author: MICHAEL E. KIRBY, Judge.

text:
    Edward and Timmie TAAFFE v. FACTORY DIRECT INSTALLATIONS, LTD., Paul Lacinak and Alan Cassell.
    No. 2008-CA-0175.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 2009.
    Rehearing Denied April 28, 2009.

      Daniel L. Dysart, Elizabeth R. Borne, Dysart & Tabary, L.L.P., Chalmette, LA, for Plaintiffs/Appellees.
    R. Lee Eddy III, Metairie, LA, for Factory Direct Installations, Ltd. (With Respect to the Issuance of Insurance Coverage).
    Andre’ C. Gaudin, Meredith M. Miceli, Burglass & Tankersley, L.L.C., Metairie, LA, for Factory Direct Installations, Ltd.
    AI M. Thompson, Jr., Al M. Thompson, Jr., L.L.C., New Orleans, LA, for Essex Insurance Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

11 Defendant, Factory Direct Installations, Ltd. (“FDI”), appeals two trial court judgments: (1) the May 4, 2005 judgment in favor of plaintiffs, Edward and Timmie Taaffe, and against FDI in the amount of $23,899.50 plus interest from date of judicial demand and all costs of proceedings, and (2) the July 26, 2005 judgment denying FDI’s motions for new trial.

On October 20, 1998, plaintiffs filed a petition for damages and breach of contract against FDI; Paul Lacinak, the owner and president of FDI; and Alan Cas-sell, regional manager of FDI. In their petition, plaintiffs alleged that they entered into a contract with defendants on October 30, 1997 for repairs to be made at their home at 1624 East St. Bernard Highway in Chalmette, Louisiana. Plaintiffs claimed that defendants failed to complete all of the contracted work and further claimed that the work was not performed in a professional or workmanlike manner. Plaintiffs alleged that defendants also caused damage to plaintiffs’ house and land while working on the property.

LOn November 30, 1998, FDI filed an answer and reconventional demand. In its answer, FDI admitted to entering into a contract with plaintiffs on October 30, 1997, but denied that the other named defendants, Paul Lacinak and Alan Cas-sell, were parties to the contract. FDI admitted that the contract covered certain repairs and improvements to the plaintiffs’ property but denied plaintiffs’ allegation that the contract included cosmetic en-háncements to the home. FDI denied the remainder of plaintiffs’ allegations. FDI filed a reconventional demand against plaintiffs, which included requests that plaintiffs’ petition be dismissed and that plaintiffs be ordered to pay the balance of the contract price agreed to by the parties. According to FDI, the contract price for the repair work was $16,988.00, and plaintiffs only paid a $4,000.00 down payment, leaving a balance due and owing of $12,988.00. A copy of the October 30, 1997 contract between plaintiffs and FDI was attached as an exhibit to FDI’s answer and reconventional demand.

FDI subsequently filed a third party demand against Essex Insurance Company (“Essex”), alleging that at all pertinent times, Essex had in full force and effect a commercial general liability insurance policy and other policies providing coverage to FDI for the types of claims asserted against FDI by plaintiffs. Essex answered the third party demand, denying that it provided coverage for the claims asserted in this matter. Essex also filed a petition for a declaratory judgment, requesting a judgment declaring that the Essex policy at issue excludes coverage for all of plaintiffs’ claims against FDI.

| sTrial commenced on February 28, 2005. Plaintiff, Edward Taaffe, testified that he and his wife entered into a contract with FDI in 1997 to have a new roof installed on their house. The house has been in Mr. Taaffe’s family for over 100 years. The contract listed the price for the work to be performed at $16,988.00. Mr. Taaffe stated that he made a $4,000.00 down payment when the contract was executed. The contract listed twenty-three items of repair to be performed by FDI. The first item on the list was “[rjeplace bad wood where needed (scab on.)” Mr. Taaffe understood that to apply to the whole house, but especially the roof. In addition to the roof work, FDI was to paint, replace gutters and repair windows, among other things.

Mr. Taaffe testified that FDI started the work soon after the contract was signed. He said the work started out fine, but when the roofing materials were brought to the house, the FDI workers dropped the materials off in the middle of the landscaping, causing damage to the landscaping. He said the workers caused extensive damage to his house, trees and landscaping when they removed the existing roof. He said the damages included gouges in aluminum siding down to the wood, torn awnings and broken wrought iron work.

Mr. Taaffe said the old roof was not removed in the manner in which Mr. Cas-sell told him it would be. He said debris from the old roof stayed in his yard for months. Mr. Taaffe identified photographs of the damage, which were introduced into evidence. He testified that he called Mr. Cassell to complain about the damage, and was told that the damage would be fixed and that the workers’ pactions causing the damage would not be repeated. He said as a precaution, he covered his air conditioning unit with a piece of plywood. Mr. Taaffe said that the day after his phone conversation with Mr. Cassell about the damage caused by FDI workers, he returned to the house to find that the workers had moved the plywood off of the air conditioning unit and the unit had nails and roof slates in it. His garage also had wood knocked off of it from the roofing materials. He said there was additional damage to his landscaping and siding on the second day. He again called Mr. Cassell to complain.

Mr. Taaffe said that when the FDI workers finished tearing off the old roof, they only had enough materials on his property to partially complete the new roof. He said it took ten more days to get the materials to complete the roof, and rainstorms that occurred in the interim period resulted in water leaking into the house, causing further damage. Mr. Taaffe said he also was not pleased with the work FDI performed on the awnings and windows.

According to Mr. Taaffe, the new roof was eventually put on the house, but he was not pleased with the result. He said the roof was wavy, which was not the case with the old roof. He was told by Mr. Cassell that the problem would be corrected, but it was not. Photographs of the completed roof were identified by Mr. Taaffe and introduced into evidence. Mr. Taaffe said FDI attempted to repair the damage its workers had done to the house when the old roof was torn off, but the work was not performed to his satisfaction. He said FDI did not offer to repair |sthe landscaping. He said FDI did not repair the waves in the roof, and that he intends to have another roofing company do the job correctly.

On cross-examination, Mr. Taaffe stated that he was not present during the performance of the work by FDI because he was at work. He reviewed his contract with FDI, and admitted that it did not mention caulking or glazing of windows, repair of the mechanics of the windows, replacement of screens or repair and reinstallation of awnings. He said he was told by the painter that the awnings needed to be removed to paint the house. He acknowledged that despite his dissatisfaction with the job, he received a new roof, gutters and shutters, and the columns, awnings and windows were painted. He admitted that $12,988.00 is still owed under the contract.

Mr. Charles Ruffino, Jr. was accepted as an expert in the field of real estate appraisal and construction. He was hired to perform an inspection of plaintiffs’ house within six months of the new roof being installed on the house. This inspection occurred in 1998. Mr. Taaffe asked Mr. Ruffino for an estimate of the cost to make his property whole again, including cleaning up the damage done by FDI. His estimate at that time for repairing the damage and redoing work that FDI did not perform properly, exclusive of the roof, was $15,970.00. He said the damage to the siding and awnings was so extensive that those items were not repairable and would have to be replaced. Mr. Ruffino stated at trial that there has been a 33% to 40% increase in reproduction costs since he arrived at his estimate |fiin 1998. His opinion was that the work performed by FDI on the house was not performed in a workmanlike fashion.

The next witness was Roy Gross, III, who was accepted as an expert in the field of contracting. He was hired by plaintiff to inspect the roof that was installed on plaintiffs’ house by FDI. He submitted a report of his findings, which was introduced into evidence. His opinion is that the metal roof is defectively installed because it was installed over the existing substructure or substrate without the substructure first being leveled. He observed deflections in the roof that were the result of the roof being installed on an unlevel substructure. He explained that a deflection is a sagging of the roof structure from end to end. Mr. Gross also testified that it is his opinion that the base flashing was defectively installed because the joints were not riveted or caulked. He said there is no way to repair the problems with this roof other than removing the entire roof and starting over with a level substructure. He estimates the cost of replacing the roof at approximately $5,000.00 to $10,000.00, depending on the type of materials used.

On cross-examination, Mr. Gross stated that he inspected plaintiffs’ roof in 2004. He did not know when the roof was installed. He also did not know the condition of the roof from the time it was installed until his inspection in 2004. Mr. Gross did not know if the roof had any damages or modification between the time it was installed and his inspection. He admitted that the contract between plaintiffs and FDI did not include removal of the existing substrate prior to installation. However, he said the problem with the roof could have been resolved |7by putting a new plywood substrate over the existing substrate. His opinion is that FDI did not cause the deflection in the roof; the deflection likely-existed prior to the installation of the new roof. Mr. Gross said the deflection does not affect the structural integrity of the roof, but it affects the appearance.

Paul Lacinak, the owner and general manager of FDI, was the next witness. Mr. Lacinak explained to the court the type of roofing system installed by FDI on plaintiffs’ house. He said that Alan Cas-sell, the FDI salesperson who dealt with plaintiffs, no longer works for FDI. He said that subcontractors performed the roofing installation and other repairs on plaintiffs’ house. The roofing subcontractor was not supervised by FDI, and FDI did not supply the tools for the job. FDI paid the roofing subcontractor at the end of the job, but did not pay the salaries of the roofer’s employees, and was not involved in the hiring or firing of those employees.

He said, to his knowledge, plaintiffs were never told that the substrate on their roof would be replaced prior to the installation of the new roof. Mr. Lacinak said he had only one conversation with Mr. Taaffe when he was called by the painter working on plaintiffs’ house and asked to come to the site to resolve an issue with Mr. Taaffe. He met with Mr. Taaffe, and was then told by Mr. Taaffe to get off of his property or the sheriffs office would be called. He and Mr. Taaffe had no other conversations.

When he arrived at Mr. Taaffe’s house on the day the painter called, Mr. Lacinak said he inspected the job and the work appeared to be satisfactory to him. |sOn the subject of Mr. Taaffe’s complaints, Mr. Lacinak told him, “[wjhatever needs to be done would be taken care of.” He inspected the repairs made in connection with damages to the property during the roofing process, and he stated that the repairs looked good to him. He said all of the work listed in the contract was completed, but FDI has only received $4,000.00 from plaintiffs, with the balance still unpaid. Mr. Lacinak testified that $12,988.00 is still due and owing on the contract between plaintiffs and FDI, and that is the basis for the reconventional demand filed by FDI against plaintiffs. He said the plaintiffs’ roof has a lifetime of ownership labor warranty. He also said the photographs of the property introduced into evidence do not depict the condition of the property at the time he inspected the job after it was completed.

Keith Munson, a claims adjuster for GAJ3 Robbins, was hired by FDI to assess the damage to the plaintiffs’ home. He inspected the home on June 13, 2000. Mr. Munson prepared a written report, which was offered into evidence. He assessed the total damages to the property at $3,322.39. He disagreed with the non-roofing damage estimate of $15,970.00 offered by Mr. Ruffino. He allowed no damage evaluation for the roof, because it looked fine to him. He also admitted that he was not asked to evaluate the roof. Mr. Munson noticed deflections in the roof when he inspected the property. His estimate did not address damages to landscaping. He also did not address dents in the siding because he assumed they were caused by a hail storm in 2000. He said his estimate would be higher if the | ¡¡damage to the siding pre-existed the 2000 hail storm because the appraisal would include removal and replacement of the siding.

The last witness was Timi Taaffe, wife of Edward Taaffe. She testified that she took the photographs of the property introduced into evidence by plaintiffs. She said the photographs were taken throughout the job and right after the job in 1997 and 1998, well before the January 2000 hailstorm. She stated that the damages reflected in those photographs were the consequence of work performed by FDI.

On May 4, 2005, the trial court rendered judgment in favor of plaintiffs and against FDI in the amount of $23,899.50 plus legal interest from date of judicial demand and all costs of the proceedings. The judgment also ordered that the policy of insurance issued by Essex provides coverage to FDI for this matter. Motions for new trial were filed by Essex, FDI and Paul Laci-nak. The motions filed on behalf of FDI and Lacinak were denied, but the motion for new trial was granted as to Essex on the issue of coverage. The trial court subsequently amended the judgment of May 4, 2005, deleting that portion finding that Essex provided insurance coverage to FDI for this matter, and dismissing FDI’s claims against Essex.

In reasons for judgment, the trial court acknowledged that the roof installed by FDI is structurally sound and does not leak. However, the court also noted that the “wavy” appearance of the new roof as complained of by plaintiffs is due to the fact that the substrate upon which the new roof was placed is uneven. FDI argues |inthat the substrate was in that condition when the work began and its contract with plaintiffs did not include removal of the substrate.

The court stated that the contract includes the phrase “remove bad wood where necessary (scab on),” and that the court is required to determine the intent of the parties when a contract is unclear or ambiguous in its meaning as in the instant case. The court interpreted the addition of the words “scab on” to mean that additional support to the substrate was contemplated in the scope of the work intended by the parties in order to avoid the unsightly appearance of the new roof. Thus, the court found that corrections to the substrate were included in the scope of-work to be performed by FDI under the contract.

The trial court next addressed FDI’s allegation that plaintiffs have failed to carry their burden of proving breach of contract or defectivé workmanship -because the roof is only aesthetically unappealing or, alternatively, that their obligation, in the event of a finding of poor workmanship or defects, is repair, not replacement of the roof. The court cited cases holding that a “wavy appearance” of a roof cbnsti-tuted a defect in the workmanship requiring replacement of the roof, and that the loss by reason 'of aesthetic value, although the deviation did not- negatively affect the construction or harm the home structurally, was a compensable item of damages.

The court found that the repair necessary to correct the “wavy” or wrinkled appearance of the -roof is to remove it, repair the substrate and replace the roof. The court noted that the only testimony on the cost to replace the roof came from |nMr. Gross who set the cost of that item at $10,000.00. The remaining items for which plaintiffs seek damages due to poor workmanship were estimated-by Mr. Mun-son, who estimated a cost of $3,322.39 to clean the attic, replace the gutters and damaged aluminum-shutters and paint and clean the bedroom carpet. Mr. Ruffino estimated costs for items not considered by Mr. Munson including replacement of damaged landscaping, building of a chute to remove debris from the attic, repairs to the damaged air conditioning unit and replacement of awnings for a total of $3,025.00. Mr. Ruffino estimates the total cost for the items of damages considered by Mr. Munson, but excluding the roof replacement, at $15,970.00, with $12,845.00 of that amount representing replacement costs of awnings, windows and painting. The court found that since the plaintiffs should not be unjustly enriched by the inclusion of new vinyl siding and gutters, windows and certain other items in Mr. Ruffino’s estimate, the court deducted 30% from the Ruffino estimate.

The trial court stated that it was awarding plaintiff damages for pecuniary loss of $10,000.00 for roof replacement and $8,991.50 for additional defective work. The court awarded an additional $5,000.00 in damages for non-pecuniary losses for the defective work of FDI, for a total award of $23,889.50. The court stated that it did not award the return of the $4,000.00 deposit paid by plaintiffs to FDI based on its finding that the roof materials provided by FDI may be used in the replacement of the roof.

|12FDI now appeals. On appeal, FDI first argues that the trial court erred in disregarding the language of the contract as to the work contemplated to search for the parties’ intent. Citing La. C.C. article 2046, FDI- argues that the words of the contract are clear and explicit, and therefore, the court erred in looking to the intent of the parties for further interpretation. FDI argues that the provision for replacement of “bad wood where necessary” did not contemplate replacement of the substrate as it was not made out of bad wood. In determining that additional support to the substrate was contemplated in the scope of the work, the trial court relied on the fact that the words “scab on” were added after the provision for the replacement of “bad wood where necessary.” We find no error in the trial court’s finding that this section of the contract was ambiguous, and that the addition of the words “scab on” shows that the parties contemplated additional support to the substrate in order to avoid the appearance of an unsightly roof. This assignment of error is without merit.

In the next assignment of error, FDI argues that the trial court erred in failing to mention in its judgment or reasons the unpaid balance of the contract between plaintiff and FDI. It is undisputed that plaintiff paid only $4,000.00 to FDI, and that the contract price totaled $16,988.00, leaving an unpaid balance of $12,988.00. The trial court’s findings that corrections to the substrate were included in the scope of work to be performed by FDI under the contract, and that the only way to correct the “wavy” appearance of the roof caused by FDI’s defective workmanship is to remove the roof, repair the substrate and replace the roof, establish that the 11gcourt found that the value plaintiffs received from their contract with FDI did not exceed the $4,000.00 payment already made to FDI. Because there is support in the record for the trial court’s conclusions, we find no error in the trial court’s failure to allow a credit to FDI for the unpaid balance of the contract.

FDI next argues that the plaintiffs failed to meet their burden of proving the existence of defects in FDI’s workmanship. An owner seeking to recover from a contractor for defective workmanship bears the burden of proving the existence and nature of the defects and that the defects were due to faulty materials or workmanship. Hernandez v. Martinez, 2000-1282 (La.App. 5 Cir. 2/28/01), 781 So.2d 815, 821; La. C.C. article 2769. In this matter, the plaintiff presented evidence establishing that FDI’s installation of a new roof over an uneven substrate and the resulting “wavy” appearance of the roof constituted defective workmanship. Although FDI presented testimony contradicting plaintiffs’ claim of defective workmanship, the trial court’s decision to accept the evidence presented in support of plaintiffs’ claim was not an abuse of discretion. This assignment of error is without merit.

FDI also argues that the credibility of FDI’s expert witnesses outweighed that of plaintiffs’ expert witnesses. The trial court was in the best position to evaluate the credibility of the witnesses, and rendered judgment based on its conclusions. We do not find that the credibility determinations of the trial court were unreasonable. We find no merit in this assignment of error.

| UFDI next argues that the trial court erred in awarding damages for replacement, rather than repair, and in awarding damages for non-pecuniary losses in this case. The standard for reviewing the award of damages for breach of contract is whether the trial court abused its discretion. Hernandez v. Martinez, supra. The record in this case includes evidence supporting the damages awarded by the trial court for pecuniary and non-pecuniary losses. Accordingly, we cannot say that the trial court abused its discretion in the award of damages.

Finally, FDI argues that the trial court erred in failing to accept evidence of damage to plaintiffs’ home allegedly caused by a hail storm in January 2000. At trial, FDI attempted to introduce evidence of the hail storm to show that the inspection by plaintiffs roofing expert, Roy Gross, III, occurred after the hail storm and did not account for the possibility that some of the damage to plaintiffs’ property was caused by that storm. FDI was not allowed to question Mr. Gross about the possibility that the source of the damage was related to the hail storm and the plaintiffs’ insurer’s actions following the hail storm. FDI notes that its expert, Keith Munson, also inspected the property after the 2000 hail storm, and attributed much of the damage to the property to the hail storm. The court disallowed evidence relating to the hail storm, but allowed FDI to proffer the evidence.

The plaintiffs presented sufficient evidence to show that the damages to their property were caused during the time period that FDI worked on the house. In addition to the photographs taken right after the job was finished in late 1997 or early 1998, the evidence also included the expert witness testimony of Mr. Charles lisRuffino, Jr., who inspected the property in 1998, well before the 2000 hail storm. He concluded that the work performed by FDI was not done in a workmanlike fashion. Therefore, any error in not allowing evidence regarding any damage caused to the property by the 2000 hail storm was harmless because of the other evidence in the record regarding the condition of the property prior to the hail storm. This assignment is without merit.

FDI also alleges as error the trial court’s decision that the Essex insurance policy carried by FDI did not provide coverage for the judgment rendered against FDI in this matter. Although the trial transcript shows that counsel for Essex introduced a certified copy of the policy into evidence without objection, the appeal record does not include a copy of the insurance policy at issue. As a court of record, we cannot review FDI’s claims regarding insurance policy coverage when the policy is not in the record before us. Without this evidence, we cannot say the trial court erred in its finding that the Essex policy did not provide coverage in this matter.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . Defendants Paul Lacinak and Alan Cassell were not cast in judgment in this case. FDI states in its brief that Mr. Lacinak was dismissed from this lawsuit, and that Mr. Cassell was never served with plaintiffs’ petition. The appeal record does not contain the dismissal of defendant Lacinak.


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Tommy J. SMITH, Jr.
    No. 09-KA-36.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

| ¡^Defendant Tommy Smith appeals his conviction for theft. On appeal, he assigns two errors of the trial court: insufficient evidence to convict, and that the court erred by allowing the State to present an edited copy of the surveillance tape. For the following reasons, we affirm the defendant’s conviction.

The defendant, along with Bobby A. Smith and Ashley Wolbers, was charged with theft greater than $1000.00, a violation of LSA-R.S. 14:67. Tommy Smith proceeded to trial before a six-person jury, which was held on June 5, 2008. At the conclusion of the trial, a unanimous jury returned a verdict of guilty as charged.-

On June 16, 2008, the court sentenced the defendant to imprisonment at hard labor for a term of five years. In the same hearing, the State filed a multiple | (¡offender bill alleging the defendant to be a second felony offender. The defendant admitted these allegations and his original sentence was vacated and he was re-sentenced, as negotiated, to five years incarceration at hard labor. At the conclusion of the sentencing hearing, the defendant gave notice of his intention to appeal his conviction. The matter is now before the Court on original appeal.

FACTS

Mr. Artie Lawson testified that he was the owner and operator of Motor Home Rentals of Louisiana, a business in Ken-ner, Louisiana. On June 26, 2007, he was on a business trip when he received a call from his sister that the office safe would not open, was jammed, and “looked like someone was fooling with it.” Mr. Lawson spoke with the police and informed them that his safe had contained over $47,000.

Mr. Lawson testified that his business is outfitted with security cameras and that he viewed surveillance footage after he returned from his trip. As shown in this footage, he knew that Shelia (his niece), Manuel (a roofer) Tommy, Bobby, and Ashley, were inside the business on June 26, 2007. Mr. Lawson identified these individuals by first name only. Lawson explained that he allowed Bobby Smith to live in a camper behind the business, and that Bobby performed odd jobs for Lawson. Tommy Smith was Bobby’s brother, but did not work for Lawson. Mr. Lawson stated that he knew that Bobby Smith was incarcerated because he had pled guilty in this case.

Mr. Lawson testified that only his father and sister knew he kept money in this safe. He added, however, that on a previous occasion, “Tommy” had walked into the office and observed him giving out cash from the safe. However, Tommy’s brother Bobby had never been in the office when cash was taken out.

|4Mr. Lawson stated that his business has ten security cameras and that he was able to retrieve what had been recorded on June 26, 2007. He copied the tapes and gave them to the district attorney. The total length of these surveillance tapes was between four to five hours and covered the hours of 11 to 2. In order to make a shorter version of the tape, Mr. Lawson stated that he “cut out the areas where nobody was in.” He testified that the video accurately reflected what happened on June 26, 2007. This condensed tape was admitted into evidence and played for the jury. The three tapes with unedited footage were admitted into evidence but were not played for the jury.

Mr. Lawson described the layout of his premises and stated that his safe was located in an accounting office that only he, his father, and his sister went in. At the beginning of the video surveillance, Mr. Lawson stated that he saw “Tommy,” the defendant, inside. Tommy was not his employee and was not supposed to be there. Neither Tommy nor Bobby had been asked to conduct any repairs with tools during the time he was gone. From the tape, it can be seen that Tommy left with a dolly and went to the warehouse. The tape revealed Bobby and Tommy, together, involved in a great deal of coming and going throughout the business. Mr. Lawson was surprised to see Tommy, accompanied by his brother, in the yard. At one point, Tommy went to the tool bench.

When Mr. Lawson returned from his trip, the safe was not in the position it had been. He also observed that the DVR that recorded surveillance had been shifted. Although his building was equipped with a security alarm, it did not go off that evening. Mr. Lawson explained that while he allowed Bobby to live in a trailer behind the office, he had expressly explained that Bobby and Tommy did not | Bneed to be in the office. Furthermore, Mr. Lawson had in the past instructed Bobby not to leave his brother on the premises when he was not there.

Paul Scamardo, Sr. testified that he was present at the business the day after the incident. Mr. Lawson’s sister asked him to open the safe. He saw the safe, with “bits and particles” on it and pry marks around the door. In investigating, he located a lot of tools out of place throughout the business. Specifically, he observed a pair of pliers and a screwdriver in the room and located a tire iron under a towel rack in the bathroom. He explained that a person can enter this bathroom without being seen on the video camera.

Sheila Marie Slayton testified that Arthur Lawson, III was her uncle. She was working at the business on June 26, 2007. She testified that she knew Bobby and his brother Tommy. She knew Ashley because she was Bobby’s girlfriend. On the date of June 26, 2007, she saw Bobby and Tommy walking in and out a lot. She did not observe Bobby and Tommy the entire day because Ashley convinced her to leave the office to get something to eat. Later, she saw Bobby and Tommy coming out of the front office.

Ashley Marie Wolbers testified that her ex-boyfriend was Bobby Smith. She testified that Bobby Smith committed the theft from the business. She stated that she had pled guilty to being an accessory after the fact in this case. She denied knowing about the theft at the time of its occurrence.

Bobby Smith testified that he was incarcerated at LaSalle Correctional Center because he stole $48,000 from Artie Lawson. He denied asking his brother Tommy to be a lookout while he took the money from the safe. He also denied ever telling his brother that he had taken $48,000. Bobby Smith also stated that his memory of events was impaired because he was on “Xan-bars” at the time.

\ .ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the evidence introduced at trial is insufficient to prove the elements of theft beyond a reasonable doubt.

The constitutional standard for evaluating sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find 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. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Jupiter, 06-93, p. 6 (La.App. 5 Cir. 6/28/06) 934 So.2d 884, 888. The determination of the weight of evidence is a question of fact that rests solely with the trier of fact. State v. Upchurch, 00-1290, p. 4 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 402. If there is a conflict in the testimony, the trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to convict. Id.

The reviewing court may not impinge on the findings of fact except to the extent necessary to guarantee constitutional due process. State v. Mitchell, 99-3342, p. 7, 772 So.2d 78, 83 (La.10/17/00). The trier of fact’s rational credibility calls, evidence weighing, and inference drawing are preserved, because the sufficiency inquiry does not require an appellate court to ask itself whether it |7believes that the evidence at trial established guilt beyond a reasonable doubt. Furthermore, an appellate court does not evaluate the credibility of witnesses and should not overturn a factual determination of guilt. Addison, 00-1730, p. 4, 788 So.2d at 613.

The defendant in brief argues that the evidence against him was circumstantial. Under LSA-R.S. 15:438, “[t]he 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.’ ” This requirement does not establish a standard separate from the Jackson standard, but provides a helpful methodology for determining the existence of reasonable doubt. State v. Arceneaux, 05-338 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 48. In evaluating other possible hypotheses in circumstantial cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of events. The reviewing court evaluates the evidence in the light most favorable to the prosecution and determines if the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

In this case, the defendant was convicted of theft over $500, a violation of LSA-RS. 14:67. Theft is defined as follows:

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

|sTo support a conviction for the crime of theft, the State is required to prove that the defendant misappropriated or took a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken. LSA-R.S. 14:67; State v. Hebrard, 94-410, p. 2 (La.App. 5 Cir. 1/31/95), 650 So.2d 352, 353.

The State may prove the defendant’s guilt by showing that he served as a principal to the crime by aiding another. LSA-R.S. 14:24. A principal to a crime is defined as “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” LSA-R.S. 14:24.

Only those persons who “knowingly participate in the planning or execution of a crime” are principals to that crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428. A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Id. The mental state of one defendant may not be imputed to another defendant. State v. Coleman, 02-345 (La.App. 5 Cir. 9/18/02), 829 So.2d 468, 471.

Mere presence at the scene of a crime does not make one a principal to the crime. State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 269, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. However, “ ‘it is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.’ ” State v. Kirkland, supra at 269, quoting State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225.

In this case, the jury heard testimony that over $47,000 was stolen from Mr. Lawson’s safe at Motor Home Rentals. The jury saw video surveillance tapes that 19revealed the defendant, who was not an employee of the business and who was not supposed to be inside, in the interior of the building on the day the money was stolen. Although the defendant’s brother testified that the defendant did not participate in the theft, the videotape showed activity on the day of the theft by both Bobby and Tommy Smith engaged in a pattern of movement all around the business. The video reveals that for most of this time, the brothers moved around the premises together. In several instances, the video reveals the defendant peering out from a vantage point. From this evidence, the jury had evidence sufficient to conclude that the defendant either participated directly in the theft, assisted in the theft, or was ready to assist in the theft. In light of the testimony and the video surveillance, we find that the jury had sufficient evidence to convict.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the Court erred by allowing the State to present a copy of the surveillance tape when it was not the original tape and it was edited by-Mr. Lawson.

At trial, Mr. Lawson testified that his security cameras recorded about four to five hours of surveillance. At trial, three tapes were introduced as State’s exhibit 3. Because of their length, the state specifically indicated that it did not intend to play the tapes for the jury. In order to shorten viewing time, Mr. Lawson made a shorter version by cutting out those portions where no one appeared. Over the defendant’s objection on the basis of C.E. art. 1002 and 1003, the trial judge allowed the introduction and playing of edited videotape.

The defendant now objects, as he did at trial, to the introduction of a shortened version of the surveillance tape. He contends that this tape was no |1(llonger a “true copy” of the original recording and that it is the original that should have been offered into evidence.

In general terms, before evidence can be admitted, it must be shown that, more probably than not, the evidence is connected to the case. Once such a foundation has been established, the weight to be given the evidence is a question for the jury. State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 388, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000).

In more specific terms, except as otherwise provided, LSA-C.E. art. 1002 requires that the contents of a recording be proved by the original. A duplicate is admissible to the same extent as an original under LSA-C.E. art. 1003 unless a “genuine question is raised as to the authenticity of the original” or if “it would be unfair to admit the duplicate in lieu of the original.” LSA-C.E. art. 1003(1) and (2).

Although not mentioned during the course of trial or by the defendant on appeal, codal provisions address the admissibility of summaries. LSA-C.E. art. 1006 provides that the contents of otherwise admissible voluminous writings, recordings, or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. Furthermore, the question of whether the contents of the recording correctly reflect the contents of the original is an issue for the trier of fact. LSA-C.E. art. 1008.

The article also provides that originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that the originals or duplicates be produced in court. LSA-C.E. art. 1006. In light of the fact that the original tapes were introduced into the record, we find that the originals were available to the defense.

|uThe admissibility of a relevant videotape is largely within the discretion of the trial judge. State v. Johnson, 30,078 (La.App. 2 Cir. 12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. Absent a showing of prejudice, a conviction will not be overturned on the ground that the best evidence was not produced. Id. State v. McGuffie, 42,-069, p. 8 (La.App. 2 Cir. 8/1/07), 962 So.2d 1111, 1116, unit denied, 976 So.2d 1283, 07-2033 (La.2/22/08).

Finally, in the text of his brief on appeal, the defendant argues that the original copy taken straight from the hard drive should have been used at trial. The defendant is not entitled to relief on this claim: had the defendant desired to introduce the original tapes, already in evidence, he need only have played these tapes, which had previously been placed in evidence, for the jury.

ERROR PATENT DISCUSSION

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

The transcript of sentencing in this case shows that the trial court denied the motion for new trial and sentenced the defendant shortly afterwards in the same healing. Pursuant to LSA-C.Cr.P. art. 873, if a motion for new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. There was no express waiver of delays, nor was there an objection to the imposition of sentence.

In State v. Jones, 07-271 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149, this Court noted the general rule that where a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and l^the case remanded for resentencing. This Court also noted that the Supreme Court of Louisiana has held:

Although C.Cr.P. art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.

Id. at 1149-50, quoting State v. White, 404 So.2d 1202, 1204 (La.1981).

In this case, after the denial of his post-trial motions, the defendant was sentenced within statutory limits for theft. In the same hearing, he was re-sentenced, after his admission that he was a second felony offender. The defendant made no contemporaneous objection to his sentence nor does he raise issues on appeal with regard to his sentences. In light of the lack of objection or prejudice, this error is harmless and does not require remand.

Additionally, in resentencing the defendant as a habitual offender, the court ordered that the defendant serve five years at hard labor. The court, however, failed to order the statutory restrictions prohibiting parole or suspension of sentence. LSA-R.S. 15:529.1(G) requires that all habitual offender sentences be imposed without benefit of probation or suspension of sentence. These restrictive provisions are self-operating by operation of LSA-R.S. 15:301.1 and, as this Court observed in the co-defendant’s case, do not require corrective action. Smith, 08-579 at 6, 9 So.3d 238.

Accordingly, the defendant’s conviction is affirmed.

AFFIRMED.

      . Bobby A. Smith pled guilty as charged on February 13, 2008. The conviction and sentence have been upheld by this Court. State v. Smith, 08-579 (La.App. 5 Cir. 2/25/09), 9 So.3d 238.

      . Ashley Wolbers pleaded guilty on June 5, 2008, to a reduced charged of accessory after the fact to theft over $500. Ms. Wolbers admitted the fact of her guilty plea during her testimony in this case. As of the date of this opinion, she has not sought review in this Court.

      .By statute, the maximum grade for the crime is theft in the amount of $500.00 or more. LSA-R.S. 14:67 B(l). There is no separate category for theft of property valued over $1,000. Therefore, theft of property valued over $500 applies in this case. State v. Ramsdell, 06-644, p. 2 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 513.

      . The witness did not specifically state whether these times were AM or PM. The video surveillance footage played for the jury reveals daylight during the entire coverage. The witness also stated that the time stamp began at 11:19 in the morning.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Tyrone RAYMOND.
    No. 08-KA-1204.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Thomas F. Daley, District Attorney, Fortieth Judicial District, Parish of St. John the Baptist, Rodney A. Brignac, Assistant District Attorney, Laplace, Louisiana, for Plaintiff/Appellee.
    Bertha M. Hillman, Attorney at Law, Louisiana Appellate, Thibodaux, Louisiana, Tyrone L. Raymond, In Proper Person, Angola, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JEROME M. WINSBERG, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

L.On July 6, 2004, a St. John the Baptist Parish Grand Jury returned an indictment charging defendant, Tyrone Raymond, with first degree murder, in violation of LSA-R.S. 14:30. He pled not guilty. On May 20, 2008, the State amended the indictment to charge defendant with second degree murder, in violation of LSA-R.S. 14:30.1. He was arraigned on the amended indictment and pled not guilty. On May 20, 21, and 22, 2008, the case was tried before a 12-person jury which found defendant guilty of second degree murder. On June 26, 2008, the trial judge sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

FACTS

On April 23, 2000, at approximately 7:00 a.m., Officer Clay Rauch of the St. John Parish Sheriffs Office was dispatched to Woodland Drive in Laplace regarding a vehicle being parked on a dirt road next to a canal. Upon arrival, Officer Rauch observed a Chrysler New Yorker vehicle, so he “ran the plates” in order to locate its owner. The dispatcher informed him that Janice Fugate was the owner of the vehicle and that her address was 2308 Cambridge Drive. Officers | .¡called the residence, but there was no answer, so they went there and knocked on the door. No one answered, so Officer Rauch left and came back at approximately 7:40 a.m. When he returned, neighbors informed him that Ms. Fugate had been burglarized several times, so she stayed in her back room with the door locked.

Officer Rauch went to the back door and saw that it was ajar, so he called for backup to search the residence. When Officer Terrill St. Martin arrived, he noticed a screwdriver lying on the ground next to the back door. He and Officer Rauch went inside. There were blood smears on the light switches and walls and bloody shoeprints throughout the residence. Officer St. Martin observed that the door of the bedroom had been forced open. Inside the bedroom, they saw Ms. Fugate on the floor face up with a clear plastic bag over her head and an extension cord wrapped around her neck. Her face and head were bruised and swollen. Additionally, Ms. Fugate’s shirt was lifted up, exposing her breasts.

Dr. Fraser Mackenzie performed an autopsy on Ms. Fugate and found that the cause of her death was strangulation by manual and ligature application. He observed that she had a shallow stab wound by her right eye and a deep stab wound in her neck, but neither of those wounds was fatal. During the autopsy, a crime scene technician collected fingernail scrapings from Ms. Fugate’s hands.

Natasha Poe, an expert DNA analyst, testified that she compared the right hand fingernail scrapings from Ms. Fugate with known DNA from Ms. Fugate and defendant. In her opinion, it was 2.31 billion times more likely to be a mixture of DNA from Ms. Fugate and defendant than a mixture of DNA from Ms. Fugate and another unknown individual.

Detective Felix Joseph interviewed defendant who denied any involvement in the homicide. Defendant explained that, on the night of April 22nd, he did not go to work. Instead, he claimed that he spent the night at his friend Kelly Roper’s |4house and that he left Ms. Roper’s house at 4:30 a.m. to go to Joy’s Lounge. According to Detective Joseph, defendant stated that he knew Ms. Fugate, who was his next-door neighbor, but he had only been in her residence a couple of times to help her move furniture.

Detective Joseph interviewed Ms. Roper who initially confirmed defendant’s story. However, when he spoke to Ms. Roper a second time, her story changed. Ms. Roper testified that on April 23rd at 11:00 a.m., she was, in her front yard sitting on a swing and smoking a cigarette when defendant drove up. He was very sweaty and breathing heavily. Ms. Roper noticed that defendant had a couple of fresh scratch marks on his right arm. When Ms. Roper asked defendant what was wrong, he responded that he had gotten into a confrontation with his neighbor, that it had progressed into a fight, and that he had stabbed, choked, and killed her. Defendant explained that he had done that because he was “getting tired” of her and that she often called the police about him. After confessing to Ms. Roper, defendant stayed in her yard for an hour, and they smoked marijuana. Two weeks later, defendant called Ms. Roper and said he was going to California.

Ms. Roper testified that she lied during her first interview with Detective Joseph because she was scared. She decided to tell the truth the second time because the detectives told her that they would charge her with accessory after the fact if she did not. When Detective Joseph interviewed defendant a second time, defendant changed his story and claimed that he went to work the night of April 22nd and got off at 4:30 a.m., taking Ms. Roper out of the picture completely.

After the State rested its case, defendant’s mother, Oradel Henderson, testified that, on April 23rd, when she woke up at 5:30 a.m., defendant was at home. She explained that defendant stayed home that day to take care of his | ^handicapped brother while she and her daughter went to church. She further explained that when she got home from church, defendant was at home.

Defendant testified that, on April 22nd, he got off work at 3:00 a.m. and went home and slept. He woke up and cut his mother’s and Ms. Fugate’s grass between 11:30 a.m. and 12:00 p.m. Later on, Ms. Fugate gave him some money. He went to Ms. Roper’s house at 7:00 p.m. and stayed there until 4:30 a.m. Afterwards, defendant left and went to Joy’s Lounge where he stayed for five or ten minutes, and then he went home at 5:00 a.m. When he arrived, he fell asleep on the floor in his brother’s room. Defendant’s mother woke him between 7:30 and 8:00 a.m. before she went to church, and he stayed home with his brother the entire day on April 23rd, as his mother did not get home from church until after 6:00 p.m. Defendant testified that he and Ms. Fugate got along well, that she never called the police to complain about him, and that he did not kill her. He denied having scratches on his arm and telling Ms. Roper that he killed Ms. Fu-gate.

LAW AND DISCUSSION

In his first assignment of error on appeal, defendant complains that the trial court erred in denying his challenges for cause as to two prospective jurors, Paul Roussel, Jr. and Kent Terrio. As a result, he was forced to use peremptory challenges to excuse those individuals, and he ultimately exhausted his 12 peremptory challenges. The State responds that the trial court did not err in denying defendant’s challenges for cause as to the two prospective jurors at issue. The State further responds that the voir dire as a whole was done in a fair and impartial manner and, therefore, the trial court did not abuse its discretion.

Article I, § 17 of the Louisiana Constitution guarantees that “[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” Prejudice is presumed when the trial court erroneously denies a |r,challenge for cause, and the defendant ultimately exhausts his peremptory challenges. State v. Campbell, 06-0286, p. 70 (La.5/21/08), 983 So.2d 810, 856, cert. denied, — U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Hensley, 04-617, p. 8 (La.App. 5 Cir. 3/1/05), 900 So.2d 1, 8, writ denied, 05-0823 (La.6/17/05), 904 So.2d 683. On appeal, the defendant must show that when the trial court erroneously denied his challenge for cause, he used one of his peremptory challenges curatively to remove that juror, thereby reducing Ms number of peremptory challenges. Campbell, 06-0286 at 71, 988 So.2d at 856.

The record in this case reflects that defendant used peremptory challenges to excuse the two prospective jurors at issue and that he exhausted all of his peremptory challenges. The question on appeal is whether the trial court erroneously denied defendant’s challenges for cause as to those two prospective jurors.

The grounds for a challenge for cause are set out in LSA-C.Cr.P. art. 797 which provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court[.]

Prospective juror Paul Roussel, Jr.

Defendant contends that the trial court erred in denying his challenge for cause as to Mr. Roussel, because he was incapable of serving as an impartial juror 17since he admitted that his relationship with the assistant district attorney and two of the investigators would affect his decision. He also asserts that Mr. Roussel was incapable of serving as an impartial juror because he indicated that he would tend to believe a police officer over someone else. The State responds that Mr. Roussel indicated that he could be a fair and impartial juror.

During voir dire, when the trial judge asked whether any of the prospective jurors knew defense counsel, the assistant district attorney (“ADA”), or the two investigators, Mr. Roussel replied that he knew the assistant district attorney, one of the investigators, and one of defendant’s attorneys. The trial judge asked whether his acquaintance with or association with those people would affect his decision, and Mr. Roussel said, “I think it would, I mean, somebody you know.” The trial judge then asked all of the prospective jurors if their relationships with people connected to the case was so strong that they could not treat both sides fairly. For those who wanted to see her privately, the judge advised that they could approach the bench. Mr. Roussel did not respond, nor did he approach the bench.

Afterwards, defense counsel, Mr. Savage, specifically questioned Mr. Roussel, asking him how well he knew the assistant district attorney and the investigators. Mr. Roussel informed Mr. Savage that defendant’s other counsel, Mr. Acosta, went to school with his oldest daughter and that he had known him for “quite a few years.” Mr. Roussel explained that the investigator, Mr. Cupit, and he both had LSU tickets and saw each other routinely. He also explained that Mr. Cupit’s daughter played softball, that he (Mr. Roussel) was a coach, and that he knew them fairly well. Mr. Roussel stated that he and the assistant district attorney in their younger days played ball together and “things like that.” When asked if his relationship with Mr. Cupit or Mr. Acosta would affect his decision in any way for or against the State, Mr. Roussel stated, “That’s hard to say. I mean, it plays on |syour mind, you know. When you’re hearing something from someone you know I think that bears more weight than from somebody you don’t.” Mr. Savage asked Mr. Roussel if that would influence his decision, and Mr. Roussel replied, “I would think it’s definitely in my mind.”

In challenging Mr. Roussel for cause, defense counsel, Mr. Savage, said that Mr. Roussel knew Mr. Acosta, who was one of the defense attorneys, the assistant district attorney, and the investigators. Defense counsel argued that Mr. Roussel had said that those relationships would influence his decision and that it would pray on his mind as to whether he could be fair to one side or the other. The prosecutor responded that Mr. Roussel never said he could not be fair, and that he did not think anything Mr. Roussel said would give rise to a challenge for cause. The trial judge agreed, stating, “I think he was being very candid and said because of who he knew it might play on his mind, he didn’t say pray, he said play on his mind. And we all know, of course that that’s going to, to play some role but it’s not worthy of a challenge for cause.”

The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney, and the witnesses who may testify at trial. Rather, the law requires that jurors be fair and unbiased. State v. Shelton, 377 So.2d 96, 102 (La.1979). The Louisiana Supreme Court succinctly summarized the law on challenges for cause based on a relationship in State v. Anthony, 98-406, p. 24 (La.4/11/00), 776 So.2d 376, 392, cert denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258, (2000) as follows:

... [T]he mere relationship between the prospective juror and the district attorney does not ipso facto disqualify him from service. The defendant may only challenge the juror if his relationship is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict. The facts must reasonably lead to the conclusion that the | nreIationship would influence the juror in arriving at a verdict. A challenge for cause should be granted, even if the juror declares an ability to remain impartial, when the juror’s responses reveal facts from which bias, prejudice, or impartiality may be reasonably inferred. [Internal citations omitted.]

A trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror. An appellate court does not have the benefit of observing the potential jurors in person to assess the facial expressions and intonations in voice as they answer questions. State v. Bozeman, 03-897, p. 4 (La. App. 5 Cir. 1/27/04), 866 So.2d 1029, 1032, writ denied, 04-0497 (La.7/2/04), 877 So.2d 141. Therefore, this court will not disturb such a decision by the trial judge unless a review of the voir dire as a whole indicates an abuse of discretion. State v. Williams, 02-1188, p. 5 (La.App. 5 Cir. 4/8/03), 846 So.2d 22, 28.

In the instant case, the prospective juror, Mr. Roussel, indicated that he thought his relationships with defense counsel, the ADA, and one of the investigators would influence him, but he did not say whether they would influence him either toward the State or the defense. Additionally, when the trial judge asked the prospective jurors whether there was anyone who could not follow the law, Mr. Roussel did not respond. Mr. Roussel also did not respond when the trial judge asked the prospective jurors whether there was anyone who could not hold the State to its burden of proof, give the defendant the presumption of innocence, find him not guilty if the case was not proven beyond a reasonable doubt, or not hold it against the defendant if he chose not to testify. Further, Mr. Roussel did not respond when the trial judge asked whether there was any reason that the prospective jurors could not be fair to both sides. Mr. Roussel noted that he had previously served as an alternate juror in another criminal case.

|10The Louisiana Supreme Court made it clear in State v. Kang, 02-2812, p. 8 (La.10/21/03), 859 So.2d 649, 655, that courts of appeal, are to give proper deference to the trial court’s findings with respect to voir dire, and that a prospective juror’s responses during voir dire should be viewed as a whole, and not on a piecemeal basis. Viewing Mr. Roussel’s responses as a whole, we do not find that Mr. Roussel reasonably implied bias, prejudice, or inability to render a lawful judgment. Thus, we find that the trial court did not err by denying the challenge for cause of Mr. Roussel based on his relationships with defense counsel, the ADA, and one of the investigators.

Defendant also argues that Mr. Roussel was incapable of serving as an impartial juror because he said he would tend to believe a police officer over someone else.

A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Browning, 06-929, pp. 9-10 (La.App. 5 Cir. 4/11/07), 956 So.2d 65, 72. In the instant case, defendant only based his cause challenge of Mr. Roussel on his relationships with the ADA and one of the investigators, and the trial court based its ruling on that argument alone. Accordingly, defendant did not preserve his other argument regarding Mr. Roussel for appeal. Nevertheless, even if we address this argument, it is without merit.

Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror. Kang, 02-2812 at p. 4, 859 So.2d at 652. However, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a district judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and liability to decide the case impartially according to the law and evidence. Id. at 5, 859 So.2d at 653.

In the present case, when Mr. Savage asked the prospective jurors whether they would give more credibility to the testimony of a police officer than a lay witness, Mr. Roussel stated, “You would think you would tend to believe that person before somebody else.” Mr. Savage responded, “And that’s simply because they’re a police officer, correct?”, to which Mr. Roussel said, “You would think.”

In State v. Stein, 04-23, p. 14 (La.App. 5 Cir. 4/27/04), 874 So.2d 279, 289, writ denied, 04-1345 (La.11/8/04), 885 So.2d 1122, the defendant contended that the trial court erred by denying his challenge for cause of a prospective juror, Mr. Vasseur, because he was acquainted with officers who were State witnesses and was biased in favor of police testimony. This Court found that the trial court did not abuse its discretion in denying the challenge, noting that Mr. Vasseur did not say unequivocally that he would give more weight to a deputy’s testimony because he was an officer. He merely said he ‘ “would assume” ’ he would lean toward bélieving the officer was telling the truth. Id. at 18, 874 So.2d at 291.

In the instant case, Mr. Roussel did not unequivocally state that he would believe a police officer over someone else. He merely said “you would think” you would believe a police officer over someone else, similar to Mr. Vasseur in Stein who said he “would assume” he would lean toward believing an officer was telling the truth. Additionally, Mr. Roussel silently acquiesced when he did not respond to the court’s inquiry as to whether there was anyone who could not hold the State to its burden of proof, give defendant the presumption of innocence, or be fair to both sides.

Based on the entirety of Mr. Roussel’s voir dire testimony and the great deference that a reviewing court should accord to trial court decisions regarding 1 ^challenges for cause, we find that the trial judge did not err by denying the challenge for cause of Mr. Roussel. Prospective juror Kent Terrio

Defendant contends that Mr. Ter-rio was incapable of serving as an impartial juror because he expressed his inability to be fair and impartial if defendant did not testify.

During voir dire, the trial judge advised the prospective jurors that defendant had the right not to take the stand. When the trial judge asked them whether they would hold it against the defendant if he did not take the stand, Mr. Terrio stated, “I, I have a problem with that.” The trial judge told him that he may have a natural inclination to want to hear from the defendant, but that there were reasons why the defendant might be advised not to take the stand. When she asked Mr. Terrio if he would follow the law regarding that issue, he said, “I mean, if it happens while I’m on the jury it’s going to put in my mind he’s, he’s going towards the guilty side to me. That’s me.” The trial judge said, “... you ... cannot follow the law as I give it to you then? Is that ... what you’re saying?” Mr. Terrio responded, “I guess.”

When the prosecutor asked Mr. Terrio if he considered himself to be a law abiding citizen, Mr. Terrio responded affirmatively. However, when the prosecutor said, “So, so you don’t have any problems with following the laws of the State of Louisiana?,” Mr. Terrio replied, “Looks like I do for one.” Mr. Terrio also said, “I’m not saying I’m not going to follow it but it’s going to put in my mind more on the guilty side if he doesn’t take the stand. That’s all I’m saying, I mean.” The prosecutor said they were asking the jurors to listen to the evidence, and Mr. Terrio said he would. Thereafter, Mr. Terrio also said, “I’m not saying, if he doesn’t take the stand I’m not saying I’m going to convict him because of that.” He continued, “But I’m just saying it would put a little, like you said, in my mind, |13why are you not taking the stand. You going [sic] to get prison if you get found guilty. If you innocent [sic] why not take the stand and say what you got [sic] to say?”

When the prosecutor asked Mr. Terrio if he could put aside his normal human curiosity and not let that affect his decision, Mr. Terrio replied, “It’s going to be on my mind. If I hear the evidence I’m going to take the evidence into consideration.” The prosecutor again asked Mr. Terrio if he could accept the fact that the burden of proving the case was on the State. Mr. Terrio stated, “I can accept that’s the way it’s got to go but, I mean, like I said, if I’m, if I’m accused of a crime and I’m innocent I’m, I’m shouting to the top of this roof what I got [sic] to say.” He continued, “That’s, that’s just human nature. Correct me if I’m wrong.” The prosecutor explained that sometimes people don’t take the stand because their lawyer tells them not to or there are other considerations not directly having to do with the case. Mr. Terrio stated, “Sure, I guess that’s possible.”

The prosecutor then asked the prospective jurors whether any of them had a problem sitting in judgment on another human being, and Mr. Terrio responded negatively. He also indicated he would follow the court’s instruction that the State had to prove each element of the crime. Afterwards, the following exchange occurred between the judge and Mr. Terrio:

THE COURT:
All right.
Mr. Terrio, to spite your [sic], your inclination to want to hear what the defendant has to say, if I tell you he doesn’t have to take the stand and that’s the law, you’re becoming a judge now, okay, you’re the judge, are you going to follow the law whether you agree with it or not?
MR. TERRIO: Yes.
THE COURT: Okay. You’re sure?
MR. TERRIO: Yes.

| ^Defense counsel subsequently challenged Mr. Terrio for cause, arguing that Mr. Terrio repeatedly told the court he could not follow the law regarding defendant’s right not to testify. The prosecutor responded that Mr. Terrio, in response to a question from the trial judge at the end, said he could be fair. After a discussion, the trial judge denied the challenge for cause as to Mr. Terrio.

A charge of bias may be removed by the rehabilitation of the prospective juror. State v. Chapman, 410 So.2d 689, 695 (La.1981). A trial judge’s refusal to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, on further inquiry or instruction, the juror has demonstrated the willingness and the ability to decide the case impartially according to the law and evidence. State v. Welcome, 458 So.2d 1235, 1241 (La.1983), cert denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152 (1985).

In the instant case, although Mr. Terrio initially said that he had a problem with defendant not testifying, on further inquiry, he demonstrated the willingness and ability to decide the case impartially according to the law and evidence. Therefore, we find that the trial court did not err by denying the challenge for cause of Mr. Terrio.

In his second assignment of error, defendant asserts that the trial court erred by granting the State’s challenge for cause of juror Donrielle Dennis when there were insufficient grounds to excuse this juror, and by granting the challenge outside the presence of defendant.

During voir dire, Ms. Dennis stated that she lived in Laplace and was single with no children. Ms. Dennis did not respond when the trial judge asked the prospective jurors whether there was anyone who could not follow the law as given to them, hold the State to its burden of proof, give the defendant the presumption |1Rof innocence, find him guilty if the case was proven beyond a reasonable doubt, find him not guilty if the case was not proven beyond a reasonable doubt, or not hold it against the defendant if he chose not to testify. Further, Ms. Dennis did not respond when the trial judge asked whether there was any reason whatsoever that the prospective jurors could not be fair to both sides.

Ms. Dennis was subsequently chosen as a juror and sworn in. Shortly thereafter, Ms. Dennis approached the bench and asked the trial judge if she could speak to her “without the defendant.” The trial judge said, “Okay. Will you all excuse the defendant for a minute?” The transcript reflects that defendant stepped back from “side-bar.” Thereafter, Ms. Dennis indicated that she had been feeling increasingly uncomfortable because she had informed them where she lived. The trial judge reminded her that she had not disclosed her address. Ms. Dennis explained that defense counsel had asked previously if the prospective jurors lived on or near Cambridge and she had responded that she only lived a couple of blocks away. When the trial judge asked defense counsel if that was where the crime occurred, he responded affirmatively. The prosecutor also added that it was where defendant lived. Ms. Dennis repeated twice, “I’m not comfortable with that.” The prosecutor asked her if she would be able to sit and listen to the evidence, and Ms. Dennis said that she was distracted at that point and did not know.

Thereafter, the prosecutor challenged Ms. Dennis for cause. He explained that if that testimony had come out during the regular voir dire, he would have made the cause challenge at that time. When defense counsel, Mr. Savage, said he did not understand her point, the prosecutor reiterated that Ms. Dennis lived in close proximity to defendant’s residence and the crime scene. Mr. Savage objected, but the trial judge granted the State’s challenge for cause of Ms. Dennis.

|1fiThe record reflects that Ms. Dennis was very concerned for her safety since she had informed the court that she lived near defendant’s residence and the crime scene. The prosecutor noted, “This woman is freaking out over here.” The trial judge, who had the benefit of observing Ms. Dennis’ facial expressions and intonations in voice, may have been concerned that Ms. Dennis’s impartiality might be affected. We note that the entire jury panel had not yet been selected when Ms. Dennis approached the bench with her concerns.

As stated above, the trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror, and the appellate court will not disturb such a decision unless a review of the voir dire as a whole indicates an abuse of discretion. Williams, 02-1188 at 5, 846 So.2d at 28. Our review of the record does not reveal that the trial judge abused her discretion in granting the challenge for cause of Ms. Dennis.

Defendant further argues that the trial court erred by granting the State’s challenge for cause of Ms. Dennis outside his presence.

LSA-C.Cr.P. art. 831 A(3) generally provides that a defendant charged with a felony shall be present at the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror. Nevertheless, the right conferred by LSA-C.Cr.P. art. 831 A(3) is not absolute and may be tempered by exigent circumstances arising at trial. State v. Hampton, 98-2605, p. 2 (La.5/28/99), 737 So.2d 699, 700. In addition, an accused may waive his presence by not objecting to his absence from an Article 831 A(3) hearing, as required under the general contemporaneous objection rule. LSA-C.Cr.P. art. 841.

In the instant case, neither defense counsel nor defendant lodged a contemporaneous objection to defendant’s exclusion from the bench conference. [ 17LSA-C.Cr.P. art. 841. As such, the issue was not preserved for appeal. However, even if we consider defendant’s argument, it is without merit.

In State v. Hampton, 99-2605 at 1, 737 So.2d at 700, the trial court excluded the defendant from a meeting in chambers during which a juror expressed anxiety over the possibility that defendant “might come after” her or “get somebody to come” after her if he was found guilty. After a colloquy in which defense counsel participated, the trial court allayed the juror’s fears and retained her on the panel over defense objection. The Louisiana Supreme Court found that defendant’s presence in chambers would likely have forestalled any inquiry into the juror’s emotionally charged concerns and would thereby have thwarted, not advanced, the purpose of the hearing to determine the juror’s fitness to continue on the panel. The Court noted that the trial court made sure of counsel’s presence to protect defendant’s interests and found that, under the circumstances, there was no reversible error in excluding defendant as a matter of trial exigency. Id., 98-2605 at 1-4, 737 So.2d at 700-701.

In the instant case, defense counsel participated in the bench conference during which Ms. Dennis expressed anxiety over concerns for her safety since she had informed the court that she lived in close proximity to the crime scene and defendant’s residence. As in Hampton, if defendant had been present at that bench conference, it would likely have forestalled any inquiry into the juror’s emotionally charged safety concerns and would thereby have thwarted, not advanced, the purpose of the hearing. Additionally, as in Hampton, defense counsel was present at the bench conference to protect defendant’s interests. In light of the foregoing, we find that the trial court did not err by meeting with Ms. Dennis outside the presence of defendant and subsequently granting the State’s challenge for cause. Accordingly, this assignment of error is without merit.

11¡¡In his third assignment of error, defendant argues that the trial court erred by excusing Dynell Cook from the jury on the second day of trial. He contends that although Mr. Cook asserted that he recognized defendant’s mother, he stated that this would not affect his ability to be fair and impartial.

The record reflects that the jury panel was sworn, the indictment was read, and the trial judge made comments to the jury. The prosecutor and defense counsel then gave opening statements. The next day, the trial judge asked that they convene outside the presence of jury, except for Mr. Cook. The trial judge informed everyone that the day before, after everyone had left the courtroom, she received information from the bailiff that Mr. Cook wanted to talk to her about a problem, and she asked that it wait until the next day. Mr. Cook then stated that he wanted to let the court know that he recognized defendant’s mother because her sister lived across the street from his mother. Mr. Cook stated that he realized this the day before when they all came back in as a panel and heard the attorneys give their opening statements. Mr. Cook insisted, however, that he had never met defendant’s mother. When the trial judge asked if the fact that he had seen defendant’s mother would interfere with his ability to be fair and impartial, he responded negatively.

After Mr. Cook exited the courtroom, the prosecutor said that he needed to be removed from the jury, because a potential juror who was familiar with the defendant or any member of his family was a very important consideration to the State in exercising its peremptory challenges. He noted that he could think of at least seven people he used his peremptory exceptions on that he would have let stay on the jury before accepting Mr. Cook. The prosecutor concluded by saying that he was denied his ability to use his peremptory exceptions because of Mr. Cook’s lack of forthrightness at the time of jury selection. Defense counsel |iaobjected to Mr. Cook’s removal, noting that Mr. Cook did not even realize who. defendant’s mother was until he saw her at the end of the day. He argued that the relationship was too tenuous to remove Mr. Cook and that Mr. Cook had said he could still be fair.

The trial judge said what bothered her was that defendant’s mother was sitting on the left side of the courtroom the entire day before within Mr. Cook’s view while he was being questioned. She did not know what happened to make Mr. Cook suddenly tell them that he knew who defendant’s mother was. The trial judge seemed disturbed that Mr. Cook never met the woman other than seeing her somewhere, but he now knew that she was defendant’s mother. The trial judge agreed with the prosecutor that he probably would have challenged Mr. Cook if given the chance to do so. She then stated that she was going to remove Mr. Cook and replace him with an alternate, and defense counsel noted his objection.

If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course. LSA-C.Cr.P. art. 796. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties. LSA-C.Cr.P. art. 789.

In State v. Derouselle, 99-3283 (La.4/28/00), 761 So.2d 1269, the trial court learned on the second day of trial that a juror had failed to reveal a potential source of bias during voir dire, despite questions specifically designed to elicit the information as an aid to the State’s exercise of its challenges. The Louisiana Supreme Court held that the trial court had the discretion to replace a juror with an alternate upon finding that the juror had become unable to perform or disqualified from performing his or her duty under LSA-C.Cr.P. art. 789. The Court noted that | j>nthe trial court expressed doubts about the candor and veracity of the juror and concluded that, under these circumstances, removing the juror because of doubts raised by her lack of candor under oath about her competency to serve impartially, and replacing the juror with an alternate, represented the proper exercise of the trial court’s discretion. Id., 99-3283 at 1-2, 761 So.2d at 1270.

In the instant case, as in Derouselle, the juror at issue failed to reveal a potential source of bias during voir dire despite questions designed to elicit information as an aid to the State’s exercise of its peremptory and cause challenges. In both cases, the prosecutors were frustrated because they said they would have excused those jurors had they known that information. In this case, as in Derouselle, the juror shared that information with the court on the second morning of trial. Also, the trial judges in both cases expressed doubts about the candor and veracity of the jurors for their failure to reveal potential biases.

Considering the foregoing, we find that the trial court did not err in dismissing Mr. Cook from the jury and replacing him with an alternate. Based on the caselaw, removing Mr. Cook because of doubts raised by his lack of candor under oath about his ability to serve impartially, and replacing him with the alternate, was a proper exercise of the trial court’s discretion. Accordingly, this assignment of error is without merit.

In his fourth assignment of error, defendant contends that the trial court erred by charging the jury on the crimes of rape, robbery, and kidnapping because there was no evidence to support these crimes. The State responds that, although some jury instructions at issue were read by mistake, that alleged error had no effect on the jury’s verdict given the overwhelming weight of the evidence.

Prior to trial, defendant filed a motion for bill of particulars asking if the State intended to prove at trial certain felonies listed in the first degree murder | g1 statute, including aggravated kidnapping, second degree kidnapping, armed robbery, first degree robbery, and simple robbery. The State indicated in its response that it only intended to prove that defendant was engaged in armed robbery at the time of the offense.

When the trial judge read the amended indictment to the jury at the beginning of trial, she read the entire second degree murder statute, including every enumerated felony listed in LSA-R.S. 14:30.1 A(2)(a). However, she said that they would limit the felonies listed in that statute to the appropriate ones later on. During opening statements, the prosecutor said that he had to prove that defendant either intended to kill or inflict great bodily harm, or that defendant killed the victim during an armed robbery, an attempted rape, or an aggravated burglary.

After court was adjourned on the second day of trial, a charge conference was held. During that conference, the trial judge, defense counsel, and the prosecutor discussed removing the sections of the second degree murder statute that were inapplicable to the instant case. The prosecutor argued that perpetration or attempted perpetration of aggravated rape was applicable; however, defense counsel disagreed, asserting there was no evidence that a rape occurred. The prosecutor mentioned that the victim’s shirt was lifted up and her breasts were exposed, as evidence of an attempted rape. The prosecutor indicated it was up to the jury to decide whether attempted rape was proven, and the trial judge agreed.

The prosecutor argued that the entire second degree murder statute could be read to the jury, but, for judicial economy, he was willing to remove some sections, 122Íncluding aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, cruelty to juveniles, and terrorism. He said, however, that he wanted all the robberies to remain. Defense counsel objected to the rapes and robberies being included. The trial judge noted his objection, but stated that there was some testimony regarding those crimes and, therefore, it was a jury call.

During closing argument, the prosecutor argued that the evidence showed defendant had the intent to kill or to inflict great bodily harm. He also argued that, even if the jury did not find that he did, they could still find him guilty of second degree murder, since there was evidence that he committed aggravated burglary, an armed robbery by taking the victim’s car, or possibly an attempted rape.

After closing arguments, the trial judge read the jury instructions to the jury. During the reading of the second degree murder statute, the trial judge stated, among other things, that second degree murder was the killing of a human being when the offender was engaged in the perpetration or attempted perpetration of aggravated or forcible rape, aggravated burglary, armed robbery, first and second degree robbery, or simple robbery, even if defendant had no intent to kill or inflict great bodily harm. The definitions of those crimes were read as well. However, when the trial judge gave additional instructions, she stated:

Or in order to convict the defendant of second degree murder, you must find:
That the defendant killed the victim while engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated burglary, aggravated kidnapping, second degree kidnapping ...

Thus, the trial judge added the crimes of aggravated kidnapping and second degree kidnapping when she read this part of the jury instruction.

An erroneous jury instruction is subject to harmless error review. State v. Eskano, 00-101, p. 15 (La.App. 5 Cir. 1/30/01), 779 So.2d 148, 155. The | ¡^appropriate standard for determining harmless error is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the instant trial was surely unattributable to the error.” Id.

In the instant case, even if the trial judge erred by charging the jury on the crimes of rape, robbery, or kidnapping, any error was harmless. The record shows that the guilty verdict was amply supported by the evidence, and the jury charge did not contribute to the verdict. The extent and severity of the victim’s injuries showed that defendant had the specific intent to kill or inflict great bodily harm. Additionally, there was ample evidence of aggravated burglary. Accordingly, this assignment of error is without merit.

In his final assignment of error, which he raises pro se, defendant argues that the trial court erred by allowing the jury’s non-unanimous verdict of 11 to one.

LSA-C.Cr.P. art. 782 provides in pertinent part that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to reach a verdict.” In State v. Belgard, 410 So.2d 720, 726 (La.1982), the Louisiana Supreme Court explained that the United States Supreme Court has upheld the validity of non-unanimous jury verdicts for 12-person juries, and that “[t]his court has consistently held C.Cr.P. 782 does not violate the Sixth or Fourteenth Amendments to the United States Constitution.” Recently, in State v. Bertrand c/w State v. Chretien, 08-2215 c/w 08-2311, pp. 9-10 (La.3/17/09), 6 So.2d 738, the Louisiana | ¡.¿Supreme Court reversed the district court, which had held Article 782 was unconstitutional, and stated:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury-verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

Based on the foregoing, the trial court did not err by allowing the jury’s non-unanimous verdict of 11 to one. Thus, this assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . LSA-R.S. 14:30.1 A(2)(a) provides that second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

      . LSA-R.S. 14:60 provides in pertinent part that, "Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or
      (3) Commits a battery upon any person while in such place, or in entering or leaving such place.


author: CLARENCE E. McMANUS, Judge.

text:
    Michael DUNN and The Class of Similarly Situated Persons Kenner Fire Fighters Associations Local 1427 L.A.F.F. v. CITY OF KENNER.
    No. 08-CA-690.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Gilbert R. Buras, Jr., Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Alvin J. Bordelon, Jr., Bordelon & Ther-iot, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

| ¡¿Plaintiffs have appealed the trial court’s judgment granting the City of Ken-ner’s exception of lis pendens, which dismissed plaintiffs’ suit without prejudice. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On November 20, 2007, Michael Dunn, on behalf of himself and a class of similarly situated employees of the City of Kenner Fire Department and of the Kenner Fire Fighters Association Local 1427 I.A.F.F., filed suit against the City of Kenner alleging the miscalculation of wages. The plaintiffs also filed a motion to certify class.

In response to the plaintiffs’ petition, the City of Kenner filed a declinatory exception of lis pendens and a peremptory exception of prescription. In its exception of lis pendens, the City argued this lawsuit replicates the suit previously filed by plaintiffs on December 12, 2002 in the Twenty-Fourth Judicial District Court entitled Michael Dunn and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 I.A.F.F. v. City of Kenner, District Court [¡^number 588-802. The City referred to the first lawsuit as “Dunn I”, and this current lawsuit as “Dunn II”.

In support of its exception of lis pen-dens, the City argued that the parties, causes of action and claims raised in both Dunn I and Dunn II are the same. Further, the City argued that both lawsuits are based on the same transactions and occurrences. Therefore, the City argued Dunn II must be dismissed based on the exception of lis pendens. In its exception of prescription, the City argued Dunn II was filed more than three years after the discovery of the alleged wage calculation errors, therefore, Dunn II is prescribed.

In support of both exceptions, the City argued the plaintiffs filed Dunn II because the trial court found the plaintiffs had abandoned their first lawsuit, Dunn I, finding no steps in the prosecution were taken for more than three years. The City argued Dunn II was an attempt by plaintiffs to resuscitate the lawsuit that was deemed abandoned.

At the time the City’s exceptions were filed, the trial court had denied the plaintiffs’ motion for new trial in Dunn I and the appeal delays had not yet expired. Thereafter, on February 7, 2008, plaintiffs filed an appeal with this Court in Dunn I arguing the trial court erred in dismissing their claims because the lawsuit was abandoned since no steps were taken in the prosecution of the case for three years.

On March 14, 2008, the trial court held a hearing on the City’s exceptions of lis pen-dens and prescription, as well as the motion to certify class, in Dunn II. The trial court issued a judgment March 19, 2008, granting the City’s declaratory exception of lis pendens and dismissing plaintiffs’ suit without prejudice, at plaintiffs’ cost. The trial court also dismissed the exception of prescription and the Rmotion to certify class finding both were rendered moot by the judgment dismissing the suit on the exception of lis pendens.

Plaintiffs now appeal this judgment arguing the trial court erred in granting the exception of lis pendens. We affirm the trial court’s judgment granting the exception of lis pendens and dismissing all claims of plaintiffs without prejudice.

DISCUSSION

The City filed its exception of lis pen-dens in Dunn II, pursuant to La. C.C.P. art. 925. La. C.C.P. art. 531 applies to determine when an exception of lis pen-dens is appropriate and states, in part:

When two or more suits are pending in a Louisiana court or courts, on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.

We agree with the trial court that the City’s exception of lis pendens was properly granted because Dunn I and Dunn II are two suits pending in Louisiana courts that are based on the same transaction or occurrence and are between the same parties in the same capacities.

First, we note that on March 26, 2009 this Court reversed the trial court’s judgment in Dunn I, finding plaintiffs’ claims had not been abandoned. Dunn v. City of Kenner; 08-378 (La.App. 5 Cir. 3/26/09), 2009 WL 792892. This Court remanded the matter to the trial court for further proceedings. Therefore, Dunn I remains a pending lawsuit in the trial court. Further, at the time the trial court granted the City’s exception of lis pendens in Dunn II, Dunn I was still a pending suit in this Court. Thus, there were two suits pending in Louisiana courts.

Next, both lawsuits in Dunn I and Dunn II allege the City failed to include state supplemental pay in the calculation of longevity pay, holiday pay, or overtime pay. Therefore, both lawsuits are based on the same transaction or occurrence. | ¡Additionally, Dunn I and Dunn II are between the same parties in the same capacities. In Dunn I, the trial court granted a motion to certify class and defined the class as:

All present and former employees of the Kenner Fire Department employed between the years 1981 through the present for whom the City of Kenner failed to include state supplemental pay in the calculation of longevity pay, holiday pay or overtime pay.

In Dunn II, the plaintiffs’ petition contained the same description of the plaintiff class. Further, both Dunn I and Dunn II listed the City of Kenner as the defendant. Therefore, we find Dunn I and Dunn II involve the same parties in the same capacities.

Since all requirements of La. C.C.P. art. 531 have been met, we find the City of Kenner may have the second suit, Dunn II, dismissed pursuant to an exception of lis pendens. Thus, we find the trial court correctly granted the City’s exception of lis pendens in Dunn II.

Accordingly, we affirm the trial court’s judgment granting the City’s exception of lis pendens.

AFFIRMED.

      . For the purposes of this appeal, we will also refer to these lawsuits as Dunn I and Dunn II.