author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Mark RICHEY.
    No. 13-KA-228.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Juliet L. Clark-Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Mark Richey.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges his conviction and sentence for attempted theft over $500.00. For the following reasons, we affirm defendant’s conviction, vacate the sentence, and remand for resen-tencing.

Procedural History

On February 24, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark Rich-ey, with one count of theft in excess of $1,000.00, in violation of La. R.S. 14:67. On May 12, 2011, defendant was arraigned and entered a plea of not guilty to the charge.

On August 21, 2012, the State amended the bill of information to charge defendant with theft in excess of $500.00 and the matter proceeded to trial before a six-person jury. The next day, the jury found defendant guilty of the responsive verdict of attempted theft of greater than $500.00, specifically finding the amount was $63,000.00. On September 7, 2012, defendant filed motions for new trial and | spost-verdict judgment of acquittal, which were heard and denied on September 18, 2012.

On October 4, 2012, at defendant’s sentencing, the trial court sentenced defendant to three years at hard labor, suspended, and placed defendant on active probation for five years, with conditions that defendant make restitution to the victim of this case and comply with the conditions of his probation, including restitution, in an unrelated matter.

On October 9, 2012, defendant filed a motion for reconsideration of sentence, asking for release from the condition of restitution. On November 7, 2012, the trial court granted defendant’s motion for appeal. On November 8, 2012, the trial court denied defendant’s motion for reconsideration of sentence. This appeal follows.

Facts

In 2007, two couples, George and Carey Rochelle, and Doyle and Michelle Duhe, hired Mark Richey and Phoenix Home Solutions, to construct a fishing camp for them in Grand Isle, Louisiana. On June 26, 2007, the Rochelles and Duhes and Mark Richey (hereinafter “defendant”) signed a deposit agreement and then, as a deposit, Carey Rochelle wrote a check for $24,364.00 to Phoenix Home Solutions.

^Subsequently, defendant met with the Rochelles and Duhes several times to finalize the building plans. The Rochelles and Duhes wanted a “storm-proof’ camp so they contracted for a house built using specially-manufactured “storm-resistant” panels (“M-2 panels”).

On March 20, 2008, the Rochelles, Duhes, and defendant signed a “Contractor Agreement,” setting forth the scope of the work, time of completion, the price, and a payment schedule. That day, Carey Rochelle wrote a check for $30,000.00, payable to “Phoenix Home Solutions,” for “Construction Draw — Panel order deposit.” It is undisputed that this deposit equaled half of the cost of the panels to construct the entire camp. It is further undisputed that no panels were ever delivered to the job site.

On April 17, 2008, Phoenix invoiced the Rochelles for $13,183.90, for pilings at a cost of $9,135.00 and the “city permit, plan review, and inspection” at a cost of $1,850.90, plus “profit.” On April 18, 2008, Carey Rochelle wrote a check to Phoenix Home Solutions for $13,183.90 to cover “Construction Draw # 2.” At trial, George Rochelle testified that, shortly thereafter, defendant requested more money from Mr. Rochelle to pay the subcontractor to drive the pilings because the money from the second draw “had been spent elsewhere.”

Instead of paying defendant again for the pilings, Mr. Rochelle directly paid the piling subcontractor approximately $18,000.00. Testimony at trial suggested that the pilings were driven in November of 2008.

| ^Thereafter, on May 15, 2009, Mr. Rochelle was informed by the Grand Isle building inspector that his site had been “Red Tagged” and a “Stop Work” Order had been issued for eleven reasons, starting with failing to obtain a building permit for the entire job. When Mr. Rochelle received this notice, the only work that had been performed at the site was driving the pilings, which was unpermitted because defendant failed to apply to the building inspector to inspect the process as required by ordinance.

According to Mr. Rochelle, on September 8, 2009, he e-mailed defendant, stating:

On 9-6-2009 it is [sic] now been 4 months since concrete foundation construction was stopped for building without a permit. Today I have talked to Picciola & Associates Inc. to see if you have been working with them to get things started. I was informed by them that they have not hurd/sic/ from you since informing you of the N.S.F. check you gave them. It is obvious that you have no intention of building this camp. Please return all the money given to you by 9-15-2009 so that I can find another contractor.

Defendant responded via e-mail on September 9, 2009, with the following:

The check to Piccola was returned to them because of a hold on a large deposit that we made. Those funds will be released on 9/10. It is my intention to hand deliver a certified check for the review on Thursday.
I understand your frustration, and I will do everything I can to bring this to an amicable close.
Marty Rabalais has expressed interest in picking up the project. Which ever [sic] contractor you chose [sic], I will work with them to make the transition smooth.

|fiOn September 11, 2009, Mr. Rochelle visited the construction site, which was overgrown with weeds and holding water. Further, Grand Isle authorities had posted a notice that he would be cited if he did not render the property safe.

On September 14, 2009, Mr. Rochelle again e-mailed defendant, stating:

Tomorrow is the 15th, I inspected the property on 9-11-2009 and took pictures of the lack of any work being done. I contacted the Grand Isle inspector to see if any effort to get a permit had been made, and was told that I was going to be fined if the mess was not taken care of immediately. After speaking to some of the companies you said you paid, I am wondering where my money went. I am asking for the last time!!!!! Please return all the money given to you for this project by 9-15-2009.

Defendant responded on September 15, 2009 with the following:

Here are [a] few options that I believe will allow us to part amicably.
1. I can continue to move forward with the slab and then turn the project over to Marty to build the remaining structure.
2. I can set up a repayment plan to reimburse you the funds you are out.
3. I can work with any other contractor you may have in mind to apply those funds to your project.
Please let me know your thoughts, I am willing to do everything possible to bring this to a close.

On September 18, 2009, defendant sent Mr. Rochelle the following e-mail:

I plan to pay your money back by paying you $5,000.00 to $10,000.00 or more per month until payed [sic] out. I am also selling a lot of equipment that I no longer need ($500,000). As I do those proceeds will go to your repayment.

On October 5, 2009, defendant sent Mr. Rochelle an e-mail asking, “What address would you like me to send the payments to?” On October 20, 2009, defendant sent Mr. Rochelle an e-mail stating: “I would like to resolve our issues as soon as possible. Please contact me so we can move |7forward.” As of August 21, 2012, defendant had not returned any of the funds paid by the Rochelles. After hearing the testimony and evidence, the six-person jury found defendant guilty of the lesser-included offense of attempted theft of greater than $500.00 from George Rochelle. Defendant appeals his conviction and sentence.

Law and Argument

On appeal, defendant raises three assignments of error: first, “the trial court erred in preventing the defense[sic] providing a defense”; second, the evidence of criminal intent was insufficient to uphold the jury’s conviction; and third, “the trial court imposed and[sic] illegal sentence.”

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Thus, we turn first to defendant’s second assignment of error.

In defendant’s second assignment of error, he argues that the trial court erred in denying his motion for new trial on the basis of insufficient evidence. Specifically, defendant submits that the State failed to prove defendant possessed the requisite intent to defraud or take from the victim and that the State failed to prove the amount of restitution.

The State responds that defendant’s “intent to defraud is established not only by his failure to perform any meaningful work on the project over an extended and lengthy period of time, but also by his prevarications, misrepresentations, and attempts to delay the matter.”

|sAfter his conviction, defendant moved for a new trial on, among other grounds, the basis that the verdict was contrary to the law and the evidence. The trial court denied relief, finding, “Here the verdict is neither contrary to the law or the evidence. Further, the evidence is more than sufficient to convict the defendant of theft.”

We note that, although the denial of a motion for new trial based on the verdict being contrary to the law and the evidence is not subject to review on appeal, the Louisiana Supreme Court and this Court have still addressed sufficiency claims under these circumstances. Further, the question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal, which defendant filed and argued at the same hearing as his motion for new trial. Accordingly, we will review the merits of defendant’s claim.

In reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt.

| nIt is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. Indeed, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury.

Accordingly, the reviewing court is not to consider whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Thus, where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. This is because only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

In this ease, defendant was charged with theft of U.S. currency valued at over $500.00, in violation of La. R.S. 14:67, but was convicted of the responsive verdict of attempted theft of U.S. currency valued at over $500.00, in violation of La. R.S. 14:(27)67. When a defendant does not object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

|inIn the present case, defendant did not lodge an objection to the responsive verdicts, which included attempted theft over $500.00. Accordingly, defendant is entitled to a reversal of his conviction only if the evidence is insufficient to support a conviction of the charged offense, i.e., theft over $500.00.

La. R.S. 14:67(A) defines theft as:

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

Therefore, in order to support a conviction for theft, the State is required to prove that the defendant misappropriated or took, a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken.

The State must also prove the value of the stolen property, because the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen property. The testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradict-ed. The owner does not need to be qualified as an expert in order to testify as to the value of the thing owned by him.

Theft is a crime of specific intent. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and |nfrom the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact-finder.

On appeal, defendant claims that the State failed to prove beyond a reasonable doubt that he possessed the requisite intent to defraud or take from the victim and that the amount of restitution was incorrect. We disagree.

In State v. Greene, the Louisiana Supreme Court reversed the fourth circuit, and reinstated the defendant’s conviction for unauthorized use of a movable, in violation of La. R.S. 14:68. In Greene, the victim and the defendant, who represented himself as a licensed contractor, entered into a contract for defendant to repair the victim’s Katrina-damaged home for $67,000.00. When the contract was signed, the victim paid defendant a deposit of $25,200.00.

The defendant obtained a building permit two days later, but did not commence work until approximately one month later when he parked a trailer in front of the house, cut down a tree in the back, and removed a damaged fence. In the course of the preliminary work, the defendant informed the victim that subsequent phases of the repair, as agreed to in the contract, could not be accomplished without first repairing the foundation. The victim declined a change in the terms of the contract and instructed the defendant to continue with other tasks as provided in the contract.

1 ^However, within a week, the victim noticed no work had been done to the property. She unsuccessfully attempted to contact the defendant over the next ten days. Soon thereafter, the victim fired the defendant and terminated the contract, demanding repayment of her deposit, which defendant refused to repay. Id.

Two weeks after she fired defendant, the victim made a formal complaint to the Economic Crimes Department of the Orleans Parish District Attorney’s Office. When a detective met with the defendant and inquired if he had considered repaying the victim, the defendant acknowledged that he owed the victim the deposit minus $4,800.00 for work we had performed. The defendant told the detective that he could not repay the victim’s deposit immediately because he had used the victim’s money to pay work crews, buy materials, and himself. Defendant did offer to repay the victim $5,000 a month for four months. The victim rejected the terms of the defendant’s repayment plan. Thereafter, defendant was arrested and charged with theft over $500.00, in violation of La. R.S. 14:67.

Defendant waived trial by jury and was found guilty of the lesser-included offense of unauthorized use of a movable, in violation of La. R.S. 14:68. On appeal, the fourth circuit reversed the defendant’s conviction, on the grounds that the State failed to prove the requisite intent to defraud to support defendant’s conviction and that “the dispute that existed between the parties was civil in nature not criminal and should have been handled in a civil proceeding, where any damages owed by either party could be properly assessed under the terms of the contract.”

On certiorari, the Louisiana Supreme Court reversed the fourth circuit and reinstated the defendant’s conviction, finding that the evidence, when viewed in |isthe light most favorable to the prosecution, supported the guilty verdict. In so concluding, the supreme court principally relied on the fact that, when entering into the contract with the victim, the defendant misrepresented himself as a Louisiana-licensed contractor when the evidence adduced at trial established that he was not.

In State v. McMillian, the victims entered into two contracts with the defendant, a general contractor, for a total price of $162,000.00. In the first contract, defendant received the first payment and began work but failed to complete the necessary framing. When the defendant requested the next payment, the victims were unable to acquire the funds from them mortgage company until the framing was completed as agreed upon.

On the second contract, the victims paid defendant $65,000.00 before work commenced. After accepting $65,000.00, defendant installed three windows and three doors with no hardware and hung sheet rock, which was not taped or floated, in one room. No further work was completed by the defendant.

Although the victims persistently emailed and telephoned the defendant pleading with him to finish the work, he refused to complete any further work. The total amount of money that the victims gave to the defendant totaled $97,860.00. Subsequently, the victims learned that the defendant’s business telephone number had been disconnected and his place of business had been vacated. The victims also learned that the homeowner of the house the defendant |14gave them as a reference had fired the defendant for incomplete and substandard work and finished the work himself.

In McMillian, the defendant was charged with and convicted of theft over $500.00, in violation of La. R.S. 14:67. On appeal, the fourth circuit affirmed the defendant’s conviction, finding that a reasonable trier of fact could conclude that the defendant intended to permanently deprive the victims of money owed to them in excess of $500.00.

Turning to the instant case, although defendant did not misrepresent himself as a licensed contractor as in Greene or disappear as in McMillian, we find that a rational juror could find, based on the evidence adduced at trial, that the State proved at trial that defendant took money from the victims through fraudulent conduct with the intent to permanently deprive the victims of their money.

Here, testimony at trial revealed that defendant failed to apply for the proper permits and inspections from the inception of the project, which suggests that defendant did not intend to construct the building. Further, vendors and subcontractors were not paid by defendant for their services, despite defendant invoicing and receiving funds totaling more than $63,000.00 from the Rochelles to pay for the work. Furthermore, in 2009, defendant had begun bankruptcy proceedings in his personal and business capacities so defendant’s inability to repay casts doubt on the honesty of his offer to repay.

Based on the foregoing, we find, in viewing this evidence in the light most favorable to the prosecution, and giving due deference to the factual findings made by the jury, that any rational trier of fact could have found that defendant had the specific intent to permanently deprive the victims of their money by means of 11sfraudulent conduct, practices, or representations. Accordingly, we find no abuse of the trial court’s discretion in denying defendant’s motion for new trial based on the verdict being contrary to the law and the evidence. This assignment of error lacks merit.

Returning to defendant’s first assignment of error, he argues that “the trial court erred in preventing the defense providing a defense [sic].” Specifically, defendant argues that he was denied his constitutional right to present a defense when the trial judge sustained the State’s objections during the defense’s opening statement, during the defense’s case-in-chief, and during jury deliberations.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. However, this right does not require a trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice.

Initially, we note that appellant’s brief contains allegations but no jurisprudential or statutory support for those allegations, which comes perilously close to failure to brief this assignment of error. All specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. In so far as we are able to discern from the scant submission the nature of defendant’s argument, we will address his claims.

| |fiFirst, defendant claims that he was denied his right to present a defense when the trial court sustained several of the State’s objections during the defense’s opening statement. Generally, the scope of counsel’s opening statement is left to the sound discretion of the trial judge and, in the absence of an abuse of discretion, this Court will not reverse a lower court’s ruling. Our review of the opening statement of defense counsel discloses that counsel was generally afforded wide latitude by the trial court. In fact, the statement as a whole was exhaustive in nature. We find, therefore, that the trial court did not abuse its discretion in sustaining the State’s objections.

Next, defendant argues that his right to present a defense was denied when the trial court refused to accept his witness, an engineer who created the house plans for the defunct project, as an expert in the field of civil and structural engineering. The court agreed to allow the engineer to testify as a fact witness in this case.

La. C.E. art. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In reviewing the decision of a trial court in qualifying a witness as an expert, courts typically place the burden on the party offering the witness as an expert and consider that the decision to accept or reject the offer rests within the sound discretion of the trial court.

Here, where the offense is theft of currency, the issue, as stated by the trial court, is “what happened to the money.” We cannot see how “scientific, technical, |17or specialized knowledge in the field of engineering” would have assisted the trier of fact in determining what happened to the money. Thus, we find no abuse of the trial court’s discretion in rejecting the defense’s offer of an engineer as an expert in this case.

Next, defendant further argues his right to present a defense was denied when his witness, another contractor, was prevented from testifying about defendant’s efforts to obtain the necessary panels. During the direct examination of this witness, defense counsel asked: “In connection with your discussions with Mr. Richey, did the subject of [M-2] panels ever come up?” The State objected on the basis of hearsay. During the bench conference, defense counsel explained that, through this witness, he sought “to show that [defendant] was trying to finish the project.” The State argued that introduction of this testimony would amount to the defendant testifying without taking the stand. The trial court sustained the State’s objection, finding such testimony amounted to inadmissible hearsay.

On appeal, defendant contends that this does not constitute hearsay. Hearsay is defined by La. C.E. art. 801(C) as “a statement, other than one made by the declar-ant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is not admissible except as otherwise provided by the Code or other legislation. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence will not be disturbed.

Here, defense counsel sought to introduce, through Mr. Rabalais’ testimony, a statement by the defendant that he was trying to finish the project, which, by 11Rdefinition, is an out-of-court statement by a non-testifying declarant offered for the truth of the matter asserted. This testimony was hearsay. Further, the defense did not point to a valid exception to the hearsay rule; thus, this constituted inadmissible hearsay. We find that the trial court did not abuse its discretion in sustaining the State’s objection on this basis.

Lastly, defendant argues that the importance of the evidence excluded by the trial court’s rulings was made evident by the jury’s questions during deliberations. After retiring, the jury presented the court with the following questions:

What date did the M-2 panel company go out of business?
What date was the 30,000-dollar check given by Rochelle to Richey?
What was the day of the engineer’s invoice for the panel M-2 construction? What was the date of the e-mail of Rich-ey requesting address to mail payments? When was the letter from the town of Grand Isle with respect to the work order?

The trial court instructed the jury that its questions could not be answered because the jurors are required under the law to rely on their memory.

We note that testimony and evidence regarding each of these issues were elicited at trial. First, the defense elicited testimony from its witness that the M-2 panel company went out of business between March and May of 2008. Second, the Rochelles paid defendant $30,000.00 on March 20, 2008. Third, the first set of building plans, utilizing the M-2 panels, is dated October 31, 2007. Fourth, defendant e-mailed Mr. Rochelle requesting a mailing address on October 5, 2009. Fifth, the notice from the Grand Isle Building Inspector is dated May 15, 2009. Thus, defendant’s contention that |19the jury’s questions prove that he was prevented from introducing crucial evidence is erroneous.

In view of the foregoing, we find no support for defendant’s contention that his constitutional right to present a defense was violated by the trial court’s rulings in this case. This assignment of error lacks merit.

In his final assignment of error, defendant argues that “the trial court imposed and [sic] illegal sentence.” Specifically, he argues, first, that the prison sentence imposed is illegally excessive, and, second, that the restitution amount is illegal, or, in the alternative, that the restitution amount is unconstitutionally excessive. In response, the State concedes that the defendant’s term of imprisonment is illegally excessive. The State responds, however, that the amount of restitution is neither illegal nor unconstitutionally excessive.

With respect to defendant’s sentence, we find that it is illegally excessive. Here, the jury convicted defendant of attempted theft over $500.00, in violation of La. R.S. 14:27 and La. R.S. 14:67. At the time of the offense, which was committed between June 27, 2007 and February 19, 2010, theft over $500.00 carried a penalty of imprisonment, with or without hard labor, for not more than ten years, or a fine of not more than three thousand dollars, or both. More importantly, however, before August 14, 2010, La. R.S. 14:27(D)(2) provided, in pertinent part, that: “If the offense so attempted is theft, and is punishable as a felony, he shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both.”

12nHere, the trial judge initially sentenced defendant to three years with the Department of Corrections, suspended, and placed defendant on active probation for five years, with the conditions of refraining from criminal conduct and making restitution. As defendant’s imposed sentence exceeds the maximum term of one year provided by the statute at the applicable time period, we find that defendant’s sentence imposed on October 4, 2012 is constitutionally excessive. Accordingly, we vacate defendant’s three-year sentence and remand for resentenc-ing.

Error patent review

In this case, defendant requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no error that requires correction.

Decree

Accordingly, for the foregoing reasons, defendant’s conviction is affirmed but his sentence is vacated. This matter is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

      . The record does not reflect that defendant was arraigned on the amended charge. However, because defendant proceeded to trial on the amended charge without objection, he waived any irregularity therein. See State v. Morton, 12-27 (La.App. 5 Cir. 5/31/12), 97 So.3d 1034, 1044, writ denied, 12-1476 (La.1/18/13), 107 So.3d 625 (citing La.C.Cr.P. art. 555).

      . On December 10, 2012, a "Motion and Order for Hearing to Revoke Probation” was filed by defendant's probation officer alleging that defendant had violated the conditions of his probation by failing to "refrain from criminal conduct.” Specifically, the Rule to Revoke alleged that, on November 18, 2012, defendant "was arrested by the St. Tammany Parish Sheriff’s Office for Vehicular Negligent Injuring, Driving While Intoxicated, Careless Operation, Driving Under Suspension, and Issuing Worthless Checks.” On January 31, 2013, defendant stipulated to the revocation, the trial court revoked defendant's probation, and imposed a sentence of three years imprisonment at hard labor. The revocation, which is not an appealable judgment, occurred after the granting of the motion for appeal, and is not before this Court on appeal. La.C.Cr.P. arts. 912 and 912.1(C)(1); State v. Franks, 04-1208 (La.App. 5 Cir. 4/26/05), 902 So.2d 450.

      . Despite the trial court’s being divested of jurisdiction upon granting defendant's appeal on November 7, 2012, the court nonetheless maintained jurisdiction to rule on defendant’s motion for reconsideration of sentence on November 8, 2012. See La.C.Cr.P. art. 916(3).

      . Craig Duos, the owner of Southeast Engineers ("Southeast”) and a Louisiana-licensed engineer, conducted the engineering analysis and prepared the plans for the Rochelle fishing camp. On October 31, 2007, Southeast billed and Phoenix paid $6,973.20 for the first set of plans.

      . In 2008, a local company, Advanced Building Systems ("ABS”), was manufacturing the panels, which required special installation.

      . The camp was to be completed on or before September 24, 2008.

      . Testimony reflected that, in an unrelated turn of events, ABS went out of business without warning at some point in 2008 and the M-2 panels were difficult to obtain.

      . The "profit” on this invoice totaled $3,863.00.

      . The Grand Isle Building Inspector cited eleven violations, including: 1. A building permit has not been issued for any work other than pilings; 2. Pile inspections have not been requested or performed, therefore it is impossible for the inspector to verify that piles were driven to an adequate depth for bearing and uplift resistance purposes; 3. Forms have been set for the grade beam foundation prior to issuance of permit; 4. The forms that have been built are unlevel, have large gaps, are not adequately staked and are substandard; 5. Architectural review checklist has not been submitted to the Grand Isle Building Department; 6. Approval letter from the subdivision engineer has not been submitted; 7. Building Code compliance plan review has not been performed and approved, plan reviews are performed only after a complete permit application and appropriate fees have been paid; 8. Proof of ownership and a copy of the property tax has not been submitted; 9. Work must commence within 90 days of issuance of permit or permit is null and void; 10. An elevation certificate has not been submitted and property corners have not been marked; and 11. A completed permit application has not been received.

      . Mr. Rochelle testified that he eventually had the lot filled, which totaled $2,800.00.

      . In 2010, defendant filed bankruptcy with respect to his business and personal accounts.

      . State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . Id.

      . State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039 (citation omitted).

      . Id.

      . State v. Thomas, 08-813 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606 n. 3, writ denied, 09-1294 (La.4/5/10), 31 So.3d 361.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

      . State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

      . Id.

      . State v. Reed, 11-507 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-0644 (La.9/14/12), 97 So.3d 1014.

      . See, State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418.

      . See, Cloy v. Lee, 01-920 (La.App. 5 Cir. 1/15/02), 807 So.2d 900, 903.

      . Id.

      . Id.

      . See, La.C.Cr.P. art. 814(A)(26).

      . State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).

      . State v. Carmen, 08-478 (La.App. 5 Cir. 1/27/09), 3 So.3d 587, 591.

      . State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 511.

      . Id. at 512.

      . Id.

      . State v. Patterson, 11-158 (La.App. 5 Cir. 11/29/11), 78 So.3d 855, 859.

      . La. R.S. 14:10(1).

      . State v. Joseph, 09-400 (La.App. 5 Cir. 12/29/09), 30 So.3d 157, 165.

      . Id.

      . The amount of restitution will be addressed in defendant’s third assignment of error, infra.

      . 09-2723 (La.1/19/11), 55 So.3d 775, 776.

      . The unauthorized use of a movable is "the intentional taking or use of a movable which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently." La. R.S. 14:68.

        .Greene, supra

      . Id.

      . Id.

      . Greene, 55 So.3d at 776-77.

      . Greene, at 777.

      . Id.

      . Id. at 777.

      . Id. at 775-76.

      . Greene, 55 So.3d at 775.

      . Id. at 779-80.

      . 10-0812 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 802.

      . Id. at 803.

      . Id.

      . Id.

      . Id.

      . Id. at 802.

      . Id. at 805-06.

      . State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039 (citation omitted).

      . State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763.

      . Id.

      . See U.R.C.A. 2-12.4; State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied, 12-2024 (La.1/25/13), 105 So.3d 713.

      . State v. Kinchen, 342 So.2d 174 (La.1977).

      . State v. Denney, 352 So.2d 204, 205 (La.1977).

      . State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).

      . Furthermore, Mr. Duos testified as a fact witness to the time and complexities involved in the project. He explained that the building had to be engineered to withstand severe weather conditions because of its location, which required six months. Further, weather conditions and material procurement caused substantial delays.

      . La. C.E. art. 802; State v. Balsar, 625 So.2d 664 (La.App. 5 Cir. 1993), writ denied, 93-2799 (La.1/13/94), 631 So.2d 1164.

      . State v. Besse, 11-230 (La.App. 5 Cir. 12/28/11), 83 So.3d 257, 265, writ denied, 12-0292 (La.5/25/12), 90 So.3d 409.

      . It is well-settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520.

      . La. R.S. 14:27(D) was amended by Acts 2010, No. 531, § 1 and, more recently, Acts 2013, No. 240, § 1.

      . A sentence committing a prisoner to the Department of Corrections is necessarily at hard labor. State v. Wilson, 11-40 (La.App. 5 Cir. 10/25/11), 77 So.3d 400, 405.

      . See, State v. Maride, 08-678 (La.App. 3 Cir. 12/10/08), 998 So.2d 909, 911.

      . Further, because we are vacating defendant's sentence, we pretermit discussion of defendant’s assignment of error regarding restitution.

      . See La.C:Cr.P. arts. 881.4(A).


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dedrick MARSHALL.
    No. 13-KA-233.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Gail D. Schlosser, Kellie Rish, Emilia Salas, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

12Pefendant, Dedrick Marshall, was convicted of one count of second degree battery violation of La. R.S. 14:34.1, and one count of attempted false imprisonment while armed with a dangerous weapon in violation of La. R.S. 14:27/46.1. He was sentenced to three years at hard labor on each count, with both sentences to run concurrently. Defendant now appeals from his conviction and sentence, contending that the trial court erred in allowing the admission of other crimes evidence at his trial. For the reasons that follow, we affirm defendant’s convictions and sentences.

The following was adduced at trial. Defendant and the victim, Iesha Wells, were in a relationship for approximately 10 years and had one child together. Ms. Wells also had a daughter who was an infant when the two met, and defendant treated the child as if she were his child. During their time together, defendant had repeatedly accused Ms. Wells of infidelity, which she denied. At the time of the incident, the couple was residing together at 2708 Destrehan Ave., Apt. B, in Harvey, Louisiana.

3In the afternoon hours of June 5, 2012, defendant had dropped their children off at Ms. Wells’ place of employment, and as a result she had to leave work. Upon arriving at their apartment, Ms. Wells saw defendant taking items from the house, and she called the police. Defendant stated that he did not want to be in the relationship anymore. Upon instruction from the police, defendant gave Ms. Wells the keys to the apartment. After the police advised defendant not to return, he left.

Ms. Wells returned to the apartment at approximately 8:00 or 9:00 P.M. that evening and found defendant was there. He said that he wanted to reconcile. He went to sleep downstairs while Ms. Wells went to sleep upstairs.

When Ms. Wells awoke at approximately 6:00 A.M. the following morning, defendant was on top of her, punching her in the face and pulling her hair. Ms. Wells testified that even before she woke up, defendant had already punched her in the eye. As she became conscious, Ms. Wells began to fight back. The two went downstairs, where defendant grabbed a knife from the kitchen and told Ms. Wells that if he could not have her, then nobody could have her. He accused her of infidelity, wrapped his hand around her hair, and cut it off. He then went outside and slashed all four tires on her vehicle so that she could not leave. When defendant went outside, Ms. Wells called 911.

By the time the police arrived, defendant had re-entered the apartment. When the responding officers knocked at her door, defendant put a knife to Ms. Wells’ back and demanded that she not answer the knock at the door. Receiving no response, the police left.

In an attempt to get out of her apartment, Ms. Wells then falsely admitted to defendant that she cheated on him. She offered to bring him to her non-existent boyfriend’s home. Ms. Wells got into a truck with defendant and the two began to ride around under the pretense of finding the man with whom she had been having |4an affair. Ms. Wells knocked on a random door, which was answered by Sheryl Wall. Ms. Wells asked for help, relating that defendant was beating her, and had been doing so since 5:30 that morning. Ms. Wall pulled Ms. Wells into the home for safety, and they called the police. After Ms. Wells went into Ms. Wall’s home, defendant went to the door and started beating on it. Defendant was told that the police had been called, and he left.

Deputy Chad Mackie and Deputy Kevin McGuffie of the Jefferson Parish Sheriffs Office responded to a disturbance call at 3837 Deer Run Lane in Harvey, which was Ms. Wall’s home. When they arrived at the residence, there was a West Jefferson EMT unit parked out front. Deputy Mackie went inside the EMT unit where he saw the victim, Ms. Wells. She was “scared, upset, and crying,” her cheek bone and eye were swollen, and it appeared that parts of her hair had been cut. Ms. Wells related that her boyfriend, De-drick Marshall, had injured her. She indicated that he fled the scene in a blue pickup truck and was likely going home because that was where their children were.

Deputy McGuffie left the scene to pursue defendant, whom he apprehended outside of the Destrehan Avenue apartment. Deputy Mackie arrived, and defendant was placed in the back of Deputy Mackie’s vehicle. Both Deputy McGuffie and Deputy Mackie observed a van in the parking lot that had four flat tires.

At trial, Deputy Mackie also testified that he had responded to a hang-up 911 call at 2708 Destrehan Avenue, where defendant lived, at approximately 8:00 or 9:00 that same morning. Deputy Mackie knocked on the door of the residence, but the windows were closed, the door was locked and no one answered. As a result, the 911 call was noted to be unfounded.

|sIn his sole assignment of error, defendant argues that the trial court erred in allowing the introduction of other crimes evidence under La. C.E. art. 404B(1).

Prior to trial, the State filed a Notice of Intent to Use Evidence of Other Crimes, seeking to introduce evidence of prior bad acts or crimes at trial, which it contended defendant committed upon Ms. Wells in the years leading up to the offense for which he was currently charged. Specifically, the State sought to introduce evidence of an altercation in August of 2005, in which defendant pushed Ms. Wells and told her, “[I]f I can’t have you no one can.” The State also sought to introduce evidence of a February 2006 guilty plea for domestic assault on Ms. Wells. The trial judge granted the State’s 404B(1) motion. Defendant now contends that the court erred in allowing the introduction of these previous domestic disputes between him and Ms. Wells, which he maintains served no purpose other than to portray him in the worst possible light as a man of bad character. Defendant also argues that this error was not harmless.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. La. C.E. art. 404B(i); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material fact and has independent relevance other than showing that the defendant is of bad 1 ficharacter, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1065, writ denied, 02-481 (La.3/14/03), 839 So.2d 26.

La. C.E. art. 404B(i) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In order for evidence of other crimes or past acts to be admitted, certain requirements must be met. First, one of the factors enumerated above must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible. State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the State must prove that the defendant committed the other acts by a preponderance of the evidence. Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988); State v. Hernandez, 98-448 (La.App. 5 Cir. 5/19/99), 735 So.2d 888, 898-99, writ denied, 99-1688 (La.11/12/99), 750 So.2d 194. Third, the requirements for admission of such evidence, set forth in State v. Prieur, 277 So.2d 126, 130 (La.1973), must be met. These requirements are that within a reasonable time before trial, the State must furnish to the defendant a written statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. In the written statement, the State must specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses. Finally, the probative value of such evidence must be weighed against its 17prejudicial effect. State v. Lisotta, 97-406 (La.App. 5 Cir. 2/25/98), 712 So.2d 527, 530.

The burden is on the defendant to show that he was prejudiced by the trial court’s admission of evidence of other crimes, wrongs, or acts. State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709, writ denied, 02-234 (La.1/31/03), 836 So.2d 58. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art 404B(i) will not be disturbed. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

Evidence of other crimes, wrongs or acts may also be introduced to establish proof of motive. For evidence of motive to be independently relevant, it must be factually peculiar to the victim and the charged crime. State v. Lafleur, 398 So.2d 1074, 1080 (La.1981). Additionally, in a case in which the State sought to elicit testimony as to defendant’s motive, the Louisiana Supreme Court observed, “Clearly, evidence that defendant and his ex-wife, the person to whom defendant’s alleged criminal conduct was directed, had had a poor marital relationship and that defendant had a bad temper was relevant as tending to show the commission of the offense ...” State v. Walker, 394 So.2d 1181, 1184 (La.1981). See also State v. Welch, 615 So.2d 300, 303 (La.1993), in which the court said:

[T]he state could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the defendant ... The primary purpose of the evidence [of prior acts of violence or threats of violence] was not to prove Welch’s bad character but to illustrate the volatile nature of his relationship with the victim.

In this case, defendant’s prior acts of domestic abuse against Ms. Wells were independently relevant to show the volatile nature of the relationship between him and the victim. The evidence reflects that, in each of the prior offenses, defendant | ^assaulted Ms. Wells after accusing her of infidelity. In this case, defendant physically assaulted Ms. Wells after accusing her of having an affair. Thus, the State could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between defendant and Ms. Wells. See also State v. Cotton, 07-782 (La.App. 5 Cir. 2/19/08), 980 So.2d 34, 44, writ denied, 08-0603 (La.10/3/08), 992 So.2d 1010 and State v. Adams, 11-980 (La.App. 5 Cir. 4/24/12), 89 So.3d 435, writ denied, 12-1629 (La.4/19/13), 111 So.3d 1027.

We find that the other crimes evidence introduced at trial was substantially relevant to show defendant’s motive, or his reason to commit the charged offenses. “For evidence of motive to be independently relevant, it must be factually particular to the victim and the charged crime.” State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236, 1244. The evidence of defendant’s prior acts toward the victim places the circumstances of the current offenses within the proper context with regards to the relationship between them. Furthermore, the primary purpose of the evidence was not to prove defendant’s bad character, but was independently relevant to illustrate the volatile nature of his relationship with the victim. Thus, the evidence demonstrated a pattern of defendant’s verbal, physical and emotional abuse with respect to the victim.

We also note that the trial judge gave the jury a limiting instruction that the evidence of other crimes was to be used only “to show the defendant’s intent, system, motive, or identity.”

Considering that the record demonstrates that the other crimes are highly probative of the volatile relationship between the victim and defendant, and the similarity of the abusive pattern of conduct by the defendant toward the victim, we conclude that the probative value of the “other crimes” evidence outweighed its 1 ^prejudicial effect, and thus the trial court did not err in allowing its admission into evidence. We therefore find defendant’s assignment of error to be without merit.

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which merit corrective action.

For the above discussed reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Jeffery DAVIS.
    No. 13-KA-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Jerome G. Smith, III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Christopher A. Aberle, Attorney at Law, Mandeville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

12Defendant, Jeffery Davis, appeals his conviction for second degree murder on the basis he was denied his constitutional right to confront a witness and the erroneous admission of other crimes evidence. For the reasons that follow, we affirm Defendant’s conviction and sentence.

Defendant was indicted by a grand jury on May 5, 2011 and charged with the second degree murder of Rodney Ross in violation of La. R.S. 14:30.1, He proceeded to trial on October 2, 2012. After a four-day trial, a 12-person jury found Defendant guilty as charged. The trial court subsequently sentenced Defendant to life imprisonment without the benefit of parole, probation or suspension of sentence.

FACTS

Shortly after midnight on April 11, 2010, the Jefferson Parish Sheriffs Office (JPSO) received two 911 calls regarding multiple shots being fired in the |31000 block of Dimarco Street in Marrero. Sergeant Eddie Klein with the JPSO responded to the calls. When he arrived, he observed the murder victim, Rodney Ross (also known as “Mob”), lying on the ground along with ten .45 caliber casings and two 9 mm casings. An autopsy revealed the victim sustained two gunshot wounds to the head and eleven gunshot wounds to the rest of his body. The autopsy also showed that two separate guns were used to shoot the victim.

During the investigation, Sgt. Klein learned that a maroon GMC or Chevy pickup truck was seen leaving the scene. Surveillance cameras from nearby businesses captured the pickup truck but not the license plate or any occupants. Sgt. Klein also discovered that a similar maroon pickup truck was involved in a nonfatal shooting with .45 caliber casings that occurred six days earlier on April 5, 2010. He viewed still photographs from surveillance video of that incident, which he subsequently showed to co-defendant Rob-breion Green’s mother, who thought the person in the photograph was “Telly.” After a computer search, an arrest warrant was issued for Telly Westerman on April 12, 2010 for attempted murder in connection with the April 5th shooting. Wester-man came into the Detective Bureau later that night, waived his rights and gave five statements, three of which related to the April 10th homicide.

In his first statement dated April 13, 2010 at 2:28 a.m., Westerman stated that on the day of the murder, he, Maurice Williams, Green, Defendant, and Ross gathered around 5:00-6:00 p.m. at Williams’ mother’s apartment at 1000 Dimarco. Westerman explained that he left the apartment around 10:00-11:00 p.m. and went to his girlfriend’s house. He later received a phone call from Ross, who angrily accused him of taking his gun. Wester-man told Ross that he did not have his gun. Ross called five to seven more times and, although no one said anything on the phone each of those times, Westerman could hear the group talking about a gun. _JjWesterman then decided to go back to the apartment to see what was going on. When he arrived, Williams, Green, Defendant and Ross were there, and the victim was upset that someone had taken his gun.

Westerman reminded Ross that when he left, Ross was playing with his small black and gray gun and Green’s gray and black 9 mm gun on the floor. At that point, Wes-terman and Williams decided to go to Tim’s Billiards to play pool, which was located around the corner from the apartment. Green and Davis jumped into the truck with them, but Ross stayed behind. Before arriving at Tim’s Billiards, Green asked Westerman to bring him back to the apartment so he could get “something.”

Westerman complied and went back to the apartment. When they arrived, everyone got out of the truck except Wester-man. While Westerman was waiting, he saw Williams in his rearview mirror coming down the alley. Williams opened the door of the truck and was about to enter it when Westerman heard two shots. Wes-terman turned around and saw Defendant shooting Ross and Ross falling to the side. Green subsequently returned to the truck and said he had shot Ross in the head with the last two shots.

According to his statement, Westerman and Williams left the scene in Westerman’s truck, but later encountered Defendant and Green walking down the street and let them get into the truck. They then went to Tim’s Billiards. After learning there were no pool tables available, the group walked back to the truck so Westerman could get his pool stick. Westerman told Defendant and Green to get their guns out of his truck and hide them, which they did. Afterward, they went back inside Tim’s Billiards and then left.

| ¡Westerman stated he dropped everyone off on Carmadelle in front of Defendant’s house, after which Westerman called his girlfriend and went to her house. Westerman told his girlfriend what had happened. Approximately one hour later, Williams called Westerman and told him “they” were looking for a maroon truck. Westerman later spoke to Defendant, who told him that he had talked to the police and that the police wanted to question him as well.

In his statement, Westerman confirmed he had positively identified Green in a photographic lineup. He further stated that he knew Defendant had gone back and retrieved his gun, but was unsure whether Green had done so because he had not talked to Green since the shooting. Westerman gave a second statement at 3:17 a.m., in which he confirmed that he had viewed photographic lineups and had positively identified Williams. He gave a third statement at 4:56 a.m., in which he stated that Defendant and Green did not walk away from the scene after they shot Ross like he claimed in his first statement, but that they got into his truck immediately after the incident.

After Westerman gave his statements, Sgt. Klein obtained video surveillance from Tim’s Billiards, which he said confirmed Westerman’s account of what happened. Sgt. Klein further testified that Wester-man’s statements were consistent with the physical evidence. He stated ballistics tests showed that a .45 caliber gun and a 9 mm gun were used to kill Ross. The .45 caliber gun used in the murder was recovered and was determined to be the same gun Defendant used in the April 5, 2010 non-fatal shooting.

| fiAt trial, Westerman was the State’s primary witness. Westerman’s trial testimony was similar to the statements he made to the police; however, he additionally testified at trial that the day after Ross’ murder, Williams showed him Ross’ 9 mm gun and said, “I told that b*tch I got him.” Westerman also testified that a month prior to Ross’ murder, he and Williams were riding up the street when they saw Ross. Williams told Westerman to stop and he did. Williams and Ross pushed each other, and Williams yelled to Ross, “I’m going to kill you b*tch.” Wes-terman explained that Williams was upset because Ross had “hollered” at the mother of his child; however, Ross said it was Green who had done so.

Westerman explained that he omitted this information when giving his statements to the police because he wanted to protect Williams, who was his close friend. He stated he disclosed the additional information approximately one year after Ross’ murder. Westerman testified that he was initially charged with second degree murder in the instant case and aggravated second degree battery in the April 5, 2010 non-fatal shooting. The aggravated second degree battery charge was later changed to three counts of attempted murder. In exchange for his trial testimony in the present case, Westerman pled guilty to reduced charges of accessory after the fact. Westerman explained that he faced zero to five years for each charge or possibly probation.

DISCUSSION

Defendant raises two assignments of error on appeal. First, he claims his Sixth Amendment right to confront his accusers was violated when the trial court admitted the unsworn, out-of-court statement of Williams’ mother, Eunice Williams, who refused to testify at trial. Defendant specifically asserts he did not have the opportunity to cross-examine Ms. Williams and, thus, her statement was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158_|¿L.Ed.2d 177 (2004). Second, Defendant argues the trial court erred in admitting evidence of the April 5, 2010 non-fatal shooting as other crimes evidence when he offered to stipulate that he possessed the murder weapon six days before the murder.

Right to Confrontation

Defendant maintains that he was not afforded an opportunity to cross-examine Ms. Williams because she refused to testify at trial by repeatedly stating she did not remember anything and by invoking her Fifth Amendment privilege against self-incrimination. He contends that Ms. Williams’ out-of-court statement was intended to bolster the damaged credibility of the State’s key witness, Westerman.

The State maintains that Defendant had the opportunity to cross-examine Ms. Williams at trial but chose not to do so. It further argues that under United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), Ms. Williams’ memory loss does not constitute a Confrontation Clause violation.

Approximately three months after the murder, Ms. Williams gave a recorded statement to the police. In her statement, Ms. Williams stated she arrived home around 10:00 p.m. on the night of the murder to find Ross, who she identified as her cousin, inside, alone playing video games. She asked where her son, Wester-man, Green and Defendant were and Ross told her they were at the pool hall. Ms. Williams could tell something was wrong, but Ross did not talk to her about it.

Ross asked Ms. Williams for Wester-man’s phone number and then called him. Ms. Williams overheard Ross telling Wes-terman, “man stop playing.” Shortly thereafter, her son, Westerman, Green and Defendant came to the apartment. Green came inside while everyone else stayed outside in front of the 1 sdoor. Then, Green and Ross went out the door, and Ms. Williams closed it. About a minute after she closed the door, she heard approximately nine gunshots. She waited awhile and opened the door to find police on the scene and Ross lying on the ground. She stated she had positively identified her son, Westerman, Green, Defendant and Ross from photographic lineups.

Ms. Williams testified at the suppression hearing and at trial; however, both times she claimed that she did not remember a murder occurred outside her door or that she had talked to the police about what she saw. She explained that her memory was faulty because she was under the influence of drugs at that time.

In response to specific questions at trial, Ms. Williams repeatedly asserted that she did not remember anything. When the State played an innocuous portion of her recorded statement, Ms. Williams admitted it sounded like her. The State then asked Ms. Williams to review her transcribed statement in an attempt to refresh her memory; however, Ms. Williams continued to claim that she did not remember it. Ms. Williams explained that she had been threatened and was afraid for her life, and she briefly pled “the Fifth.” The trial court reminded her that an attorney had previously advised her regarding this matter.

Thereafter, co-defendant Green’s counsel cross-examined Ms. Williams by asking if she was aware her son filed paperwork in his perjury case alleging she was a drug addict and did not know what she saying, and Ms. Williams replied that[3it was true. She again stated she did not recall making a statement to the police. Defendant’s counsel declined to cross-examine Ms. Williams.

Ms. Williams’ statement was subsequently introduced during Sgt. Klein’s testimony. Sgt. Klein testified that Ms. Williams did not appear to be intoxicated or under the influence of drugs when she gave her statement to him. Defense counsel objected to the admission of Ms. Williams’ statement on the basis it was testimonial hearsay that violated the Confrontation Clause. The trial court allowed the statement into evidence, and it was played for the jury.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution specifically and expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. Art. I, § 16. See also State v. Robinson, 01-273 (La.5/17/02); 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Id. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id.

In United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), the Supreme Court addressed the issue of whether a Confrontation Clause violation can be based upon a witness’ loss of memory. In Owens, a correctional counselor sustained severe memory impairment after being beaten with a metal pipe. When he was first interviewed in the hospital by the FBI, he could not recall his attacker. A few weeks later, he was able to describe the attack and identify his attacker. At trial, the counselor testified he remembered identifying his attacker in | inthe second interview in a photographic lineup; however, on cross-examination, he admitted he could not remember seeing his assailant. He further could not remember if anyone in the hospital had suggested the identity of his attacker to him despite defense counsel’s attempt to refresh the counselor’s memory with hospital records, which showed he had attributed the assault to someone other than the defendant.

In finding no Confrontation Clause violation, the Supreme Court explained that “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Owens, 484 U.S. at 559, 108 S.Ct. at 842 [emphasis as in original; internal citations omitted]. The Supreme Court stated that there are other realistic means of impugning the witness; however, it admitted that “[t]he weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success,” but emphasized that “successful cross-examination is not the constitutional guarantee.” Id., 484 U.S. at 560, 108 S.Ct. at 843. The Supreme Court specifically held that the Confrontation Clause is not violated by the admission of a statement of a witness, who is unable because of a memory loss, to testify concerning the basis for the statement. Id., 484 U.S. at 564, 108 S.Ct. at 845.

Many years later, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause requires that testimonial statements can only be admitted as evidence at a criminal trial when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. In footnote nine of its opinion, the Supreme Court stated that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior Intestimonial statements.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177. It further stated, “[t]he Clause does not bar admission of a statement as long as the declarant is present at trial to defend or explain it.” Id.

Based on Owens and Crawford, a declarant’s appearance and subjection to cross-examination at trial are all that is necessary to satisfy the Confrontation Clause, even if the declarant suffers from memory loss. See United States v. Keeter, 130 F.3d 297, 302 (7th Cir.1997), cert. denied, 523 U.S. 1034, 118 S.Ct. 1331, 140 L.Ed.2d 492 (1998)(allowed the admission of an affidavit signed by a witness before trial that implicated the defendant even though the witness feigned amnesia at trial and claimed to have no memory of making the statement or of the events described in the statement); State v. Holliday, 745 N.W.2d 556, 568 (Minn.2008), cert. denied, 555 U.S. 856, 129 S.Ct. 124, 172 L.Ed.2d 95 (2008)(no Confrontation Clause violation when police officer testified as to information given by a witness during an interview where the witness claimed at trial that he could not remember the interview even after being shown a report detailing the interview; witness’ regular use of ecstasy possibly affected his ability to remember); State v. Price, 158 Wash.2d 630, 146 P.3d 1183, 1192 (Wash.2006)(admission of witness’ out-of-court statement did not violate the Confrontation Clause when the witness is questioned about her prior statement but answers that she is unable to remember the statement; court noted the witness was competent to testify and testified under oath, defense counsel called attention to her | ialack of memory in closing, and the jury was able to view the witness’ demean- or so they could evaluate for themselves whether the witness was being truthful about her lack of memory); State v. Gorman, 854 A.2d 1164, 1178 (Me.2004), cert. denied, 544 U.S. 928, 125 S.Ct. 1668, 161 L.Ed.2d 490 (2005)(admission of the witness’ grand jury testimony did not violate Confrontation Clause when the witness had selective memory during trial; court found right to confrontation was satisfied when the defendant was given the opportunity to cross-examine the witness before the jury); and State v. Pierre, 277 Conn. 42, 890 A.2d 474, 502 (Conn.2006), cert. denied, 547 U.S. 1197, 126 S.Ct. 2878, 165 L.Ed.2d 904 (2006)(admission of out-of-court statement did not violate Confrontation Clause where the witness claimed he was unable to remember the earlier statement or the events surrounding the statement).

Thus, based on Owens, we find the admission of Ms. Williams’ statement did not violate Defendant’s right to confrontation. Ms. Williams appeared at trial, was sworn in and answered questions posed to her. Although she claimed she did not remember giving the statement to the police, she admitted the voice on the recorded statement sounded like her. We find that under these circumstances, Defendant was afforded an adequate opportunity to cross-examine Ms. Williams sufficient to satisfy the requirements of the Confrontation Clause.

Defendant relies on State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04); 889 So.2d 1093, 1100-02, writ denied, 05-81 (La.4/22/05); 899 So.2d 559, to support his argument that his right to confrontation was violated. In Williams, this Court found that the defendant’s right to confrontation had been violated when a witness’ statement was admitted into evidence even though the witness denied giving a statement to the police and claimed he had no knowledge about the questions being asked by the prosecutor.

|1sIn Williams, the witness, who was a co-defendant who had already been convicted, initially refused to testify after asserting his Fifth Amendment right. The trial court found the witness was immune from prosecution and compelled him to testify. Thereafter, the witness answered the prosecutor’s questions but insisted he never gave a statement to the police. Defense counsel cross-examined the witness but only questioned him on his medical conditions and asked no questions about the statement.

We find Williams is factually distinguishable from the present case. In particular, the witness in Williams denied giving a statement to the police whereas the witness in the present case only testified that she could not remember giving a statement and admitted that the voice on the recorded statement sounded like her. Additionally, defense counsel in Williams actually attempted to cross-examine the witness, whereas defense counsel in the present case did not ask one question on cross-examination despite the fact the witness was available for cross-examination; she was on the stand and had answered questions posed by the prosecutor and the co-defendant’s defense counsel. Defense counsel may not have liked the fact that Ms. Williams claimed she could not remember her statement, but she did not deny giving one. As discussed earlier, the Confrontational Clause does not guarantee successful cross-examination, but rather only the opportunity for cross-examination. Owens, 484 U.S. at 560, 108 S.Ct. at 843. Other Crimes Evidence

Defendant asserts the trial court erred in allowing the State to present evidence that he attempted to murder three unarmed people six days before Ross’ murder. He contends this evidence was inadmissible other crimes evidence, especially in light of the fact he offered to stipulate that he possessed the murder weapon six days earlier on April 5, 2010.

114The State contends the evidence was necessary to refute Defendant’s claim that the gun belonged to Westerman and that Defendant temporarily possessed the gun on April 5, 2010 for self-defense.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Davis, 08-165 (La.App. 5 Cir. 7/29/08); 993 So.2d 295, 303, writs denied, 08-2188 (La.5/1/09); 6 So.3d 810 and 08-2200 (La.5/1/09), 6 So.3d 811. However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03); 844 So.2d 159, 165. Evidence of other crimes is not admissible to prove the character of a person in order to show that he acted in conformity therewith; however, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. La. C.E. art. 404(B)(1); Id.

In order for other crimes evidence to be admitted under Article 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La.1993). Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. La. C.E. art. 403.

The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Davis, 993 So.2d at 303. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to Article 404(B)(1) will not be disturbed. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02); 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03); 842 So.2d 398.

| ^Prior to trial, the State filed a notice of intent to introduce evidence of other crimes seeking to introduce evidence that Defendant pled guilty to three counts of attempted second degree murder based on an incident that occurred on April 5, 2010, wherein Defendant fired a .45 caliber Glock, the same weapon used to murder the victim in this case. The State argued that said evidence was admissible under La. C.E. art. 404(B) to show identity and opportunity. The trial court ultimately ruled that the evidence was admissible to prove plan, motive, and intent.

Defense counsel subsequently offered to stipulate that Defendant was in possession of and fired the firearm in question six days before Ross’ murder, and that Defendant was with Westerman in Westerman’s truck when it happened. The State offered a counter-stipulation that Defendant was the same person who pled guilty to three counts of attempted murder, which defense counsel initially refused. Ultimately, the parties stipulated to a certified conviction packet that showed Defendant pled guilty to three counts of attempted murder that occurred on April 5, 2010.

At trial, the State presented several witnesses who testified regarding the April 5, 2010 shooting. Westerman testified that on that day, he was at a gas station when he saw three guys standing nearby and staring at him in a menacing way. Wes-terman called Williams to come to the gas station to see if he knew the guys. Williams was unable to come and Defendant came instead. Westerman met Defendant at a nearby store and Defendant got into Westerman’s truck. According to Westerman, he pulled up next to the three guys and asked “what was the problem.” One of the guys responded there was no problem, at which point Westerman intended to leave. However, shots were suddenly fired. Westerman looked to the side and saw that Defendant was out of the truck and shooting towards the guys, who were running. Defendant then returned to the truck and |1fithey left the scene. Westerman testified that he did not think anyone had been hit, but one of the guys was shot in the leg and testified at trial regarding the incident.

The investigating officer testified that .45 caliber casings were recovered from the scene. He explained that the April 10, 2010 murder also involved a .45 caliber firearm.

We find no error in the admission of evidence relating to the April 5, 2010 shooting. Evidence that Defendant shot someone on April 5, 2010 with the same gun used to kill Ross six days later was relevant to establish that Defendant killed Ross by showing identity, opportunity and plan. The State was not required to accept Defendant’s stipulation in lieu of presenting evidence. The State cannot be robbed of the moral force of its case merely because a stipulation is offered. See State v. Watson, 449 So.2d 1321, 1326 (La.1984), cert denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). “[T]he prosecution is entitled to prove its case by evidence of its own choice” and a defendant “may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.” State v. Ball, 99-428 (La.11/30/99), 756 So.2d 275, 280 (quoting Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

Evidence of the April 5, 2010 shooting was admissible to show that the gun used in that shooting belonged to Defendant, and not to Westerman. Defendant’s proposed stipulation suggested that Defendant only temporarily possessed Wester-man’s weapon in order to defend himself and was carefully worded to avoid an admission that the gun in question belonged to Defendant. However, in one of Wester-man’s statements regarding the April 5, 2010 shooting, which was played for the jury, Westerman said that he knew Defendant owned a .45 caliber gun.

Further, evidence of the April 5, 2010 shooting was admissible to refute | ^Defendant’s contention that he acted in self-defense during that shooting. In his opening statement, defense counsel claimed that Westerman was the aggressor in that shooting, that Defendant got caught in a “shootout,” that he found the gun in Westerman’s truck and fired it, and that he left the gun in Westerman’s truck after the shooting. Defense counsel also claimed in his opening statement that if he had Westerman’s truck, he would show that the other individuals shot at defendant. In his closing argument, defense counsel reiterated that Defendant fired the gun at the three individuals because shots were being fired at him. However, Wes-terman and the victim both testified at trial that Defendant was the only one who shot a gun.

Accordingly, we find no error in the admission of evidence relating to the April 5, 2010 shooting.

ERRORS PATENT

Pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), we reviewed the record for errors patent and found no errors.

DECREE

For the foregoing reasons, we find Defendant’s right to confrontation was not violated by the admission of Ms. Williams’ statement to the police. Additionally, we find no error in the trial court’s admission of evidence pertaining to the April 5, 2010 shooting, in which Defendant was involved and which resulted in Defendant’s guilty plea to three counts of attempted murder. Accordingly, Defendant’s conviction and sentence for second degree murder are affirmed.

AFFIRMED

      . The indictment also charged co-defendant, Robbreion Green, with second degree murder. Green was convicted and filed a separate appeal, which bears docket number 13-KA-238.

      . At trial, Westerman testified that he went to Tim’s Billiards so the surveillance cameras would show Defendant and Green hiding their guns.

      . At trial, Westerman’s girlfriend testified that Westerman told her that he saw one of the men shoot the victim first, and then the other man stood over the victim and shot him in the face and head. She explained that she went to the Detective Bureau with Westerman and gave a recorded statement to the same effect to which she testified.

      . Westerman's fourth and fifth statements given at 5:16 a.m. and 5:41 a.m. discussed his involvement in the April 5, 2010 nonfatal shooting. In his fourth statement, Wes-terman explained that he went to a gas station and three men were staring at him. Thereafter, he picked up Defendant to see if Defendant recognized the men. Words were exchanged when Westerman and Defendant encountered the men, and Defendant shot one of the men in the leg. In his fifth statement, Westerman said he had positively identified Defendant in a photographic lineup as the person who was in his truck on April 5th and who had shot at three people.

      . We note that Ms. Williams was not charged or implicated in this case. The privilege against self-incrimination embodied in the Fifth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution provides that, "[n]o person shall be compelled to give evidence against himself.” A witness may only invoke the Fifth Amendment privilege against self-incrimination only in response to questions where the witness “has reasonable cause to apprehend danger from a direct answer.” State v. Coleman, 406 So.2d 563, 566 (La.1981). Additionally, a witness must generally assert his Fifth Amendment privilege on a question by question basis rather than by claiming a blanket privilege. State v. Lewis, 01-1084 (La.App. 5 Cir. 3/13/02); 815 So.2d 166, 174, writ denied, 02-1053 (La.11/15/02); 829 So.2d 424. Further, a witness "is not exonerated from answering merely because he declares that in doing so he would incriminate himself — his say-so does not of itself establish the hazard of incrimination.” Coleman, supra, quoting Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124(1951).

      . We note the Mississippi Supreme Court found a distinction between feigned and genuine memory loss for purposes of the Confrontation Clause. In Goforth v. State, 70 So.3d 174 (Miss.2011), the witness was in a car accident prior to trial that severely impaired his physical and mental conditions. At trial, he testified that he could not remember giving a statement to the police and did not even remember knowing the victim or the defendant. The witness’ statement was admitted into evidence and read to the jury. The court found the admission of the witness' statement violated the Confrontation Clause, but ultimately determined it was harmless error. The court noted that although Crawford, supra, did not require a showing that the witness actually defended or explained his statement, its comment that "the declarant is present at trial to defend or explain” suggested that the witness had to have "presence and ability to act.” Goforth, 70 So.3d at 186. The court found that because the witness’ memory loss was real as opposed to feigned, he did not have the requisite minimal ability or capacity to act so as to afford the defendant an opportunity for cross-examination. We need not comment on this issue in this case as there is no indication in the record that Ms. Williams' memory loss was genuine. To the contrary, the record shows there were ample reasons to be suspicious about Ms. Williams’ alleged memory loss.