source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jermaine CARTER.
    No. 13-KA-94.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Thomas F. Daley, District Attorney, Philip Prescott, Assistant District Attorney, Edgard, Louisiana, for Plaintiff/Ap-pellee.
    Prentice L. White, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.

      Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡.Defendant, Jermaine Carter, appeals his convictions for first degree robbery and attempted first degree robbery. For the following reasons, we affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

On January 17, 2012, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Jermaine Carter, with armed robbery with a firearm, in violation of LSA-R.S. 14:64 and 14:64.3. Defendant was arraigned and pled not guilty. On March 12, 2012, the district attorney amended the bill of information, adding a second charge of armed robbery with a firearm. Defendant pled not guilty to the amended bill of information.

Trial of this matter commenced on June 19, 2012. On June 20, 2012, the jury returned unanimous responsive verdicts of guilty of first degree robbery on |scount one, in violation of LSA-R.S. 14:64.1, and guilty of attempted first degree robbery on count two, in violation of LSA-R.S. 14:27:64.1.

On June 22, 2012, the State filed a multiple offender bill of information, alleging defendant to be a third felony offender. On August 20, 2012, after a hearing on the multiple bill, the trial court adjudicated defendant a third felony offender. The trial court sentenced defendant as a third felony offender on both counts. On count one, defendant was sentenced to 30 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count two, defendant received a concurrent sentence of 15 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appeals.

FACTS

Mr. Vu Tran, the victim, testified that in January of 2012, he was employed at Lynn’s Grocery in Reserve, Louisiana. Around noon on January 5, 2012, defendant, who was known to Mr. Tran as a regular customer of Lynn’s, entered the store, demanded vodka and cigarettes, and refused to pay. Defendant then said, “if anybody has something to say, I got this for them.” At that point, defendant reached in his pocket and then placed a gun on the counter. Mr. Tran, who was behind the counter and operating the register, complied with defendant’s demands and relinquished the items without receiving payment.

Later that same day, at approximately 2:00 p.m., defendant returned to the grocery and requested beer. As Mr. Tran bagged the beer and asked defendant for payment, defendant pulled a gun from his back pocket and pointed it at Mr. Tran’s |4face. According to Mr. Tran, defendant then demanded, “Give me my shit before I shoot somebody.” Defendant then took the beer without paying for it.

The next morning Mr. Tran notified the police. In the course of the investigation, Mr. Tran gave a statement to the police, which was introduced into evidence at trial. In his statement, Mr. Tran indicated that defendant entered the store three times on January 5, 2012. The first time, defendant, in an intimidating and threatening manner, threw a gun on the counter and demanded beer and cigarettes. The victim complied and gave defendant the items without receiving payment. Defendant returned approximately one hour later, brandished a handgun, pointed it at the victim’s face, and took two beers without payment. According to Mr. Tran, defendant returned a third time and continued to threaten and intimidate the victim.

The grocery store is equipped with surveillance cameras, which recorded the incidents on January 5, 2012. The video recordings do not include audio.

Video footage of the first incident shows defendant approach the counter behind which the victim was operating the register with a bottle in his hand. Defendant was speaking to the victim, gesturing, and walking around near the counter. He then put an object on the counter, which appeared to be a gun. Mr. Tran pushed the object back to defendant. Thereafter, the video shows that Mr. Tran handed a pack of cigarettes to defendant and defendant walked away from the counter while continuing to talk to Mr. Tran.

Video footage of the second incident depicts defendant and several other patrons near the counter. Defendant placed two beers on the counter, while gesturing and talking with the victim and other patrons. The victim bagged the beers. Moments later, defendant pulled from his back pocket what appeared to be |Ba handgun and pointed it at the victim’s face. The victim ducked, and defendant put the gun back in his pocket and continued talking and gesturing. He then grabbed the beers from the counter without payment and conversed with other patrons in the store. The victim continued to serve the next patron. The defendant then returned to the counter, continuing to talk and gesture, and then shook hands with the victim before exiting the store. Although the video footage provided does not show defendant leaving the store with the beers, Mr. Tran testified that defendant did leave the store with the beers.

LAW AND DISCUSSION

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Since defendant submits a claim of insufficient evidence in his third assignment of error, this issue will be addressed first.

In defendant’s third assignment of error, he argues that the evidence was insufficient to support the guilty verdicts of first degree robbery and attempted first degree robbery. Specifically, defendant contends that the State failed to prove he took something of value and that he was armed with a handgun. He also contends that the video evidence failed to show that either Mr. Tran or any of his customers felt threatened by defendant’s eccentric behavior. Conversely, the State maintains the evidence was sufficient to support defendant’s convictions.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a | firational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under this Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Reed, 11-507, p. 10 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-0644 (La.9/14/12), 97 So.3d 1014. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert, denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915, p. 11 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La.1/30/09), 999 So.2d 745.

|7In the present case, defendant was charged with two counts of armed robbery with a firearm and ultimately convicted of the responsive verdicts of first degree robbery, in violation of LSA-R.S. 14:64.1, and attempted first degree robbery, in violation of LSA-R.S. 14:27:64.1.

First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. LSA-R.S. 14:64.1; State v. Cam-brice, 10-26, p. 10 (LaApp. 5 Cir. 4/26/11), 64 So.3d 363, 370-71, writ denied, 11-1181 (La.3/23/12), 84 So.3d 568. To support a conviction for first degree robbery, the State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim’s belief was objectively reasonable under the circumstances. Cambrice, 10-26 at 10, 64 So.3d at 370. The statute excludes unreasonable panic reactions by the victim, but otherwise allows the victim’s subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery. Id., 10-26 at 10-11, 64 So.3d at 370. Direct testimony by the victim that he or she believed the defendant was armed, or circumstantial inferences arising from the victim’s immediate surrender of his or her personal possessions in response to the defendant’s threats, may support a conviction for first degree robbery. Id., 10-26 at 11, 64 So.3d at 370-71.

In the instant case, the firearm used in the robbery was not recovered or produced at trial. However, the production of a weapon, or other physical evidence, is not paramount, even in an armed robbery prosecution, if the State’s witnesses can otherwise establish, by their observations at the crime scene, all elements of the offense charged beyond a reasonable doubt, including the fact that |sthe perpetrator did have and make use of a dangerous weapon. Cambrice, 10-26 at 12, 64 So.3d at 371; State v. Calvin, 00-1505 (La.App. 5 Cir. 2/28/01), 781 So.2d 827, 832, writ denied, 01-1112 (La.1/4/02), 805 So.2d 1182. More importantly, in a conviction for first degree robbery, the State is only required to prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim’s belief was objectively reasonable under the circumstances. Cambrice, 10-26 at 13, 64 So.3d at 372.

Regarding defendant’s first degree robbery conviction, at trial and in his statement to police, Mr. Tran stated that defendant pulled a gun from his back pocket, pointed it at Mr. Tran’s face, and took two bottles of beer without payment. The surveillance footage corroborates this, as it depicts defendant pointing what appears to be a handgun at the victim and taking the beer without payment. In light of the victim’s testimony and the surveillance footage, Mr. Tran’s subjective belief that defendant was armed with a dangerous weapon was objectively reasonable under the circumstances. Additionally, the bottles of beer taken from the grocery constitute things of value. Although defendant argues that the video does not show that he took the beer from the store, Mr. Tran testified that defendant did, in fact, take the beer from the store.

The jury was presented with the evidence and clearly found Mr. Tran to be credible. Mr. Tran’s testimony shows that he believed defendant was armed and the evidence shows that his belief was objectively reasonable under the circumstances. Given Mr. Tran’s testimony and the video evidence presented at trial, the evidence was also sufficient to prove the charged offense of armed robbery with a firearm, though the trier of fact was at liberty to return the responsive verdict of first degree robbery. See Cambrice, 10-26 at 13-14, 64 So.3d Rat 372; see also State v. Thomas, 43,783, p. 8 (La.App. 2 Cir. 1/14/09), 2 So.3d 1181, 1185, writ denied, 10-130 (La.12/17/10), 51 So.3d 22.

Thus, viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact would have found defendant guilty of first degree robbery beyond a reasonable doubt.

With respect to defendant’s attempted first degree robbery conviction, Mr. Tran testified at trial that defendant entered the store, demanded vodka and cigarettes, and placed a gun on the counter. Mr. Tran complied with defendant’s demands and gave him the items without receiving payment. The video of this incident is consistent with Mr. Tran’s testimony. Although defendant argues that the video does not show any sign of fear from Mr. Tran and that defendant did not threaten anyone, Mr. Tran testified that he was in fear for his life and did feel intimidated and threatened. The jury apparently believed Mr. Tran’s testimony.

Considering the evidence in the light most favorable to the prosecution, we find that any rational trier of fact would have also found defendant guilty of attempted first degree robbery beyond a reasonable doubt. Accordingly, this assignment of error is without merit.

In defendant’s first assignment of error, he argues that the prosecutor’s improper questioning of potential jurors during voir dire violated defendant’s Sixth Amendment right to a fair and impartial trial. He contends that the prosecutor’s questions were impermissibly specific to the facts of this case. The State responds that the challenged voir dire examination was not improper.

| inDuring voir dire, the prosecutor was explaining the elements of the charged offense and the following discussions occurred:

[STATE]: That word “anything” is interesting. You know, most people, when they think of Armed Robbery, they think of what? They think of money. Like robbing a bank — But anything, in this case, really does mean anything. Because in this case it means beer, vodka, and cigarettes. That’s anything. Okay? So Armed Robbery applies to those things as well as to money.
[DEFENSE]: Your Honor, I object. This is inappropriate argument during voir dire.
[STATE]: Just want to make—
[DEFENSE]: He’s arguing—
[STATE]: I want to make sure they understand—
[DEFENSE]: — one of the elements of the proposed crime.
[STATE]: — the definition of the crime.
[COURT]: Well, I think he’s stating what the elements of the crime and the definition of anything of value.
[DEFENSE]: Your Honor, he’s stating three things that are supposedly taken in, in this, in this transaction.
[COURT]: Okay. I’ll note your objection. Let’s move on. Let’s be more general.
[STATE]: Now, on this definition of Armed Robbery with a Firearm, taking of anything, does anybody disagree with any part of this crime and think that that’s wrong? Does anybody feel like, oh, you know, Armed Robbery should be money. Yes, sir?
[PROSPECTIVE JUROR]: When you put up three things that is considered and I think that because of those three things that, you know, I, I want to be—
[STATE]: Pardon me? What did you—
|„[PROSPECTIVE JUROR]: Because of those three—
[STATE]: Uh huh.
[PROSPECTIVE JUROR]: — that you put up there, and I have to make a decision on that with an Armed Robbery,—
[STATE]: Uh huh.
[PROSPECTIVE JUROR]: — I’d rather be excused.
[PROSPECTIVE JUROR]: ... I’d rather be excused because of those three would come under the, the, right, of the armed robbery. Correct?
[PROSPECTIVE JUROR]: Because of those simple things that I, I feel in my heart, as, as you was elaborating, that one of those outlets might be a part of what he did. I don’t know. I don’t know anything about the case.
[DEFENSE]: And this is what I was concerned about, Judge. Now we’ve got [the prosecutor] soliciting votes based upon these three items that he has put up on the screen. That’s exactly what State versus Thibodeaux warns about.
[DEFENSE]: Note my objection, Your Honor.
[COURT]: I’ll note your objection.

This prospective juror was subsequently struck for cause by the State.

The Sixth Amendment of the United States Constitution guarantees the accused the right to a trial by an impartial jury. State v. Nelson, 09-807, p. 4 (La. App. 5 Cir. 3/23/10), 39 So.3d 658, 661. Included in this right to an impartial jury is the right to an adequate voir dire to identify unqualified jurors. United States v. Beekner, 69 F.3d 1290, 1291 (5th Cir. 1995). “The court, the state, and the | ^defendant shall have the right to examine prospective jurors.” LSA-C.Cr.P. art. 786. The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. LSA-C.Cr.P. art. 786; State v. Mumy, 375 So.2d 80, 82-83 (La.1979).

Although a court has discretion to restrict voir dire, it must nevertheless afford the attorneys wide latitude in examining prospective jurors as a means of giving effect to an accused’s right to a full voir dire. State v. Thibodeaux, 98-1673, p. 8 (La.9/8/99), 750 So.2d 916, 924, cert, denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Thus, while a trial court has control over the scope of jury selection and may limit voir dire examination accordingly, the limitations may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and for the intelligent exercise of peremptory challenges. Id. After all, the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. Mumy, 375 So.2d at 82.

Nevertheless, Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case. Thibodeaux, 98-1673 at 9, 750 So.2d at 924. Voir dire examination may not encompass unlimited inquiry into all possible prejudices of prospective jurors, nor their opinions on the evidence to be offered at trial, nor hypothetical questions and questions of law which call for any prejudgment of supposed facts. State v. Bell, 477 So.2d 759, 766 (La.App. 1 Cir.1985), writ denied, 481 So.2d 629 (La. 1986). However, it is permissible for voir dire questions to “reasonably explore the juror’s potential prejudices, | ^predispositions or misunderstandings relevant to the central issues of the particular case.” State v. Duplessis, 457 So.2d 604, 606 (La.1984).

In State v. Williams, 615 So.2d 1009, 1016-17 (La.App. 1 Cir.1993), writ denied, 619 So.2d 543 (La.1993), the First Circuit found no abuse of the trial court’s discretion in permitting the prosecutor to describe particular facts of the case in an effort to explain the law of principals. At best, the court found, any error was harmless. Id., 615 So.2d at 1017. The court reasoned:

Clearly, the context in which the comments at issue were made disclose the prosecutor was explaining the law of principals to the prospective jurors and questioning them as to their understanding of the application of that law in an apparent effort to discover bases for challenges for cause and to secure information for the State’s intelligent exercise of peremptory challenges. Although we are troubled by a portion of the comment, i.e., [an accomplice] having been with [the defendant] when this murder occurred, the comments at issue are otherwise within the proper scope of voir dire. While this portion of the comment was ill-advised, we cannot say it reasonably might have contributed to the conviction. Accordingly, any error occasioned thereby is harmless.

Id.

See also State v. Hall, 616 So.2d 664, 666 (La.1993), in which the Louisiana Supreme Court found that the trial court had abused its discretion when it restricted “defense counsel’s examination on issues of law, such as elements of the offense, reasonable doubt and specific intent.” Id., 616 So.2d at 669. The court noted that a “trial judge’s limitation of the defense’s questioning to whether the jurors would accept the law as given has never been favored in our law.” Id.

In the instant case, the facts were depicted in surveillance footage and were largely undisputed. Thus, the case turned on the application of law. The prosecutor’s references to the stolen items were part of his explanation of an element of the charged offense, namely, “anything of value,” and his questioning of the prospective jurors as to their understanding of that element in the context of 114the instant case. This appears to have been an effort to discover bases for challenges for cause and to secure information for the State’s intelligent exercise of peremptory challenges. This effort proved effective as the State successfully challenged for cause one prospective juror who informed the court that he would be unable to apply the law to the facts of the instant case.

The prosecutor’s questions regarded an element of the charged offense and were posed for the apparent purpose of determining whether jurors could apply that element. We find no abuse of the trial court’s discretion in allowing the prosecutor to question prospective jurors regarding the definition of “anything of value,” as it was an element of the charged offense. Although the prosecutor’s references to evidence specific to this case may have been ill-advised, we cannot say that it reasonably may have contributed to the conviction and any such error occasioned thereby is harmless. Accordingly, this assignment of error is without merit.

In defendant’s second assignment of error, he argues that the trial court erred in denying his motion for a new trial when defense counsel presented credible evidence that two jurors had fallen asleep during the proceedings. The State, citing State v. Cass, 356 So.2d 396, 398 (La.1977), responds that the trial court did not err in denying defendant’s motion for new trial because he did not show that the jurors, even if they did fall asleep momentarily, were unable to perform their duties.

LSA-C.Cr.P. art. 852 mandates that a “motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried | ^contradictorily with the district attorney.” Defendant’s claim of sleeping jurors was not raised in his written motion for new trial, but rather was raised for the first time orally at the motion hearing. Because this claim was not properly raised in a written motion, we find no abuse of the trial court’s discretion in denying defendant’s motion for new trial. See State v. Richoux, 11-1112, pp. 11-12 (La.App. 5 Cir. 9/11/12), 101 So.3d 483, 490, writ denied, 12-2215 (La.4/1/13), 110 So.3d 139. In any event, even if we were to address the merits of this issue, we find no abuse of the trial court’s discretion in denying defendant’s motion for new trial.

The record was reviewed for errors patent, according to 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). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences.

AFFIRMED.

      . See State v. Turner, 09-1079, p. 9 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 460 n. 8, in which this Court held that LSA-R.S. 15:529.1 does not mandate that a sentence be imposed on an underlying conviction before the sentence on a multiple bill is imposed. See also State v. Shaw, 06-2467, p. 20 (La. 11/27/07), 969 So.2d 1233, 1245, in which the Louisiana Supreme Court held that LSA-R.S. 15:529.1 does not prohibit enhancing multiple sentences for multiple convictions obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode.

      . Mr. Tran testified that he did not call the police right after the incidents, because he feared that there would be retaliation if defendant was not immediately caught.

      . In his statement to the police, Mr. Tran described the same sequence of events except that he stated defendant took beer, not vodka. In any case, when the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert, denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In returning a conviction for attempted first degree robbery, the jury evidently did not give much credence to this inconsistency.

      . See LSA-C.Cr.P. art. 797(4), which provides that the state or the defendant may challenge a juror for cause on the ground that the juror will not accept the law as given to him by the court. See also State v. Sparks, 88-0017, p. 24 (La.5/11/11), 68 So.3d 435, 461, cert, denied, •— U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012), in which the Louisiana Supreme Court stated that a challenge for cause should be granted even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render a judgment according to the law may be reasonably implied.

        . LSA-C.Cr.P. art. 856 provides that prior to the court’s ruling on a motion for new trial, the court may permit a defendant to supplement his original motion for new trial or to file an additional motion for new trial. However, in die present case, the record does not show that defendant sought to file a supplement or an additional motion for new trial raising his claim of sleeping jurors.


author: SUSAN M. CHEHARDY, Chief Judge. JOHNSON, J.,

text:
    STATE of Louisiana in the Interest of C.M.
    No. 13-KA-128.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, Amanda L. Calogero, Elizabeth B. Curren, John Messina, Assistant District Attorneys, Harvey, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, Louisiana, for Defendant/Appellant, C.M.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

|2On November 2, 2012, C.M., a 16-year-old juvenile, was charged by petition in juvenile court with violation of La. R.S. 14:95.8, illegal possession of a handgun by a juvenile, alleged to have occurred on October 28, 2012. On November 5, 2012, C.M. entered a denial to the charged offense. C.M. proceeded to trial on November 28, 2012, and was adjudicated delinquent. A disposition hearing was held on January 10, 2013, at which time C.M. received a six-month sentence, to be served with the Office of Juvenile Justice in non-secure placement.

On January 15, 2013, C.M. filed a timely motion for appeal, which was granted by the juvenile court. We affirm, but remand with orders to correct patent errors.

FACTS

C.M.’s mother testified that on October 28, 2012, C.M. had spent the weekend with her. His father did not come to get him, so she dropped C.M. off at phis father’s house. C.M. had a backpack with him when he exited his mother’s car. Before approaching the house, C.M. put his backpack in his father’s truck, which was parked in the driveway. S.M. testified that when C.M. knocked on the door, she observed someone open the door and then “slam it” in C.M.’s face. C.M. again knocked on the door, which was answered this time by his father. Both C.M. and his father went inside the house.

According to S.M., approximately two minutes later C.M. exited the house, visibly upset. S.M. testified that C.M. kicked or punched his father’s truck, which prompted his father to pull out an aluminum baseball bat from the back of the truck and strike C.M. on the arm with it. S.M., who was still parked in the street in front of the residence, got out of her car to confront C.M.’s father. C.M. got up from where he had fallen in the yard after his father had struck him, opened the gate leading out of the driveway, proceeded to the other side of S.M.’s double-parked car and lay in the grass. S.M. and C.M.’s father “exchanged words” for “about a minute and a half’ before his father went back inside his house, where he remained.

S.M. then went by her car to check on her son. When C.M. stood up she observed, for the first time, a gun in C.M.’s hand. She testified she did not see C.M. with the gun while he was kicking his father’s truck or when his father struck C.M.’s arm with the bat. S.M. testified that C.M. never pointed the gun at his father because “by the time he [C.M.] came around the car, his dad had done made it up the steps and into the house.”

S.M. asked C.M. to give her the gun, but C.M. put the gun in his right back pocket and ran down the street away from his father’s home. By the time S.M. |4caught up with C.M., a sheriffs deputy had arrived on the scene. The officer stopped C.M., at which time S.M. reached into C.M.’s right back pocket, pulled out the gun, and handed it to the deputy.

Deputy Andrew Mulino of the Jefferson Parish Sheriffs Office testified he placed C.M. under arrest and advised him of his Miranda rights. He transported C.M. to the hospital, due to complaints that his arm was hurting him since his father hit it with a baseball bat. While at the hospital, C.M. told Deputy Mulino that he had placed the gun in his father’s truck before the incident occurred. C.M. said he took the weapon out of the truck after he was struck with the bat. C.M. explained he made an emotional decision that he knew was wrong. C.M. never indicated to Deputy Mulino that he was using the weapon to defend himself, and further stated that he never took the gun out of his back pocket.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the appellant asserts that the State failed to establish each element of the offense beyond a reasonable doubt. Specifically, he contends that the trial judge erred not only in adjudicating C.M. delinquent without proof of age, but also in not finding that C.M. was justified in having the weapon on his person.

C.M. argues the State failed to prove beyond a reasonable doubt that he was under the age of 17 at the time of the offense. C.M. contends that the only reference to his age was made at the beginning of the adjudication hearing, when the trial judge asked him to state his name and date of birth for the record. C.M. argues that this statement is insufficient evidence because it was not made under oath and because the hearing on the merits of the case had not yet begun. Since the State failed to offer any other evidence as to C.M.’s age at trial, C.M. contends the | fiState failed to prove that he committed the crime of possession of a handgun by a juvenile beyond a reasonable doubt.

C.M. also argues that he was justified in arming himself with the gun in self-defense. C.M. maintains that the trial testimony established he had a right to defend himself and his mother against any further attack by his father and, thus, he was justified in arming himself with the gun.

In response, the State argues it proved beyond a reasonable doubt that C.M. knowingly possessed a handgun on his person and that C.M. was not acting in justifiable self-defense when he armed himself. First, the State submits that it proved C.M. was 16 years old at the time he committed the offense, as established during trial and at prior proceedings where C.M. identified his date of birth for the juvenile court. The State further submits that C.M.’s date of birth is an adjudicative fact that was known to the court at the time of trial. The State contends that under La. C.E. art. 201, the court can take judicial notice of an adjudicative fact sua sponte. The State further submits that the juvenile court, as the sole fact-finder, can judicially notice C.M.’s age as evidence presented to it in earlier proceedings of the same case.

Second, the State argues it proved that C.M. knowingly possessed a handgun on his person, as evidenced by the testimony of Deputy Mulino and S.M., who testified that C.M. was carrying the gun in his pocket. Finally, the State argues that C.M.’s actions do not support a claim of self-defense. The State contends that the altercation with C.M.’s father had ended by the time C.M. retrieved the gun from the truck. Moreover, the State maintains that C.M. possessed the gun long before the encounter with his father, and at a time when there was no evidence that his father posed a threat to him.

IfiC.M. filed a reply brief, in which he argues that the mere mention of a date is insufficient to prove beyond a reasonable doubt that he was a juvenile at the time of the commission of the offense. He further states that La. C.E. art. 201 only requires a court to take judicial notice of an adjudicative fact when a request to do so is made. Here, C.M. argues that no request was made and that the trial judge did not notify the parties of its intent to take notice of the fact. Thus, C.M. asserts that no evidence was submitted to prove the statutory age requirement.

“In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. art. 883. The constitutional standard for testing the sufficiency of evidence in delinquency proceedings, as in criminal proceedings against an adult, requires that the evidence, direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt, in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex reí. D.W., 09-855, p. 6 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048,1053.

In a juvenile delinquency proceeding, the State’s burden of proof is the same as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition. Id.

The rule as to circumstantial evidence is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181, p. 4 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. | Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

In juvenile proceedings, the scope of review on appeal extends to both law and facts. See La. Const, art. V, § 10(B); State in the Interest of D.F., 08-0182, p. 5 (La.App. 1 Cir. 6/6/08), 991 So.2d 1082, 1084, 1085, writ denied, 08-1540 (La.3/27/09), 5 So.3d 138. The Louisiana Fourth Circuit Court of Appeal has held that the “clearly wrong-manifest error” standard of review should be used to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State ex rel. C.N., 11-0074, p. 5 (La.App. 4 Cir. 6/29/11), 69 So.3d 711, 714.

Although appellate review of juvenile cases extends to law and fact, the juvenile judge observes the conduct and demeanor of the witnesses and is thus in a far better position to determine credibility and weigh the evidence. State ex rel. C.J., 10-1588, pp. 3-4 (La.App. 4 Cir. 4/20/11), 63 So.3d 1133, 1137 (quotations omitted). Therefore, the appellate court should afford great deference to the judge’s findings of fact and to the judge’s determination of witness credibility and weight to be given their testimonies. Id.

Age of C.M.

C.M. was adjudicated delinquent for illegal possession of a firearm by a juvenile, a violation of La. R.S. 14:95.8. The statute states, “It is unlawful for any person who has not attained the age of 17 years knowingly to possess any handgun on his person.” La. R.S. 14:95.8(A).

Pursuant to La. R.S. 14:95.8(A), an adjudication of a juvenile as delinquent for illegal possession of a handgun requires a finding, that the juvenile had actual, not merely constructive, possession of a gun. State in Interest of R.D., 2012-0619, IsP- 4 (La.App. 4 Cir. 10/3/12), 126 So.3d 504, 2012 WL 4711876, writ denied, 12-2495 (La.4/19/13), 111 So.3d 1030.

On appeal, C.M. complains that the State failed to prove an essential element of the charged offense, namely, that C.M. was under the age of 17 at the time of the offense.

In State in the Interest of Metoyer, 606 So.2d 74, 76 (La.App. 3 Cir.1992), the juvenile argued on appeal that the juvenile court did not have jurisdiction over him because there was no proof he was under the age of 17. However, the record contained the juvenile’s age in the petition for adjudication, as well as in two earlier petitions for adjudication involving that child, with whom the juvenile court was very familiar. Although the juvenile made an oral motion for acquittal at trial, which the appellate court treated as a motion to dismiss, the appellate court found the juvenile court did not err in the denial of the motion, finding proof of the child’s age so as to permit the court to exercise jurisdiction. Id.

Likewise, in State v. D.L., 29,789, pp. 5-6 (La.App. 2 Cir. 6/18/97), 697 So.2d 706, 709-710, the juvenile contended that the State failed to establish jurisdiction of the juvenile court because it failed to establish his age during its case-in-chief. Citing State in the Interest ofMetoyer, supra, the appellate court found that no error patent occurred where the juvenile’s age was included in the delinquency petition but not presented at the hearing. The court noted that the juvenile did not move to dismiss the proceedings on the basis of lack of jurisdiction due to his age, nor did he present any evidence that contradicted the State’s allegation of his age. Id.

In the matter before us, the State alleged in the petition that on October 28, 2012, C.M., a child under the age of 17 years old, did knowingly possess a handgun. Further, at the commencement of trial, when the juvenile judge asked all laparties to identify themselves on the record, C.M. said his name and then stated his date of birth as January 6,1996. Deputy Mulino testified that the incident occurred on October 28, 2012. Therefore, we find the record shows that C.M. was 16 years old at the time of the offense and, thus, it was unlawful for him to possess any handgun on his person under La. R.S. 14:95.8.

In addition to identifying his date of birth prior to trial, C.M. also identified his date of birth as January 6, 1996, at the probable cause hearing conducted in this case before the same juvenile judge on October 80, 2012. Moreover, when C.M. was charged with the subject offense, he was on probation for an unrelated offense, simple criminal damage to property (violation of La. R.S. 14:56), under docket number 09JU695 (“Complaint C”).

A review of the appellate record indicates that the juvenile judge who presided over this matter also presided over the proceeding in docket number 09JU695. At every hearing in the prior proceeding, C.M. also identified his date of birth as January 6, 1996. In particular, at a constructive contempt hearing held on May 31, 2012, C.M. testified under oath that by the start of the school year in August of 2012, he would still be 16 years old. The incident on which this proceeding is based occurred in October 2012, approximately two months before C.M.’s seventeenth birthday. In addition, C.M.’s age in the petition for adjudication, along with the petition for adjudication in the proceeding for simple criminal damage to property, matches the date of birth provided by C.M.

|10In a bench trial, as the sole trier of fact the juvenile court may take judicial notice of C.M.’s age as evidence presented to it in prior proceedings involving the same juvenile with whom the court is very familiar, whether evidenced by a minute entry, a transcript, or a written judgment. See State v. Farhood, 02-490, p. 28 (La. App. 5 Cir. 3/25/03), 844 So.2d 217, 235; see also, State v. Valentine, 397 So.2d 1299 (La.1981); State v. Augillard, 371 So.2d 798, 800 (La.1979).

Moreover, a court may take judicial notice of adjudicative facts, whether requested or not. La. C.E. art. 201(C); State v. Batiste, 96-0526, p. 7 (La.App. 3 Cir. 12/11/96), 687 So.2d 499, 503, wii denied, 97-0174 (La.6/30/97, 696 So.2d 1003). A judicially-noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. La. C.E. art. 201(B); Batiste, supra. Here, the court record is a source whose accuracy cannot reasonably be questioned, nor can the documentation of C.M.’s age contained therein reasonably be questioned.

Accordingly, we hold that the juvenile judge could have found the evidence was sufficient to prove that C.M. was under the age of 17 when he committed the instant offense, where the uncontroverted evidence established C.M.’s birth date as January 6,1996.

Self-Defense

Next, C.M. argues that he was justified in possessing the gun in self-defense against his father who had just struck him with a baseball bat.

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18.

|nThe use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A).

The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person. La. R.S. 14:22.

When self-defense or the defense of another is claimed by the defendant in a homicide case, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. State v. Rainey, 98-436, p. 12 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1103, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. However, in non-homicide cases, this Court has stated that the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. See State v. Nailor, 10-1062, p. 8 (La.App. 5 Cir. 11/15/11), 78 So.3d 816, 821, writ denied, 11-2780 (La.4/27/12), 86 So.3d 626; State v. Steele, 01-1414, p. 8 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03), 853 So.2d 632; State v. Barnes, 491 So.2d 42, 47 (La.App. 5 Cir. 1986).

In this case, the testimony indicates that C.M. possessed the gun before the altercation with his father took place. S.M. said that when she dropped C.M. off at his father’s house he had a backpack with him, which C.M. placed in his father’s | struck before entering the house. C.M. also admitted to Deputy Mulino that he had placed the gun in his father’s truck before the altercation with his father occurred. The possession of the gun by C.M. before the altercation weighs against a finding of self-defense, when there was no evidence presented that his father posed a threat at that time.

In addition, the testimony at trial established that a few minutes after entering his father’s house, C.M. exited the house and began kicking his father’s truck. In response, his father came outside, picked up a baseball bat from inside his truck, and struck C.M. once on the arm. S.M. testified that she did not see C.M. with the gun when C.M.’s father struck him with the bat. C.M. did not use the gun or threaten to use it against his father. Rather, after being struck, C.M. left his father in the yard, exited the gated driveway, walked around his mother’s car which was double parked in the street, and lay in the grass. By then C.M.’s father had already re-entered the house. When S.M. went to check on her son, she observed he had a gun in his hand.

The testimony establishes that the altercation had already ended when C.M. retrieved the gun. C.M.’s father did not follow him with the bat, but rather retreated back into his house and stayed there, after exchanging a few words with C.M.’s mother. Moreover, it appears that C.M. was not in imminent peril of being struck again after the altercation, since C.M. had distanced himself from his father, who was in the yard behind a gate. Further, after C.M.’s father had re-entered his home, C.M. refused to tender possession of the gun to his mother. Instead, C.M. placed the gun in his back pocket and ran down the street.

Deputy Mulino also testified that C.M. never indicated to him that he was using the gun to defend himself, that he never pointed the gun at his father, and that he never took it out of his back pocket.

11SC.M. also argues that he was justified in arming himself with the gun in defense of his mother. The record is devoid of evidence that C.M.’s father posed a threat to S.M. In fact, S.M. described her interaction with C.M.’s father as an “exchange of words” for a brief period before he went back into his home. Nothing in the record suggests that S.M. felt she was in danger or that C.M.’s father physically threatened her.

When a person who is otherwise statutorily barred from possessing a firearm is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense or in defense of others. See, generally, State v. Blache, 480 So.2d 304, 308 (La.1985); State v. Sanchell, 2011-1672, p. 8 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, writ denied, 12-2554 (La.4/26/13), 112 So.3d 839; State v. Goldsmith, 519 So.2d 299, 300 (La.App. 2 Cir.1988). See also, State v. Dabney, 2002-0934, p. 7 (La.4/9/03), 842 So.2d 326. In the case before us, it appears that C.M. possessed the gun longer than was necessary to use it in self-defense (both before and after the altercation).

C.M. cites State v. Landry, 381 So.2d 462 (La.1980), in support of his position that his conduct constituted justifiable self-defense. In Landry, the defendant (a school teacher) and the victim (a student) were in an altercation on school premises. The victim ultimately was restrained and was asked to leave the building. Shortly thereafter, the victim returned with a club, which he used to strike at the defendant. The defendant retreated from the school building with the victim still in pursuit. The victim again attempted to strike the defendant as the defendant was escaping. The defendant fled to the parking lot, where he armed himself with a handgun that he obtained from his vehicle. The victim approached the defendant’s general direction, still carrying the club.

|14In Landry, the Louisiana Supreme Court found it was subjectively reasonable for the defendant to conclude that the victim was intent upon continuing the prior attack against him. 381 So.2d at 467. The Court held it was reasonable for the defendant, “having just been subjected to a violent armed assault,” to conclude upon seeing the victim approaching in his direction, still carrying the weapon, that the victim’s purpose was to carry out his previously-demonstrated intent to inflict serious bodily harm upon the defendant. Id. Thus, the Court held, the defendant had “ample reason to fear imminent serious personal harm at the hands of’ the victim. Id.

Landry is distinguishable from the case before us, however. In this case C.M.’s father struck C.M. once on the arm with a bat, in response to C.M. kicking his truck. His father did not chase after him with the bat, but rather retreated back inside his home after the altercation. The evidence does not suggest that C.M.’s father was intent upon continuing the initial battery, because C.M. had retreated some distance away and C.M.’s father had gone inside his home.

We find no merit to Assignment of Error Number One. First, the evidence was sufficient to prove that C.M. was under the age of 17 when he committed the instant offense. Second, by adjudicating C.M. delinquent, the juvenile judge obviously rejected C.M.’s theory of self-defense and/or defense of others, and found that C.M.’s actions were neither reasonable nor apparently necessary. Based on the evidence, we find that the trial court reasonably rejected C.M.’s self-defense claim.

| ^ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, C.M. claims that the statute under which he was adjudicated delinquent, La. R.S. 14:95.8, is unconstitutional. C.M. argues that La. R.S. 14:95.8 as enacted violates the Louisiana Constitution, under both the prior and amended versions of the right to bear arms provision set forth under La. Const. Art. 1, § 11. C.M. further contends that La. R.S. 14:95.8 violates the Fourteenth Amendment of the United States Constitution.

In response, the State submits that because C.M. did not properly challenge the constitutionality of La. R.S. 14:95.8 in the trial court, his constitutional attack should not be considered by this Court on appeal. Alternatively, the State argues that La. R.S. 14:95.8 is not unconstitutional and does not violate the Louisiana Constitution as enacted, either prior to or after the right to bear arms provision was amended.

Article 1, § 11 of the Louisiana Constitution formerly provided: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

Pursuant to Acts 2012, No. 874, § 1, a proposal to amend La. Const. Art. 1, Sec. 11 was submitted to the electors of the State of Louisiana, and was ratified by them at the statewide election held on November 6, 2012. The amendment to this section became effective on December 10, 2012. Section 11 now provides, “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.”

I^On appeal, C.M. argues for the first time that La. R.S. 14:95.8, which prohibits a juvenile from carrying a firearm (with the exception of certain enumerated exceptions) would be unconstitutional under both the former and amended constitutional provisions.

While there is no single procedure for attacking the constitutionality of a statute, the Louisiana Supreme Court has described the challenger’s burden as a three-step analysis. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-865; See also State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 718-719.

The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764 (citing Vallo, 94-1238 at 8, 646 So.2d at 865). The opportunity to fully brief and argue the constitutional issues provides the trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to consider the constitutionality of the statute. Id.

In addition to the three-step analysis for challenging the constitutionality of a statute, the specific plea of unconstitutionality and the grounds therefor must be raised in a pleading. See Schoening, supra, 00-0903 at 4, 770 So.2d at 765; Williams v. State, Dept, of Health and Hospitals, 95-0713, p. 6 (La.1/26/96), 671 So.2d 899, 902; State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Herring, 211 La. 1083, 31 So.2d 218, 219-20 (1947).

117The longstanding Louisiana jurisprudential rule is that litigants must raise constitutional attacks in the trial court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Unwired Telecom Corp. v. Parish of Cal-casieu, 03-0732, p. 6 n. 5 (La.1/19/05), 903 So.2d 392, 399 n. 5 (on rehearing). There are exceptions to the general rule, but none of them apply in this case.

In this case, C.M. failed to raise his constitutional challenge to La. R.S. 14:95.8 in the trial court and he has not alleged an exception to the general rule by which a litigant must properly confect a constitutional challenge. Thus, we pretermit review on the merits of his constitutional claim. See generally, State v. Rubens, 2010-1114, pp. 29-30 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 50, units denied, 12-374 (La.5/25/12), 90 So.3d 410 and 12-399 (La.10/12/12), 99 So.3d 37, cert, denied,U.S.-, 133 S.Ct. 1595, 185 L.Ed.2d 591 (2013).

Accordingly, we find no merit to Assignment of Error Number Two.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, C.M. asserts he was denied the effective assistance of counsel guaranteed to him by the Sixth Amendment. He argues that his trial counsel was ineffective because (1) he failed to raise and argue the constitutionality of La. R.S. 14:95.8 by filing either a motion to quash prior to the adjudication, or a motion to vacate prior to the disposition, and (2) he did not seek a dismissal when the State failed to establish the elements of the offense.

The State responds that C.M.’s trial counsel was not ineffective.

11sGeneraIly, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than on direct appeal, so as to afford the parties an adequate record for review. State v. Robertson, 08-297, p. 12 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, unit denied, 08-2962 (La.10/9/09), 18 So.3d 1279. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Grimes, 09-2, p. 10 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 426, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023.

We find that the appellate record is adequate for this Court to address C.M.’s claims.

La. Ch.C. art. 809(A) provides, “At every stage of proceedings under this Title, the accused child shall be entitled to counsel.” Juvenile defendants as well as adults are entitled to effective assistance of counsel. State in Interest of D. McK, 589 So.2d 1139, 1142 (La.App. 5 Cir.1991). Effective assistance of counsel is guaranteed under the Sixth Amendment to the United States Constitution and Article I, Sec. 13 of the Louisiana Constitution. Grimes, 09-2 at 10, 16 So.3d at 425. To prove ineffective assistance of counsel, a defendant must show both that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Id., citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). It is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La.App. 1 Cir.1992), unit denied, 614 So.2d 1263 (La.1993).

To establish the deficiency prong of the test, the defendant must show that counsel made errors so serious that he was not functioning as the “counsel” 1^guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish prejudice, the defendant must show that the errors were so serious that the defendant was deprived of a fair trial, a trial whose result is reliable. Id. The defendant must prove actual prejudice before relief will be granted. Serigny, 610 So.2d at 860. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Id. Rather, he must show that but for counsel’s deficient performance, there is a reasonable probability the outcome of the trial would have been different. State v. Robinson, 01-1305, p. 18 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 582, writ denied, 02-1640 (La.5/30/03), 845 So.2d 1068.

Constitutionality of La. R.S. 14:95.8

C.M. argues that his trial counsel was ineffective for failing to assert that La. R.S. 14:95.8 was unconstitutional, as it violated Article I, § 11 of the Constitution of the State of Louisiana and the Fourteenth Amendment of the Constitution of the United States. He contends that if this statute was declared unconstitutional, there would be no basis for an adjudication. C.M. argues that the statute restricts a juvenile’s right to carry a handgun without sufficient state interest to infringe upon the juvenile’s right to do so. C.M. further contends that the statute was not exempted from Article I, § 11 of the 1974 Constitution and that it does not pass strict scrutiny under the 2012 provision of this article. He asserts that all juveniles are not treated equally, as some juveniles are allowed to carry handguns and some are not. He argues that since the statute classifies an offender based on his age, it presumptively denies equal protection of the laws and, thus, is presumed unconstitutional.

The State responds that the juvenile’s trial counsel was not ineffective because it is unlikely such a constitutional challenge in the juvenile court would [ 2nhave succeeded, as the statute is not unconstitutional. The State contends that a similar statute has been upheld under the former Louisiana Constitution; that the statute would survive strict scrutiny analysis under the new amendment; that juveniles do not enjoy the same constitutional protection as adults; that the statute is narrowly tailored to address a compelling state interest; and that the statute does not violate the equal protection clause.

The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to regulate that right for legitimate state purposes, such as public health and safety. State v. Sandifer, 95-2226, p. 13 (La.9/5/96), 679 So.2d 1324,1333.

As previously noted, La. Const. Art. 1, §11 formerly provided that “the right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” La. Const. Art. 1, § 11 was amended by statewide election on November 6, 2012, and now provides that “the right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” La. Const. Art. 1, § 11, as amended by Acts 2012, No. 874, § 1, effective December 10, 2012.

Here, C.M. committed the instant offense on October 28, 2012. C.M. was adjudicated delinquent on November 28, 2012, and was sentenced on January 10, 2013. Thus, the offense was committed before the amendment was ratified on November 6, 2012, and before its effective date of December 10, 2012. Since the offense and the adjudication occurred before the effective date of the amendment, there is a question as to whether the new 2012 amendment to La. Const. Art. 1, § 11 could apply to this case.

la/Tn the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” La. C.C. art. 6. Generally, new laws which are procedural or interpretive may apply retroactively to a cause of action which arose prior to the law’s effective date. Jacobs v. City of Bunkie, 98-2510, p. 7 (La.5/18/99), 737 So.2d 14, 20.

The Louisiana Legislature did not address the issue of whether this amendment to La. Const. Art. 1, § 11 was to have prospective or retroactive application. We need not reach a conclusion on this issue, however, because C.M.’s argument alleging ineffective assistance of counsel must fail.

First, C.M.’s counsel could not have been ineffective for failing to file a motion to quash prior to C.M.’s adjudication, because C.M. committed the offense and was adjudicated delinquent before the amendment’s December 2012 effective date. Such a motion to quash would have alleged the uneonstitutionality of a statute under a new constitutional amendment that was not yet in effect. Thus, such a challenge would have been premature.

Moreover, C.M.’s counsel could not have been ineffective for failing to file a motion to vacate based on constitutional grounds prior to C.M.’s disposition on January 10, 2018, because such grounds would not support the grounds for vacation under La. Ch.C. art. 887. Therefore, we pretermit discussion on whether l22C.M.’s counsel was ineffective for failing to challenge the constitutionality of La. R.S. 14:95.8 under the amended constitutional right to bear arms provision.

Dismissal Based on Insufficient Evidence

C.M. also argues that his trial counsel was ineffective for failing to seek a “dismissal” when the State failed to establish an element of the offense, C.M.’s age, beyond a reasonable doubt. As discussed more fully under Assignment of Error Number One, we hold that a rational trier of fact could have found that the evidence was sufficient to convict C.M. of violating La. R.S. 14:95.8 under the Jackson standard, and that the trial court properly rejected C.M.’s justification claim. Therefore, we find that C.M.’s trial counsel was not ineffective for failing to file a motion to vacate the adjudication under La. Ch.C. art. 887.

Accordingly, we find no merit to Assignment of Error Number Three.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. La.C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Wetland, 556 So.2d 175, 178 (La.App. 5 Cir.1990). We note several patent errors:

First, a review of the record reveals that the trial judge failed to advise C.M. of the two-year prescriptive period for seeking post-conviction relief as mandated by La.C.Cr.P. art. 930.8. Therefore, we shall remand the matter to the juvenile court with appropriate instructions, and instruct the court to inform the juvenile in 1^writing of the delays for post-conviction relief and to file proof of the notice in the record.

Second, the record fails to show that C.M. was advised of his rights when he appeared to answer the allegations contained in the petition filed against him, as required by La. Ch.C. art. 855. However, in this case, this is harmless error. The record reflects that C.M. was represented by counsel when he appeared in court, and that he denied the charge against him. Thus, C.M.’s rights were adequately protected, and the fact that he was not so advised caused him no prejudice in connection with his rights.

Third, pursuant to La. Ch.C. art. 899 and La. R.S. 14.95.8, C.M. was sentenced to the Office of Juvenile Justice for six months, non-secure placement. However, the trial court failed to impose the mandatory fine under La. R.S. 14:95.8, rendering C.M.’s sentence illegally lenient.

This Court has the authority to correct an illegal sentence at any time. La.C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. State v. Pitt, 09-1054, p. 8 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725.

In State v. Guidry, 12-296, p. 10 (La.App. 5 Cir. 12/11/12), 106 So.3d 1062, 1067-1068, and State v. Campbell, 08-1226, p. 9 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, this Court noted the defendants’ indigent status and declined to correct their illegally lenient sentences where the district court failed to impose the mandatory fine.

I^In the present case, due to C.M.’s indigent status, we decline to exercise our authority to correct the illegally lenient sentence.

Fourth, the trial court failed to give C.M. credit for time served. Neither the transcript nor the commitment indicate that C.M. was given credit for time served. La. Ch.C. art. 898(A) states, “The court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” Since this article is mandatory, C.M. is entitled to credit for time served. Therefore, we shall remand the case with instructions. State v. C.K., Oh-475, p. 9 (La.App. 5 Cir. 1/17/06), 922 So.2d 616, 621; State ex reí. T.S., 04-1111, p. 9 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 82; State v. J.M., 96-801, p. 5 (La.App. 5 Cir. 1/15/97), 687 So.2d 136, 140, twit denied, 97-0734 (La.11/21/97), 703 So.2d 1298.

DECREE

For the foregoing reasons, the delinquency adjudication and commitment are affirmed. The matter is remanded and the juvenile court is ordered to inform the juvenile in writing of the delays for post-conviction relief, and to file proof of the notice in the record. The juvenile court further is ordered to amend the commitment to give C.M. credit for time served in secure detention prior to the disposition, if any.

AFFIRMED AND REMANDED WITH ORDERS.

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

IH, respectfully, dissent from the majority opinion on whether C.M.’s conviction should be upheld for the following reasons.

C.M. was adjudicated of the violation of La. R.S. 14:95.8, illegal possession of a handgun by a juvenile. Prior to the start of the trial, C.M. and the other participants in the trial identified themselves for the record, in which C.M. stated his name and birthdate. No one was sworn in by the deputy clerk of court at that time. Deputy Andrew Mulino, the arresting officer, and C.M.’s mother were the only people to testify at the trial. Both witnesses testified as to the events that occurred on the day in question; however, neither of the witnesses testified as to C.M.’s age. After the testimony of C.M.’s mother, the State rested its case. The State only introduced a handgun as evidence, which was admitted by the juvenile court judge. Trial counsel for C.M. did not call any witnesses or introduce any evidence. At the conclusion of the closing arguments, the juvenile court judge found that the State had borne its burden of proof.

La. R.S. 14:95.8(A) provides, “It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.” The burden of proof required to find that a child has committed a delinquent act is no 12less strenuous than the proof required in a criminal proceeding against an adult. State ex. rel T.J., 00-1723 (La.App. 5 Cir. 4/11/01); 786 So.2d 777, 780, citing State in the Interest of R.W.L., 95-892 (La.App. 5 Cir. 2/14/96); 671 So.2d 10. The standard of review for sufficiency of evidence in a delinquency proceeding, as in a criminal proceeding against an adult, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Emphasis added). Id., citing State v. D.J., 29,474 (La.App. 2 Cir. 4/2/97); 691 So.2d 839.

The State’s burden of proof stems from the application of the Fourteenth Amendment’s Due Process clause which requires the application of the “essentials of due process and fair treatment” during the adjudication hearing. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A child who is the subject of a delinquency adjudication proceeding enjoys Due Process safeguards. See, In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In the case at bar, the State failed to introduce any evidence at the trial that C.M. had not attained the age of 17 years of age on the date of the incident. Although the majority opinion cites State in the Interest of Metoyer, 606 So.2d 74 (La.App. 3rd Cir.1992) and State v. D.L., 29,-789 (La.App. 2 Cir. 6/18/97); 697 So.2d 706 for the stance that the juvenile court could consider the petition for adjudication to ascertain a juvenile’s age, those cases are distinguishable from the one before this Court. The issue in those cases was whether the juvenile court had jurisdiction of those juveniles to hear the cases. C.M. did not dispute the jurisdiction of the juvenile court at the lower level or as an Dassignment of error. Also, those other courts were not called to determine whether the use of the petition for adjudication could be used in finding that the State had met its burden of proving every element of a crime for adjudication. As such, those cases are not comparable to this matter. Additionally, in order for the juvenile court to consider C.M.’s appearance as a judicial admission, the State would have to have proven that C.M.’s admission was knowing and voluntary, which was not done in this matter. See, La. Ch. C. art. 881.1. Otherwise, C.M.’s statement regarding his date of birth for the purpose of an appearance is inadmissible. Id. (See also, Gault, 387 U.S. at 57, 87 S.Ct. 1428, where the Supreme Court held that, “absent a valid confession, a determination of delinquency ... cannot be sustained in the absence of sworn testimony ... in accordance with our law and constitutional requirements.”)

Furthermore, the cases cited by the majority opinion regarding judicial notice are distinguishable from C.M.’s case. In those cases, there was evidence in the record that the trial judge took judicial notice of some adjudicative fact. While it is correct that a court may take judicial notice of adjudicative or legislative facts, the record in this matter is completely devoid of any indication that the juvenile court judge took judicial notice of C.M.’s age at the time of commission of the offense. The majority opinion makes an assumption about a consideration of the juvenile court that is not supported by the record. Because of its reliance on this unsupported assumption, the majority opinion is depriving |4C.M. of his due process safeguards afforded to him by the 14th Amendment. I believe that upholding an adjudication on the basis that the juvenile court judge may have taken judicial notice of an essential element of a crime is not the precedent intended by the U.S. and Louisiana Constitutional Amendments, Louisiana statutes or jurisprudence. I am of the opinion that the State must be held by the courts to bear its burden of proving every element of a crime beyond a reasonable doubt.

For the foregoing reasons, I would reverse C.M.’s adjudication for the violation of La. R.S. 14:95.8.

      . Pursuant to the requirements of confidentiality of juvenile proceedings as set forth in La. Ch.C. art. 412, the juvenile and his relatives herein are referred to by initials only.

      . The record indicates that C.M.'s date of birth is January 6, 1996.

      . At the time C.M. was charged with the subject offense, he was on probation pursuant to a delinquency adjudication for an unrelated charge of simple criminal damage to property (La. R.S. 14:56), docket number 09JU695 ("Complaint C”). On December 7, 2012, C.M.'s probation officer filed a Motion to Modify Judgment of Disposition and Revocation of Probation based on C.M.’s adjudication of delinquency for the instant illegal possession of a firearm offense. At the same time as the disposition hearing in this case, C.M.’s probation officer dismissed her revocation of probation request to allow for C.M. to be placed in non-secure placement. Thus, on January 10, 2013, the juvenile court judge also committed C.M. to the Office of Juvenile Justice for a period of six months in non-secure placement for his previous delinquency adjudication for simple criminal damage to property. The juvenile court judge ordered that C.M.’s six-month sentences for simple criminal damage to property and illegal possession of a handgun by a juvenile be served consecutively.

      . S.M. testified that she saw fear on C.M.’s face when his father hit him with the bat. S.M. further testified that she had never seen that type of behavior between C.M. and his father before and that she and C.M. were both surprised when it happened.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . The Louisiana Children's Code defines a "child” as "any person under the age of twenty-one, including an emancipated minor, who commits a delinquent act before attaining seventeen years of age.” La. Ch.C. art. 804(1). There are recent amendments regarding gun possession, but those do not apply to the referenced definition.

      . In addition to the hearings conducted in the prior proceeding, the record also contains various documents that record C.M.’s date of birth. These include minute entries, judgments, adjudication orders, probable cause affidavits for arrests, probation officers’ reports, and psychological evaluations.

      .Notably, C.M. was tried for his crime in juvenile court without objection. The juvenile did not move to dismiss the proceedings on the basis of lack of jurisdiction due to his age, nor did he present any evidence that contradicted the State's allegation of his age. See State in the Interest of Metoyer, supra; State v. Zihtavsky, 505 So.2d 761 (La.App. 2 Cir. 1987), writ denied, 511 So.2d 1152 (La. 1987); State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298.

      . Since C.M. challenges the constitutionality of a state statute, on April 2, 2013, this Court sent notice by certified mail to the Louisiana Attorney General's Office, in accordance with La. R.S. 13:4448. The Attorney General has not filed a brief in this case.

      . The exceptions are (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court; or (4) when an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue is made to appear as an error patent on the face of the record. Unwired Telecom Corp., supra; Mosing v. Domas, 02-0012, p. 11 (La. 10/15/02), 830 So.2d 967, 975 n. 2; Mallard Bay Drilling, Inc. v. Kennedy, 04-1089, p. 9 (La.6/29/05), 914 So.2d 533, 541.

      . See Assignment of Error Number Three for a discussion of the merits of the constitutionality of the statute relative to the juvenile’s ineffective assistance of counsel claim.

      . La. Ch.C. art. 887 provides, in pertinent part:
      A. On motion of the child prior to disposition, a delinquency adjudication shall be vacated and the child discharged if, after contradictory hearing, the court finds that:
      (1) The petition is substantially defective, in that an essential averment is omitted, although the child may be recharged by a new petition within the time limitations provided by law for that offense.
      (2) The delinquent act charged in the petition is not based upon an offense which is punishable under a valid statute.
      (3) The court making the adjudication lacked jurisdiction.
      (4) The act charged constitutes double jeopardy, if not previously urged.
      (5) The prosecution was not timely instituted, if not previously urged.
      B. On motion of the child before disposition, an adjudication shall be vacated and a new adjudication hearing ordered if, after a contradictory hearing, the court finds that:
      (1) The adjudication is not responsive to the petition, or is otherwise so defective that it will not form the basis of a valid judgment, in which case the child shall be remanded to custody or bail to await a new adjudication hearing.
      (2) The adjudication was obtained by fraud or mistake sufficient to justify vacating the adjudication.
      (3) The child and his counsel satisfy the requirements of Articles 851(3), 853, and 854 of the Code of Criminal Procedure regarding the discovery of new and material evidence.
      (4) The adjudication judgment is contrary to the law and evidence.

      . Although the Louisiana Children’s Code is silent as to whether an error patent review is mandated in a juvenile appeal, this Court has conducted limited reviews for error patent. See, e.g., State in the Interest ofZ.S., 01-1099, pp. 8-9 (La.App. 5 Cir. 2/26/02), 811 So.2d 1003, 1008. La. Ch.C. art. 104 provides that, in the absence of procedures prescribed by the Children's Code, the Louisiana Code of Criminal Procedure shall apply. This Court is thus authorized by La.C.Cr.P. art. 920 to conduct a review for errors patent.

      . La. Ch.C. arts. 854-856 set forth the requirements for the juvenile's answer to a petition filed against him. A reading of these articles and the comments following reflect that the purpose of these articles are to ensure that the juvenile understands his rights prior to entering a plea of guilty.

      . La. R.S. 14:95.8 states that upon first conviction "the offender shall be fined not more than one hundred dollars and imprisoned for not less than ninety days and not more than six months.”

      . C.M. is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases.

      . Even if C.M. had raised jurisdiction as an issue, the State would still have to prove that C.M. was under the age of 17 years on the date of the incident in question. La. Ch.C. art. 303 gives juvenile courts exclusive jurisdiction over children and minors except where the child: 1) is subject to the jurisdiction of the criminal courts under the provisions of La. Ch.C. art. 305 et seq., or 2) has been transferred by the juvenile court for criminal prosecution as an adult under La. Ch.C. art. 857, et seq. State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05); 904 So.2d 82, 91, writ denied, 05-2072 (La.4/28/06); 927 So.2d 282. La. Ch.C. art. 116 defines "child” as “a person who has not attained the age of eighteen years, except as it is specially defined by a Title of this Code.” (Emphasis added). Thus, the juvenile court’s jurisdiction over C.M. does not automatically supply the adjudicative fact that C.M. was under the age of 17 years old on the date of the offense. C.M. could have been 17 years old, subject to the jurisdiction of the juvenile court because he had not made 18 years old, and not guilty of La. R.S. 14:95.8 because of the statute’s age requirement.

      . State v. Farhood, 02-490 (La.App. 5 Cir. 3/25/03); 844 So.2d, 217, State v. Valentine, 397 So.2d 1299 (La.1981), and State v. Batiste, 96-0526 (La.App. 3 Cir. 12/11/96); 687 So.2d 499.


text:
    STATE of Louisiana v. Shondrell P. CAMPBELL.
    No. 13-KA-130.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendant appeals her conviction of issuing worthless checks in violation of La. R.S. 14:71. For the following reasons, we affirm defendant’s conviction, vacate defendant’s sentence, and remand the matter for re-sentencing.

Procedural Background

On July 16, 2010, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Shondrell P. Campbell, with one count of issuing worthless checks in violation of La. R.S. 14:71.C. The bill charges that defendant issued three worthless checks, each in excess of $1,500. On July 19, 2010, defendant pleaded not guilty. On April 12, 2011, the trial court denied defendant’s pro se motion to quash the bill of information. On November 30, 2011, defendant proceeded to trial before a six-person jury. On that same date, the jury returned a verdict of guilty as charged. The trial court subsequently denied defendant’s motions for new trial and arrest of judgment. On October 18, 2012, the trial court sentenced defendant to the Department of Corrections for a term of 24 months. The trial court suspended all but two months and placed defendant on |3active probation for a term of 22 months. The trial court further ordered that defendant serve 60 days of confinement on weekends commencing on November 3, 2012. The trial court additionally imposed a $500 fíne and ordered defendant to pay restitution in the amount of $9,100 less a credit of $864, and ordered defendant to complete a three-credit-hour course in basic accounting. On November 12, 2012, the trial court re-sentenced defendant to the Department of Corrections for a term of 24 months, all suspended. The trial court placed defendant on active probation for a term of two years and as a special condition, ordered defendant to serve 60 days of confinement on weekends with credit for time served. All other sentencing provisions remained the same. On that date, the trial court additionally denied defendant’s motion to reconsider sentence.

On November 14, 2012, the trial court granted defendant’s motion for appeal.

Factual Background

Defendant, a general contractor, acquired the services of two subcontractors, Zamora Construction and Acadian Plumbing. Defendant paid the subcontractors for services rendered with three separate checks. Defendant issued one check to Zamora Construction on October 9, 2009, in the amount of $3,000, and issued the remaining two checks to Acadian Plumbing on November 20, 2009, and November 27, 2009, in the amounts of $3,000 and $3,100, respectively.

All three checks were subsequently returned for insufficient funds and the subcontractors contacted the district attorney’s office for assistance. The district attorney’s office advised the companies that they must first send a certified letter to defendant, giving her ten days to make good on the checks before the district at-torne/s office could pursue collection on their behalf. Zamora Construction and LAcadian Plumbing sent the certified letters to defendant and provided proof of which to the district attorney’s office. The district attorney’s office then sent a letter to defendant giving her an additional ten days to clear up the matter, which she failed to do.

A payment plan was thereafter arranged between the district attorney’s office and defendant; however, defendant was unable to fulfill the obligations of the agreement and was ultimately arrested for issuing worthless checks.

Assignment of Error No. 1

On appeal, defendant asserts that the trial court erroneously denied defendant’s motions to continue the trial date.

La.C.Cr.P. art. 707 requires that defendant file a written motion for continuance at least seven days prior to the commencement of trial. “Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.” Id. La. C.Cr.P. art. 712 commits a motion for a continuance to the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Shannon, 10-580, p. 10 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 714, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283. A denial of a motion for a continuance is not grounds for reversal absent a showing of specific prejudice. State v. Scott, 612 So.2d 293 (La.App. 5 Cir.1992).

Moreover, the denial of an oral motion for continuance leaves nothing for the appellate court to review. State v. Winfrey, 97-427, p. 5 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied, 98-264 (La.6/19/98), 719 So.2d 481 (citing State v. Malinda, 95-292 (La.App. 5 Cir. 10/31/95), 663 So.2d 882, 886). Nevertheless, there is a jurisprudential exception to the requirement for a written motion where the circumstances producing the motion occur unexpectedly and [5there is no opportunity to prepare the motion. State v. Shannon, 10-580, p. 10 (LaApp. 5 Cir. 2/15/11), 61 So.3d 706, 714, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283 (citing State v. Bartley, 03-1382, p. 4 (La.App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006 (citing Winfrey, 97-427 at 6, 703 So.2d at 68) (holding that defendant had not preserved the denial of his oral motion for continuance because no unexpected circumstances arose to prevent the filing of the written motion)).

In the present case, there is no evidence in the record that a written motion for continuance was filed seven days in advance of trial. Instead, defendant, on the date prior to trial, November 29, 2011, orally moved for a continuance alleging that she was unprepared. Defendant maintained that although being appointed counsel two months prior, she met with him for the first time on that date and did not have time to prepare a defense. The trial court denied the oral motion. Defendant re-asserted an oral motion for continuance on the morning of trial, but this time alleging that she had not subpoenaed witnesses necessary for trial. The trial court again denied the motion.

This Court finds that defendant should have been able to timely prepare and file a written motion to continue. Defendant was charged with a relatively minor offense that would result in a rather uncomplicated trial. Moreover, there is nothing in the record to suggest that the circumstances producing defendant’s motions occurred unexpectedly. Instead, the record reveals that defendant had more than one year to retain counsel, prepare a defense, and subpoena witnesses. Further, defendant’s trial date was set more than two months earlier in open court with defendant present with appointed counsel. Based on these circumstances, we [fifind that the trial court did not abuse its discretion in denying the oral motions to continue.

This assignment lacks merit.

Assignment of Error No. 2

In its second assignment of error, appellant asserts that the trial court erroneously denied defendant’s motion for mistrial. Specifically, appellant asserts that the State improperly misrepresented the testimony of Damon Davis during closing arguments. As such, appellant argues that the trial court should have granted a mistrial under La.C.Cr.P. art. 771.

At trial, Mr. Davis testified that he was the mortgage broker that assisted the Freys in obtaining financing for the purchase of the construction that Zamora Construction and Acadian Plumbing were contracted by defendant for services. Mr. Davis testified that ultimately, due to devaluing of the property, the financing fell through for his clients. Mr. Davis additionally testified when asked if he had any knowledge regarding the outcome of the sale that, “I just heard it through the grapevine that all of the puzzles of the pieces [sic] finally came together. But like I said, I don’t know. I haven’t spoken to the Freys. I haven’t even spoken to Shondrell about it since.”

|7The State, during rebuttal closing argument, stated, “Well, Mr. Davis said that eventually somebody did buy the house. Eventually, Ms. Campbell got her money.” At that time, defense counsel objected and the trial court overruled the objection, ruling that it was the middle of argument. At the close of argument, the trial court charged the jury, twice instructing that opening and closing arguments are not to be considered as evidence. After the jury exited the courtroom to deliberate, defense counsel moved for a mistrial on the ground that the prosecutor’s comment was prejudicial, outside of the evidence, and untrue.

Defense counsel asserted that the prosecutor’s statement placed in the jury’s mind that defendant did receive money and presented a prejudicial issue to the case for the jury to presume that the State’s remark was true. Defense counsel argued that the prejudicial statement could not be cured by an instruction and that defendant should be granted a mistrial.

We note, initially, that while defense counsel timely objected to the prosecutor’s remark, counsel did not timely move for a mistrial. Defense counsel waited until after the jury was charged and deliberating to move for a mistrial, when he should have made his motion at the time of his objection, or at the latest, at the close of the State’s argument. La.C.Cr.P. art. 841 requires that counsel contemporaneously bring an error to the attention of the trial judge so that he may have the opportunity to cure the error. Waiting until after the jury was charged and deliberating to move for a mistrial under La.C.Cr.P. art. 771 limited the trial judge to the remedy of mistrial only. The trial judge at that point no longer had the option to admonish the jury to cure the alleged error. For this reason, we find that the motion for mistrial came too late. Nevertheless, we will address the merits of appellant’s claim.

|sLa.C.Cr. P. art. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under article 770. Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith, 483 So.2d 688 (La.1983). Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Brown, 96-1002 (La.App. 5 Cir. 4/9/97), 694 So.2d 435, 439, writ denied, 97-1251 (La.10/31/97), 703 So.2d 19.

Even if a mistrial was warranted under article 770, 771, or 775, the failure to grant a mistrial would not result in an automatic reversal of defendant’s conviction, but would be a trial error subject to the harmless error analysis on appeal. State v. Givens, 99-3518 (La.01/17/01), 776 So.2d 443; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” Johnson, supra.

Although the prosecutor’s remark was an inference drawn from Mr. Davis’ testimony and not a fact in evidence, we do not find that the remark resulted in substantial prejudice to defendant or deprived her of a fair trial. Whether or not the sale of the home was ultimately confected does not bear on the fact that defendant knowingly issued three worthless checks to Zamora Construction and Acadian Plumbing. Therefore, the prosecutor’s statement, even if improper, did not attribute to the guilty verdict and the error is harmless. In addition, the trial court twice charged the jury that statements made by the attorneys are not evidence. Finally, defense counsel specifically did not request an admonition to the jury to | disregard the remark. La.C.Cr.P. art. 771. Accordingly, we find no abuse of discretion in the trial court’s denial of defendant’s motion for mistrial.

Appellant additionally asserts that the trial judge, in the absence of granting a mistrial, should have admonished the jury regarding the State’s closing argument. Again, defense counsel did not request that an admonition be given to the jury. “In the absence of such a request, the trial judge need not admonish the jury.” State v. Ratcliff, 98-101, p. 13 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, 364, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541; State v. Mayer, 589 So.2d 1145, 1151 (La.App. 5 Cir.1991), writ denied, 609 So.2d 251 (La.1992).

This assignment of error lacks merit.

Errors Patent

The record was reviewed for errors patent pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). A review of the record reveals two errors patent requiring corrective action.

La.C.Cr.P. art. 895.1 states that “restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” The record reflects that the trial court failed to determine the amount of restitution owed or the manner in which the restitution would be paid as required by La.C.Cr.P. art. 895.1. Instead, the trial court left the calculations to the district attorney’s office. Therefore, we vacate defendant’s sentence and remand the matter for re-sentencing to afford the court the opportunity to consider the earning capacity and assets of defendant to set a determinate amount of restitution and the manner in which it will be paid in accordance with La.C.Cr.P. art. 895.1(A). See State v. Echeverria, 03-898, pp. 11-13 (La.App. 5 Cir. 11/25/03), 862 So.2d 163, 169-70; State v. Alexander, 91-1199,10 pp. 11-12 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 88, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628; State v. Peters, 611 So.2d 191, 191-93 (La.App. 5 Cir.1992).

Moreover, it appears that the trial court imposed an illegal sentence. La. R.S. 14:71(G) provides:

[T]he court shall order as part of the sentence restitution in the amount of the check or checks plus a fifteen dollar per check service charge payable to the person or entity that initially honored the worthless check, or checks, an authorized collection agency, or justice of the peace. In the event the fifteen dollar per check service charge is paid to a person or entity other than one who initially honored the worthless check or checks, the court shall also order as part of the sentence restitution equal to the amount that the bank or other depository charged the person or entity who initially honored the worthless check, plus the actual cost of notifying the offender of nonpayment as required in Paragraph A(2).

The record does not reflect that the trial court ordered restitution plus the per check service charge and cost to notify the offender of nonpayment as mandated by La. R.S. 14:71 (G).

For the foregoing reasons, we vacate defendant’s sentence and remand the matter for re-sentencing in accordance with the provisions of La. R.S. 14:71 and La. C.Cr.P. art. 895.1.

Decree

Considering the foregoing, defendant’s conviction is affirmed, sentence is vacated, and the matter is remanded for re-sentencing in accordance with the provisions of La. R.S. 14:71 and La.C.Cr.P. art. 895.1.

CONVICTION AFFIRMED; SENTENCE VACATED & REMANDED.

      . The trial court re-sentenced defendant to conform to certain probation guidelines at the request of Probation & Parole.

      . The record reveals that the trial court granted defendant a continuance on September 12, 2011, due to appointed counsel being newly assigned to the case. At that time, defendant's trial date was set for November 30, 2011.

      . La.C.Cr.P. art. 771 provides:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.