author: AMY, Judge.

text:
    STATE of Louisiana v. Sherri Ann SEPULVADO.
    No. 10-435.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied May 4, 2011.

      Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Sherri Ann Sepulvado.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

_JjThe defendant was charged with first degree murder and aggravated arson. The State later amended the bill to charges of second degree murder and aggravated arson. After a bench trial, the defendant was convicted of manslaughter and aggravated arson. The trial court imposed a fifteen-year sentence on the aggravated arson conviction and thirty-year sentence on the manslaughter conviction. Following a hearing on a motion for new trial, the trial court re-sentenced her to twelve years at hard labor on the arson conviction. The defendant appeals.

Factual and Procedural Background

This case involves the death of LaTasha Nigerville, whose body was found in her Zwolle, Louisiana home on September 25, 2006. The record establishes that firefighters responded to a fire at her home on that date and that a firefighter discovered her body while clearing debris from the house.

The State alleged that on the evening of September 24, 2006, Sherri Sepulvado, Chad Rivers and Martrell Lynch were with LaTasha at her residence, as were Jerrick Thomas and Patrick Penegar. The State argued that, at some point during an evening of drug use by the group, Ms. Sepulvado and LaTasha became involved in a physical altercation and that the defendant struck the victim in the head with a small bat. The State argued that LaTasha fell and was not making sounds or moving. It contended that her clothes were removed, a mattress was placed on top of her, and that gasoline was poured onto the mattress and set ablaze. The State contended that the group then left the home.

Sherri (hereinafter “the defendant”), Chad, and Martrell were indicted for first degree murder and aggravated arson in December 2006. The murder charge was later reduced from first degree murder to second degree murder. While Martrell entered |2into a plea agreement with the State during the co-defendants’ October 2009 bench trial, the case proceeded against the defendant and Chad. The trial court acquitted Chad of second degree murder, but convicted him of aggravated arson. The trial court convicted the defendant of manslaughter and aggravated arson.

In February 2010, the trial court denied the defendant’s motions in arrest of judgment and new trial. It then sentenced her to thirty years imprisonment at hard labor for the manslaughter conviction and fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence for the aggravated arson conviction. The trial court denied the defendant’s motion to reconsider sentence. The trial court granted the defendant’s appeal on March 15, 2010. This appeal was taken from the manslaughter and aggravated arson convictions.

Subsequently, in May 2010, Chad filed a motion for post-verdict judgment of acquittal, arguing that the evidence demonstrated that LaTasha was dead at the time the fire was set. Thus, • he argued that he could not have been convicted of aggravated arson, that the evidence only supported a simple arson conviction and that his acquittal of second degree murder indicated that the trial court found that LaTasha was dead at the time of the fire. The trial court granted the motion, and sentenced Chad to twelve years at hard labor.

Subsequently, the defendant filed a “Motion for New Trial,” asserting that the granting of the motion for post-verdict judgment of acquittal constituted newly discovered evidence. She referenced Chad’s assertion that the evidence indicated that LaTasha died before the fire was set. At the August 26, 2010 hearing on the motion, | ¡¡defense counsel requested the same relief granted to Chad, i.e., the reduction of the aggravated arson conviction to simple arson. The trial court denied the motion. However, the minutes from the hearing provide that the trial court “amended the charge the defendant was convicted of to Simple Arson instead of Aggravated Arson.” The transcript reflects that the trial court sentenced the defendant to twelve years at hard labor, to be served concurrently with the thirty-year sentence.

The defendant appeals, arguing that: 1) the State presented insufficient evidence to sustain the manslaughter and simple arson convictions; 2) the trial court erred in denying her motion for bill of particulars; 3) the State failed to provide timely discovery of evidence; 4) the proceedings violated the protection against double jeopardy; 5) the trial court erred in denying her motion for mistrial upon the prosecutor’s reference to her failure to testify; and that 6) the sentences are excessive.

Discussion

Errors Patent

Our review of the record in accordance with La.Code Crim.P. art. 920 reveals no errors patent on the face of the record that require correction.

Sufficiency of the Evidence

The defendant first asserts that “[t]he evidence presented by the State against [her] was insufficient to support convictions of manslaughter and arson.” We first turn to the latter conviction.

Simple Arson

Both the defendant and the State contend that, at the hearing on the motion for new trial filed after the order of appeal was entered, the trial court “reduced” the defendant’s aggravated arson conviction and entered a conviction of simple arson. |4The defendant’s appellate brief assumes a conviction of simple arson. However, as referenced in the factual and procedural background, the record only clearly reveals a conviction of aggravated arson. The results of the hearing on the motion for new trial are unclear as to whether the trial court vacated the defendant’s conviction for aggravated arson and convicted her of simple arson or whether she was re-sentenced.

Although it denied the motion for new trial, the trial court explained that:

[O]ut of fairness, out of equity, in my opinion when I heard this case — it was a bench trial — after looking back on the testimony and the relief that I granted Mr. Rivers, the victim in this case, in my opinion, according to the coroner’s testimony, was deceased at the time. The coroner did not say those words but that is my interpretation of his testimony, the victim was deceased at that the time that Mr. Rivers burned her body. So I do not think it fits — aggravated arson fits under the Code. I think simple arson is more appropriate. I’m going to sentence Ms. Sepulvado under the simple arson statute and give her twelve years. I’m amending her sentence regarding aggravated arson from fifteen years without benefit to twelve years at hard labor concurrent with the thirty year sentence that she’s serving.

This does not indicate that the trial court disturbed the defendant’s conviction for aggravated arson. It instead appears that the trial court denied the motion for new trial, but re-sentenced the defendant. The minutes of the hearing, however, indicate the trial court vacated the aggravated arson conviction and entered a conviction for simple arson. The minutes provide that: the trial court “amended the charge the defendant was convicted of to Simple Arson instead of Aggravated Arson.” The | .^defendant argues sufficiency of the evidence with regard to a simple arson conviction. However, we find the record insufficient to address the conviction as such.

It is apparent from the trial court’s ruling that, in consideration of a ruling in the co-defendant’s ease, it felt that further action was warranted. The vehicle before it was a motion for new trial which it denied in name, but granted in effect. However, La.Code Crim.P. art. 857 does not permit the trial court to summarily modify the conviction and/or sentence. Instead, “[t]he effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.” Id. Finding that the trial court erred in effectively granting the motion for new trial, but not ordering a retrial of the aggravated arson conviction, we set aside the verdict of aggravated arson and remand for a new trial. We turn to reconsideration of the defendant’s manslaughter conviction, which was not at issue in the motion for new trial.

Manslaughter

The defendant questions the certainty of the evidence' with regard to the cause of death and contends that the testimony of alibi witnesses for her and Chad should have been favored over other witnesses linking her to the events preceding LaTasha’s death.- The defendant observes that there was no physical evidence of her involvement in the crime(s). She further asserts that the evidence connecting her to the crime involved the' testimony of two men, Patrick Penegar and Martrell Lynch, who “by their own testimony, stripped La-Tasha’s unconscious body with the intent of raping her. It was during this time Latasha died — when she was at the mercy of two men intent on raping her while she was. unconscious.” She contends that since these individuals entered pleas, they were “not available for the Trial Court to hold | ¿responsible.” She argues that her conviction followed as she and. Chad “were the only options left to the Court.”

When sufficiency of the evidence is raised on appeal, we consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have determined that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). As the trial court fulfills the role of the fact finder in weighing the credibility of witnesses, an .appellate court should not second guess those credibility determinations beyond the sufficiency evaluations under the Jackson standard. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). However, in order to affirm a conviction, the record must indicate that the State satisfied its burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

Louisiana Revised Statutes 14:31(A) provides, in pertinent part, that manslaughter is:'

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without •any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of- any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person^]

^Testimony established that LaTasha and the defendant were involved in illegal drug use and had an acrimonious relationship, including a physical altercation two weeks before this offense. As for this earlier altercation, Scott Gandy testified that he, Chad, and the defendant drove to LaTasha’s house and that the defendant stated that “she was gonna get her,- gonna whip her butt.” When LaTasha exited the house, she and the defendant began to fight. Gandy testified that the defendant had a little bat in. her hand, but that Chad took it from her. Chad’s cousin, Shane Rivers, also testified regarding this fight which occurred two weeks before the fire.

With regard to LaTasha’s death, three men, Lynch, Penegar, and Jerrick Thomas, testified that they were at LaTasha’s home on the evening of September 24, 2006, a Sunday, with the defendant and Chad. Their testimony supports a finding that, during that evening, the defendant and LaTasha again became involved in a altercation, resulting in the defendant striking LaTasha on the back of the head with a small bat. Their testimony also supports a view that the blow rendered LaTasha at least unconscious and that the defendant and Chad pulled a mattress over her body, poured gas from a can or jug, and lit the mattress on fire.

Thomas explained that he had just been released from prison on that evening. He stated that he was with Chad, who had been smoking crack cocaine, and that they traveled to a house where the latter “got a gas can.” At some point, the two also stopped at a store for purchases, including several dollars worth of gasoline. According to Thomas, after he and Chad arrived at LaTasha’s house, the defendant arrived with Lynch and Penegar. He stated that the group watched a movie and that IsLaTasha and Chad smoked crack cocaine, whereas the defendant, Lynch, and Pene-gar smoked “ice,” methamphetamine. Thomas explained that LaTasha and the defendant began to fight and that LaTasha fell onto a couch after the defendant hit her “on the back of the head with a club.”

Thomas explained that Lynch and Pene-gar then “rolled” LaTasha onto the floor, removed her clothes, and “got on top of her.” He denied that he saw them do “anything” to LaTasha during this time. He stated that LaTasha did not move or talk after she was hit by the defendant. He stated that the defendant was nearby, laughing during this time. Thomas testified that the defendant and' Chad pulled a mattress over LaTasha, that Chad poured gas from a red and black gas can over the mattress, and that “Chad and [the defendant] lit a match.” The group then left the house.

Penegar also testified that he heard La-Tasha and the defendant arguing in the bedroom. He then heard a “thump.” Penegar stated that Chad dragged LaTa-sha into the living room and that Lynch began “messing with her shirt.” Penegar explained that the defendant and. Chad covered LaTasha’s body with a mattress, that Chad started “dosing [sic] the mattress and around the mattress” with gasoline, and Chad and the defendant lit the mattress. He explained that the group ran from the house after the. mattress “caught fire.” Afterwards, Lynch accompanied the defendant home, where they stayed until the next evening and continued to use drugs. He stated that, once at the defendant’s home, she changed her clothes in the laundry room. He also testified that on the next evening, Chad arrived and assaulted the defendant.

| gPuring trial, Lynch, a co-defendant, pled guilty to accessory after the fact and agreed to testify for the prosecution in exchange for use immunity. He testified as to the defendant hitting LaTasha on the head with the “little bat,” and the removal of her clothes by himself and Penegar. Lynch stated that he stood over her intending to have sex with her, but then told Penegar that “the little bitch ain’t moving, ain’t breathing.” He also testified that Chad and the defendant placed the mattress over LaTasha, that Chad “put[ ] gas around the mattress[,]” and that Chad lit the match and threw it on top of the “the bed.” Lynch also explained that, the next evening, Chad arrived at the defendant’s home, grabbed her, and stated that they needed to talk about “what had happened.” Lynch testified that, later, the defendant asked him to “take the charge for her.”

In addition to those in the house at the time of the fire, the State presented other witnesses implicating the defendant. Amy Woods testified that, as she and the defendant drove by LaTasha’s house a few days before the fire, the defendant told her she was “going to burn that house down with that bitch in it.” She explained that the defendant called her on September 24 and told her that she was with Lynch and Penegar at her house. Around midnight, the defendant called and told her that she and Chad had gone to LaTasha’s house where she had a fight with the victim. Woods said that,- after she heard about the fire, the defendant told her that LaTasha was not in the house when it burned. She explained that, at some point, the defendant told her that she had stabbed LaTa-sha and that Chad “put a mattress on her and burned her.”

Woods also testified that; while speaking ■with the defendant on the, evening after the fire, she heard someone who sounded like Chad , yelling and stating that “they had to get their story straight.” Woods explained that a few days later, the defendant |intold her that she was going to Georgia. Woods reported that she went to the police regarding the conversations at that time.

Kelly Thurmon, the defendant’s roommate, testified that she found Lynch and Penegar in the defendant’s room in the early morning on the day of the fire. She stated that she smelled a strong odor of smoke and that she found the defendant in the adjacent laundry room changing her clothes. She also- testified regarding Chad’s arrival at the home later in the evening. She stated that he began “strangling” the defendant and that he said: “I ain’t getting nailed for this, bitch, uh, I ain’t going down for this by myself.”

Bradley Craig, identified as the defendant’s boyfriend at the time, testified that, as he and the defendant drove by the burned house a few days later, she stated: “I can’t believe I did that.” He further admitted that he told the police that the defendant confessed to him that she killed the victim. However, he testified that he lied to the police when he told them that she confessed because of threats that the Chief of Police and the fire marshall had made.

As for the victim’s cause of death, the State presented Calcasieu Parish Coroner and forensic pathologist Terry Welke, who stated that he performed the victim’s autopsy. He determined that she had a bruise on the back of her head and a broken wrist bone. Approximately eight-five percent of her body was burned. While he found no evidence of foul play and returned the body to Sabine Parish, he re-evaluáted the body after it was learned there may have been a blow to the back of the head. Dr. Welke stated that the blow that caused the bruising to her head could have rendered her unconscious, but that it was insufficient to have caused her death. He also stated that he did not believe that the drugs found in her system were sufficient | nto have caused her death. Dr. Welke testified that there was no soot in the victim’s lungs and explained this absence was significant since soot below the voice box area makes it “highly, likely that the individual was alive at the time of the fire.” However, he also stated that a very hot fire could have caused, “spasms within the upper airways which would not allow carbon monoxide or soot to go below the voice vocal cords.” Dr. Welke further stated that a person in the victim’s situation could have suffocated from the mattress, “because if the person is unconscious, they’re unable to go and turn their head or whatever the case may be and the mattress, if it’s over the face, can obviously obstruct the airways.”

An associate professor of pathology at Louisiana State University Health Sciences Center in Shreveport, James Tray-lor, also testified regarding the cause of death after review of the autopsy report. Given hypothetical facts corresponding with the victim’s situation, Dr. Traylor opined that the cause of the death was the “blunt force injury to the head. But .... asphyxia does have to be entertained as a cause of death” due to the mattress or possibly strangulation. He further theorized that death could be caused by “either direct thermal injury that could also result in asphyxia in and of itself such as was entertained earlier in a conflagration which one would expect if you had an accelerant on something and you lit it up.”

The defendant argues that in order to accept the State’s eyewitnesses to the events, “it is necessary to disbelieve the testimony of five other people.” She points to Thurmon’s statement, that the defendant was in her bedroom the night of the fire and into the morning hours, until at least 4:30 a.m. when she explained that she discovered Lynch and Penegar in the defendant’s bedroom. Thurmon . stated that she “checked” on the defendant, about 10:00 p.m., and the defendant was in her room. |1⅞ She said that she again saw the defendant at about 2:00 a.m., and she was asleep in her bed. She also explained that the door to defendant’s room made a loud noise when opened or closed, and that she did not hear the door open or close prior to finding Lynch and Penegar in the room at approximately 4:30 a.m. Monday morning.

The defendant also notes that Chad’s uncle, mother, and aunt testified that Chad’s truck was at his aunt’s house throughout the events. His uncle testified that he had disabled the battery in order to prevent Chad from driving the truck a few days before the fire as he felt that Chad was too intoxicated. Further, his mother testified that, on Sunday evening, she went to Chad’s house between 9:30 and 10:30 p.m. to talk with him, and he was sleeping.

Certainly, the Rivers family members! testimony regarding the availability of the truck was inconsistent with other evidence insofar as Thomas testified that he' and Chad traveled to the scene in Rivers’ truck. Further, Lynch testified that he and Penegar went to LaTasha’s house with the defendant in Bradley Craig’s jeep. However, Bradley Craig, identified as the defendant’s boyfriend, denied that the defendant had his jeep because he had taken the jeep away from her following an argument.

The defendant points to other inconsistencies in the accounts of the evening as well, particularly those of Thomas, Lynch, and Penegar. Yet, the testimony consistently reflected that the defendant struck' the victim with a small bat-like object, she and Chad covered the victim with a mattress, gasoline was poured, and the defendant and/or Chad lit matches to, start the fire. Testimonies also consistently reflected that the group left .the house after-wards.

Undoubtedly, inconsistencies existed in the witness testimony. However, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36, 180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writ denied, 02-2595 (La.3/28/03), 840 So.2d 566, writ denied,' 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The finder of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the witnesses’ testimonies. On review, a court may impinge on the discretion of the fact finder only to the extent necessary to guarantee the fundamental due process of law. State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). We do not impinge on that discretion here.

In sum, we find that the evidence supports the manslaughter conviction insofar as manslaughter may be a homicide committed without intent to cause death when the “offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1 [.] ” La.R.S. 14:31(A)(2)(a). According to testimony, the defendant hit the victim on the head with a bat sufficiently hard to render her unconscious, a second degree battery on the victim. Martrell Lynch also testified that the victim was not breathing pri- or to the mattress being placed over her body. Furthermore, Dr. Welke testified that there was no soot found below the victim’s voice box, which generally indicated that an individual burned in a fire such as thej_yvictim was burned was not breathing at the time the fire consumed her. In light of these factors, the evidence was sufficient to support the defendant’s conviction for manslaughter. See, e.g., State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So.2d 197, writ denied, 04-792 (La.9/24/04), 882 So.2d 1167.

We note that the defendant contends that the verdict is unsupportable without evidence affirmatively establishing the victim’s cause of death. However, the verdict could reflect the trier of fact’s right to compromise between the verdicts of guilty of second degree murder and not guilty. In State v. M.L. Jr., 09-392, pp. 5-6 (La.App. 3 Cir. 4/14/10), 35 So.3d 1183, 1187-88, quoting State v. Charles, 00-1611, pp. 4-5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519-20, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420, this court explained:

Defendant offered no evidence sufficient to support the mitigating circumstances of sudden passion or heat of blood. Thus, there was insufficient evidence for the jury to return the responsive verdict of attempted manslaughter. However, the verdict of attempted manslaughter may have reflected the jury’s right to compromise between the verdicts of guilty of attempted second degree murder and not guilty. In State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the court held that compromise verdicts are permissible, so long as the evidence supports either the verdict given or the original charge.
There was sufficient evidence for the trier of fact to have found that the State proved beyond a reasonable doubt all the elements necessary to support the charge of attempted second degree murder; therefore, a responsive verdict of attempted manslaughter was proper.

We conclude that the State’s evidence supported a verdict of second degree murder, insofar as the defendant hit the victim on the head with a small wooden bat. Second degree murder is defined as a killing when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). There was testimony that the victim was not breathing prior to the defendant and Chad pulling the mattress hsover her body. There was also testimony that the defendant attempted to use the bat on the victim a few weeks prior to the fire and had made threatening statements regarding the victim. Viewed in a light most favorable to the prosecution, we find that the evidence could indicate that the defendant intended to inflict great bodily harm when she hit the victim on the head with the small wooden bat. Accordingly, the evidence was sufficient to support a conviction of the charged offense.

This assignment of error lacks merit.

Bill of Particulars

The defendant filed a motion for bill of particulars asking the trial court to order the State to advise her as to which subsection of the second degree murder statute she was being charged with, La. R.S. 14:30.1(A)(1), specific intent to kill or to inflict great bodily harm, La.R.S. 14:30.1(A)(2), felony murder. A hearing was held on several motions, including the motion for bill of particulars. The defendant argued the State had to elect which subsection of the statute they intended to proceed under in order for her to prepare her defense. She further contended that prosecution under the felony murder theory and aggravated arson would constitute a double jeopardy violation. The trial court ordered the State to reply to the defendant’s motion for a bill of particulars within seven days of the hearing. The State subsequently filed a “State’s Answer to Motions for Bills of Particular” in September 2009. Afterwards, the trial court denied the defendants’ motions. In brief, the defendant questions the denial of her motion, asserting that the open file discovery available to her was not enough to “answer the crucial questions” of the State’s theory. She contends that this prejudiced her defense.

In State v. Winston, 97-1183, pp. 9-10 (La.App. 3 Cir. 12/9/98), 723 So.2d 506, 511, writ denied, 99-205 (La.5/28/99), 743 So.2d 659, this court stated:

The purpose of a bill of particulars is to provide an accused with sufficient information as to the nature and cause of the offense with which he is charged. State v. Wiggins, 518 So.2d 543 (La.App. 5 Cir.1987); writs denied, 530 So.2d 562 (La.1988) and 569 So.2d 979 (La.1990); State v. Frith, 436 So.2d 623 (La.App. 3 Cir.), unit denied, 440 So.2d 731 (La.1983); La.Code Crim.P. art. 484. It is now clear that the constitutional provision, La. Const, art. 1, § 13, requiring that a defendant be informed of the nature and cause of the accusation is not to be restricted to mean that he must be so informed by indictment; the defendant may also be informed of the facts by bill of particulars. State v. Griffin, 495 So.2d 1306 (La.1986); see also State v. Gainey, 376 So.2d 1240 (La.1979).
A defendant is entitled to know the alleged method of the commission of an offense when several means of commission of an offense are specified by the statute. State v. Huizar, .414 So.2d 741 (La.1982). However, a motion for a bill of particulars is’ not a method for a defendant to obtain the state’s evidence. La.Code Crim.P. art. 484; State v. Gray, 351 So.2d 448 (La.1977). It is a tool for a defendant to become informed about the nature and cause of the charge against him. La.Code Crim.P. art. 484; State v. Huizar, 332 So.2d 449 (La.1976). The bill of particulars may not be used to discover the details of the evidence, that is, to know “exactly how,” the state intends to prove its case. State v. Walker, 344 So.2d 990 (La.1977). There is no formula regarding the information the State must make available. The extent to which particulars aré granted depends on the nature and complexity of the case. State v. Miller, 319 So.2d 339 (La.1975). Reversible error occurs when there is a failure to provide a defendant information “of the nature and cause of the accusation against [him].” State 'v. Atkins, 360 So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct: 2041, 60 L.Ed.2d 402 (1979).

In Winston, the defendant was charged with felony theft of cash valued more than five, hundred dollars. The state had given defendant open file discovery access. However, he asserted that the state .failed to provide him with a bill of particulars as to the nature and cause of the charge. This court noted that the record indicated he was given copies of all police reports, arrest warrants, the statements of the witnesses,_j^and copies of the checks and deposit slips. This court affirmed the conviction, noting that the information provided apprised him of the nature and cause of the accusation.

In brief, the defendant cites State v. Johnson, 365 So.2d 1267 (La.1978), to support her position that she was entitled to a response to her motion for bill of particulars. In Johnson, the defendant was charged with attempted armed robbery and attempted second degree murder. The defendant filed a-motion for bill of particulars, requesting that the state specify which of the statutory methods of committing the crime was charged, so that he could prepare his defense. The state responded only that it was not required to specify the subsection under which it was prosecuting the defendant. The trial court ruled this answer was sufficient. Although the supreme court did not agree with the trial court, it affirmed the convictions and stated:

The use of a short-form indictment, as in this case, contemplates that the accused may procure details as to the alleged statutory method(s) by which he committed the crime charged through a bill of particulars. Official Revision Comment (b), La.C.Cr.P. art. 465 (authorizing short-form indictments). See also State v. Mason, 305 So.2d 523 (1974) and State v. Clark, 288 So.2d 612, 615-16 (1974) and jurisprudence therein summarized.
Nevertheless, as in Mason, we are not prepared to hold that'reversible failure resulted from the state’s rather obstinate refusal to specify that, under the obvious facts and other admissions of the particulars, it was proceeding under both subsections. (Further, the state’s answer might possibly be so construed.) Taken as a whole, the short-form indictments adequately informed the accused of the nature and cause of the prosecution, and the factual basis upon which it was founded, insofar as constitutionally and statutorily required in order to afford the accused a fair opportunity to defend against the charges brought against them.

Id. at 1270-71 (footnote omitted). The supreme court further noted that the state was not required to reveal which subsection was used to commit the crime or to choose between the two subsections if the subsections were equally applicable under the facts of the case. Id. at 1271, n. 1.

|18In this case, the State filed a “State’s Notice to Proceed Under Alternative Theories of Second-Degree Murder,” indicating it would proceed under the theory of specific intent murder and a murder perpetrated during an aggravated arson. We find that the trial court did not err in denying the defendant’s motion for a bill of particulars which required that the State elect a subsection of second degree murder it was prepared to prove. The State had granted the defendant open file discovery, providing the defendant with access to police reports and witness statements. Further, other than stating that the information was needed to develop her defense, she does not indicate how she was prejudiced by the failure to designate one subsection over the other, particularly considering that her defense was that she was not present at the time of the fire. Finally, because what actually caused the victim’s death was undetermined prior to trial, the facts of the case were applicable to both subsections. Here, it seems that the defendant knew as much of the basis of the charge as did the State in this case. See also State v. Gardner, 02-1506 (La.App. 3 Cir. 4/30/03), 844 So.2d 1097, writ denied, 03-1490 (La.10/3/03), 855 So.2d 310.

This assignment of error lacks merit.

Timeliness of Discovery

The defendant argues that her case was prejudiced because the State failed to timely supply her with discovery materials. On the morning trial commenced, the defense attorneys joined in a motion in li-mine requesting a continuance of the trial or in the alternative to exclude evidence which they asserted was not timely provided by the State. At that time, the attorneys explained that shortly before trial, they began to receive the names of various witnesses that the State intended to call and statements made by some of the witnesses. The attorneys asserted that they had no [19time to investigate the witnesses, specifically as to any past criminal history or regarding their statements. The State responded that as they prepared for trial other witnesses and facts were revealed. Some of this information was developed after the defendants issued their trial subpoenas. The State argued that they pássed the information along to the defense as soon as they learned of it.

The trial court denied the motion to continue and the motion in limine to exclude evidence, but ordered the State to disclose the substance of the new witnesses’ anticipated testimonies and make them available to defense counsels. The trial court also delayed the trial one day to allow the defense attorneys to interview the witnesses and prepare for cross-examination.

The trial court has discretion in granting a continuance. La.Code Crim.P. art. 712. “The denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice.” State v. Bartley, 03-1382, p. 5 (La.App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006.

In State v. Pitre, 04-545, pp. 14-15 (La.App. 1 Cir. 12/17/04), 901 So.2d 428, 439, writ denied, 05-397 (La.5/13/05), 902 So.2d 1018, the first circuit explained:

The rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony, to permit the defense to meet the State’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. However, the failure of the State to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. State v. Sanders, 93-0001, p. 9 (La.11/30/94), 648 So.2d 1272, 1281, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Schrader, 518 So.2d 1024, 1032 (La.1988). When the defendant is lulled into misapprehension of the strength, of the State’s case through the failure of the prosecution to timely or fully disclose and the defendant suffers prejudice, basic unfairness results which constitutes reversible error. State v. Mitchell, 412 So.2d 1042, 1044 (La.1982). Louisiana Code of Criminal Procedure article 729.5 |gfldetails the arsenal of sanctions available for discovery violations. Even where a violation is clear, no particular remedy is mandated.

The defense in this case had access to the State’s files through open- file discovery. However, the record shows that, on October 20 through 23, 2009, the State notified the defendants of several witnesses, including the witnesses’ criminal histories, a polygraph interview with the defendant, including the polygrapher’s notes, an inculpatory statement allegedly made by Martrell Lynch regarding whether he had sexual intercourse with the unconscious victim, and inculpatory statements allegedly made by Chad to Dennis Blackerby, plus four pages of Blackerby’s criminal history. The defendants were also notified of the statements Chad made to Chief of .Police Marvin Frazier regarding gas cans left at the home of Jimmy Ray Malmay. Finally, on October 23, 2Q09, the State sent the defense notice of a plea agreement with Jerrick Thomas, who had also been charged with second degree murder of the victim and who agreed to testify for the State in exchange for a recommended sentence of three years. Trial commenced on October 26, 2009, but was delayed one day as stated above.

The only listed witness the defendant complains of in brief is Opal Parrie, whose criminal history included a warrant for a first degree “something.” At the hearing, defense counsel argued that the “something” had to be investigated and that while “the D.A.’s office has indicated they have open filed discovery, they haven’t given me Opal Parrie Cheatwood’s file so I don’t know that.” Parrie’s testimony at trial was not probative for either the State’s or the defendants’ cases and defense counsels did not examine her regarding any convictions she may have had. The defendant argues that the State had the polygraph' notes in its possession since 2006, but waited until a week before trial to disclose them to the defense. The State advised [ g1 the trial court that the defendants had been given the pretest polygraph interview and the polygrapher’s summary months before. The additional notes sent to them were taken by federal agents, and the State had only secured the notes just prior to sending the notes to defendants.

As for the statement made by Martrell Lynch, the State explained that after it received a copy of a subpoena issued from the defense, they saw that the person to whom the statement was made was on the list. The State thereafter arranged an interview with him and the witness said that Lynch told him that he had had sexual intercourse with the victim, but they would not find his DNA because he had worn a condom. During this interview, the State learned of another person who supposedly heard Chad confess he was responsible for the victim’s death. The State asserted that all this information was sent to defense counsel immediately.

In Pitre, 901 So.2d 428, the defendant argued the trial court erred when it did not grant his motion to exclude testimony of a witness who was called to testify for the state. Pitre argued the state’s notice of intent to use her testimony on the second day of trial was untimely and therefore constituted an ambush. When the witness appeared the morning of trial, the state .interviewed her and she revealed an inculpatory statement made to her by the defendant. The first circuit stated:

In this case, defense counsel argues that he did not have a fair opportunity to prepare for cross-examination or to locate other witnesses who might have overheard the alleged incriminatory statement and impeached Ms. Rogers’ testimony. He further complained at trial that he would not be able to question the detective who took her initial statement before cross-examination of Pamela Rogers. Finally, he argued that he would not have time to file a motion to suppress her. testimony or to investigate whether she might have an ulterior motive for testifying against the defendant. He asked the trial judge to exclude her testimony or delay her taking the stand until the next day.
122After a thorough review of the record, we are not persuaded that the failure of the trial judge to grant defendant’s alternative requests justifies a reversal of the defendant’s conviction under the particular circumstances presented here. In our view, the State complied with both the letter and the spirit of the law. Full good-faith pretrial discovery was provided prior to trial. The State was obviously aware it had a continuing duty to supplement discovery and, as soon as the prosecution learned of Rogers’ new information, it notified defendant prior to the State s opening statement. In our view, the trial judge did not err in refusing to exclude this testimony.
Moreover, although he did not exclude the highly relevant testimony, the trial judge went to great lengths to avoid any undue prejudice to the defendant. He assured defense counsel that he could fully cross-examine the witness and that he would allow him to subpoena any other person he learned of during cross-examination who overheard the conversation in dispute. In addition, he indicated that defense counsel would have the right .to recall Ms. Rogers if he chose to do so. Thus, defense counsel effectively had the one day of extra time to investigate that he requested and could have recalled the witness. We cannot conclude that the timing of the notice in this case, considering the nature of the evidence at issue, resulted in the proceedings being fundamentally unfair. See State v. Allnet, 419 So.2d 472, 475 (La.1982); State v. Hebert, 443 So.2d 613, 615-616 (La.App. 3d Cir.1983), writ denied, 444 So.2d 1215 (La.1984).

Id. at 439.

We do not find that the trial court’s refusal to exclude the evidence or to grant a continuance warrants a reversal of the conviction. Unlike Pitre, where the allegedly prejudicial evidence was not given to the defendant until the second day of trial, the State in the current case distributed the obtained information as they received it prior to the trial. Also, the trial court ordered the State to reveal the substance of the anticipated testimonies and delayed the trial by one day to allow the defendants an opportunity to interview the witnesses. Finally, the defendant has not shown how she was prejudiced by the allegedly late disclosures.

This assignment lacks merit.

lo»Double Jeopardy

The defendant argues that she was subjected to double jeopardy when she was convicted “of felony manslaughter and the underlying felony of aggravated arson.” She asserts that the trial court’s finding her guilty of aggravated arson indicated it had agreed with the State’s, statement made during closing argument, as follows:

We believe the evidence is there to support a finding of second degree murder with specific intent. If the Court finds that this was aggravated arson, if the Court believes that she was not dead when they placed that mattress on top of her and started that fire, that would be aggravated arson where human life is in danger. And because' she died it would fit under the felony murder doctrine.

The State, in brief, asserts that the defendant was convicted of manslaughter and simple arson.

The parties’ inability to identify the defendant’s arson conviction as either aggravated arson or simple arson for discussion of this assignment confirms the confusion regarding the defendant’s conviction. As we above concluded that the trial court effectively granted the defendant’s motion for a new trial and have remanded for a new trial on this charge, this assignment is rendered moot. •

Motion for Mistrial

The defendant argues the trial court erred when it did not grant her motion for a mistrial made after the State allegedly stated during closing argument that “it’s been unrefuted, that the only person who showed violent tenancies toward the victim, in this case, was Sherri Sepulvado.’’ The defendant argues that this statement was an indirect reference to the fact that the defendant did not testify at trial, because she was the only one who could have “refute[d]” the statement.

The defendant cites La.Code Crim.P. art. 770(3) in support of her argument. Article 770 provides:

la-jUpon a motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense[.]

However, in addition to the explicit wording of Article 770, the Supreme Court of Louisiana has stated that Article 770 is designed to guard against improprieties in the presence of a jury. State v. Marshall, 359 So.2d 78 (La.1978). 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.

Not only was this matter heard as a bench trial, but the closing argument reference, if any, to the absence of the defendant’s testimony was limited and one that the trial court was capable of disregarding. Accordingly, we find no abuse of the trial court’s discretion in denying the defendant’s motion for a mistrial based on the State’s comment made during closing argument. This assignment of error lacks merit.

Excessiveness of the Sentence

The defendant contends that the sentences imposed are excessive. In particular she asserts that the thirty-year sentence for. manslaughter is grossly out of proportion to the severity of the offenses in-light of her assertion that there was no determination as to who caused the victim’s death and in light of her young age.

In reviewing an excessive sentence claim, this court has stated:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruél or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that thé sentence makes no measurable contribution to 1 ^acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court hás wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, unit denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. Further, this court reviews several factors in consideration of whether a sentence is excessive, including the nature of the crime, the nature and background of the offender, and sentences imposed on similarly-situated offenders in this and other jurisdictions. State v. Griffin, 06-543 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, writ denied, 07-02 (La.9/14/07), 963 So.2d 995. Also, the record must indicate that the trial court considered both the aggravating and mitigating circumstances in fashioning the sentence. State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283.

In imposing sentence, the trial court, stated:

Ms. Sepulvado, you appeared in- this court. You were tried before me. You waived the jury trial. I found you guilty of manslaughter and aggravated arson. I ordered a pre-sentence investigation to be conducted. The report has been returned to me. It’s been made available to your attorney Mr. Owen who has reviewed it. I’ve noted that you wish to address the Court. You don’t have to but you may before I sentence you. I’ve noted your criminal history. I’ve noted your social history. I’m going to cause a copy of this to be filed in the record. I’ve also noted the aggravating and mitigating circumstances in this case.

\xManslaughter

Louisiana Revised Statutes 14:31 (B) provides that “[wjhoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” Here, the defendant’s thirty-year sentence is ten years less than the statutory maximum.

The record reveals no abuse of discretion in the fashioning of this sentence. Instead, the trial court noted that it considered the pre-sentence investigation report and that it considered the aggravating and mitigating circumstances. The defendant asserts that her relatively young age — twenty-six at the time of the PSI report — required a lesser sentence. How7 ever, despite her age, the report revealed a conviction for attempted distribution of a schedule II drug in January 2008, which resulted in a two-year sentence. While she was paroled in November 2008, she could not be released due to the present charge. Instead, the sentence expired while she was incarcerated on the offenses undpr review. The trial court was aware of this drug-related criminal history when it considered the present matter, which also involved drug use.

While the defendant contends that the cause of death was not established at trial, the evidence supports the alternative views that the defendant caused the victim’s death by rendering her unconscious and leaving her to burn to death or that she died from a blow to the head during their altercation. Either scenario supports the sentence imposed. Testimony also indicated that the defendant threatened to burn the victim’s house with her in it and that the victim was raped or was about to be raped by two men while the defendant stood by and laughed. These gruesome circumstances of the case further support the sentence imposed.

| ^Finally, Louisiana jurisprudence reveals that mid-to-high range sentences have been upheld in other manslaughter cases. See State v. Cushman, 94-336 (La. App. 3 Cir. 11/2/94), 649 So.2d 639, writ denied, 95-2045 (La.3/7/97), 689 So.2d 1370. See also State v. Jefferson, 02-1159 (La.App. 4 Cir. 12/4/02), 834 So.2d 572. See also State v. Pegues, 09-1089 (La.App. 3 Cir. 6/9/10), 43 So.3d 1008.

For these reasons, we do not find that the defendant’s thirty-year sentence for manslaughter is excessive. This assignment lacks merit.

Aggravated-arson/simple arson

Discussion of the sentence imposed for this offense is rendered moot by the previous determination to remand for a new trial on the arson charge.

DECREE

The defendant’s conviction and sentence for manslaughter are affirmed. However, as the trial court effectively granted the defendant’s Motion for a New Trial, the conviction for aggravated arson is vacated, and the matter remanded for a retrial on this charge alone.

MANSLAUGHTER CONVICTION AND SENTENCE AFFIRMED. AGGRAVATED ARSON CONVICTION AND SENTENCE VACATED. REMANDED FOR NEW TRIAL ON CHARGE OF AGGRAVATED ARSON.

      . Neither Chad Rivers’ conviction nor the granting of the post-verdict judgment of acquittal are before the court in this proceeding.

      . As the order of appeal was previously entered, the trial court heard the motion for new trial upon remand from this court. See La.Code Crim.P. art. 853.

      . Even if the trial court construed the motion for new trial as a motion to amend sentence, La.Code Crim.P. art. 881(A) provides that "[a]lthough the sentence imposed is legal in every respect, the court may amend or change the sentence within the legal limits of its discretion, prior to the beginning of the execution of the sentence." (Emphasis added.) Since the record demonstrates that the defendant was serving her sentence, the trial court lacked authority to amend or change the sentence under this provision.

      , While La.Code Crim.P. art. 821 provides for a motion for post verdict judgment of acquittal, such a motion "must be made and disposed of before sentence.” Thus, the trial court could have not construed the motion as such.

      . Diana Speight testified that she was with the defendant when the defendant found a “child sized wooden bat” which the defendant placed in her boyfriend’s vehicle at that time.

      . Although he denied that he or Lynch had sexual intercourse with LaTasha, he admitted he had told the police shortly after the incident that Lynch, did have sexual intercourse with her as she lay unconscious. However, he testified that he had lied.

      . A battery “is the intentional use of force or violence upon the person of another[,]” and a second degree battery "is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.” La.R.S. 14:33 and 14:34.1. For the purpose of the second degree battery statute, serious bodily injury includes being rendered unconscious. La.R.S. 14:34.1(B).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Terrell STIPE.
    No. 10-877.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Appellee, State of Louisiana.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, William J. Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Terrell Stipe.
    Court composed of MARC T, AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

. 11 The trial court convicted the defendant of one charge of carjacking and one charge of armed robbery with the use of a firearm. For the armed robbery charge, and upon remand from this court, the defendant was sentenced to forty-five years at hard labor without benefit of probation, parole, or suspension of sentence with a five-year enhancement for the use of a firearm, to be served without hard labor and without benefit of probation, parole, or suspension of sentence. The five-year enhancement was ordered to be served consecutively to the previous sentence. Both were ordered to be served consecutively to a life sentence imposed for a previous conviction. The defendant now appeals this sentence. For the following reasons, we affirm and order an amendment of the sentencing minutes.

Factual and Procedural Background

The defendant, Terrell Stipe, was charged in Ascension Parish with one count of carjacking, a, violation of La.R.S. 14:64.2, and one count of armed robbery and armed robbery with the use of a firearm, violations of La.R.S. 14:64 and 14:64.3. The alleged offenses involved an incident which occurred on November 10, 2005 at a Circle K gas station in Gonzales, Louisiana. . After the defendant moved for a change of venue, the case was transferred to Calcasieu Parish.

On November 30, 2006, after several days of testimony, the trial court found the defendant guilty of armed robbery and carjacking and ordered a pre-sentence investigation. The trial court initially sentenced the defendant to fifty years at hard labor without benefit of probation, parole, or suspension of sentence on the armed robbery charge and ten years at hard labor without benefit of probation, parole, or suspension of sentence on the carjacking charge. It ordered that those sentences were |gto run concurrently with each other and with a prior attempted second degree kidnapping sentence from Calcasieu Parish.

On appeal, this court affirmed the convictions and the sentence for the carjacking charge, but vacated the sentence for the armed robbery charge and remanded to the trial court for re-sentencing with instructions to clearly set forth the part of the sentence enhanced under La.R.S. 14:64.8 and the portion of the sentence not to be served at hard labor. See State v. Stipe, 09-889 (La.App. 3 Cir. 2/3/10), 30 So.3d 287.

At the re-sentencing hearing, the defendant made a motion to recuse the trial judge, which was denied as untimely. The trial court then resentenced the defendant to forty-five years at hard labor without the benefit of probation, parole, or suspension of sentence for the armed robbery charge and a five-year enhancement for the armed robbery with use of a firearm charge. The trial court ordered that the five-year enhancement be without hard labor. The trial court further ordered that the five-year enhancement run consecutively to the forty-five-year sentence.for the armed robbery charge and that both sentences run consecutively to a life sentence imposed in St. James Parish.

Immediately after re-sentencing, the defendant made a motion for reconsideration, arguing that the sentence was inappropriate, overly harsh, and unconstitutionally burdensome. The defendant also argued that the trial court failed |sto articulate the factors considered in connection with the imposition of sentence. The trial court denied the motion for reconsideration.

The defendant appeals, challenging his sentence as unconstitutionally excessive because the trial court failed to articulate particularized reasons for imposing a fifty-year sentence for the armed robbery charge and the firearm enhancement. Further, the defendant contends that the sentence is unconstitutionally excessive because it was imposed consecutively to a life sentence imposed in an unrelated case.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that the sentencing minutes require correction.-

The transcript of the re-sentencing hearing held on April 1, 2010 reflects that the trial court modified the five-year enhancement to be served without hard labor. However, the court minutes of the re-sentencing hearing state, in pertinent part, that “the Court sentences the defendant to serve five (5) years in the custody of the Louisiana Department of Corrections, without benefit of probation, parole or suspension of sentence.... ” In instances where the minutes and the transcript differ, the transcript must prevail. State v. Kimbrough, 09-1564 (La.App. 3 Cir. 6/2/10), 38 So.3d 1258. Accordingly, the trial court is directed to correct the court minutes of the sentencing hearing to reflect the sentence as imposed by the court. 14Failure to Consider Sentencing Factors

The defendant alleges that the trial court failed to articulate reasons for imposing a forty-five-year sentence for armed robbery with a five-year enhancement for use of a firearm. Louisiana Code of Criminal Procedure Article 894.1 contains a list of sentencing guidelines, which assists a sentencing court in particularizing a sentence for a particular defendant and assists a reviewing court in determining whether a sentence is excessive by providing an indication of whether the sentencing court has adequately considered the statutory guidelines. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986). The sentencing court is required to state for the record the factors considered in imposing a sentence. La. Code Crim.P. art. 894.1(C). However, there is no requirement that a sentencing court read through a checklist of factors nor articulate every circumstance in order to comply with the requirements of La. Code Crim.P. art. 894.1(C). State v. Williams, 96-37 (La.App. 3 Cir. 6/26/96), 677 So.2d 692. Further, a reviewing court need not remand the case for re-sentencing if an adequate factual basis is found in the record. Id.

The record reveals that the trial court originally rendered the following reasons for sentencing, parts of which were reiterated at the re-sentencing hearing:

This is the case of a thirty-two (32) year old male officially classified .as a second felony offender who, on November 30, 2006[,] was found guilty of Carjacking, Aggravated Kidnapping and Armed Robbery with a Firearm after a bench trial conducted by this court. Sentencing was deferred and a Pre-Sen-tence Investigation Report was ordered and is filed herein and has been made available to the .defendant and his counsel and is attached hereto and made a part of hereof by reference^]
IfiThe record reflects that the Aggravated Kidnapping was not obtained by Grand Jury Indictment. Thus, the court herein vacates that conviction. '
The record reflects that on November 10, 2005, at approximately 2216 hours, officers were dispatched to the Circle K on Airline Highway in Gonzales, Louisiana in reference to an Armed Robbery. Prior to arrival, dispatch was advised that the victim, Lakeith Mitchell, was on Airline Highway in the Parish and that a deputy was bringing him back to the Circle K. Mr. Mitchell was transported to the Gonzales Police Department where he wrote a voluntary statement as to what happened.
The Department of Probation and Parole recommends Mr. Stipe be sentenced to the Department of Corrections for a period of ninety-nine (99) years at hard labor with credit for time served for the offense of Armed Robbery. The recommendation fails to state that a sentence for this offense shall be without the benefit of parole, probation or suspension of sentence.
The Probation Officer preparing the Pre-sentence Investigation Report contacted Investigator Billy Clark of the 23rd Judicial District Attorney’s Office who recommended Mr. Stipe be sen-fenced to the maximum incarceration for this offense. Warden Bobby Webre of the Ascension Parish Sheriffs Office stated Mr. Stipe should be sentenced to the maximum penalty for this offense.

Afterward, the defendant moved for reconsideration, in part arguing that the trial court had not articulated any reasons for its sentence. In denying the defendant’s motion for reconsideration, the trial court stated:

What I did was looked at the facts of this particular case — and everyone realizes here it was a bench trial. I listened to the testimony in this, and I based this sentence upon the facts of that particular case as I found them, of this particular case, and the fact that he is a second felony — considered to be a second felony offender.
|fiBut I could have imposed the maximum but you’re right, that would not have been right, because he’s not the type of person based on what I am aware of so far as the two trials that I participated in that deserved the maximum sentences for the offenses.
I did not impose the maximum in these instances.

The trial court noted that it had rejected the recommendations of the Department of Probation and Parole, the sheriffs department, and the district attorney that he impose the maximum sentence of ninety-nine years for the armed robbery count.

Further, after re-sentencing, the defendant again moved for reconsideration, arguing, in part, that the trial court had failed to articulate reasons for sentencing. The trial court reiterated that it had considered the sentencing guidelines when imposing the defendant’s sentence and that it was “of the opinion that the sentence does fit the crimes for which the defendant was found guilty.”

The defendant asserts, in his brief to this court, that “it is impossible to determine from the record what justification the Court used to impose its sentences.” (Footnote omitted.) However, the sentencing court explicitly stated in ruling on the reconsideration motion that it had considered the sentencing factors. Further, although the sentencing court did not articulate each and every factor considered— nor was it required to — it noted that the defendant was a thirty-three-year-old second felony offender. The sentencing court was privy to a pre-sentence investigation, which it previously filed into the record. We note that the trial court was unable to take into consideration the defendant’s personal history because the defendant refused to provide any personal information for the pre-sentence report. Tellingly, the sentencing judge was the fact-finder in this case and presided over the defendant’s attempted second degree kidnapping case. Finally, the sentencing judge did not impose the maximum sentence in this case, but imposed a mid-range sentence [ 7which it ordered to run concurrently with the ten-year sentence imposed in the carjacking charge and consecutive to the life sentence imposed in the St. James Parish matter.

After review of the record, including transcripts from both sentencing and re-sentencing hearings, we find that the sentencing court did adequately consider the sentencing guidelines and that an adequate factual basis therefor is found in the record. Therefore, this assignment of error is without merit.

Consecutive Sentences

The defendant also asserts that the trial court erred in imposing an unconstitutionally excessive sentence. He bases his argument on two prongs. First, he argues that the offenses were essentially part of a common scheme or plan because they “evidently occurred within a relatively short period of time” and that, under La.Code Crim.P. art. 883, the trial court erred in not giving specific reasons for ordering the sentences to run consecutively. Second, he argues-that because the sentence is imposed consecutively to a life sentence, that there is no chance of the defendant’s release during his natural life even if his life sentence was commuted. The defendant argues that such a sentence is nonsensical, makes- no contribution to the acceptable goals of punishment, and constitutes the purposeless and needless imposition of pain and suffering prohibited by Article 1, Section 20 of the Louisiana ^Constitution.

The defendant was convicted of armed robbery with the use of a firearm enhancement, a violation of La.R.S. 14:64 and La. R.S. 14:64.3. A conviction of armed robbery is punishable by imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(B). Further, La.R.S. 14:64.3(A), as applicable in this case, provides that, upon conviction of armed robbery with use of a firearm, “the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” The additional penalty shall be served consecutively to the armed robbery sentence. Id.

Generally, sentences for offenses arising from the “same act or transaction, or constituting parts of a common scheme or plan” are to be served concurrently unless the sentencing court directs that they are to be served consecutively. La.Code Crim.P. art. 883. However, sentences for offenses not arising from the same act or a common scheme or plan are to be served consecutively, unless the trial court expressly directs that they are to be served concurrently. Id.

In State v. Massey, 08-839 (La.App. 3 Cir. 12/10/08), 999 So.2d 343, a panel of this court upheld the trial court’s imposition of consecutive sentences for indecent behavior with a juvenile and attempted molestation of a juvenile. This court rejected the defendant’s argument that the offenses were part of a common transaction or common scheme or plan because the offenses occurred within a relatively short period of time. This court quoted the trial court, which found that there were “ ‘two distinct victims, two distinct events, even though they both took place during the Rsame weekend camping trip[,]’ ” and therefore, there was “ ‘no justification for having these sentences run concurrently.’ ” Massey, 999 So.2d at 349. See also State v. Hymes, 04-320 (La.App. 5 Cir. 10/12/04), 886 So.2d 1157, writ denied, 04-3102 (La.4/1/05), 897 So.2d 599.

In this case, the defendant points to no evidence in the record to support his claim that these offenses were part of a common scheme or plan, other than a bare assertion that the offenses occurred within a “relatively short period of time.” A review of the record reveals that the victim in the St. James Parish case was Keelan Irvin. The victim in the instant case was Lakeith Mitchell. The offenses in the former case occurred in St. James Parish and were tried there; the offense in the instant case occurred in Ascension Parish and was tried in Calcasieu Parish. The defendant was arrested in the instant case in December 2005 and was not arrested in the St. James Parish matter until August 2006. A review of the record shows that the two cases involved different victims, occurred on different dates, occurred in different parishes, and were tried separately.

The record does not support a conclusion that the offenses were part of the same act or transaction or that they were part of common scheme or plan. Therefore, the trial court was not required to articulate reasons for imposing consecutive sentences. We find that the trial court did not abuse its discretion in ordering the sentence in this matter to be served consecutively to the sentence in the St. James Parish case and we have concluded that the defendant’s first assignment in this regard is without merit.

In State v. Granger, 08-1480, pp. 3-4 (La.App. 3 Cir. 6/3/09), 11 So.3d 658, 660-61, quoting State v. Barling, 00-1241, 00-1591, (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331, a panel of this court stated, with regard to excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

However, a sentence that falls within the statutory limits may be excessive given the circumstances. Williams, 677 So;2d 692.

The Louisiana Supreme Court has long held that imprisonment itself is not necessarily cruel and unusual, even if the term of imprisonment is lengthy or if the sentences are imposed consecutively. See State v, Donahue, 408 So.2d 1262 (La.1982). Further, courts have upheld consecutive sentences that result in terms of imprisonment for longer than a defendant’s natural life. In State v. Wood, 08-1511 (La.App. 3 Cir. 6/3/09), 11 So.3d 701, a panel of this court held that three consecutive, mandatory life sentences for second-degree murder arising from the same incident were not unconstitutionally excessive.

Also, in Hymes, 886 So.2d 1157, a panel of the fifth circuit upheld a total sentence of 188 years for multiple counts of armed robbery. In finding that the defendant’s sentences were appropriate because of the separate and distinct nature of the acts, the fifth circuit quoted the trial court’s reasons for denying the defendant’s Inmotion for reconsideration, stating “ ‘[e]ach sentence for each crime was the appropriate sentence for that crime; Mr. Hymes just happened to commit a large number of them.’ ” Id. at 1164.

In the instant ease, the' defendant was sentenced to a midrange penalty for armed robbery, with a mandatory five-year enhancement for use of a firearm. The trial court ordered that the sentence for armed robbery run concurrently with the sentence for carjacking, but that it run consecutively to a sentence imposed in St. James Parish. Although the sentence will likely result in a term of imprisonment which is longer than the defendant’s natural life, we find that the sentence for each charge is appropriate in light of the defendant’s criminal history and the violent nature of the crime. Therefore, we find that the trial court did not abuse its discretion in imposing sentence. This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the defendant’s sentence. The trial court is directed to correct the sentencing minutes to reflect that the defendant’s five-year sentence for the use of a firearm enhancement is to be served without hard labor. AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . The defendant was charged in. three cases for incidents occurring in St. James and Ascension Parishes.
      The record reveals that, in addition to this case, the defendant was convicted of attempted second degree kidnapping for charges arising out of an incident at Dutchtown High School. That case was also assigned to the trial judge in this case. The case was transferred from Ascension Parish to Calcasieu Parish.
      Further, the defendant was charged in St. James Parish for the murder of Keelan Irvin. The defendant was sentenced to life in prison on that charge subsequently to his conviction in this case.

      . The pre-sentence investigation revealed that, as noted above, the defendant had been arrested on charges of first degree murder, aggravated kidnapping and armed robbery in St. James Parish in 2006. The sentencing transcript and the re-sentencing transcript reflect that the defendant was convicted on those charges after the original sentencing hearing but prior to the resentencing hearing. The pre-sentence investigation also revealed that the defendant had been arrested for several offenses after 1997 including attempted second degree kidnapping, remaining after forbidden, speeding, driving without a license, driving while suspended and multiple fugitive holds.

      . At re-sentencing, the trial court' did not specifically address whether the armed robbery sentence was to run concurrently with the previously imposed carjacking sentence. Additionally, when the sentence was initially imposed, the trial court ordered that the armed robbery and carjacking sentences were to run concurrently with the sentence in a prior attempted second degree kidnapping case. The trial court did not address at re-sentencing whether the armed robbery sentence was to run concurrently or consecutively to that sentence.
      However, offenses arising from the "same act or transaction,” are to be served concurrently unless the trial court expressly directs otherwise. La.Code Crim.P. art. 883. Therefore, since the carjacking and armed robbery charges arose from the same act or transaction, and the trial court did’not direct otherwise, they are presumed to run concurrently.

      . This statute was amended after the commission of the instant offense to require that the term of imprisonment be at hard labor.


author: EZELL, Judge.

text:
    Tabatha NOLAN, et al. v AUDUBON INSURANCE GROUP, et al.
    No. CA 10-1362.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied April 13, 2011.

      Gregory John McDonald, Robin Catherine O’Bannon, Bienvenu, Foster, Ryan & O’Bannon, LLC, New Orléans, LA, for Defendants/Appellees, Audubon Insurance Company.
    Andrea Suchermann Lestelle, Terrence Jude Lestelle, Jeffrey B. Stuckoff, Richard M. Morgain, Lestelle & Lestelle, APLC, Stephen Drexel Ridley, Metairie, LA, for Plaintiffs/Appellants, Tabatha Nolan, Ciji Nolan Garcia, Blake Nolan, Brent Nolan, Robert Nolan.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| T Robert and Tabatha Nolan (the No-lans) appeal a decision of the trial court granting a motion for concursus in favor of Audubon Insurance Company. The No-lans also appeal the trial court’s refusal to award them penalties arising from Audubon’s alleged failure to pay a settlement under La.R.S. 22:1973. For the following reasons, we hereby affirm the decision of the trial court.

The Nolans obtained a homeowners’ insurance policy from Audubon for their former home in Branch, Louisiana. Two mortgage companies, Aurora Loan Service and Encore Credit Corporation (the mortgagees), were listed on the policy as having an interest therein. The Nolans made a claim for water damage they alleged was related to an earlier claim concerning Hurricane Lili. Audubon disputed the claim, and the Nolans filed suit in 2003. After suit was filed, the home was foreclosed upon and sold via sheriffs sale. The No-lans filed for Chapter 7 bankruptcy and had their outstanding debts discharged, allegedly including the now unsecured debts to the mortgagees concerning the family home. The bankruptcy was completed in 2007.

In February 2010, a trial commenced on the still outstanding claim against Audubon. After the third day of trial, the Nolans and Audubon reached an agreement to settle the suit for $40,000. Audubon issued a settlement check twenty-three days later, naming the Nolans, their children, their attorneys, and the mortgagees as payees. The Nolans felt as if the mortgagees should not have been listed as payees, and Audubon filed the current petition for coneursus. The Nolans then filed a motion seeking penalties for failure to pay the settlement within thirty days as required by La.R.S. 22:1973. The trial court granted Audubon’s request for concur sus and denied the Nolans’ claim for penalties. From that decision, the Nolans appeal.

|2The Nolans assert three assignments of error on appeal. They claim the trial court erred in granting coneursus to Audubon; in refusing to order Audubon to reissue the settlement check without the names of the former mortgagees; and in failing to award the Nolans penalties under La.R.S. 22:1973.

We will first address the Nolans’ claim that the trial court erred in granting Audubon’s request for a coneursus. The Code of Civil Procedure defines a concur-sus proceeding as “one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” La.Code Civ.P. art. 4651. The chief intent of a coneursus proceeding is to protect a stakeholder “from multiple liability from conflicting claims and from the vexation attending involvement in multiple litigation in which the stakeholder may have no direct interest.” Landry & Passman Realty, Inc. v. Beadle, Swartwood, Wall & Assocs., Inc., 303 So.2d 761, 763 (La.App. 1 Cir.1974), writ refused, 307 So.2d 631 (La.1975); see also Rehab. Concepts Plus, Inc. v. Wills, 42,400 (La.App. 2 Cir. 10/10/07), 968 So.2d 262; Marquez v. Progressive Ins. Co., 06-1024 (La.App. 3 Cir. 12/6/06), 944 So.2d 876. The Louisiana Supreme Court has noted that a coneursus can be used. not only to prevent multiple liability, but also to prevent multiple litigation, and therefore can be used by a person against whom multiple claims are asserted, even though liability on some or even all of the claims is denied. La. Intrastate Gas Corp. v. Muller, 290 So.2d 888, 895 (La.1974). Recently, in Cimarex Energy Co. v. Mauboules, 09-1170, 09-1180, 09-1194, p.. 23 (La.4/9/10), 40 So.3d 931, 946, the supreme court stated:

Coneursus serves important interests by efficiently resolving potential multiple actions in the same lawsuit, thereby conserving judicial and party resources. It also allows a person subject to the possibility of competing claims to avoid the risk of multiple liability that |scould result from adverse determinations in different courts. The court of appeal erred in imposing a duty on [the coneursus filer] to investigate or evaluate the relative strengths and merits of the underlying claims. The imposition of such á duty undermines the purpose of the con-cursus proceeding. While we do not go so far as to hold that coneursus should automatically be granted whenever it is invoked, courts should allow coneursus liberally.

Here, the Nolans claim that Audubon should be denied a coneursus because under bankruptcy law, the former mortgagees can not seek to recover from them. However, just because the banks are prohibited from attempting to collect the discharged debt from the Nolans personally does not mean that the debt itself is extinguished or that the banks can not go after a third party, such as Audubon. The Audubon policy language stated that mortgagees would be listed as payees for claims for damages. That language was clear and known at the time of the settlement. The policy .also contained additional language indicating a possible separate contractual relationship was created between the insurer and the mortgagees— specifically stating that claims denials would not apply to valid claims of mortgagees and that only insureds would be provided no' coverage if they committed fraud, i.e., retaining mortgagees’ right to recover in case of fraud by an insured.

Additionally, Audubon points out that neither of the mortgagees listed in their insurance contract with the Nolans are listed in the bankruptcy documents and that the debts owed to them have not necessarily been proven to have been discharged via the bankruptcy. A review of the records supports this argument. The Nolans claim in brief and in argument that Aurora Loan Service was the first creditor represented in its unsecured creditors section of their bankruptcy documents. However, 1st Mortgage is the entity actually listed and Aurora is nowhere to be found in Section F. The Nolans claim that 1st Mortgage is actually Aurora, but there is nothing in the record to substantiate this claim. Encore is also absent from the bankruptcy filings. |4The Nolans claim that another listed creditor, Franklin Credit Management, ultimately came to own the mortgage previously held by Encore, but again, there is nothing in the record to back up this self-serving claim.

Audubon was not only well within its rights to try to protect itself from any additional liability to the mortgagees via eoncursus, it was acting reasonably in doing so. The Nolans may very well be correct in their claims regarding the former mortgagees’ rights to the settlement proceeds or even the status of their existences. However, we are not here to judge the merits of the requested concur-sus, merely to determine if its granting was correct. The trial court did -not commit error in granting Audubon’s request for eoncursus, especially in light of the record before us and the liberal allowance for the practice set forth under Cimarex.

Because we find that the trial court was correct in granting Audubon’s request for eoncursus, the Nolans’ claim that the trial court erred in failing to order Audubon to reissue the settlement check without the names of the mortgagees is rendered moot, as any right the mortgagees may have to the settlement funds will be determined in the eoncursus proceeding. Accordingly, this assignment of error need not be addressed.

Finally, the Nolans claim that the trial court erred in failing to award them penalties for Audubon’s alleged failure to pay the settlement within thirty days of the agreement being reduced to writing. Louisiana courts have generally held that statutes subjecting insurers to penalties are considered penal and, as such, should be strictly construed. Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184; Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983). Moreover, a trial court’s grant of penalties under La.R.S. 22:1973 is discretionary. Sultana Corp. v. Jewelers Mut. Ins. Co., 03-360 (La.12/3/03), 860 So.2d 1112. Audubon did render payment |sto the Nolans within thirty days of the settlement being reduced to writing; the Nolans were just not happy with the manner in which the check was written. When this dispute arose, Audubon acted in a good faith manner, offering to'reissue the check if the Nolans could provide waivers from the mortgagees. When the Nolans either could not or refused to do so, Audubon sought concur-sus to insure they would not be subject to any liability from the former mortgagees. We can find no abuse of the trial court’s discretion in its decision to deny the No-lans penalties under the facts of the case before us.

For the above reasons, we hereby affirm the judgment of the trial court. Costs of this appeal are assessed against the No-lans.

AFFIRMED.


text:
    TRI-LAKE OF LOUISIANA, LLC, et al. v. COUTEAU PLATEAU, LLC.
    No. 10-1384.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied May 4, 2011.
    Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Defendant/Appellant, Couteau Plateau, LLC.
    Thomas J. Gayle, Gayle Law Firm, Lake Charles, LA, for Plaintiffs/Appellees, TriLake of Louisiana, LLC, Wilson LeJeune.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe plaintiffs filed suit seeking the return of the purchase price of a mobile home. The defendant alleged that the underlying contract was valid and that the risk of loss for the destruction of the mobile home fell on the purchaser. After trial, the trial court entered judgment in favor of the plaintiffs and awarded the purchase price of the mobile home. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Couteau Plateau, LLC, owns a camp in Cameron Parish. According to Frank Sadler, a manager/member of Couteau Plateau, the camp was destroyed by Hurricane Rita in 2006. Sadler testified that he arranged for the purchase of a mobile home to be used as a temporary camp while the permanent structure was being rebuilt. In the summer of 2008, Couteau Plateau decided to sell the mobile home.

Tri-Lake of Louisiana, LLC and Wilson LeJeune, plaintiffs, were interested in purchasing a mobile home. LeJeune is a manager/member of Tri-Lake. LeJeune testified that, after he viewed the mobile home, Tri-Lake agreed to purchase it. The parties signed the bill of sale and the title on August 22, 2008 and LeJeune tendered twenty-five thousand dollars as the purchase price. LeJeune testified that he attempted to have the mobile home titled in Tri-Lake’s name on August 26, 2008. According to his testimony, he learned that, in addition to other defects, significant taxes were owed on the defendant’s original purchase of the mobile home.

LeJeune alleges that he contacted Sad-ler about the outstanding taxes and the parties disputed whether or not taxes were owed on the purchase. According to Sad-ler, he offered LeJeune a refund of the purchase price and LeJeune refused. According to LeJeune, the matter was left “up in the air.” Sadler then left the country 1 j>on September 8, 2008 for an extended vacation. Before Sadler returned, Hurricane Ike made landfall on September 12, 2008, and the mobile home was destroyed by its flood waters.

The plaintiffs filed suit, seeking the return of the purchase price due to a mutual mistake in the price. After a trial, the trial court entered judgment in the plaintiffs’ favor and awarded the contract price to the plaintiffs. The defendant appeals, asserting the following assignments of error:

No. 1 — The trial court erred in failing to acknowledge when LeJeune refused Sadler’s offer of a full refund the day after the sale, LeJeune waived his right to demand a refund once the mobile home was destroyed.
No. 2 — The trial court erred in failing to find there was a valid sale.
No. 3 — The trial court erred in failing to find the risk of loss had transferred to LeJeune at the time the mobile home was destroyed.
No. 4 — The trial court erred in failing to find LeJeune’s negligence in failing to timely move the mobile home to a safe haven was the legal cause of its destruction.
No. 5 — Finally, the trial court erred in failing to find no sales tax was owed in connection with the original purchase of the mobile home by Sadler due to the fact that prior to trial Sadler had filed the required Act of Immobilization thereby exempting the mobile home from sales taxes in connection with Sadler’s original purchase.

Discussion

Three of the defendant’s assignments of error are predicated on the assumption that the trial court erred in finding that there was no contract. Before turning to those assignments, we address whether the trial court erred in finding that there was no contract, which the defendant raises in his second assignment. -

IsSafes Taxes

Relevant to the determination of whether or not a contract existed is the defendant’s last assignment of error — that the trial court erred in failing to find that no sales tax was owed because of a late-filed “Act of Immobilization.” Upon the filing of an Act of Immobilization, a mobile home ceases to be subject to the taxes due upon movables and becomes subject to the taxes due on immovable property. La.R.S. 9:1149.4. After Hurricanes Katrina and Rita, the legislature allowed retroactive filing of an Act of Immobilization for mobile homes purchased in certain parishes between September 1, 2005 and December 1, 2006. La.R.S. 9:1149.4(C). The Act of Immobilization filed in this case reflects that it was filed in the Cameron Parish records on July 31, 2009.

The defendant argues that the trial court erred in finding that, because the Act of Immobilization could have been filed at any time, no outstanding taxes were owed on the mobile home. The defendant argues that, therefore, the taxes were a “non-issue” in this case. We find the defendant’s argument unpersuasive. At the time of the sale, the Act of Immobilization had not been filed. Taxes on the sale of a mobile home are due and owing until the Act of Immobilization is filed. La.R.S. 9:1149.4(B). Thus, at the time of the purported sale, taxes were still owed on the mobile home. Although the Act of Immobilization could have been filed retroactively, it was not filed prior to the destruction of the mobile home. In fact, it was not filed until after the instant suit was filed — almost a year after the destruction of the mobile home. Further, the responsibility to file the Act of Immobilization fell to the defendant, not the plaintiffs. See Gibbs Constr. Co., Inc. v. Thomas, 500 So.2d 764 (La.1987) (wherein the supreme court found that a subcontractor could not rely |4on his own failure to deliver a required letter of credit to defeat his obligations under a contract). Therefore, we find that the trial court did not err in failing to find that no taxes were owed.

This assignment of error is without merit.

Mutual Error or Mistake

The defendant alleges that the trial court erred in finding that no valid contract for sale existed.

The requirements for a valid sale are addressed in La.Civ.Code art. 2439, which states that: “Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale.”

Louisiana Civil Code Article 1948 provides that consent may be vitiated by error, fraud, or duress. In order to vitiate consent, the error must concern a cause without which the obligation would not have been incurred and must have been known or should have been known to the other party. La.Civ.Code art.1949.

Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.

La.Civ.Code art.1950.

The determination of the existence of a contract is a finding of fact that will not be disturbed on review unless clearly wrong or manifestly erroneous. Dubois Constr. Co. v. Monda Constr. Co., 39,794 (La.App. 2 Cir. 6/29/05), 907 So.2d 855.

Here, the trial court found that “there was mutual error as to the purchase price which vitiated Mr. LeJeune’s consent to the sale. Thus, there was no valid sale in this Lease.” The defendant argues that the sales tax issue was not substantial enough for Tri-Lake to rescind the sale when the defendant offered to refund the purchase price, and thus, could not have been a cause without which the obligation would not have been incurred.

At trial, LeJeune testified that he agreed to purchase the mobile home for twenty-five thousand dollars. LeJeune’s testimony reflects that, he considered that he would be able to title the mobile home in Tri-Lake’s name for the agreed upon purchase price. Additionally, according to LeJeune, an insurance agent, he would not have been able to obtain insurance on the mobile home until he could title it in TriLake’s name and would not have been able to obtain flood insurance for an additional thirty days. He further testified that he was afraid to move the mobile home without insurance.

LeJeune testified that he could have found the money to pay the taxes, but that he did not intend to pay any of the defendant’s outstanding taxes because he had not agreed to pay any extra tax. LeJeune did not know how much the outstanding taxes would have been, but he was under the impression that, including interest and fees, they would have totaled in the thousands of dollars.'

Sadler testified that he was under the impression that removing the axles and tongue “immoblized” the home for the purposes of exemption from sales tax. He said he was unaware that an Act of Immobilization needed to be filed in order to exempt the mobile home from sales tax. He also testified that he was unaware that he needed to have the title transferred into Couteau Plateau’s name and that he believed the bill of sale was sufficient to effect the transfer. Sadler testified that-his first conversation with LeJeune was strictly about the price of the mobile home and that Couteau |6PIateau would accept the risk of loss for Hurricane Gustav. Sadler denied that he spoke with LeJeune about the title or sales tax issue before he left for vacation.

Rather, LeJeune testified that the first time he spoke to Sadler was about the outstanding tax issue and that Sadler asked him if he wanted his “money back.” According to LeJeune, he told Sadler that he wanted to work out the tax issue, but that he would “think about it” and get back to Sadler. Sadler testified that Le-Jeune “refused” his offer of a refund. Le-Jeune testified that he declined Sadler’s offer because the mobile home was a “good deal” and he wanted to try and work things out.

Here, the relevant determination is whether the error with regard to the then-outstanding taxes was sufficient to constitute an error that vitiated consent. In Levin v. May, 03-2205 (La.App. 1 Cir. 9/17/04), 887 So.2d 497, the first circuit held that, in the sale of a business, the failure to remit collected sales taxes could constitute an error that concerned cause. The first circuit compared the failure to remit collected sales taxes in that case to the inability to provide merchantable title in the sale of immovable property. Id.

Similarly, our review of the record, including the above testimony, as well as the physical evidence and depositions submitted at trial, reveals evidence sufficient to support the trial court’s conclusion that neither did the parties intend for LeJeune to be responsible for additional taxes nor would LeJeune have purchased the mobile home if he knew that he would have to pay the taxes. Thus, the trial court was not manifestly erroneous in finding that this error vitiated consent and there was not a valid contract.

This assignment of error is without merit.

ItAdditional Assignments of Error

The defendant has asserted three additional assignments of error which are all predicated on the assumption that the trial court erred in finding that no valid contract existed. Because we have determined that the trial court did not so err, those assignments of error are pretermit-ted.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this appeal are assessed to the defendant.-

AFFIRMED.