author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Undra HOLMES.
    No. 12-KA-351.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.
    See also, 10 So.3d 274.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

Lin this criminal matter, defendant, Un-dra Holmes, appeals his resentencing under the Habitual Offender Act, La. R.S. 15:529.1. Defendant argues the trial court erred in finding him to be a fourth time habitual offender because the prosecution presented insufficient evidence to prove that he was the same person who committed two of the alleged predicate crimes. Specifically, defendant claims that the evidence was insufficient to link him to the convictions arising from case number CR-7654-94 from Jefferson Davis Parish and from case number 373-150 from Orleans Parish.

Background and Procedural History

On May 1, 2008, in case number 06-1094, defendant was convicted of possession with the intent to distribute cocaine in violation of La. R.S. 40:967. Defendant is not contesting this conviction in this appeal. Therefore, the facts of this conviction are not relevant to this appeal.

On July 7, 2008, the state filed a bill of information charging defendant under La. R.S. 15:529.1 as being a four time multiple offender. That bill alleged a total of five predicate convictions. These were: first, 06-1094, defendant’s most recent conviction from Jefferson Parish; second, 414743, a conviction from [aOrleans Parish; third, CR-7654-94, a conviction from Jefferson Davis Parish; fourth, 370-671, a conviction from Orleans Parish; and fifth, 373-150, a conviction from Orleans Parish.

On April 17, 2009, the trial court held a hearing and determined that defendant was a fourth time offender under La. R.S. 15:529.1. This was a determination of fact, that defendant was the same person who had been convicted at least four times as alleged in the bill of information. Subsequent to this finding, the trial court resen-tenced defendant to serve a term of life imprisonment, with credit for time served, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals this habitual offender finding.

Discussion

The trial court found that the state met its burden of establishing that defendant charged as a multiple offender was the same person who was convicted of at least four of the alleged convictions. The issue in this appeal is whether that finding of fact was clearly wrong.

To prove that defendant is a habitual offender, the state must establish, by competent evidence, that defendant is the same person who was convicted of the predicate felonies. State v. Perkins, 99-1084 (La.App. 5 Cir. 1/25/00), 751 So.2d 403, 406, writ denied, 00-0656 (La.12/15/00), 777 So.2d 476, citing State v. Chaney, 423 So.2d 1092 (La.1982); State v. Bailey, 97-302. (La.App. 5 Cir. 4/28/98), 713 So.2d 588, writ denied, 98-1458 (La.10/30/98), 723 So.2d 971. Because it is a question of fact, the state must prove that defendant is the same person who committed the predicate crimes it alleged beyond a reasonable doubt. La. R.S. 15:529.1. The trial court’s determination of this question of fact will only be reversed by this Court if it is clearly wrong.

The state may meet this burden by various means, such as (1) the testimony of witnesses to prior crimes, (2) photographs contained in a duly authenticated | ¿record, (3) expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or (4) evidence of identical driver’s license number, sex, race and date of birth. State v. Dudley, 06-1087 (La.App. 1 Cir. 9/19/07), 984 So.2d 11, writ not considered, 08-1285 (La.2009), 25 So.3d 783; State v. Perkins, supra, citing State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988), reh’g denied, 487 U.S. 1228, 108 S.Ct. 2888, 101 L.Ed.2d 923 (1988); State v. Bailey, supra.

This Court has held that testimony comparing a defendant’s fingerprints with fingerprints found on prior arrest records is sufficient to prove that defendant was the person convicted of a prior felony. State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, writ denied, 98-792 (La.9/16/98), 721 So.2d 477.

While matching fingerprints may be the most common way to prove that the current defendant is the same defendant who committed the predicate crimes, courts have made valid multiple offender findings without such evidence. The Habitual Offender Act, La. R.S. 15:529.1, does not require the state to use a specific type of evidence to carry its burden; prior convictions may be proved by any competent evidence. State v. Dudley, supra, citing State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127.

For example, in State v. Bailey, this Court held that the defendant was sufficiently linked to a predicate crime, when the trial court received supporting testimony of the prosecutor of that predicate crime, who stated that the defendant currently before the court was the person convicted of the predicate crime. 713 So.2d 588, 611 (1998).

Here, defendant does not contest three of the convictions alleged in the multiple offender bill filed against him. Those convictions are: the first alleged | r,conviction, numbered 06-1094; the second alleged conviction, numbered 414-743; and the fifth alleged conviction, numbered 370-671. Also, defendant does not argue that any of the alleged predicate convictions were obtained in violation of his constitutional rights. Defendant argues only that there was an insufficient link between his identity and the identity of the person, or persons, convicted in Jefferson Davis Parish case number CR-7654-94 and Orleans Parish case number 373-150. For reasons that follow, we find that the trial court did not commit a reversible error when it found that defendant was the same person convicted of each of these prior crimes.

The First Challenged Conviction — Case Number CR-7Q5U-9U

First, defendant argues that there was an insufficient link between him and the person convicted in case number CR-7654-94. The evidence, however, does not support his claim. On April 15, 2009, at defendant’s multiple offender hearing, the state put on evidence to prove that defendant was the person convicted in case number CR-7654-94. This evidence included an arrest booking card, a certified conviction packet, and the testimony of an expert fingerprint examiner.

In its first step of linking defendant to the conviction from CR-7654-94, the state had its expert fingerprint defendant before trial; this print was admitted as State’s Exhibit 1. The state then entered into evidence the arrest booking card created in connection with CR-7654-94; this was admitted as State’s Exhibit 2. This booking card showed, among other relevant information, prints of all ten fingers of the arrested person. The state’s fingerprint expert compared the prints on State’s Exhibit 1 with prints on the arrest booking card, State’s Exhibit 2. This expert testified that in her opinion, the fingerprints on the two exhibits matched. Based on this expert’s testimony, the trial court found that defendant sitting before it that day was the same person who was fingerprinted on State’s Exhibit 2.

16The state’s next step was to link State’s Exhibit 2 with a certified conviction packet from case number CR-7654-94. This packet contained certified copies of the bill of information, the plea of guilty, the waiver of rights form, and the Boykini-zation and sentencing minutes of the court; it was admitted as State’s Exhibit 6. The trial court observed that both State’s Exhibit 2 and State’s Exhibit 6 stated defendant’s name, date of birth, sex, and social security number. The trial court observed further that the attorney representing the person described in State’s Exhibit 6 was the same attorney who represented defendant in another criminal case. Based on this evidence, the trial court found that defendant who was convicted in State’s Exhibit 6 was the same person before the court that day.

In analyzing the link between State’s Exhibit 2 and State’s Exhibit 6, this Court notes that while the link was not perfect, it was also not inconsistent. While neither exhibit lists a driver’s license number, both exhibits list the same social security number. On the question of defendant’s race, State’s Exhibit 2 indicates that the arrested person was black; State’s Exhibit 6 is silent on the matter. Finally, State’s Exhibit 6 states that the “offense occurred on 3-16-94” while State’s Exhibit 2 states the arrest date as “8-17-94.” Because an offense usually happens before an arrest, this difference between the two exhibits is not an inconsistency.

Taking the evidence as a whole, we cannot say that the trial court was clearly wrong when it linked defendant to this predicate conviction through State’s Exhibits 1, 2, and 6. Therefore, we affirm the trial court’s finding that defendant was the same person convicted in case number CR-7654-94.

The Second Challenged Conviction — Case Number 373-150

Second, defendant argues that there was an insufficient link between him and the person convicted in case number 373-150. We have ruled that there was sufficient evidence to link defendant to the conviction from case number CR-7654-94. Further, defendant did not contest his conviction from case numbers: 06-1094, | ^414— 743, and 370-671. Because four convictions of defendant have been validly found, in this case, the requirements of the Habitual Offender Act have been met. Therefore, defendant’s second argument is moot and we hereby affirm the finding of the trial court that defendant, Undra Holmes, is a four time habitual offender under La. R.S. 15:529.1.

Error Patent Discussion

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals that there is one error patent which requires corrective action and there are five errors patent which do not require corrective action.

Corrective action is required because defendant’s habitual offender sentence is illegal. Defendant was convicted of possession with intent to distribute cocaine and sentenced as a fourth felony offender to life imprisonment, without the benefit of probation, parole, or suspension of sentence. The trial court had the discretion to give defendant a sentence of this length under La. R.S. 15:529.1(A)(4)(a); it was not mandatory. Its error however occurred in the trial court’s complete restriction from parole eligibility.

A defendant’s sentence under the Habitual Offender Act is determined by the sentencing provisions of both the underlying crime and the Habitual Offender Act. See State v. Bruins, 407 So.2d 685 (La.1981). The possession with intent to distribute statute requires the restriction of parole for the first two years only. La. R.S. 40:967(B). Also, the applicable provisions of the Habitual Offender Act do not preclude eligibility for parole. La. R.S. 15:529.1(G); 15:529.1(A)(4)(a). Accordingly, the trial court’s denial of parole eligibility for the entirety of defendant’s habitual offender sentence is not legally correct.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C.Cr.P. art. 882. Therefore, lRwe hereby amend defendant’s sentence to reflect that only the first two years of defendant’s life sentence is to be served without the benefit of parole, and remands this case to the trial court for correction of the commitment and transmission of the amended commitment to the Department of Corrections.

No corrective action is required on the remaining errors patent. First, defendant was not advised of his rights before the habitual offender proceeding. La. R.S. 15:529.1 provides that the trial court shall inform defendant of the allegations contained in the bill of information, his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. La. R.S. 15:529.1 also implicitly requires that the trial court advise defendant of his right to remain silent. State v. Johnson, 482 So.2d 815, 817 (La.1983).

The failure of a trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error when the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing rather than by admission of the defendant. State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90. Here, as discussed above, the state introduced sufficient proof through competent evidence that defendant was the person who committed the predicate offenses. Thus, we find that the trial court’s failure to advise defendant of his multiple offender rights is not a reversible error.

Second, the trial court also erred when it failed to notify defendant of the prescriptive period at the conclusion of his habitual offender sentencing pursuant to La.C.Cr.P. art. 930.8. While the commitment states that defendant was advised of his post-conviction prescriptive period, this is not reflected in the transcript of the l9habitual offender sentencing hearing. When there is a discrepancy between the transcript and the minutes, the transcript governs. State v. Lynch, 441 So.2d 732, 734 (La.1983).

While this was an error, La. C.Cr. P. art. 930.8 does not require a trial court to advise defendant of the time limitations for filing post-conviction relief more than once. State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387. On defendant’s first appeal, it was noted that, at the conclusion of his original sentencing, the trial court failed to notify defendant of the two-year prescriptive period for filing post-conviction relief. This Court therefore advised defendant in its opinion that “no application for post-conviction relief, including an application which seeks an out of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922.” See State v. Holmes, 08-719 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, writ denied, 09-816 (La.1/8/10), 24 So.3d 857. This Court gave this advice to defendant on March 10, 2009, before the habitual offender hearing and sentencing on April 17, 2009. Given that defendant has already been advised by this Court of the prescriptive period, no corrective action is necessary.

Third, the habitual offender bill of information contains an error regarding the statutory citation for the underlying conviction sought to be enhanced. The habitual offender bill alleged that defendant was charged in a bill of information filed on March 21, 2006, with violating La. R.S. 40:966(A) in case number 06-1094. The actual underlying charge and conviction in this case however was for the crime of possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). Notably, the docket number and division for the offense the state sought to enhance were correct. Also, the court that presided over defendant’s trial |inof this underlying offense was the same court that presided over defendant’s habitual offender hearing.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, art. I, § 13. A clerical error in the bill does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. La. C.Cr. P. art. 464; State v. Varnado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, 194; State v. Jason, 99-2551 (La.App. 4 Cir.12/6/00), 779 So.2d 865, 873, writ denied, 01-0037 (La.11/9/01), 801 So.2d 357.

In this case, the habitual offender bill contained the correct case number, division, and date of conviction for the felony sought to be enhanced. It was apparent which conviction the state sought to enhance as defendant was only tried and convicted of one crime in this case. Moreover, the trial court held a habitual offender hearing where there is no indication that defendant was confused or uninformed because of this error. Given these considerations, we find that the error in the habitual offender bill of information did not mislead or prejudice defendant and that therefore there is no corrective action required.

Fourth, the transcript of the multiple offender hearing shows the trial court erred when it failed to vacate defendant’s original sentence before it resentenced defendant. The error requires no corrective action however because the minute entry reflects that defendant’s original sentence was vacated. In State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, this Court found that a multiple offender sentence was valid when the commitmeni/min-ute entry reflected that the defendant’s original sentence was vacated, but the transcript failed to indicate that the trial judge had done so. This Court reasoned that the defendant’s rights were protected because the commitment/minute entry eliminated any possible confusion as to the terms of the defendant’s confinement. The same situation is presented in |nthis case. Given that the defendant’s right to be free from an improper double sentence is protected by the minute entry, we find no need to take corrective action on this patent error.

Finally, there is an inconsistency between the transcript and the commitment. Although the commitment indicates defendant was sentenced to life imprisonment at hard labor, in the transcript the trial judge failed to state that the sentence was to be served at “hard labor.” As stated before, if a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch, supra.

La.C.Cr.P. art. 879 requires the trial court to impose a determinate sentence. If a sentence is indeterminate, the matter should be remanded for the trial judge to clarify the sentence on resen-tencing. State v. Lachney, 621 So.2d 846, 848 (La.App. 5 Cir.1993); State v. Lai, 04-1053 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175. For example, if there was some discretion allowed by the applicable sentencing statute, the failure to indicate whether the sentence was to be served at “hard labor” would be an impermissible indeterminate sentence. State v. Norman, 05-794 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07), 948 So.2d 145. However, when the underlying statute requires the sentence to be served at hard labor, allowing no discretion to the trial judge, the error is harmless. State v. Stewart, 10-389 (La.App. 5 Cir. 5/10/11), 65 So.3d 771, writ denied, 11-1245 (La.1/20/12), 78 So.3d 140.

Here, defendant was sentenced as a four time multiple offender, a sentence required to be served at hard labor. La. R.S. 15:529.1(G). Thus, because La. R.S. 15:529.1 affords the trial judge no discretion, the error was harmless and the 112sentence is not an impermissible indeterminate sentence. As to this error, we find that no corrective action is necessary.

Accordingly, the judgment of the trial court adjudicating defendant to be a four time offender under La. R.S. 15:529.1 is hereby affirmed. We remand this case to the trial court to amend the commitment to reflect the corrected sentence and to transmit the corrected commitment to the Louisiana Department of Corrections.

AFFIRMED IN PART, REMANDED IN PART

      . Also, in State v. Dudley, supra, the First Circuit upheld the multiple offender conviction where there was a match between the fingerprints of the defendant currently charged as a multiple offender and fingerprints taken by the Department of Corrections "in connection with” the predicate conviction. This fingerprint evidence was sufficient for the First Circuit to uphold the conviction despite the fact that fingerprints were not on the bill of information for the predicate crime. Id. at 28.

      . La. R.S. 15:574.4(A) makes defendant ineligible for parole; that statute however is only applicable to the Department of Corrections. Therefore, while this sentence by the trial court is illegal and therefore needs correction, this correction will have little practical effect for defendant. See State v. Hardy, 47,077 (La.App. 2 Cir. 5/16/12), 92 So.3d 1090, 1095.

      . See State v. Norman, supra, and State v. Laviolette, 06-92 (La.App. 5 Cir. 9/26/06), 943 So.2d 527, writ denied, 06-2585 (La.5/18/07), 957 So.2d 149 (finding the failure by the trial judge to state that the sentence be served at hard labor, where the commitment accurately reflects the sentence to be served, is not an error requiring corrective action.)


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Anthony KENNER, Jr.
    No. 12-KA-352.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appel-lee.
    Bertha M. Hillman, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant appeals his conviction for possession of cocaine in violation of La. R.S. 40:967(C). We affirm.

Procedural Background

On August 1, 2011, the St. Charles Parish District Attorney’s Office charged defendant, Anthony Kenner, with possession of cocaine in violation of La. R.S. JO^TIC). Defendant was arraigned and pled not guilty. The matter proceeded to trial and a six-person jury returned a unanimous verdict of guilty as charged.

On August 5, 2011, defendant filed a Motion for Post-Verdict Judgment of Acquittal and/or Motion for New Trial. On August 23, 2011, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. On September 14, 2011, the trial court heard and denied defendant’s |smotion and adjudicated defendant a triple felony offender. Defendant waived sentencing delays and the trial court sentenced him to five years at hard labor with credit for time served. On September 20, 2011, the trial court granted defendant’s motion for appeal.

Factual Background

In November of 2009, a confidential informant advised Detective David Ehrmann of the St. Charles Parish Sheriffs Office that defendant was distributing quantities of crack cocaine from various locations, including his residence at 1120 Kinler Street in Luling. Pursuant to this information, Ehrmann — with the assistance of the confidential informant — conducted two successful controlled narcotics purchases from defendant at 1120 Kinler Street. Field tests on the narcotics obtained from both purchases yielded positive results for the presence of cocaine.

Pursuant to the results of the investigation, Ehrmann obtained a search warrant for 1120 Kinler Street. In the early morning hours of December 9, 2009, Ehrmann, along with other officers, executed the warrant. Upon entering the residence, defendant and a female, later identified as Ms. Toriana Ingram, were located in the master bedroom. The occupants were detained as the officers conducted the search. The officers discovered cocaine in the second drawer of a nightstand in the master bedroom and inside a microwave in the kitchen.

Assignment of Error

In his sole assignment of error, defendant claims that the evidence presented at trial was insufficient to support his conviction for possession of cocaine. Specifically, defendant asserts that the state failed to prove that he knowingly and intentionally possessed the cocaine as required under La. R.S. 40:967(C). Further, ¡^defendant challenges the chain of custody form, arguing that the inconsistent descriptions of the cocaine substance seized demonstrates that the state failed to prove the cocaine removed from the home is in fact the same cocaine tested and introduced at trial.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence presented at trial, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); and State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. An appellate court’s primary function is not to determine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671. Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833.

To support a conviction for possession of cocaine under La. R.S. 40:967(C), the state must prove beyond a reasonable doubt that defendant was in possession of the cocaine and. that he knowingly possessed it. State v. Ruffin, 96-226 (La.App. 5 Cir. 8/28/96), 680 So.2d 85. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the |ssubstance. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Id. In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, courts have considered the following factors: (1) his knowledge that drugs were in the area, (2) his relationship with the person found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of recent drug use, and (5) his physical proximity to the drugs. State v. Robinson, 11-12, p. 12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, 893.

The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to the drug may establish a prima facie case of possession when colored by other evidence. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464 and State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65 writ denied, 2003-2343 (La.2/6/04), 865 So.2d 738. Determination of whether there is sufficient evidence of constructive possession to support a conviction depends on the specific facts of each case.

In this case, the evidence presented at trial supports the jury’s conclusion that defendant did have constructive possession of the cocaine seized. At trial, to demonstrate defendant’s use of the master bedroom and nightstand, the state introduced evidence that the nightstand in the master bedroom contained a folder labeled “Family Security Plan” in the name of defendant and Ms. Ingram. The state also presented the testimony of Detective David Ehrmann with the St. Charles Parish Sheriffs Office. Ehrmann testified that officers executing the search in the early morning hours of December 9, 2009, found defendant and Ms. Ingram together in the master bedroom. Ehrmann further testified that, “all evidence | (¡indicated it (the master bedroom) belonged to Mr. Anthony Ken-ner and Ms. Toriana Ingram.” Ehrmann also testified that, at the time of the search, defendant resided at 1120 Kinler Drive and had access to the kitchen area in the home.

The state offered Ehrmann’s testimony with no objection from defense counsel. No testimony or evidence was presented by the defense after the state rested its case. Therefore, defendant presented nothing to the jury to contradict Ehrm-ann’s testimony that defendant resided at 1120 Kinler Street with Ms. Ingram — with whom he established a “Family Security Plan” — or that defendant had access to the master bedroom and kitchen area of his home where officers seized the cocaine.

A jury may accept or reject, in whole or in part, any witness’s testimony. State v. Watson, 08-214, p. 9 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 785. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id. We find that the evidence and testimony presented at trial supports a finding by the jury that defendant resided with Ms. Ingram at 1120 Kinler Street and had access and control over the master bedroom nightstand and kitchen microwave that contained the cocaine seized.

Defendant also argues that the evidence is insufficient to support his conviction because the chain of custody form contains inconsistent descriptions of the cocaine seized and does not establish that the cocaine seized from the home is in fact the same cocaine admitted at trial. Identification of evidence can be accomplished through a chain of custody, by tracing the object from the time it was seized to the time it was offered in evidence. State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675, 678, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001) and State v. Arita, 04-39 (La.App. 5 Cir. 3/1/05), 900 So.2d 37, 43. This Court has previously held that “[t]he evidence as to custody need not |7eliminate all possibilities that an object has been altered. It is sufficient if the evidence shows it is more likely than not that the object is one connected with the case. Once a proper foundation has been laid with regard to a piece of evidence, a lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than the admissibility. Ultimately, a chain of custody is a factual matter for determination by the jury.” State v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 665 writ denied, 2006-1183 (La.11/17/06), 942 So.2d 531.

In this case, the state presented testimony regarding the chain of custody. Captain Bill Slaton, an evidence technician with the St. Charles Parish Sheriffs Office, testified that the chain of custody introduced at trial is complete. Sergeant Kevin Hollingsworth, an evidence custodian with the St. Charles Parish Sheriffs Office, also testified that he is able to review the chain of custody and track where the evidence was at all times. Additionally, Ms. Marcelle Folse, a forensic scientist with the Jefferson Parish Sheriffs Office Crime Lab and an expert in the field of chemical analysis of controlled dangerous substances, testified that the substances recovered from the nightstand and the microwave both contained cocaine.

Ultimately, a chain of custody is a factual matter for determination by the jury. State v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 665 writ denied, 2006-1183 (La.11/17/06), 942 So.2d 531. The jury heard the testimony of these witnesses, made a credibility determination, and concluded that the chain of custody established that the items seized from the house and the items submitted at trial are the same and contain cocaine. We find the evidence and testimony presented at trial sufficient to support the jury’s verdict.

| ⅜Errors Patent

This Court routinely reviews the record before us for errors patent in accordance with La. C. Cr. P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975), regardless of whether the defendant makes such a request. A review of the record reveals the following errors patent:

The trial judge failed to properly advise defendant of the prescriptive periods within which he must apply for post-conviction relief. Although the commitment reflects defendant was informed of the time delays, the transcript indicates that the trial judge never informed defendant of the time period within which he must apply for post-conviction relief. Accordingly, we hereby advise defendant that, pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922. See State v. Ramsey, 10-333 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42.

Additionally, the jury’s written verdict form is not included in this record. However, there is no statutory or jurisprudential requirement that a written verdict be included in the record in a criminal case. State v. Champ, 01-434, p. 7 (La.App. 5 Cir. 11/27/01), 803 So.2d 167, 170. An omission from the record is not cause for reversal if that omission is immaterial to a proper determination of the appeal. Id. The transcript and minute entry contained in this record reflect that the six jurors were polled in open court and all six jurors stated they found defendant guilty as charged. Therefore, we find the omission of the written verdict is not material to a proper determination of this appeal and that this error does not require corrective action.

| ^Conclusion

We find the evidence presented at trial is sufficient to support defendant’s conviction. Therefore, defendant’s conviction for possession of cocaine in violation of La. R.S. 40:967(C) is affirmed.

AFFIRMED

      . The original bill of information, filed on January 22, 2010, charged defendant with one count of possession of a firearm while in possession of cocaine in violation of La. R.S. 14:95(E)1 (count one) and one count of possession with intent to distribute counterfeit cocaine in violation of La. R.S. 40:967(A)(2) (count two). On January 26, 2010, defendant was arraigned and pled not guilty. The state subsequently dismissed count one and on August 1, 2011, the state amended count two, charging defendant with the instant offense— possession of cocaine in violation of La. R.S. 40:967(C).

      . Three minors were also in the home and detained during the search.

      . The transcript also reflects that the trial judge never informed defendant of the time period within which he must seek an appeal. However, this error is moot because defendant did in fact timely file the instant appeal.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Michael WILLIAMS.
    No. 12-KA-355.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. For the following reasons, we affirm defendant’s conviction, vacate his sentence in part, and remand.

Procedural History

On September 3, 2009, a Jefferson Parish Grand Jury issued a true bill of indictment charging defendant, Michael Williams, with second degree murder, in violation of La. R.S. 14:30.1. The three-day trial of this matter commenced on July 26, 2011. After hearing the testimony and evidence, the twelve-person jury unanimously found defendant guilty as charged on July 28, 2011.

On August 10, 2011, the trial judge denied defendant’s motions for post verdict judgment of acquittal and new trial. Thereafter, defendant waived the statutory delays and the trial judge sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant filed a written motion for appeal, which was granted on August 26, 2011.

| -Pacts

On the afternoon of April 26, 2009, several concerned citizens in the Scotsdale Subdivision of Jefferson Parish reported hearing shots fired to the Jefferson Parish 9-1-1 Call Center. The first call came in at approximately 2:38 p.m.

Deputy Eric Blandford of the Jefferson Parish Sheriffs Office (“JPSO”) was the first officer to respond to the scene. Upon arrival, he observed an African-American male, lying on his side, bleeding, in a grassy area near the intersection of Florence and Esther Streets. Deputy Blandford was unable to detect any signs of life from the victim, who was identified as Terry Redmond.

Detective Jeffery Rodrigue of the Jefferson Parish Sheriffs Office Homicide Division, who arrived at the scene within 30 minutes, observed the victim lying in the grassy area, just off of the road, about 12 yards from the edge of a drainage canal. Detective Rodrigue noticed that the victim had multiple gunshot wounds. The crime scene technician recovered six cartridge casings from the grassy area where the victim was found. After examining those casings, Detective Rodrigue determined they were consistent with .40 caliber ammunition and had been fired from a semiautomatic firearm.

Detective Kevin Decker, who is Detective Rodrigue’s partner and a supervisor of the Homicide Division, was assigned as the case investigator. After interviewing possible witnesses, Detective Decker learned that a four-door white sedan fled the immediate area traveling northbound on Angus Street within minutes of the shooting. Detective Rodrigue explained that Angus Street was the street on the other side of the canal, just past the grassy area. Further, Detective Decker also learned that an African-American teenager named Michael Williams had a physical altercation with the victim and chased the victim with a gun seconds before the victim was shot.

|4On April 27, 2009, Detective Decker obtained a warrant for the arrest of Michael Williams, defendant herein, and JPSO apprehended him on April 30, 2009 at Ataría Bradley’s house. Ataría Bradley testified that defendant was dropped off at her house the day before by someone driving a white car.

On or about July 9, 2009, Michael Gordon gave a statement to Detective Decker stating that he had known both the victim and defendant for years. He testified that he saw defendant and the victim almost every day. He identified photographs of both defendant and the victim.

Mr. Gordon explained that, on April 26, 2009, he was standing outside of his apartment on Brown Street with his two ex-stepsons between 2:00 and 2:30 p.m. He testified that he was about 150 yards away when he saw the victim approach defendant on Angus Street. Mr. Gordon observed the men “tussling,” or grabbing and shoving.

Mr. Gordon watched as the victim pushed defendant to the ground then ran away down Brown Street. Defendant immediately jumped up and ran toward a group of four or five men, who were standing and talking on Angus Street. After a brief contact with that group, defendant chased the victim down Brown Street.

Mr. Gordon testified that, as defendant chased the victim, defendant held his right hand still, down by his side, next to his leg. Although defendant’s other hand pumped as he ran, his right hand never moved. Mr. Gordon saw the victim run toward the drainage canal then cross it with defendant running about ten feet behind him. Mr. Gordon lost sight of the victim and defendant after they crossed the canal because Brown Street turns. Within three to ten seconds after he lost sight of the victim and defendant, however, he heard multiple gunshots.

|5On July 15, 2009, Lisa Petty, who was staying at a house located at 1217 Angus Drive in Harvey, discovered a firearm in the backyard of the house. Ms. Petty stated that the house is on the other side of the canal, just past the grassy area where the victim was found. Further, the backyard is adjacent to a “cut” that many pedestrians use to go between the adjacent neighborhoods. The weapon did not belong to anyone residing at the house. A JPSO Crime Scene Technician removed and secured the loaded weapon.

Subsequently, Meredith Acosta, an expert firearms examiner, examined the recovered weapon, which is a Glock pistol, and determined that the six .40 caliber Smith and Wesson cartridge cases found at the crime scene were fired by this Glock pistol.

Dr. Susan M. Garcia, an expert in forensic pathology, performed an autopsy on the 42-year-old victim in this case. She concluded that the manner of the victim’s death was a homicide and the cause of his death was multiple distant range gunshot wounds. She testified that he sustained multiple gunshot wounds, with eight separate entrance wounds and seven exit wounds. She described the lethal entrance wound that did not have a corresponding exit wound as going through his liver, through his right hemi-diaphragm, his left lung, and into his back. She recovered a copper-jacketed projectile from this wound.

Defendant testified that he was 16 years old in April of 2009. He denied killing the victim in this case. He denied putting a firearm in the backyard of the house on Angus Street.

| ^Initially, defendant also testified that he did not know where he was on April 26, 2009. Later, he admitted, however, that he was alone, walking up Angus Street at 1:00 or 1:30 p.m. on April 26, 2009. He reiterated that he did not know where he was at 2:30 p.m. on that date.

Defendant also denied knowing Mr. Gordon or the victim. He denied ever crossing the canal by foot. He admitted that someone driving a white vehicle dropped him off at Ms. Bradley’s house. He testified that he knew he was wanted for murder because he had seen it on television. After hearing the testimony and evidence, the jury unanimously found defendant guilty as charged.

Law and Argument

In his sole assignment of error, defendant argues that the evidence was insufficient to convict him of second degree murder. In essence, defendant argues that the State failed to adequately prove that he was the person that committed the homicide. Specifically, defendant argues that the jury erred in finding him guilty based on circumstantial evidence, which failed to prove that defendant had possession of a firearm or that he discharged a weapon. Further, defendant argues that the State failed to adequately negate the possibility that an unknown person killed the victim.

The State responds that the evidence is constitutionally sufficient to establish defendant’s guilt beyond a reasonable doubt and to exclude every reasonable hypothesis of innocence. The State contends that one witness’s testimony that defendant ran with his right hand at his side was consistent with a person running with a firearm. Further, the witness also testified that he observed defendant chasing the victim, lost sight of the victim and defendant, and, within seconds, heard multiple gunshots.

The standard of appellate review of the sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational 17trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04); 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found the State proved the essential elements of the crime beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01); 792 So.2d 180, 184.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01); 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04); 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id.

Second degree murder includes the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1; State v. Martinez, 09-740 (La.App. 5 Cir. 3/23/10); 38 So.3d 926, 931. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Martinez, 38 So.3d at 932. Specific criminal intent, as a state of mind, need not be proven as fact but may be inferred from the circumstances and the actions 18of the accused. Id. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing it at a person. State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04); 880 So.2d 841, 850, writ denied, 04-1399 (La.11/8/04); 885 So.2d 1118.

Further, the State must prove the identity of the defendant as the perpetrator. See State v. Draughn, 05-1825 (La.1/17/07); 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). When 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 misidentifieation. State v. Neal, 00-0674 (La.6/29/01); 796 So.2d 649, 657-58 cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). However, positive identification by only one witness is sufficient to support a conviction. Id. (citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction)).

In the instant case, the jury heard Michael Gordon’s description of the interaction between the victim and defendant immediately before the shooting. Mr. Gordon demonstrated to the jury how defendant was running with his right arm down. Further, Mr. Gordon recounted that he observed defendant chasing the victim then lost sight of the men within seconds of hearing multiple gunshots, which caused the victim’s death.

Defendant denied that he was “tussling” with the victim on the day of the shooting. Defendant denied that he was the shooter. Defendant initially testified that he was not in the area on the day of the shooting, but then later admitted that he was there alone just prior to the shooting.

Clearly, the jury heard and accepted Mr. Gordon’s testimony implicating defendant. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing Iscourt may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d at 1310.

Considering the foregoing, we find, upon viewing the evidence in the light most favorable to the prosecution, that any rational trier of fact could have found that the State produced sufficient evidence at trial to prove the essential elements of second degree murder beyond a reasonable doubt, including that defendant was the shooter in this case. This assignment of error lacks merit.

Error patent discussion

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920. We note an issue of first impression emergent after Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012). In Miller, the United States Supreme Court specifically held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders” convicted of homicide. The Miller court did not, however, eliminate the possibility that a sentencing judge could sentence a murderer, who was a juvenile at the time of the offense, to life imprisonment, in certain instances. The Miller Court stated, “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 2475.

In this case, defendant was convicted of second degree murder and sentenced, before Miller became law, to life imprisonment without benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:30.1. We further note that the sentencing judge articulated numerous reasons, including this defendant’s actions of chasing a person several blocks and shooting him in the back, which shocked the judge and, thus, warranted a harsh penalty. Defendant did not assign error in his life 1 ^sentence on appeal. Accordingly, we will address only the error patent revealed in defendant’s sentence.

Because this is an issue of first impression, we rely on persuasive jurisprudence to assist our analysis of the constitutionality of sentences of life without parole for juvenile offenders. Recently, in State v. Shaffer, 11-1756 (La.11/23/11); 77 So.3d 939, 942, reh’g denied, (La.1/11/12); 77 So.3d 947, a juvenile defendant was convicted of aggravated rape and sentenced to life imprisonment. Defendant challenged his life sentence as unconstitutional under Graham v. Florida, — U.S. -, 180 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010).

The Louisiana Supreme Court found that Graham did not preclude a life sentence but rather required that a state’s sentencing scheme provide offenders, who were juveniles at the time of their offense, with a meaningful opportunity to secure release, i.e. parole, as a regular part of the rehabilitative process. Accordingly, the Shaffer court held that the trial court correctly sentenced defendant to life imprisonment but maintained defendant’s parole eligibility. Our supreme court noted that the trial judge did not address the defendant’s prison master record and corrected the issue by directing the Department of Corrections to revise the defendant’s prison master to reflect an eligibility date for consideration by the Board of Parole. Id., 77 So.3d at 942-943.

Thus, relying on the Graham, Shaffer, and, most recently, Miller, we vacate that portion of defendant’s sentence that removes any meaningful opportunity to secure release, i.e. parole, from this offender, who was a juvenile at the time of this offense. Accordingly, this matter is remanded to allow the trial judge to sentence defendant in |na manner allowing parole eligibility. Further, the trial judge is instructed to correct the hard labor commitment and to direct the Department of Corrections to revise the defendant’s prison records to reflect an eligibility date for consideration by the Board of Parole. Cf. Shaffer, 77 So.3d at 942-943. Accordingly, defendant’s conviction is affirmed. Defendant’s sentence is vacated in part and remanded for resentencing in conformity with Miller v. Alabama, supra.

AFFIRMED; SENTENCE VACATED IN PART; REMANDED

      . This witness admitted that he had two misdemeanor and one felony convictions. Further, he admitted that he had used illegal drugs in the past. He testified, however, that he had been "clean” for three years. He stated that he did not have any "beef” with defendant.

      . The homeowner, who has resided at this home for more than 25 years, testified that she had discovered discarded weapons on two prior occasions in her backyard.

      . She testified that "distant range” is any distance greater than three feet.

      .Meredith Acosta examined the projectile and determined that the projectile was consistent with .40 caliber class ammunition, but she did not have enough information to conclude that the projectile recovered from the victim was fired by the recovered firearm.

      . During the 2012 legislative session, the Louisiana Legislature passed Acts 2012, No. 466, which became effective on August 15, 2012, to bring Louisiana's statutory sentencing scheme regarding juvenile non-homicide offenders into compliance with Graham v. Florida, supra. This act added La. R.S. 15:574.4(D)(1), which allows parole eligibility, once certain conditions are met, for offenders who were under the age of eighteen years at the time of the commission of the offense, except those serving a life sentence for first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1).

      . There is nothing in the law precluding the trial judge from sentencing defendant with similar conditions to parole eligibility to those enumerated, as follows, in La. R.S. 15:574.4(D)(1):
      (a) The offender has served thirty years of the sentence imposed.
      (b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
      (c) The offender has completed the mandatory minimum of one hundred hours of pre-release programming in accordance with R.S. 15:827.1.
      (d) The offender has completed substance abuse treatment as applicable.
      (e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
      (i) A literacy program.
      (ii) An adult basic education program.
      (iii) A job skills training program.
      (f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
      (g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.


text:
    STATE of Louisiana v. Jose T. MALDONADO.
    No. 12-KA-406.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for appellee, the State of Louisiana.
    Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, for appellant, Jose T. Maldonado.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his conviction for attempted possession of cocaine. For the following reasons, we affirm his conviction and sentence.

Facts and Procedural History

In the early morning hours of July 6, 2008, Officer Sidney Gonzales of the Gret-na Police Department was on patrol. As part of his watch, Officer Gonzales conducted a routine check of Cristal’s Bar, which is in the 1100 block of Stumpf Boulevard, at 1:07 a.m. When the officer first entered the bar, he checked with the bartenders, then observed the patrons, and, finally, checked the men’s restroom. Officer Gonzales checked the men’s bathroom in this particular establishment because previous patrols had discovered patrons that were fighting, unconscious, or consuming narcotics.

As soon as Officer Gonzales entered the restroom, he observed two men standing within a foot of each other. The first man held, in his cupped hands, an open clear plastic bag containing a white substance, while the second man had his nose “buried in the bag” “sucking the white powder substance into his nose.” Officer Gonzales thought that the white powder was cocaine so he approached the 13two men, seized the bag, and detained both. The individual sniffing the white substance was identified as Jose Maldonado, defendant herein.

Both men denied ownership of the substance in the plastic bag. The substance in the bag field tested positive for cocaine. After the positive field test, defendant and Carlos Fernandez were placed under arrest for possession of cocaine and were advised of their rights.

On January 20, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Maldonado, with possession of cocaine, in violation of La. R.S. 40:967(C). On October 12, 2011, trial of the matter was held, after which a six-person jury found defendant guilty of attempted possession of cocaine. On November 8, 2011, the trial court sentenced defendant to one year at hard labor. On November 14, 2011, the trial court granted defendant’s motion for appeal. This appeal follows.

Law and Argument

On appeal, defendant raises two assignments of error: first, the State failed to present sufficient evidence to uphold the relevant conviction and sentence and second, the trial court erred in charging the jury by re-reading only a portion of the jury charge concerning reasonable doubt.

In defendant’s first assignment of error, he argues that the evidence was insufficient to support a conviction for attempted possession of cocaine. He contends that the State failed to prove that defendant intentionally and knowingly attempted to possess cocaine. The State responds that the evidence was sufficient to support the offense charged, and was thereby sufficient to support the responsive verdict of attempted possession of cocaine.

|4In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10); 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11); 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

In the present case, defendant was charged with possession of cocaine, in violation of La. R.S. 40:967(C), and was found guilty of the responsive verdict of attempted possession of cocaine. In order to support a conviction for possession of cocaine pursuant to La. R.S. 40:967, the State must prove beyond a reasonable doubt that the defendant was in possession of the cocaine and that he knowingly possessed it. State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11); 87 So.3d 881, 893, writ denied, 12-279 (La.6/15/12); 90 So.3d 1059.

Evidence which would support a conviction of a charged offense would necessarily support a conviction for a lesser included offense. State v. Young, 05—702 (La.App. 5 Cir. 2/14/06); 938 So.2d 90, 95. Attempted possession of cocaine is a lesser included offense of possession of cocaine. Id. at 93. To prove attempted possession of a controlled dangerous substance, the State must show that the defendant committed an act tending directly toward gaining possession of the substance. Young, 938 So.2d at 95. While possession of cocaine is a general intent crime, an attempt requires specific intent. Id. Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Young, 938 So.2d at 95. The fact-finder may draw reasonable inferences to support these contentions based upon the evidence presented at trial. Id.

The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05); 916 So.2d 294, 299, writ denied, 05-2382 (La.3/31/06); 925 So.2d 1257. Here, Officer Gonzales testified that he observed defendant “sucking the white powder substance into his nose,” which could be construed as actual possession of cocaine if the defendant ingested said powder.

Nevertheless, to establish attempted possession of a controlled dangerous substance, the State must show that the defendant committed an act tending directly toward gaining possession of the substance. Here, the State presented testimony that Officer Gonzales observed defendant “sucking the white powder | (¡substance into his nose,” which is sufficient to prove that defendant committed an act tending directly toward gaining possession of the substance in question. Accordingly, viewing this evidence in the light most favorable to the prosecution, we find that any rational trier of fact would have found defendant guilty beyond reasonable doubt of attempted possession of cocaine. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in failing to give the entire charge as to reasonable doubt when the jury requested the definition of reasonable doubt. The State responds that defendant did not offer any legal support for this claim.

When charging the jury, the trial court offered the following regarding reasonable doubt:

Reasonable doubt. A person accused of a crime is presumed by law to be innocent until each element of the crime necessary to constitutive] his guilt is proven beyond a reasonable doubt.
This doubt must be a reasonable one, that is one found upon a real, tangible, substantial basis and not upon caprice, fancy, or conjecture. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
It is the duty of this jury if not convinced of the guilt of the defendant beyond a reasonable doubt to find him not guilty.
If you have a reasonable doubt as to a particular grade of the offense charged, you must find the defendant not guilty of that grade. If you are convinced beyond a reasonable doubt that the defendant is guilty of some other grade of the offense you must find him guilty of that grade of the offense. If you’re not convinced beyond a reasonable doubt that the defendant is guilty of any grade of the offense charged you must find him not guilty.

In response to the jury’s request for a definition of reasonable doubt, the trial court, over the defense’s objection, informed the jury as follows:

A person accused of [a] crime is presumed by law to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.
|7This doubt must be a reasonable one, that is one found upon a real, tangible, substantial basis and not mere caprice, fancy or conjecture.
Proof beyond a reasonable doubt therefore is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. Would you like that re-read to you?
One more time. A person accused of a crime is presumed by law to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.
This doubt must be a reasonable one, that is found upon a real, tangible, substantial basis and not mere caprice, fancy or conjecture.
Proof beyond a reasonable doubt therefore is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

La.C.Cr.P. art. 804(A) states in pertinent part that “the court may, but is not required to, define ... ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.” A jury instruction is not incorrect when, taken as a whole, a reasonable person of ordinary intelligence would have no problem understanding the definition of reasonable doubt. State v. Holt, 08-1276 (La.App. 5 Cir. 5/26/09); 12 So.3d 502, 509, writ denied, 09-1681 (La.3/26/10); 29 So.3d 1249.

When considering an allegedly improper jury instruction, a reviewing court must determine whether it is “reasonably likely” that the jury applied the challenged instruction in an unconstitutional manner, not whether it is possible that the jury misapplied the instruction. Id. at 509-10. In determining whether it is reasonably likely that the jurors misapplied the instruction in an unconstitutional manner, the challenged terms are considered in relation to the instruction as a whole. Id. A conviction will not be reversed on the grounds of an erroneous jury instruction unless the disputed portion, when considered in connection with the remainder of the instruction, is erroneous and prejudicial. Id.

In Holt, supra, defendant challenged the jury instruction on “reasonable doubt,” which read:

IsA person accused of a crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt. This doubt must be a reasonable one, that is, one found upon a real, tangible, substantial basis and not upon mere caprice, fancy or conjecture. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. It is the duty of this jury if not convinced of the guilt of the defendant beyond a reasonable doubt, to find him not guilty.

Holt, 12 So.3d at 509. This Court, noting that we had previously found an almost identical instruction was not erroneous, found no error in that charge. Id. (citing State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07); 968 So.2d 187).

Likewise, in the instant case, the trial court provided the jury with an instruction identical to the one in Holt when the jury requested the definition of reasonable doubt. The trial court provided the jury three times with a jurisprudentially-ac-cepted definition. Because a reasonable person of ordinary intelligence would have no problem understanding this definition of reasonable doubt, we find that it is not “reasonably likely” that the jury applied the challenged instruction in an unconstitutional manner. Accordingly, this assignment of error lacks merit.

Errors patent

Finally, defendant requests an error patent review, which this Court routinely performs pursuant to La.C.Cr.P. art. 920. In this matter, our review reveals no errors patent requiring correction in this case.

Conclusion

Based on the foregoing, we find that defendant’s assigned errors lack merit. Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . At trial, the State and defense stipulated that the evidence seized contained 0.39 grams of cocaine.

      . Attempt is defined in La. R.S. 14:27, which provides in pertinent part:
      A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Brian THOMPSON.
    No. 12-KA-409.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Thomas S. Block, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ¡^Defendant, Brian Thompson, appeals his conviction for attempted second degree murder. For the reasons that follow, we affirm.

Defendant was charged in a bill of information on June 22, 2009 with attempted second degree murder of Connika Proctor in violation of La. R.S. 14:27 and 14:30.1. He pled not guilty and proceeded to trial on March 6, 2012. After a two-day trial, a 12-person jury found defendant guilty as charged by a vote of 11 to one. Thereafter, the trial court sentenced defendant to 30 years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence.

FACTS

At approximately 7:00 p.m. on May 16, 2009, Deputy Mark Monson with the Jefferson Parish Sheriff's Office responded to a shooting call on Pritchard Dr. in Marre-ro. Upon his arrival, he observed the victim, Connika Proctor, lying on the front yard bleeding from multiple gunshot wounds. Deputy Monson believed |3the victim’s life was in jeopardy and asked her who shot her. The victim replied, “Brian shot me.”

The victim was transported to University Hospital where she was treated for four gunshot wounds: two to her upper chest, one to her left arm, and one to her upper back. She remained in the hospital for six days, three of which she spent in critical care, before being discharged.

At trial, the victim, age 21, testified she and defendant worked together at McDonald’s and had known each other for approximately one and a half years prior to the shooting. She stated defendant wanted to start a relationship, but she advised him she was into girls and that a relationship with him could not happen. Nonetheless, according to the victim, defendant told people that he and she were in a relationship. At some point, the victim received a phone call from defendant’s fiancée asking if she and defendant were in a relationship.

According to Trashawn Wilson, who worked with the victim and defendant at McDonald’s, the victim and defendant had “got into a fuss” two days before the shooting. On the day of the shooting, the victim was with her girlfriend at Tra-shawn’s house when defendant showed up unexpectedly yelling, “where Connika at[?]” Trashawn testified that defendant pulled up on the lawn in his Suburban and blew the horn, at which time she, the victim and the victim’s girlfriend went outside. Once they were outside, the victim and defendant engaged in a loud argument. The victim testified the argument was about the phone call she received from his fiancée and about the victim being with her girlfriend.

According to the victim, defendant attempted to place her in a choke hold during the argument, at which time she pushed him. Trashawn testified that she heard the victim say, “I’ll hit you,” and defendant responded that he would shoot her if she did. At some point during the argument, defendant walked back to his | ¿vehicle and the victim followed him. Once defendant was inside his vehicle, the victim struck defendant with her hand through the driver’s side window, and defendant immediately started shooting, striking the victim four times. Defendant drove away and never returned.

Several witnesses corroborated the victim’s version of events. Two sisters, Candace and Cynthia Cruz, who lived two to three houses away, both testified they were sitting outside in their front yard when they heard people arguing very loudly. The sisters recognized the victim, as they had gone to school with her. Candace testified she saw the victim arguing with a man sitting inside a vehicle. She then saw the victim put her hand through the window of the car and “push” or “tap” the man on his head. The man immediately pulled out a gun, shot the victim, and drove away.

Cynthia testified she first saw the two arguing outside of the vehicle. She briefly went inside, and when she returned, the man was inside his car and the victim was standing next to the driver’s door. Cynthia saw the victim push the man on his head through the window, at which time the man shot her. Both Cynthia and Candace testified the victim was not armed with any kind of weapon.

Additionally, Joshua Winfield, who works for the Westwego police and fire department, was visiting his sister on Pritchard Dr. when he heard people arguing followed by the sound of a gunshot. He grabbed his gun and his radio and headed down the block when he heard and observed two more gunshots and two subjects. He testified that the shots were fired by a black male sitting in the driver’s seat of a Suburban, and that the last shot fired was into the victim’s back as she was moving away. Winfield stated he saw no other weapons at the scene.

Defendant subsequently turned himself into the police 16 or 17 days after the shooting.

^DISCUSSION

Sufficiency of the Evidence

In two of his three assignments of errors, defendant challenges the sufficiency of the evidence. He first argues the State failed to prove beyond a reasonable doubt that he did not shoot in self-defense and, therefore, it failed to prove he committed attempted second degree murder. Second, defendant asserts the evidence shows the shooting was done in “sudden passion” and “heat of blood,” which entitled him to the responsive verdict of attempted manslaughter. He contends he met his burden of proving the mitigatory factors by a preponderance of the evidence by establishing the shooting was provoked by the victim who hit him twice during their heated argument, despite his attempt to retreat.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt.

Defendant was convicted of attempted second degree murder. Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. Attempt is defined as “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended[.]” La. R.S. 14:27(A).

| fiThe crime of attempted murder requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Abdul, 11-863 (La.App. 5 Cir. 4/24/12), 94 So.3d 801, 810. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. Id. It is well established that specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).

The evidence shows defendant armed himself with a gun, drove to the victim’s location, engaged in a verbal altercation with the victim, and then shot her four times at close range. Additionally, according to the testimony of Officer Win-field, defendant fired the last shot at the victim’s back as she was moving away. Based on this evidence, we find the evidence sufficiently shows defendant had the requisite specific intent to kill the victim so as to support his conviction for attempted second degree murder.

On appeal, defendant does not deny that he shot the victim, but claims he acted in self-defense. Contrary to defendant’s assertion, it is defendant’s burden, not the State’s, in a non-homicide case to prove by a preponderance of the evidence that his actions were in self-defense. State v. Nailor, 10-1062 (La.App. 5 Cir. 11/15/11), 78 So.3d 816, 821-22, writ denied, 11-2780 (La.4/27/12), 86 So.3d 626.

The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. According to La. R.S. 14:20(A), a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith. La. R.S. 14:21. In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Theriot, 07-71 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715.

The determination of a defendant’s culpability rests on a two-fold test: (1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and (2) whether deadly force was necessary to prevent the danger. The jury is the ultimate fact-finder in determining whether a defendant proved his condition. Theriot, 963 So.2d at 1020.

|RIn the instant case, the evidence produced at trial does not support defendant’s contention that he shot the victim in self-defense. Defendant armed himself, drove to the victim’s location, and engaged the victim in a verbal altercation. The only physical contact the victim made with defendant was pushing him to escape his choke hold on her and pushing his head with her hand. This action by the victim would not lead a reasonable person to believe he was in imminent danger of losing his life or receiving great bodily harm and that shooting the victim was necessary to prevent the danger. Nonetheless, defendant responded to this minimal physical contact with multiple gunshots, despite the fact the victim was not armed and the fact he was in a Suburban and could have driven away from the confrontation. Additionally, one of the four shots was to the victim’s back. Furthermore, defendant fled the scene and did not turn himself into authorities until more than two weeks after the shooting. Under these facts, we find defendant failed to prove by a preponderance of the evidence that he shot the victim in self-defense.

Defendant also contends the evidence showed the shooting was done in “sudden passion” and “heat of blood” because he was provoked by the victim’s physical aggression; therefore, he argues the evidence was insufficient to support a verdict of attempted second degree murder but rather supports a verdict of attempted manslaughter.

^Manslaughter is a homicide, which would either be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his cool reflection and self-control. State v. Lombard, 486 So.2d 106, 110 (La.1986). Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Instead, they are mitigatory factors that may reduce the grade of the offense. State v. Patterson, 10-415 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 150, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037. The defendant has the burden of proving those mitigating circumstances by a preponderance of the evidence. Id.

Whether sufficient provocation existed for the reduction of the offense to manslaughter is a question to be determined by the jury under the standard of the average or ordinary person, one with ordinary self-control. Patterson, supra. An argument alone does not constitute sufficient provocation to reduce murder to manslaughter. State v. Johnson, 06-623 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, writ denied, 06-3024 (La.9/14/07), 963 So.2d 995.

In State v. Shanks, 97-1885 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, the court found defendant failed to establish the mitigating factors necessary to reduce a murder conviction to manslaughter. In Shanks, the victim went to the defendant’s home to collect money the defendant owed him for a prior marijuana purchase. An argument ensued, and the victim struck the defendant: one time on his cheek and another on his neck. As the victim turned to walk out the door, the defendant picked up a shotgun and fired it one time at waist level hitting the victim. The court determine that the jury rationally concluded the homicide was not committed in sudden passion |incaused by provocation sufficient to deprive an average person of his self-control; or, that if there was such provocation, an average person’s blood would have cooled at the time the offense was committed.

Similarly, in the present case, the evidence does not show that defendant’s act of shooting the victim resulted from immediate provocation sufficient to deprive an average person of his self-control. Defendant armed himself and drove to the victim’s location screaming, “where Connika at[?]” He purposefully sought the victim out and engaged her in an argument. He physically grabbed the victim around the neck and tried to place her in a choke hold, at which time she pushed him. She then pushed or tapped defendant’s head when he was in his Suburban. We find the jury rationally found that the victim’s act of pushing defendant’s head did not rise to the level of provocation that would deprive an average person of his self-control. As such, defendant failed to prove the mitigatory factors required to reduce his conviction from attempted second degree murder to attempted manslaughter.

Accordingly, viewing the evidence in a light most favorable to the prosecution, we find the evidence sufficiently supports defendant’s conviction for attempted second degree murder. We further conclude defendant failed to carry his burden of proving by a preponderance of the evidence that the shooting was done in self-defense or that mitigatory factors necessary to reduce his conviction to attempted manslaughter were present.

Exclusion of Character Evidence

In his other assignment of error, defendant argues the trial court erred in excluding evidence of the victim’s violent nature. Defendant contends that such evidence was admissible under La. C.E. art. 404(A)(2) and |n404(B)(2), which provide exceptions to the general rule that character evidence is inadmissible. He maintains the evidence clearly showed the victim committed an overt act or hostile demonstration, which is required as a foundation to the admissibility of character evidence, when she struck the first blow and when she followed him to his car and hit him again once he was inside. Thus, defendant asserts the trial court erred in excluding the evidence on the basis he failed to lay a proper foundation for its admission.

The State contends that defendant’s lack of contemporaneous objection to the court’s ruling excluding the evidence and his failure to proffer the subject testimony precludes defendant from raising this issue on appeal. We agree.

At the conclusion of the State’s case, the defense announced during a bench conference that it intended to call Kelli Brown, a character witness who would testify regarding the victim’s propensity towards violence. The State moved to exclude Brown’s testimony, arguing that the proper foundation was lacking. The defense conceded that it had a problem with laying the appropriate foundation because defendant was not going to testify.

Thereafter, the trial court granted the State’s motion to exclude Brown’s testimony, but offered the defense the opportunity to proffer Brown’s testimony either through live testimony or an affidavit. Defense counsel requested time to confer with defendant and a recess was held. Once trial resumed, the defense stated it was prepared to proceed and called its first witness. At no time did the defense seek to proffer Brown’s testimony.

To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the | ^alleged error as well as the grounds for the objection. La.C.Cr.P. art. 841(A). The purpose behind the contemporaneous objection rule is to put the trial court on notice of an alleged irregularity so that it may cure the problem. This prevents the defendant from gambling for a favorable verdict at trial and then later utilizing appellate review to correct errors that might have easily been corrected by the trial judge upon an objection. State v. Turner, 11-870 (La.App. 5 Cir. 3/27/12), 91 So.3d 426, 436.

There is no “magic-word” formula necessary for remarks to constitute an objection. State v. Shoemaker, 500 So.2d 385, 388 (La.1987). Rather, it is sufficient that a party, at the time of the ruling, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, together with the grounds therefor. La. C.Cr.P. art. 841; Shoemaker, supra. Where the defense counsel acquiesces when the court sustains a State’s objection to the examination of a witness, that objection is waived. State v. Huizar, 414 So.2d 741, 749 (La.1982); State v. Smith, 39,698 (La.App. 2 Cir. 6/29/05), 907 So.2d 192, 200.

Moreover, when the trial court excludes evidence, such as witness testimony, error may not be predicated upon a ruling unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by counsel. La. C.E. art. 103. This Court has consistently held that when a defendant does not make known the substance of the excluded evidence for the purpose of consideration by the trial and appellate court, the alleged error is not preserved for review on appeal.

| isHere, defendant failed to object to the exclusion of Brown’s testimony. In fact, the record shows defendant acquiesced in the State’s position regarding the lack of foundation concerning Brown’s testimony. Additionally, despite being given a specific opportunity by the trial court, defendant chose not to proffer Brown’s testimony and did not make known the substance of the excluded evidence. Therefore, the record does not reflect whether Brown was in a position to offer testimony that might have substantially helped the defense. Accordingly, we find defendant failed to preserve the excluded testimony for appeal by failing to object and failing to proffer the evidence.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). We note that the trial court failed to observe the three-day delay between conviction and sentencing as required by La.C.Cr.P. art. 873. Absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of a prematurely imposed sentence is not required. State v. Davis, 09-1109 (La.App. 5 Cir. 9/14/10), 45 So.3d 203, 214, writ denied, 10-2585 (La.4/1/11), 60 So.3d 1249.

Although defendant did not expressly waive this delay, we find the trial court’s failure to observe this delay was harmless. The purpose of the three-day delay is to allow the defendant time to file post-trial motions that must be filed between verdict and sentencing. State v. Cook, 98-848 (La.App. 5 Cir. 1/26/99), 729 So.2d 634, 640, writ denied, 99-570 (La.6/25/99), 745 So.2d 1185. In this case, defendant filed a motion for post-verdict | judgment of acquittal and a motion for new trial prior to sentencing. Additionally, defendant did not object to the sentence imposed and did not raise any sentencing issues on appeal. Accordingly, we find no corrective action is required.

DECREE

For the foregoing reasons, defendant’s conviction for attempted second degree murder is affirmed.

AFFIRMED

      . The State subsequently filed a multiple offender bill of information alleging defendant to be a third felony offender. However, the multiple offender proceedings are not a part of this appeal.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, we address the sufficiency of the evidence before defendant’s other assignment of error.

      . We note that although specific intent to inflict great bodily harm is sufficient to support a second degree murder conviction, attempted second degree murder requires a specific intent to kill. State v. Bannister, 11-602 (La.App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied, 12-628 (La.6/15/12), 90 So.3d 1060.

      . Witness Candace Cruz testified defendant was only an arm's length away from the victim when he shot her.

        .See State v. Osborne, 00-345 (La.App. 4 Cir. 12/6/00), 775 So.2d 607, 611, writ denied, 01-315 (La.12/14/01), 803 So.2d 985, where the court found the evidence did not support the defendant’s claim of self-defense when the victim was not armed even though the victim physically and verbally assaulted the defendant; and State v. Mincey, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, 615-16, wherein the court found that shooting a person in response to an oncoming punch was an excessive response and was not justifiable self-defense.

      . See State v. Patterson, 10-415 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 149, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037, where this Court found that a gunshot wound to the back of the head indicated the defendant became the aggressor and did not support his claim of self-defense.

      . See State v. Patterson, 63 So.3d at 149-50, where this Court found a defendant’s flight and attempt to avoid apprehension were inconsistent with a theory of justifiable homicide.

      . See State v. Watson, 02-1154 (La.App. 5 Cir. 3/25/03), 844 So.2d 198, 210, writ denied, 03-1276 (La.5/14/04), 872 So.2d 506; State v. Stevenson, 02-79 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 347; State v. Batiste, 96-1010 (La.App. 5 Cir. 1/27/98), 708 So.2d 764, 769, writ denied, 98-913 (La.9/4/98), 723 So.2d 954.