text:
    JON BARRI BROTHERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-478.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Stephen P. Tourtelot, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. See Walker v. State, 682 So.2d 555 (Fla.1996). See also Buchman v. Canard, 926 So.2d 390 (Fla. 3d DCA 2005) (noting that doctrine of law of the case applies to a per curiam decision of the appellate courts); Bueno v. Bueno de Khawly, 677 So.2d 3, 4 (Fla. 3d DCA 1996) (holding that “[a] per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court’s opinion or not” (quoting Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 179 (Fla. 3d DCA 1995))).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-298.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before LAGOA and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See G.W. v. State, 106 So.3d 83 (Fla. 3d DCA 2013).


author: SUAREZ, J.

text:
    Hosea MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2429.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

Hosea Mack seeks to reverse a final judgment and conviction. We affirm.

Mack seeks a new trial, arguing the trial court reversibly erred when it allowed the prosecution’s expert fingerprint witness to testify that certain latent fingerprints taken at a crime scene two years earlier matched the defendant’s fingerprints, without having authenticated the latents with the testimony of the police detective who actually lifted the prints at the crime scene. We review the trial court’s evidentiary rulings for abuse of discretion. Roosevelt v. State, 42 So.3d 293, 297 (Fla. 3d DCA 2010) (holding that a trial court’s admission of evidence will not be disturbed on appeal absent a clear abuse of discretion); accord H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007). After reviewing the record, we conclude that the trial court did not abuse its discretion to allow the latent fingerprints into evidence.

The State did not rely solely on fingerprint evidence to establish guilt, and the latents were admissible because the State laid sufficient predicate to support a finding that the documents were, in fact, what they purported to be, and that there was no evidence of tampering or of any break in chain of custody. In determining whether the evidence submitted is sufficient for this purpose, the trial judge must evaluate each instance on its own merits, there being no specific list of requirements for such a determination. Unless clearly erroneous, the trial court’s determination will be sustained. The State’s showing was sufficient to establish that the latent fingerprint cards were what the State claimed them to be. See Daniels v. State, 634 So.2d 187, 192 (Fla. 3d DCA 1994) (citing Justus v. State, 438 So.2d 358, 365 (Fla.1983)).

Affirmed.

      . The two most directly affected witnesses immediately identified the defendant from photo lineups and in court.

      . Section 90.901, Florida Statutes (2010), requires the authentication or identification of a document prior to its admission into evidence. The requirements of this section are satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims. Authentication or identification of evidence may include examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances. See Coday v. State, 946 So.2d 988, 1000 (Fla.2006).


text:
    F.V. CONSTRUCTION CORP. and Frances Valera, Appellants, v. COMMUNITY BANK OF FLORIDA, INC. et al., Appellees.
    No. 3D12-645.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Gerardo A. Vazquez and Julisse Jimenez, for appellants.
    Jay M. Levy; Freshman & Freshman and Jerald A. Freshman, for appellees.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

F.V. Construction Corp. (“F.V.”) and Frances Valera (‘Valera”) appeal a final judgment striking their amended complaint as a sham pleading and dismissing their action against the appellee, Community Bank of Florida, Inc. (“Community Bank”). We reverse the trial court’s determination and find that the amended complaint did not rise to the level of a sham pleading. Issues remain to be determined and, as such, there was no showing that the amended complaint was a plain fiction or undoubtedly false.

F.V.’s and Valera’s amended complaint against Community Bank alleged fraudulent misrepresentation, violation of Florida’s Blue Sky Laws, breach of contract, negligence, breach of fiduciary duty and good faith. The allegations arose from F.V.’s and Valera’s dealings with Community Bank, David Brouwer, and Great American Advisors. The amended complaint alleged, among other things, that Community Bank represented that Brou-wer worked for Community Bank and was in charge of investments. Valera deposited approximately $12,500,000.00, received from the sale of a parcel of investment property, with Community Bank, and, after investing the funds, claims to have lost approximately $2,500,000.00 in principal. Community Bank claimed, in its motion to strike sham pleading, that Brouwer was not employed by Community Bank, that Valera was aware of same and, as such, had no cause of action against Community Bank.

The allegations of the amended complaint do not rise to the level of a sham pleading. To constitute a sham pleading the pleading must be inherently false and based on plain or conceded facts clearly known to be false. Decker v. Cnty. of Volusia, 698 So.2d 650 (Fla. 5th DCA 1997). A hearing on a motion to strike a pleading as a sham is not a hearing to resolve the merits of the issues, but to determine if there are any genuine issues to be determined. Meadows v. Edwards, 82 So.2d 733 (Fla.1955); Slatko v. Virgin, 328 So.2d 499 (Fla. 3d DCA 1976). The amended complaint factually alleges issues yet to be determined on the merits. As such, it cannot be considered inherently false and based on plain or conceded facts clearly known to be false; which is the standard required to subject a pleading to being stricken as a sham. See Meadows, 82 So.2d at 733; Decker, 698 So.2d at 650.

Therefore, because the trial court abused its discretion in granting the motion to strike, see Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So.2d 942 (Fla. 5th DCA 2005); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So.2d 388 (Fla. 5th DCA 1995); Fla. R. Civ. P. 1.150, we reverse the order of the trial court and remand for further proceedings on the merits.

Reversed and remanded.

      . It is important to note that we make no determination as to the merits of the amended complaint. The appeal and this opinion concern solely the procedural issue of whether the trial court erred in striking the amended complaint as a sham pleading.


text:
    Da’Wanda N. MOBLEY-JENKINS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Miami Dade County, Appellees.
    No. 1D12-4138.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2013.
    Da’Wanda N. Mobley-Jenkins, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Millinger v. Broward County Mental Health Div. and Risk Management, 672 So.2d 24 (Fla.1996); Hollifield v. Renew & Co., Inc., 18 So.3d 616 (Fla. 1st DCA 2009).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


author: SHEPHERD, J.

text:
    Frances L. LOSH, Appellant, v. Carlin McKINLEY, Appellee.
    No. 3D12-1290.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Ronald G. Baker, Coral Gables, for appellant.
    Simon & Simon, and Joy B. Spill, Miami, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   SHEPHERD, J.

As a result of our recent decision in Losh v. McKinley, 86 So.3d 1150 (Fla. 3d DCA 2012), reversing an order granting Carlin McKinley’s Petition to Determine Incapacity of her mother, Frances L. Losh, we now, in turn, reverse the companion order rendered April 20, 2012, granting McKinley’s “Petition for Order Authorizing Payment of Attorney’s Fee and Expenses.” See § 744.108(1), (2), Fla. Stat. (2012); In re Guardianship of Ansley, 94 So.3d 711, 713 (Fla. 2d DCA 2012) (“[A]n attorney’s entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward or the ward’s estate.”). McKinley’s Petition afforded no benefit to her mother.

Reversed and remanded.

      . In deference to the trial court, we note the order under review was entered prior to the issuance of our decision.


author: KHOUZAM, Judge.

text:
    Douglas Wayne TALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-869.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Douglas Wayne Talley appeals his conviction and sentence for felony battery, arguing that the standard jury instructions on self defense given by the trial court constitute fundamental error. We reverse and remand for a new trial.

Talley was charged with aggravated battery (great bodily harm) and battery (domestic violence) on September 30, 2011. A jury trial was held. Talley’s only defense was that the alleged victim, John Mullen-dore, had attacked him with nondeadly force and thus Talley was justified in using nondeadly force in self defense. Mullen-dore testified that Talley stabbed him with something sharp two times without provocation and that he punched Talley in the jaw as he pushed Talley away from him. Talley, on the other hand, testified that Mullendore started the altercation by punching him in the jaw and that Mullen-dore was injured as the two men wrestled against a chain link fence. The trial court gave the following standard instructions on self defense:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Douglas Talley is charged if the injury to John Mullendore resulted from the justifiable use of non-deadly force.
“Non-deadly” force means force not likely to cause death or great bodily harm.
Douglas Talley would be justified in using non-deadly force against John Mullendore if the following two facts are proved:
1. Douglas Talley must have reasonably believed that such conduct was necessary to defend himself against John Mullendore’s imminent use of unlawful force against Douglas Talley.
2. The use of unlawful force by John Mullendore must have appeared to Douglas Talley to be ready to take place.
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
A person does not have a duty to retreat if the person is in a place where he has a right to be.
In deciding whether the defendant was justified in the use of non-deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

(Emphasis added.) The jury found Talley guilty of the lesser-included offense of felony battery. The battery (domestic violence) charge was nolle prossed. Talley was sentenced to 68.25 months in prison, and he timely appealed.

On appeal, Talley argues that the standard jury instructions given are fundamentally erroneous because they were misleading and eviscerated Talley’s only defense. He points out that there is a comma after the phrase “including deadly force” in the standard jury instruction, emphasized above, but not in the statutory section upon which the instruction is based. Section 776.013, Florida Statutes (2012), provides as follows:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(Emphasis added.) The standard jury instruction given in this case follows the language of this statutory section but, as noted previously, sets off the phrase “including deadly force” with an additional comma. See Fla. Std. Jury Insr. (Crim.) 3.6(g). This additional comma is erroneous because under the rules of grammatical construction it makes the phrase “including deadly force” a nonessential part of the sentence and thus changes the meaning by indicating that a defendant has no duty to retreat and has the right to stand his ground and meet force with force only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony. See Kasischke v. State, 991 So.2d 803, 812 (Fla.2008) (explaining that phrases set off by commas “are parenthetical, meaning that the sentence can stand alone without them. When an expression is essential to the sentence, however, it is not separated with commas”). In other words, the erroneous comma eliminated Talley’s sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force. Even if Mullendore attacked Talley with nondeadly force, Talley would have the duty to retreat according to this erroneous instruction.

The State further misled the jury by relying on the erroneous instruction in closing argument: “Even if you believe the fish tale that John Mullendore was coming at [Talley], where was the great bodily harm or death that he was going to suffer? It didn’t happen. Or commission of a forcible felony, that wasn’t provided to you either.” If the State had not highlighted the erroneous instruction, this error may have been harmless.

But as this court stated in Carter v. State, where

a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant. Failure to give a complete and accurate instruction is fundamental error, reviewable in the complete absence of a request or objection.

469 So.2d 194, 196 (Fla. 2d DCA 1985). Further, “‘[wjhen jurors are faced with both correct and erroneous instructions as to the applicable legal rules, there is no reason to believe that they are likely to intuit which is the correct one and which is the erroneous one.’ ” Fields v. State, 988 So.2d 1185, 1189 (Fla. 5th DCA 2008) (quoting Murray v. State, 937 So.2d 277, 280 (Fla. 4th DCA 2006)).

Here, the justifiable use of nondeadly force was Talley’s only defense and any confusion caused by the instruction may have deprived Talley of a fair trial because his defense was plausible. Compare Martinez v. State, 981 So.2d 449, 455-56 (Fla.2008) (holding that the erroneous instruction on the defendant’s affirmative defense did not deprive him of a fair trial where he pursued multiple defenses and the one which received the erroneous instruction was extremely weak) with Fields, 988 So.2d at 1190 (holding that the erroneous instruction on the defendant’s sole affirmative defense deprived him of a fair trial where the defense was plausible). This case came down to a credibility call between Talley and the victim. If the instruction misled the jury, the jury could have believed Talley’s version of events and still found him guilty. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . Because this additional comma is erroneous, we urge the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases to review instruction 3.6(g) and make appropriate changes so that it is consistent with section 776.013(3).


text:
    In re O’Neal JONES, Jr.
    No. 2012-B-1700.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
    See also 108 So.3d 67, 2012 WL 6554524.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, O’Neal Jones, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

At all times relevant to these proceedings, respondent shared office space with New Iberia attorney Owen J. Trahant, Jr., whose practice was confined to the handling of real estate closings. From the mid-1990’s until he moved out of Mr. Tra-hant’s office in April 2001, respondent assisted Mr. Trahant by performing title examinations and notarial services for some of the numerous closings that were assigned to Mr. Trahant’s office for handling. The ODC alleges that respondent engaged in the following instances of misconduct during the period of his association with Mr. Trahant:

02-DB-110

Count I — The Landry Matter

Alton Landry, Sr. and his wife, Gloria Landry, had six children. After Mrs. Landry died, Mr. Landry and one of his daughters, Reggie Landry, applied for a loan using the family home as collateral. In 2000, the lender sent a request to Mr. 12Trahant’s office for a title commitment. Respondent performed the title examination and discovered that no succession had ever been opened for Mrs. Landry. Mr. Trahant’s staff therefore prepared succession documents for the heirs to sign in connection with the loan closing, as well as an act of donation by which the Landry children would donate their interests in the home to their father. Respondent subsequently notarized the signatures of the heirs on the succession and donation documents, although he was not present when the documents were signed. It was later alleged that the signatures of some of the Landry children were forged on the act of donation.

Respondent acknowledges that he notarized the succession and donation documents outside the presence of the signatories and caused the act of donation to be filed in the conveyance records of St. Martin Parish. The ODC alleges that respondent’s conduct violated Rules 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count II — The Woods Matter

Ulysses Woods had ten children. After Mr. Woods died, two of his children applied for a loan using the family home as collateral. In March 2000, the loan originator, Chester Heels, sent a request to Mr. Trahant’s office for a title commitment. Mr. Heels also requested the preparation of an act of donation wherein eight of Mr. Woods’ children would donate their interests in the property to the two siblings who had applied for the loan. Mr. Trahant’s staff prepared the |sact of donation as requested and respondent subsequently notarized the signatures of the heirs on the document, although he was not present when it was signed.

Respondent acknowledges that he notarized the act of donation outside the presence of the signatories and caused it to be filed in the conveyance records of St. Martin Parish. The ODC alleges that respondent’s conduct violated Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct.

ll-DB-031

Count I — The Thomas Matter

In July 2000, Youlanda Thomas entered into a written purchase agreement with Jose Vasquez to buy a home on River Ridge Drive in Lake Charles for $135,000. Ms. Thomas applied to a mortgage broker, Infinity Mortgage Services, Inc. (“Infinity”), to obtain financing in connection with the purchase. Infinity secured funding for Ms. Thomas’s mortgage from American Fidelity, Inc. and retained Mr. Trahant’s law office to handle the closing. The title examination and the closing were actually performed by respondent.

Prior to Ms. Thomas’s closing, First Premier Financial Services, Inc. (“First Premier”) was inserted into the transaction without her knowledge or consent. Respondent and Anthony Grishby were directors and incorporators of First Premier; Mr. Grishby was also a director and incorporator of Infinity. On August 22, 2000, First Premier purchased the River Ridge Drive property from Mr. Vasquez for $135,000, the true sales price. Mr. Grishby executed the Cash Sale on behalf of First Premier, and respondent notarized his signature. The sales price was then increased by $20,000, and by Cash Sale dated August 22, 2000, First |4Premier sold the River Ridge Drive property to Ms. Thomas for the inflated price of $155,000. Respondent also notarized the Cash Sale documenting this transaction. Respondent then notarized a $170,000 mortgage and related loan closing documents between Ms. Thomas, as the borrower, and American Fidelity, as the lender, all of which were dated August 23, 2000. In this transaction, the loan closing was designated as a “refinance” rather than a new purchase.

To portray the sale as a “refinance” transaction, Ms. Thomas had to appear as the owner of the River Ridge Drive property prior to closing. On August 17, 2000, an unknown person(s) created a fraudulent mortgage verification on First Premier letterhead addressed to Infinity. The mortgage verification falsely represented First Premier as a lien holder, and falsely represented that Ms. Thomas borrowed $154,000 from First Premier in July 1999 in connection with a mortgage on the River Ridge Drive property. The mortgage verification also listed a fabricated mortgage payment history. These documents created the untruthful impression that Ms. Thomas owned the River Ridge Drive property and was seeking to refinance her mortgage.

Having personally conducted the title examination, respondent knew or should have known that Ms. Thomas did not own the River Ridge Drive property prior to the closing in August 2000, and that she could not refinance a loan on property she did not yet own. Respondent also knew or should have known that First Premier did not have a mortgage on the property. Nevertheless, respondent handled and notarized all documents in connection with the cash sales and loan closing described above.

The ODC alleges that respondent’s conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) of the Rules of Professional Conduct.

JyCount II — The Chaisson Matter

Clifton Chaisson, Sr. and his wife, Delores Chaisson, had seven children. The couple owned property on Theobald Road in St. Martinville which was encumbered by two mortgages. In 1999, after Mr. Chaisson died, Mrs. Chaisson applied to Infinity for a loan to refinance the mortgages. Infinity obtained funding for the loan from Equicredit Corporation and retained Mr. Trahant’s law office to handle the closing, which required the opening of a succession for Mr. Chaisson, as well as an act of donation by which the Chaisson children would donate their interests in the home to their mother.

Respondent was assigned to handle the loan closing and the succession and donation matters. Respondent closed the loan in June 1999, but failed to file the succession documents and obtain a judgment of possession until August 2000, some fourteen months later. Nevertheless, the owner’s affidavit notarized by respondent at the time of the loan closing falsely stated that Mrs. Chaisson “has a perfect right to convey good, fee simple, merchantable title” to the Theobald Road property. At the time respondent notarized this document, he knew or should have known that Mrs. Chaisson had not been put into possession of either her late husband’s one-half interest in the property or her children’s interest in the property.

At some point, respondent became aware that two of Mr. Chaisson’s seven children had inadvertently been omitted from the judgment of possession and other succession documents. However, he failed to take any remedial action.

The ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law previously made to the tribunal by the lawyer), 3.3(a)(3) (a lawyer who comes to know of the falsity of evidence offered |fiby the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In October 2002, the ODC filed formal charges against respondent in 02-DB-110. Respondent answered the formal charges and admitted that he did not properly notarize the documents at issue in the Landry and Woods matters. The proceeding was then continued without date to allow the ODC to investigate other, similar matters. During the investigation, the ODC learned that a federal criminal probe was ongoing into the fraudulent real estate scheme perpetrated by Mr. Grishby. As a result, the ODC delayed taking any further action pending the conclusion of the federal investigation. In July 2005, a grand jury in the Western District of Louisiana handed up a 65-count indictment against Mr. Grishby and others. Neither respondent nor Mr. Trahant was named in the indictment. When it became clear that the United States Attorney was not pursuing criminal charges against respondent or Mr. Trahant, the ODC concluded its investigation and filed the second set of formal charges (ll-DB-031) against respondent in March 2011. Respondent answered the formal charges and denied any misconduct. In June 2011, the hearing committee granted the ODC’s motion to consolidate both sets of formal charges filed against respondent. The matter then proceeded to a formal hearing on the merits.

j ^Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the committee made the following factual findings:

Count I of 02-DB-110 — Respondent admitted that he notarized the signatures of the Landry heirs on succession and donation documents without the heirs being present. Respondent knew that would make the donation invalid but caused it to be filed in the conveyance records of the parish. Respondent further admitted that he did nothing to correct the problem once suit was filed by some of the heirs alleging that the signatures were forged and, as such, created many problems within the Landry family. Based on these findings, the committee determined that respondent failed to act with reasonable diligence in representing a client and made a misrepresentation to the court by knowingly filing documents that were not signed before him.

Count II of 02-DB-110 — Respondent admitted that he notarized the signatures of the Woods heirs on an act of donation without the heirs being present. Respondent knew that would make the donation invalid but caused it to be filed in the conveyance records of the parish. Respondent did nothing to correct the problem regarding the invalid donation. Based on these findings, the committee determined that respondent failed to act with reasonable diligence in representing a client and made a misrepresentation to the court by knowingly filing documents that were not signed before him.

Count I of ll-DB-031 — Respondent received a loan request from Mr. Trahant’s office to do a title examination in the You-landa Thomas matter. Respondent’s title examination accurately disclosed the record ownership and the liens or mortgages that existed against the property. Respondent did not prepare any of the documents presented at closing for signature by the parties. No|sevidence was presented that respondent communicated in any fashion with the lender, American Fidelity, or the mortgage broker, Infinity.

Respondent and Anthony Grishby formed a company by the name of First Premier Financial Services. The purpose of the company was to buy houses, renovate them, and qualify people to purchase them. No evidence was presented to contradict respondent’s testimony that the company never did any business. Respondent knew Mr. Grishby prior to Ms. Thomas’s closing, having previously closed loans involving Mr. Grishby when Mr. Grishby worked for another mortgage company. Represented by Mr. Grishby, First Premier was paid $20,000 to satisfy a non-existent mortgage and Infinity, also an Anthony Grishby company, was paid a commission of $10,000. Respondent did not close the sale of the property to First Premier but did close the sale from First Premier to Ms. Thomas.

No evidence was introduced showing that respondent received anything of value as a result of his role in these transactions, other than the splitting of the normal fees with Mr. Trahant. The only evidence introduced regarding any money that might have been received by respondent was the testimony of Mr. Trahant, who claimed that an FBI agent told him that a check had been payable to respondent and that respondent endorsed it and paid one of his creditors. No other details were given regarding this incident and no corroborating evidence was presented that it ever happened.

The committee found respondent truly believed that he considered himself nothing more than a notary and agent of Mr. Trahant. Respondent’s view of his responsibility was that he simply signed documents prepared by Mr. Trahant’s office for a closing. The fact that respondent and Mr. Trahant closed between 80 and 120 loans a month speaks to the real problems with respondent’s actions and whether respondent could have ever acted with reasonable diligence in representing his clients. The committee found it even more disturbing that | ¡respondent continued to take the position in this and other matters that he felt he had no responsibility regarding the documents he signed that were generated by Mr. Trahant’s office. Respondent’s position was that he did not prepare any of the documents, and if any mistakes were made, they were not made by him but by Mr. Trahant’s office.

Respondent correctly noted that many of the events at issue occurred a long time ago, and he stated that he could not remember the details. However, respondent’s view that the errors made were simply the fault of Mr. Trahant’s office and were not his own flies in the face of the responsibilities lawyers have simply because they are acting as lawyers. Respondent was acting in agreement with Mr. Trahant to accomplish a specific goal and they both seem to have failed miserably in doing so. The committee found that the actions of respondent were grossly negligent and that he failed to act with diligence in the representation of his clients. If nothing else, he facilitated the sloppy preparation and handling of documents generated by Mr. Trahant’s office, which in turn allowed others to profit from their criminal acts. The committee did not find that respondent committed acts of fraud, deceit, or dishonesty in this matter.

Count II of ll-DB-031 — Although it is true that in a succession practice an attorney often has to rely solely upon the information provided by his clients, the committee found that respondent made no effort to verify whether everyone who should have been included in Mr. Chais-son’s succession was actually included. This is in keeping with respondent’s position that he was only supposed to show up at the loan closing and sign his name. As a result, two of Mr. Chaisson’s heirs were left out of the succession. Respondent again testified that the documents in this matter were prepared by Mr. Trahant’s office. However, noting that the documents were prepared for respondent’s signature as attorney for petitioners, the committee questioned how he could sign the pleadings and at the same time claim |inno responsibility for them because they were prepared in another attorney’s office. Additionally, the committee pointed out that respondent did nothing to rectify the situation. Respondent’s answer for his inaction was again that Mr. Trahant’s office was responsible for the significant delay in filing the succession and the late notice he received regarding the problem in this matter. He also testified that prescription had run and there was nothing he could do. The committee rejected respondent’s excuses and found that harm was caused to the Chaisson family as a result of his lack of diligence in this matter.

Based on these factual findings, the committee determined that respondent violated Rules 1.3, 3.3(a)(1), 3.3(a)(3), 8.4(a), 8.4(c) (in Counts I and II of 02-DB-110 only), and 8.4(d) of the Rules of Professional Conduct. The committee determined that respondent acted knowingly in Counts I and II of 02-DB-110, and that his conduct was grossly negligent in Count I of ll-DB-031. The committee made no finding as to the mental element involved in respondent’s conduct in Count II of ll-DB-031. The committee found by his lack of diligence, which allowed others to perpetrate criminal acts upon Youlanda Thomas (Count I of ll-DB-031), respondent had caused “extreme harm” to Ms. Thomas. The applicable baseline sanction in this matter is suspension.

In mitigation, the committee found the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. The committee found the following aggravating factors are present: a selfish motive and substantial experience in the practice of law (admitted 1986).

| nFor the foregoing reasons, the committee recommended that respondent be suspended from the practice of law for one year, with all but four months deferred.

Both respondent and the ODC objected to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the majority of the hearing committee’s factual findings are not manifestly erroneous. However, the board took issue with several of the committee’s findings in the Youlanda Thomas matter (Count I of ll-DB-031), most notably its conclusion that respondent’s handling of that matter was grossly negligent but not dishonest. The board pointed out that respondent’s participation was integral to the success of the fraudulent schemes involving First Premier, as without his complicity, the fraud upon Ms. Thomas could not have been accomplished. Based upon these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:

Count I of 02-DB-110 — Respondent violated Rule 8.4(c) by improperly notarizing several documents and falsely attesting that the documents had been signed in his presence. He violated Rule 8.4(d) by doing nothing to correct the problem once suit was filed by the Landry heirs, causing many problems within the Landry family and delaying the succession of Mrs. Gloria Landry for several years. Additionally, although a violation of Rule 1.3 was not specifically charged in the formal charges, respondent exhibited a lack of diligence in notarizing documents in the Landry matter and then failing to correct the problem so that the succession could be completed. The board did not agree with the hearing committee that respondent 112vioIated Rules 3.8(a)(1) and 3.3(a)(3) in this count, as the act of donation was filed in the public conveyance records only, not with a court.

Count II of 02-DB-110 — As in Count I, respondent violated Rules 8.4(c) and 8.4(d) by improperly notarizing the act of donation in the Woods matter and then doing nothing to correct the invalid donation. Likewise, the same conduct constitutes a violation of Rule 1.3. The board did not agree with the hearing committee that respondent violated Rules 3.3(a)(1) and 3.3(a)(3) in this count, as once again, nothing indicates that respondent filed false documents with a court.

Count I of ll-DB-031 — By his handling of the Thomas closing, respondent violated Rules 1.3 and 8.4(c). He signed and notarized loan closing documents that he knew or clearly should have known contained false information. These fraudulent loan documents were used to defraud Ms. Thomas out of tens of thousands of dollars, which could not have occurred but for respondent’s actions in facilitating the closing. However, respondent’s conduct was not prejudicial to the administration of justice, and therefore he did not violate Rule 8.4(d). Respondent also did not violate Rules 3.3(a)(1) and 3.3(a)(3) in this count, as nothing indicates he filed false documents with a court.

Count II of ll-DB-031 — By his handling of the Chaisson matter, respondent violated Rules 1.3, 3.3(a)(1), 3.3(a)(3), 8.4(a), 8.4(c), and 8.4(d). Respondent made no effort to verify whether everyone who should have been included in Mr. Chaisson’s succession was in fact included. He signed and notarized the succession documents that contained false statements of fact and then caused them to be filed with the court. He thereafter made no effort to correct these false statements.

The board determined that respondent violated duties owed to his clients, the legal system, and the profession. His actions were knowing, and in some instances | ^intentional, and resulted in actual harm to his clients, the legal profession, and the integrity of the public record.

In mitigation, the board found only that respondent has no prior disciplinary record. The board found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law.

Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension. Relying on the prior jurisprudence of this court, and in light of the fact that respondent engaged in a pattern of misconduct including multiple offenses, the board determined that the sanction recommended by the committee is too lenient. Accordingly, the board recommended that respondent be suspended from the practice of law for two years.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an | ^independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

Respondent acknowledges that in the Landry and Woods matters, he notarized legal documents outside the presence of the signatories and caused the documents to be filed in the conveyance records. In the Thomas matter, respondent closed a real estate transaction which was part of an illegal “house flipping” scheme. Finally, in the Chaisson matter, in which he acted as the attorney for the heirs in a succession, respondent sighed pleadings which omitted two of the seven heirs and then failed to take any remedial action after learning of the error. Based on these findings, we agree that respondent violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional, misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. His misconduct caused actual harm to his clients and to the legal profession. The baseline sanction for this type of misconduct is suspension.

The record supports a finding that the following aggravating factors are present in this matter: a dishonest or selfish motive, a pattern of misconduct, | Ir,multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law. The only mitigating factor present is the absence of a prior disciplinary record.

Considering all the circumstances, we agree with the disciplinary board that respondent’s pattern of serious misconduct warrants a severe sanction. Accordingly, we will accept the board’s recommendation and suspend respondent from the practice of law for two years.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that O’Neal Jones, Jr., Louisiana Bar Roll number 17650, be and he hereby is suspended from the practice of law for two years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The succession documents prepared by Mr. Trahant’s office were never filed into the public record.

      . Unlike the act of donation at issue in Count I, the Landry matter, there is no allegation that the signatures on the act of donation in the Woods matter were forged.

      . Ms. Thomas died prior to the hearing in this matter.

      . Respondent did not notarize the signature of the seller, Mr. Vasquez.

      . In 2006, Mr. Grishby pleaded guilty to one count of mail fraud arising out of what the factual basis described as "an elaborate scheme to obtain loans for unqualified borrowers and to falsely inflate fees and commissions for loans brokered by his mortgage brokerage company, Infinity Mortgage Services, Inc.” Mr. Grishby was sentenced to serve 36 months in federal prison.

      . At that time, the ODC also filed formal charges against Mr. Trahant. The ODC moved to consolidate the formal charges for hearing, but the motion was opposed by both respondent and Mr. Trahant and was subsequently denied. Thereafter, respondent's case and Mr. Trahant’s case were tried separately before different hearing committees. On December 14, 2012, we rendered our opinion in In re: Trahant, 12-1435 (La. 12/14/12), 108 So.3d 67, suspending Mr. Trahant from the practice of law for six months, followed by a one-year period of supervised probation.

      . The committee did not find that respondent acted dishonestly in either of the counts in ll-DB-031, but that he did act selfishly in "closing too many loans for his own economic benefit and at the same time failing to acknowledge his role and responsibility, as an attorney, to his client and his attempt to blame all his mistakes on others.”

      . The board found respondent had fair and adequate notice of several uncharged rule violations though the factual allegations contained in the formal charges.

      . The board specifically rejected the committee's finding that respondent has shown remorse for his misconduct, citing the fact that he blames Mr. Trahant for any “mistakes” that were made. The board also pointed out that respondent “even pointed the finger at one of the victims [Ms. Thomas], a complainant in this matter, who was deceased at the time of the hearing. He went so far as to suggest that Ms. Thomas could have been co-conspiring with Mr. Grishby or at least [was] a knowing participant in the fraudulent scheme.”

      . The board cited In re: Stephens, 94-1924 (La. 11/18/94), 645 So.2d 1133 (eighteen-month suspension imposed upon an attorney who notarized a forged affidavit and then filed it into the court record to defeat a motion for summary judgment; the attorney had a prior disciplinary history consisting of a one-year suspension imposed in 1993); In re: Bailey, 03-0839 (La.6/6/03), 848 So.2d 530 (two-year suspension imposed upon an attorney who sought a continuance in a pending legal matter by misleading the court about a false scheduling conflict, and attempted to introduce a medical report into evidence when he knew the report had been altered); and In re: Ungar, 09-0573 (La. 10/30/09), 25 So.3d 101 (three-year suspension imposed upon an attorney who intentionally withheld information from his clients regarding a settlement offer in order to facilitate the collection of an excessive fee; the court rejected the lawyer’s attempt to blame his out-of-state co-counsel for the misconduct).


author: HARRISON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Sterling Germane ROBINSON, Appellant.
    No. 47,437-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    Sterling Germane Robinson, Pro se.
    W. Mark McKee, District Attorney, Charles L. Cook, Eugene Allen, Assistant District Attorneys, for Appellee.
    Before CARAWAY, SEXTON (Pro Tempore) and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tem.

hThe defendant, Sterling Germane Robinson, was convicted of armed robbery. He was subsequently adjudicated a fourth felony offender and sentenced to a term of life imprisonment without parole, probation or suspension of sentence. The defendant appeals. We affirm the defendant’s conviction and sentence.

FACTS

On December 22, 2010, the Family Dollar Store in Columbia, Louisiana, was robbed by two black males wearing dark clothes and masks. The store manager, Wendy Taylor, and an employee, Michelle Dilley, were held at gunpoint. Two money bags, a tote bag, and approximately $2,600 were taken during the robbery. The robbers placed these items in a “cheap” garbage bag before they fled the store. Apparently unbeknownst to the robbers, there was a hole in the garbage bag, and rolls of coins and cash began falling out.

Deputies from the Caldwell Parish Sheriff’s Office arrived and began following the money trail inadvertently left by the robbers. A stocking mask and more rolls of coins and cash were found on the trail going through a nearby wooded area. The money trail led to a house on Curry Street. The deputies located more cash in the yard and under the skirting of the house.

In the yard, the officers encountered a black male named Donald Jones and a female companion who were exiting the house. Jones gave them permission to search the house. There was more cash on the living room floor. While clearing the house, they located the defendant on a bed |2or cot in a bedroom. He was removed from the house while the law enforcement officers continued to search. In the same bedroom, the deputies also found a black plastic garbage bag and the tote bag taken during the robbery. A pair of black jogging pants was found on the bed. When a deputy pulled back the mattress, he discovered another black male, later identified as Gerald Tatum, hiding under the bed. Tatum was immediately taken into custody. Between the mattress and the springs, the officers found two bank bags taken during the robbery, as well as a head wrap worn by one of the robbers and more cash. No weapon was recovered.

The defendant and Tatum were arrested for the armed robbery of the Family Dollar Store. Jones was arrested and charged as an accessory after the fact.

Following a jury trial in October 2011, the defendant was convicted as charged by a vote of 10 to 2. He filed motions for new trial and post verdict judgment of acquittal, both of which were denied by the trial court.

The defendant was subsequently adjudicated a fourth felony offender and given a mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

The defendant appeals. Defense counsel asserts three assignments of error. Additionally, the defendant sets forth four pro se assignments of error, which primarily concern his adjudication as a fourth felony offender.

^SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Tatum, supra; State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603, cert denied, — U.S.-, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). This is not a separate test that applies instead of a sufficiency of the evidence test when | circumstantial evidence forms the basis of the conviction. State v. Dorsey, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Dorsey, supra.

In cases where the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Dorsey, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/18/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

La. R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the |fiimmediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Testimony

Ms. Dilley, the store employee, testified that two black males wearing masks entered the store. The taller robber was armed and took the manager, Ms. Taylor, into the office to get money from the safe. The shorter robber stayed with Ms. Dilley. The robbers also took money from the registers. Ms. Dilley described the robbers as wearing dark clothing. She said one wore jogging pants; she identified a pair of black jogging pants recovered from the house on Curry Street as being similar to the ones she saw. Likewise, she identified a mask shown to her as being similar to one used by the robbers, as well as another item she characterized as a “do-rag” worn by one of the robbers to cover his face. Although she initially testified that the robber with her wore gloves, she became uncertain of this during cross-examination.

Ms. Taylor, the store manager, testified that the taller robber shoved a gun in her face and forced her to open the office safe. She gave conflicting statements as to the caliber and size of the gun, but remained steadfast that it was a revolver. She also testified that she knew Donald Jones and that he was not one of the robbers.

The victims identified the two money bags and a tote bag recovered at the Curry Street house as having been taken in the robbery. Ms. Dilley stated that the robbers placed the stolen money in “one of the cheap Dollar Store trash bags”; she described the bags as “flimsy.” Both victims | (¡identified the black plastic bag found at the house as being similar to the one in which the robbers placed the money.

Four deputies testified about their roles in the investigation of the robbery. Upon his arrival at the store, Deputy Jessie Morris was asked to look around for evidence. He recounted finding cash, rolls of coins and a stocking mask along a trail near the store. Deputy Matthew Schulte testified that while Deputy Morris remained with those items, he and Deputy John Cummings followed the trail littered with cash to the house on Curry Street. There they encountered Jones and a woman as they left the house. They obtained Jones’ permission to search the residence. During their search, the deputies found the defendant lying on a bed in a bedroom. He was removed from the house and placed in a patrol unit.

Deputy Blake Wyles testified that he arrived at the house and noticed a hole in the skirting; money was scattered about the ground. He located more money under the house. He then assisted in searching the house. When he lifted the mattress on the bed, the first thing he observed was a money bag on the springs. He then discovered Tatum hiding underneath the bed. Tatum was taken into custody.

Deputy Sedric Meredith, the lead investigator on the case, testified about how the evidence was photographed and collected. He identified the photos showing the money trail from the store to the house and then photos of the house and evidence collected therein. As to the heights of the various suspects, he estimated that the defendant stood about his height, which is 5'9". He also stated that Tatum was taller than him, and that Jones, the man |7the defense attempted to implicate as a robber, was taller than Tatum. In response to the defense’s insinuations that perhaps someone else left the house unobserved by the officers, Deputy Meredith testified that he did not see any other place to exit the house without going through the living room. While the house had another door, it appeared to him that no one had used it in years.

Discussion

In challenging the sufficiency of the evidence in this assignment of error, the defendant contends that the circumstantial evidence presented in this case does not exclude two possible hypotheses of innocence — that the store was robbed by Tatum and Donald Jones, the man who was exiting the house when the deputies arrived, or by Tatum and an unknown black male who was more than six feet in height.

In making this argument, the defendant refers to the testimony of the two victims, neither of whom could identify the defendant as one of the masked robbers. The victims could state only that the taller robber accompanied Ms. Taylor into the office at gunpoint to get money from the safe while the shorter, unarmed one stayed with Ms. Dilley. Ms. Taylor was asked about her prior testimony at Tatum’s trial that she did not think Tatum was as tall or skinny as the taller robber. The defendant argues that since Ms. Taylor could not identify Tatum (who was six feet tall) as the man who robbed her, Tatum must have been the robber with Ms. Dilley. Thus, the | ^defendant reasons that the robber with Ms. Taylor must have been Jones or an unknown black male who was more than six feet tall.

As to the defendant’s contention that Jones was one of the robbers, Ms. Taylor testified that she was positive that he was not. She stated that she had known Jones for eight years, that she was familiar with him, and that she had talked to him several times. She testified that the robber who put a gun to her face spoke to her, and he was not Jones. She further testified that Jones, who she estimated to be more than 6 feet tall, was taller than the robber who stayed with Ms. Dilley. The jury obviously found Ms. Taylor’s testimony to be credible.

As to the heights of the robbers in general, we note that the victims were thoroughly questioned at the defendant’s trial as to their observations and their prior statements on the subject. Among the statements upon which Ms. Dilley was cross-examined was her testimony at Tatum’s trial that Tatum appeared consistent with the taller robber. At the defendant’s trial, Ms. Dilley estimated that the robber next to her was 5'8" or 5'9" while the taller one was perhaps 6'4" or 6'5" in height. (As noted previously, Deputy Meredith testified that the defendant was about 5'9".) The jury, which observed the witnesses and weighed their testimony, could have reasonably concluded from the testimony of the two victims that Jones was not involved in the robbery, that Tatum was the taller robber, and the shorter robber was approximately the same height as the defendant.

|aThe instant case involves a short time span between the robbery and the apprehension of the defendant and Tatum. The sheriffs office was notified of the robbery by Ms. Taylor’s husband, who was on the phone with her when the robbers entered the store and heard what was happening. The initial call was received at about 7:40 p.m., and testimony indicated that the first officers would have arrived on the scene within two to three minutes. Deputy Schulte testified that it took him 12 to 15 minutes after receiving the call to arrive at the store. Thereafter, he was one of the officers who followed the money trail to the Curry Street house, which he entered at about 8:20 p.m.

Law enforcement officers followed a trail of money stolen in the robbery to the house where the defendant was discovered lying on a bed. Shortly thereafter, officers discovered his codefendant hiding under the bed. Items associated with the robbery—including cash, money bags and a head wrap—were found concealed between the mattress, upon which the defendant had been lying, and the bed springs. Black jogging pants similar to those worn by one of the robbers were found on the bed. Also discovered on the floor of the room were a black plastic bag similar to the one used by the robbers to carry off the stolen money and a tote bag taken in the robbery.

Based on the testimony of the witnesses and the evidence, when viewed in the light most favorable to the state, we hold that sufficient evidence existed for the jury to conclude that the defendant was one of the two men who robbed the Family Dollar Store. The testimony of one of the robbery victims specifically refuted the defendant’s contention that Jones |inwas the man who committed the robbery with Tatum. Based upon the strong circumstantial evidence, which included the money trail, the discovery of the defendant in close proximity to items taken during the robbery and his codefendant’s hiding place, and the short period of time in which the events transpired, the jury could have reasonably concluded, to the exclusion of any other reasonable hypothesis of innocence, that the state had successfully negated any reasonable probability of mis-identification and that the defendant was one of the participants in the armed robbery.

This assignment of error is meritless.

NONUNANIMOUS JURY VERDICT

The defendant argues that the application of La. C. Cr. P. art. 782, which allows a nonunanimous jury verdict in hard labor cases, is unconstitutional and that the jury should not have been instructed that a unanimous verdict was unnecessary. In support of this argument, the defendant asserts that Louisiana and Oregon are the only states which have provisions which allow for nonunanimous guilty verdicts.

This argument has been repeatedly rejected by this court. See State v. Williams, 47,146 (La.App.2d Cir.6/20/12), 98 So.3d 880, and State v. Barnett, 46,303 (La.App.2d Cir.5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239, and the cases cited therein.

This assignment of error lacks merit.

ADJUDICATION AS FOURTH FELONY OFFENDER

The defendant attacks his adjudication as a fourth felony offender in three pro se assignments of error.

| ^Failure to give written reasons

The defendant alleges that the trial court erred by failing to file written findings as to the habitual offender proceeding. La. R.S. 15:529.1 D(3) requires a trial court to provide written reasons for its habitual offender determination. The trial court’s failure to do so is harmless error because the transcripts of the habitual offender proceedings show oral reasons and the sufficiency of the evidence presented. See State v. James, 41,069 (La.App.2d Cir.8/23/06), 938 So.2d 1191; State v. Wallace, 46,422 (La.App.2d Cir.8/10/11), 71 So.3d 1142, writs denied, 2011-1962 (La.2/3/12), 79 So.3d 1026, and 2011-1961 (La.2/17/12), 82 So.3d 281.

Right to remain silent

The defendant argues that the trial court erred in failing to advise him that he had a right to remain silent. However, our review of the record reveals that the trial court did indeed advise the defendant that he had a right to “remain silent and ... say nothing.” The court further advised him that “[t]he law says that you can stand mute, say nothing, ...” Failure to specify which convictions used

In this assignment of error, the defendant claims that the trial court erred in failing to specify which of his prior convictions were being used to enhance his sentence.

Following the defendant’s conviction for the instant offense, the state filed a fourth felony habitual offender bill of information against him in which it asserted that he had previously been convicted of three other |12felonies. Detailed information was provided in the bill of information as to these convictions. At the ensuing hearing, after the trial court advised the defendant of his right to counsel and right to remain silent, the defendant consulted with trial counsel. His attorney then informed the court that her client admitted to the three felonies enumerated in the bill of information but not the instant offense. The defendant himself then stated that he admitted the three prior convictions but that he did not admit committing the instant armed robbery. The prosecutor then filed into evidence the exhibits proving the prior convictions; as he did so, he recited into the record details about the crimes which corresponded to those contained in the fourth felony habitual offender bill of information.

The record is clear as to the three prior convictions utilized by the trial court in adjudicating the defendant a fourth felony offender in this matter.

These assignments of error are merit-less.

EXCESSIVE SENTENCE

Following his adjudication as a fourth felony offender, the defendant was sentenced to the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. On appeal, defense counsel argues that since the defendant was 30 years old and had a history of only nonviolent drug offenses, that sentence was excessive and served no purpose other than needless imposition of pain and suffering. In his pro se assignment of error, the defendant complains that the trial court did not comply with La. C. Cr. P. art. 894.1.

11 aLaw

Where there is a mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence that it is legally required to impose. State v. White, 45,915 (La.App.2d Cir.2/2/11), 58 So.3d 493, writ denied, 2011-0373 (La.6/24/11), 64 So.3d 220. Because the sentence imposed for the ha bitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. White, supra; State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910, writ denied, 2011-0192 (La.6/17/11), 68 So.3d 1033.

Mandatory life sentences required by the habitual offender laws are presumptively constitutional and should be accorded great deference by the judiciary. State v. White, supra; State v. Wallace, supra.

In State v. Dorthey, 623 So.2d 1276 (La.1993), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case.

| ^Furthermore, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the main reason for declaring such a sentence excessive. State v. White, supra.

Discussion

The defendant has failed to rebut the presumption that the mandatory sentence is constitutional. He has not proven that he is “exceptional” such that the mandated sentence is too harsh.

As to the defendant’s pro se assignment of error, we note that the trial court was not required to comply with La. C. Cr. P. art. 894.1 while imposing this mandatory sentence. However, before sentencing the defendant, the trial court stated on the record that it had considered that article and indicated that it reviewed the defendant’s presentence investigation report. While it found the penalty harsh, the court observed that the instant offense was “a harsh crime” wherein a weapon was used to take money and frighten the victims. Finding that the defendant was a “menace to our society,” the trial court imposed the mandatory sentence of life imprisonment without benefits.

These assignments of error are merit-less.

ERROR PATENT

The trial court denied the defendant’s posttrial motions on the same day it conducted the habitual offender hearing, wherein the defendant was adjudicated a fourth felony offender and sentenced to a mandatory life sentence. There was no express waiver of the 24-hour delay mandated in |1fiLa. C. Cr. P. art. 873 between such denials and sentencing. However, this is harmless error when no prejudice is shown. See State v. Wallace, supra; State v. Bobo, 46,225 (La.App.2d Cir.6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Of this amount, $1,922 was recovered and returned to the store.

      . Tatum's conviction for armed robbery and sentence were affirmed by this court in State v. Tatum, 47,292 (La.App.2d Cir.8/15/12), 103 So.3d 550.

      . He agreed that his observations would be consistent with the heights listed in their police records, which were 6'0" for Tatum and 6'4" for Jones.

      . However, the inexactitude of height estimates was demonstrated by Ms. Dilley's guess that defense counsel was 5'2" or 5'3". Defense counsel stated that she was, in fact, 5 and wearing 3 1/2-inch heels.

      . In fact, we note that the defendant quoted the latter statement in his brief.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Thomas T. HOWARD, Appellant.
    No. 47,495-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      J. Clay LeJeune, for Appellant.
    Jerry L. Jones, District Attorney, Brandon B. Brown, George M. Campbell, Jr., Neal G. Johnson, Assistant District Attorneys, for Appellee.
    Before MOORE, LOLLEY and HARRISON (Pro Tempore), JJ.
   MOORE, J.

| Thomas Howard appeals his convictions on one count each of second degree battery and simple battery and his consecutive sentences of five years at hard labor and six months in parish jail. For the reasons expressed, we affirm.

Factual and Procedural Background

Howard and the first victim, 19-year-old Alyssa Balsamo, had dated for about 2½ years. They had broken up often, but Alyssa always took him back; however, about two weeks before the incident, Howard left her for another girl, and Alyssa was bitter about it.

At trial, Alyssa testified that on the night of May 20, 2009, she and two friends, Liz McEacharn and the second victim, Hannah Anderson, were together at The Library Lounge in Monroe. Alyssa was drinking and had taken half a Xanax, a popular anti-anxiety drug. At some point, the women decided to drive to a house in Swartz to visit someone named Trey; all agreed that they went on the strict understanding that Howard would not be there. Liz drove the trio up to Swartz.

When they pulled up to Trey’s house, they saw Howard’s truck parked there. The area was dark and the truck had heavily tinted windows, so Alyssa could not see inside it; she thought Howard was not in the truck but in the rear of the property, riding mud bikes. Angered at seeing his truck, she kicked its side panel. She then reared back for another kick.

Suddenly, Alyssa heard the truck door slam and, before she could move, Howard “pounced” on her and knocked her to the ground. She remembered hitting the ground and struggling with him, but she then|2lost consciousness.

Hannah confirmed that after the first kick, Howard leapt out of the truck, grabbed Alyssa in a chokehold, threw her down, and the two wrestled on the ground for a few moments. Hannah tried to intervene, but Howard turned on her, grabbing her by the hair and dragging her through the grass. He then returned to the unconscious Alyssa and threw loose tobacco on her.

The third woman, Liz, stayed out of the fray and picked up Alyssa’s shoes and cell phone. She did not, however, call anyone for help.

After the fracas ended, Howard phoned Alyssa’s mother, telling her to come get her daughter, who “just beat me up.” Alyssa’s parents promptly drove to Trey’s house to find their daughter lying “unresponsive” on the ground. Hannah and Liz were still there, but Howard had left. The Bálsamos drove Alyssa to St. Francis Medical Center North, where she finally came to. Alyssa testified that she suffered a concussion, a bad bump (“goose egg”) on the back of her head, bruises on her neck and abrasions on her arms.

Deputy Brandon Semmes of the Ouachi-ta Parish Sheriff’s Office (“OPSO”) was dispatched to the hospital, where Alyssa reported she had been in a fight with her ex-boyfriend. Dep. Semmes saw the knot on the back of her head and “significant” bruising on her neck and arms. He tried to phone Howard, but got no answer. OPSO Cpl. Hindman took photos of Alyssa’s injuries; she was later released.

Later that night, OPSO Dep. Michael Meredith went to Howard’s house in the Belle Meade area northeast of Monroe. He read Howard his | Miranda rights and placed him under arrest. Howard showed him a dent on his truck and said his girlfriend had kicked it in. Dep. Meredith, however, thought the shoeprint matched a pair of work boots in the bed of the truck. Confronted with this, Howard admitted, “Yeah, I just wanted to get her in trouble because I knew I was [in trouble].”

A few months after the incident, Alyssa and Howard reconciled; Mrs. Balsamo let him move into the family home, where Alyssa was still living. Mrs. Balsamo testified, however, that she evicted him about three months later, after he and Alyssa got into another fight.

In September 2009, OPSO Sgt. Charles Johns interviewed Alyssa about the incident in Swartz. Sgt. Johns testified that she tried to retract her statement, saying she had been drinking and taking Xanax when she gave it; she also told him to contact Liz McEacharn as a witness. He then talked to Liz, who gave a statement similar to Alyssa’s original version of events. At trial in July 2010, Alyssa testified that her retraction to Sgt. Johns was untrue; at the time, she and Howard had just “got back together” and she wanted to give him a second chance.

In July 2009, the state charged Howard by bill of information with one count of second degree battery against Alyssa and one count of simple battery, a misdemean- or, against Hannah.

Trial Proceedings

On July 21, 2010, four days before trial was to begin, the state filed a notice of intent to use evidence of other crimes under La. C.E. art. 404 B, specifically two incidents with a woman named Lora Wallace, in April and 14June 2008, “to show the Defendant’s violent propensities toward women while they are engaged in an intimate and/or domestic relationship with the Defendant.” Before trial began on July 25, the court held a Prieur hearing to determine whether to admit the 404 B evidence.

At the Prieur hearing, Assistant Chief Becky Crain of the Caldwell Parish Sheriffs Office testified that on April 14, 2008, Ms. Wallace came to the office to file a complaint against her boyfriend, Howard; she described an incident in Lucedale, Mississippi, the previous weekend. Dep. Crain observed a bruise on Ms. Wallace’s left eye and some bruising on one of her arms; she took photos. Dep. Crain told Ms. Wallace she had to go to authorities in Mississippi to file a complaint. Ms. Wallace testified that she and Howard were girlfriend and boyfriend, on and off, for about three years from 2007 to 2009; she had gone to Mississippi to visit him where he was working on a pipeline; when she was ready to leave, he did not want her to go; they argued, and it escalated into physical contact in which he hit her in the eye and held her down on the bed, while she bit and pinched him; after 45 minutes, he left in his truck, threatening to kill himself; she followed him awhile in her car, lost sight of him, and went back to his trailer; he returned some time later, and she finally left after he fell asleep. Ms. Wallace went to Caldwell Parish, talked to Dep. Crain, and then drove back to Mississippi; on the way, she saw Howard and Alyssa driving back to Louisiana together.

Despite this incident, Ms. Wallace continued her relationship with Howard. She was riding with him in June 2008 when another man either 15texted or phoned her; Howard saw this, got furious, grabbed her by the hair and smashed her head against the windshield several times; she stopped the car in the Bawcomville area of West Monroe, and he walked away. She did not report this incident to police, but as a result of it she finally broke up with him.

The court ruled that the state met its burden of proof under Art. 404 B and State v. Prieur to admit this evidence. The defense objected; the court directed counsel to fashion a limiting jury charge.

Immediately after the Prieur hearing, the case proceeded to trial on July 25-26, 2011. Before jury selection began, defense counsel asked for a “postponement” of trial because a character witness, Jeff Smith, who had once seen Alyssa “attack” Howard at a party, was in Singapore and unavailable to testify. Counsel added that she was not aware that the case was set for trial until the previous Wednesday, July 20. The state replied that the matter had been set for trial since May 3. The court denied the request for continuance.

A six-member jury was selected to try count one, second degree battery of Alyssa Balsamo, while the court simultaneously tried the misdemeanor count two, simple battery of Hannah Anderson. The state’s witnesses testified as outlined above. The jury also saw the photos of Alyssa taken by OPSO Dep. Hindman shortly after the incident of May 20, 2009, and the photos of Ms. Wallace taken by CPSO Dep. Crain on April 14, 2008. Before it rested, the state attempted to call Valerie Bowman, an expert in the different responses to domestic violence. The defense objected |(,that the state gave no notice that it wanted to call Ms. Bowman until the preceding day. Describing this as “in a nature of ambush,” the court excluded Ms. Bowman’s testimony.

The defense called Joshua Shannon, who was in Howard and Alyssa’s circle of friends. Shannon testified that Alyssa always tried to push Howard into things and goaded him a lot; he described an incident shortly before May 20, 2009, when Alyssa drove up to Howard and several friends, jumped out of her car, punched him in the face, chased him into his truck and begged him to hit her. The defense also recalled Hannah and Liz, asking them to explain why they failed to call authorities when they allegedly saw Howard thrashing Alyssa. Hannah was not sure she had her phone at the time, and things happened “so fast”; Liz stated that “it never crossed my mind to call 911.” Finally, the defense called Carol May, Howard’s current girlfriend and mother of his child. Carol testified that Howard had argued with her but never hit her; while she was pregnant, Alyssa made many harassing phone calls, including several urging her to get an abortion; and in November 2010, when she and Howard had temporarily broken- up, she went home to get the baby and found Alyssa had spent the night with Howard.

The six-member jury found Howard guilty as charged of the second degree battery of Alyssa; the court also found him guilty as charged of the simple battery of Hannah. At sentencing in October 2011, the court acknowledged that this was Howard’s first felony conviction but noted a serious history of criminal conduct both before and after the instant |7offenses. It imposed consecutive maximum sentences of five years at hard labor for the second degree battery and six months in jail for the simple battery. It also issued a Louisiana Uniform Abuse Prevention Order directing Howard to have no contact with Alyssa, either directly or indirectly, for life.

Howard now appeals, raising six assignments of error.

Discussion: Other Crimes Evidence

By his first assignment of error, Howard urges the court erred in allowing the introduction of other crimes evidence under La. C.E. art. 404 B. He shows that State v. Prieur, 277 So.2d 126 (La.1973), permitted such evidence only “to show intent, knowledge or system,” and Art. 404 B, adopted in 1988, allows it more broadly for “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, * * * or when it relates to conduct that constitutes an integral part” of the charged offense, but here the state went far beyond these bounds by seeking to show “the Defendant’s violent propensities toward women while they are engaged in an intimate and/or domestic relationship.” He argues that this violated the basic rule against using other crimes evidence merely to prove that the defendant is a bad person with a propensity to commit crimes, and that the 2008 incidents with Ms. Wallace cannot possibly be an integral part of the 2009 incident with Alyssa.

IsThe state responds that the incidents are extremely similar and have great probative value to prove Howard’s “modus operandi, plan and/or system of domestic abuse.” The state also submits that even if the evidence was improperly admitted, it did not affect the verdict and thus was harmless error. State v. Haddad, 99-1272 (La.2/9/00), 767 So.2d 682.

Courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404 B(l); State v. Rose, 2006-0402 (La.2/22/07), 949 So.2d 1243. Evidence of other crimes, wrongs or bad acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d at 128; State v. Rose, p. 12, 949 So.2d at 1243. However, the state may introduce such evidence if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404 B(l). The state must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. State v. Prieur, 277 So.2d at 130. Even when other crimes evidence is offered for a purpose allowed by Art. 404 B(l), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Rose, supra; State v. Martin, 377 So.2d 259, 263 (La.1979). The state also bears the burden of proving that defendant committed the other crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2 (La.1/10/03), 839 So.2d 932, 933.

| ¡Although a defendant’s prior bad acts may be relevant and otherwise admissible under Art. 404 B, the court still must balance the probative value of the evidence against its prejudicial effects before it can be admitted. La. C.E. art. 403. Any in-culpatory evidence is “prejudicial” to a defendant, especially when it is probative to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). “Prejudicial,” in this context, means that probative evidence of prior misconduct is excluded only when- it is unduly and unfairly prejudicial. Id.; Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997). The erroneous admission of other crimes evidence is subject to the harmless error rule. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94; State v. Cooley, 47,087 (La.App. 2 Cir. 5/16/12), 92 So.3d 1095.

The state gave adequate (if rather belated) Prieur notice of its intent to use other crimes evidence and proved that Howard was the person who committed those bad acts against Ms. Wallace.

The key inquiry is whether the evidence was relevant to serve some independent purpose apart from showing merely that Howard was a bad person. The state’s Prieur notice referred to Howard’s “pattern or plan” and his “violent propensities toward women while they are engaged in an intimate and/or domestic relationship” with him.

In State v. Rose, supra, the supreme court explicitly approved the admission of the defendant’s acts of violence against (and killing of) his first wife, at the trial for the murder of his second wife. The court found the prior acts clearly expressed the vicious, deviant attitude the defendant held 110toward women with whom he had a romantic relationship, such that the crimes were “inextricably connected in the pattern” they exhibited. Id. at 16-17, 949 So.2d at 1245-1246. Although the precise issue in Rose was the identity of the murderer, and although the other crimes evidence loomed large because the state’s case was mainly circumstantial, the court fully approved admission of the other crimes evidence to prove “a specific pattern of violent and obsessive behavior [which] earmarked the crimes as the work of one man[.]” Id. at 17, 949 So.2d at 1246.

Similarly, the evidence of Howard’s conduct with Ms. Wallace was relevant to show his deviant attitude toward women he was dating. It also negated any claim that he intended only to frighten, not injure, Alyssa. On these facts, the court did not abuse its discretion in admitting the other crimes evidence. Consequently, this assignment of error lacks merit.

Disclosure of Brady Material

By his second and third assignments of error, Howard urges the state failed in its obligation to tender to the defense exculpatory evidence, specifically inconsistent statements by the victim and other key witnesses. He filed a motion for discovery and inspection on June 11, 2009; the state responded on August 11, 2009, that it had “no evidence favorable to the defense”; the state never supplemented its response; however, five months after trial, one of Howard’s family members requested and received, by public records request, a copy of the supplemental police report by Sgt. Johns; this report, dated September 9, 2009, stated that Alyssa tried to retract her initial version of events and that Hannah lied about the incident. ^Howard contends that this was exculpatory material that the state was obligated to disclose to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and failure to disclose it was reversible error. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819.

The state concedes that it failed to supplement its discovery response or disclose Sgt. Johns’s report. However, it referred to the contents of the report in opening statement at trial; the defense did not raise a Brady objection; and Alyssa was thoroughly examined and cross-examined about her attempt to retract her initial complaint. The state argues that on this record, timely disclosure of the supplemental report would not have created a reasonable probability of a different outcome. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); State v. Myers, 2004-1219 (La.App. 4 Cir. 11/3/04), 888 So.2d 1002, writ denied, 2004-2475 (La.2/4/05), 893 So.2d 85. It concludes that nondisclosure did not create reversible error.

Because the state filed no supplemental discovery response, and because Howard filed no motion for new trial, the police report in question is not part of the appellate record. This court cannot consider references to evidence that is not part of the appellate record. State v. Scott, 38,901 (La.App. 2 Cir. 9/22/04), 882 So.2d 1185.

The nondisclosure or late disclosure of exculpatory information is a violation of the defendant’s rights that can merit reversal of a conviction. Brady v. Maryland, supra; State v. Kemp, 2000-2228 (La.10/15/02), 828 So.2d 540. Sgt. Johns’s supplemental report, assuming that its contents are 112as described in the briefs, would be discoverable; the victim’s recantation of her story is discoverable impeachment evidence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Bailey, 367 So.2d 368 (La.1979); La. C. Cr. P. art. 718. Although the report was not generated when the state first responded to discovery, the state had a continuing duty to disclose evidence that is or may be subject to discovery. La. C. Cr. P. art. 729.3; State v. Strickland, 398 So.2d 1062 (La.1981); State v. Bobo, 46,225 (La.App. 2 Cir. 6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202. An ir regularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841 A; State v. Roussel, 381 So.2d 796 (La.1980).

The record supports the state’s position that the defense neither objected nor requested a recess when the prosecutor referred, in opening statement, to Alyssa’s attempted recantation, or asked her about it on direct examination. The failure to object amounts to a waiver of the claim. La. C. Cr. P. art. 841 A; State v. Roussel, supra. Although this court has grave concerns about the state’s failure to disclose material that is clearly discoverable under Brady and Giglio, we can assume that defense counsel was at least superficially aware of it, as she cross-examined. Alyssa about her wavering story. We are also constrained by the fact that Sgt. Johns’s supplemental report is not part of the record. These are issues which Howard might wish to assert by application for post conviction relief in a proceeding where a full evidentiary hearing can be held. La. C. Cr. P. art. 930; State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982). | is0n this record, however, the issue is not adequately preserved and the state’s conduct is not patently prejudicial under Bagley. This assignment does not present reversible error.

Motion for Continuance

By his fourth assignment of error, Howard urges the court erred in denying a continuance to allow the defense to pursue witnesses. Counsel was unable to subpoena Jeff Smith, a person who witnessed the incident, knew both Howard and Alyssa and had information about their relationship; this testimony, he argues, was mitigating evidence which may have resulted in a responsive verdict or a lesser sentence, and excluding it denied his right to counsel. State v. Knight, 611 So.2d 1381 (La.1993). Further, on the morning of trial counsel told the court she had five cases on the priority docket and had prepared for a child sex case instead of this one; according to Howard, this proves that she had inadequate opportunity to investigate the case.

The state responds that the court did not abuse its wide discretion in ruling on the continuance. La. C. Cr. P. art. 712; State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190. It cites the prosecutor’s statement at trial that three weeks before the trial date, the D.A.’s office sent counsel a copy of the priority list (the list itself, however, is not in the record), setting Howard’s trial as No. 2; the supreme court has approved the three-week notice afforded by the Fourth JDC’s priority list. State v. Chapman, 2010-1510 (La.10/29/10), 46 So.3d 660. Finally, Howard’s case had been on the trial docket for over a year, giving counsel ample time to interview Mr. |14Smith. The state concludes there was no error and no prejudice.

Because trial had already started, the request was technically for a recess rather than a continuance. La. C. Cr. P. art. 708; State v. Warren, 437 So.2d 836 (La.1983). Nonetheless, a motion for recess is evaluated by the same criteria as a motion for continuance. State v. Warren, supra. Under La. C. Cr. P. art. 709 A, a motion for continuance based upon the absence of a witness shall state all of the following:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

The decision to grant a recess is placed in the trial court’s discretion. State v. Telford, 384 So.2d 347 (La.1980); State v. West, 617 So.2d 1384 (La.App. 2 Cir.1993). The trial court’s decision will not be reversed absent an abuse of that discretion. State v. Gordy, 380 So.2d 1347 (La.1980); State v. Charles, 350 So.2d 595 (La.1977).

This record shows no abuse of discretion in denying the recess. Counsel argued only that Mr. Smith would be a general character witness who was also present when the incident occurred; she did not argue that he would contradict the eyewitnesses or provide any more evidence of Howard’s peaceful disposition than the other defense witnesses, Joshua Shannon and Carol Ann May. Counsel also did not show when Mr. Smith was likely to be back from Singapore, or explain why she did not subpoena |1Khim when she first learned of him. On this showing we cannot find any abuse of discretion. To the extent that this assignment might suggest ineffective assistance of counsel, that issue should be deferred to post conviction relief under La. C. Cr. P. art. 980. This assignment lacks merit.

Excessive Sentence

By his fifth and sixth assignments of error, Howard urges the court erred in imposing excessive and consecutive sentences. He concedes that counsel filed no motion to reconsider, but suggests that the court overlooked several mitigating factors. He also contends that maximum sentences on both counts are excessive for a first-time felony offender and the court failed to rebut the statutory presumption of concurrent sentences for offenses arising out of the same act or transaction, La. C. Cr. P. art. 883.

The state responds that Howard’s significant misdemeanor record, involving physical violence toward women and the use of alcohol, fully support the maximum and consecutive sentences.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court’s compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. However, when the defendant files no motion to reconsider sentence, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied, 2010-2682, -2706 (La.4/25/11), 62 So.3d 82, 89. Even though the issue is not properly preserved, we would note parenthetically that the district court [ ^adequately complied with the guidelines.

A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Normally, sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665. Nevertheless, the sentencing court has wide discretion in imposing a sentence ■within statutory limits and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. The maximum sentence for second degree battery is a fine of $2,000, five years at hard labor, or both. La. R.S. 14:34.1. The maximum sentence for simple battery is a fine of $1,000, six months in jail, or both. La. R.S. 14:35.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2 Cir.1987), writ denied, 521 So.2d 1168 (1988). It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Johnson, 42,323 (La.App. 2 Cir. 8/15/07), 962 So.2d 1126. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant poses an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Johnson, supra; State v. Barnett, 46,303 (La.App. 2 Cir. 5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239.

The district court aptly noted that prior to the instant offenses, Howard had one arrest for DWI, with prosecution declined; an arrest and conviction for underage DUI and improper equipment on a vehicle; an arrest for simple battery arising from pouring a drink on a woman at a convenience store, with the charge dismissed; and an arrest for simple criminal damage to property, still pending on the date of sentencing. After the instant offenses, in September 2009 Howard had a charge of domestic abuse battery and violation of a protective order arising from hitting and choking Alyssa; in February 2010, an arrest oh two counts of simple battery for hitting, choking and threaten-ing to kill Alyssa; in December 2010, an | ,8arrest for careless operation and other minor offenses, for which he was placed on pretrial diversion; and in July 2011, shortly before this trial, he went to Alyssa’s place of work, again in violation of the protective order, trying to speak to her. Although the instant offense was Howard’s first felony conviction, he has a significant criminal history involving abuse of alcohol and of women; his persistent harassment of Alyssa makes him an unusual risk to the public. On this record, we cannot say the district court abused its discretion in meting out the maximum sentences for both offenses. Moreover, the consecutive sentences totaling 5½ years, though harsh, are supported by particular justification and do not shock the sense of justice. This assignment of error lacks merit.

Conclusion

This court has reviewed the entire record and found nothing it considers to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the convictions and sentences are affirmed.

AFFIRMED.

      . There is no appeal from a misdemeanor conviction. La. C. Cr. P. art. 912.1 B. However, this court will review the simple battery conviction under its general supervisory jurisdiction. La. C. Cr. P. art. 912.1 C; State v. Gill, 42,938 (La.App. 2 Cir. 1/9/08), 974 So.2d 212.