she could re-urge them in the succession proceedings. However, while many of Cynthia’s outstanding claims are moot, we find that Cynthia had some | soutstanding motions, such as claims pertaining to community property and reimbursement, that can properly go forward in the divorce proceedings. Although a divorce action alone is strictly personal, in the present case, there are ancillary claims involving property interests that are not strictly personal. Accordingly, we find that the trial court erred in granting the Motion to Dismiss filed by the executor of Anthony’s succession.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting a divorce pursuant to LSA-C.C. art. 103. However, we amend the judgment to reflect that the LSA-C.C. art. 103 divorce is based on the grounds of adultery under (2), not living separate and apart for 180 days under (1). We reverse the trial judge’s ruling granting the Motion to Dismiss filed by the executor of Anthony’s estate.

JUDGMENT OF DIVORCE AFFIRMED, AS AMENDED; REVERSED IN PART.

      . In the appellant's brief and throughout the record, including the petition, appellant erroneously refers to the adultery statute as LSA-C.C. art. 103.2, rather than LSA-C.C. art. 103(2).

      . The judgment provides that the divorce was granted under LSA-C.C. art. 103.1, but it appears that the trial judge intended to grant the divorce under LSA-C.C. art. 103(1). LSA-C.C. art. 103.1 simply provides the time periods required to obtain a divorce under LSA-C.C. arts. 102 or 103.

      . The trial judge originally signed a judgment granting the Motion to Dismiss on February 22, 2011. Thereafter, he signed an Amended Judgment granting the Motion to Dismiss on March 2, 2011.

      . In her brief, Cynthia actually refers to LSA-C.C. art. 103.1 but quotes the language of LSA-C.C. art. 103(1). Accordingly, we will consider LSA-C.C. art. 103(1) when she refers to LSA-C.C. art. 103.1.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Andrew DUFRENE, Jr. a/k/a Andre Dufrene and Dufrene Developers, Inc. v. CERTAIN INTERESTED UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING TO CERTIFICATE NUMBER 3051393; Equity Partners Insurance Services, Inc.; Insurance Underwriters, Ltd. and Carr & Associates, Inc.
    No. 11-CA-1002.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Matthew K. Brown, Adrienne L. Black, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Bruce R. Hoefer, Jr., Shannon Howard-Eldridge, Heather England Reznik, Attorneys at Law, New Orleans, LA, for Defendants/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ^Plaintiff appeals the trial court’s July 15, 2011 judgments granting defendant’s Motion to Confirm Umpire’s Award and for Entry of Judgment of the Court in Conformity with the Umpire’s Award and denying plaintiffs Motion to Vacate Appraisal Award. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from an insurance dispute between plaintiff, Dufrene Developers, Inc. (referred to as “Dufrene”), and defendant, Certain Underwriters at Lloyd’s, London, Severally Subscribing to Certificate No. 3051393 (referred to as “Underwriters”), which insured plaintiffs apartment building for windstorm damage. On August 28, 2006, Dufrene filed suit against Underwriters and others for damages to its six-unit apartment building located at 1354 Lake Avenue in Metairie, Louisiana, that were sustained during Hurricane Katrina. Thereafter, |sDufrene decided to invoke the appraisal provision in the insurance policy issued to it by Underwriters, which is available when the parties cannot agree on the amount of loss. The appraisal provision provides as follows:

2. Appraisal
If we and you disagree on the value of the property or the amount of the loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.

In accordance with the appraisal provision, Dufrene named Lewis O’Leary as its appraiser and filed a Motion for the Appointment of an Umpire in the trial court on March 10, 2010. Underwriters selected Mark Sturgess as its appraiser. By order dated June 30, 2010, the trial court appointed Robert Foley as umpire to settle the disparity between the damage figures provided by each party’s appraiser.

On September 14, 2010, Underwriters filed a Motion to Set Certain Procedures for Appraisal, and a hearing on the matter was held on October 13, 2010. In its October 20, 2010 judgment, the trial court granted Underwriters’ Motion to Set Certain Procedures for Appraisal and set forth rules and parameters for the appraisal process.

On October 22, 2010, Underwriters filed a Motion for In-Camera Review of Plaintiffs Appraiser’s Report and Submissions to Ensure Compliance with the Court’s October 20, 2010 Judgment. A hearing was held on December 13, 2010, and the trial court signed a judgment on December 17, 2010, granting the motion |4and indicating that it would review 18 attachments to Mr. O’Leary’s appraisal report that were questioned by Underwriters. On December 22, 2010, the trial court issued an order that only three of the attachments would be permitted to be provided to the umpire. The order further stated that the umpire should be given a list of the other contested attachments and he should request these documents if he deemed any of them to be necessary to his findings.

Both appraisers submitted their appraisal reports to the umpire. In Mr. O’Leary’s report, he opined that Dufrene should be awarded $258,808.07 from Underwriters. In Mr. Sturgess’ report, he opined that no additional money was due to Dufrene for wind damage to the property caused by Hurricane Katrina. Thereafter, on February 22, 2011, Dufrene filed a Motion to Disqualify Mark Sturgess from the Appraisal Process on the grounds that he was not an impartial appraiser. A hearing was held on May 9, 2011, and the trial court rendered a judgment on May 11, 2011, denying Dufrene’s Motion to Disqualify Mark Sturgess.

The report and ruling of the umpire, Robert Foley, was dated May 14, 2011. In his report, Mr. Foley concluded that no additional amounts were due to plaintiff from the insurance companies, because plaintiff suffered “no loss that has not been more than fully compensated by the insurers of this property, based upon the receipts that he produced.” Mr. Sturgess agreed with the umpire’s report.

On June 7, 2011, Underwriters filed a Motion to Confirm Umpire’s Award and for Entry of Judgment of the Court in Conformity with the Umpire’s Award. On June 28, 2011, Dufrene filed a Motion to Vacate Appraisal Award. Both motions came before the trial court for hearing on July 13, 2011. At the hearing, the trial court found that the umpire had complied with all of the requisite standards and insurance policy requirements. The trial court granted Underwriters’ | ¡¡Motion to Confirm Umpire’s Award and for Entry of Judgment of the Court in Conformity with the Umpire’s Award, denied Dufrene’s Motion to Vacate Appraisal Award, and dismissed Dufrene’s claims for property damage sued for under the policy of insurance issued by Underwriters. Written judgments reflecting these rulings were signed by the trial court on July 15, 2011. Du-frene appeals.

DISCUSSION

On appeal, Dufrene sets forth three assignments of error. In its first assignment of error, Dufrene contends that the trial court erred by interfering with the appraisal process at the urging of Underwriters. It argues that the appraisal should have been done independently and that the umpire and appraisers should not have been “micro-managed” by the trial court’s procedural rules regarding their communications. It further asserts that the trial court should not have removed most of the attachments from Mr. O’Leary’s report, because the umpire must consider all of the materials relied on by the appraisers and none of the documents violated the appraisal procedures set by the Court.

Underwriters replies that the trial court properly exercised its jurisdiction to regulate the appraisal and to ensure that the procedure was conducted impartially, competently, and in accordance with the policy terms and relevant Louisiana law. They further contend that the trial court properly excluded certain attachments to Mr. O’Leary’s report, because submission of these documents to the umpire violated the court’s October 20, 2010 order and did not directly address the cost and scope of repairs, which was the only relevant inquiry for appraisal.

Appraisal clauses, such as the one in this case, are enforceable under Louisiana law, but they do not deprive a court of jurisdiction over the matter. See St. Charles Parish Hospital Service Dist. No. 1 v. United Fire and Casualty Co., |,681 F.Supp.2d 748, 758 (E.D.La. Jan.13, 2010). The Louisiana Civil Code sets forth guiding principles for construing contracts. Id.; Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. LSA-C.C. art. 2045; Huggins v. Gerry Lane Enterprises, Inc., 06-2816, p. 3 (La.5/22/07), 957 So.2d 127, 129. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. LSA-C.C. art. 2047; LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89.

In the present case, the insurance policy contains an appraisal provision that does not set forth specific guidelines as to how the appraisal process is to be conducted. Although the appraisal process is generally not bound by all of the rules and procedures of a court proceeding, the appraisal provision in the insurance policy does provide for the involvement of the trial court in order to appoint an umpire if the appraisers cannot agree on one. Thus, some involvement of the courts is contemplated by the plain meaning of the words in the appraisal provision, and the language of the insurance policy does not restrict or limit the court’s involvement.

At the October 13, 2010 hearing on Underwriters’ Motion to Set Certain Procedures for Appraisal, the trial court noted that an umpire is supposed to be independent and that the appraisers should not use memoranda or other materials, other than data and information prepared by each appraiser, to try to convince or 17persuade the umpire. He further stated that the appraisers are not to “overwhelm” the umpire and “that’s what I see is happening.” The trial court set forth the following guidelines for the appraisal process:

1. The appraisers appointed by each of the parties will be permitted to submit to the Umpire the written documents that they wish to be considered by the Umpire in the appraisal process within the time set by the Umpire.
2. All counsel and the opposing appraiser are to be copied simultaneously, with any and all reports, emails, letters, transmittals, documents, photographs, and/or other attachments submitted by an appraiser to the Umpire.
3. The written submissions by the appraisers for each party to the Umpire may consist of reports, estimates, photographs and/or other documents illustrating the scope of damages found and the cost of repair of those damages, and a statement of the appraiser’s findings and conclusions regarding the scope and repair of damages at 1354 Lake Avenue, Metairie, Louisiana 70001, exclusively.
4. Neither appraiser is to initiate any ex parte communications of any kind with the Umpire. Should the Umpire require contact with either appraiser, contact will be initiated or requested by the Umpire.
5. The Umpire may initiate contact with the appraisers, but the opposing appraiser is to be copied simultaneously on any correspondence between the Umpire and either appraiser. Should the Umpire initiate contact with both or either appraiser telephonically, the Umpire will schedule a conference call so that the opposing appraiser is in attendance.
6. Under no circumstances should the appraisers’ submissions to the Umpire include any documents which consist of, reference and/or include legal opinions; legal advice; treatises; narrative reports; cases; statutes or laws; legal documents; handouts; presentations or papers prepared by any law firm or attorney, and/or comments by the appraisal [sic] regarding counsel of record or matters outside the scope of damage and cost of repair.
7. The Umpire, Robert Foley, shall destroy and disregard the materials attached to and emails sent by Mr. O’Leary (Plaintiffs appraiser) to him via email on Tuesday, August 10, 2010 and Wednesday, August 11, 2010, as well as an email sent by Mr. O’Leary on August 17, 2010.

The record shows that the trial court was concerned that the umpire was being overwhelmed with the documents and/or communications sent to him regarding the appraisal in this matter. Thus, the trial court found that it was | ^necessary to set forth certain guidelines for the appraisal process to ensure that the process was fair, impartial, and efficient. The contractual language of the appraisal provision in the insurance policy does not prohibit the trial court from setting forth such guidelines, and we are unaware of any law prohibiting such guidelines under the circumstances of this case. We further note that the guidelines set forth by the trial court appear to be reasonable in order to ensure that the process was fair and impartial.

We also cannot say that the trial court erred by excluding certain attachments from Mr. O’Leary’s report that the trial court found should not be reviewed by the umpire. The amount of damages to the property located at 1354 Lake Avenue was the issue before the umpire, not causation. According to Dufrene, some of its attachments included reports regarding damage to buildings in the area of the subject property and documents pertaining to damage indicators, wind patterns, building codes, descriptions of materials and equipment needed to repair the roof of a similar structure, water intrusion, and damage caused by window leaks. After performing an in camera inspection of the documents at issue, the trial court apparently found that these documents were not necessary for the umpire to review, but the trial court stated in its December 22, 2010 order that the umpire should be given a list of the contested attachments and he should request them if he deemed any of them necessary to his findings. The record does not provide any basis for this Court to disturb the trial court’s ruling.

Considering the entire record before us, along with the applicable law, we cannot say that the trial court erred by setting guidelines or “interfering” in the appraisal process. Accordingly, this assignment of error is without merit.

In its second assignment of error, Du-frene contends that the trial court erred by failing to disqualify Underwriters’ appraiser, Mark Sturgess, who was the |9original adjuster, from the appraisal process. It argues that the appraisal provision provides that each party will select a competent and impartial appraiser. Du-frene claims that Mr. Sturgess’ appraisal report included photographs taken by his investigator in 2005 that showed damage to units B and E, but Mr. Sturgess did not include an allowance for that damage in his 2005 adjustment or his appraisal report, even after the error was pointed out by Dufrene. Thus, Dufrene contends that Mr. Sturgess’ refusal to acknowledge his error and correct his mistake reveals his disregard for his professional duty and lack of fitness to participate in the appraisal process.

Underwriters responds that Mr. Stur-gess had over 27 years of experience as an adjuster and was unquestionably qualified to assess the damage to the property at issue. It also asserts that Dufrene’s mere accusation that Mr. Sturgess’ appraisal report contains errors is insufficient to find that he acted improperly during the appraisal process.

Federal courts have found that where a party challenges the use of a particular appraiser, evidence must be presented showing that the appraiser’s honesty or integrity is suspect. St. Charles Parish Hospital Service Dist. No. 1 v. United Fire & Casualty Co., 681 F.Supp.2d at 754. See also Dawes v. Continental Ins. Co. of City of New York, 1 F.Supp. 608, 605 (E.D.La. Oct. 22, 1932). We apply the same standard to the present case.

The evidence in the record before us does not demonstrate a lack of impartiality or competence on Mr. Sturgess’ behalf or that his honesty or integrity is suspect. Accordingly, we find that the trial court did not err by failing to disqualify Mr. Sturgess from the appraisal process, and this assignment of error is without merit.

|inIn its third and final assignment of error, Dufrene argues that the trial court erred by confirming an award that did not properly set the amount of loss. It complains that instead of making an independent valuation of the damage or amount of loss, Mr. Foley simply added up the repair receipts provided by Dufrene and declared that the receipts totaled less than Dufrene received from flood and wind insurance. Dufrene argues that Mr. Foley’s simplistic analysis identified amounts spent to repair the property but did not address whether the repairs were sufficient.

Underwriters responds that its appraiser and the umpire determined the amount of loss in accordance with the policy terms, and their determination is binding under the language of the policy which provides that “[a] decision agreed to by any two will be binding.” It asserts that the umpire considered all of the evidence and agreed with Mr. Sturgess’ report that no additional funds were due to Dufrene by Underwriters. Underwriters further argues that the policy terms did not require Mr. Foley to create his own estimate of damage and that reliance on one appraiser’s figures is not evidence of impropriety. It also contends that the umpire is permitted to rely on documents and evidence, including receipts and invoices produced by plaintiff, in formulating its award.

An appraisal award issued under an insurance policy is binding only if the appraisers “have performed the duties required of them by the policy, which is the law between the contracting parties.” Branch v. Springfield, Fire & Marine Ins. Co., 198 La. 720, 4 So.2d 806, 809 (1941). Where the appraisal provision of an insurance policy provides for two appraisers and an umpire and states that a decision agreed to by any two will be binding, the burden of demonstrating that the award should not be confirmed falls on the party challenging it. St. Charles Parish Hospital Service Dist. No. 1 v. United Fire & Casualty Co., 681 F.Supp.2d at 754.

|n Contrary to Dufrene’s contentions, the umpire’s report reveals that he did not simply “add receipts” in order to determine the amount of loss to plaintiffs property. According to his report, Mr. Foley considered the appraisal reports of Mr. O’Leary and Mr. Sturgess, along with several other documents. He also conducted an inspection of the property and had a roofer accompany him to perform an inspection of the roof. The umpire’s report notes that roofer’s inspection revealed that he saw no indication of wind-related damage or building shifts. Mr. Foley also considered moisture readings taken by Pontchartrain Contracting Services, Inc. shortly after the storm that showed no significant level of moisture or rain came through the roof into the ceilings or walls. We note that repairs to the property had already been made at the time of Mr. Foley’s inspection of the property, and we do not find that his reliance on receipts was improper. Based on the documents he reviewed, along with his observations and experience, Mr. Foley agreed with Mr. Sturgess’ appraisal report that no additional funds were due to Dufrene by Underwriters. Based on the evidence, we do not find that the umpire failed to properly perform his duties.

As previously stated, the appraisal provision provides that “[a] decision agreed to by any two will be binding.” Both Mr. Foley and Mr. Sturgess agreed that no additional funds were due to Dufrene by Underwriters. The record shows that the umpire and appraisers performed the duties that were required of them by the policy. Accordingly, we find that the decision of the umpire that was agreed to by Mr. Sturgess is binding on the parties. Considering all of the evidence before us, along with the applicable law, we find that the trial court did not err in confirming the appraisal award.

DECREE

|12For the foregoing reasons, we affirm the July 15, 2011 judgments of the trial court, granting the Motion to Confirm Appraisal Award filed by Underwriters and denying the Motion to Vacate Appraisal Award filed by Dufrene.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge. GRAVOIS, J.,

text:
    STATE of Louisiana v. Thomas J. COOPER.
    No. 11-KA-582.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2On June 11, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Thomas J. Cooper, with operation of a motor vehicle while intoxicated (“DWI”), fourth offense, in violation of LSA-R.S. 14:98(E). Defendant failed to appear for arraignment on September 9, 2004, and an attachment for his arrest was issued. On June 17, 2010, defendant appeared in court and pled not guilty to the charge. On the same day, defense counsel filed a motion to quash the bill of information, which was granted after a hearing on January 27, 2011. The State appeals.

FACTS

Because the trial court granted defendant’s motion to quash, the facts in the record are limited to those alleged in the bill of information and those set forth in the parties’ “Joint Notice of Stipulated Facts.” The bill of information alleges that on November 8, 2003, defendant operated a motor vehicle while intoxicated after | shaving been thrice convicted: first, on January 15, 2002, docket number 339-168, in St. Tammany Parish; second, on June 24, 2003, docket number 319-136, in Ascension Parish; third, on June 19, 2003, docket number 362-390, in St. Tammany Parish. A joint notice of stipulated facts was filed on January 12, 2011. The stipulated facts are as follows:

1. Defendant was arrested on November 8, 2003 and March 29, 2004 for driving while intoxicated, in violation of LSA-R.S. 14:98. (DWI)
2. After the November 8, 2003 arrest, defendant received an appearance bond for court on December 18, 2003. On that bond, the defendant listed his address as “737 Heavens Drv 2,” in Mandeville, Louisiana. The record contains no information of what occurred in court on December 18.
3. Defendant was later charged with two counts of DWI (fourth offense) in a bill of information filed on June 11, 2004, by the Jefferson Parish District Attorney’s Office.
4. On June 28, 2004, the St. Tammany Parish Sheriffs Office attempted to serve defendant (for July 28, 2004 arraignment) at the Mandeville address but was unable despite numerous attempts as the occupants of the residence refused to answer the door. The record is silent as to what occurred on July 28, 2004.
5. On August 11, 2004, the St. Tammany Parish Sheriffs Office again tried to serve defendant for court on September 9, 2004 but was unable despite numerous attempts due to the occupant’s refusal to answer the door for the Deputy serving the subpoena.
6. On September 7, 2004, two days before his scheduled court date, defendant was arrested in St. Tammany Parish for battery on a police officer, aggravated assault with a firearm, and disturbing the peace.
7. On September 9, 2004, defendant failed to appear in court in Jefferson Parish. An attachment was issued for his arrest and his bond was forfeited.
8. Neither the Jefferson Parish Sheriffs Office nor the Jefferson Parish District Attorney’s Office had actual notice of defendant’s arrest in St. Tammany Parish.
9. On September 17, 2004, a copy of the judgment of the bond forfeiture was sent to the defendant at the address on the bond by way of certified mail. The judgment of the bond forfeiture was returned “unclaimed.”
|410. On March 22, 2005, defendant pled guilty to the charges resulting from the September 7, 2004 arrest and received a sentence of seven years at hard labor, six years suspended and defendant was placed on active probation for five years (set to expire March 22, 2010) under the supervision and control of the Department of Probation and Parole’s St. Tammany district.
11. On November 24, 2009, defendant was again arrested in St. Tammany Parish for DWI. The Jefferson Parish District Attorney’s Office did not receive any notice regarding defendant’s arrest.
12. On March 4, 2010, in an effort to locate defendants who attached, the District Attorney’s Office ran defendant’s name and discovered he was being held in St. Tammany Parish Prison.
13. On March 12, 2010, defendant’s probation was revoked in St. Tammany and he was sentenced to serve two years in the custody of the Department of Corrections.
14. On March 30, 2010, the District Attorney’s Office filed a Writ of Habeas Corpus Ad Prosequendum to bring the defendant to court.
15. On April 13, 2010, the defendant was sentenced to serve three years in the Department of Corrections as a result of his November 24, 2009 arrest.
16. On May 13, 2010, the defendant was transported from St. Tammany Parish Prison and booked into the Jefferson Parish Correctional Center for his September 9, 2004 attachment.
17. On June 17, 2010, defendant filed a motion to quash based on there being “no record of service [to the defendant] to appear” and the expi-rations of time limitations set out in LSA-C.Cr.P. art. 578.

LAW AND DISCUSSION

On appeal, the State asserts that the trial court erroneously granted defendant’s motion to quash on the basis of prescription. The State acknowledges that defendant was not brought to trial within two years from the institution of prosecution, in accordance with LSA-C.Cr.P. art. 578(A)(2). However, it asserts that it acted diligently to locate and secure defendant’s presence for arraignment in 2004, and its inability to serve defendant constituted an interruption in prescription, |fiwhich did not begin to run anew until the State became aware of defendant’s whereabouts in March of 2010.

Defendant responds that the trial court’s ruling was correct, because the State failed to prove defendant was given notice of the arraignment date or that it was unable to serve defendant despite due diligence. Thus, the State has not proven an interruption of prescription. Defendant further argues that the time period to commence trial tolled while he was in the custody of the State or under the supervision of the State through the Louisiana Department of Probation and Parole.

At the motion to quash hearing, defendant acknowledged that the record shows that a St. Tammany Parish deputy made numerous attempts to serve him at the Mandeville address listed on his bond with notice of arraignment set for September 9, 2004, but the occupants of the residence would not answer the door. However, defendant asserts that there is no indication that he was trying to avoid service, so there was no interruption of the time limit in which to commence trial.

Defendant states that he was subsequently placed in the State’s custody. He was arrested for three offenses in St. Tammany Parish on September 7, 2004. On March 22, 2005, he pled guilty to those charges and was placed on active probation for five years under the supervision and control of the Louisiana Department of Probation and Parole’s St. Tammany district. He claims that he was on active probation with a probation officer, who would have been aware of his open warrant or any attachment for his arrest. He asserts that at least from March 22, 2005 through March 30, 2010, the State knew where he was located but did nothing to see that he was brought to trial. At the hearing on the motion to quash, the defense argued that once he was placed in the State’s custody or under its 1 (¡supervisión, “[a]t that point, the State has to notify the State, or vice-versa, that [he] is now in our custody.”

At the motion to quash hearing and on appeal, the State responds that tolling of the time limit was interrupted after its numerous and diligent attempts to serve defendant. The State asserts that the occupants’ refusal to answer the door made it unable to serve defendant with notice of his September 9, 2004 arraignment, and that defendant should not benefit from his own inaction or attempts to avoid service. It also asserts that interruption did not cease until the Jefferson Parish District Attorney’s office became aware of defendant’s location in St. Tammany prison in March of 2010. It further asserts that defendant’s probation was supervised in St. Tammany Parish, and neither the Jefferson Parish Sheriffs Office nor the Jefferson Parish District Attorney’s Office was notified of his whereabouts. The State claims that if defendant had provided a sufficient address, or if someone had answered the door in response to the numerous attempts made by the deputies, defendant would have been served, but instead, defendant did everything in his power to avoid prosecution.

In support of its position, the State cites State v. Baptiste, 08-2468 (La.6/28/10), 38 So.3d 247. In Baptiste, the Louisiana Supreme Court found that the State did not bear a duty to monitor the status of the outstanding arrest warrant issued for the defendant who failed to appear in court after receiving actual notice of the hearing date. Id. at 1, 38 So.3d at 248. In Baptiste, the defendant was incarcerated in St. Charles Parish approximately six months after the arrest warrant was issued by Plaquemines Parish. The Louisiana Supreme Court found that prescription was interrupted when defendant failed to appear in court, and the interruption of prescription ended when the St. Charles Parish authorities contacted [ 7officiaIs in Plaquemines Parish and notified them of defendant’s impending release, after they discovered the outstanding warrant. Id.

In granting the defendant’s motion to quash, the trial judge noted that defendant was in the custody, or at least under the supervision of the State of Louisiana. He distinguished State v. Baptiste, supra, stating: “There is a distinction between this case and Batiste [sic], which was a situation in which you had two differing parish authorities. And the court in that case said that what was necessary was actual notice. As [defense counsel] argues, this would have been notice from the State by the State.”

As a general matter, the State has two years from the institution of prosecution to commence a trial in a non-capital felony case. LSA-C.Cr.P. art. 578(A)(2). The Louisiana Supreme Court has explained that the “statutory periods of limitation ‘enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.’ ” State v. Romar, 07-2140, p. 3, 985 So.2d 722, 725 (per curiam) (quoting State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286). The date of institution of prosecution is the date when the bill of information is filed. State v. Smith, 07-959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

Upon expiration of the time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. LSA-C.Cr.P. art. 581. A motion to quash is the proper procedural vehicle for asserting an expiration of the time limitations. LSA-C.Cr.P. art. 532(7); Smith, 07-959 at 6, 982 So.2d at 834.

In the present case, the State filed its bill of information on June 11, 2004, and defendant filed a motion to quash on June 17, 2010, claiming the time period for prosecuting him under LSA-C.Cr.P. art. 578 had expired. On its face, ^defendant’s motion to quash appears meritorious. Although prosecution was timely instituted, trial was not commenced within the two-year period provided by LSA-C.Cr.P. art. 578(A)(2).

Once a defendant shows that the State has failed to commence trial within the time periods specified by the general rule governing time limitations for commencement of trial, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205 (per curiam). LSA-C.Cr.P. art. 579 provides for the interruption of the time limitation for commencing trial, as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

To satisfy its burden in establishing that an interruption of the prescriptive period has occurred, the State must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Breaux, 05-358, p. 5 (La.App. 5 Cir. 12/27/05), 920 So.2d 274, 277. Once the cause of the interruption ceases, the prescriptive period runs anew. LSA-C.Cr.P. art. 579(B).

lain the present case, although there was no witness testimony produced at the hearing on defendant’s motion to quash, both the State and defendant stipulated in writing to the relevant facts. On both June 28, 2004 and August 11, 2004, despite numerous attempts, the St. Tammany Sheriffs Office was unable to serve defendant at the Heavens Drive address listed on his appearance bond, because the occupants of the residence refused to answer the door. Furthermore, the clerk’s certified mailing of the judgment of bond forfeiture, issued on September 17, 2004, was returned unclaimed from the same address after notices were left on September 18, 22, and October 3, 2004.

Considering the foregoing facts and the applicable case law, we find that the two-year prescriptive period was interrupted pursuant to LSA-C.Cr.P. art. 579(A)(2), because defendant’s presence could not be obtained by legal process and/or because of “cause[s] beyond the control of the state.” Likewise, the fact that the occupants refused to open the door and defendant would not claim his notice of bond forfeiture from the post office further suggests that defendant was purposefully avoiding detection and prosecution under LSA-C.Cr.P. art. 579(A)(1).

The record shows that prescription was interrupted at least by September 9, 2004, which was the final court date at which defendant failed to appear after the attempted service. This interruption clearly came before June 11, 2006, which was the expiration of the original two-year period for bringing defendant to trial. An interruption does not end until the cause for the interruption no longer exists. LSA-C.Cr.P. art. 579(B). Therefore, we now consider at what point the cause for the interruption ceased to exist.

When ruling on the motion to quash, the trial judge noted that defendant was in the custody of or under the supervision of the State of Louisiana, and that notification of defendant’s whereabouts would have been notice by the State to the | mState. As indicated in the joint notice of stipulated facts, defendant was placed on active probation on March 22, 2005 for a term of five years under the supervision of the Louisiana Department of Probation and Parole, St. Tammany district.

The interruption of prescription ceased to exist when defendant was in the custody of or under the supervision of the State of Louisiana, which was at least as of March 22, 2005. We agree with the trial judge that the present case is distinguishable from State v. Baptiste, supra, in which the Louisiana Supreme Court found that the State did not have a continuing duty to monitor the status of an outstanding arrest warrant. In Baptiste, the defendant received actual notice of his hearing date; whereas, here, defendant did not. The Baptiste court found that when a defendant receives actual notice, there was no duty upon the State to search for the defendant. This holding implies that there is a duty to monitor the status of an outstanding warrant issued on a defendant who did not receive actual notice of a hearing or trial date. The fact that the State did not monitor or check on the outstanding attachment until March 4, 2010, well outside of the time limit to commence trial, suggests that the State failed to make a diligent effort to bring defendant to trial timely.

The trial judge’s ruling on a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. State v. Love, 00-3347, p. 9-10 (La.5/23/03), 847 So.2d 1198, 1206. Based on the facts and circumstances of the present case, we cannot say that the trial judge clearly abused his discretion in granting the motion to quash. The record shows that defendant did not receive actual notice of his arraignment date, and the State failed to make a diligent effort to bring defendant to trial timely after the interruption ceased.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review did not reveal any errors that require corrective action.

DECREE

For the foregoing reasons, we affirm the trial court’s ruling granting defendant’s motion to quash the bill of information.

AFFIRMED

GRAVOIS, J., dissents.

GRAVOIS, J.,

dissents.

hi respectfully dissent from the majority opinion herein to affirm the trial court’s ruling granting defendant’s motion to quash the bill of information. Rather, for the following reasons, I would reverse the trial court’s ruling and remand the matter for further proceedings.

I agree with the majority’s first finding that the State’s attempts at service on defendant were sufficient to interrupt the running of prescription of the time to bring defendant to trial. However, I respectfully disagree with the majority’s second finding that the prescriptive period began to run again upon defendant’s entering into State custody following his guilty plea in St. Tammany Parish. I respectfully disagree with the majority’s “actual notice” analysis as a basis for finding that the Supreme Court’s opinion in State v. Baptiste, 08-2468 (La.6/23/10), 38 So.3d 247, is distinguishable from this case. Rather, once we find that prescription is interrupted by the State’s sufficient attempts at service (and correspondingly that the arrest warrant against defendant was validly issued), I interpret the Supreme Court in Baptiste to say that the State (here, Jefferson Parish) does not have the continuing duty under La.C.Cr.P. art. 578 to monitor the status of the previously validly issued outstanding arrest warrant, and that prescription remains interrupted until the State (Jefferson Parish) learned of defendant’s whereabouts. I believe the Supreme Court ruled as it did in Baptiste so as to avoid imposing on local law enforcement authorities the possibly very onerous duty of monitoring on a regular (possibly daily) basis the status of all outstanding arrest 12warrants in their jurisdiction so as to avoid the possibility of prescription running on pending local charges against defendants who, unbeknownst to local authorities, happen to be in the custody of some other local or state authority on different charges. Accordingly, I would find that in the instant case, prescription remained interrupted until the State (Jefferson Parish) learned that defendant was in custody in St. Tammany Parish. Because the State (Jefferson Parish) instituted prosecution within the prescriptive period that began to run thereafter, I would reverse the ruling of the trial court granting defendant’s motion to quash the bill of information, and remand the matter for further proceedings.

      . Although the parties stipulated that defendant was charged with two counts of DWI, fourth offense, the June 11, 2004 bill of information only charges defendant with the November 8, 2003 violation.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Kevin STRICKLAND.
    No. 11-KA-715.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for DefendanVAppellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ^¿Defendant, Kevin Strickland, appeals his conviction for second degree battery. On June 3, 2010, defendant was charged by bill of information with second degree battery, a violation of La. R.S. 14:34.1, and resisting a police officer with force or violence, in violation of La. R.S. 14:108.2. Defendant pleaded not guilty to these charges at arraignment. On February 15, 2011, the matter proceeded to trial and a six-person jury returned a unanimous verdict of guilty of the lesser offense of resisting an officer and guilty as charged of second degree battery. Defendant filed a Motion for Post-Verdict Judgment of Acquittal and a Motion for New Trial, which were denied by the trial court. On February 18, 2011, the trial court sentenced defendant to six months in Jefferson Parish Correctional Center for count one of resisting an officer and five years | (¡imprisonment with the Department of Corrections for count two of second degree battery, to run concurrently. This timely appeal follows.

FACTS

On May 10, 2010, Deputy Cynthia Phelps of the Jefferson Parish Sheriffs Office responded to a call involving a physical altercation. Deputy Phelps testified that, upon arrival to the scene, she observed a “very emotionally upset” female, later identified as Hattie Cassie, who informed her that her husband, defendant-herein, had attacked her boyfriend, Thelesmar Jones. Deputy Phelps testified that she observed Jones bleeding, disoriented, and walking in circles; the middle finger of his right hand appeared to be “amputated.” Deputy Phelps described Jones as “pretty messed up.” Jones was brought to the hospital with bite marks all over his body. Photographs of Jones’ injuries were taken and introduced into evidence at trial.

Jones testified that he and Cassie Hattie met in 2000 and have lived together for at least nine of the last ten years. During a period of time when he and Hattie were not together, she met and married defendant, who Jones readily admitted he did not like. Jones explained that, on the night of May 10, 2010, he drove up to the residence he shared with Hattie and observed defendant speaking with Hattie outside. He testified that defendant’s vehicle was parked in the driveway. Jones stated that he parked his vehicle and exited. Jones testified that he did not block 1 ¿defendant’s vehicle in the driveway and further notes that his vehicle was not damaged when defendant drove away after the incident.

Jones testified that, after he exited the vehicle, defendant grabbed his shoulders and tried to get him on the ground. Jones explained that at the time of the incident he had a ruptured disc in his back with a pinched nerve, causing him to walk with a limp. Jones testified that, at some point during the altercation, something “popped” in his back and his legs became like “Jell-o.” He testified that defendant thereafter charged at him grabbing his neck, scratching, hitting and biting him. He farther testified that defendant bit his middle finger and would not let go. When questioned concerning who initiated the altercation, Jones testified that defendant initiated the attack.

At trial, Jones demonstrated to the jury where the defendant bit him, including his pinky and partially “amputated” middle finger. When asked to rate his finger pain at the time of the incident on a scale from 1 to 10, Jones ranked his pain as a “100.” He testified to the effect of his injuries on his everyday life such as his inability to shift the gears on his truck with his fingertips and inability to pick up change from a countertop with his fingertips as is customary. He explained that the incident was traumatic to him and that he has never experienced an injury this severe or painful.

Deputy Gabriel Faucetta of the Jefferson Parish Sheriffs Office executed the arrest of the defendant on May 14, 2010. Deputy Faucetta testified that he went to defendant’s residence and knocked on the door. After defendant answered the door, Deputy Faucetta identified himself, told defendant that he had a warrant for his arrest, and advised defendant of his Miranda rights. Deputy Faucetta testified that defendant became irate and shoved him in the chest, further |sintentionally kicking him in the shin as they struggled. With the assistance of another officer, Deputy Faucetta handcuffed defendant and placed him under arrest. Deputy Faucetta testified that, at the time of the arrest, he did not observe any physical signs that defendant had recently been involved in an altercation where he would have sustained any type of serious injury.

Defendant testified at trial that he is a forty-nine (49) year-old man who married Hattie on January 22, 2009. He testified that they were still married and living together at the time of trial. Defendant indicated that Hattie has multiple illnesses, requiring various medications that affect her mood and that Jones interfered with his marriage to Hattie.

Defendant described that, on May 1, 2010, he drove to Hattie’s residence to discuss their relationship and the possibility of getting back together, when Jones drove up to the residence, blocking defendant’s vehicle in the driveway. Defendant explained that Jones exited the vehicle abruptly, charged at defendant and began grabbing and choking him. Defendant testified that, at some point during the altercation, he attempted to get into his vehicle to leave but that Jones followed him into the vehicle, crawled on top of him, and began punching and choking him. Defendant explained that Jones put his hands over defendant’s mouth; defendant then opened his mouth and started biting Jones’ finger and refusing to let go of Jones’ finger while he was being strangled. Defendant testified that, as he was gagging, he was asking God to help him. Defendant then left the scene of the altercation by driving through the grass to avoid hitting Jones’ vehicle.

Defendant admitted to biting a portion of Jones’ finger off. Defendant explained that he did not intend to hurt Jones, but was only trying to get Jones off 16of him. Defendant testified that he suffered injuries from the incident and presented a photograph of a bruised thumbnail taken two months after the incident. Defendant testified that Jones initiated the attack and that he acted in self-defense.

DISCUSSION

Defendant briefs two assignments of error. Defendant claims in his second assignment of error that the evidence at trial was insufficient to support his conviction for Second Degree Battery. Defendant asserts that the state failed to disprove his self-defense claim and failed to prove that he had specific intent to commit the crime.

We will first consider defendant’s second claim, that the evidence at trial was not sufficient to support his conviction for second degree battery. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554, p. 7 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 2007-0371 (La.5/4/07), 956 So.2d 600.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Durand, 07-4, p. 9 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to |7prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Id. On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Rather, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

Defendant is convicted of second degree battery in violation of La. R.S. 14:34.1, which provides in pertinent part:

A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury; however, this provision shall not apply to a medical provider who has obtained the consent of a patient.
B. For purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
C. Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

This Court has found that, to convict a defendant of second degree battery, the state must prove the following elements beyond a reasonable doubt: (1) the intentional use of force or violence upon the person of another; (2) without the consent of the victim; and (3) when the offender intentionally inflicts serious bodily injury. State v. Fuller, 414 So.2d 306, 309-10 (La. 1982); State v. Hall, 03-1384, p. 6 (La.App. 5 Cir. 3/30/04), 871 So.2d 558, 561. In the case before us, it appears the defendant only challenges the element of intent.

La. R.S. 14:10 defines “specific intent” as:

(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.

[ ^Specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and conduct of the defendant. State v. Patterson, 10-415, p. 10 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 147, writ denied, 11-0338 (La.6/17/11), 63 So.3d 1037. Further, the intent to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Durand, 07-04 at p. 9, 963 So.2d at 1034. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact and a review of the correctness of this determination is guided by the Jackson standard. Patterson, 10-415 at p. 11, 63 So.3d at 148.

The photographs introduced at trial of Jones’ injuries are “gruesome” as described by the trial judge. Deputy Phelps testified that Jones was bleeding, disoriented, and suffering from injuries requiring immediate medical attention following the incident. Jones also testified to the pain he experienced as a result of his injuries and the complications he faces on a daily basis from the loss of his fingertip. Considering the evidence and testimony presented concerning the severity of Jones’ injuries, including the amputation of his fingertip, we find that the jury could have reasonably inferred that defendant had the specific intent to inflict serious bodily injury upon Jones.

It is noted that defendant does not deny his actions of biting and scratching Jones; however, he argues that the state failed to prove beyond a reasonable doubt that he did not act in self-defense. The state responds that the evidence at trial demonstrates that defendant was the aggressor in the incident and is, therefore, not permitted to claim self-defense.

Defendant argues that his conduct is justifiable because he acted in self-defense. The fact that an offender’s conduct is justifiable, although otherwise |flcriminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; Patterson, 10-415 at p. 12, 63 So.3d at 148. The use of force or violence is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A); State v. Steele, 01-1414, p. 8 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03), 853 So.2d 632. However, La. R.S. 14:21 instructs that a person who is the aggressor cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21; Steele, 01-414 at p. 8, 829 So.2d at 547.

This Court has found that “the defendant, in a non-homicide case, has the burden to establish, by a preponderance of the evidence, that he acted in self-defense.” Id. The defense of self-defense in a non-homicide situation requires a dual inquiry: an objective inquiry into whether the force used was reasonable under the circumstances, and a subjective inquiry into whether the force was apparently necessary. State v. Freeman, 427 So.2d 1161, 1163 (La.1983); State v. Nailor, 10-1062, p. 8, 78 So.3d 816 (La.App. 5 Cir. 11/15/11), 78 So.3d 816. The credibility of witnesses presenting conflicting testimony on factual matters 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. State v. Baker, 01-1397, p. 4 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. 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. Id.

| min the case before us, the evidence presented at trial demonstrates that defendant suffered little to no injury as a result of the incident at issue. Defendant introduced one photograph of a bruised fingernail taken some time after the incident. The state introduced surprisingly gruesome photographs demonstrating that Jones, on the other hand, required immediate medical attention and suffered from bruises, scratches, and bite marks all over his body; he further suffered from the loss of his fingertip. In light of the evidence presented, we find that the jury could have reasonably found that defendant did not act in self-defense. Further, as noted above, La. R.S. 14:21 states that “a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” Given Jones’ testimony claiming that defendant initiated the attack and the photographic evidence of Jones’ injuries, the jury could have reasonably concluded that defendant was the aggressor of the altercation and, thus, not entitled to a self-defense claim. Accordingly, we find no merit to defendant’s argument.

A Jackson sufficiency review does not require the court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt. State v. Barnes, 98-932, p. 4 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. Rather, the reviewing court, considering the record as a whole, must determine whether any rational trier-of-fact would have found guilt beyond a reasonable doubt. Id; State v. King, 06-554, p. 9 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 391, writ denied, 2007-0371 (La.5/4/07), 956 So.2d 600. Considering the circumstances of this case, the actions of defendant, and the extent and severity of the victim’s injuries, we find evidence was constitutionally sufficient to support the jury’s finding that defendant had the |n specific intent to inflict great bodily harm upon Jones. Viewing the evidence in the light most favorable to the state, a rational trier-of-fact could find that the evidence is sufficient to support a conviction of second degree battery in violation of La. R.S. 14:34.1.

In his other assignment of error to this Court, defendant claims the trial court violated his Sixth Amendment right to confront his accuser. At trial, Jones testified he was previously convicted of simple battery for an incident in Texas. Defense counsel questioned Mr. Jones, “Now, you classified it as a Simple — ,” at which point he was interrupted by the state’s objection and a bench conference followed. Defense counsel attempted to impeach the witness by arguing that the conviction in Texas is not a “simple battery” but rather is an “assault causes injury to a family member” as provided on Jones’ criminal history report.

There is little factual information concerning the incident in Texas. At the bench conference, Defense counsel apparently did not know whether the witness pled guilty, was convicted, or was merely arrested for the offense in Texas. The state indicated that it obtained a certificate of conviction but did not know any further information concerning the offense including the Louisiana law equivalent to the Texas conviction. The trial judge found that La. C.E. art. 609.1 limits questioning concerning the previous conviction unless the witness denies the conviction. The trial court found that because Jones did not deny the conviction, defense counsel could not question the witness any further. The court sustained the state’s objection, to which defense counsel responded, “[o]kay.” Defense |12counsel further did not proffer the substance of the excluded testimony or the criminal history report discussed during the bench conference.

Based upon a review of the transcript, it appears defendant failed to preserve this issue for appeal. . La.C.Cr.P. art. 841(A) provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. There is no “magic-word” formula necessary for remarks to constitute an objection. Rather, it is sufficient that a party, at the time of the ruling, makes known to the court the objections to the court’s action, together with the grounds therefor. “Where the defense counsel acquiesces when the court sustains the state’s objection to the examination of a witness, that objection is waived.” State v. Favors, 09-1034, p. 14 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, 261, writ denied, 2010-1761 (La.2/4/11), 57 So.3d 309. Further, when a defendant fails to proffer the substance of the excluded testimony, he is procedurally barred from assigning the error on appeal. See State v. Stevenson, 02-0079, p. 6 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 347.

We find that defense counsel failed to contemporaneously object to the trial court’s ruling; he further acquiesced when the trial judge sustained the state’s objection. As such, we find that defendant is precluded from raising this error on appeal.

ERROR PATENT REVIEW

This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Crochet, 10-387 (La.App. 5 Cir. 2/15/11), 61 So.3d 725, 731; State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). A review of the record before us reveals errors patent as discussed below.

The record indicates that the trial court failed to observe the 24-hour time delay between denying the defendant’s motions for new trial and post-judgment verdict of acquittal and sentencing as required by La.C.Cr.P. art. 873. Although the article does not explicitly require a 24-hour delay in sentencing after consideration of a motion for post-verdict judgment of acquittal, this Court has previously applied the Article 873 time delay to motions for post-verdict judgment of acquittal. State v. Johnson, 11-375, p. 8, 2011 WL 6821403 (La.App. 5 Cir. 12/28/11), 83 So.3d 1116; State v. Nicholas, 10-866, p. 10 (La.App. 5 Cir. 5/24/11), 67 So.3d 610, 617.

When a defendant challenges the penalty imposed and the imposed sentence is not mandatory, the failure of the trial court to observe the 24 hours delay mandated in La.C.Cr. P. art. 873 cannot be considered harmless error. Nicholas, 10-866 at 10-11, 67 So.3d at 617. However, defendant in the case before this Court is not challenging his sentence on appeal. Absent a showing of prejudice from the failure to afford the statutory delay provided in La.C.Cr.P. art. 873, reversal of a prematurely-imposed sentence is not required. State v. Seals, 95-0305, p. 17 (La.11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

The record before us suggests that defendant knew he would be sentenced at the time of his sentencing hearing and came prepared with three witnesses to testify on his behalf. Defendant has not raised this issue on appeal and has not 114shown that he suffered any prejudice as a result of the trial court error. Upon review of the record, we find that defendant tacitly waived the statutory delay provided in La.C.Cr.P. art. 873. See State v. Jackson, 04-293, pp. 9-10 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 75, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094. Accordingly, it is unnecessary to remand this matter for re-sentencing.

An additional error present in the record before us concerns the fine imposed upon defendant and an apparent discrepancy between the commitment and the transcript. The commitment reflects that defendant received a fine of $930.50 but the transcript reflects a fine imposed of $980.50. Generally, where there is an inconsistency between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). However, in this case, the record contains a copy of the “Schedule of Fines, Fees, Sentencing Provisions and Probation Requirements,” which reflects that the appropriate fine in a non-drug case is $930.50.

As such, this matter is remanded to the trial court for review of the discrepancy discussed above and clarification of the amount of the fine imposed upon defendant.

CONCLUSION

Accordingly, for the reasons discussed above, the conviction of defendant is affirmed and this matter is remanded for action of the trial court consistent with this opinion.

AFFIRMED AND REMANDED WITH INSTRUCTIONS

      . Defendant has not appealed his conviction of Resisting an Officer.

      . Of Defendant’s five-year sentence as to count two, the trial court suspended two years and ordered Defendant to be on active probation and Home Incarceration for two years. Although the trial judge did not state "at hard labor” when sentencing defendant, as reflected in the commitment, she did order that defendant's sentence be served in the custody of the "Department of Corrections.” In State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403, this Court determined that, while the transcript did not specifically state the sentence was to be served at hard labor, it did provide the sentence would be served in the Department of Corrections. "Only individuals actually sentenced to death or confinement at hard labor shall be confined to the Department of Corrections.” Id. (citing LSA-R.S. 15:824(C); State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109, writ denied, 2007-0152 (La.9/28/07), 964 So.2d 351. Accordingly, we need not remand the matter for resentencing.
      Defendant filed a Motion to Reconsider Sentence, which was denied by the trial court. Defendant has not appealed the trial court’s denial of that motion nor assigned as error the sentence he received.

      .Throughout the record, Mr. Jones is referred to as "Thelesmar” Jones and "Thels-mar” Jones. Accordingly, we will refer to Mr. Jones as "Jones” herein.

      . Defendant was convicted of Resisting an Officer; however, defendant does not appeal this conviction.

      . When the issues on appeal pertain to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

      . La. C.E. art. 609.1, in pertinent part, provides:
      C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
      (1) When the witness has denied the conviction or denied recollection thereof;
      (2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
      (3)When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

      . Defendant attached Jones' criminal history report to his Motion for New Trial and briefed the issue of cross-examination at that time. However, because "no objection was timely made, defense counsel cannot urge on a motion for new trial the alleged error complained of.” See State v. Bowen, 292 So.2d 197, 201 (La. 1974).

      . La.C.Cr.P. art. 873 provides:
      If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.


text:
    STATE of Louisiana v. Elbert CHINN.
    No. 11-KA-934.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Michael F. Escudier, Matthew Sherman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Elbert Chinn, IPP, Monroe, LA, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

li>The defendant appeals his conviction and sentence for attempted simple escape. He argues that the trial court erred by denying his motion to quash the bill of information. He further challenges the sufficiency of the evidence and the legality of his multiple-offender sentence. For the reasons that follow, the conviction and sentence is affirmed.

Factual and Procedural Background

On February 4, 2009, Officer Jeffrey Reyes of the Gretna Police Department enrolled the defendant/appellant, Mr. Elbert Chinn, Jr., into the home incarceration program. Mr. Chinn signed a document entitled “Certificate Rules and Regulations,” which Officer Reyes read aloud to him “word-for-word.” The certificate explained the rules of the program and specifically stated in paragraph 11. “UJf a defendant is not at their place of legal confinement or work location at \%scheduled times and cannot be contacted, the defendant will be deemed a simple escapee. An arrest warrant will be issued for the defendant for violation of L.R.S. U:110.A.l (Simple Escape).”

On April 9, 2009, Officer Phillip Wiebelt, Mr. Chinn’s supervisor in the program, received notification that Mr. Chinn’s monitoring equipment was no longer connected to the telephone service. Upon receiving this notification, Officer Wiebelt called Mr. Chinn on both his home and cell phones but did not get an answer. He then left a voice mail message on the cell phone and asked Mr. Chinn to call him back as soon as possible. The next day, April 10, 2009, Officer Wiebelt called Mr. Chinn again and left another voice mail message on the cell phone. He then went to Mr. Chinn’s address in his unmarked unit, which contained a drive-by system. The drive-by system was capable of detecting the ankle monitoring bracelet if located within a 150-foot range of the system. The drive-by system, however, did not detect the ankle bracelet, and no one answered Mr. Chinn’s door.

Officer Wiebelt telephoned Mr. Chinn again on April 11th but did not get an answer. He called back on April 12th and received the operator message stating that the cell phone number was no longer in service. Officer Wiebelt, accompanied by Officer Hightower, returned to Mr. Chinn’s home on April 13, 2009, around 10 A.M. Again, no one answered the door. However, a neighbor informed the officers that no one lived there anymore. Officer Wiebelt then issued a warrant for Mr. Chinn’s arrest. The next day, April 14, 2009, shortly before midnight, Mr. Chinn was arrested for the outstanding warrant when a vehicle in which he was riding as a passenger was pulled over for a traffic violation. Mr. Chinn was taken to jail. Officer Wiebelt removed the ankle bracelet the following day when he arrived for his shift.

|4Mr. Chinn was subsequently charged by bill of information with simple escape, in violation of La. R.S. 14:110 on May 21, 2009. He pled not guilty at the arraignment and moved to quash the bill of information. He alleged that the bill was defective because the proper remedy for a violation of home incarceration was imprisonment as opposed to new criminal charges of simple escape. The State opposed the motion and relied upon the district court’s ruling in State v. Stanley Thompson, in which both this Court and the Louisiana Supreme Court denied writs. State v. Thompson, 08-0443 (La.App. 5 Cir. 6/26/08) (unpublished writ), writ denied, 08-1581 (La.7/16/08), 986 So.2d 69.

In this case, the trial court relied on Thompson, supra and, likewise, denied Mr. Chinn’s motion to quash on March 25, 2010. Thereafter, the case proceeded to trial, and a six-person jury found Mr. Chinn guilty of the lesser offense of attempted simple escape. Mr. Chinn then filed a motion to reconsider sentence, as well as a motion for new trial. Both motions were denied. Mr. Chinn was sentenced to imprisonment at hard labor for a term of one year and three months. The sentence was ordered to be served consecutively with the sentence he received in case 08-6437. The State filed a multiple-bill, alleging Mr. Chinn to be a second-felony offender. And at the multiple-bill hearing, Mr. Chinn was adjudicated to be a second-felony offender. The trial court then vacated the original sentence imposed pursuant to La. R.S. 15:529.1 and resen-tenced him to one year and three months at hard labor without probation or suspension of sentence. The sentence was to run consecutively with the sentence imposed in 08-6437.

Assignments of Error

In his counseled assignment of error, Mr. Chinn contends that the trial court erred in denying the motion to quash. Mr. Chinn further contends, pro se, that the | ¿State failed to prove beyond a reasonable doubt that he committed simple escape. He also challenges the legality of his multiple-offender sentence.

Discussion

First Assignment of Error

In his first assignment of error, Mr. Chinn contends that the trial court erred by denying the motion to quash. Specifically, he contends that a sentence to the home incarceration program, as a condition of or in lieu of bond, does not constitute “custody” for purposes of the simple escape statute. He contends that the proper remedy for a violation of home incarceration is to initiate contempt and bail revocation proceedings after a contradictory hearing.

La. R.S. 14:110(A) provides, in pertinent part, that simple escape is:

A. The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, or detained from a place where such person is legally confined, from a designated area of a place where such person is legally confined, or from the lawful custody of any law enforcement officer or officer of the Department of Public Safety and Corrections.
D. For purposes of this Section, a person shall be deemed to be in the lawful custody of a law enforcement officer or of the Department of Public Safety and Corrections and legally confined when he is in a rehabilitation unit, a work release program, or any other program under the control of a law enforcement officer or the department. (Emphasis Added).

Thus, section D deems someone to be in “lawful custody” of the Department and “legally confined” when he is in “any other program under the control of a law enforcement officer or the department.” A close reading of La.C.Cr.P. art. 894.2, specifically article 894.2(B)(1), reveals that the home incarceration program is, in fact, under the control of the Department of Public Safety and Corrections. Yet, | fiMr. Chinn contends that he was not in lawful custody even though he was being supervised by the Gretna Police Department.

This Court has previously held, however, that the simple escape statute does apply to home incarceration. In State v. Hillard, 02-1155 (La.App. 5 Cir. 1/7/03) (unpublished writ), writ denied, 03-0355 (La.3/14/03), 839 So.2d 50, the defendant sought supervisory review of the trial court’s denial of his motion to quash the bill of information that charged him with simple escape from the home incarceration program. There, we stated, “the simple escape statute, La. R.S. 14:110 D, applies to the Home Incarceration Program, even though the Gretna Police Department supervised the Defendant’s Home Incarceration.” Likewise, in Thompson, supra, we denied the defendant’s application for supervisory review after finding that the trial court did not err in denying the motion to quash the bill which charged him with simple escape from home incarceration.

Mr. Chinn, however, relies upon La.C.Cr.P. art. 894.2 to argue that the trial court should have conducted a contradictory hearing prior to acting on the alleged violation of home incarceration. La.C.Cr. P. art. 894.2(1) provides: “[i]f the defendant violates the conditions of home incarceration, the court, on motion of the state or its own motion, may, after contradictory hearing modify or impose a sentence of imprisonment.” Mr. Chinn’s reliance on this article, however, is misplaced.

La.C.Cr. P. art. 894.2 provides that a defendant may be placed on home incarceration in lieu of bond or after conviction of a misdemeanor or felony under certain conditions. The record in this case is unclear as to why Mr. Chinn was placed on home incarceration, although he contends it was in 17lieu of bond. In any regard, he was placed on home incarceration for committing a separate offense and not for the offense of simple escape. Therefore, once he violated the rules and regulations of the home incarceration program, the court could have, after contradictory hearing, modified or imposed a sentence of imprisonment for the underlying offense. The underlying offense, however, is not before this Court in this appeal. Rather, this appeal involves the offense of simple escape, which we have already stated, was properly charged in this case.

Mr. Chinn further argues that because he was placed on home incarceration in lieu of bond, the bail should have been revoked pursuant to La.C.Cr.P. art. 335. Again, whether or not bail should have been revoked relates to the underlying offense to which Mr. Chinn was placed on home incarceration, and not the offense of simple escape. Therefore, this assignment of error is without merit.

Second Assignment of Error

In his first pro se assignment of error, Mr. Chinn contends that the evidence was insufficient to support a conviction for attempted simple escape.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In order to support a conviction for simple escape, the State must prove (1) an intentional departure (2) under circumstances wherein human life is |snot endangered (3) by a person detained (4) from the lawful custody of any law enforcement officer. State v. Bullock (La.1991), 576 So.2d 453, 455.

In this case, the State presented Mr. Chinn’s signed “Certificate Rules and Regulations” which outlined the rules of the home incarceration program. As part of home incarceration, Mr. Chinn was permitted to be away from his home on Mondays, Tuesdays, and Thursdays from 9:00 A.M. to 5:00 P.M. to look for work. Officer Wiebelt testified, however, that Mr. Chinn was unmonitored from Thursday, April 9, 2009 through Monday, April 13, 2009. Mr. Chinn explained why the system did not detect him through the testimony of several witnesses who testified that he had no electricity or phone service during that time. But even if Mr. Chinn had no electricity at his home, Officer Wiebelt testified that he went to Mr. Chinn’s residence on Friday, April 10, 2009, a day that he was required to be at home, and no one answered. Furthermore, Mr. Chinn was arrested outside of his home on Tuesday, April 14, 2009, after 5:00 P.M., when he and his girlfriend were returning home from purchasing chicken. Although Mr. Chinn may have experienced some discomfort without electricity, the lack of electricity, in and of itself, does not endanger human life so as to justify his departure from his home.

The evidence in this case clearly indicates that Mr. Chinn was detained under home incarceration under the supervision of Officer Wiebelt of the Gretna Police Department and that he was subsequently arrested on April 14, 2009, during a time in which he was supposed to be at his residence. A review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. Based on the record presented in this case, the jury could have reasonably found that Mr. Chinn committed the offense of attempted simple escape beyond a reasonable doubt. Therefore, this assignment of error is without merit.

Third Assignment of Error

Finally, Mr. Chinn challenges the legality of the multiple-offender sentence. He contends that the sentence is illegal because the State failed to enter on the record which rights he specifically waived when he pled guilty to the predicate offense.

When the State relies on a prior conviction that is based on a guilty plea in proving a defendant’s multiple offender status, and the defendant denies the allegations of the multiple bill, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769 (La.1993). Once the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. Id. at 779. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. Id. This final burden can be met if the State produces a “perfect transcript” articulating the Boykin colloquy between the defendant and the trial judge or any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. Id. at 779-80; State v. Collins, 04-255, p. 6 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1154, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and | inthe State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary. Id.

In this case, the multiple offender bill of information alleged that Mr. Chinn had one prior felony conviction — second offense possession of marijuana — to which he pled guilty in 2001. The State did not present a “perfect transcript” at the multiple bill hearing; rather, it presented Mr. Chinn’s well-executed guilty plea form and the minute entry. The plea form, which Mr. Chinn initialed several times, stated that he understood and waived his three Boykin rights. The form was also signed by Mr. Chinn, his defense counsel, and the trial judge. Jurisprudence has held that the minute entry and plea form provide an “affirmative showing in the record that the accused made a knowing and voluntary waiver of his rights.” Shelton, supra, at 777. Therefore, this assignment of error is without merit.

Error Patent Discussion

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La. 1975). Our review reveals that there are errors patent which do not require corrective action.

We first note that the original commitment appears to be inconsistent with the transcript. The original commitment reflects that the trial court ordered Mr. Chinn’s original sentence to run consecutively to the sentence in ease number OS-6437; however, the transcript reflects that the trial court ordered his original sentence to run consecutively to any other sentence. Because the original sentence was vacated at the multiple-offender hearing, it appears that any patent errors relating to the original sentence are moot. See State v. Smith, 09-100, p. 4 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 502 n. 2, writ denied, 09-2102 (La.4/5/10), 31 So.3d 357.

|nNext, we note that the trial judge failed to arraign Mr. Chinn on the multiple offender bill of information.

The Multiple Offender Statute directs the trial court to order the defendant to appear before it, inform the defendant of the allegations contained in the bill of information, of his right to be tried as to the truth, and to require the offender to comment on the truth of the allegations. La. R.S. 15:529.1(D)(l)(a). Implicit in the statute is the requirement of the court to advise the defendant of his right to remain silent. State v. Allen, 93-838, p. 16 (La. App. 5 Cir. 5/31/94), 638 So.2d 394, 403. However, La.C.Cr.P. art. 555 states:

[A]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

This Court has consistently held that when a defendant proceeds to a multiple offender hearing without objecting to the lack of arraignment, any error in the failure to arraign is waived. Allen, supra; State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389; State v. Evans, 02-1108, p. 6 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 115. Additionally, this Court has held that the failure of the trial court to advise the defendant of his right to remain silent is harmless error when the defendant remains silent and his multiple offender status is established by competent evidence offered by the State at the hearing, rather than by the defendant’s admission. Allen, supra.

In this case, Mr. Chinn proceeded to the multiple offender hearing without objecting. He, therefore, waived any procedural irregularity or error in the failure to arraign. La.C.Cr.P. art. 555. Moreover, the record indicates that Mr. Chinn did not testify or make any comments during the multiple bill hearing. Therefore, the 112trial court’s failure to advise him of the allegations against him and of his right to be tried and to remain silent was harmless error. Evans, supra.

For the foregoing reasons, the conviction and sentence is affirmed.

AFFIRMED

      . La.C.Cr.P. art. 894.2(B)(1) provides, "A defendant ordered to home incarceration shall be supervised and may be subject to any of the conditions of probation. Every provider of home incarceration supervision or electronic monitoring services shall submit information to the court, the sheriff of the parish, and the Department of Public Safety and Corrections. The Department of Public Safety and Corrections is authorized to establish regulations to develop a uniform reporting format and procedures for providers of home incarceration in order to promote efficiency and uniformity in data collection."

      . Furthermore, paragraph four of "Certificate Rules and Regulations” states, "If you are faced with a PERSONAL LIFE THREATENING EMERGENCY, attend to the emergency and notify your case officer as soon as possible. Proof of the emergency WILL BE REQUIRED and MUST BE PROVIDED TO YOUR CASE OFFICER.” Officer Wiebelt testified that Mr. Chinn did not contact him from April 9, 2009 — April 13, 2009.