author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. David J. STEWART.
    No. 10-KA-389.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Virginia Skaer, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    David Stewart, Angola, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

| ¡¡In this criminal matter the defendant/appellant, David J. Stewart (“Stewart”), appeals his adjudication as a multiple offender and his resulting sentence. We affirm.

Stewart was charged in a bill of information with first degree robbery in violation of La. R.S. 14:64.1, to which he entered a plea of not guilty. Stewart proceeded to a jury trial that resulted in a conviction on the charge. Subsequently, the trial court sentenced Stewart to imprisonment at hard labor for twenty-five years without benefit of parole, probation, or suspension of sentence. This Court affirmed Stewart’s conviction and sentence on May 26, 2009.

After the appeal was taken, the State filed a multiple bill asserting that Stewart was a fourth felony offender. Stewart denied those allegations. The State orally amended the multiple bill to allege that Stewart was a third felony offender. On June 12, 2009, a multiple bill hearing was held, after which the trial court found Stewart to be a third felony offender. Subsequently, the trial court |.^sentenced Stewart under the multiple bill statute to life imprisonment without benefit of parole, probation, or suspension of sentence.

On August 21, 2009, Stewart filed a motion for appeal that was denied as untimely on September 1, 2009. In his order denying the motion, the trial judge advised Stewart to file an application for post-conviction relief (APCR) seeking an out-of-time appeal. Although there is no indication in the record that Stewart filed an application seeking that relief, on December 2, 2009, the trial judge granted Stewart an out-of-time appeal. The order granting the appeal, in pertinent part, provides: “Considering the above and foregoing, it is ordered that the Defendant, David Stewart, be granted an appeal[.]” Thus, it appears that Stewart filed an APCR that for some reason is not in the record.

Normally, an apparently untimely appeal would be dismissed to allow a defendant to properly seek reinstatement of appeal rights by an APCR. However, under the circumstances of the matter before us, we will consider the merits of the appeal. We find that, because the State did not object to any procedural irregularities in the ordering of the out-of-time appeal, and the trial court granted the appeal appointing the Louisiana Appellate Project, a dismissal of this appeal to allow Stewart time to properly seek reinstatement of appeal rights would only prolong the delay without serving any useful purpose. As such, we find this appeal is properly before this Court.

FACTS

The facts of the underlying conviction on the charge of first degree robbery involve the robbery of the Tastee Donuts on the corner of Transcontinental Drive | 4and West Esplanade Avenue in Metairie and were fully set forth in our previous opinion.

APPELLATE COUNSEL’S BRIEF

Under the procedure set forth in State v. Benjamin appointed appellate counsel has filed a brief pursuant to Anders v. California, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal and has filed a request to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he/she finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by a brief referring to anything in the record that might arguably support the appeal so as to provide the reviewing court with a basis for determining whether appointed counsel has fully performed his/ her duty to support their clients’ appeals to the best of their ability and to assist the reviewing court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.

The Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel has cast an advocate’s eye over the trial record and | ¿considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel.

Stewart’s appellate counsel noted that the documents presented were certified copies of arrest and conviction records of Stewart’s two prior convictions, with pertinent dates, which showed that all of the convictions and arrests had fingerprints which matched those of Stewart. She also noted that there were less than ten years between the expiration of the maximum sentence for each previous felony conviction and the commission of each subsequent felony. Thus, appellate counsel concluded that the issue of the sufficiency of the evidence did not present an arguable issue for appeal.

Appellate counsel pointed out that the defense objected to the use of one of the prior convictions because the social security number on the arrest card was one number off from the social security number on the certified copy of the conviction. Nevertheless, she noted that the trial judge overruled that objection, finding that all lñother identifiers for that arrest and conviction matched. As such, appellate counsel maintained that that objection did not present an arguable issue for appeal. Finally, she stated that, because the underlying offense, first degree robbery, was a crime of violence under La. R.S. 14:2(B), and the two previous felonies were a direct state violation and an equivalent felony violation of the Uniform Controlled Dangerous Substances Law, a life sentence without benefit of parole, probation, or suspension of sentence was mandated by the multiple offender statute.

In her letter, which is attached to her motion to withdraw, appellate counsel notified Stewart that, after a thorough review of the record in his case, she did not find any appealable issues. Additionally, this Court sent Stewart a letter by certified mail informing him that an Anders brief had been filed and that he had until July 10, 2010, to file a pro se supplemental brief.

PRO SE BRIEF

Stewart subsequently filed a supplemental brief presenting sixteen arguments which constitute two assignments of error for our review. Most of the arguments relate to Stewart’s assertion that his motion to recuse the trial judge and vacate his sentence should have been granted. Stewart also argues that there was insufficient evidence presented by the State to support the finding that he is a third felony offender.

Stewart argues that Judge Lee Faulkner erred by denying his Motion to Recuse Judge Donald Rowan and his Motion to Vacate the Sentence. Stewart contends that Judge Rowan should have recused himself from the multiple bill hearing due to an appearance of impropriety and a conflict of interest, because Judge Rowan worked at the Jefferson Parish District Attorney’s Office at the time the offense was committed on January 3, 2007. Stewart further contends that |7Judge Rowan should not have presided over the multiple bill hearing because a stay was pending.

In support of his argument, Stewart cites La.C.Cr.P. arts. 671(4) and 674. Stewart argues that Judge Rowan was unable to perform his judicial duties without being biased, impartial, and prejudiced on the basis that Judge Rowan was employed with the district attorney’s office at the time the crime was committed. Stewart further argues that, because Judge Rowan presided over his trial in violation of the recusal statute and presided over his case, this oversight should allow Stewart to have his sentence vacated to rectify the error.

La.C.Cr.P. art. 671 sets forth the grounds upon which a judge may be re-cused in a criminal case. The pertinent subparts of that article provide:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

La.C.Cr.P. art. 674 provides the procedure for recusation of the trial judge:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.

|SA trial judge is presumed to be impartial, and the burden is on the party seeking to recuse a judge to prove otherwise. The grounds for recusal based on bias or prejudice must amount to more than conelusory allegations. The Louisiana Supreme Court does not require the disqualification of a judge solely on the basis of his or her coincidental employment in the district attorney’s office at the time the defendant was charged in a case over which the judge had no supervision or control before assuming the bench. Further, the Louisiana Supreme Court has declined to treat assistant district attorneys within the same office as an “association” of lawyers within a law firm for purposes of La.C.Cr.P. art. 671 A(S).

At the recusal hearing, Judge Rowan testified that he was employed by the district attorney’s office on January 29, 2007. He explained that, when he left the district attorney’s office on July 13, 2007 to run for judge, he did not know what was occurring there while he was gone. Judge Rowan farther testified that he was on leave from the district attorney’s office on October 23 through October 25, 2007, and he was not getting paid during that time. Judge Rowan maintained that he did not participate in any way in the arrest of Stewart or in the investigation of this case. Judge Rowan asserted that he did not participate in any way with the prosecution of this case. He indicated that he did not have any bias toward Stewart or any prejudice against him, and he testified that he could be fair in his sentencing and in the multiple bill hearing. Judge Rowan also testified that he did not preside over the original trial and that he had to read the transcript of the trial to hear the motion for new trial.

| (After hearing the testimony of Judge Rowan and ascertaining that neither the State nor Stewart had any argument, Judge Faulkner denied the Motion to Re-cuse and the Motion to Vacate Sentence without providing reasons. Stewart moved for a stay to allow him time to seek review of the ruling by this Court. Judge Faulkner allowed Stewart to file pleadings to this Court to review the rulings, but he denied Stewart’s request for a stay.

No application for writs of review was filed in this Court. Nevertheless, approximately two-and-one-half months later, on June 12, 2009, when Judge Rowan presided over Stewart’s multiple bill hearing, Stewart objected to the proceedings, asserting that his case was still in the Fifth Circuit. Judge Rowan said he had not been stayed and went forward with the hearing. Defense counsel noted his objection to the judge’s ruling. The multiple bill hearing was subsequently held, after which Judge Rowan found Stewart to be a third felony offender. Judge Rowan then sentenced Stewart to life imprisonment.

Given the applicable law and the facts in this case, we find no merit in Stewart’s argument that his motion to recuse and vacate the sentence was improperly denied. Further, there is no indication that Stewart filed a writ of review in this Court or requested a stay order. Given Judge Rowan’s disclaimer of any actual prejudice against either the State or Stewart, and the fact that Judge Rowan did not have any direct or supervisory role as an assistant district attorney in the prosecution of relator, recusal is not required by law.

Stewart also challenges the sufficiency of evidence presented by the State to show that he is a multiple offender.

The record shows that the State filed a multiple bill alleging Stewart to be a fourth felony offender. However, on June 12, 2009, just before the multiple bill | ^hearing, the State amended the multiple bill to allege that Stewart was a third felony offender, rather than a fourth felony offender.

In the amended multiple bill, the State alleged that, on October 25, 2007, Stewart was convicted of first degree robbery in violation of La. R.S. 14:64.1 (the underlying conviction). The State also alleged that Stewart had two predicate convictions: (1) on October 21, 2002, Stewart pled guilty to possession with intent to distribute cocaine in violation of La. R.S. 40:967(B)(1) in case number 418-715 in Orleans Parish and was sentenced on that same date to serve five years at hard labor in the Department of Corrections; and (2) Stewart pled guilty to distribution of cocaine under Title 21.841B1C-NAS in case number 89-CR00519 in the U.S. Eastern District Court and was sentenced on March 21, 1990 to twenty-four months in the Bureau of Prisons with sixty months released supervision.

To prove a defendant is an habitual offender, the State must initially prove the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. When the State relies on a prior conviction that is based on a guilty plea in proving defendant’s multiple offender status, and defendant denies the multiple bill’s allegations, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken.

After the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. If defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. This final burden can be met if the State produces a “perfect transcript” articulating | nthe Boy-kin colloquy between the defendant and the trial judge or any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary.

Stewart maintains that the fingerprint card with an arrest date of November 4, 2000, did not sufficiently link him with the conviction from Orleans Parish Criminal Court, Division “I.” Stewart further argues that the fingerprint card does not have an item number to coincide with the conviction used in the multiple bill. He also asserts that the fingerprint card is for an arrest for possession of cocaine and not an amended charge of possession with intent to distribute cocaine. Stewart notes that the fingerprint card does not contain his correct social security number.

Stewart further argues that the evidence was insufficient to prove he was a multiple offender because the State’s expert testified that there was no name in State’s Exhibit 5, a certified “pen-pack” from the Department of Corrections, to show that it contained his fingerprints. He contends that no conviction was attached to the pen-pack and, therefore, there was no proof that the fingerprints on the card in the pen-pack were his. Stewart points out that the pen-pack contained other convictions not used at the multiple bill hearing. He asserts that there was | ^nothing on the fingerprint card in State’s Exhibit 5 to link his fingerprints to State’s Exhibit 2.

At the multiple bill hearing, Aischa Prudhomme, a latent fingerprint expert, testified that she compared Stewart’s fingerprints from State’s Exhibit 2 (the fingerprint card obtained from Stewart that day) to the fingerprints from State’s Exhibit 3 (a certified copy of a fingerprint card from the New Orleans Police Department Custodian of Records with a date of arrest of November 4, 2000) and determined that they matched. The State also introduced into evidence State’s Exhibit 4, the certified conviction from New Orleans, which contained the bill of information pertaining to the arrest of Stewart on November 4, 2000; the guilty plea form; the docket master; the October 21, 2002 minute entry; and the arrest register.

Ms. Prudhomme compared Stewart’s fingerprints from State’s Exhibit 2 to the fingerprints from State’s Exhibit 5 (the pen pack) and determined that they matched. She noted that the page containing the fingerprints in State’s Exhibit 5 did not have Stewart’s name on it but that page was attached to the pen-pack. She then compared Stewart’s fingerprints from State’s Exhibit 3 to those in State’s Exhibit 5 and found that they matched. Ms. Prudhomme explained that Stewart had a distinctive fingerprint, in that he had a predominant scar located on his right index finger. She testified that she noticed that distinction in State’s Exhibits 2, 3, and 5. Ms. Prudhomme further testified that her findings that the fingerprints in State’s Exhibit 2 matched those in State’s Exhibits 3 and 5 were verified by Chad Pitfield, who was also a latent print examiner.

With respect to the federal conviction used as a predicate offense, Stewart argues that the federal probation officer’s identification of him in court was unduly suggestive because no one else was in the courtroom and because the probation | lsofficer had not seen him in over sixteen years. Therefore, Stewart argues that the identification should have been suppressed. Stewart also argues that, at the very least, he would be a second felony offender and not a third felony offender and, therefore, not eligible to receive a life sentence, because the federal conviction was not punishable by ten years or more as required by the multiple bill statute.

After Ms. Prudhomme completed her testimony, the State called Christy Waters as a witness. Ms. Waters testified that she was employed by the U.S. Probation Office in the Eastern District of Louisiana, and she was Stewart’s probation officer in case number 89-519. She identified Stewart in court, as she had an independent recollection of him. Ms. Waters testified that Stewart was convicted of distribution of cocaine and was sentenced on March 21, 1990, to twenty-four months in the Bureau of Prisons followed by a five-year term of supervised release. She explained that Stewart’s parole was revoked on April 24, 1996, and Stewart received a seven-month sentence. Ms. Waters reviewed Stewart’s federal conviction packet (State’s Exhibit 6) and testified that the person she supervised was Stewart. She asserted that Stewart’s date of birth was January 9, 1964, and she confirmed his social security number.

Following the testimony of Ms. Waters, defense counsel argued that the evidence was insufficient to prove Stewart was a third felony offender. He contended that the State did not properly link State’s Exhibit 3 (the fingerprint card with an arrest date of November 4, 2000) to the New Orleans conviction (State’s Exhibit 4), because there was no item number or corresponding charge on State’s Exhibit 3 and because State’s Exhibit 3 had a different social security number than |14the one found in State’s Exhibit 5. Defense counsel also moved to suppress the identification made by the federal probation officer due to the unduly suggestive atmosphere, given that Stewart was the only individual present, and it had been fourteen years since that officer had likely last seen Stewart.

The prosecutor responded that, even though the social security number was one number off, the date of arrest was the same. She argued the expert testified that the fingerprints from State’s Exhibits 2, 3, and 5 all matched, and defense counsel had stipulated to the witness’ expertise. The prosecutor also stated that she was not required to present other “David Stew-arts” for the identification procedure.

After hearing arguments of counsel, the trial judge reviewed the documents and found Stewart to be a third felony offender based on State’s Exhibits 1 through 6. He noted that State’s Exhibit 3, the certified arrest register, was listed in State’s Exhibit 5, the pen-pack. The trial judge also noted that the same “A.F.I.S. Attention to number” was found in both State’s Exhibit 3 and State’s Exhibit 5. He concluded that the third felony, first degree robbery, was a crime of violence, and the two predicate convictions were violations of the Uniform Controlled Dangerous Substances law punishable by imprisonment for ten years or more. As such, the trial judge sentenced Stewart to the mandatory sentence of life imprisonment "without benefit of parole, probation, or suspension of sentence.

Defense counsel noted his objection to the life sentence. He also stated that the trial judge had brought up an interesting point at the bench, namely, that there was no proof before the court that the federal charge had a penalty of more than ten years in prison. Defense counsel said he should have objected earlier and that the State had to prove that the range of sentence was ten years. Based on that argument, he said he would ask the trial judge to reconsider the sentence, or he could move for a new trial.

11sThe State responded that, as they had discussed at the bench, State law would apply. The trial judge agreed, noting that the State law for the federal conviction carried with it a two to thirty-year penalty, with the first two years to be served without benefit of parole, probation, or suspension of sentence. The trial judge told defense counsel he would allow him to file a motion to reconsider the ruling, but the trial judge said he did not believe he was wrong.

In the instant case, Stewart’s identity was established at the multiple bill hearing by a fingerprint expert with respect to the prior conviction from Orleans Parish. Additionally, State’s Exhibit 3 was also linked to State’s Exhibit 5, the pen-pack, by the “APIS ATN” number, among other things, as noted by the trial judge.

This Court has held that testimony comparing a defendant’s current fingerprints with fingerprints found on prior arrest records is sufficient to prove that the defendant is the person convicted of a prior felony. This Court has also found sufficient linkage where the State connects the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers.

With respect to the federal conviction, Stewart’s identity was established at the multiple bill hearing by his former probation officer, who testified that Stewart was the person who was convicted of distribution of cocaine and sentenced on March 21, 1990. Additionally, the State’s exhibits show that Stewart was represented by counsel at both prior pleas.

l1fiStewart then had the burden to prove by affirmative evidence an infringement of his rights or of a procedural irregularity. At the multiple bill hearing and on appeal, Stewart argued that the evidence was insufficient to prove that he was a third felony offender because the State did not sufficiently link his current fingerprints to the prior Orleans Parish conviction. We disagree for reasons noted by the trial judge.

Stewart also argued at the hearing and on appeal that the evidence was insufficient to support the sentence of mandatory life in prison because there was no proof at the hearing that the prior conviction for distribution of cocaine in federal court was punishable by imprisonment for ten years or more.

La. R.S. 15:529.1 provides that, if the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in La. R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In the matter before us, Stewart’s underlying conviction was for first degree robbery, which is defined as a crime of violence under La. R.S. 14:2(B)(22). The prior conviction from Orleans Parish, possession with intent to distribute cocaine, is currently punishable by imprisonment for two to thirty years. La. R.S. 40:967(B)(4)(b). Stewart is correct in that there was no evidence at the hearing as |17to the penalty for his prior federal conviction for distribution of cocaine. However, the analogous conduct under Louisiana law, distribution of cocaine, would constitute a felony punishable by a sentence of ten years or more. La. R.S. 40:967(B)(4)(b). That statute requires Louisiana courts to determine the analogous state crime according to the nature of the act involved, not the penalty provided for the offense in the foreign jurisdiction.

Since Stewart’s third felony was a crime of violence, and the two prior felonies were violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, we find the trial judge did not error in sentencing Stewart to life imprisonment as a third felony offender.

Finally, Stewart argued at the multiple bill hearing and on appeal that the federal conviction should not have been used as a predicate because the federal probation officer’s identification of him in court was unduly suggestive as no one else was in the courtroom and the probation officer had not seen him in a long time. Stewart contended that the identification should have been suppressed.

However, Judge Rowan listened to the testimony and obviously found the federal probation officer’s identification of Stewart to be credible. The credibility of a witness 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 witnesses will not be reweighed on appeal.

In light of the foregoing, we find that Stewart failed to present affirmative evidence of any infringement on his rights or of a procedural irregularity and, therefore, the burden never shifted to the State to prove the constitutionality of the predicate pleas. Consequently, the trial court did not err in adjudicating Stewart a h «third felony offender and sentencing him to life imprisonment without benefit of parole, probation, or suspension of sentence.

An independent review of the record and our discussion of the pro se assignments of error support appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

Although appellate counsel did not discuss in depth the issues raised by Stewart’s counsel at the multiple bill hearing or the issues raised in Stewart’s pro se assignment of error number two, we still find that appellate counsel’s brief adequately demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Therefore, appellate counsel’s motion to withdraw as attorney of record is hereby granted.

ERRORS PATENT

Stewart requests an error patent review of the multiple offender proceeding. We have conducted a review of the record for errors patent and find several. First, we note that the multiple bill contains a typographical error in that it references the incorrect statute number for first degree robbery (14:65.1 instead of 14:64.1). However, there is no indication that Stewart was prejudiced by the error since the multiple bill contained the correct case number, section of court, name of offense, and date of Stewart’s underlying conviction. Thus, we find that the error in the statutory citation of the underlying conviction was harmless.

We also note that the record does not reflect Stewart was advised of his rights prior to the multiple bill hearing. La. R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the information, his right to a | shearing, and his right to remain silent. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when, as here, the multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Although Stewart did not remain silent at the hearing, he did not say anything prejudicial to his case. Therefore, we find that the trial court’s failure to advise Stewart of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

Of greater concern is the fact that the transcript does not indicate that the trial judge vacated the original sentence prior to sentencing Stewart under the multiple offender statute. However, the commitment shows that the trial judge vacated the original sentence.

The Louisiana Supreme Court found that an enhanced sentence in such circumstances was valid:

To the extent that the ... commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

Accordingly, this issue requires no corrective action.

Upon further review of the commitment, we find that it indicates that Stewart was sentenced to “imprisonment at hard labor for a term of life in prison.” However, the transcript shows the trial judge failed to specify that the life sentence was to be served at “hard labor.” The transcript prevails.

| 2qA court must impose a determinate sentence. 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. Because the underlying statute, La. R.S. 14:64.1, required 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.

Additionally, it is noted that the Louisiana Legislature amended La. R.S. 15:529.1(G) in the 2010 Regular Session (Act No. 69), effective date, August 15, 2010, to provide that any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence. Therefore, none of the errors patent found on review require correction.

For reasons set forth in this opinion, we affirm Stewart’s conviction and sentence and grant defense counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . State v. Stewart, 08-1265 (La.App. 5 Cir. 5/26/09), 15 So.3d 276, writ denied, 09-1407 (La.3/5/10), 28 So.3d 1003.

      . See, State v. Babineaux, 08-705 (La.App. 5 Cir. 1/13/09), 8 So.3d 621.

      . State v. Stewart, 15 So.3d at 278-80.

      . 573 So.2d 528, 530 (La.App. 4 Cir. 1990). The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam).

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . State v. Jyles, 704 So.2d at 241.

      . State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

        .Id.

        .State v. Strickland, 04-843 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 893, writ denied, 05-820 (La.6/17/05), 904 So.2d 683.

        .State v. Galliano, 05-962 (La.App. 5 Cir. 8/29/06), 945 So.2d 701, 727-28, writ denied, 06-2367 (La.4/27/07), 955 So.2d 682.

        .State v. Connolly, 06-540 (La.6/2/06), 930 So.2d 951, 954.

      . Id.

      . State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88.

      . State v. Shelton, 621 So.2d 769, 779-80 (La. 1993).

      . Id. at 779.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The three core rights enumerated in Boykin are "(1) right to trial by jury, (2) defendant’s privilege against self-incrimination, and (3) his right to confront his accusers.” State v. Robinson, 02-1253 (La.App. 5 Cir. 4/8/03), 846 So.2d 76, 85, writ denied, 03-1361 (La. 11/26/03), 860 So.2d 1131.

      . State v. Collins, 04-255 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1154, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62.

      . Id.

      . The "pen-pack” contained the records of the Louisiana Department of Public Safety and Corrections regarding defendant, which included the master record; time computation and jail credits; release date computation information; conduct report; good time; the bill of information for the underlying conviction; the multiple bill in the instant case; an August 15, 2008 minute entry for the underlying offense; criminal history from all jurisdictions; psychology department report; risk need assessment; two fingerprint cards; offender description sheet; rap sheet; transfer record; diminution of sentence; bill of information pertaining to offenses committed on December 29, 2001; a May 22, 2003 minute entry; a bill of information pertaining to the November 4, 2000 arrest for possession of cocaine; an October 21, 2002 minute entry; and an amended October 21, 2002 minute entry.

      . State's Exhibit 6 contained a federal court complaint alleging that, on October 5, 1989, Stewart distributed cocaine; a two-count indictment pertaining to Stewart; a January 26, 1990 letter from the U.S. Attorney to Judge Robert Collins; Statement of Reasons for Imposing Sentence; a January 10, 1991 judgment; an April 24, 1996 judgment and order revoking supervised release; a March 21, 1990 transcript; and a January 26, 1990 transcript.

      . State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 926, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477.

      . State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 33, writ denied, 04-2082 (La. 1/7/05), 891 So.2d 669.

      . It is noted that La. R.S. 14:2 was amended by the Louisiana Legislature in the 2010 Regular Session; however, those amendments do not change the analysis herein.

      .It is noted that La. R.S. 15:529.1 was amended by the Louisiana Legislature in the 2010 Regular Session; however, those amendments do not change the analysis herein.

      . It is noted that, in November of 2000, when the offense was committed, the punishment was imprisonment for five to thirty years.

      . See, State v. Carouthers, 618 So.2d 880, 882 (La. 1993).

        .State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582.

      . Id. at 582-83.

      . State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309 (per curiam). See also, State v. Simmons, 02-960 (La.App. 5 Cir. 1/28/03), 839 So.2d 239, 245, writ denied, 03-841 (La. 10/31/03), 857 So.2d 473.

      . State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . La.C.Cr.P. art. 879.

      . State v. Norman, 05-794 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La. 1/12/07), 948 So.2d 145.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Calvin Dale MILLER v. VILLAGE OF HORNBECK, et al.
    No. 10-1539.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      James Lynn Davis, Many, LA, for Plain-tiffiAppellee Calvin Dale Miller.
    John Mark Miller, Stamey & Miller, LLC, Natchitoches, LA, for Defendants/Appellants Village of Hornbeck, Kenneth Hatchett, Jr., Andy Mitchell.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe defendants, Village of Hornbeck, Kenneth Hatchett, Jr., and Andy Mitchell, appeal the trial court’s judgment awarding the plaintiff, Calvin Miller, $25,000 in damages for violating his civil liberties and personal injury following a traffic stop for speeding. Miller answered the appeal, arguing that the damage award was abusively low and requesting an award for frivolous appeal. For the following reasons, we affirm the trial court’s judgment, deny any increase in general damages, and deny damages for frivolous appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Miller filed suit in Sabine Parish in June 2008 claiming that he was severely injured and unreasonably humiliated following a traffic stop on July 13, 2007, conducted by Officers Hatchett and Mitchell of the Village of Hornbeck Police Department. Miller, who was sixty-seven years old at the time of this incident, was driving his 18-wheeler log truck on his way home to Florien, Louisiana when he was stopped at approximately 5:30 p.m. as he was traveling north on U.S. Highway 171 leaving Hornbeck. Miller was arrested for resisting arrest and transported to the Vernon Parish jail. After his wife posted bond, Miller went to the emergency room where x-rays were taken of both of his wrists. A 4.0 by 2.5 centimeter abrasion to his head with swelling and bruising was noted on his chart.

Defendants filed a declinatory exception of improper venue arguing that venue was not proper in Sabine Parish. Following a hearing on the exception, it was denied. Defendants filed a motion for summary judgment in May 2010, which was subsequently denied following a hearing. Miller filed a first amending and supplemental petition in June 2010. A bench trial was held in July 2010. The trial |2court found defendants 100% at fault for Miller’s injuries and found that Officers Hatchett and Mitchell used excessive force. The trial court awarded Miller $25,000 in damages. The defendants now appeal and assign as error:

1. The trial court erred as a matter of law by failing to determine whether the defendant officers were entitled to qualified immunity prior to finding that Plaintiffs civil liberties were violated as a result of an unlawful traffic stop, arrest and excessive force.
2. The trial court erred as a matter of law by failing to apply the correct legal standard of “reasonable suspicion” for a traffic stop and further, the trial court was clearly wrong in its factual determination that Plaintiffs civil liberties were violated as a result of an unlawful traffic stop.
3. The trial court erred as a matter of law by failing to apply the correct legal standard of “probable cause” for an arrest and further, the trial court was clearly wrong in its factual determination that Plaintiffs civil liberties were violated as a result of an unlawful arrest.
4. The trial court erred as a matter of law by failing to determine whether the defendant officers were entitled to qualified immunity prior to finding that Plaintiffs civil liberties were violated through excessive force.
5. The trial court was clearly wrong regarding its factual determination that the defendant officers used excessive force given Plaintiffs actions of defiance, refusal to cooperate, resisting arrest and acts of aggression as perceived from an on-scene perspective.
6. Alternatively, the trial court erred as a matter of law by failing to determine comparative liability in its assessment of excessive force and further, the trial court was clearly wrong in its factual determination that Plaintiff was zero (0%) percent at fault.
7.Alternatively, the trial court was clearly wrong in awarding an excessive amount of general damages in the amount of $25,000.00

Miller answered the appeal and asserts that the general damages award was abusively low and that he is entitled to damages for frivolous appeal.

UDISCUSSION

Qualified Immunity and Excessive Force

Defendants argue that the trial court legally erred in “ignoring and failing to apply qualified immunity in its assessment of liability.” Defendants further argue that the officers were entitled to qualified immunity “prior to finding that plaintiffs civil liberties were violated as the result of an alleged unlawful traffic stop, unlawful arrest and excessive force.” Our review of the record indicates that the trial court did not expressly discuss the issue of qualified immunity, but, implicitly, it did not find the officers were entitled to qualified immunity.

Louisiana Revised Statute 9:2798.1 governs. Officers Hatchett and Mitchell were clearly officers of a public entity as contemplated by the statute. However, the immunity provided for is not applicable to the officers if their actions ^constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” La.R.S. 9:2798.1(0(2).

Government officials are entitled to qualified immunity when performing discretionary functions. McManus v. State of La., Dep’t of Wildlife and Fisheries, 09-1158 (La.App. 3 Cir. 3/10/10), 33 So.3d 412, unit denied, 10-816 (La.6/18/10), 38 So.3d 323; Jackson v. State of La., Dep’t of Corrs., 00-2882 (La.5/15/01), 785 So.2d 803. The trier of fact determines whether, under the facts of the particular case, the officers are entitled to immunity. McManus, 33 So.3d 412. Although the trial court did not discuss La.R.S. 9:2798.1 in its reasons, it did make the following findings:

1. Officers used excessive force without justification on Plaintiff during the subject routine traffic stop and are one hundred percent (100%) at fault for all of Plaintiffs injuries,
2. Said excessive force used by Officers Hatchett and Mitchell was the legal cause of Plaintiffs damages,
3. Plaintiff is zero percent (0%) at fault for his injuries,
4. Plaintiff, when taken down by the officers, tried keeping his head and glasses from the roadway. That when the Plaintiff exclaimed that the officers were hurting him, one of the two officers intentionally pushed his head into the concrete alert line of the roadway.

Based upon these findings, we conclude that the trial court’s basis for not granting immunity in this case was based upon La. R.S. 9:2798.1(C)(2). The record before us contains evidence that would allow a reasonable factfinder to conclude that the officers’ actions were “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” Id.

Apart from qualified immunity, Defendants’ first five assignments of error essentially boil down to whether the trial court erred in finding that the officers used excessive force. Defendants argue that the traffic stop and arrest were lawful. _|¿The trial court did state in its written reasons for judgment that the defendants are liable to Miller for “all damages arising from said unlawful traffic stop and arrest.” The issues of whether the stop or arrest were lawful are moot. Even assuming that the trial court erred in so finding, we find no manifest error in its finding that the officers used excessive force in effectuating the arrest. An officer “may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.” La. Code Crim.P. art. 220. Whether the officers had reasonable suspicion to detain Miller or probable cause to arrest him is of no moment. It is clear that regardless of whether reasonable suspicion exists to stop or probable cause exists to detain, “the use of excessive force in effecting the arrest becomes an actionable claim for damages.” Zerbe v. Town of Carencro, 04-422, p. 7 (La.App. 3 Cir. 10/6/04), 884 So.2d 1224, 1228, writs denied, 04-2719, 04-2735 (La.1/14/05), 889 So.2d 270, 271, and citing Penn v. St. Tammany Sheriff’s Office, 02-893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157, and Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); see also Patton v. Self, 06-1029 (La.App. 3 Cir. 3/7/07), 952 So.2d 874. “Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages.” Penn v. St. Tammany Parish Sheriff’s Office, 843 So.2d at 1161. We have addressed the standard of review in such cases:

A determination of excessive or unnecessary force is a finding of fact which may not be disturbed unless: (1) the record evidence does not furnish a sufficient basis for the finding; .or (2) that finding is clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Saucier v. Players Lake Charles, LLC, 99-1196 (La.App. 3 Cir. 12/22/99), 751 So.2d 312. In Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), the supreme court set forth several factors to consider in making a determination of whether the force used by a police officer to effect an arrest was reasonable under the circumstances. The factors include: (1) the known character of the arrestee; (2) the risks and dangers faced by | fithe officer; (3) the nature of the offense or behavior involved; (4) the chance of escape if the particular means are not employed; (5) the existence of alternative methods of arrest or subduing the arrestee; (6) the physical size, strength or weaponry of the officers as compared to that of the arrestee; and (7) the exigencies of the moment.

Patton, 952 So.2d 874, 878.

Miller testified that on the date of the incident he was sixty-seven years old, five foot six inches tall, and weighed 165 pounds. He stated that he buys, cuts, and hauls timber in his 18-wheeler and has been doing so since he was twenty-five years old. Miller testified that he was northbound on U.S. Highway 171, at approximately 5:15 p.m., headed to his home, which was approximately nine miles from where he was pulled over. Miller said that he knew the posted speed limit in Horn-beck was forty miles per hour because he has driven through Hornbeck for forty-seven years. Miller stated that he began picking up speed once he was “right at” the fifty-five mile per hour sign. He testified that he was not exceeding the posted speed limit.

After being pulled over, Miller said that he got out of his truck and asked the officers what the problem was. He said that he told the officers that when he sees the 55-mile-per-hour sign in plain sight he begins picking up his speed and that the officer responded that he “lacked about 100 feet,” meaning that he was one hundred feet premature in speeding up his vehicle. Next, Miller stated that the officer told him to produce his license and insurance certificate. Miller testified:

I told him I didn’t believe. I said I wasn’t speeding, and uh, his next words were — everything was fine until then— his next words were, Officer Hatchett said I can see right now you’re going to need an attitude adjustment. And that’s when he made me mad.
Q. Then what happened?
A. Well, after some talking — I did punch my right fist in my left hand, but |7I never was aggressive to either officer. I know better than that. But it did make me mad. A couple of young men telling a sixty-seven year old man that I need an attitude — there wasn’t nothing wrong with my attitude at the time that we stopped, but when he said I needed an attitude adjustment, yeah, it made me mad. And, uh, and then I told him [I] was going to go home — go get in my truck and go home, and I turned my back on them and that’s when they bound me on the concrete and I told them they were hurting me. And one of them then pushed my head down into the alert line and busted my head, and, uh, then they put the handcuffs on me. They put me in the car and I told them they needed to loosen my handcuffs on the right, it was hurting me. And Officer Hatchett said it will stay like it is, and uh, that’s what happened.

Thereafter, Miller testified that he was taken to jail. After his wife posted bond for him, Miller went to Byrd Regional Hospital. Photographs taken by hospital staff show a gash on Miller’s head with blood running down his forehead and blood around his wrist. He stated that x-rays were taken of his arm and wrist. He further testified that he was treated by his family physician, Dr. Jack Corley, on three occasions in July and August 2007 for his injuries. He testified that all of his injuries were resolved by the time of trial but that he was sore and hurting all over for a couple of weeks following the incident and that he missed two weeks of work. Miller said that he was embarrassed “beyond belief’ over this incident and that he has never been to jail or been handcuffed before. He stated that the incident became common knowledge in the area and that he was teased about it by friends and even at his church.

Miller admitted refusing to produce his driver’s license, registration, and proof of insurance. He further admitted telling the officers “It’s not happening today.” He admitted that he intended to leave the traffic stop because of the way he was treated by the officers. Miller stated that he made no aggressive moves toward the officers, but he admitted that he did not have any respect for the officers, whom he referred to as “smart-alecks.”

IsMiller’s wife, Janet, testified that when she went to pick her husband up at the police station she inquired of the two officers what had happened and that Officer Hatchett responded that Miller had turned his back and “You don’t turn your back on a cop.” She further testified that Officer Mitchell showed her his skinned knee as a result of the incident. Photographs that Janet took about a week following the incident were introduced into evidence. They show moderate to severe bruising on Miller’s arm. Janet also took some pictures at trial of her husband standing next to Officers Hatchett and Mitchell. Both officers appear young and physically fit, with Officer Hatchett towering over Miller while Officer Mitchell is only slightly taller than Miller.

Officer Andrew Mitchell testified that he was nineteen years old at the time of the incident. He stated that, at the time, he was not working full-time for the Village of Hornbeck but was a reserve officer. He said that he was required to work with a certified officer and was considered a volunteer in that he was not paid. He stated that prior to the incident he had received no classroom training. Officer Mitchell was allowed to carry a gun. Regarding the physical confrontation, Officer Mitchell testified that when Miller began to walk toward his truck, Mitchell told him to “please stop,” and that Miller turned around and was “looking at us eyeball to eyeball, you know, staring us down.” Officer Mitchell said he was scared and nervous because he did not know how Miller would react. Officer Mitchell claimed that neither he nor Officer Hatchett shoved Miller’s head into the concrete alert on the shoulder of the road. He testified that he did not know how Miller’s head came into contact with the concrete. Officer Mitchell further claimed that he did not hear Miller state that the officers were hurting him, nor did he hear Officer Hatchett tell 19MiIler that he needed an “attitude adjustment.” Officer Mitchell admitted showing Janet his skinned knee.

Officer Hatchett testified that he completed the Alexandria Regional Police Academy in November 2002. He worked as a police officer part-time for the Village of Hornbeck and also at Fort Polk as a federal police officer. Officer Hatchett considered Miller’s act of punching his own fist to be an act of aggression. Officer Hatchett testified that Miller was approaching him and Mitchell. Officer Hatchett said that he “grabbed [Miller’s] arm in a straight arm bar take down.” He said that Miller’s head hit the ground as he was being taken down. Officer Hatchett stated that Miller was being belligerent in that he was not cooperating in identifying himself and that he was “giving us a real bad look and then he started towards us.” He denied ever having told Miller that he needed an “attitude adjustment.” He further denied ever having any other formal complaints made against him.

The trial court issued extensive and compelling reasons for its findings noting its unique role in determining the credibility of the witnesses:

At the time of the incident, the officers either had no dashboard mounted video camera or, if they did, did not activate it. Therefore, this court must weigh the credibility of the testimony as well as of those testifying as to what did or did not occur based upon consistency of testimony, body language, voice modulation and inflection and factual trustworthiness as only this court, as fact finder in this case, can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is being said.
[T]he nature of the offense has not become any more serious than a mere routine traffic stop for speeding, a citation-only offense with no requirement that the offender to be taken into custody. There was no testimony that suggested any exigent circumstances existed throughout the exchange that dictated a heightened caution in the reason, manner and execution of the stop. Officers Hatchett and Mitchell had the considerable advantage of youth, height, weight and weaponry over 110MiIler. There was no testimony that Miller, at any time during the altercation, brandished or was perceived to possess a weapon. Although Miller was attempting to leave the scene, the stop did not require taking him into custody. While there may have been an alternative method of arrest short of taking Miller to the ground, the officers’ choice to blindly react to the said “act of aggression” by Miller was unreasonable as the officers ignored the clear advantage they had over him.... Officers Hatchett and Mitchell faced no risks or dangers as the physical advantage they had over Miller remained.
... .The officers never testified that Miller presented any degree of fear for their safety, but only reiterated that Miller’s weaponless fist-hand gesture was enough to trigger their knee-jerk response to effect a take-down. This court finds the officers’ justification defense weak and unconvincing given their testimony and the totality of the circumstances.

Having reviewed the record and the facts and circumstances of this case, we find no manifest error in the trial court’s finding that Officers Hatchett and Mitchell used excessive force in effectuating Miller’s arrest and in intentionally pushing him into the concrete alert line. Further, a review of the Kyle factors and the totality of the circumstances support the trial court’s finding that the two young armed officers faced little or no risks from Miller for his crime of “speeding” (assuming it to be true) shortly before he actually reached the fífty-fíve-mile-per-hour sign. There is no error in the finding that the force used was excessive and not motivated by officer safety, but to adjust Miller’s attitude. Clearly, the trial court found Miller’s testimony — that the officers’ pushed him to the ground from behind and intentionally pushed his face into the concrete alert area after he told them that they were hurting him and after he was already on the ground — is a credibility determination that we will not disturb. Accordingly, the Defendants are not entitled to qualified immunity. Defendants’ assignments of error one through five are without merit.

COMPARATIVE FAULT

Defendants argue it was error for the trial court not to apportion fault to Miller. In Layssard v. State, Dep’t of Public Safety & Corrs., 07-78, p. 3 (La. App. Cir. 8/8/07), 963 So.2d 1053, 1057, writ denied, 07-1821 (La.11/9/07), 967 So.2d 511, the standard of review for a trier of fact’s apportionment of fault was stated as follows:

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

Having carefully reviewed the record, we find no manifest error. This assignment of error is without merit.

DAMAGES

The trial court awarded Miller $25,000 in general damages. Defendants argue this amount is excessive while Miller argues it is insufficient. The trial court’s findings are accorded great weight when reviewing a general damage award and should rarely be disturbed absent a showing of clear abuse of discretion. Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. Thus, we must determine whether the trial court’s award “is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances” before we may adjust the award. Id. at 1210. We find no abuse of discretion in the amount awarded by the trial court and it will not be disturbed.

| ^FRIVOLOUS APPEAL

Louisiana Code of Civil Procedure Article 2164 provides that an appellate court may award damages for frivolous appeal. However, damages for frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, that serious legal questions are not raised, or that the attorney does not seriously believe in the position he advocates. Robinson v. Thornton, 96-1329 (La.App. 3 Cir. 10/29/07), 705 So.2d 745, writ denied, 97-2963 (La.2/6/98), 709 So.2d 739. Considering the facts before us, we do not find any of these circumstances applicable to this case and decline to award damages for frivolous appeal.

CONCLUSION

The judgment of the trial court in favor of the plaintiff, Calvin Miller, is affirmed. Plaintiffs request for an increase in general damages and for damages for frivolous appeal are denied. All costs of this appeal are assessed against the defendants, Village of Hornbeck, Kenneth Hatchett, Jr., and Andy Mitchell.

AFFIRMED.

       A. As used in this Section, "public entity” means and includes the state and any of its branches, department, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumen-talities, officers, officials, and employees of such political subdivisions.
      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their poli-cymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
      C. The provisions of Subsection B of this section are not applicable:
      (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymak-ing or discretionary power exists; or
      (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
      D. The legislature finds and states that the purpose of this Section is not reestablish any immunity based on the status of sovereignty but rather to clarity the substantive content and parameters of application of such legislatively created codal arti-cíes and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Joseph Eugene BOUTTE, Jr.
    No. 10-1257.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      Michael Harson, District Attorney, Fifteenth JDC, Lafayette, LA, for Appellee State of Louisiana.
    Harold Dewey Register, Jr., Attorney at Law, Lafayette, LA, for Defendant-Appellant Joseph Eugene Boutte, Jr.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

FACTS

| ,On the evening of December 7, 2005, Carenero police officers responded to a report of an aggravated assault at the business owned by the victim, Ronald Broussard. The victim reported that the defendant, Joseph Boutte, Jr., came to his place of business and, following an argument, the defendant pulled a gun and fired a shot into the dirt at the victim’s feet.

The defendant was charged with possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1, aggravated assault with a firearm in violation of La.R.S. 14:37.4, and bail jumping in violation of La.R.S. 14:110.1. The defendant waived his right to a trial by jury and was tried before a judge for the offense of aggravated assault with a firearm. Trial commenced on April 27, 2010, and, after a two-day trial, the defendant was found guilty as charged.

The defendant was sentenced on May 4, 2010, to four years at hard labor. In lieu of imprisonment, the defendant was ordered to serve the four years under electronically-monitored house arrest with special conditions. The defendant filed a “Motion and Order to Reconsider Sentence” that same day. The motion was denied.

The defendant appeals both the conviction and the sentence.

ASSIGNMENTS OF ERROR

The defendant asserts two assignments error:

1. The trial judge erred in convicting the defendant of aggravated assault with a firearm — the evidence was insufficient to support a conviction for aggravated assault with a firearm.

2. The trial court erred in sentencing the defendant to four (4) years house arrest.

liERRORS PATENT

In accordance with La.Code Crim. P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find two errors patent.

The record does not indicate that the trial court advised the defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform the defendant of the provisions of Article 930.8 on remand.

The second error patent pertains to the appropriate sentencing provisions and will be fully discussed in Assignment of Error Number Two below.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues the state failed to present sufficient evidence to prove two necessary elements of the offense. The defendant argues the state failed to prove he possessed and fired a handgun during the argument with the victim and also failed to prove that the victim was in reasonable apprehension of receiving a battery as required by La.R.S. 14:36.

An aggravated assault with a firearm is defined as an assault committed by the discharge of a firearm. La.R.S. 14:37.4(A). An assault is defined as “an attempt to commit a battery, or the intentional placing of an other in reasonable apprehension of receiving a battery.” La. R.S.14:36. A battery is defined as “the intentional use of force or violence upon the person of another.” La.R.S. 14:33.

The standard of appellate review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, a | .¡rational trier of fact could have found the essential elements of the crime proven be-y°nd a reasonable doubt. Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Mr. Broussard testified that a vehicle had been brought to his business for repairs by a dealership. He had not been paid for the work done on the vehicle. He had previously received calls from both the defendant’s girlfriend and her father, both of whom wanted to come get the car and both of whom Mr. Broussard said were argumentative. On the day in question Mr. Broussard said that he received a phone call from the defendant. They argued over the phone.

Later that evening, Mr. Broussard, his brother-in-law Bryce Prejean, and a friend Jeff Richard, were relaxing at his shop after business hours. The defendant came to the door of the shop and began arguing with Mr. Broussard about the vehicle. Mr. Broussard acknowledged that, in his statement to police officers at the time of the incident, he told them the defendant pulled a gun and shot into the ground by his (Mr. Broussard’s) feet. At trial, he would not acknowledge seeing the gun although he did not specifically deny it. At trial, he did specifically testify that he heard a shot and saw dirt kick up by his feet. After hearing the gunshot, he instructed Mr. Richard to give the defendant the keys to the vehicle at issue. The defendant then left.

Mr. Prejean testified that he was at the victim’s shop after hours on the evening of the incident, relaxing and drinking beer. The defendant showed up at the shop and began arguing with Mr. Broussard. Mr. Prejean testified that he saw the defendant pull a gun out and shoot into the ground about twelve inches from Mr. Broussard’s feet. Mr. Prejean testified that he was frightened. He further said that Mr. Broussard was trying to talk the defendant down.

14Peputy Shawn Falke of the Lafayette Police Department worked for the Caren-ero Police Department at the time of the offense. He answered the call from the dispatcher that a complaint of aggravated assault had been called in by Mr. Brous-sard. When he arrived at the scene, the defendant was not there. He took a statement from Mr. Broussard who told him the defendant had shot at him during a dispute. He recovered a shell casing and found a discharged projectile in the dirt in the location the witnesses indicated the defendant had shot. He also took photos of the scene. Deputy Falke was accompanied by Officer William Walker who was training him. Officer Walker took some pictures, but his primary role was to observe Deputy Falke’s investigation.

Several months after this incident, a gun was recovered from the defendant’s vehicle. A ballistic analysis determined it to be the gun that fired the shot recovered from the scene at the victim’s shop.

The defendant testified. He admitted to having an argument with Mr. Broussard. He testified that he went to the victim’s shop with Nelson Andrus, his girlfriend’s father, for the purpose of picking up the vehicle that was the subject of the argument. He said he told Mr. Broussard that he wanted the vehicle. He stated he heard a “pow” and turned and ran back to Andrus’s trunk. He denied ever having a gun. He testified that Andrus had a gun. He further testified that the gun later recovered from his vehicle belonged to his cousin and that he had never possessed it.

At the conclusion of the trial, the trial judge found the defendant guilty of the offense charged, aggravated assault with a firearm.

The defendant’s first argument, that the state failed to prove he possessed and fired a handgun, is without merit. It is clear that the court accepted Mr. Prejean’s |fitestimony that the defendant pulled out a gun and shot into the dirt at the victim’s feet. When the evidence is viewed in a light most favorable to the prosecution, the state proved beyond a reasonable doubt that the defendant both possessed and discharged the firearm.

In order to prove the commission of the offense of assault, it is necessary for the state to prove that the victim was placed in apprehension of receiving a battery. The defendant argues there is no proof that the victim was placed in apprehension of receiving a battery and, therefore, this element of the offense was not established.

Both direct and circumstantial evidence must be considered when reviewing a sufficiency claim. Circumstantial evidence of a victim’s state of mind can be used to prove the element of reasonable apprehension. In State v. Blaise, 504 So.2d 1092 (La.App. 5 Cir.1987), circumstantial evidence alone was relied upon in sustaining the defendant’s conviction. The fifth circuit noted that the lack of testimony from the victim as to whether or not she was apprehensive was not necessarily dispositive of the issue. The court reviewed the victim’s actions when the defendant came into the barroom brandishing a gun and determined that her actions clearly established her apprehension.

In the present case, the victim, Mr. Broussard, did not testify directly that he was placed in apprehension of receiving a battery. We must, therefore, review the circumstantial evidence submitted.

Louisiana Revised Statutes 15:438 sets forth:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

|fiThe testimony established that the vehicle was brought to Mr. Broussard’s shop by a dealer. He had not been paid for the work. Prior to this incident, Mr. Brous-sard had talked to three different individuals who claimed the vehicle. A lady named Quintina, who was apparently the defendant’s girlfriend, had called the shop wanting to retrieve the car. The victim had an apparent argument with her about the vehicle as she was not the person who had brought it to be repaired. Subsequently, Quintina’s father had contacted the victim and the two had a verbal altercation regarding the car. On the day of this incident, the defendant called the victim on the phone and the two argued about the car. Mr. Broussard was unwilling to relinquish possession of the vehicle to any of these individuals. When the defendant appeared at the shop, he and Mr. Brous-sard again had an argument about the vehicle. The defendant then pulled a gun and shot into the ground at Mr. Brous-sard’s feet. Mr. Broussard immediately instructed Mr. Richard to give the defendant the keys. Mr. Richard handed over the keys and the defendant left. As soon as the defendant left, Mr. Broussard called the police. Although Mr. Broussard testified at trial that he did not remember who called the police, the police records, as well as the statement given to the police at the time of the incident by Mr. Prejean, clearly indicate that Mr. Broussard made the phone call. The only conclusion we can reach is that the victim’s actions immediately following the gunshot establish that he was placed in apprehension of receiving a battery. When viewed in a light most favorable to the prosecution, we find there was sufficient evidence to establish the defendant’s guilt beyond a reasonable doubt.

\ .ASSIGNMENT OF ERROR NUMBER TWO

The defendant was convicted of aggravated assault with a firearm, which requires a sentence of imprisonment with or without hard labor for not more than five years or a fine of not more than five thousand dollars, or both. La.R.S. 14:37.4(0). The trial court sentenced the defendant to four years of house arrest in lieu of four years at hard labor because it determined that house arrest with electronic monitoring was “more suitable than incarceration or probation and house arrest [sic], and it would serve the interests of justice in this case.” The judge noted that the sentence was being imposed under Act 159 of the 2009 Regular Session of the Legislature. Louisiana Code of Criminal Procedure Article 894.2, in effect at the time of the commission of the offense, stated in pertinent part:

A. Notwithstanding any other provision of law to the contrary, a defendant may be sentenced to home incarceration in lieu of imprisonment under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemean- or or a felony punishable with or without hard labor.
(2) In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration, or the district attorney recommends home incarceration, or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice.
(8) The court determines that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration.
G. The sentence of home incarceration shall be for a period of not more than two years in felony cases and for a period not to exceed six months in misdemeanor cases.

|sIn 2009, the Legislature increased the permissible term of home incarceration for a felony from two to four years. 2009 La. Acts No. 159, § 1. The trial court imposed an illegal sentence beyond that which was authorized by the La.Code Crim.P. art. 894.2 at the time of the commission of the offense.

Accordingly, we hereby vacate the defendant’s sentence and remand to the trial court for imposition of sentence in accordance with law.

CONCLUSION

The defendant’s conviction is affirmed. The sentence is vacated, and this matter is remanded to the trial court for sentencing at which time the trial court is instructed to advise the defendant of the proper prescriptive period for post-conviction relief in accordance with La.Code Crim. P. Art. 930.8.

CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED WITH INSTRUCTIONS.


author: JAMES F. McKAY, Judge.

text:
    STATE of Louisiana v. Daryn GISCLAIR.
    No. 2010-KA-1410.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Thomas M. Calogero, Karla M. Baker, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY, Judge.

hThe State appeals the trial court’s June 18, 2010 judgment, granting the defendant’s, Daryn Giselair, motion to quash the bill information. The sole issue before this Court is whether the new prosecution was timely instituted pursuant to La. C. Cr. Pro. Articles 572 and 576. For the reasons to follow, we affirm the trial court’s judgment.

The record is void of any factual information concerning the details of the alleged crimes or the original Bill of Information in case No. 483-284. The notation on the docket master reflects that the defendant was charged with one count of attempted theft of $300.00 to $500.00 pursuant to La. R.S. 14:27, 14:67(B). What can be gleaned from the record is that Daryn Giselair was accused of committing attempted theft of a VISA ATM card belonging to Seth Stacy, on November 7, 2007, at Harrah’s Casino.

On January 16, 2009, in case number 483-284, F-M2, the State filed a bill of information against Daryn Giselair with the misdemeanor crime of attempted theft 12of an item valued between $300.00 and $500.00. On August 24, 2009, the State entered a nolle prosequi.

On June 2, 2010, in the case sub judice, Case No. 497-272, as noted on the State’s action screening form where the State accepted the charges against the defendant, the State recharged Daryn Giselair with unauthorized use of a movable, an access card, valued at over five hundred dollars and with possession of stolen property, an access card, valued over $500.00, a violation of La. R.S. 14:67.3 and La. R.S. 14:69.

DISCUSSION

The sole issue that the State argues before this Court is whether the trial court erred in its calculation of the time allotted for reinstitution in such cases. The State asserts that pursuant to La.C.Cr.P. art. 576, the State may dismiss and reinstitute charges in accordance with La.C.Cr.P. art. 572, unless it is demonstrated to the satisfaction of the trial court that the dismissal was for the purpose of avoiding time limitations.

On June 18, 2010, the trial court ruled as follows:

BY THE COURT:
“All right.
The state had six months to reinstitute the charge.
The difference here is that there is a different charge because they upped the charge, but the factual situation, I am made to understand, is the same, identical.
And, I believe because of the factual situation being the same, I think that a Motion to Quash lies, and I am granting the Motion to Quash.”

The State maintains that the prosecution of the new felony case was instituted timely. It argues that La.C.Cr.P. art. 572(A)(2) grants the state a total of | sfour years to initiate prosecution of a felony not necessarily punishable by imprisonment at hard labor. The State further asserts that La. C.Cr.P. art. 576 permits the filing of enhanced charges arising out of the same set of facts, and that in the instant case, the felony charges were filed within the four year expiration period.

La.C.Cr.P. art. 572(A) states the following:

A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
(1) Six years, for a felony necessarily punishable by imprisonment at hard labor.
(2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.
(3) Two years, for a misdemeanor punishable by a fine, or imprisonment, or both.
(4) Six months, for a misdemeanor punishable only by a fine or forfeiture.

La.C.Cr.P.art. 576 states:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer. A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

| ¿The only offense that the defendant was charged with in case number 483-284 F/M2 was a misdemeanor, the attempted theft of an access card, an item said to be valued at between $300.00 and $500.00.

La. R.S. 14:67.3(E) sets forth the statutorily mandated value of an actual access card as follows:

E. As used herein and in R.S. 14:67, the Access Card itself shall be a thing of value, with a value less than one hundred dollars, (emphasis added)

To reiterate, in the original charge, the State charged Daryn Gisclair on January 16, 2009, with attempted theft of an item whose value lies between three hundred and five hundred dollars. This attempted theft case was nolle prosequied in Magistrate Court and reinstituted in Criminal District Court as Case No. 497-272, charging Daryn Gisclair with unauthorized use of an access card valued at least five hundred dollars and possession of an access card valued at least $500.00. At first glance, the charges on June 2, 2010, under La. R.S. 14:67.3 and La. R.S. 14:69 appear to be filed within the four year time limit. However, La. R.S. 14:67.3(E) specifically places the value of an access card at less than one hundred dollars. We note that the time limitation for instituting proceedings for the charges under La.C.Cr.Pro. art. 572(A)(3) is two years. The present offenses occurred on November 7, 2007, and the bill of information was filed on June 16, 2010, more than two years later. Thus, both charges under case No. 497-272 were properly quashed.

Accordingly, we affirm the trial court’s judgment granting the defendant’s motion to quash.

AFFIRMED

      . We note that the docket misrepresents the exact charge, specifically, La. R.S. 14:67(B)(3).


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Furnell McMILLIAN.
    No. 2010-KA-0812.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.
    Rehearing Denied July 13, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Brad Scott, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

^STATEMENT OF THE CASE:

On September 17, 2008, the defendant was charged with theft over $500.00. On October 3, 2008, the defendant entered a plea of not guilty. On March 11, 2009, the district court found no probable cause to hold defendant for trial. On June 30, 2009, following a bench trial, the defendant was found guilty as charged. On July 7, 2009 and September 28, 2009, the district court denied defense counsel’s motion for a new trial. On July 9, 2009, the district court set a restitution hearing for August 27, 2009; the hearing was continued to August 31, 2009. On that date, defense counsel objected to a restitution hearing being conducted prior to sentencing and noticed his intent to file writs in this Court. Writ 2009-K-1174 was denied by this Court on September 25, 2009. On October 20, 2009, following a restitution hearing, the district court sealed all restitution receipts into the record. On November 6, 2009, the defendant was sentenced to serve five years at hard labor; two years were suspended, and the defendant was placed on two years active probation. The defendant’s motion for an appeal was granted, and the Louisiana Appellate Project was appointed to represent the defendant on appeal.

|2On September 27, 2006, and December 11, 2006, Thomas and Angie Nash entered into two contracts with the defendant (THF Construction). The first contract was to construct an addition to their home at 5127 Easterlyn Circle in eastern New Orleans. The second contract was for renovations to their Hurricane Katrina damaged home which had sustained flood damage. The home had already been gutted. The defendant showed them his contractor’s license and gave them the address to another home that he had renovated. The Nashes agreed to a total price of $162,000.00 for the addition and the main house renovations.

The first contract for the addition called for pilings, a concrete slab with iron rebar and iron mesh, framing, sheetrock, insulation, electrical wiring and tying the addition into the main house. The Nashes agreed to pay the defendant in four installments of $22,860.00 (20%) up front, $22,860.00 (20%) after the foundation was completed, $34,290.00 (30%) after the framing and roofing was completed and $34,290.00 (30%) after satisfactory completion of the addition. The Nashes gave the defendant the first check for $22,860.00 on the date the parties signed the contract. This first payment was to review the plans, acquire the proper insurance, hire the subcontractors and complete the foundation which was to cost $9000.00. The defendant agreed to complete the first phase of the addition by December 2006. When the December deadline arrived, the agreed upon work was not completed. The defendant answered the Nashes’ concerns and complaints by telling them that he was having trouble getting the necessary subcontractors to perform the work. It was not until 2007 that the pilings were driven, the concrete slab was completed and the framing was started. The defendant requested the second payment of $22,860.00. However, the Nashes were unable to get the funds from their Mortgage Company until the framing was completed as agreed upon.

|3In the second contract for renovations to the main house, the defendant agreed to treat all the wood for mold, install new windows and doors, install all door and window hardware, insulate all walls and ceilings, sheetrock all walls and ceilings, install all plumbing and plumbing fixtures using a licensed plumber, install all electrical wiring and fixtures using a licensed electrician, install all kitchen cabinets, install all flooring, complete all painting, finish the exterior of the house with matching brick, repair roof and tie into the addition, upgrade downstairs air conditioning compressor and install two new upstairs compressors. In consideration for the agreed upon work yet to be completed, the Nash-es gave the defendant a check in March 2007 for $65,000.00. The defendant told the Nashes that the renovations would be complete in four weeks. The Nashes also gave the defendant a check for $10,000.00 to expedite work to the upstairs of the main house so that the family could live upstairs while the remainder of the work was completed. After the defendant deposited the $65,000.00 check, he installed three windows and three doors with no hardware and hung sheet rock in one room; the sheetrock was not taped or floated as agreed upon. No further work was completed by the defendant.

The Nashes persistently sent e-mails and phone calls to the defendant pleading with him to finish the work; no further work was completed. The total amount of money that the Nashes gave to the defendant totaled $97,860.00. Subsequently, the Nashes learned that the defendant’s business telephone number had been disconnected and his place of business had been vacated. The Nashes also learned that the homeowner of the house the defendant gave them as a reference had fired the defendant for incomplete and substandard work and finished the work himself. They also contacted Torrence Green of Vulcan ^Construction Company to perform a comprehensive analysis to ascertain the dollar value of the work the defendant actually completed up to the time that the Nashes could no longer contact him. Green’s analysis showed that the difference of the cost analysis between the work completed by the defendant and the amount paid to him was $88,000.00. The Nashes eventually hired another contractor to finish the work that they had paid the defendant to complete which included the following: 1) complete the cement slab and tie it into the main slab; 2) complete the installation of all insulation; 3) complete all the brick work; 4) complete the plumbing in the main house and in the addition; 5) complete the roof between the addition and the main house; 6) complete the installation and sealing of the windows; 7) install all door hardware; 8) complete all installation, taping and floating of the sheetrock; 9) install the remaining two air conditioning compressors using a licensed air conditioning contractor; and 10) complete all remaining electrical work using a licensed electrician.

On direct examination, the defendant denied that he received funds for work that was not completed. He testified that it was impossible to work with Mrs. Nash because she kept changing her mind and choosing materials that cost more than the agreed upon allowance. He opined that the Nashes owed him approximately $11,000.00 for his time and effort in securing the sub-contractors. He also testified that he used his own money to perform some of the work on the Nashes’ house for which he was not reimbursed; he did not produce any documentation to support this claim. On cross-examination, the defendant admitted that he knew that it was illegal to conduct contractor work without a valid license, but he could not remember if he was in good standing with the licensing board when he entered into the contract with the Nashes. The defendant stated that business was good but | ^hiring help was difficult. He admitted that he had other jobs that did not end well and that one homeowner, who had fired him from the job, filed a lawsuit against him for failure to complete the terms of the contract. The defendant also admitted that he had between six and seven consumer fraud complaints filed against him with the attorney general’s office but that he had been exonerated on all complaints.

ERRORS PATENT

A review for errors patent reveals none.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant asserts that the evidence was insufficient to support his conviction. Specifically, the defendant argues that the state failed to present expert testimony to prove that the Nashes sustained any financial loss from his actions.

DISCUSSION

In evaluating whether evidence is constitutionally sufficient 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would |fido. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis falls; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984).

A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1098; State v. Harris, 99-8147 (La. App. 4 Cir. 5/31/00), 765 So.2d 432.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia; State v. Huizar.

In this case, the defendant was convicted of theft of more than $500.00. The offense of theft is defined in La. R.S. 14:67:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Thus, in order for the defendant’s conviction to be upheld on appeal, the State must have proven the following essential elements beyond a reasonable doubt: 1) that the defendant misappropriated or took by means of fraudulent conduct, practices, or representations; 2) a thing of value; 3) that belonged to another; and 4) that the defendant had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Pittman, 368 So.2d 708 (La.1979). The State must further prove the value of the stolen property, for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted offender. State v. Monterroso, 96-376 (La.App. 5 Cir. 11/14/96), 685 So.2d 249, 251.

Mr. and Mrs. Nash both testified that after the defendant failed to return their calls and e-mails, and they found out that THS Construction Company was no longer in business and the defendant’s license had lapsed, they contacted Torrence Green of Vulcan Construction Company to perform a comprehensive analysis to | ^ascertain the dollar value of the work defendant actually completed up to the time that the Nashes could no longer contact him. Green’s analysis showed that the difference of the cost analysis between the work completed by defendant and the amount paid to him was $38,000.00. This amount was based on the $97,000.00 paid by the Nashes to the defendant for the agreed upon work. Furthermore, the evidence and testimony presented at trial show that after the defendant received the last payment of $65,000.00, he completed three substandard tasks, did not return to the job site to complete the work for which he was paid and did not offer to return the $65,000.00. In addition, after the defendant deposited the funds into his bank account, he stopped returning the Nashes’ telephone calls, disconnected his business telephone and closed his construction company. Based on the defendant’s actions, a reasonable trier of fact could conclude that the defendant intended to permanently deprive the Nashes of money owed to them in excess of $500.00. This assignment of error is without merit.

CONCLUSION

Based on the above and foregoing we affirm the defendant’s conviction and sentence.

AFFIRMED