author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. John Love ROBINSON, Appellant.
    No. 46,091-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 20, 2011.

      Louisiana Appellate Project, by Edward K. Bauman, for Appellant.
    John Love Robinson, pro se.

      Charles R. Scott, II, District Attorney, Suzanne M. Owen, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

The defendant, John Love Robinson, was convicted of possession with intent to distribute a Schedule I, controlled dangerous substance, namely heroin. He was adjudicated a fourth felony offender and sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction, vacate the habitual offender adjudication and enhanced sentence, and remand the matter for a new habitual offender proceeding.

FACTS

On January 5, 2006, Shreveport police officers, along with the SWAT team, executed a “no knock” search warrant at the defendant’s residence,1808 Acorn Street, Shreveport, Louisiana. Upon the officers’ entry, the defendant ran into a bathroom and attempted to flush a heroin-filled balloon. After the officers discovered the heroin-filled balloon floating in the toilet, they dismantled the toilet in search of more narcotics. Agent Henry Whitehorn (“Agent Whitehorn”) and several other officers went underneath the house and opened the pipe leading from the toilet. Inside the pipe, officers found seven additional heroin-filled balloons. Another balloon was discovered inside the house behind a floor heater. Officers also found digital scales and approximately $657.00 inside the house. Consequently, the defendant was arrested and charged with possession with intent to distribute a Schedule I, CDS, namely, heroin. Defendant was formally charged by bill of information on March 28, 2006, and pled not guilty.

|2The defense filed several pre-trial motions, including a motion to suppress evidence. On December 20, 2007, a hearing was held on the motion to suppress. Agent Whitehorn testified that he prepared a search warrant for the residence located at 1808 Acorn Street based upon information obtained from a confidential informant (“Cl”). According to Agent Whitehorn, the confidential informant went to the defendant’s residence on three separate occasions and purchased heroin packaged in balloons from the defendant. Agent Whitehorn testified that these were controlled buys, in that the Cl was wired, both the Cl’s person and vehicle were searched prior to and after the buys, and Agent Whitehorn was present outside the defendant’s residence during the buys. After each buy, the substance inside the balloon was field tested and identified as heroin. Based upon that information, Agent Whitehorn prepared an affidavit for a “no knock” search warrant, which was issued on January 4, 2006.

On the following day, at 5:30 a.m., Agent Whitehorn, the SWAT team and other officers executed the search warrant. Once the SWAT team made entry into the residence, they saw the defendant run toward the bathroom. Inside the bathroom, floating in the toilet was a balloon of the same type used in the Cl purchases. Agent Whitehorn testified that no one else was at the residence, and that they found mail bearing the defendant’s name. At the conclusion of the search, the defendant was arrested for possession with intent to distribute heroin.

|¾At the conclusion of the hearing, the defense requested the identity of the confidential informant, to which 1’equest the state objected. The court stated that the issue would be addressed at a later hearing.

A trial by jury began on January 28, 2008. The state called Agent Whitehorn as its first witness. For the most part, Agent Whitehorn’s testimony at trial mirrored his testimony given during the hearing on the motion to suppress. At trial, Agent Whitehorn testified that executing the search warrant at 5:30 a.m. allowed for the element of surprise and also helped to ensure the safety of the officers. Entry into the residence was made by the SWAT team using a ram to forcibly enter. Once inside, the officers noticed that the defendant, who was dressed in “street clothes” and wearing latex gloves, ran toward the bathroom and attempted to flush a balloon. After finding a balloon floating in the toilet, the officers dismantled the toilet, but no more balloons were found. Believing that more balloons were flushed, several officers went under the house and opened the pipe leading from the bathroom. Inside the pipe, they recovered seven additional balloons. Agent Whitehorn testified that he field-tested one balloon, which tested positive for heroin, and he sent the rest to the crime lab. Inside the house, the officers recovered $657.00 in cash, of which $60.00 was sheriffs office buy funds, and digital scales. Agent Whitehorn identified the defendant in open court.

On cross-examination, the defense counsel postulated that the digital scales found in the residence could be used to weigh jewelry. However, on redirect, Agent Whitehorn testified that the officers did not find any evidence |4of a jewelry business. He also testified that they did not find any evidence that the defendant was a heroin user.

Sergeant Carl Townley, an expert in the sale and distribution of narcotics, testified that heroin is typically transported to the United States in balloons. In his expert opinion, heroin addicts do not store heroin because they keep using it until it’s all gone. Therefore, a person who possessed more than two grams of heroin, with nothing to inject the heroin, would more likely be a dealer rather than a user. He stated that heroin addicts do not wear latex gloves because the purpose of the gloves would be to prevent the narcotics from penetrating the skin, which is not a concern of an addict. He further opined that if someone has narcotics and scales, then the scales are generally used to weigh the narcotics for distribution. Sergeant Town-ley also testified that, in his opinion, given the fact that the defendant was wearing latex gloves, had a large amount of heroin, and there was no evidence suggesting that he was a user, the defendant is a distributor of heroin rather than a user.

Bruce Stentz, an expert in forensic chemistry, testified that he received the drug evidence seized from the defendant. In his expert opinion, the evidence tested was positive for heroin. He further stated that the weight of the substance and the balloon was 4.07 grams.

The defendant testified on his own behalf. He disclosed that he had prior drug convictions, and that he was on probation when he was arrested for the instant offense. He further testified that he was self-employed in the business of buying scrap gold and silver, thus justifying his possession of the digital scales police found in his home. Defendant also explained that the | .^reason why he was wearing latex gloves was because he was preparing to mix roach spray. Regarding the heroin-filled balloons, the defendant denied any and all knowledge of the balloons found at his residence.

On cross-examination, the defendant testified that he did not tell the police the reason he was wearing the latex gloves because “he did not have a chance to tell them anything.” He also testified that he had $60,000 in cash at his house, despite the fact that there was no previous testimony regarding such a large sum of money. Defendant reiterated that he did not possess any heroin, and he insinuated that someone planted the heroin in his house.

On January 30, 2008, the jury returned a verdict of guilty of possession with intent to distribute heroin, a Schedule I CDS. The state filed a fourth felony habitual offender bill of Information on March 8, 2008. An amended fourth felony bill of information was filed on November 13, 2008.

According to the minutes, in February 5, 2009, the defendant was sentenced to serve 20 years’ imprisonment at hard labor without the benefit of parole, probation or suspension of sentence and to pay a fine of $20,000.00 and court costs, or in default thereof to serve three years in the parish jail. The case was set for multiple offender hearing.

On November 12, 2009, the hearing on the multiple offender bill of information was held. Lieutenant McDonnell, a fingerprint comparison and analysis expert, testified regarding the prior convictions of the defendant which identified defendant by fingerprint comparison as the same person who was convicted for three prior offenses that occurred in 1981, 1988 and 1998.

IfiThe defense asserted that the evidence introduced by the state, namely a fingerprint card with an arrest date of November 7, 1980 for possession of heroin, and a judgment from the U.S. District Court, Northern District of Texas, Fort Worth Division indicating a guilty plea to possession of phenmetrazine tables and cocaine, failed to adequately prove that it was this defendant who was arrested and subsequently convicted in 1981. The defendant interjected and decided to speak about the 1981 conviction in Fort Worth, Texas. He admitted that he was arrested for suspected heroin at the Fort Worth airport, but he stated that the substance was not heroin. He further stated that he “copped to a lesser charge in order to get out of jail.” By defendant’s own admission, he confirmed the state’s evidence to be accurate. The defendant continued to speak regarding the 1981 conviction. He argued that he received a one year hard labor sentence, and according to his interpretation of the statute, in Texas that was a misdemeanor. Thus, he did not understand how that conviction could now be a felony under Louisiana law for purposes of the habitual offender statute. Considering the arguments made by everyone, the court took the matter under advisement. At this time, the court addressed the defendant’s original sentence and amended it to reflect one year in parish jail in lieu of fines and court costs to comply with La. C. Cr. P. art. 884.

On December 17, 2009, the court reconvened to rule on the habitual offender bill. However, defense counsel was present but not defendant. Noting the defendant’s absence, the state agreed to reset the matter. The record revealed that a discussion took place off the record, and following that 17discussion, the court adjudicated the defendant a fourth felony offender and scheduled sentencing for another day. Defense counsel did not raise an objection.

On March 8, 2010, the defendant was sentenced to life imprisonment under the habitual offender statute. Defense’s motions for post-judgment verdict of acquittal and motion to reconsider were denied. The defendant now appeals.

LAW AND DISCUSSION

Motion to Suppress

In the first assignment of error, the defense contends that the trial court erred in denying the defendant’s motion to suppress evidence. Moreover, the defense suggests that the search warrant failed to set forth particularized concerns for the authorization of a “no knock” search warrant. Therefore, he argues the motion to suppress all evidence seized as a result of the warrant should have been granted.

A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Whitehead, 42,677 (La.App. 2 Cir. 4/2/08), 980 So.2d 243, writ denied, 2008-1096 (La.1/9/09), 998 So.2d 718; State v. Normandin, 32,927 (La.App. 2 Cir. 12/22/99), 750 So.2d 321.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082, 1084, citing State v. Jackson, 26,138 (La.App.2d Cir.08/17/94), 641 So.2d 1081. When reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion, but also may consider pertinent evidence given at trial. State v. Turner, 37,162 (La.App.2d Cir.1/29/03), 859 So.2d 911, writ denied, 2003-3400 (La.3/26/04), 871 So.2d 347.

Accordingly, this Court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, 1271, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441, citing State ex rel. Thibodeaux v. State, 2001-2510 (La.03/08/02), 811 So.2d 875.

La. C. Cr. P. art. 224 states:

In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.

An officer who executes a search warrant may use such means and force as is authorized for an arrest. State v. Miskell, 98-2146 (La.10/19/99), 748 So.2d 409. In upholding the reasonableness of the no knock entry, “it is well recognized that a police officer’s past experience, training, and common sense may be considered in determining if the inferences drawn from the facts presented were reasonable.” Id.

19In State v. Thomas, 329 So.2d 704 (La.1976), the supreme court held that the no knock entry into the defendant’s residence was reasonable because the officer had reasonable belief that the defendant would be armed and the evidence sought to recover could easily be disposed of. Thus, an announced entry of the officer would likely have imperiled the arrest of the defendant. See also State v. Johnson, 27,522 (La.App.2d Cir.12/6/95), 665 So.2d 1237.

In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the supreme court held that an officer may dispense with the knock-and-announce requirement when “they have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”

The requirement of an objection shall not apply to the court’s ruling on any written motion. La. C. Cr. P. art. 841(B). However, a new basis for an objection cannot be raised for the first time on appeal. State v. Cressy, 440 So.2d 141 (La.1983); State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594; State v. O’Neal, 501 So.2d 920, 924 (La.App. 2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987). A defendant bears the burden of proof of the ground of his motion at the trial on the motion to suppress. La. C. Cr. P. art. 703(D).

Although the motion to suppress is a written motion, and therefore not subject to being waived if no objection is made, the defense, however, failed [mto raise the issue of the “no knock” order in the motion to suppress pursuant to La. C. Cr. P. art. 841(B). Since the trial court was not afforded an opportunity to consider the merits of this claim, the defense is precluded from raising this issue for the first time on appeal. Cressy, supra; Sims, supra; O’Neal, supra.

Furthermore, the particular circumstances of this case warranted the no knock order in the search warrant. At the suppression hearing, Agent Whitehorn testified that he requested the search warrant of the defendant’s residence due to the previous observations and information from a confidential informant that the defendant was selling heroin, packaged in balloons, from his residence at 1808 Acorn Street in Shreveport. Agent Whitehorn further testified that after looking into the defendant’s criminal history, they decided to execute the warrant in the early morning to surprise the defendant and also to keep the officers safe.

Under the particular circumstances of this case, the officers’ act of knocking and announcing their presence would have likely rendered the entire search of the defendant’s residence futile, because the announcement would have given defendant enough time to successfully dispose of the heroin balloons, which he was attempting to do upon the officers’ entry. Thus, it was reasonable for the officers to enter without knocking and announcing.

We find that the trial court did not err in denying the motion to suppress. This assignment is therefore without merit.

[ ^Adjudicating the Defendant as a Fourth Felony Offender

In the second assignment of error, the defense argues that the trial court erred in adjudicating the defendant a fourth felony offender, since the defendant was not present, in contravention of La. C. Cr. P. art. 831. Additionally, the defense contends that the state failed to prove that the defendant was the person convicted of the 1981 felony in the Northern District of Texas, Forth Worth Division. Therefore, the defense urges that the adjudication as a fourth felony offender should be vacated.

La. C. Cr. P. art. 831, in pertinent part, provides:

A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
(6) at the rendition of the verdict or judgment, unless he voluntarily absents himself.

La. C. Cr. P. art. 834, states:

The defendant has a right to be present, but his presence is not essential to the validity of any of the following proceedings in a criminal prosecution:
(1) the making, hearing of, or ruling on a preliminary motion or application addressed to the court;
(2) the making, hearing of, or ruling on a motion or application addressed to the court during the trial when the jury is not present; and
(3) the making, hearing of, or ruling on a motion or application made after his conviction.

In felony cases the defendant shall always be present when sentence is pronounced. La. C. Cr. P. art. 835.

The habitual offender statute provides that following a contradictory hearing, a defendant shall be adjudicated a second, third or fourth felony | ^offender. The statute makes no requirement for presence of the defendant upon rendition of the court’s findings. La. R.S. 15:529.1(D)(2).

The presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. State v. Kahey, 436 So.2d 475 (La.1983). Therefore, the presence of the defendant is only essential at proceedings which have a reasonably substantial relation to the fullness of the opportunity of the defendant to defend against the charge. Id.

La. R.S. 15:529.1 requires proof of a prior felony conviction before a felony sentence may be enhanced. With respect to prior guilty pleas, the Louisiana Supreme Court held in State v. Shelton, 92-3070 (La.7/1/93), 621 So.2d 769, that it is the state’s burden to prove the existence of the prior guilty plea and that defendant was represented by counsel. If the state meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Then if the defendant meets his burden, the state must meet the burden of proving the plea was constitutional by introducing a “perfect” transcript. Id.

Here, defense argues that the defendant’s absence at the rendition of the ruling on the habitual offender bill of information was in error pursuant to La. C. Cr. P. art. 831. Despite the defense’s contention, the habitual offender statute does not explicitly require the presence of the defendant at the rendition of the ruling. La. R.S. 15529.1(D)(2).

| |RThe defendant was present at the habitual offender hearing wherein evidence was adduced as to his prior convictions and where the defendant spoke on his own behalf. Thus, the defendant had a full opportunity to defend the allegations of the habitual offender bill of information. Kahey, supra. Additionally, the defendant’s counsel was present at the ruling to represent the defendant’s interest in his absence. At the start of the hearing, a bench conference was held regarding the defendant’s absence and whether to reset the matter. Following the bench conference, the court adjudicated the defendant a fourth felony offender. At no time did the defense counsel object to a ruling being issued in the defendant’s absence. Lastly, the court did not sentence the defendant at that time, but rather continued sentencing until the defendant could be brought back to Caddo Parish. Therefore, considering all of the above, if the defendant’s absence was error, it was harmless because all the evidence in which the court relied on to issue its ruling was adduced at the hearing, a time when the defendant was present.

The defense also contends in this assignment that the evidence introduced by the state, namely the 1981 conviction, failed to comply with the requirements of State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, which outlines the state’s burden as well as the defendant’s burden of proof in a habitual offender proceeding as per State v. Shelton, supra. The defense concedes that the state met its burden in proving the existence of the guilty plea in 1981 and that defendant was represented by counsel. However, the defense argues that the defendant subsequently 114produced affirmative evidence of irregularities, which then required the state to produce a perfect transcript.

The record clearly reflects that the defendant did not argue any irregularities with the taking of his plea nor any infringements of his rights. Rather, the defendant’s argument was regarding the treatment of the 1981 conviction as a felony in Louisiana. According to the defendant, the 1981 conviction was a misdemeanor under Texas law. Thus, he did not understand how it would be considered a felony in Louisiana for purposes of the habitual offender statute. Clearly, the defendant’s argument was not evidence of some irregularity with his 1981 guilty plea. Therefore, this assignment of error is without merit.

Right to a Fair Trial

In the third assignment of error, the defense urges that he was deprived of his right to a fair trial by improper tactics employed by the prosecution. More specifically, the defense contends that the state introduced prohibited evidence, conducted an improper cross-examination in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and made an improper closing argument.

An error cannot be considered on appeal unless an objection was made at the time of its occurrence. La. C. Cr. P. art. 841(A); State v. Smith, 39,698 (La.App.2d Cir.6/29/05), 907 So.2d 192; State v. Bosley, 29,258 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

11fiHere, the defense argues that it was improper for the state to explicitly ask its expert witness, Sergeant Townley, whether, in his opinion, the defendant was a heroin distributor or user. Although the defense concedes that defendant’s trial counsel failed to object to the state’s questioning, the defense argues that review of this error is permissible pursuant to State v. Williamson, 389 So.2d 1328 (La.1980). In Williamson, the jury was charged with the wrong definitions for the crime. Noting that erroneous jury charges were not errors patent, the Supreme Court reviewed the error, which cast substantial doubt on the fact-finding process, because it involved the definition for the crime for which the defendant was charged. Id. at 1331. Williamson was a limited exception to the rule based on the unique facts of the case.

Unlike the error in Williamson, the alleged error in this case is an evidentiary issue and is not one which cast doubt on the fact-finding process. Aside from the expert testimony, the evidence presented at trial, including the quantity of heroin, the packaging in balloons, and the scales, was more than sufficient for the jury to conclude that the defendant was a distributor of heroin rather than a user. Thus, despite defense’s reliance on Williamson, this alleged error cannot be considered on appeal. La. C. Cr. P. art. 841; Smith, supra; Bosley, supra.

The defense also contends that the state’s cross-examination of the defendant violated Doyle, supra. Particularly, the defense argues that the state improperly questioned the defendant as to his post-arrest silence. On direct examination, the defendant stated that he was wearing latex gloves [Inwhen the police entered his home at 5:20 a.m. because he was mixing roach spray. On cross, the state simply questioned if the defendant told this to the police, to which the defendant replied “I didn’t have an opportunity to talk to them about anything.” It is unclear from the record if the defendant elected not to speak at all to the police, or if he elected not to speak only after being advised of his Miranda rights. The Constitution does not prohibit use for impeachment purposes of a defendant’s silence pri- or to arrest. Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980).

The defense also complains that the state made reference to the defendant’s post-arrest silence during its closing arguments. However, the record is clear that the defendant’s trial counsel did not object to either alleged error. Despite the contemporaneous objection rule, defense argues that this error is also permissible under Williamson, supra. As determined previously in this assignment, the limited exception of the plain error rule does not apply in this instance either. In State v. Arvie, 505 So.2d 44 (La.1987), the court declined to extend the exception to the contemporaneous objection rule. In Arvie, the prosecutor attempted to use the defendant’s post-arrest silence to suggest that defendant’s testimony at trial was a fabrication. The court found that the prosecutor’s actions did not have nearly the same substantial effect on the reliability of the fact-finding process as in Williamson, supra, when the judge gave jury instructions which erroneously defined the charged crime. Therefore, the exception to the contemporaneous objection rule did not apply-

117The overwhelming evidence adduced at trial was sufficient to convict the defendant of possession with intent to distribute heroin. Therefore, the verdict was surely not attributable to the state’s reference to the defendant’s failure to mention to the police the purpose of the latex gloves when, according to the defendant’s own testimony, he “did not have an opportunity to talk to them about anything.”

Therefore, this assignment of error ' lacks merit.

Probable Cause

In this pro se assignment of error, the defendant urges that the trial court erred by failing to state probable cause for the search warrant. He further claims that the affidavit for the search warrant was not properly authenticated being that a copy was provided and not the original pursuant to Louisiana C.E. 1002.

La. C.E. art. 1002 states:

To prove the content of a writing, recording, or photograph, the original writing, recording or photograph is required, except as otherwise provided by this Code or other legislation.

La. C.E. 1003 provides:

A duplicate is admissible to the same extent as an original unless:
(1) A genuine question is raised as to the authenticity of the original;
(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or
(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

11sDefendant argues that the search warrant lacked probable cause because the copy of the affidavit, apparently unsigned, was filed rather than the original. The record reveals that at a bench conference, the state produced to defense counsel and the judge, a signed copy of the affidavit. At the beginning of the hearing on the motion to suppress, defense counsel stated he would accept the signed copy in lieu of the original. Not only did defense counsel accept the copy without objection, but La. C.E. art. 1003 allows a duplicate to be admitted to the same extent as the original. As to the contents of the affidavit, the state produced the affiant, Agent Whitehorn, who testified as to his preparation of the affidavit, the contents of the affidavit and the court’s approval of the affidavit. Any question as to the validity of the affidavit should have been raised during the hearing on the motion to suppress. However, no issue was raised.

This pro se assignment of error lacks merit.

Separation of Documents

In this pro se assignment of error, the defendant alleges that the trial court erred by separated the affidavit from the court order, but he never explains what he means by this. Instead, his brief cites many cases and various unrelated propositions of law, and he repeatedly states that the duplicate of the affidavit to the search warrant should not have been permitted to be filed or relied upon. To that extent, this issue is addressed in Pro Se Assignment of Error Number One. As decided in the previous assignment of error, this argument is meritless.

11flConfidential Informant’s Identity

In this pro se assignment of error, the defendant contends that the trial court erred in withholding the confidential informant’s identity, and this ruling prejudiced his case.

Louisiana has a strong public policy in favor of protecting the identity of confidential informants. State v. Cox, 44,-878 (La.App. 2 Cir. 12/9/09), 26 So.3d 929, writ denied, 09-2829 (La.6/18/10), 38 So.3d 320; State v. Davis, 411 So.2d 434 (La.1982); State v. Hall, 549 So.2d 373 (La.App. 2d Cir.1989). The defendant bears the burden of showing exceptional circumstances which would require divulging a confidential informant’s identity; the trial court has much discretion in deciding whether disclosure is warranted. State v. Oliver, 430 So.2d 650 (La.1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); State v. Babbitt, 363 So.2d 690 (La.1978); State v. Hall, supra.

On July 11, 2006, through discovery, defense counsel requested the name and address of the confidential informant. It appears that the state never responded. According to defendant’s pro se brief, the trial court ruled on March 28, 2007, that the confidential informant’s identity would not be disclosed. On December 20, 2007, at the hearing on the motion to suppress, defendant’s trial counsel requested that the identity of the state’s confidential informant, who provided the information for the search warrant, be divulged. The state, of course, objected to giving the identity of the confidential informant and also stated that it would not use the confidential informant at trial. The judge ruled that the matter would be addressed at a later | ^proceeding. However, it is not apparent from the record that this ruling was ever issued nor does the defendant provide any proof of a ruling in his brief.

In the absence of a ruling, the issue was waived. A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pre-trial motion was neither heard nor ruled on. State v. Fletcher, 02-707 (La.App. 5th Cir.12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334. As such, there is no ruling for this Court to review.

This pro se assignment of error is therefore without merit.

45,158-KM: PRO SE MOTION FOR EXTENSION OF TIME APPEAL

By order of the Louisiana Supreme Court dated December 10, 2010, the merits of defendant’s pre-lodging motion, No. 45,-158-KM, will be addressed at this time.

On January 30, 2008, the defendant was convicted by a jury of possession of heroin with the intent to distribute. On February 5, 2009, he was sentenced to 20 years imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. He was also ordered to pay a fine of $20,000.00 and court costs. In between defendant’s conviction and sentencing, the state filed a fourth felony habitual offender bill of information on March 28, 2008, and an amended bill on November 13, 2008.

On October 21, 2009, defendant filed a pro se motion styled as an extension of time within which to file an appeal, relying on La. C. Cr. P. art. 915.1. It appears that he was attempting to state reasons why he should be L, granted an extension of time to file an appeal pursuant to La. C. Cr. P. art. 915.1.

La. C. Cr. P. art. 915.1 provides for an extension of a return date once a party has complied with La. C. Cr. P. art. 914 in seeking an order granting an appeal. In this case, the defendant failed to show that he made a motion for an appeal in the trial court. Furthermore, since the defendant has been granted an appeal, and has filed pro se assignments of error, this motion is now moot. Therefore, we deny the defendant’s motion as moot.

ERROR PATENT

Failure to advise of right to remain silent-habitual offender proceeding

Before accepting a defendant’s admission that he is a multiple offender, the trial judge must specifically advise the defendant of his right to a formal hearing, his right to require the state to prove his identity as a multiple offender, and his right to remain silent. La. R.S. 15:529.1(D); State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727. A trial court’s failure to properly advise a defendant of his rights under the habitual offender law constitutes patent error on the face of the record and requires that the habitual offender’s adjudication be vacated. State v. Delaney, 42,990 (La.App.2d Cir.2/13/08), 975 So.2d 789, citing State v. Odom, 34,054 (La.App.2d Cir.11/1/00), 772 So.2d 281.

In State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077, this Court stated:

La. R.S. 15:529.1(D)(l)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement | 22is the additional requirement that the Defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the Defendant of his right to a hearing and his right to remain silent is not considered reversible error where the Defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the Defendant. However, when the guilt of the Defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. Citing State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87,90.

At the habitual offender hearing, the defense argued that the state failed to prove that the defendant was convicted in 1981 in Fort Worth, Texas. The state introduced a fingerprint card showing an arrest date of November 7, 1980 for possession of heroin as proof of that conviction. A judgment from the U.S. District Court, Northern District of Texas, Forth Worth Division indicating that a John L. Robinson, represented by counsel, pled guilty to possession of phenmetrazine tablets and cocaine on February 13,1981, was also introduced. Lieutenant McDonnell testified that in his expert opinion, the fingerprint card for that 1980 arrest contained the same prints for the defendant. However, the record reveals that the judgment of conviction dated February 13, 1981, had no identifying marks to correlate it with the November 7, 1980, arrest for possession of heroin. Therefore, at the habitual offender hearing, the defendant decided to interject to clear up the confusion. The defendant admitted that he was arrested for possession of heroin at the Fort Worth, Texas airport. However, once the substance was tested, the test proved it was not heroin. In defendant’s words, he “copped to a lesser charge | ¾¾⅛ order to get out of jail,” which indicated that he pled to something other than possession of heroin, thereby confirming that he was convicted in 1981.

The record reveals that when the defendant elected to speak about the 1981 conviction, he was not advised of his right to remain silent. However, at some time later in the hearing, the court advised the following:

THE COURT: Mr. Robinson, I mean, you know, this could be used against you, however, do you understand that?
DEFENDANT: I understand that.

At the time the court made this statement, the damage had already been done. Even though the defendant had acknowledged his identity as to the 1981 conviction, the state did not adequately prove the defendant’s habitual offender status with its evidence. Neither the transcripts nor the minutes reflect that the defendant was previously advised of his right to remain silent during the habitual offender proceeding, nor did the court’s statement advise the defendant that he had a right to remain silent.

As stated in Mason, supra, this failure to advise the defendant of his right to remain silent could be harmless error, provided the state offered competent evidence. However, the evidence offered by the state did not sufficiently prove that the defendant was the person convicted on February 13, 1981, for possession of phen-metrazine tablets and cocaine. The state only offered expert testimony that the fingerprints on the card for an arrest on November 7, 1980, were that of the defendant, but offered no evidence to connect that arrest for possession of heroin to the conviction in 1981. It was only by defendant’s admission that the court was able to determine that the ^defendant was the same person arrested in 1980 for possession of heroin who later pled guilty to possession of phenmetrazine tablets and cocaine in 1981.

Accordingly, the trial court’s failure to properly advise the defendant of his right to remain silent prior to the acknowledgment of his guilt constitutes error patent on the face of the record. Because the state failed to establish defendant’s guilt by competent evidence, this is reversible error. Thus, the defendant’s habitual offender adjudication and enhanced sentence must be vacated, and the matter remanded for a new habitual offender proceeding.

Additionally, the trial court failed to vacate the defendant’s original sentence when it imposed the enhanced sentence on March 8, 2010. We advise the trial court to vacate defendant’s original sentence pri- or to imposing any enhanced sentence following the new habitual offender proceeding.

CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction, vacate the adjudication and enhanced sentence as a habitual offender, and remand the matter for a new habitual offender proceeding. Also, the defendant’s pro se motion, No. 45,158-KM, is denied as moot.

CONVICTION AFFIRMED; SENTENCE VACATED, MOTION DENIED.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    RECOVERY DEVELOPMENT GROUP, LLC; Next Generation Homes, LLC; The Debore Group, LLC v. NATIONAL BAPTIST CONVENTION OF AMERICA, INC. and Dr. Russell Odom.
    No. 2010-CA-1086.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.
    Rehearing Denied May 25, 2011.

      Henry L. Klein, New Orleans, LA, and Dr. Russell Odom, Atlanta, GA, for Defendants/Appellees.
    Robert G. Harvey, Sr., Justin A. Zitler, New Orleans, LA, for Oakbrook Ventures, LLC, et al.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge Daniel L. DYSART).
   MICHAEL E. KIRBY, Judge.

|! Oakbrook Ventures, LLC, and its individual members, Robert Dronberger, Jeff Posey, and Troy Brosious, appeal the March 3, 2010 trial court judgment, the March 23, 2010 denial of them motion for new trial and all interlocutory rulings issued prior to March 3, 2010.

This litigation began with a petition for specific performance of a contract to sell realty filed on October 24, 2008 by plaintiffs, Recovery Development Group, LLC, Next Generation Homes, LLC (“NGH”) and the Debore Group, LLC, against defendants National Baptist Convention of America, Inc. (“NBCA”), Dr. Russell Odom, Oakbrook Venture, LLC, Special Projects Division, LLC and Bring Back the 9th, LLC. The June 2007 contract referred to in the original petition is an “Option to Purchase,” under which the NBCA agreed to sell a certain piece of property to NGH on the condition that “NGH will cause a loan of $300,000.00 at 0% interest per annum with a 30 day maturity to be made to the NBCA to purchase the subject property encumbered only by City of New Orleans taxes & liens and will pay $100,000.00 to NBCA for an option to purchase the subject property for li>an additional $100,000.00.” According to the terms of the agreement, once these conditions were met, NBCA was to then have the taxes and liens removed from the property.

Plaintiffs alleged, among other things, that Dr. Russell Odom, Special Projects Director for the NBCA, has attempted to transfer title, possession and/or ownership of the subject property to one or more of the entities that he controls (including, but not limited to Oakbrook Venture, LLC, Special Projects Division, LLC and Bring Back the 9th, LLC) or to other third parties, “in furtherance of his scheme to defraud the petitioners and deny them possession of the subject properties pursuant to their rights under the option agreement.” An Act of Sale did not take place between the parties named in the petition.

The record shows that on August 15, 2008, NBCA entered into a joint venture agreement with Dronberger Construction involving the creation of a business entity (later named Oakbrook Ventures, LLC) for the purpose of developing for sale and/or lease a tract of land located in the area known as New Orleans East. The terms and conditions of the joint venture were set forth in the agreement. One of the terms was that Dronberger Construction was to pay NBCA, the owner of the land, the sum of $1,500,000.00, in return for NBCA contributing the land to the joint venture. Both parties to the joint venture also agreed that an additional sum of $200,000.00 was to be paid to Dr. Odom for expense reimbursement upon close of escrow of permanent financing for the project.

laOn September 10, 2008, the members of Oakbrook Ventures, LLC executed an operating agreement to govern the relationship of the members and the operation of the company. At the time the operating agreement was executed, the members of Oakbrook Ventures, LLC, were Robert J. Dronberger, NBCA, Troy Brosious, Jeff Posey and Dr. Odom. NBCA and Dr. Odom each had a 25% interest in the company, Mr. Dronberger had 16.667%, and Mr. Brosious and Mr. Posey each had 16.666%. The operating agreement also listed the amount to be paid by each member as an initial capital contribution.

NBCA sold the property at issue to Oakbrook Ventures, LLC on September 18, 2008, with Dr. Odom signing the Act of Sale on behalf of both the seller and buyer. Dr. Odom signed as the duly authorized agent of NBCA and as co-manager of Oak-brook Ventures, LLC. The relationship among the Oakbrook members deteriorated over the next several months, culminating with the ouster of Dr. Odom and NBCA from Oakbrook Ventures, LLC, by the other three members.

On August 14, 2009, NBCA and Dr. Odom filed a third party demand against Mr. Dronberger, Mr. Posey and Mr. Brosious (“hereinafter referred to as the Dron-berger group”) and Oakbrook Ventures, LLC, requesting a declaratory judgment and injunctive relief. In this demand, NBCA and Dr. Odom denied the suggestion made by plaintiffs in the original petition that the creation of Oakbrook Ventures, LLC was a sham. However, NBCA and Dr. Odom alleged that since the time that the original petition was filed, the Dronberger group’s failure to comply with its obligations under the joint venture agreement between NBCA, Dr. Odom |4and the Dronberger group have rendered the agreement a “nudum pactum.” A nu-dum pactum is defined in Black’s Law Dictionary, Ninth Edition, as “an agreement that is unenforceable as a contract because it is not ‘clothed’ with consideration.”

The third party plaintiffs asked the trial court to enter a declaratory judgment ruling that the Dronberger group has no interest in the property at issue because it failed to fund the project as it agreed to do in the joint venture agreement. The third party plaintiffs also argued that the September 10, 2008 operating agreement of Oakbrook Ventares, LLC, should be declared null and void because the third party defendants did not pay the $1,500,000.00 required for and in consideration of the NBCA’s contribution of the land at issue. NBCA and Dr. Odom further alleged that despite the Dronberger group’s failure to pay the $1,500,000.00 in connection with the joint venture agreement, the group has seized control of Oakbrook Ventures, LLC, by ousting Dr. Odom and the NBCA on spurious grounds. The third party plaintiffs also requested injunctive relief precluding the Dronberger group from taking any action to conduct the affairs of Oak-brook Ventures, LLC, and from disposing of the property at issue.

Subsequent to the filing of the third party demand, Oakbrook Ventures, LLC (now comprised only of the Dronberger group) filed a peremptory exception of no right or cause of action against the original plaintiffs’ claim of an ownership interest in the subject property. Oakbrook argued that the- only way plaintiffs could have had a right to rescind the sale of the subject property to Oakbrook Ventures, |SLLC is if they had exercised the option to purchase set forth in the June 2007 contract referenced in the original petition. Oak-brook Ventures, LLC, argued that the option to purchase has expired and is no longer a viable contract.

NBCA then filed a cross-exception of no right of action and opposition to Oak-brook’s exception of no right of action. NBCA stated that it excepted to the pleadings filed by Oakbrook Ventures, LLC, which NBCA calls a legally non-existent entity, on the grounds that the creation of the LLC and the transfer of title to the LLC are both nullities. Therefore, according to NBCA, it is Oakbrook Ventures, LLC, that has no right of action to even bring an exception against the original plaintiffs. NBCA argues that it has standing to oppose the exception filed by Oakbrook against the original plaintiffs because of the settlement of all disputes between NBCA and NGH, and because those parties are now aligned against the claims of Oakbrook Ventures, LLC, whose organization and existence is a nudum pactum according to NBCA.

Following the February 11, 2010 hearing on the exception filed by Oakbrook Ventures, LLC and the cross-exception filed by NBCA, the trial court rendered judgment on March 3, 2010, denying the exception of no right of action filed by Oakbrook Ventures, LLC, and granting the exception of no right of action filed by NBCA. The trial court incorrectly states in its judgment that the cross-exception of no right of action was also filed by Dr. Odom. However, a review of that pleading reveals that it was filed by NBCA only. In addition to granting the cross-exception of no right of action filed by NBCA against Oak-brook Ventures, | fiLLC, the trial court judgment also included numerous other rulings even though, according to the judgment, the only matters that came before the court for hearing on February 11, 2010 were the two exceptions filed by Oakbrook Ventures, LLC, and NBCA. Oakbrook Ventures, LLC, and its individual members, (hereinafter referred to as “Oak-brook”), now appeal.

On appeal, Oakbrook first argues that the trial court erred in adopting the oral argument of one of the attorneys as her reasons for judgment. After noting that the oral arguments from the hearing were transcribed, the court stated that she was basing her granting of NBCA’s cross-exception of no right of action on the arguments of Mr. Henry Klein, counsel for NBCA. Oakbrook argues on appeal that the trial court’s adoption of NBCA’s counsel’s arguments as her reasons for judgment constitutes noncompliance with La. C.C.P. article 1917, which provides that the court shall give written findings of fact and reasons for judgment when requested to do so by a party. We disagree.

In Mack v. City of Baton Rouge, 2006-0140 (La.App. 1 Cir. 4/4/07), 960 So.2d 1008, the trial court filed the transcript of its oral reasons for judgment into the record in response to plaintiffs request for written findings of fact and reasons for judgment pursuant to La. C.C.P. article 1917. The First Circuit rejected plaintiffs argument that the transcript containing oral reasons was not sufficient to comply with La. C.C.P. article 1917, finding that the plaintiff had an opportunity to review the written reasons prior to perfecting his appeal. In this case, although the trial court’s reasons were the transcribed oral argument of counsel instead of the 17transcribed oral reasons of the court, we find that the same concept applies. Oak-brook had an opportunity to review the reasons for judgment in the transcript of the hearing prior to perfecting its appeal.

The eases cited by Oakbrook are distinguishable from the instant case. In Alexis v. Conley, 582 So.2d 564 (La.App. 1 Cir. 1988), the trial judge told the party requesting written reasons to contact the court reporter and request a transcription of the reasons. The First Circuit found that it is the trial judge’s responsibility to provide written reasons, and not the responsibility of a party litigant to contact a court reporter to request a transcript. Id. at pp. 564-556. Finding that the trial judge’s action was insufficient to comply with La. C.C.P. article 1917, the First Circuit noted that a party litigant may find a need to review reasons for judgment prior to taking an appeal. Id. at p. 565. In the instant case, the arguments of counsel that the trial court adopted as reasons for judgment were already transcribed when the reasons for judgment were issued. Therefore, Oakbrook had the opportunity to review these reasons before taking its appeal.

In the case of Anders v. Boudion, 93-894 (La.App. 5 Cir. 3/29/94), 636 So.2d 1029, the trial court awarded damages to two plaintiffs for injuries suffered in a vehicular collision. Despite plaintiffs’ request for written reasons for judgment in accordance with La. C.C.P. article 1917, the trial court did not issue written reasons and no oral reasons appeared in the record. The Fifth Circuit found that the trial court committed reversible error in failing to comply with the requirements of La. C.C.P. articles 1917 and 1812(C) (relative to cases involving lathe recovery of damages for injury, death or loss). In the instant case, the trial judge issued written reasons for judgment, in which she stated that she was adopting as reasons the arguments offered by counsel for NBCA at the hearing on the exceptions, and that those arguments had already been transcribed. As stated above, we find that the trial court in this case complied with La. C.C.P. article 1917.

Oakbrook next argues that the trial court erred as a matter of law in refusing to allow it to offer evidence on its exception of no right of action. Oakbrook cites La. C.C.P. article 931, which states, in pertinent part:

On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

In support of its argument that the trial court rebuffed its attempts to offer evidence at the hearing, Oakbrook cites three statements made by the trial court. A review of the transcript shows that none of the trial court’s statements cited by Oak-brook were made in response to an attempt by Oakbrook to introduce evidence. Even if Oakbrook had tried to offer evidence, and the trial court had refused to accept it, Oakbrook would have been required to proffer such evidence. It is incumbent upon a party who contends that its evidence was improperly excluded to make a proffer of such evidence pursuant to La. C.C.P. article 1636. Ritter v. Exxon Mobile [sic] Corporation, 2008-1404, p. 9 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 546. If it fails to do so, the party is precluded from raising this issue Ison appeal. Id. The transcript does not show that any proffer was made by Oakbrook. This assignment of error is without merit.

We will consider assignments of error three, five and six together as they all relate to Oakbrook’s position that counsel for NBCA, Henry Klein, should have been disqualified from representing NBCA because he formei'ly represented Oakbrook Ventures, LLC. In assignment of error three, Oakbrook argues that the trial court erroneously entertained NBCA’s cross-exception of no right of action as an opposition to Oakbrook’s motion to disqualify Mi". Klein. In assignment of error five, Oak-brook argues that the trial court should have construed the cross-exception as an exception of lack of procedural capacity, and should have considered Mr. Klein’s prior representation of Oakbrook as a waiver thereof. In assignment of error six, Oakbrook argues that the trial court erred in failing to disqualify Mr. Klein.

With regard to assignments of error three and five, we find nothing in the record to support the conclusion of counsel for Oakbrook that NBCA’s cross-exception was entertained by the trial court as an opposition to Oakbrook’s motion to disqualify Mr. Klein. Additionally, a reading of the cross-exception does not support Oakbrook’s argument that this pleading was actually an exception of lack of procedural capacity. The gist of the cross-exception is that Oakbrook has no right of action in this case because the joint venture agreement creating Oakbrook Ventures, LLC is a nudum pactum, and therefore, Oakbrook Ventures, LLC is a non-existent entity. As for assignment of error six, Oakbrook’s motion to 1 ^disqualify Mr. Klein was never heard by the trial court. For that reason alone, it is not properly before this Court in this appeal. See Randolph v. Randolph, 2009-1709, p. 3 (La.App. 4 Cir. 8/10/10), 46 So.3d 195, 196; La. C.C.P. article 2164.

In its remaining assignment of error, Oakbrook argues that the trial court erred in entering judgment on the merits of this case when the only matters before the court were Oakbrook’s exception of no right of action and NBCA’s cross-exception of no right of action. This assignment has merit.

In the judgment appealed from, the trial court denied Oakbrook’s exception of no right of action against the original plaintiffs, and granted NBCA’s cross-exception of no right of action against Oakbrook. In addition to these rulings, the trial court issued numerous other rulings relative to the merits of this case.

The appellate court reviews the granting of exceptions of no right of action de novo because these exceptions involve questions of law. B-G & G Investors VI, L.L.C. v. Thibaut HG Corporation, 2008-0093, p. 2 (La.App. 4 Cir. 5/21/08), 985 So.2d 837, 840. In Touzet v. V.S.M. Seafood Services, Inc., 96-0225, pp. 2-3 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012-1013, this Court explained the function of the exception of no right of action as follows:

The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor. Thomas v. State of Louisiana, 545 So.2d 632 (La.App. 4th Cir.), writ denied, 551 So.2d 639 (La.1989). When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted. In re G.E.T., 529 So.2d 524 (La.App. 1st Cir. 1988). The exception does not raise the question of the plaintiffs ability to prevail on the merits nor [sic] the question of whether the defendant may have a valid defense. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155 (La.App. 1st Cir.1992).

Because the trial court ruled on the merits of this case in addition to ruling on the two exceptions, the portions of the judgment other than the denial of Oakbrook’s exception and the granting of NBCA’s cross-exception must be vacated.

Although Oakbrook’s notice of appeal stated that it was appealing the March 3, 2010 judgment, the March 30, 2010 denial of new trial motion and all interlocutory rulings, its brief only addresses the granting of the cross-exception of no right of action in favor of NBCA. The trial court agreed with NBCA that the Oakbrook parties have no right of action in this case because they never put up the funding for the project at issue as required of them in the joint venture agreement with NBCA and Dr. Odom for the creation of Oakbrook Ventures, LLC. Without this funding, Oakbrook Ventures, LLC, never came into existence, and the joint venture agreement became a nudum pactum, or “an agreement that is unenforceable as a contract because it is not ‘clothed’ with consideration.” We agree with the trial court’s finding that Oakbrook Ventures, LLC has no right of action to bring an exception against the original plaintiffs.

Accordingly, for the reasons stated above, the portion of the trial court judgment denying Oakbrook’s exception of no right of action as to the original plaintiffs and granting NBCA’s cross-exception of no right of action as to Oakbrook Ventures, LLC is affirmed. All other rulings in the March 3, 20101 ^judgment are hereby vacated. This matter is remanded to the trial court for further proceedings.

AFFIRMED IN PART; VACATED IN PART; REMANDED.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of C.J.
    No. 2010-CA-1588.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.

      Krystal Loredo, Juvenile Regional Services, New Orleans, LA, for C.J.
    Leon A. Cannizzaro, Jr., District Attorney, Ayson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE.
   TERRI F. LOVE, Judge.

_JjThe Orleans Parish Juvenile Court adjudicated C.J. delinquent on the charges of trespass and resisting an officer. The court imposed a total of six months, three months per count, to the Department of Public Safety and Corrections. The court suspended the sentence and placed C.J. on active probation for six months. C.J. appeals the judgment and sentence of the juvenile court. We find that the juvenile court judge correctly adjudicated C.J. delinquent for criminal trespass and resisting an officer and affirm. However, we find that C.J.’s commitment of three months for the trespass offense was excessive and that the juvenile court judge did not articulate her considerations of the guidelines or the factual basis to justify the imposition of a consecutive sentence and remand in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

C.J. was charged by delinquency petition with one count of criminal trespass in violation of La. R.S. 14:63, one count of resisting an officer in violation of La. R.S. 14:108, and one count of simple criminal damage to property in violation of La. R.S. 14:56. At the adjudication hearing the juvenile court judge found C.J. to be delinquent for criminal trespass and resisting an officer.

12At the adjudication hearing, Mr. Terrance Davis, the school administration manager and director of athletics for 0. Perry Walker High School, testified that on October 13, 2009, he was supervising students on the school’s grounds after school concluded for the day. During this time, C.J. and a few other students attempted to enter the administrative building for band practice. Mr. Davis informed the students that they could not go inside the building because they were tardy for band practice. He further told them to leave the campus.

Mr. Davis testified that after he instructed C.J. and the students to leave the campus, C.J. “said some words” and “kind of stood off to the side.” The remaining students immediately left the school’s campus without further incident. C.J. also initially walked off the campus. However, moments later, C.J. attempted to enter the same school building while Mr. Davis was speaking with a student’s parent.

Lieutenant Timothy Morris, a duty officer for the high school, witnessed Mr. Davis inform C.J. that he was not allowed in the building. Upon seeing C.J. attempt to enter the school again, Lieutenant Morris warned C.J. that he could not enter the school. C.J. tried to bypass Lieutenant Morris, at which point Lieutenant Morris stopped C.J. and again informed him he was not allowed in the school. When C.J. continued to try to enter the building, Lieutenant Morris attempted to arrest C.J. An oral altercation ensued between Lieutenant Morris and C.J.

Mr. Davis heard the altercation and walked over to Lieutenant Morris and C.J. In an attempt to gain control of the situation, Mr. Davis asked C.J. to calm down. However, the altercation between C.J. and Lieutenant Morris escalated into a physical struggle. C.J. was detained and arrested for criminal trespass.

Following the disposition hearing, the juvenile court judge adjudicated C.J. delinquent and imposed a six-month sentence, three months for each count, in the [^Department of Public Safety and Corrections. The juvenile court judge then suspended the sentence and placed C.J. on active probation for six months.

ASSIGNMENTS OF ERROR

C.J. argues that the juvenile court judge erred in finding beyond a reasonable doubt that C.J. committed the criminal offenses of criminal trespass and resisting an officer, by imposing an excessive punishment of three months for a first offense of criminal trespass, and in imposing an excessive sentence by ordering the sentences for criminal trespass and resisting an officer to be served consecutively.

STANDARD OF REVIEW

“The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense alleged beyond a reasonable doubt.” State in the Interest of KM., 10-0649, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Louisiana Supreme Court held that the Jackson standard is the clear standard of review for Louisiana appellate courts. State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. This standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 00-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

“Appellate review of juvenile cases extends to law and fact.” State in the Interest of T.T., 09-1201, p. 2 (La.App. 4 Cir. 1/13/10), 30 So.3d 220, 221. “Nevertheless, we recognize that the juvenile judge observes the conduct and 14demeanor of the witnesses and is thus in a far better position to determine credibility and weigh the evidence.” State in the Interest of D.L., 30,878, p. 3 (La.App. 2 Cir. 6/24/98), 715 So.2d 623, 626. Thus, we afford great deference to the judge’s findings of fact and to his determination of credibility of the witnesses and the weight to be given to their testimony. State in the Interest of J.N., 07-1229, p. 8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915. Therefore, in light of the record reviewed in its entirety, the court of appeals may not reverse the findings of the trial court unless manifestly erroneous or clearly wrong. See State in the Interest of D.R., 10-0405, p. 8 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 931.

CRIMINAL TRESPASS AND RESISTING AN OFFICER

In his first assignment of error, C.J. asserts that the trial court erred in finding that the elements of trespass were proven beyond a reasonable doubt because there is nothing to indicate C.J. entered O. Perry Walker High School without express, legal, or implied authorization.

La. R.S. 14:63, which defines criminal trespass, provides in pertinent part:

A. No person shall enter any structure, watercraft, or movable owned by another without express, legal, or implied authorization.
B. No person shall enter upon immovable property owned by another without express, legal, or implied authorization.
C. No person shall remain in or upon property, moveable, or immovable, owned by another without express, legal, or implied authorization.
D. It shall be an affirmative defense to a prosecution for a violation of Subsection A, B, or C of this Section, that the accused had express, legal, or implied authority to be in the movable or on the immovable property.

Mr. Davis testified that he informed C.J. that he could not enter the school’s administrative building for band practice due to his tardiness. Mr. Davis stated that the school has a policy, which precludes tardy students from attending band | ^practice. Mr. Davis further stated that he instructed C.J. to leave the campus.

Lieutenant Morris testified that he observed Mr. Davis inform C.J. that he was not allowed to enter the school. According to Lieutenant Morris, C.J. attempted to enter the school again, disregarding Mr. Davis’ orders. Lieutenant Morris stated that he informed C.J. that he was not allowed inside the building. C.J. ignored Lieutenant Morris and walked toward the school.

Through the corroborated testimony of both Mr. Davis and Lieutenant Morris, the State proved that C.J. entered and remained upon the school’s property without express, legal, or implied authorization from any person of authority at 0. Perry Walker High School.

C.J. claims he possessed implied consent to enter the school building, which he asserts is an affirmative defense to criminal trespass. However, C.J. did not assert this defense at the adjudication hearing, nor did he offer any defense witnesses or a case-in-chief during the hearing.

While C.J. was authorized to enter 0. Perry Walker High School during the normal school hours, he was no longer authorized once school hours concluded for the day. After being told that he could not enter the school to participate in band practice after school hours, he was in violation of R.S. La. 14:63 by remaining on the property without permission. As a result, the prosecution proved beyond a reasonable doubt that C.J. was not authorized to remain on the property pursuant to La. R.S. 14:63(C).

C.J. next contends that Lieutenant Morris did not have probable cause to arrest him for trespassing; thus, he could resist the unlawful arrest. We find to the contrary, Lieutenant Morris arrested C.J. after having sufficient probable cause to | (jknow that C.J. was trespassing at 0. Perry Walker High School, and C.J. unlawfully resisted the arrest.

La. R.S. 14:108(A) provides, in pertinent part:

Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.

In determining whether a defendant unlawfully resisted his arrest, it must be ascertained whether probable cause existed to arrest the defendant. State v. Ceaser, 02-3021, p. 4 (La.10/21/03), 859 So.2d 639, 643. “Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing the person to be arrest had committed a crime.” State v. Lindsay, 388 So.2d 781, 783 (La.1980).

The State proved that Lieutenant Morris had probable cause to arrest C.J. upon hearing Mr. Davis inform C.J. that he was not allowed on the property. Lieutenant Morris testified that he observed Mr. Davis tell C.J. to leave the school’s campus and that C.J. failed to comply with this order. When C.J. reentered the campus, Lieutenant Morris stopped C.J. as he walked toward the school building, and an oral altercation ensued. Lieutenant Morris then attempted to place C.J. under arrest for trespassing upon the school grounds. However, the oral altercation escalated into a physical altercation. With the uncontradicted testimony of Lieutenant Morris, the State clearly proved beyond a reasonable doubt that C.J. resisted Lieutenant Morris while making the lawful arrest when C.J. knew or had 17reason to know that Lieutenant Morris was acting in his official capacity.

Based on the record, we conclude that the juvenile court judge, as the rational trier of fact, found, after examining both the facts and the law, that the essential elements of the charged offenses were proven beyond a reasonable doubt. We cannot conclude that this decision was manifestly erroneous or clearly wrong. Accordingly, we affirm the judgment adjudicating C.J. delinquent for criminal trespass and resisting an officer.

EXCESSIVE PUNISHMENT

C.J. was found guilty for a first offense of criminal trespass. Thereafter, the juvenile court judge committed him to three months in the Department of Public Safety and Corrections. The juvenile court judge then suspended the sentence, along with the three-month sentence for resisting an officer, and placed C.J. on active probation for six months. C.J. contends that the juvenile court judge erred in sentencing C.J. to three months imprisonment for a first offense criminal trespass instead of the permitted thirty days provided by the statute.

La. R.S. 14:63(G) provides the penalties that shall be imposed for a violation of criminal trespass:

(1) For the first offense, the fine shall be not less than one hundred dollars and not more than five hundred dollars, or imprisonment for not more than thirty days, or both.
(2) For the second offense, the fine shall be not less than three hundred dollars and not more than seven hundred fifty dollars, or imprisonment for not more than ninety days, or both.
(8) For the third offense and all subsequent offenses, the fine shall be not less than five hundred dollars and not more than one thousand dollars, or imprisonment for not less than sixty days and not more than six months, or both, and forfeiture to the law enforcement authority of any property seized in connection with the violation.
(4) A person may be convicted of a second offense and |sany subsequent offenses regardless of whether any prior conviction involved the same structure, watercraft, movable or immovable property and regardless of the time sequence of the occurrence of the offenses. (Emphasis added).

La. Ch.C. art. 900(A) governs the duration of a misdemeanor-grade disposition as follows:

No judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the offense which forms the basis for the adjudication, except that if the child is placed on probation, the term of probation may extend for a maximum of two years, or for such longer period of time as the child is a full-time participant in a juvenile drug court program operated by a court of this state, if such participation has been ordered by the court as a condition of the child’s probation. The court shall give a child credit for time spent in secure detention prior to the imposition of disposition.

Therefore, for a first offense of criminal trespass the defendant shall be fined between $100 and $500 or imprisoned for not more than thirty days. La. R.S. 14:63(G)(1); La. Ch.C. art. 900(A). However, at the disposition hearing in this matter, the juvenile court judge elected to commit C.J. to three months in the Department of Public Safety and Corrections for the delinquency adjudication of criminal trespass. Since the maximum commitment issuable was thirty days, the juvenile court judge’s commitment in the Department of Public Safety and Corrections exceeded the maximum term of imprisonment forming the basis of the adjudication according to La. R.S. 14:53 and La. Ch.C. art. 900(A).

The juvenile court judge suspended C.J.’s sentence and ordered that he serve six months of active probation. The juvenile court judge’s order of six months of active probation was not excessive, as the term of probation may be up to two years when the delinquent child is placed on probation pursuant to La. Ch. C. art. 900.

LFor these reasons, C.J.’s commitment of three months for the trespass offense was excessive, while his six-month term of active probation was permissible. Thus, we remand to the juvenile court for the imposition of a commitment of time within the sentencing range, as provided in La. R.S. 14:63(G)(1).

EXCESSIVE SENTENCE

Lastly, C.J. asserts that the juvenile court judge erred in imposing an excessive sentence by ordering the sentences be served consecutively. He further claims that the juvenile court judge failed to state the considerations and factual basis for imposing a consecutive sentence.

The Louisiana Constitution prohibits the imposition of excessive punishments. La. Const, art. I, § 20. Under the general guidelines provided for juvenile cases in La. Ch.C. art. 901, the adjudicating judge should impose the least restrictive disposition consistent with the circumstances of the case, the needs of the child, and the best interest of society.

La. Ch.C. art. 901 provides, in pertinent part:

A. In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
B. The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.
C. Commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate if any of the following exists:
(1) There is an undue risk that during the period of a suspended commitment or probation the child will commit another crime.
110(2) The child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment.
(3) A lesser disposition will deprecate the seriousness of the child’s delinquent act.
(4) The delinquent act involved the illegal carrying, use, or possession of a firearm.
D. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of the disposition or probation:
(1) The child’s delinquent conduct neither caused nor threatened serious harm.
(2) The child did not contemplate that his delinquent conduct would cause or threaten serious harm.
(3) The child acted under strong provocation.
(4) There were substantial grounds tending to excuse or justify the child’s delinquent conduct, though failing to establish a defense.
(5) The victim of the child’s delinquent conduct induced or facilitated its commission.
(6) The child or his family has compensated or will compensate the victim of his delinquent conduct for the damage or injury that the victim sustained.
(7) The child has no history of prior delinquency or has led a law-abiding life for a substantial period of time before the commission of the instant delinquent act.
(8) The child’s delinquent conduct was the result of circumstances unlikely to recur.
(9) The character and attitudes of the child indicate that he is unlikely to commit another delinquent act or crime.
(10) The child is particularly likely to respond affirmatively to probationary treatment.
(11) The commitment of the child would entail excessive hardship to himself or his family.

When excessive commitment is complained of in a juvenile proceeding, “the record must be reviewed to determine whether the juvenile court judge imposed the least restrictive disposition consistent with the circumstances of the case, the child’s needs, and the best interest of society.” State in the Interest of T.S., 04-1111, p. 5 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 79. A juvenile court judge has |nmuch discretion, because of the special nature of the proceedings, but the juvenile court judge “must balance the needs of the child with the best interest of society.” Id., 04-1111, p. 5, 900 So.2d at 79-80.

Thus, the appellate court, in reviewing for excessivenéss, “must first ascertain whether the lower tribunal took cognizance” of the criteria set forth in La. Ch.C. art. 901 and “whether the record reflects an adequate factual basis for the commitment imposed.” State in the Interest of T.L., 28,564, p. 2 (La.App. 2 Cir. 5/8/96), 674 So.2d 1122, 1124. “Following that determination, the reviewing court need only explore for constitutional exces-siveness in light of the circumstances of the case and the background of the juvenile.” Id.

C.J. was adjudicated delinquent of two misdemeanor-grade acts arising out of the same incident. The Louisiana’s Children’s Code, however, is silent on the issue of imposing concurrent or consecutive sentences for multiple offenses. Under these circumstances, the Louisiana’s Children Code directs the court to proceed in accordance with the Louisiana Code of Criminal Procedure. La. Ch.C. art. 803.

Under the criminal code, La. C. Cr. P. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.

The Louisiana Supreme Court held “[a]s a general rule” that “sentences served for crimes arising out of a single course of conduct are served concurrently instead of consecutively.” State v. Duvio, 511 So.2d 821, 824 (La.App. 5th Cir.1987). This Court held that:

Louisiana law favors concurrent sentences; however, a 112trial court retains the discretion to impose consecutive sentences on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk that the defendant poses to the general safety of the community.

State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1087, 1040.

Furthermore, the Louisiana Supreme Court held that an “imposition of consecutive sentences for a conviction arising out of a single course of criminal conduct requires particular justification.” Duvio, 511 So.2d at 824. The juvenile court judge’s failure to comply with the guidelines does not necessarily require the case be remanded where the record adequately reflects that the trial court considered the guidelines. State in the Interest of K.H., 612 So.2d 1036, 1039 (La.App. 2nd Cir.1993). However, the Louisiana Children’s Code specifically provides that the juvenile court judge should state, for the record, the considerations taken into account in imposing a sentence. La. Ch.C. art. 903(A)(1).

In the present case, the juvenile court judge did not articulate her considerations of the guidelines or the factual basis to justify the imposition of a consecutive sentence. For these reasons, we remand for the juvenile court judge to sentence C.J. in accordance with La. Ch.C. art. 901.

DECREE

The judgment of the juvenile court judge finding C.J. guilty of criminal trespass and resisting an officer is affirmed. The matter is remanded for sentencing in accordance with La. R.S. 14:63(G)(1) and La. Ch.C. art. 901.

AFFIRMED IN PART; REMANDED IN PART.

      . As C.J. is a juvenile, he will be referred to by his initials. La. C.Ch. art. 412.