author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Deraid Gene JOHNSON.
    No. 11-KA-63.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Terri R. Lacy, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

Ijn this criminal matter, defendant, Deraid Gene Johnson, appeals his two narcotics convictions as well as his multiple offender adjudication and sentence. For the reasons that follow, we affirm defendant’s convictions, vacate his multiple offender adjudication and sentence, and reinstate his original sentences, as amended, and remand this matter to the district court for proceedings consistent with this opinion.

On September 11, 2003, the St. James Parish District Attorney filed a bill of information charging defendant, in count one, with possession with intent to distribute cocaine, LSA-R.S. 40:967 A(l), and in count two, with possession with intent to distribute marijuana, LSA-R.S. 40:966 A(l). At the September 22, 2003 arraignment, defendant pled not guilty. On June 27 and 28, 2006, the case was tried before a twelve-person jury which found defendant guilty as charged on both counts.

On January 23, 2007, the trial judge sentenced defendant to two concurrent twenty-year sentences in the Department of Corrections with the first two years to be served without benefit of parole, probation, or suspension of sentence. The State thereafter filed a multiple offender bill of information alleging defendant to be a second felony offender. On August 28, 2007, after defendant stipulated to the ^allegations in the multiple bill, the trial judge vacated the previous sentence and resentenced defendant to twenty years in the Department of Corrections with credit for time served. Defendant now appeals.

FACTS

On July 18, 2003, at approximately 8:30 p.m., a group of police officers from the St. James Parish Sheriffs Office and the Gramercy Police Department went to defendant’s residence at 1591 Tulip Lane in Gramercy, a high crime area, to execute a search warrant. When the signal was given, the officers exited their vehicles, with the plan that some officers were to go to the front of the residence while others proceeded to the back. As the officers approached the front of the house, defendant ran next to the side of the house toward the back, and co-defendant, Courtney Johnson, ran inside the house, closing the door behind him.

Officer Alan Berthelot, Detective Julie Zeringue, and Deputy Billy Jordan chased defendant on foot. When they got to an area behind a trailer, Detective Zeringue and Deputy Billy Jordan observed defendant throw something with his left hand. Detective Zeringue followed the direction of the object and noticed that it hit the left back corner of the metal roof of the shed and bounced back, making a “ping” sound as it did so.

At that point, Detective Zeringue focused her attention back on defendant and saw that Officer Berthelot had defendant on the ground. Detective Zeringue then assisted Officer Berthelot in handcuffing defendant. While doing so, she pulled defendant’s left arm from underneath his body and found in his hand a cell phone and some money. After defendant was handcuffed, Detective Zeringue directed Deputy Jordan to the area where the object was tossed. A couple of minutes later, Deputy Jordan found a large rock-like substance in a plastic bag.

14 While defendant was being chased and apprehended, Lieutenant Andrew Duhe went to the house to execute the search warrant. When he arrived, other officers had already secured the residence. Lieutenant Duhe brought a copy of the search warrant to Gwen and Charlotte Johnson, who lived there, and told them that he had a search warrant to search the residence for drugs. He learned from Charlotte Johnson, Courtney’s mother, that defendant and Courtney shared a bedroom in the residence. Afterward, the officers went to that bedroom. Two children, ages 3 and 4, were in there watching television. One of the officers took the children into the kitchen with Gwen and Charlotte Johnson, and the officers searched the room.

During the search, which was videotaped, the officers recovered seven pieces of crack cocaine and a razor blade from the top of the television, a postal scale, and a large plastic bag containing twenty smaller bags of suspected marijuana from a homemade clothes line which ran from wall to wall. The mattress was then lifted, and the officers recovered two unloaded weapons and a paper bag containing marijuana residue as well as papers which identified defendant and a Visa credit card with defendant’s name on it.

The officers also found three small bags of marijuana, live rounds of ammunition, two boxes of sandwich bags, a plastic cup with some cellophane plastic wrap, and some “corner bags.” Hanging on the window shade area was a cooler bag which contained 91.4 grams of marijuana stems and seeds. The officers then searched the remainder of the residence, and found, in the hallway where Courtney Johnson was apprehended, a bag stuffed into a hole in the wall containing approximately thirteen bags of marijuana.

Natalie Mayeaux of the Louisiana State Police Crime Lab testified that she tested the evidence in this case that was submitted by the St. James Parish Sheriffs Office and determined that Exhibits 1, 3, and 4A contained cocaine, and that | .^Exhibits 5, 6, 7A, and 7B contained marijuana. Ms. Mayeaux also determined that Exhibits 3 and 4A had a combined weight of 17.54 grams; Exhibits 5, 6, and 7A had a combined weight of 55.27 grams; and Exhibit 7B had a net weight of 1.03 grams.

Shon Cook, a narcotics detective with the St. James Parish Sheriffs Office, testified that he was familiar with how drug transactions were accomplished, and that during his employment, he had become familiar with the approximate street value of drugs. Detective Cook explained that the street value of marijuana was approximately $20 per gram, and that there were 28 grams in an ounce. He also explained that the street value of cocaine was approximately $100 per gram.

After the State rested its case, Gwen Johnson, defendant’s mother, testified that she was home on the night of July 18, 2003, when defendant was arrested. On that evening, she was with her granddaughter and her sister, Charlotte Johnson, who was schizophrenic and is now deceased. As Gwen Johnson was cleaning the house, the officers kicked in her door, pulled guns, put them down on the floor, and told them not to move. The children got scared and started crying so she went to the back to see what was happening and to calm the children down. Gwen Johnson testified that defendant and Courtney Johnson were living there “on and off,” that she never saw defendant bring drugs or a gun into the house, and that she did not know there were drugs in the house.

ADMISSION OF VIDEOTAPE EVIDENCE

On appeal, defendant argues that the trial judge erred by allowing into evidence a redacted videotape made by the police during the execution of a search warrant at the house where he was living. He specifically contends that the State | c,failed to timely disclose the evidence and further that the videotape was more prejudicial than probative. For the reasons that follow, we find no error in the trial court’s admission of the videotape.

At the beginning of trial, the prosecutor and defense counsel had a discussion with the judge about the introduction of the videotape of the search of the house. Defendant maintained that the videotape should be excluded because it was never provided to defense counsel; and, in response, the State claimed that it was part of open file discovery that was granted in this case.

After opening statements, the court recessed and allowed defense counsel the opportunity to view the videotape. After viewing the tape, defense counsel argued that it was prejudicial. The trial judge refused to allow the videotape into evidence in its current form because there was a narrative on it. The trial judge instructed the prosecutor to take out the audio portion as well as the gaps where the officers appeared to be looking through papers. Over defendant’s objection, the trial judge admitted the videotape in a compressed form without the narrative and showing only the items that were actually found in the search. The videotape was thereafter played for the jury during Lieutenant Duhe’s testimony.

After Duhe’s testimony was concluded, defense counsel again objected to the videotape as highly prejudicial, and in particular, objected to the momentary image of the two children and a lady holding them. He argued that the videotape showed that the kids were there and somehow involved in this incident. The trial court noted defendant’s objection and commented that he did not find that portion of the tape to be prejudicial and that he allowed it in “only after the inferences raised by the defendant that the only other person in the house was Ms. Charlotte, who was schizophrenic and may have placed the drugs.”

After the trial testimony was completed, defense counsel moved for a mistrial based upon the late disclosure of the videotape and the prejudicial effect of |7its admission. The trial judge denied the motion for mistrial, noting that he allowed the defense to view the videotape prior to allowing it into evidence and he had redacted all objectionable portions. The trial judge further noted that the videotape would have been allowed as impeachment evidence after the testimony of Ms. Johnson.

Defendant now contends that the trial court erred in admitting the videotape into evidence. He first argues that the videotape should have been excluded because the State did not provide it to him in a timely fashion during discovery. Defendant contends that the State’s failure to disclose the videotape prejudiced him in that he rejected a plea offer based upon his misapprehension of the strength of the State’s case; and he was denied the opportunity to prepare a proper defense to evidence he did not know was going to be presented.

The State responds that pursuant to documents produced in connection with open file discovery, the defense was put on notice two years prior to trial of the existence of the videotape. The State further responds the defense was aware of the contents of the videotape as evidenced by detailed police reports filed in connection with this case and the extensive preliminary examination.

LSA-C.Cr.P. art. 718(2) requires the State, on defendant’s motion, to produce documents and tangible objects that are within its possession, custody or control and that are intended for use by the State as evidence at the trial. The State is under a continuing obligation to promptly disclose additional evidence that may be discovered or that it decides to use as evidence at trial. LSA-C.Cr.P. art. 729.3. When a party fails to comply with the provisions of the discovery articles, “the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.” LSA-C.Cr.P. art. 729.5(A). It |Ris within the trial court’s discretion to choose an appropriate remedy for a discovery right violation that will offset any possible prejudice. State v. Chaplain, 03-0338, p. 4 (La.App. 5 Cir. 7/29/03), 852 So.2d 1088, 1089.

The State’s failure to comply with discovery procedures does not automatically require reversal. The appellate court must examine the circumstances of the case to determine whether the defendant was prejudiced, and whether any prejudice resulting from the State’s non-compliance with discovery procedure caused the trier-of-fact to reach the wrong conclusion. State v. King, 06-554, pp. 17-18 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 396, writ denied, 07-371 (La.5/4/07), 956 So.2d 600, citing State v. Sweeney, 443 So.2d 522, 527 (La.1983).

In State v. Smith, 99-1020, pp. 6-7 (La.App. 5 Cir. 2/29/00), 757 So.2d 74, 77-78, writs denied, 00-1017 (La.3/30/01), 788 So.2d 439 and 01-854 (La.11/21/01), 802 So.2d 631, this Court explained:

The discovery articles are intended to eliminate unwarranted prejudice which could arise from surprise testimony and evidence, to permit the defense to answer the State’s case, and to allow the defendant to properly assess the strength of the State’s evidence in preparing a defense. When the defendant is lulled into a misapprehension of the strength of the State’s case through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. However, a conviction will not be reversed on the basis of a discovery violation unless prejudice is shown by the trial court’s adverse ruling.

In the present case, the record reflects that defendant filed numerous discovery motions in March and June of 2004 seeking discovery, disclosure, and inspection of the evidence, including the police report. On July 14, 2004, the State filed an “Answer to Defendant’s Request for Motion for Discovery, Disclosure, and Inspection, and for a Bill of Particulars.” Attached to its answer was a copy of the police report and other documents which showed that the search of the residence had been videotaped. On October 25, 2004, a hearing was held on 19defendant’s discovery motions. The minute entry from that date indicates that defense counsel informed the trial judge that open file discovery was satisfactory. In addition, an order from October 27, 2004 shows that the trial judge allowed defendant to review all of the evidence in the custody of the Louisiana State Police Crime Lab and the St. James Parish Sheriffs Office.

Our review of the record, and in particular the discovery documents, indicates that defendant had approximately two years notice prior to trial of the existence of the ■videotape and the contents contained therein. While defense counsel apparently did not view the videotape prior to trial, it certainly cannot be said that the State failed to disclose its existence. Moreover, the videotape showed the search of the house and the items recovered. The reports which were provided to defense counsel during discovery clearly listed all of the items recovered. Therefore, even though defense counsel did not view the videotape, he certainly should have known the items seized in the search. In addition, defendant did not demonstrate how his defense would have been different had he learned of the videotape prior to trial. Given these circumstances, it cannot be said that defendant was “lulled into a misapprehension of the strength of the State’s case by the absence of the video,” nor can it be said that the alleged late disclosure affected his ability to prepare a defense.

In addition to claiming that the videotape should be excluded because of its untimely disclosure, defendant also argues that the videotape was improperly admitted because it was more prejudicial than probative. In particular, defendant contends that the tape was extremely prejudicial because it depicted the two children in such a manner as to make it appear that they were involved in the alleged drug trafficking. In contrast, the State contends that the video in no way implicated the children’s involvement in these crimes, and further, the videotape |inmerely corroborated testimony that the children were at the house watching television at the time of the search.

According to LSA-C.E. art. 402, all relevant evidence is admissible, except as provided by law. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. LSA-C.E. art. 403. In the case of videotape evidence, any videotape that illustrates any fact, sheds light upon any factor at issue in the case, or reliably represents the person, place or thing depicted is admissible, provided its probative value outweighs any prejudicial effect. Further, the trial court’s ruling on the admissibility of evidence will generally not be disturbed on appeal unless the prejudicial effect of the evidence outweighs its probative value. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1037, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Davis, 92-1623, p. 23 (La.5/23/94), 637 So.2d 1012, 1026.

In determining the admissibility of a videotape, the trial court should consider: 1) whether the videotape accurately depicts what it purports to represent; 2) whether it tends to establish a fact of the proponent’s case; and 3) whether it will aid the jury’s understanding. The trial court should also consider whether the videotape will cause undue prejudice, mislead the jury, confuse the issues or cause undue delay. State v. Sosa, 04-507, pp. 11-12 (La.App. 5 Cir. 12/12/06), 948 So.2d 236, 243-44.

In the instant case, we cannot say that the prejudicial effect outweighed the probative value of the evidence, and therefore, we find no error in the trial court’s admitting the redacted portion of the videotape into evidence. First, the videotape merely corroborated testimony that was presented at trial. Lieutenant Duhe testified as to how the search was conducted, what items of evidence were recovered, and where those items were found. Although defendant contends that the depiction of the children in the videotape was highly prejudicial, a review of Nthe videotape shows that that image was shown for only a brief moment, and that the majority of the videotape focused on the search itself and the location of the items that were recovered. Additionally, the videotape merely supported testimony of some police officers at trial that the children were in the house watching television at the time of the execution of the search warrant. It is further noted that on cross-examination, defense counsel questioned Lieutenant Duhe about the children, and defendant’s mother also testified about the presence of the children in the house. Based on our review of the testimony and the videotape, we find that defendant was in no way prejudiced by its admission and further note that the videotape certainly did not implicate the children in these crimes.

Accordingly, we reject the arguments raised by defendant in this assigned error and conclude that the trial court did not err in admitting the redacted portion of the videotape into evidence.

MULTIPLE OFFENDER PROCEEDINGS

On appeal, defendant also challenges his multiple offender adjudication. He specifically argues that the trial court erred by failing to advise him of the allegations of the multiple bill and of his multiple offender rights. He contends that this error cannot be deemed harmless since he stipulated to the allegations in the multiple bill. We find merit to this argument and accordingly reverse defendant’s multiple offender adjudication and vacate his enhanced sentence.

Pursuant to LSA-R.S. 15:529.1(D)(l)(a), the trial court shall inform defendant of the allegation contained in the multiple offender bill of information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. LSA-R.S. 15:529.1 also implicitly requires that the trial court advise defendant of his right to remain silent. State v. Morgan, 06-529, p. 22 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213. Generally, a trial court’s failure to advise the defendant of his right to a hearing and | ]2his right to remain silent is considered harmless error when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by admission of the defendant. However, there is reversible error when the defendant stipulates to the multiple bill without having been informed of his right to a hearing or his right to remain silent. State v. Knight, 01-881, p. 4 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949; State v. Schnyder, 06-29 (La.App. 5 Cir. 6/28/06), 937 So.2d 396, 403.

In State v. Bourgeois, 08-211 (La.App. 5 Cir. 10/28/08), 998 So.2d 165, this Court reversed defendant’s multiple offender adjudication and vacated his enhanced sentence because defendant was not advised of his multiple offender rights as required by LSA-R.S. 15:529.1, and the State did not establish proof of the prior convictions by competent evidence. Likewise, in State v. Babineaux, 08-705 (La.App. 5 Cir. 1/13/09), 8 So.3d 621, this Court reversed defendant’s multiple offender adjudication and vacated his enhanced sentence because defendant was not properly advised of his multiple offender rights.

In the instant case, at the multiple bill hearing, the prosecutor said that he had met with defense counsel and that defendant had agreed to stipulate to the multiple bill. Neither defense counsel nor defendant said anything at the hearing. The record reflects that, during the hearing, the trial court did not advise defendant of the allegations of the multiple bill, his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent. Therefore, in accordance with established jurisprudence, we must reverse defendant’s multiple offender adjudication and vacate his enhanced sentence. We note that defendant is not protected by principles of double jeopardy from being tried again on the question of the prior felony conviction. State v. Bourgeois, 998 So.2d at 166-67.

| iSWith regard to the multiple offender proceedings, defendant also argues on appeal that the trial court erred by failing to specify which conviction was being enhanced. Defendant is correct in his assertion; however, it is not necessary to address this issue since we have vacated the multiple offender adjudication and sentence.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with 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 reveals several errors.

First, with regard to defendant’s conviction for possession with intent to distribute marijuana, the trial court erroneously ordered the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. At the time defendant committed the present offense, July 18, 2003, the penalty provision for possession with intent to distribute marijuana provided for a sentence of five to thirty years at hard labor and a fine of not more than $50,000. LSA-R.S. 40:966(B)(3). The penalty provision does not require or authorize the trial court to impose any of the sentence without benefits. Therefore, pursuant to LSA-C.Cr.P. art. 882, we amend defendant’s sentence on that count to delete the denial of parole, probation, or suspension for the first two years of his sentence. State v. Champagne, 07-97 (La.App. 3 Cir. 5/30/07), 957 So.2d 962, 963-964. In accordance with our amendment, we remand the matter with instructions to the district court to amend the minute entry to reflect this change and to the clerk of court to transmit the amended minute entry to the officer in charge of the institution to which defendant has been sentenced as well as to the Louisiana Department of Public Safety and Corrections General Counsel. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

| l4Second, with regard to defendant’s possession with intent to distribute marijuana conviction, the record reflects that the trial court imposed an illegally lenient sentence because he did not order defendant to pay the fine of “not more than fifty thousand dollars” as set forth in LSA-R.S. 40:966B(3). This issue, however, was not raised by the State in the trial court or on appeal. We therefore decline to correct the illegally lenient sentence. State v. Taylor, 07-869 (La.App. 5 Cir. 4/29/08), 985 So.2d 266, 270.

Lastly, we note that the trial judge failed to properly advise defendant of the prescriptive period for post-conviction relief. The trial judge stated that defendant be given “two (2) years to ask for any post-conviction relief.” The minute entry dated January 23, 2007, also indicates that defendant was advised he had “two (2) years to request any post conviction relief including an out-of-time appeal according to C.Cr.P. art. 930.8.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. In accordance with the procedure now routinely employed by this Court, we advise defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See State v. Smith, 08-579 (La.App. 5 Cir. 2/25/09), 9 So.3d 238, 244, and State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 703, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301.

Accordingly, for the reasons stated herein, we affirm defendant’s convictions for possession with intent to distribute cocaine and possession with intent to distribute marijuana. We vacate his multiple offender adjudication and his enhanced sentence, and reinstate his original sentences, as amended. The | ^matter is remanded to the district court with instructions to correct the minute entry in accordance with the amendment to defendant’s sentence for possession with intent to distribute marijuana and for any other proceedings consistent with this opinion.

CONVICTIONS AND SENTENCES, AS AMENDED, AFFIRMED; MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED,MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . It is noted that defendant filed several motions for out-of-time appeals, all of which were granted by the trial court.

      . Throughout the record, Courtney Johnson is also referred to as Charles Courtney. For purposes of consistency, he will be referred to in this opinion as Courtney Johnson.

      . At trial, Ms. Mayeaux testified in accordance with her scientific analysis reports that were introduced into evidence as State Exhibits 31 and 32. Her report identifies the exhibits as follows: Exhibit 1 — one clear plastic ziplock bag containing a rock-like substance; Exhibit 3 — one sealed evidence envelope containing one clear plastic bag containing a rock-like substance; Exhibit 4A — one clear plastic ziplock bag containing a rock-like substance; Exhibit 5 — one sealed evidence envelope containing one clear plastic bag containing twenty clear plastic bags containing green vegetable material; Exhibit 6 — one sealed evidence envelope containing one clear plastic bag containing thirteen clear plastic bags containing green vegetable matter; Exhibit 7A— four clear plastic bags, each containing green vegetable matter; Exhibit 7B — green vegetable matter.

      . It is noted that the State based its multiple offender bill on both the possession with intent to distribute marijuana conviction and the possession with intent to distribute cocaine conviction.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mike ALVAREZ.
    No. 11-KA-223.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

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

|2The defendant, Mike Alvarez, has appealed his adjudication as a second felony offender and resulting sentence. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted of three counts of aggravated crime against nature upon a known juvenile, violations of LSA-R.S. 14:89.1. He was sentenced to a term of imprisonment of fifteen years on each count, to be served consecutively, without the benefit of parole, probation, or suspension of sentence. State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1081-82.

In his first appeal, defendant contended that the evidence was insufficient to support the convictions, and that the trial court erred by allowing the State to admit testimony and evidence of his conviction in 1997 of carnal knowledge of a juvenile. This Court affirmed the conviction and sentence, but remanded the matter so that the trial court could inform defendant of the sex offender registration requirements. Alvarez, 10-925, 71 So.3d at 1085-86.

1 oMeanwhile, on August 9, 2010, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant denied those allegations and filed a written response to the multiple bill. On December 13, 2010, a multiple bill hearing was held, after which the trial judge found defendant to be a second felony offender. The trial judge vacated the three original sentences and resentenced defendant pursuant to LSA-R.S. 15:529.1, the multiple offender bill statute, to consecutive sentences of imprisonment at hard labor for thirty years on each count without the benefit of probation or suspension of sentence. On December 17, 2010, defendant filed a timely motion for appeal that was granted.

ASSIGNMENT OF ERROR NUMBER ONE — Excessive sentence

On appeal, defendant argues that the trial judge erred by imposing an excessive sentence. He contends that the three thirty-year consecutive sentences, totaling ninety years, are excessive because the alleged offenses were not violent in nature, no use of weapons was alleged, and no physical injuries were sustained. He asserts that his prior conviction involved consensual sexual activity, and that the instant conviction is not the type of conviction, nor is he the type of perpetrator, for which a maximum sentence is appropriate. He maintains that the sentences are disproportionate to the offenses and that they shock the sense of justice when compared to any harm done to society. Defendant also argues that the trial judge failed to consider any mitigating factors.

The State responds that the term of imprisonment was not excessive, given that the three underlying offenses and the predicate offense constituted sex crimes involving juveniles, and that the trial judge was aware of defendant’s pending obscenity charge.

14A review of the record indicates that defendant orally objected to the sentences, but did not state specific grounds for his objection. Further, defendant did not file a motion to reconsider his sentences pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-811, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108; See also LSA-C.Cr.P. art. 881.1. Additionally, because defendant failed to explicitly state an objection to the consecutive nature of the sentences, he is not entitled to review of that issue here. State v. McGee, 04-963, p. 20 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 412, writ denied, 05-0593 (La.5/20/05), 902 So.2d 1050. Accordingly, the only issue to be considered herein is whether defendant’s sentences are constitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a ^sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

Defendant was convicted of three counts of aggravated crime against nature in violation of LSA-R.S. 14:89.1. Pursuant to that statute, whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not less than three nor more than fifteen years without the benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:89.1. For this conviction, defendant received the maximum sentences under the statute, fifteen years of imprisonment at hard labor on each count, without the benefit of parole, probation or suspension of sentence, to run consecutively.

Defendant was then adjudicated a second felony offender. At the time the instant offenses were committed in 2001, LSA-R.S. 15:529.1 A(l)(a) provided that if the second felony is one that upon a first conviction is punishable by imprisonment for any term less than natural life, then the sentence imposed shall be for a determinate term of not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. Consequently, as a second felony offender, defendant was exposed to a sentencing range of seven and one-half years to thirty years on each count. As a second felony offender defendant received maximum sentences of thirty years on each count, without the benefit of probation or suspension of sentence, to run consecutively-

At the sentencing hearing, defense counsel argued that the alleged offenses, which were all on the same bill of information, showed a common scheme, and therefore, he requested that any sentence be imposed concurrently pursuant to LSA-C.Cr.P. art. 883. The prosecutor responded that if the crime was committed after the change of the law in 2001, defendant would have faced a mandatory life sentence on each count. He stated that defendant was charged with three counts of |fiaggravated crime against nature, which was the maximum charge the State could seek against defendant before the law changed to define oral rape of a minor as an aggravated rape. Defense counsel asked the trial judge to utilize the law in effect at the time the offenses were alleged to have occurred.

In sentencing defendant, the trial judge stated in pertinent part:

Alright. It is the wish of this Court, also — the record reflect [sic] that I’ve also considered the sentencing guidelines, the Code of Criminal Procedure, and I believe — I remember this case, Mr. Alvarez, I remember this victim testifying in this courtroom, I remember the Children’s Advocacy Center tape that was shown to the jury, I remember where this victim said that you had her get on her needs [sic] and had her suck your private parts. There was another time in the bathroom where you had her suck, his thing and white stuff came out of it, and I spit it into the sink. I remember her saying the third time by the kitchen — by the refrigerator you said to do it, but it was stopped because the momma walked back into the living room.
Okay, those are three transactions of a common scheme in which this victim was thirteen years old at the time. The court has a real problem with that because I believe, based on all of these individual — all of these acts done to this thirteen year old girl, that based on the Code of Criminal Procedure articles that I considered, that you are a person that’s in dire need of a custodial environment; and that it is this Court’s opinion that any lesser sentence would deprecate the seriousness of this act upon this juvenile of thirteen years old at the time.
And it is my express desire, based on Code of Criminal Procedure article 883, that I believe this to be a common scheme or plan and part of a transaction in which it is the express desire of this Court that each of these counts be run consecutive to each other; because, as I stated, I believe, based on the age of this victim and what you had this victim do, that any lesser sentence would deprecate the seriousness of this offense.

Defense counsel objected to the trial judge’s finding that defendant was a second felony offender, and he noted his objection to the sentence.

Upon review, we find that the three maximum thirty-year enhanced sentences imposed are supported by the record and thus are not constitutionally excessive. The evidence at trial showed that defendant had the very young victim |7perform oral sex upon him on three different occasions. The victim testified at trial that she was only six years old at the time of the offenses in the summer of 2001 Moreover, defendant has a prior conviction for carnal knowledge of a juvenile, and a pending obscenity charge.

Additionally, effective August 15, 2001, LSA-R.S. 14:42A, the aggravated rape statute, was amended by Acts 2001, No. 301, § 1, to include oral sexual intercourse. Also, since that statute was amended, the penalty has been mandatory life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Therefore, as the State argued at the sentencing hearing, had defendant committed these offenses after the effective date of the amended statute, he could have been convicted of aggravated rape and received mandatory life sentences at hard labor.

Accordingly, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NUMBER TWO—Sufficient proof of multiple offender status

Defendant argues that the trial judge erred by finding him to be a second felony offender. He contends that the documents the State introduced at the multiple bill hearing were not certified copies, and that the State failed to produce other competent evidence to prove that he was a second felony offender. The State responds that the trial judge did not err by finding defendant to be a second felony offender because competent evidence was presented.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions, and that the defendant is the same person who was convicted of the prior felonies. State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Thomas, 06-654, p. 7 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-464 (La.11/21/07), 967 So.2d 1153. The latter can be established through the use of expert testimony that the defendant’s fingerprints match those from the prior convictions. Id,., 06-654 at 7, 951 So.2d at 378. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status and the defendant denies the habitual offender bill, the State’s burden of proof is governed by Shelton, supra. The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by LSA-R.S. 15:529.1(C). State v. Guillard, 04-899, p. 13 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.

Under Shelton, it is initially the State’s burden to prove 1) the existence of the prior guilty pleas, and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived, his right to trial by jury, his privilege against self-incrimination, and his right of confrontation. Shelton, 621 So.2d at 779-80.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780.

IsLSA-R.S. 15:529.1(F) provides:

F. The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

In the instant case, the State alleged in the multiple bill that defendant had a prior felony conviction for carnal knowledge of a juvenile, a violation of LSA-R.S. 14:80, in 1997 in case number 392-181 in Orleans Parish. Defendant denied those allegations. At the multiple bill hearing, the State introduced into evidence State’s Exhibit 1, a card containing defendant’s fingerprints taken in court that day; State’s Exhibit 2, a certified “pen-pack,” containing records from the Department of Public Safety and Corrections, which included fingerprints; and State’s Exhibit 3, documents pertaining to defendant’s conviction for carnal knowledge of a juvenile (LSA-R.S.14:80) in case number 392-181 in Orleans Parish, including a copy of a guilty plea form dated October 2, 1997, a docket master, two minute entries, a screening action form, an arrest register, and a bill of information containing fingerprints.

The State also introduced State’s Exhibit 4, a copy of this Court’s opinion in State v. Alvarez, 08-558 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018; and State’s Exhibit 5, a minute entry dated June 23, 2008, in case number 07-965 in 24th Judicial District Court, showing that defendant was previously found to be a | insecond felony offender in that case using a certified copy of a prior conviction in case number 392-181.

At the multiple bill hearing, Aischa Prudhomme, an expert latent fingerprint examiner, testified that she took defendant’s fingerprints in court that day (State’s Exhibit 1), and compared them to a fingerprint card contained in State’s Exhibit 2, and that it was her opinion that they matched. She also compared the fingerprints contained in State’s Exhibit 1 to those contained in State’s Exhibit 3, and found that they matched as well.

Defense counsel objected to State’s Exhibit 1 arguing that the best method available for taking fingerprints was not used. The trial judge overruled the objection and admitted the evidence, stating that it went to the weight of the evidence. When the State introduced State’s Exhibit 2 into evidence, defense counsel made the same objection, i.e., that the best method available for taking fingerprints was not used. The trial judge overruled the objection and admitted the evidence, finding that it was a certified record from the Department of Corrections.

Afterward, the State introduced into evidence State’s Exhibit 8, the “cert-pack” from Criminal District Court, noting that the original “cert-pack” was at this Court and was admitted in case number 07-965. The State also introduced State’s Exhibit 5, a minute entry stating that that “cert-pack” was admitted in that case. Defense counsel said he would make the same objection to State’s Exhibit 3 (as he made to Exhibits 1 and 2), i.e., that the best method available for taking fingerprints was not used, and he objected to State’s Exhibit 5 because it was not certified as a true copy.

The State responded that State’s Exhibit 5 was introduced only to indicate why State’s Exhibit 3 was not the original “cert-pack.” He explained that Orleans Parish suffered a “catastrophe” after Hurricane Katrina, and that the original 11¶ documents were in this Court and would not be released until the case was final. The trial judge noted defense counsel’s objection and admitted the evidence, finding that it went to the weight of the evidence.

Defense counsel then renewed his objections to the State’s Exhibits, and asked the court for concurrent sentences. Following arguments of counsel, the trial judge found defendant to be a second felony offender and sentenced him to three consecutive thirty-year sentences.

On appeal, defendant argues that the trial judge erred by finding him to be a second felony offender because the State only presented an uncertified copy of the prior conviction from Orleans Parish, and because there was no other competent evidence presented at the multiple bill hearing to prove his multiple offender status.

In State v. Hunt, 573 So.2d 585 (La.App. 2 Cir.1991), defendant argued for the first time on appeal that the guilty plea transcript was not properly certified or authenticated. The second circuit found that defendant’s failure to object to the transcript on this basis in the trial court precluded its review of that contention, citing LSA-C.Cr.P. art. 841 and State v. Lozier, 375 So.2d 1333, 1337 (La.1979) (“Defendant did not object to the introduction of the Orleans Parish Criminal District Court Docket documents on the grounds that they were not properly certified. These bases of the objection were raised for the first time on appeal. It is well settled that a new basis for an objection cannot be raised for the first time on appeal.”).

In the instant case, the record reflects that defendant did not object to State’s Exhibit 3, the prior conviction from Orleans Parish, on the basis that those documents were not certified. After the State attempted to introduce State’s 112Exhibit 3, defense counsel stated, “I would make the same objection as to number 3,” which apparently meant he was making the same objection he made to State’s Exhibits 1 and 2, namely, that the best method available for taking fingerprints was not used. The only objection defense counsel made as to lack of certification was to State’s Exhibit 5, a minute entry. His objection to the lack of certification of State’s Exhibit 3 is raised for the first time on appeal. For this reason, we find that defendant’s failure to object to State’s Exhibit 3 on the basis of lack of certification in the trial court precludes review of that contention. LSA-C.Cr.P. art. 841; Hunt, supra; State v. Lozier, supra.

The record shows that the State proved the existence of a prior guilty plea and that defendant was represented by counsel when the plea was taken. The record also shows that the State proved defendant was the same person who was convicted of the prior felony. The fingerprint expert testified that defendant’s fingerprints in State’s Exhibit 1 matched those contained in State’s Exhibit 2 (a certified copy of defendant’s incarceration records pertaining to the Orleans Parish conviction) and State’s Exhibit 3 (the documents pertaining to the conviction from Orleans Parish). The record does not reflect that defendant presented affirmative evidence showing an infringement of his rights, or a procedural irregularity in the taking of the previous plea. Thus, the record reflects that the State established by competent evidence that defendant was a second felony offender. Accordingly, this assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review reveals errors patent.

| Enhanced Sentence/Hard Labor

The transcript reflects that the trial judge did not specify whether the enhanced sentences on Counts 1, 2, and 3 were to be served at hard labor; however, the commitment shows that the sentence on Count 2 was ordered to be served at hard labor. When there is a conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). A court must impose a determinate sentence. LSA-C.Cr.P. art. 879. If there was some discretion allowed by the applicable sentencing statute, the failure to indicate whether the sentence was to be served at “hard labor” would be an impermissible indeterminate sentence. State v. Norman, 05-794, p.8 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07), 948 So.2d 145.

In State v. Stewart, 10-389 (La.App. 5 Cir. 5/10/11), 65 So.3d 771, defendant was sentenced as a third felony offender to life imprisonment. His underlying conviction was first degree robbery. This Court found that, because the underlying statute required that the sentence be served at hard labor allowing no discretion to the trial judge, the error was harmless and the sentence was not an impermissible indeterminate sentence. Id., 10-389 at 20, 65 So.3d at 783-84.

Likewise, in the instant case, because the underlying statute, LSA-R.S. 14:89.1, requires that the sentence be served at hard labor allowing no discretion to the trial judge, we find the error was harmless and the sentence was not an impermissible indeterminate sentence. Stewart, 10-389 at 20, 65 So.3d at 783-84. However, since the commitment is incorrect, this matter is remand to the trial court which is ordered to correct the commitment to reflect that the sentences on all three counts are to be served at hard labor. Further, the Clerk of Court for the district court is ordered to transmit the original of the amended commitment to the officer |14in charge of the institution in which the defendant is incarcerated. State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Enhanced Sentence/Parole Eligibility

The transcript reflects that the trial judge ordered the enhanced sentences to be served without benefit of probation or suspension of sentence; however, the commitment reflects that the enhanced sentences were to be served without benefit of parole, probation, or suspension of sentence. The transcript prevails. Lynch, supra. LSA-R.S. 15:529.1(G) provides that the enhanced sentence is to be served without benefit of probation or suspension of sentence; however, the underlying statute, LSA-R.S. 14:89.1, provides that the sentence is to be served without benefit of parole, probation, or suspension of sentence. The restrictions imposed on parole eligibility in multiple offender sentences under LSA-R.S. 15:529.1 are those called for in the reference statute. State v. Bruins, 407 So.2d 685, 687 (La.1981). However, we find that no corrective action is necessary, since the commitment correctly indicates that the enhanced sentences are to be served without benefit of parole, probation, or suspension of sentence.

Multiple Offender Rights

The record reflects that the trial judge did not advise defendant of his multiple offender rights, as required by LSA-R.S. 15:529.1, which provides that the trial court shall inform the defendant of the allegations contained in the bill of information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. LSA-R.S. 15:529.1 implicitly requires that the trial court advise the defendant of his right to remain silent. This failure was harmless error, however, because defendant denied the allegations of the multiple bill, and because his multiple offender status was established by competent evidence offered by the State at the hearing, rather than 1 isby the admission of defendant. See State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 35, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the commitment as instructed above.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . It is noted, however, that the bill of information reflects that the victim's date of birth was March 6, 1996, thereby making her only five years old at the time of the offenses.

      . LSA-C.Cr.P. art. 841 A provides in pertinent part that "an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Ernest R. JONES.
    No. 11-KA-8.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Michael G. Morales, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The Jefferson Parish District Attorney filed a bill of information charging defendant, Ernest R. Jones, with several narcotics violations. Specifically, count one of the bill of information charged defendant with possession of heroin, in violation of LSA-R.S. 40:966 C; count two charged defendant with possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A; count three charged him with possession of methadone, in violation of LSA-R.S. 40:967 C; and count four charged defendant with possession of hy-drocodone, in violation of LSA-R.S. 40:967 C. These charges proceeded to trial before a twelve person jury that found defendant guilty as charged on all four counts. The trial judge sentenced defendant to imprisonment at hard labor for five years on each count, to run concurrently. The trial judge also ordered that the first two years of the sentence on count two be served without benefit of parole, probation, or suspension of sentence.

laWith regard to count two, the State thereafter filed a bill of information pursuant to LSA-R.S. 15:529.1 alleging defendant to be a second felony offender. Following a hearing, the trial judge found defendant to be a second felony offender, vacated the original sentence on count two, and resentenced defendant under the multiple offender statute to imprisonment at hard labor for forty-five years without ben-efít of probation or suspension of sentence, to run concurrently with the sentences imposed on counts one, three, and four. Defendant thereafter filed a motion to reconsider sentence that was heard and denied by the trial court.

Defendant now appeals.

FACTS

On June 1, 2007, probation and parole officers, Toby Lamy and Richard Weide-nhaft, went to 12 Gardere Court in Harvey with an arrest warrant for Sharon Evans. The arrest warrant was based on Evans being an absconder from probation supervision. The two probation officers spoke briefly with an unidentified white male, who was in the garage, and then entered the residence to search for Evans. As Lamy and Weidenhaft walked down the hallway towards the rear of the residence, they encountered defendant coming out of a bathroom. Weidenhaft continued past defendant and went into a bedroom to the left that had been identified as Evans’ bedroom. When Weidenhaft looked inside the closet, he found a .22 caliber rifle and immediately informed Lamy, who had stayed with defendant in the hallway, of the weapon.

After learning of the weapon, Lamy handcuffed defendant for safety reasons, but specifically told him he was not under arrest. At that point, Lamy left defendant and went to check on Weidenhaft to see if he was okay. Afterward, Lamy returned to defendant in order to conduct a pat down. Before he did so, Lamy asked defendant if he had any weapons, and defendant replied that he did not |4have any weapons, but that he did have some “L-tens” in his pocket. Unfamiliar with that term, Lamy asked defendant what “L-tens” were, and defendant explained that they were Lortab pills.

Lamy then reached in defendant’s pocket and removed the contents, which included two foil packets in a bag, some white powder, some off-white rock-like substances, and six pills, all of which were wadded up in different bags and came out at the same time. Lamy placed the narcotics on a counter next to defendant, had defendant sit down, and then contacted the Jefferson Parish Sheriffs Office.

In response to that call, Detective Chris Morris arrived at the scene and field tested the drugs which were positive for heroin, crack cocaine, and hydroeo-done. After the substances tested positive, Detective Morris advised defendant of his rights and placed him under arrest. Defendant subsequently advised the officer that the vehicle parked outside was his, and defendant further gave his consent to search the vehicle. During the search of defendant’s vehicle, Detective Morris found a pink tablet, which he identified as methadone, inside a CD case on the backseat. After finding the methadone, Detective Morris went back inside the house, advised defendant of his rights again, and told him he was also being arrested for possession of methadone since he could not produce a prescription. Detective Morris then transported defendant to the Jefferson Parish Correctional Center.

At trial, Charles Krone, who was accepted as an expert in the field of analysis and identification of controlled dangerous substances, identified State’s Exhibit 2 as a plastic bag containing green tablets marked “Watson 503;” State’s Exhibit 3A as a plastic bag containing off-white rock-like objects (net weight of 8.2 grams) and State’s Exhibit 3B as a small knotted plastic bag containing 1 .^additional pieces of off-white material (gross weight of 1.5 grams); State’s Exhibit 4 as a sealed plastic bag containing two loose pieces of folded foil inside of which was a tan powder (net weight of powder was .18 grams); State’s Exhibit 5 as a knotted plastic bag containing white powder; and State’s Exhibit 6 as an orange tablet. He further testified that State’s Exhibit 2 contained hydrocodone; State’s Exhibit 3 contained cocaine; State’s Exhibit 4 contained heroin; State’s Exhibit 5 contained cocaine; and State’s Exhibit 6 contained methadone.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of possession with intent to distribute cocaine. He specifically contends that with regard to count two, there was no direct evidence that he had the intent to distribute cocaine, and that the only evidence, other than the photograph of Sharon Evans, was circumstantial. In response to this argument, the State contends that it produced sufficient evidence at trial to prove that defendant intended to distribute the cocaine found on his person.

In reviewing the sufficiency of evidence pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), an appellate court must determine whether the evidence, either 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. State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522.

In this case, defendant was convicted of possession with intent to distribute cocaine in violation of LSA-R.S. 40:967 A. To prove that offense, the State was required to show defendant knowingly and intentionally possessed the drug, and [ fithat he did so with the specific intent to distribute it. State v. Clark, 05-61 (La.App. 5 Cir. 06/28/05), 909 So.2d 1007, 1011-12, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538.

LSA-R.S. 14:10(1) defines specific criminal intent as “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.” The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. White, 98-91 (La.App. 5 Cir. 6/30/98), 715 So.2d 714, 717, writ denied, 98-2043 (La.11/25/98), 729 So.2d 577. Factors which may give rise to a reasonable inference that a defendant had the specific intent to distribute include: 1) previous attempts to distribute; 2) whether the drug was in a form consistent with distribution to others; 3) the amount of the drug; 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only; and 5) paraphernalia evidencing an intent to distribute. State v. Carey, 07-674 (La.App. 5 Cir. 12/27/07), 975 So.2d 27, 29, writ denied, 08-0430 (La.11/10/08), 996 So.2d 1064. This Court has held that by describing the factors as useful, the Louisiana Supreme Court did not require that the evidence fall squarely within those listed factors to be sufficient for the jury to find the requisite intent to distribute. State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 18 So.3d 705, 711, writ denied, 09-1316 (La.3/5/10), 28 So.3d 1002.

In this case, the State produced evidence that defendant had the intent to distribute through the testimony of Lieutenant Daniel Jewell, Jr., who was accepted as an expert in the field of distribution, quantity, packaging, and value of narcotics. He testified that the packaging of the cocaine in State’s Exhibit 3 was consistent with distribution, and not personal use. He noted that there were roughly three $50.00 pieces of crack cocaine, a couple of smaller pieces which he thought were a 17little big for $20.00 pieces, and a large boulder that was worth approximately $300.00 alone. Lieutenant Jewell testified that the cocaine was apportioned and ready for distribution. He further stated that the total weight of the crack cocaine, approximately 9 grams, had a street value of $900.00 if broken up into .2 gram rocks and approximately $500.00 if broken down into larger rocks.

Lieutenant Jewell explained that it was not common or reasonable for a user to buy that much crack cocaine, and that officers do not normally see a traditional crack cocaine user buy $400.00 to $800.00 worth of crack cocaine at a time. Jewell testified that a traditional crack cocaine user will buy one or two rocks, and then get more money to buy another couple of rocks. Jewell believed that “this person” bought these drugs and broke it up to prepare for distribution.

The jury, by its verdict of guilty on count two, obviously accepted Lieutenant Jewell’s testimony that the packaging of cocaine was consistent with distribution and rejected the possibility that the cocaine was for personal use. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant was guilty of possession with intent to distribute cocaine. Accordingly, this assigned error is without merit.

MOTION TO SUPPRESS EVIDENCE

On appeal, defendant also challenges the denial of his motion to suppress evidence. He contends that the probation officer did not have the authority to interrogate, detain, handcuff, and subsequently search him because he was not a probationer or parolee being supervised by that probation officer. He also asserts |sthat the detention and search would have still been- illegal even if conducted by a “real police officer” because there was no reasonable suspicion that defendant had committed, was committing, or was about to commit a crime. Further, defendant argues that the initial detention of defendant escalated into an arrest without probable cause and, therefore, defendant’s statement that he had pills in his pocket as well as the evidence seized pursuant to that statement should be suppressed.

The State responds that the probation officer was justified in initially handcuffing defendant for officer safety, and further, once defendant voluntarily admitted that he had the pills in his pocket, the officer had reasonable suspicion to search defendant and probable cause to arrest him.

In this case, Officer Lamy, Detective Morris, and defendant testified at the suppression hearing. The testimony at the suppression hearing of Lamy and Morris was similar to their trial testimony. The testimony showed that Officers Weidenhaft and Lamy walked through Evans’ residence looking for Evans, for whom they had an arrest warrant. As they did so, they encountered defendant coming out of the bathroom. Weidenhaft continued on to the back bedroom, while Lamy stayed with defendant and asked him who he was. When Weidenhaft “screamed out” that he had found a weapon in the bedroom, Lamy handcuffed defendant for the safety of the officers and everyone else on the scene.

Lamy explained that prior to the pat down, he asked defendant if he had any weapons because he wanted to know if defendant had any sharp objects or anything that could hurt him during the pat down. Defendant told Lamy he did not have any weapons, but he had “L-tens” in his pocket. Officer Lamy retrieved the pills, kept defendant handcuffed, and contacted the Jefferson Parish Sheriffs Office because he then had evidence that defendant was committing a crime. At the suppression hearing, Lamy additionally testified that there was another male in |athe residence who was also handcuffed for safety reasons, especially since there were two officers and three individuals in the house.

After hearing the testimony at the suppression hearing, the trial judge denied the motion, stating:

The Court is going to deny the motion. I agree with the State. The probation officer was there, he had a right to inquire as to, for his safety and the other person’s safety, if anybody had a weapon. The information was volunteered, which led to this particular case and JP being involved[J

Defendant now challenges this denial. For the reasons that follow, we find that the officers were justified in their actions with regard to the detention and search of defendant and, therefore, the trial court did not err in denying the motion to suppress evidence.

Both the Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 765, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

The trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330.

In the present case, the probation and parole officers were within their authority as they entered the residence of Sharon Evans for the purpose of locating linand serving an arrest warrant on her. While legally in the house, they encountered defendant. The issue which we will first address is whether defendant was arrested when the probation officer initially handcuffed him, and if not, whether the handcuffing was warranted.

The Louisiana Supreme Court has discussed an arrest as follows:

An arrest is “the taking of one person into custody by another [through] actual restraint [that] may be imposed by force or may result from submission of the person arrested to the custody of one arresting him.” La.Code Crim. Proc. art. 201. Whether a person has been arrested is determined by an objective test; neither the person’s subjective impression nor the lack of formality of the arrest resolves the issue.
The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty.

State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1183.

Considering the totality of the circumstances, we find that the officer’s action in initially handcuffing defendant did not rise to the level of an arrest. Officer Lamy did not have the intent to impose an extended restraint on defendant’s liberty at that time, and in fact, told defendant that he was not under arrest but was being handcuffed for safety reasons. This explanation seems justified in light of the fact that Officer Weidenhaft had just found a gun in Evans’ bedroom and was in the process of looking for Evans, for whom he had an arrest warrant. In addition, there were three individuals in the house, defendant, Evans, and an unidentified male, and only two officers.

[ 11 Louisiana law recognizes that law enforcement officers should not be required to take unnecessary risks is performing their duties. This Court has held that an officer’s handcuffing a suspect is a reasonable method of ensuring officer safety. See State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 472-73, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330; State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657.

We acknowledge that at the time of the initial handcuffing, defendant was not a suspect. Nonetheless, due to safety concerns, the probation officer was justified in handcuffing defendant once the other officer alerted him that a gun had been found. In State v. Palmer, 09-14 (La.7/1/09), 14 So.3d 304, 310, the Louisiana Supreme Court affirmed the trial court’s denial of defendant’s motion to suppress, noting that it agreed with the trial court that the officers’ use of handcuffs to detain defendant along with other individuals on the premises was objectively reasonable in light of the facts and circumstances confronting the police, taking into account the fact that police officers are often forced to make split second decisions about the amount of force that is necessary in a particular situation. See also State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10) 34 So.3d 892, 901, writ denied, 10-705 (La.10/29/10), 48 So.3d 1097, where this Court noted that “[a] warrant to search premises for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”

Based on our review of the circumstances of this case, as well as applicable jurisprudence, we find that the initial handcuffing did not amount to an arrest, and further that the handcuffing was justified for safety reasons.

112Subsequent to the initial handcuffing of defendant, Officer Lamy went to the back bedroom to check on his partner who had just alerted him to the discovery of a gun. Afterward, Lamy returned to defendant in order to conduct a pat down. Before he did so, Lamy asked defendant if he had any weapons. Defendant replied that he did not have any weapons, but he had some “L-tens” in his pocket. In light of these facts, we must now determine whether there was probable cause to arrest defendant and then search him after defendant told the probation officer he had “L-tens” on his person.

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Fisher, 720 So.2d at 1184; State v. Harris, 00-1980 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 803. A police officer need not be able to negate all possible lawful explanations of a situation before making an arrest but must have within his knowledge information upon which to reasonably base a belief that the person to be arrested is criminally connected with the circumstances. State v. Phillips, 347 So.2d 206, 209 (La.1977). The determination of the existence of probable cause must be judged by the probabilities and practical considerations of everyday life on which average police officers can be expected to act. State v. Fisher, 720 So.2d at 1184; State v. Harris, 786 So.2d at 803.

A search incident to a lawful arrest is a well-recognized exception justifying a warrantless search. State v. Grimes, 09-2 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 423, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023. In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. State v. London, 01-1016 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 165-66, writ denied, 02-1567 (La.5/30/03), 845 So.2d 1067.

In the instant case, defendant informed the officer that he had “L-tens” on his person. At the suppression hearing, Officer Lamy testified that he did not know what “L-tens” were, so he asked defendant. Defendant told the officer the term referred to hydrocodone, which is listed in LSA-R.S. 40:964 as a Schedule II controlled dangerous substance. At that point, Officer Lamy had probable cause to believe that defendant had committed a narcotics violation. Accordingly, he was justified in arresting defendant and in thereafter retrieving the drugs from his pocket.

Based on the foregoing discussion and in light of the particular circumstances presented herein, we find no error in the trial court’s denial of defendant’s motion to suppress evidence. The arguments raised by defendant in this assigned error are without merit.

ADMISSION OF PHOTOGRAPHIC EVIDENCE

In this assigned error, defendant argues that the trial court erred by admitting into evidence a prejudicial photograph of Sharon Evans as it was not relevant to any issue or element in this case. He contends that the photograph was unfairly prejudicial and had the likely result of misleading the jury. Defendant asserts that Evans looks like a crack cocaine addict in the photograph and, therefore, the jury could have easily made the inference that he was at Evans’ residence to sell drugs to Evans.

The State responds that the trial judge did not abuse his discretion in admitting the photograph of Evans into evidence. The State notes that the photograph was admissible to shed light upon Lamy’s presence in the house and was further relevant because Evans’ presence in the house was res gestae to the charged crime.

| l4Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” LSA-C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. LSA-C.E. art. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403; State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1036-37, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Photographs are usually admissible if they illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, subject to the test that their probative value outweighs any prejudicial effect. In general, an appellate court places great weight upon a trial court’s ruling on the relevancy of evidence and such a determination will not be reversed absent a clear abuse of discretion. State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 710, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058.

In the present case, the evidence at issue is a photograph of Sharon Evans, the individual who the officers were looking for when they encountered defendant. When the prosecutor attempted to introduce this photograph at trial, defense counsel objected arguing that the photograph of Evans was irrelevant and prejudicial. He contended that the State was trying to show that Evans was a crack cocaine addict and that defendant was dealing drugs. In response, the prosecutor asserted that the photograph of Evans was relevant to show who the officers were looking for and “to give a complete picture.” Further, the prosecutor stated that he was not planning to argue that Evans was a crack cocaine addict or that defendant was a drug dealer. Defense counsel again argued that the photograph was not 11 srelevant especially in light of the fact that he had never disputed that Evans was at her residence on the day in question.

After considering the arguments of counsel, the trial court allowed the photograph into evidence. In so ruling, the judge noted that the photograph was not prejudicial to defendant and further that it was relevant to show the jury who the officers were looking for and why they were at the house. Defense counsel again noted his objection, commenting that the prejudice outweighed any minimal relevance of the photograph. The trial judge again said that he did not see any prejudice to defendant in allowing the photograph into evidence, noting the photograph did not illustrate anything other than the fact that Evans existed.

After a review of the record, we find that the trial court did not err by admitting the photograph into evidence. The photograph was relevant to explain the officers’ presence at the house and to give the jury “a complete picture” of the circumstances leading to the arrest of defendant. Further, it cannot be said that the introduction of the photograph prejudiced defendant. Evans was not a party to the instant offenses, nor was she a witness at trial. Moreover, contrary to defendant’s assertions, the photograph does not appear to depict Evans as a crack cocaine addict. Given these circumstances, we find that the trial court did not abuse its discretion in admitting this photograph into evidence. Accordingly, this assignment of error is without merit.

ERROR PATENT REVIEW

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 reveals one error that requires correction.

The May 26, 2009 commitment indicates that the trial judge ordered defendant’s sentences to run concurrently with each other and with any other sentence defendant was presently serving. The transcript reflects that the trial |irjudge ordered the four sentences to run concurrently to each other; however, he did not order that the sentences run concurrently with any other sentence defendant was presently serving. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this case to the trial court with instructions to correct the commitment to delete the reference that the sentences are to run concurrently with any other sentence defendant was presently serving. State v. Shannon, 04-1361 (La.App. 5 Cir. 4/26/05), 902 So.2d 519, 524.

For the reasons set forth herein, we affirm defendant’s convictions and sentences and remand the matter to the trial court with instructions to correct the commitment in accordance with this opinion.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . Officer Weidenhaft eventually found Evans hiding between the headboard of the bed and the wall.

      . Lortab is a trade name for a combination of acetaminophen and hydrocodone. State v. Moore, 44,429 (La.App. 2 Cir. 8/26/09), 20 So.3d 1137, 1144, n. 9.

      . See State v. Young, 07-988 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 762-763, writ denied, 08-1599 (La.3/27/09), 5 So.3d 139, and State v. Saulsby, 04-880 (La.App. 5 Cir. 12/28/04), 892 So.2d 655, 657-658, in which this Court discussed a probationer's and parolee’s reduced expectation of privacy. See also LSA-R.S. 15:574.4.2.

      . LSA-C.Cr.P. art. 899 F provides that “[probation officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions.” See also LSA-R.S. 15:574.8 which is the same provision applicable to parole officers.


text:
    BG REAL ESTATE SERVICES, INC. and HAOBIGP, LLC as General Partner of Elmwood Corporate Park Limited Partnership v. RHINO SYSTEMS OF CANADA, INC., Grand Point Industries, Inc., Scottsdale Insurance Company and Summit Consulting, Inc. and XYZ Insurance Company, Inc. BG Real Estate Services, Inc. and HAO-BIGP, LLC as General Partner of Elmwood Corporate Park Limited Partnership v. Rhino Systems of Texas, Inc., Grand Point Industries, Inc., Scottsdale Insurance Company and XYZ Insurance Company, Inc.
    Nos. 11-CA-163, 11-CA-164.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      J. William Starr, Attorney at Law, Me-tairie, LA, for PlaintifUAppellant.
    William D. Cass, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

      . The insurance certificate states the policy was issued three months after the effective date.

   FREDERICKA HOMBERG WICKER, Judge.

|3BG Real Estate appeals the trial court’s ruling finding that its claims for replacement costs were excluded under the commercial general liability policy. For the reasons that follow, we affirm.

Factual and Procedural Background

On April 2, 1999, Grand Point Industries (“Grand Point”) submitted a written bid to MBA Services, Inc., proposing two options for the replacement of a roof on 800 Commerce East, Harahan, Louisiana (the “East Building”). MBA Services, Inc. was the agent for Elmwood Corporate Park Limited Partnership (ECP) — the owner of the East Building. MBA Services selected Option Two — a Rhino, top coat, 20 year warranty at a cost of $49,507.50. On April 8, 1999, Grand Point procured commercial general liability insurance from Scottsdale Insurance Company (“Scottsdale”). The policy became effective on January 18, 1999, and terminated one year thereafter.

|4Baha Towers, III and Grand Point confected a contract for the replacement of the roof on the East Building on April 28, 1999. Article I — “SCOPE OF CONTRACT” — provided, in pertinent part:

... Material and workmanship is warrantied [sic] for 20 years by contractor [Grand Point] and manufacturer. Contractor agrees to provide all repairs necessary in case of a water leak from roof and/or gutters as part of the 20 year material and workmanship warranty.

In addition, the “WARRANTY” section under Article V(A) provided, “contractor guarantees and warrants his material and workmanship for a period of 20 years from the date of substantial completion of the work.”

Baha Towers executed a second contract on July 5, 1999, for the replacement of the roof on 800 Commerce West, Harahan, Louisiana (the “West Building”) — also owned by ECP. The second contract contained the identical provisions stated above. On January 18, 2000, Scottsdale and Summit Consulting, Inc. issued a certificate of liability insurance to Grand Point for commercial general liability insurance. The policy became effective on April 18, 2000, and terminated one year thereafter.

Rhino Systems of Canada, Inc. issued a separate warranty to Bahar Development, Inc. — Baha Tower’s parent company — in connection with the West Building. The warranty listed MBA Services as the contractor and provided a warranty period of 20 years, commencing on August 1, 1999— the date on which the installation of the roof at the West Building was completed. BG Real Estate alleges that within a year of installation, the roof membrane of both the East and West Buildings began to fail, allowing water to enter the buildings.

| sOn July 6, 2001, the plaintiffs/appellants, BG Real Estate and HAOBIGP, LLC — the general partners for ECP— filed a petition for damages against the defendants/appellees, Rhino Systems of Canada, Inc., Grand Point, Scottsdale, and Summit Consulting, Inc. for damages sustained due to the failure of the roof on the West Building. BG Real Estate then filed a similar, separate suit on March 15, 2002, against Rhino Systems of Texas, Grand Point, and Scottsdale, for damages sustained due to the failure of the roof on the East Building. The actions were consolidated on March 5, 2004.

Scottsdale moved for summary judgment on June 2, 2004, arguing that there were no genuine issues of material fact because the policy issued to Grand Point did not provide coverage for BG Real Estate’s claims. The trial court denied the motion on March 30, 2005. In its written reasons denying the motion, the trial court found that no exclusions existed in the policy for the consequential damages alleged, finding that those damages appeared to be covered under the warranty section. The court further found that there was a factual dispute regarding whether a subcontractor was involved.

On August 11, 2006, BG Real Estate, Scottsdale, and Grand Point jointly moved to dismiss Grand Point from the litigation, while BG Real Estate preserved its right to proceed against Scottsdale. The trial court granted the motion on August 14, 2006; and around that same time, BG Real Estate settled its claims for the consequential damages. Trial regarding the replacement costs was scheduled to commence on November 17, 2009. The parties, however, jointly submitted the case to the trial court. The trial court found Supreme Services Specialty Co. ^controlling and ruled in Scottsdale’s favor, rendering its judgment on October 5, 2010. BG Real Estate timely moved for a new trial. After a hearing, that motion was denied. BG Real Estate moved for a devolutive appeal from the October 5th judgment. Discussion

An insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Supreme Services, supra, at 638 (citations omitted). If the insurance policy’s language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced as written. Id. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Id. citing Reynolds v. Select, 93-1480 (La.4/11/94), 634 So.2d 1180; Newby v. Jefferson Parish Sch. Bd., 99-98 (La.App. 5 Cir.6/1/99), 738 So.2d 93.

Liability insurance policies should be interpreted to effect, rather than to deny coverage. Supreme Services, supra, at 638. It is well-settled, however, that unless a statute or public policy dictates otherwise, “the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds.” Id. at 638-9. In these circumstances, unambiguous provisions limiting liability must be given effect. Id. (citations omitted). Thus, an insurer bears the burden of proving that a loss falls within a policy exclusion. Id. see also Blackburn v. National Union Fire Ins. Co., 00-2668 (La.4/3/01), 784 So.2d 637, 641.

Assignments of Error

BG Real Estate presents two assignments of error for review. Due to the interrelatedness of the issues presented, the two will be discussed in tandem. BG l7Real Estate contends that the trial court erred in finding that the Rhino warranties were excluded under the Scottsdale policy and further erred by misapplying Supreme Services.

BG Real Estate seeks replacement costs in the amount of $78,730.00 and $70,000.00 for replacement of the roofs on the West and East Buildings, respectively. It contends that its claims for replacement costs are covered, arguing that “warranties are part of the contractor’s work, and that the contractors [sic] work is excluded from coverage unless that work is supplied by a subcontractor. As the Rhino companies are subcontractors their warranties must be covered under the exclusions to section L.”

In this case, the three relevant exclusions in the CGL policy under which Scottsdale could deny coverage are exclusions (j)(5), (j)(6) and exclusion (l). Those exclusions provide:

2. Exclusions
This insurance does not apply to ...
(j)(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
<j)(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.”
(Z). Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

^Consistent jurisprudence interpreting commercial general liability policies hold that “these exceptions unambiguously exclude coverage for damage to the work or product itself or for repair or replacement of the insured’s defective work or product.” McMath Constr. Co., Inc. v. Dupuy, 03-1413, p. 7 (La.App. 1 Cir. 11/17/04), 897 So.2d 677, 682. A CGL policy is not intended as a guarantee of the quality of the insured’s products or work. The work-product exclusions reflect the “possibility that coverage under a CGL policy will be used to repair and replace the insured’s defective products and faulty workmanship.” Id. at 555.

Professors McKenzie and Johnson explained these exclusions as follows:

[exclusion (j)(5) applies while work is in progress and is discussed in Section 195, supra. The important relationship between Exclusion (j)(6) and exclusion (l) should be noted — that is, exclusion (j)(6) does not apply to property damage in the “products-completed operations hazard” and exclusion (Z) applies only to property within that hazard. Thus, exclusion (j)(6) is applicable before the work is complete ... and exclusion (Z) is applicable after the work is complete. Exclusion (j)(6) is broader than exclusion (Z). Exclusion (j)(6) applies to any property that must be restored, repaired or replaced because the insured’s work was incorrectly performed. On the other hand, exclusion (Z) applies only to “your work” and does not apply to work performed on behalf of the insured by subcontractors. Id.

Thus, under exclusion (j)(5), Scottsdale is not obligated to pay for any damages for which Grant Point or any of its subcontractors performed operations if the “property damage” arose from those operations. Exclusion (j)(5), however, applies while the work is in progress and is therefore inapplicable in this case because BG Real Estate contends the damage arose after the roof installation was complete.

Under exclusion (j)(6), Scottsdale is not obligated to pay for any damages to any part of the property that must be restored, repaired, or replaced because “your work” was incorrectly performed on it. BG Real Estate’s petition alleges that Grand Point improperly installed the roofs. Thus, coverage appears to be excluded |9under exclusion (j)(6) because BG Real Estate seeks the replacement costs of the roofs. An exception to this exclusion, however, states that this exclusion does not apply to property damage included in the products completed operations hazard (PCOH).

The Scottsdale policy defines the PCOH as including, “all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work’ except....” BG Real Estate contends that under Supreme Services, its claims are included in the PCOH. In Supreme Services, the Louisiana Supreme Court explained that the PCOH applies when damage arises out of defective work and when the damage causes injury to a third party. Id. at 645. BG Real Estate argues that based on this dual inquiry, its claims are covered because of the damages it suffered due to the failed warranties.

BG Real Estate must satisfy both prongs of the Supreme Services test in order for its claims to be included in the PCOH. BG seeks to recover $70,000.00 and $78,730.00 — the amounts it spent replace the roofs on the East and West Buildings, respectively. It argues that the failed warranties are the issue because if the warranties had survived, it would not have had to spend $148,730.00 to replace the roofs. This argument is not compelling. Regardless of how BG Real Estate frames the issue, this case involves a claim for damages to the work-product itself— the failed roofs — and not a claim for damages arising out of the work. The claims for damages arising out of the work, i.e. the consequential damages, were settled before the case proceeded to trial. Thus, BG Real Estate’s claims for the replacement costs are not included in the PCOH. Furthermore, exclusion (j)(5) only applies while the work is in progress. And here, the damage arose after completion.

ImThe only remaining exclusion under which Scottsdale could deny coverage is the “work-product” exclusion — exclusion (l). This exclusion applies to work performed by Grand Point. The “work” in this case includes all work associated with installing the roof. The Scottsdale policy makes it clear that damage to the product itself is excluded from coverage. BG Real Estate relies on the exception to the exclusion which provides coverage for work performed by a subcontractor.

We have thoroughly reviewed the record and are unable to find any evidence that suggests that Rhino Systems was Grand Point’s subcontractor. Therefore, the exception to exclusion (l) is inapplicable.

Conclusion

For the reasons discussed, we find that BG Real Estate’s claims for replacement costs of the roofs are excluded under the Scottsdale policy. The damage arose after the work was completed and therefore triggers the “work-product” exclusion. This exclusion excludes damage to work performed by Grand Point. Accordingly, the judgment is affirmed.

AFFIRMED

      . Baha Towers was ECP’s management company when the contract was executed.

      . A copy of the warranty for the East Building is not included in the record.

      .It was later determined that Summit Consulting, Inc. did not provide any liability insurance to Grand Point. Therefore, it was dismissed from the litigation, without prejudice, on September 7, 2001.

      . Neither Grand Point nor Rhino Systems are currently in business. Therefore, the case proceeded solely against Scottsdale.

      . 06-1827 (La.5/22/07), 958 So.2d 634.

      . William McKenzie & H. Alson Johnson, Louisiana Civil Law Treatise: Insurance and Practice Law § 198 p. 555 (3d ed.2006).