author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Emile DELANUEVILLE.
    No. 11-KA-379.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Honorable Thomas F. Daley, District Attorney, Orenthal J. Jasmin, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
    Richard M. Millet, Attorney at Law, Laplace, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   WALTER J. ROTHSCHILD, Judge.

| pEmile Delaneuville was charged with a fourth offense of operating a motor vehicle while intoxicated in violation of LSA-R.S. 14:98. He was arraigned and pled not guilty to this charge. Defendant waived his right to a jury trial and the matter proceeded to a bench trial. Following trial, the trial judge issued a judgment finding defendant guilty as charged. Defendant subsequently filed motions for a new trial and a post-verdict judgment of acquittal, both of which were denied.

Defendant was sentenced to ten years with the Department of Corrections, all but sixty days suspended, to be served consecutively and uninterrupted. The judge also ordered defendant to serve one year of home incarceration with the restriction that defendant could not drive during that time and with curfew restrictions to be imposed by the probation officer. Additionally, the judge ordered defendant to be on active probation for five years with the condition that defendant 13have an Interlock device installed in his vehicle during the probationary period. The judge further informed defendant of the conditions of his probation. Lastly, the judge ordered defendant to pay a mandatory fine of $5,000.00 and court costs in the amount of $303.50. Defendant now appeals on the basis of several assignments of error.

FACTS

On December 27, 2007 at approximately 1:20 p.m., Sergeant Aron Hastings and Lieutenant Lester Rulf, enforcement agents with the Louisiana Department of Wildlife and Fisheries, were travelling northbound along Highway 51 in St. John the Baptist Parish when they passed a green truck parked on the shoulder of the road facing south. As the agents passed, they observed the occupant of the driver’s seat, who was later identified as defendant, toss a beer can and a plastic bag out of the truck. Upon observing this, the agents turned their vehicle around to get behind defendant’s truck to stop him for littering. While the agents made the U-turn, defendant got back on the road and headed southbound. The agents followed defendant for 0.7 miles before pulling him over. When Sgt. Hastings made contact with defendant, he observed an 11-year-old boy in the passenger seat and informed defendant that he had been stopped for littering. Defendant responded that he was not hunting. Sgt. Hastings again told defendant that he had been stopped for littering, to which defendant again responded that he was not hunting. Sgt. Hastings testified that he could smell the odor of alcohol emanating from defendant. Sgt. Hastings then asked defendant if there were any guns in the vehicle, to which defendant replied, “Man, why you got to be like that?” Sgt. ^Hastings then asked him the same thing again, and defendant gave the same response. At this point, Sgt. Hastings asked defendant to exit the vehicle. Several requests had to be made before defendant complied.

Defendant stood at the rear of his vehicle, holding on to it to maintain his balance. He explained to Sgt. Hastings that he was firing warning shots to scare off people who were hunting on his property. While defendant offered this explanation, Sgt. Hastings observed that he had bloodshot eyes and slurred speech. At this point, the agent asked defendant to submit to an HGN (horizontal gaze nystagmus) test, which defendant refused to do. After several requests and refusals, defendant told the agent that he had a problem with his knees. Sgt. Hastings replied that he did not ask him if he had a problem with his knees, rather, he wanted to check his eyes. The agent showed defendant a pen he wanted him to follow with his eyes. Defendant stated that he could not follow a light at the time. The agent replied that it was not dark and that he did not ask him to follow a light. Defendant was then placed under arrest for suspicion of DWI. Sgt. Hastings photographed the trash that defendant had discarded from his truck: an empty Coors Light can, which appeared to still be sweating with condensation, and a Pilot plastic bag.

LAW AND DISCUSSION

In his first assignment of error, defendant argues that the evidence was insufficient to find defendant guilty of driving while intoxicated beyond a treasonable doubt. Specifically, defendant contends that the evidence did not establish that he was intoxicated. The State responds that despite the lack of scientific tests indicating intoxication, the observations made by the arresting officer were sufficient to support a finding of driving while intoxicated.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

In the instant case, defendant was convicted of a fourth offense of operating a vehicle while intoxicated in violation of LSA-R.S. 14:98. At the time of the offense, that statute provided, in pertinent part:

| (A- (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or

In order to convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Cowden, 04-707, p. 8 (La. App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La.4/8/05), 899 So.2d 2 (citing State v. Bourgeois, 00-1585 (La. App. 5 Cir. 3/14/01), 785 So.2d 848, 853). To convict a defendant of a fourth offense of driving while intoxicated, the State must also show that the defendant had three other valid convictions. LSA-R.S. 14:98(E). In the present case, there was no dispute that defendant was operating a vehicle or that he had three prior DWI convictions. Thus, the State needed only to prove that defendant was under the influence of alcohol.

The Louisiana Supreme Court has defined intoxication as the impairment, however slight, to the ability of a person to operate an automobile. State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959). The court further explained that the impairment need not be complete but only to the degree that the influence causes a person to operate his car in a manner different from that in which it would be operated by an ordinarily cautious and prudent person. Id.

The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient |7to support a charge of driving while intoxicated. Cowden, 04-707 at 8, 889 So.2d at 1082, (citing Bourgeois, 00-1585, 785 So.2d at 853). The behavioral manifestations which are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Id.

In State v. Landry, 463 So.2d 761, 767 (La.App. 5 Cir.1985), writ denied, 464 So.2d 1373 (La.1985), this Court found that the evidence was sufficient to support the defendant’s conviction for driving while intoxicated, despite his refusal to submit to a field sobriety test. In that case, the arresting officer pulled the defendant over after he observed him swerving between lanes. Id., 463 So.2d at 766. During the traffic stop, the defendant admitted that he had been drinking, and the officer observed the defendant staggering, leaning on his car for support, slurring his speech, and had the odor of alcohol about him. Id., 46 So.2d at 767. This Court concluded:

While the [officer’s] observations were not made during the course of a “subjective” field sobriety test, the same physical traits would have manifested themselves had the defendant attempted to perform the test. It is implausible to hold that, because the defendant refused to submit to a field sobriety test, his exhibition of the same physical traits which the field sobriety test was designed to uncover were insufficient to support a driving while intoxicated conviction.

Id.

Similarly, in State v. Conner, 02-363 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 403, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396, this Court found that the evidence was sufficient to support the defendant’s conviction for driving while intoxicated, despite his refusal to submit to a field sobriety test. The defendant was pulled over for speeding; and during the stop, the officer observed that the defendant stumbled, grabbed the side of his car to maintain his balance, and then staggered toward the officer’s car. Id., 02-363, 833 So.2d at 400. The officer also noticed the defendant’s speech was slurred and detected a “strong smell” of | ^alcohol on the defendant’s breath and person. Id. Further, the defendant admitted that he had consumed two glasses of wine with lunch. Id. Additionally, the defendant’s friend, and passenger in the vehicle at the time of the stop, testified that he observed the defendant consume one or two glasses of wine with lunch, but none after lunch. Id,., 02-363, 833 So.2d at 401.

In the present case, the trial judge articulated the reasons for his conclusion that the State had carried its burden of proving that defendant was intoxicated. The key facts the judge relied on were:

Mr. Delaneuville had bloodshot eyes, slurred speech, was leaning on his car once he exited the vehicle, and had an odor of alcohol. Not only did Mr. Dela-neuville exhibit these visible signs of intoxication, but he was not able to comprehend and answer simple questions and instructions from Sgt. Hastings.... The defendant did not present any evidence suggesting Mr. Delaneuville was mentally limited such that he could not intelligently answer or comprehend Sgt. Hastings’ questions.

The record supports the trial court’s conclusions that Sgt. Hastings observed that defendant had bloodshot eyes, slurred speech, an odor of alcohol, and rested on his vehicle to maintain his balance. Also, defendant’s answers were repetitive and nonresponsive to the officer’s questions such that the officer needed to repeat his questions and directions several times. Furthermore, defendant was observed disposing of an empty alcoholic beverage container from his vehicle.

Defendant did not submit to field sobriety, breath, or blood tests; therefore, his conviction rests solely upon Sgt. Hastings’ observations. It is well settled that the observations of the arresting officer may be sufficient to establish the defendant’s guilt and that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify. State v. Cowden, 04-707, p. 8 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La.4/8/05), 899 So.2d 2 (citations omitted). The trial judge, as the trier of |nfact, witnessed Sgt. Hastings’ testimony and was able to assess his credibility. Since it is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence, we determine that any rational trier of fact would have found beyond a reasonable doubt that defendant was driving while intoxicated. As such, we find the evidence presented is sufficient to support defendant’s conviction.

In his second assignment of error, defendant re-urges a two-fold argument that he previously raised in his motion for a new trial. First, he argues that the trial court erred by considering his silence in response to the questions posed by Sgt. Hastings during the traffic stop. Specifically, defendant alleges that his nonre-sponsive answers to Sgt. Hastings’ questions and instructions constituted silence and that the trial judge’s consideration thereof was a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Secondly, defendant argues that the trial judge impermissibly considered defendant’s failure to testify at trial when he stated in his order of judgment that “defendant did not present any evidence suggesting that [he] was mentally limited such that he could not intelligently answer or comprehend Sgt. Hastings’ questions.”

In response to the first part of defendant’s argument, the State contends that defendant was not silent, but, in fact, was quite vocal in response to the officer’s questions. The State points out that defendant never invoked his right to remain silent, nor did he choose to stay silent. As its response to the second part of | indefendant’s argument, the State incorporates a portion of the trial court’s judgment denying defendant’s motion for new trial. In that denial, the trial judge stated:

This court recognizes that we may have included improper language that states that the defendant did not put on evidence in support of his claim. This court did not in any way place the burden on the defendant at any time in this matter. Though we may have erroneously included such language, this court stresses that we did not expect the defendant to put on any evidence. The state left no doubt in this court’s mind as to the accuracy and truthfulness of the factors and observations which contributed to our decision to find Mr. Dela-neuville guilty of driving while intoxicated. In our decision, we believed the totality of the State’s evidence against Mr. Delaneuville which included: odor of alcohol on his breath, bloodshot eyes, slurred speech, leaning on his vehicle, and answering the questions presented to him with unusual statements that did not address the question posed to him. At no time, in the transcripts from which we obtained this evidence, or during the trial, did we have any doubt as to why Mr. Delaneuville exhibited these outward symptoms and behaviors other than because he was intoxicated. This court believed Sgt. Hastings to be reliable and credible, and we found this evidence to be sufficient to find Mr. Delaneuville guilty of driving while intoxicated. Even if this court included language that suggested that the defendant should put on evidence, this court’s decision relied solely upon the State’s evidence.

In the first part of defendant’s argument, he relies on LSA-C.Cr.P. art. 770(3) and the Doyle v. Ohio jurisprudence. LSA-C.Cr.P. art. 770(3) prohibits references to the failure of a defendant to testi-iy in a jury trial and Doyle prohibits references to a defendant’s post-arrest silence in a jury trial. However, here, in a bench trial, defendant does not contend that impermissible references were made, but that the trial judge impermissibly considered defendant’s post-arrest silence. Thus, under these facts, we find that neither LSA-C.Cr.P. art. 770(3) nor Doyle is applicable to this case.. Nevertheless, they afford an informative framework within which to analyze defendant’s first argument.

LSA-C.Cr.P. art. 770(3) provides that upon the defendant’s motion, a mistrial shall be ordered when a remark or comment, made within the hearing of|nthe jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to the failure of the defendant to testify in his own defense. The Louisiana Supreme Court has held that LSA-C.Cr.P. art. 770 is designed to guard against improprieties in the presence of the jury. State v. Marshall, 359 So.2d 78, 83 (La.1978) (Emphasis supplied); see also State v. Mahogany, 07-360 (La.App. 5 Cir. 10/30/07), 970 So.2d 1150; State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254. Thus, in a bench trial, this article does not mandate a mistrial. Marshall, supra. This is because “[t]he admissibility of evidence in a judge trial is different from the requirements of jury trials.... A judge, unlike a jury, by virtue of the judge’s training and knowledge of the law is fully capable of disregarding any impropriety.” Anderson, 02-273, 824 So.2d at 521 (quoting Jenkins v. Baldwin, 00-0802, p. 8 (La. App. 4 Cir. 8/29/01), 801 So.2d 485, 492). Similarly, in the instant ease, the judge, by virtue of his training and knowledge of the law, is aware that defendant’s post-arrest silence cannot contribute to his decision.

Secondly, this Court has held that a reference to a defendant’s post-arrest silence in violation of Doyle is subject to a harmless error analysis. State v. Longo, 08-405, p. 12 (La.App. 5 Cir. 1/27/09), 8 So.3d 666, 673. An error is harmless when the verdict actually rendered was surely unattributable to the error. Id.

Despite that Doyle applies to references to a defendant’s post-arrest silence in the context of jury trials, we find that the harmless error analysis is nevertheless instructive here: if the trial judge’s decision was surely unattributable to his consideration of defendant’s post-arrest silence, then such consideration was a harmless error. Thus, assuming defendant’s nonresponsive answers constituted | ^silence and should not be considered, we find there was sufficient evidence to support defendant’s conviction. Sgt. Hastings observed defendant had bloodshot eyes, smelled of alcohol, rested on his vehicle to maintain his balance, and disposed of an empty alcoholic beverage container from his vehicle.

Lastly, and most notably, Sgt. Hastings’ testimony makes clear that defendant was not silent during his encounter with the officer. In fact, the trial judge took note of this in his denial of defendant’s motion for a new trial, stating:

[Defendant] argues that [he] was prejudiced because he chose to remain silent when being questioned by Sgt. Hastings. The defendant contends that this court determined Mr. Delaneuville to be non-responsive to Sgt. Hastings’ inquiries. The defendant’s counsel believes that Mr. Delaneuville was simply confused. The defendant misinterprets the Court’s reasoning on this point. Our judgment was clear that Mr. Delaneuville continually responded to Sgt. Hastings’ questions. Therefore, the right to remain silent is not an issue.
In this court’s analysis of Mr. Dela-neuville’s answers to Sgt. Hastings, this Court clearly demonstrated how Mr. De-laneuville’s answers did not match the questions posed to him. According to the defendant’s own' Motion for New Trial, this court observed a cue of impairment used by officers to determine whether Mr. Delaneuville was impaired. Under the category of “Personal Contact with the Defendant,” this court observed, among others, cue number 12 entitled “Unusual Statements.” To briefly reiterate our prior judgment, Sgt. Hastings asked Mr. Delaneuville if he knew that he was pulled over for littering. A common sense answer might be, “Yes” or “No.” Mr. Delaneu-ville replied twice that he was not shooting any guns. Then, Sgt. Hastings asked him to submit to an HGN test using a pen, in broad daylight. Such a test requires Mr. Delaneuville to follow the pen with his eyes. Mr. Delaneuville replied first that he had bad knees, and then that he could not follow a light, even though he was presented with a pen. It is clear to this court that Mr. Delaneuville was not confused, nor was he silent. It is clear that his unusual answers reveal that Mr. Delaneuville was intoxicated such that he could not accurately answer Sgt. Hastings’ questions.

In view of the foregoing, we find that the first part of defendant’s argument has no merit.

In regard to the second part, namely, that the trial court impermissibly considered defendant’s failure to testify, this Court has previously recognized that a reference to a defendant’s failure to testify in violation of LSA-C.Cr.P. art. |13770(3) is subject to a harmless error analysis. State v. Shannon, 10-580, pp. 27-28 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, 724, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283 (citations omitted). Thus, unless an appellate court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict, it should not reverse a conviction due to improper remarks during a closing argument. Id., 10-580, 61 So.3d at 724-25.

In Shannon, the defendant was on trial for a third offense of driving while intoxicated and argued that a mistrial should have been declared when the prosecutor emphasized that the evidence was uncon-troverted because it constituted an indirect reference to the defendant’s right to remain silent. Shannon, 10-580 at 23, 61 So.3d at 722. This Court found the prosecutor’s remarks were harmless because ample evidence supported the guilty verdict. Id., 10-580 at 28, 61 So.3d at 725. The arresting officer testified that defendant appeared very unsteady on his feet, smelled of alcohol, and that his eyes were bloodshot. Id. The officer also testified that defendant was uncooperative and his behavior was abnormal. Id. Further, the officer recognized defendant’s conduct as characteristic of alcohol or drug impairment, he observed bottle caps and a six-pack of beer on the floor of defendant’s vehicle, and the jury viewed a corroborating video of defendant’s stop and arrest. Id., 10-580 at 28-29, 61 So.3d at 725.

The present case is distinguishable from Shannon for two reasons: this was a bench trial and the reference to defendant’s failure to present evidence was made in the trial judge’s order of judgment, not by the prosecutor or other court official. Nevertheless, we find that the reasoning articulated in Shannon is applicable here: unless we are thoroughly convinced that defendant’s failure to present evidence contributed to the judge’s decision, the conviction should not be reversed. Here, like in Shannon, there was ample evidence to support defendant’s conviction. Sgt._J_j,,Hastings observed defendant had bloodshot eyes, slurred speech, an odor of alcohol, and rested on his vehicle to maintain his balance. Defendant’s answers were repetitive and nonresponsive to the officer’s questions such that the officer needed to repeat his questions and directions several times. And defendant was observed disposing an empty alcoholic beverage container from his vehicle. Finally, and most importantly, the trial judge even emphasized that his statement that defendant failed to present evidence was not a contributing factor to his decision.

In view of the foregoing, we determine that the second part of defendant’s argument has no merit. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s motion for a new trial and that neither a mistrial nor a new trial was warranted under the circumstances.

In his third assignment of error, defendant re-urges another argument raised in his motion for new trial. He argues that the trial court erred by considering facts not admitted into evidence. Specifically, defendant contends that the court imper-missibly considered defendant’s speech and intellect in a sober state as compared with his speech and intellect while under the influence of alcohol. In support of this contention, defendant points to the trial court’s statement in its order of judgment that “the court has observed Mr. Delaneu-ville in court and has never found Mr. Delaneuville’s speech to be naturally slurred or his intellect to be limited.” Defendant asserts that such an observation was impermissible because defendant did not testify, nor was testimony concerning his typical speech and intellect introduced into evidence.

|1fiIn its response, the State incorporates the trial court’s denial of defendant’s motion for new trial as support for its position. The trial court stated:

[T]he defendant points out that the Court’s observation that Mr. Delaneu-ville’s speech is not slurred nor his intellect limited is an improper observation by the court and cannot be used in this court’s judgment. Without discussing whether the observations were or were not improper, the court merely made such observations which had no bearing on this court’s decision. This court, as stated in our judgment, accepts Sgt. Hastings’ report that Mr. Delaneuville’s speech was slurred, which was a contributing factor in our conclusion that Mr. Delaneuville was intoxicated. Such a fact was never challenged, nor is the defendant required to challenge such an allegation. Because of the testimony by the State, and taking into consideration the totality of the other factors that point to intoxication, this Court believes beyond a reasonable doubt that Mr. De-laneuville’s speech was slurred because he was under the influence of alcohol.

In another DWI case out of this Court, the defendant asserted that the trial court erred in considering facts not admitted in evidence when it extrapolated the defendant’s blood alcohol level at the time of the present offense by relying on the defendant’s blood alcohol level in a prior driving while intoxicated conviction. State v. Simard, 01-1373 (La.App. 5 Cir. 4/30/02), 817 So.2d 366, 370. This Court found that because the record did not contain any expert opinion relating to defendant’s blood alcohol level at the time of the present offense, there was no evidence that supports the trial court’s extrapolation of defendant’s blood alcohol level. Id., 01-1378, 817 So.2d at 371. Nevertheless, this Court concluded that the error was harmless. Id. The court’s reasoning is as follows:

The State is not required to prove a defendant had a blood alcohol level of .10% or more in order to convict him of driving while intoxicated. Rather, the State need only prove a defendant was intoxicated. A blood alcohol level of .10% merely entitles the State to a presumption of intoxication, but it is not the only proof of intoxication.... [I]ntoxi-cation with its attendant behavioral manifestations is an observable condition about which a witness may testify.... [TJhere is sufficient evidence in the record to support a finding that defendant was intoxicated based on the physical traits observed by the police officer at the time of the stop. Thus, the trial court’s determination of defendant’s blood alcohol level, while clearly improper, was irrelevant.

1 KJd. (citation omitted).

Similarly, in the instant case, even assuming that the trial court considered facts not admitted in evidence when it noted defendant’s normal speech and intellect, we find that there was nonetheless sufficient evidence in the record to support a finding that defendant was intoxicated. Excluding the evidence regarding defendant’s speech and intellect, other facts indicative of intoxication were the odor of alcohol on defendant’s breath, bloodshot eyes, leaning on his vehicle for balance, and the disposed alcoholic beverage container. Additionally, in his denial of defendant’s motion for new trial, the trial judge even explicitly stated that his observations regarding defendant’s normal speech and intellect had no bearing on his decision. In light of the foregoing and this Court’s holding in Simará, we determine that the trial court’s consideration of facts not admitted in evidence, while perhaps improper, was harmless.

In his fourth assignment of error, defendant argues that the trial court erred by not granting him a contradictory hearing on his motion for new trial. He cites to LSA-C.Cr.P. art. 852 and claims that if he had been provided a hearing, he would have presented evidence to establish that he would have proceeded differently at trial had he known that facts not in evidence would be considered and that his silence at trial would be held against him. Defendant further asserts that the cases upon which the trial judge relied to support his decision to not hold a contradictory hearing should be overturned. In response, the State refers to the jurisprudence cited by the trial judge and submits that this assignment of error is without merit.

In State v. Davis, 00-278 (La.App. 5 Cir. 8/29/00), 768 So.2d 201, 208, writ [17denied, 00-2730 (La.8/31/01), 795 So.2d 1205, the case cited by the trial judge, this Court noted that “historically the method of hearing motions for new trial has been left to the trial judge’s discretion.” (quoting State v. Jackson, 570 So.2d 227, 231 (La.App. 5 Cir.1990)). The Davis court also quoted a Louisiana Supreme Court ruling on the issue:

The method of hearing motions for new trial is left to the discretion of the judge. If the reading of the motion imparts to him sufficient knowledge to enable him to intelligently dispose of the matter, he cannot be arbitrarily required to delay his ruling for the purpose of further hearing or argument. The accused is not entitled to compulsory process to obtain witnesses in support of his motion for a new trial, and the examination of witnesses to prove newly-discovered evidence is within the discretion of the trial judge.

Id. (quoting State v. Varnado, 154 La. 575, 97 So. 865, 868 (1928)). Additionally, the court noted that in State v. Barfield, 292 So.2d 580 (La.1974), the Louisiana Supreme Court found no error when the trial court disposed of a motion for new trial on the basis of affidavits submitted with the motion. The supreme court observed that “[a]n evidentiary hearing was not necessary and would have been merely repetitious because of the affidavit.” Barfield, 292 So.2d at 582.

In the instant ease, the trial court considered a memorandum and a supplemental memorandum in support of defendant’s motion for new trial, as well as the State’s opposition to the motion for new trial. Indeed, in its denial of defendant’s motion for new trial, the court even stated:

In this case, the court has read several lengthy motions that present all of defendant’s arguments in favor of granting a new trial. This court feels that we have a complete understanding of the arguments that will be heard at a contradictory hearing, and find that no such hearing is necessary in order to make a ruling on the Motion for New Trial.

Consequently, we find that the trial judge was sufficiently well-versed on the issues and that a hearing was unnecessary, Thus, we determine that defendant has 11snot shown that the trial court abused its discretion in declining to hold a hearing on defendant’s motion for new trial.

In his fifth assignment of error, defendant argues that the State failed to prove that two of defendant’s former DWI offenses occurred within the ten-year cleansing period. He contends that the stipulation by the State and defense that defendant has three prior DWI convictions established only the conviction dates, not the commission dates of the offenses. Defendant further argues that because the two prior convictions were misdemeanors, the rules governing the institution of prosecution of misdemeanors require institution of prosecution within two years of the offense, and the case must be tried within one year of the institution of prosecution, these offenses could have occurred as early as three years prior to the conviction dates, or, on December 6 and 13, 1996. In light of this and because the State did not establish the commission dates of these two offenses, defendant contends that he was improperly adjudicated a fourth DWI offender.

The State responds by citing State v. Ostrom, 43,166 (La.App. 2 Cir. 4/9/08), 980 So.2d 890, writ denied, 08-1005 (La.12/19/08), 996 So.2d 1131, in which that court held:

Since the predicate offense is not a “material ingredient” or element of the criminal DWI conduct upon which the ac■cused’s present arrest and prosecution are based, the state should not be required to prove the commission dates of the predicate offenses when the proven conviction dates for those crimes are well within the applicable ten-year period.

Ostrom, 43,166 at 14-15, 980 So.2d at 898.

|19See also, State v. Chapman, 625 So.2d 1351 (La.App. 3 Cir.1993), writ denied, 634 So.2d 402 (La.1994) (where the court held that the omission of the dates on which prior DWI offenses occurred is of no consequence to the validity of an indictment that charged a third offense DWI and specified only the dates of prior convictions).

In the instant case, the conviction dates for the offenses at issue are December 6 and 13, 1999. Since the present offense was committed on December 27, 2007, LSA-R.S. 14:98(F)(2) mandates that DWI offenses committed prior to December 27, 1997 are not to be considered for enhancement of the present offense. However, the commission dates of the pri- or offenses were not determined at trial. Nonetheless, following Chapman and Os-trom, because the conviction dates are well within the ten-year period, the State was not required to prove the commission dates of the prior offenses. This assignment of error has no merit.

ERROR PATENT DISCUSSION

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

The record shows that defendant’s sentence is illegally lenient for two reasons. One, the record does not reflect that the trial court ordered defendant’s vehicle to be seized, impounded, and sold at auction as required by LSA-R.S. 14:98(E)(2)(a). Although there are exemptions from seizure, the vehicle here does not fit within the prescribed conditions for exemption as provided in LSA-|R.S.2q 14:98(E)(2)(b) and (c). Similarly, in State v. Simms, 03-1459 (La.App. 5 Cir. 12/28/04), 892 So.2d 111, 123, this Court found the defendant’s sentence was illegal because.the sentencing judge allowed the defendant to keep his vehicle, upon the condition that he pay his fine and fees. This Court determined that this was a ground for remand to determine whether the defendant’s vehicle should be seized and sold. Id.

Secondly, the record does not reflect that the trial court imposed all of the conditions of home incarceration as required by LSA-R.S. 14:98(E)(3). At the time of the offense, LSA-R.S. 14:98(E)(3) provided:

(a) An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:
(i) Electronic monitoring.
(ii) Curfew restrictions.
(iii) Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months. After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.
(b) The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense. The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.
(c) Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

|21,In State v. Simms, supra, 892 So.2d at 122-23, this Court found the following statements by the sentencing judge regarding home incarceration did not comply with LSA-R.S. 14:98(D)(3) : “And home incarceration, let me explain for your information, that means that activities outside of your home shall be limited to traveling to and from work, church services, substance abuse meetings and counseling, and/or court approved driver improvement program, which Pm also ordering driver improvement program also.” The Simms court also noted that the defendant was not given a certificate of conditions of home incarceration, as required by LSA-C.Cr.P. art. 894.2(D). The Court concluded that because the trial court failed to impose all of the required conditions of home incarceration, the sentence was illegally lenient.

In the instant case, the trial judge made the following statements regarding defendant’s home incarceration: “We impose the one year home incarceration. The terms of it will include curfew restrictions and other issues and concerns that the probation officer may have.” The judge subsequently stated, “I am going to admit Mr. Delaneuville to approach trial bail. In other words, an appellate bail, and impose conditions of house arrest, and no driving during that period, as a balancing of the various concerns, obligations, and rights here.” (Emphasis supplied). The judge also stated, “Typically, I let him go to a job, his attorney, a doctor, and a church.”

In addition to these vague conditions, a review of the record reveals that the trial judge failed to make any mention of electronic monitoring, home visitation, employment, or a driver improvement program as required by LSA-R.S |22 14:98(E)(3)(a) and (b). Also, the record does not reflect that the defendant was given a certifícate of conditions of home incarceration, as required by LSA-R.S. 14:98(E)(3)(c) and LSA-C.Cr.P. art. 894.2(D).

In light of this Court’s holding in Simms, the vague conditions and apparent deficiencies regarding the imposition of defendant’s home incarceration, and the failure of the trial court to order defendant’s vehicle seized, impounded, and sold at auction, we find that defendant’s sentence is likewise illegally lenient. Therefore, as this Court did in Simms, we vacate the sentence and remand the matter for resen-tencing for clarification and compliance with LSA-R.S. 14:98(E). Simms, 03-1459, 892 So.2d at 124.

DECREE

Accordingly, for the reasons assigned herein, defendant’s conviction is hereby affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING

      . Defendant's surname is spelled differently throughout the record. For the sake of consistency, it will be spelled Delaneuville herein.

      . Defendant and the State stipulated that at trial the State would introduce the testimony of Agents Aron Hastings and Lester Rulf by introducing the transcript of their testimony given at the Motion to Suppress hearing held on October 21, 2009. These facts are derived therefrom.

      . The 11-year-old boy was later identified as Justin Delaneuville.

      . In his incident report, Sgt. Hastings indicated that the odor of an alcoholic beverage was "strong” and that defendant’s level of impairment was "obvious.”

      . In his incident report, Sgt. Hastings indicated that a pistol and a shotgun were recovered from the vehicle and that both weapons had been fired recently.

      . In his incident report, Sgt. Hastings noted “Subject held on to his vehicle numerous times for balance while talking.”

      . In his incident report, Sgt. Hastings indicated that defendant's speech was "slurred.” Also contained in the report was the agent’s observation that "Agent could detect bloodshot eyes and slow movements by the subject’s head and eyes.”

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id.

      .In his brief, defendant relies on the National Highway Traffic Safety Administration’s guideline for identifying signs of driving while intoxicated. However this Court has found the Louisiana Department of Public Safety and Transportation’s training manual for in-toxilyzer testing as well as the U.S. Department of Transportation and Safety's standards for DWI investigations to be irrelevant. State v. Conner, 02-363 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 406, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

      . The defense and State stipulated at trial to defendant’s three prior DWI convictions. However, in this appeal, defendant argues that two of his three prior DWI convictions were ineligible to be used in adjudicating him a fourth DWI offender.

      . Doyle v. Ohio precludes the State from impeaching a defendant’s testimony at trial with evidence that he remained silent immediately after his arrest and after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Richards, 99-67 (La.9/17/99), 750 So.2d 940, 940. The Louisiana Supreme Court found that Doyle rests on the premise that Miranda warnings render the subsequent silence of a defendant "insolubly ambiguous,” and thereby make later use of that silence to impeach his or her exculpatory testimony at trial fundamentally unfair. Id.

      . The trial court's ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bazley, 09-358, p. 17 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039.

      . LSA-C.Cr.P. art. 852 provides: "A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.”

      .At the time of the offense, LSA-R.S. 14:98(F)(2) provided in pertinent part:
      For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section ... if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder.

      . See LSA-C.Cr.P. art. 572(A)(3).

      . See LSA-C.Cr.P. art. 578(A)(3).

      . It is worth noting that, like the instant case, in Ostrom, the State and defense also entered into a stipulation concerning the existence of three prior convictions. Ostrom, 43,-166 at 3, 980 So.2d at 892.

      . At the time of the offense, LSA-R.S. 14:98(E)(2)(a) provided:
      In addition, the court shall order that the vehicle being driven by the offender at the time of the offense be seized and impounded, and be sold at auction in the same manner and under the same conditions as executions of writ of seizure and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.

      .At the time of the offense, LSA-R.S. 14:98(E)(2)(b) provided:
      The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated. If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.
      LSA-R.S. 14:98(E)(2)(c) provided: "In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.”

      . At the time of the offense, LSA-C.Cr.P. art. 894.2(D) provided: “The defendant shall be given a certificate setting forth the conditions of his home incarceration and shall be required to agree in writing to the conditions.”

      . It is noted that Subsection D was at issue in Simms, as opposed to Subsection E like in the present case, because the defendant in Simms was convicted of a third offense of driving while intoxicated. Despite this difference, the provisions governing home incarceration for a third offender are the same as those for a fourth offender.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Mary HART, Plaintiff-Appellant v. MASUR DEAN—Joanna Scott, Defendant-Appellee.
    No. 47,012-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2012.

      Mary Hart, In Proper Person-Appellant.
    Shotwell, Brown & Sperry, Monroe, LA, by Marshall T. Napper, for Defendants Appellee, Jonna Scott Becton and Interve-nor-Appellee Sig Masur and Sons, Inc. d/b/a Masur-Dean Properties.
    Before BROWN, DREW & SEXTON (Pro Tempore), JJ.
   DREW, J.

_]jFrom a judgment rejecting her demands for damages against the landlord which had evicted her, Mary Hart appealed.

Hart sued in proper person in 2011 to recover her deposit, her moving expenses, and her damages for pain and suffering, all based upon allegations that:

The landlord’s submission of a negative credit report prevented her from being able to rent another residence to house her children, which inability resulted in her mother getting custody of the ehil-dren, further resulting in Hart having to pay child support to her mother.

Correspondence in the record showed documentation of Hart’s debt amounting to $1,544.69 was reported to Experian.

This dispute was the subject of an earlier judgment of eviction dated January 19, 2010, from which plaintiff did not appeal.

For the following reasons, the judgment rejecting her claim for damages is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The lease signed by Mary Hart and Shaun Natt (Hart’s boyfriend) reveals that they rented the apartment on a month-to-month basis beginning October 21, 2009, for $585.00 per month. The lessor was Sig Masur & Sons, Inc. d/b/a Masur-Dean Properties. Jonna Scott, Masur-Dean’s property manager, conducted the transaction with Hart and Natt. The rent was due on the first of each month.

12After Hart, Natt, and four of her children moved into the Masur-Dean apartment in late October 2009, the property manager, Scott, sent Hart and Natt a letter dated November 19, 2009, stating that complaints had been made about her children playing on the stairs while waiting for the school bus. The lease prohibited anyone from playing or hanging out on the stairs at any time. The lessees were instructed that they were required to wait for the bus with the children either inside the apartment or outside. Additionally, the property manager received complaints that more children lived in the apartment than were listed on the lease applications, another violation. Lessees were asked to come in to discuss the issue. At that meeting, Hart stated that Scott told her she had to vacate the apartment.

On December 1, 2009, Scott sent Hart and Natt a letter stating they had previously been asked to vacate the apartment by November 30, 2009. Failure to turn in the keys by the next morning would result in commencement of eviction.

On December 2, 2009, the Monroe City Marshal delivered an eviction notice to Natt, Hart, and all other occupants directing them to vacate the apartment in five days, with failure to vacate resulting in eviction proceedings against them. Nonetheless, attorneys for the parties attempted to resolve the dispute amicably.

On December 18, 2009, the property manager sent Hart and Natt a letter instructing them to provide the names and ages of all children residing in the apartment. The manager noted that moving additional persons into the apartment was a clear violation of the lease. The lessees were given |suntil December 21, 2009, to supply to the property management the names and ages of the children residing in Hart’s apartment along with custody documentation for those children. Hart was informed that a failure to respond timely would result in the setting of a court hearing on the lease violation.

Even then, through attorneys representing Masur-Dean and Hart, an effort was made to resolve the dispute. However, a proposed settlement dated January 6, 2010, was never executed. On January 11, 2010, the rule of eviction was filed in the Monroe City Court and the matter was set for hearing on January 19, 2010, the date on which the judgment evicting Hart and Natt was signed.

On February 25, 2011, Mary Hart sued the property manager, Scott, seeking damages resulting from a credit report of the eviction that was made to Experian. Hart sought $2,000 in pain and suffering because she allegedly could not rent another apartment due to the credit report and because she was required to pay child support to her mother. Additionally, Hart sought moving expenses and a return of her deposit on the apartment.

In its answer and reconventional demand, Masur-Dean asserted that Jonna Scott (Becton, at the time of trial) was its employee. Masur-Dean stated that Hart and Natt leased the apartment and failed to pay rent for December 2009 and January 2010 totaling $1,170.00. Additionally, Masur-Dean asked for $125.00, the amount of the costs in the eviction suit, along with $249.69 in attorney’s fees under La. R.S. 9:3259. Answering, Hart |4asserted that her rent was due on the fifth and that she paid it on the second of the month.

Witnesses at the trial on May 18, 2011, were Hart and Scott. The matter was taken under advisement. The judgment containing reasons rejecting Hart’s monetary demands was signed and filed on July 7, 2011. Hart then appealed.

TESTIMONY

Hart testified she and her children resided with her husband in Winnsboro until 2009, when the couple separated. She and the children then moved into her mother’s home in Winnsboro. At the end of October 2009, Hart and four of her children (ages 9, 8, 7, and 5) along with her boyfriend, Natt, moved into the Masur-Dean apartment. Due to complaints about her children, Hart was informed by Scott on November 20 that she had to vacate the apartment. Eviction proceedings commenced in December culminating in the January 19, 2010, eviction judgment. The maintenance man from the Masur-Dean apartment informed Hart that she had missed court and had to remove her things from the apartment.

Hart testified that she paid her deposit and rent for November 2009 after which she received the letter (dated November 19, 2009) from Masur-Dean with the complaints about her children. Stating she had seven children (at that time), Hart testified she had four school-age children residing with her. The lease applications in the record listed three children as occupants. On December 2, Hart received the eviction notice which the | ¿Monroe City Marshal placed upon her door. Hart’s attempts to pay the rent thereafter were rejected by Scott, since the eviction process had begun.

Hart’s testimony was that she had missed the January 19 court date because she had misplaced the papers and did not remember to attend court. In later testimony, she stated transportation issues prevented her from attending court.

When Hart vacated the premises, she and the children resided briefly at her mother’s house. However, the two women could not get along and her mother informed Hart she could not live there. Hart signed custody of the children back over to her mother. Subsequently, Hart was ordered to pay child support. At trial, Hart’s mother had custody of six of Hart’s eight children. When the “child support people” learned Hart no longer resided with her mother, she was required to pay $288.75 per month beginning in October 2010 as child support for the children in her mother’s custody.

According to Hart, she tried to rent another apartment months later and learned that information about the “broken lease” had been placed upon her credit report, making her ineligible to obtain another apartment.

On cross-examination, Hart acknowledged the lease was on a month-to-month basis and that the lessor had the right to terminate the month-to-month lease 10 days before the end of the month. Hart stated she tried to pay rent for December which was refused and she admitted in pleadings and testimony that she vacated the apartment on January 19, the day the eviction judgment was signed. Hart acknowledged three children were listed on the lease applications and that four children were living in the apartment.

|fiJonna Scott testified for the defense that she was the Masur-Dean property manager and that she rented the apartment to Hart. The lease applications from Hart and Natt, her boyfriend, both listed Hart, the boyfriend, and three children as residents of the apartment. Scott identified the lease paperwork and the letters sent to Hart informing her of complaints about the children and directing her to vacate the premises. Also identified was the eviction notice from the Monroe City Marshal.

Scott also identified the November 29, 2010, letter sent to Hart showing the calculations of the $1,544.69 reported to Ex-perian including the rent due for December and January, along with the attorney’s fees, court costs, and late fees. The letter erroneously states, “This is the amount given to the judge and awarded in the judgment.” Scott testified the report to the credit agency was a standard practice when money is owed Masur-Dean.

An attempt to negotiate a settlement between Masur-Dean and Hart was undertaken by counsel for the litigants. Scott identified the unsigned settlement agreement on Masur-Dean letterhead and dated January 6, 2010. The proposed settlement was that Hart and Natt pay the rent for December 2009 and January 2010 and vacate no later than January 31, 2010. Following a satisfactory inspection on February 1, 2010, the landlord agreed to refund $250 of the deposit to the lessees. Scott stated Hart failed to keep the agreement reached by attorneys. Therefore, the rule for eviction was scheduled for a court date.

Hart’s only objection to the admission of Masur-Dean’s documentary evidence was to the unsigned compromise, which was admitted over Hart’s |7objection, for the purpose of establishing there was an attempt to settle with Hart. Hart stated that she never saw the proposed settlement document and did not know about it.

REASONS AND JUDGMENT

The trial court noted that the proper defendant was the intervenor, Masur-Dean, of which Scott was an employee. Hart’s claim was rejected in toto with the trial court noting a proper eviction was signed on January 19, 2010. An exhibit placed into the record reflected the invoices forming the basis for the filing with Experian. Hart violated the lease by having more children living in the apartment than were listed on the applications. Since the eviction proceedings were underway, Masur-Dean did not accept rent for December 2009 and January 2010.

The trial court observed that Hart provided no proof via medical bills that she sustained damage. Reviewing the contentious relationship between Hart and Mas-ur-Dean, the court observed that, although it was unfortunate that Masur-Dean made the negative report on Hart’s credit, the lessor was within its rights to do so. Costs were divided between the parties.

DISCUSSION

The trial court judgment was silent on Masur-Dean’s reconventional demands against Hart for a total of $1,544.69. When a judgment is silent as to a demand, it is presumed that the demand has been denied. Bell Foundry Co. v. Lonnie McCurry’s Four Wheel Drive Center, Inc., 46,553 (La.App.2d Cir.10/5/11), 75 So.3d 529, writ denied, 2011-2467 (La|1/20/12),8 78 So.3d 145. Only Hart appealed; Mas-ur-Dean did not appeal or answer plaintiffs appeal. When a party does not appeal or answer an appeal, that party may not seek any modification or reversal of the judgment. La. C.C.P. art. 2133; Matthews v. Consolidated Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191. Therefore, the monetary relief sought in Masur-Dean’s reconventional demand is not before this court.

Unappealed, the eviction judgment has long been final. Hart’s complaints about alleged defects in the eviction proceedings are barred by that judgment. Even if we were to examine the merits, a cursory examination of the record demonstrates the baseless nature of her complaints.

The Monroe City Marshal placed the formal notice of eviction on Hart’s apartment door on December 2, 2009. Hart asserted that the standard form eviction notice used by the Monroe City Marshal stated the reason was “you are in arrears with the payment of rent for said accommodations, and an undesirable tenant.” Hart stated that she tendered the December rent which Masur-Dean refused to accept because Hart had been instructed to vacate the apartment. Scott corroborated this. Scott also testified that by January 2010 when the eviction rule was filed, Hart continued to occupy the apartment without payment of rent for December and January.

As to Hart’s violation of the lease, the lease agreement provided that the apartment was to be occupied only by tenant and dependents listed on the applications. Another of Hart’s assertions was there was no proof ^presented that she had more children in the apartment than were listed on the lease. Scott identified the applications of Hart and Natt that listed three children as residents. That issue is resolved by Hart’s own testimony admitting that four of her children resided in the apartment.

These explanations on the merits are not necessary to the resolution of this matter but are included for the benefit of the appellant, who is proceeding in proper person.

• The terms of the lease itself belie Hart’s complaint about the unrefunded $300 damage deposit which was subject to the automatic deduction of the $50 cleaning fee and the cost of any necessary repairs. The remainder of the deposit was not refundable unless the tenant occupied the apartment for a full 12 months. Hart stated she moved into the apartment at the end of October 2009 and vacated the premises on January 19, 2010. Under the terms of the lease, that portion of which was initialed by Hart and Natt, the deposit was not refundable.

• No judgment casting Hart with paying Masur-Dean’s court courts, fees, and attorney’s fees is before this court.

• Hart’s complaint that Masur-Dean reported to Experian that Hart owed rent money for the entire month of January is also addressed by the lease agreement itself which stated that rent would not be prorated if the tenant vacated the apartment during the month.

Hart correctly noted in brief that her action for damages arising out of what she contends was a wrongful eviction is not barred by the eviction judgment. In Horacek v. Watson, 2006-210 (La.App. 3d Cir.7/5/06), 934 So.2d 908, the court reversed the trial court’s judgment sustaining an exception of res judicata in a lessee’s action for damages arising out of an eviction. Like this dispute, the Horacek eviction action was filed in a summary proceeding via a rule to show cause in the city court. The lessee’s subsequent suit for damages required a suit by ordinary process and the |inrequest for damages was not barred by res judicata. Horacek, supra. In addition to the different procedural vehicles required to pursue the eviction and Hart’s claim for damages, res judicata would not be applicable to Hart’s damage claim, since the issue about the negative report had not arisen at the time of the eviction judgment.

After listening to Hart’s allegations, testimony, and documents placed into the record, the trial court correctly found that Hart had failed to prove a wrongful eviction or that she had sustained any damages such as pain and suffering. She offered nothing to substantiate her assertions of moving expenses. Her pain and suffering from her own testimony appeared to consist primarily of her anger at having to pay child support to her mother, who assumed custody of six (including the four who lived in the Masur-Dean apartment) of her eight children. Hart made no showing of any defects in the eviction proceedings and took no appeal therefrom barring her complaints about those proceedings. Her allegations that she was prevented from renting another apartment due to the report were unsupported.

DECREE

Finding no clear wrong or manifest error in the trial court’s decision rejecting Hart’s claims for damages, we will not disturb the judgment which was within the trial court’s discretion.

With costs of this appeal assessed against appellant, Mary Hart, the judgment is AFFIRMED.

      . A Civil Deputy Clerk of Court, Monroe City Court, has furnished to this court a certificate establishing that the January 19, 2010, judgment of eviction is final and that no appeal or other action seeking review or reversal of the judgment was taken.

      . Although referred to in the record and pleadings as "Joanna Scott,” Ms. Scott testified and signed on documents placed into evidence as Jonna Scott.

      . Included were rent for December 2009 and January 2010 totaling $1,170.00, $125.00 in court costs in the eviction suit, and $249.69 in attorney's fees.


author: PIERCE, Justice,

text:
    Tadise SEALES a/k/a Tadise Raymanuel Seales v. STATE of Mississippi.
    No. 2010-KA-01525-SCT.
    Supreme Court of Mississippi.
    March 29, 2012.
    Rehearing Denied June 28, 2012.

      ' Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General By: Lisa Lynn Blount, Scott Stuart, attorneys for appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Tadise Seales was convicted of grand larceny following a jury trial in the Neshoba County Circuit Court. Seales appeals his conviction, asserting that the trial court erred in (1) not suppressing his confession and (2) denying his motion for a directed verdict. Finding no merit to either averment, we affirm the trial court.

FACTS AND LEGAL PROCEEDINGS

¶2. On August 19, 2009, Johnny Holl-ingsworth discovered his “Troybilt” tiller was missing from his property located in Philadelphia, Mississippi, and he reported it missing to the Neshoba County Sheriffs Department. A few days later, Hollings-worth noticed his utility trailer was also missing. Before Hollingsworth could report the missing trailer, Sheriffs Investigator Kevin Baysinger contacted Hollings-worth and informed him that both his tiller and trailer had been located at a local pawn shop. Chris Luke, a pawn-shop employee at McKee’s Gun & Pawn, had provided Baysinger information regarding the pawn transaction of the tiller and trailer which had transpired on August 19. This led to Seales’s arrest on September 4, 2009. On September 9, 2009, Seales provided and signed a written statement, transcribed by Baysinger, confessing to the crime charged.

¶ 3. The matter went to trial on July 7, 2010. Hollingsworth testified he had purchased the tiller for approximately $1,200, three years prior to the time he had discovered it missing in August 2009. Holl-ingsworth stated he had bought the trailer for $850, nearly one year prior to his purchase of the tiller. Both items, according to Hollingsworth, were in excellent condition in August 2009. Hollingsworth stated he did not know Seales, nor had he ever seen Seales prior to trial.

¶ 4. Baysinger testified after Hollings-worth. Shortly into Baysinger’s testimony, the trial court conducted a suppression hearing on its own motion, outside the presence of the jury, to determine the admissibility of Seales’s confession. The trial court heard lengthy testimony from both Baysinger and Officer Gordon Adkins of the Philadelphia Police Department. Afterward, the trial court found that Sea-les had been properly Mimndized prior to giving his statement and knew his rights, and Seales had freely and voluntarily waived those rights without any threats or promises of leniency. Accordingly, the trial court ruled Seales’s confession admissible. Despite the trial court’s ruling, the State chose not to introduce Seales’s confession during its case-in-chief.

¶ 5. Luke testified last for the State. According to Luke, Seales came into the pawn shop on August 19 seeking to pawn a tiller and trailer, both of which Seales claimed he owned. Luke entered into a pawn contract with Seales, giving Seales $450 in exchange for the trailer and tiller as collateral, with a thirty-day grace period. Luke, who stated he had sixteen year experience in the pawn business, assessed the total aggregate value of the two items at $900. Luke testified that Seales’s father came into the pawn shop thirty days later and paid off the pawn contract for $562.50; the receipt from that transaction was entered into evidence. Luke also testified that he had returned the tiller and trailer to Hollingsworth shortly after learning they had been stolen.

¶ 6. Seales was the only person to testify on his own behalf at trial. Seales admitted to pawning the tiller and trailer, but he claimed he had bought the two items from a friend for $200 and did not know they were stolen. On cross-examination, Seales acknowledged that he had provided a written statement through Baysinger on September 9, describing how he (Seales) had removed a tiller and trailer from someone’s property on August 19 and had pawned the items immediately thereafter. Seales claimed, however, the only reason he related such a story to Baysinger was because he had been in jail for “six or seven days” and both Baysinger and Adkins had promised him he would be released on bond if he told them “something.” According to Seales, he “was played with,” because despite his cooperation, he remained in jail for another three to four months on an unrelated charge of failing to pay child support.

¶ 7. After this exchange, the State sought to enter Seales’s statement into evidence. The trial court allowed the statement admitted over defense counsel’s objection.

¶ 8. Following the defense’s case-in-chief, the State called Baysinger and Adkins as rebuttal witnesses. Baysinger stated that Seales had made no mention to him of having purchased the tiller and trailer from a friend. Baysinger also testified that he had made no threats or promises to Seales in exchange for Seales’s statement. Adkins likewise testified that he had made no threats or promises to Seales.

¶ 9. Seales moved for a directed verdict after the close of evidence on the ground that the State had failed to present sufficient evidence to sustain a conviction for grand larceny. The trial court denied the motion.

¶ 10. The jury found Seales guilty. This appeal followed, with new counsel representing Seales on appeal. Additional facts will be related as necessary during our discussion of the issues.

DISCUSSION

¶ 11. We address a preliminary matter at the outset. After the appellate record was filed in this case, Seales filed a pro se motion with this Court styled “Motion for Abatement of Appeal Pending Change of Counsel, Modification of the Record, and Supplemental Briefing.” In it, Seales claimed that the trial court transcript omitted “extremely biased and prejudicial statements” by the trial judge, which influenced the jury’s guilty verdict. Seales also claimed he brought the omission to his appellate counsel’s attention, to no avail. Seales requested that this Court issue an order abating the appeal to allow him time to supplement the record and consult with his appellate counsel regarding the matter and to possibly seek new counsel. By order dated July 20, 2011, this Court granted Seales’s motion and suspended the appeal for a period of ninety days. Additionally, on August 22, 2011, Seales filed a motion to correct the record on appeal. By order dated September 16, 2011, the motion was dismissed without prejudice because Seales did not first seek relief from the trial court as required in Rule 10(e) in the Mississippi Rules of Appellate Procedure.

¶ 12. Seales subsequently filed a pro se supplemental brief on October 24, 2011. We now address the issues properly raised and briefed to this Court for review, based on the record before us.

I. Seales’s Confession

¶ 13. Seales argues that the trial court erred in not suppressing his confession, because he was incarcerated “without charges” for four days prior to giving his statement, and because his statement was coerced by the promise of a bail bond, which rendered his statement involuntary.

¶ 14. As mentioned, Seales was arrested on September 4. Based on the testimony given at the suppression hearing, Sea-les apparently was not taken before a judge for an initial appearance until September 8, the day after Labor Day.

¶ 15. Rule 6.03 of the Uniform Rules of Circuit and County Court requires that every person in custody be taken, without unnecessary delay and within forty-eight hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance. A violation of Rule 6.03 alone, however, will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver. Jones v. State, 841 So.2d 115, 132 (Miss.2003). Thus, “the failure to provide an initial appearance for an accused within the time provided is not, of itself, a reason to suppress a confession.” Id.

¶ 16. This Court addressed a similar charge asserted against the State in the case of Lawrence v. State, 869 So.2d 353 (Miss.2003), where Defendant Larry Lawrence, was not provided an initial appearance in front of a judge until six days after his arrest for burglary. The Mississippi Court of Appeals had affirmed Lawrence’s subsequent burglary conviction on direct appeal, even though it found that both Rule 6.03 and the Fourth Amendment to the United States Constitution had been violated. Id. In reviewing the case on writ of certiorari, we affirmed the decision of the Court of Appeals, but we also wrote to clarify that, although Rule 6.03 had been violated, there was no Fourth Amendment violation. Id. at 353-54.

¶ 17. Here, as in Lawrence, the record reveals that Rule 6.03 was indeed violated. The record also illustrates, however, that evidence was presented at the suppression hearing that Baysinger had informed Sea-les of his Miranda rights and that Seales had expressly waived those rights by signing a written waiver immediately after his arrest on September 4. Seales was again read his rights and signed another waiver shortly prior, to giving his statement on September 9. The only evidence presented in support of Seales’s assertion that he was coerced into giving a statement came during Seales’s trial testimony in front of the jury. The State rebutted Seales’s claim by recalling Baysinger and Adkins to testify, both of whom testified they did not threaten Seales, coerce him, or promise him anything in exchange for his statement.

¶ 18. In Jones, this Court reiterated our scope of review with this type of issue:

[I]n Stokes v. State, 548 So.2d 118, 122 (Miss.1989), this Court held that when the circuit court expressly or implicitly resolves the issue of admissibility of a confession against a defendant, our scope of review is confined to the established limits. In Alexander v. State, 610 So.2d 320 (Miss.1992) (internal citations omitted), this Court set out the standard of review on voluntariness of confessions, finding it is essentially a fact-finding function. So long as the court applies the correct legal standards, “we will not overturn a finding of fact made by a trial judge unless it be clearly erroneous.” Where, on conflicting evidence, the court makes such findings this Court generally must affirm. Id. at 326. See also Veal v. State, 585 So.2d 693, 697 (Miss.1991) (this Court will not reverse trial court on conflicting testimony as to whether coercion used to obtain confession).

Jones v. State, 841 So.2d at 131.

¶ 19. In keeping with Jones and Lawrence, we find no reversible error in the trial court’s decision not to suppress Seales’s confession. The record amply supports the trial court’s finding that Sea-les was informed of his rights and had made a knowing and voluntary waiver of those rights, without any threats or promises, prior to giving his statement. Sea-les’s claim of error is without merit.

II. Directed Verdict

¶ 20. Seales contends the trial court erred by overruling his motion for a directed verdict. He argues the State failed to present sufficient evidence during its case-in-chief to convict him of grand larceny, as the State merely established that he had pawned a tiller and trailer, but failed to show he had taken the two items from Hollingsworth’s property.

¶21. The State argues that Seales is procedurally barred from raising a sufficiency-of-the-evidence claim on appeal. The State submits that Seales waived his appeal of the motion for a directed verdict made at the close of the State’s case-in-chief, when Seales testified on his own behalf and then failed to renew the motion afterwards. The State further argues that despite the bar, Seales’s contention fails on the merits, because the State presented sufficient evidence during its case-in-chief to sustain a conviction for grand larceny.

¶ 22. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The motion should be granted only when there is an absence of evidence on one or more elements of the offense charged. Id. A defendant waives the appeal of an overruled motion for directed verdict made at the end of the State’s case when the defendant chooses to go forward with his or her own case. See Stever v. State, 503 So.2d 227, 230 (Miss.1987) (“To do otherwise requires the heart of a gambler and nerves of steel, yet to go forward with the evidence waives this assignment of error.”). Review of a directed-verdict motion made at the end of all evidence presented in the case “requires that we accept as true all evidence favorable to the [S]tate, together with reasonable inferences arising therefrom, to disregard the evidence favorable to the defendant, and if such evidence would support a verdict of guilty beyond a reasonable doubt,” we must affirm the trial court’s denial of the motion. Id. (quoting Haymond v. State, 478 So.2d 297, 299 (Miss.1985)).

¶ 23. According to the record, the only motion for a directed verdict in this case came after the close of all trial evidence. Thus, contrary to the State’s contention, we find that Seales preserved his challenge as to the sufficiency of the evidence. But because Seales presented his own case following the State’s, we must consider the sufficiency of the evidence on the basis of all the evidence offered at trial, under the standard of review just related. Id.

¶ 24. Grand larceny is defined as the “taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more.... ” Miss.Code Ann. § 97-17-41(1) (Rev.2006). Here, the evidence clearly established a crime of grand larceny. There is no dispute that Hollingsworth was the actual owner of the tiller and trailer pawned by Seales on August 19, or that the items were stolen from Hollingsworth’s property earlier that same day. Nor is there any argument challenging the evidence presented showing that the items’ aggregate market value on August 19 was at least $500. See id. (“The total value of property taken and carried away by the person from a single victim shall be aggregated in determining the gravity of the offense.”); see also Gunn v. State, 56 So.3d 568, 571 (Miss.2011) (reiterating that “the proper measure of the value of property is the market value of the property at the time and place of the larceny, rather than the original purchase price”). The only question left for this Court to consider is whether sufficient evidence was presented to show that Seales committed the crime.

¶25. “Under Mississippi law, possession of recently stolen property is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt.” Rushing v. State, 461 So.2d 710, 712 (Miss.1984). “In order to give rise to an inference of guilt from the fact of possession, the State has the burden of proving possession by the accused of stolen property to have been personal, recent, unexplained, and exclusive.” Id. Generally, the evidence is sufficient for larceny if the explanation is not reasonable and credible. Presley v. State, 994 So.2d 191, 195 (Miss.Ct.App.2008) (citing Wilson v. State, 237 Miss. 294, 301, 114 So.2d 677, 680 (1959)).

¶ 26. The evidence indisputably showed that Seales was in exclusive possession of Hollingsworth’s tiller and trailer and had claimed ownership of the items on the same day the items had disappeared from Hollingsworth’s property. Two versions of the facts, however, were presented at trial as to how Seales came into possession of Hollingsworth’s tiller and trailer on August 19.

¶ 27. Seales testified on direct examination that an individual by the name of Donnie Shannon had brought the tiller and trailer to him and offered him the items in exchange for “crack rock.” According to Seales, he initially declined the offer; but he then decided to give Shannon $200 for the tiller and trailer. Seales stated that after he bought the items from Shannon, he offered them to his grandfather. When Seales’s grandfather declined the offer, Seales decided to pawn the items to get his money back.

¶ 28. On cross-examination, Seales acknowledged that he had told a different story to Baysinger. According to that account, Seales went to a house located on “Pow-Wow” road, where he had seen a trailer. When Seales backed up to the trailer, he spotted a tiller located by a shed. Seales went over to the tiller, cranked it, and drove it onto the trailer. Seales then went straight to the pawn shop and pawned the items for $450.

¶ 29. The differing accounts simply presented a jury question. And as this Court has stated before, the jury is the sole judge as to whether or not an explanation given by the accused is reasonable and credible. Pearson v. State, 248 Miss. 353, 363, 158 So.2d 710, 714 (Miss.1963).

¶ 30. Viewing the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Seales of grand larceny. Any rational trier of fact could have found beyond a reasonable doubt that the State had proven all the elements of the crime. This issue is without merit.

CONCLUSION

¶ 31. The judgment and sentence of the Neshoba County Circuit Court are affirmed.

¶ 32. CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, AFFIRMED. SENTENCE SHALL BE SERVED WITHOUT THE BENEFIT OF PAROLE, SUSPENSION OR REDUCTION. APPELLANT IS GIVEN CREDIT FOR 259 DAYS OF JAIL TIME.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).