author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Jonathan M. MUSACCHIA.
    No. 13-KA-169.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Blair C. Constant, Myles Ranier, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

| ^Defendant, Jonathan Musacchia, appeals his conviction for attempted resisting a police officer with force or violence in violation of La. R.S. 14:27:108.2. Defendant challenges the sufficiency of the evidence presented against him at trial and further assigns as error the trial judge’s denial of his special jury charge request. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information on February 2, 2012, charging defendant with resisting a police officer with the use of violence or threats of violence in violation of La. R.S. 14:108.2. Defendant proceeded to trial and, on July 25, 2012, a six-person jury found defendant guilty of the responsive verdict of attempted resisting an officer with force or violence. On July |s31, 2012, after defendant waived sentencing delays, the trial judge sentenced defendant to a one-year suspended sentence at hard labor with credit for time served and further imposed upon defendant five years of probation. Defendant timely filed a motion to reconsider sentence, which the trial judge denied. This timely appeal follows.

FACTUAL BACKGROUND

Patrol Officer Joshua Wilkerson of the Kenner Police Department responded to a 9-1-1 call on January 3, 2011, concerning a domestic battery on East Loyola Drive. Upon arrival to the scene, Ms. Lindsay Conaway — the victim and defendant’s ex-girlfriend — flagged down Officer Wilkerson. Based upon his communications with Ms. Conaway, Officer Wilkerson identified defendant as the suspect in relation to the domestic disturbance call. Officer Wilkerson parked his police unit and, dressed in full uniform, approached defendant and asked, “[wjhat’s going on[?]” Officer Wilkerson testified that defendant responded using expletives, speaking with a belligerent, agitated tone and took an “aggressive stance” toward him.

For officer safety, Officer Wilkerson put defendant in an “escort position” and attempted to escort defendant to a nearby vehicle to conduct a pat down for weapons. Officer Wilkerson testified that as he attempted to escort defendant to the nearby vehicle, defendant “shoved” the officer’s hands off of him and told him, “get the hell off me.” When Officer Wilkerson grabbed defendant again to conduct a pat down for weapons, defendant used two hands to shove off of the vehicle and took a swing at him with a closed fist. Officer Wilkerson testified that, |4after defendant attempted to punch him, he tried to secure defendant and place him on the ground, where a physical altercation ensued.

As defendant and Officer Wilkerson struggled on the ground, Officer Mark Stein arrived in a backup capacity at the scene. Upon observing the struggle, Officer Stein radioed in a “108” to headquarters, which indicates that an officer needs assistance; Officer Stein testified that he reported a “108” because he observed Officer Wilkerson “obviously trying to apprehend somebody and was having trouble.” Officer Stein approached the struggle and, pursuant to Officer Wilkerson’s instruction, tased defendant. Thereafter, Officer Wilkerson put defendant in handcuffs and placed him under arrest. As a result of the physical struggle with defendant, Officer Wilkerson sustained lacerations to his elbow and bruising to his ribs, for which he received medical treatment.

Officer Wilkerson obtained a written statement regarding the alleged domestic battery from the victim, Ms. Conaway, who reported that defendant hit her in the face and damaged her cell phone in the driveway. At trial, Ms. Conaway testified that defendant is the father to her twin children but that she and defendant are no longer romantically involved. Ms. Cona-way recalled an altercation with defendant on January 3, 2011, but stated that the details were “a blur” and that she could not recall if defendant hit her on that day. Ms. Conaway testified that upon Officer Wilkerson’s arrival to the scene, she observed him speaking aggressively to defendant and instructing him to “get down.” She further testified that defendant was sitting on the ground “Indian-style” when the officers tased him. Ms. Conaway however also testified that she stood a block away and did not witness any altercation between defendant and Officer Wilkerson. Ms. 1 ¿Conaway testified that defendant is a “great father” to her two children and that she did not want to prosecute defendant for the altercation between her and defendant.

Mr. Donald Musacchia, defendant’s grandfather, testified that he was present on the scene at the time of defendant’s arrest. Mr. Musacchia observed Officer Wilkerson approach defendant, “slam” him against a nearby vehicle, and then grab him by the arms, bringing him to the ground. Mr. Musacchia testified that defendant did not fight with Officer Wilkerson and that defendant “was just sitting there” when officers tased him.

Defendant testified that when Officer Wilkerson approached, he informed the officer of the altercation with Ms. Conaway and complied with Officer Wilkerson’s instruction to turn around. Defendant testified that Officer Wilkerson then grabbed him by the shirt and “slammed” him on a nearby vehicle; he further stated that Officer Wilkerson wrapped both arms around him, lifted him up, and slammed him onto the street. Defendant denied pushing Officer Wilkerson’s hands off of him, attempting to punch him, or struggling with him. Defendant testified that he did not fight Officer Wilkerson and that he tried to comply with the officers’ instructions. Defendant further testified that he was sitting in the grass with his hands behind his back when Officer Wilkerson instructed Officer Stein to “tase him, tase him right now.”

Defendant testified that he also sustained injuries as a result of this incident. Specifically, defendant testified that he re-injured a prior left wrist injury and that he sustained additional abrasions to his fingers, hand, elbow, and forearm.

\ .DISCUSSION

We will first consider defendant’s claim that the evidence at trial was not sufficient to support his conviction. When the issues on appeal pertain to both sufficiency of the 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).

Defendant claims that all testimony, except Officer Wilkerson’s, proves that Officer Wilkerson used excessive force against defendant and that defendant did not resist the officer with force or violence. Defendant points out that Ms. Conaway’s and Mr. Musacchia’s testimony supports defendant’s position that he was “basically manhandled and tased without showing any resistance.” The state responds that Of-fleer Wilkerson’s testimony — that defendant swung at him with a closed fist as he, in full uniform, tried to conduct a pat down for weapons — supports the jury’s verdict. The state further asserts that all of the evidence, when viewed in the light most favorable to the prosecution, is sufficient to support defendant’s conviction.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600. An appellate court’s primary function is not to redetermine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the 17light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671.

Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

Defendant was charged with resisting a police officer with force or violence in violation of La. R.S. 14:108.2(A), which provides:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.

Although defendant was charged with resisting a police officer with force or violence in violation of La. R.S. 14:108.2, defendant was convicted of the lesser [^responsive verdict of attempted resisting a police officer with force or violence. An attempt occurs “when the offender, having the specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object.” La. R.S. 14:27. Attempt requires both the specific intent to commit a crime and an act tending directly toward accomplishment of that crime. State v. Prine, 44,229, 44,230 (La.App. 2 Cir. 5/20/09), 13 So.3d 758, 764, writ denied, 09-1361 (La.2/5/10), 27 So.3d 298. “Attempt” is “a separate but lesser grade of the intended crime [;] ” further, even though the evidence at trial may show that the crime attempted was actually completed by the defendant, he may nevertheless be convicted of an attempt to commit the crime. La. R.S. 14:27(C).

In this case, the state presented evidence that Officer Wilkerson arrived at the scene in a marked police unit and dressed in full uniform to investigate the reported domestic battery. Officer Wilkerson testified that domestic disturbance calls are the most dangerous because, upon a responding officer’s arrival, the environment is already “heated” and “hostile.”

Officer Wilkerson testified that defendant responded to the officer’s arrival with an aggressive stance and belligerent tone. Officer Wilkerson further testified that when he placed defendant in an escort position to conduct a pat down search for officer safety, defendant physically resisted and took a swing at him with a closed fist. Officer Stem’s testimony reflects that defendant and Officer Wilkerson physically struggled on the ground until Officer Stein tased defendant. Defendant | flargues that the defense witness’ testimony proves that defendant did not resist or fight Officer Wilkerson but rather complied with the officer’s instructions.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Although defendant, his grandfather, and his ex-girlfriend testified that defendant did not attempt to punch nor fight with Officer Wilkerson, the jury obviously found the officers’ testimony more credible. In the absence of internal conflict or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297.

Accordingly, we find the evidence sufficient to support the charged offense of resisting a police officer with force or violence, in violation of La. R.S. 14:108.2. Because we find the state proved all necessary elements of the greater charged offense of resisting a police officer with force or violence, the evidence was then clearly sufficient to support the jury’s verdict of the lesser responsive offense of attempted resisting a police officer with force or violence. State v. Shraeder, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990). In cases where the evidence at trial supports the greater charged offense but the jury returns a lesser responsive verdict, the Louisiana Supreme Court has recognized that such a result recognizes the legitimacy of a “compromise” verdict. Id.

Accordingly, upon review of the record, we find that reasonable jurors, viewing the evidence in the light most favorable to the prosecution, could conclude [ 10beyond a reasonable doubt that defendant committed the offense of attempted resisting a police officer with force or violence. This assignment lacks merit.

In his next assignment of error, defendant claims that the trial court erred in denying his written request for a special jury charge. Prior to jury deliberations, defense counsel submitted a written special jury charge request: “[i]f you find that the defendant resisted arrest but not by force or violence you must find him not guilty.” The trial judge asked counsel for jurisprudential or statutory authority to support the charge; defense counsel provided no legal citation in support of the requested jury charge. The trial judge denied the request.

Both the state and defendant concede that misdemeanor resisting arrest is not a responsive verdict to the charged crime and defendant does not assign error to the correctness of the responsive verdicts provided in this case. Rather, defendant asserts that the trial court erred in not explaining to the jury that a finding of resisting arrest without the use of force or violence in this case necessarily required the jury to find defendant not guilty. The state responds that the requested jury charge would have required the trial judge to explain the elements of a non-responsive offense (misdemeanor resisting arrest) and would have therefore required explanation, qualification, or limitation and may have confused the jury. Further, the state argues that the trial court adequately instructed the jury on the elements of the charged offense; the state points out that the trial judge instructed the jury that if the state failed to prove any element of the charged offense or lesser responsive verdict beyond a reasonable doubt, the jury should find defendant not guilty.

Under La.C.Cr.P. art. 802, the trial judge is required to instruct the jury “as to the law applicable to the case.” The state and the defendant have a right to ^submit written requests for special jury charges. La.C.Cr.P. art. 807. “A special charge shall be given by the court- if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” Id. Further, a “special charge need not be given if it is adequately covered by the general charge.” State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921; La.C.Cr.P. art. 807. Moreover, failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantive rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 936, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269.

Defendant relies on State v. Marse, 365 So.2d 1319 (La.1978), to support his position that his request for a special jury instruction should have been granted. Marse was a murder case in which the defense presented that the defendant actually committed the crime of negligent homicide, which is not a responsive verdict to the charge of murder. The Court in Marse found the trial judge erred in failing to instruct the jury on negligent homicide upon request because the trial judge is required to charge the jury as to the law applicable to any theory of defense. The Court however found it was not reversible error because the jury was adequately informed of its duty to acquit the defendant in the event it found defendant guilty of an uncharged crime. Id.

In Marse, defense counsel presented evidence so as to lay out his theory of defense — that the defendant actually committed the uncharged crime of negligent homicide — and supportive argument to the jury. In this case, defense counsel failed either to present evidence or argue to the jury the theory that defendant was guilty, if at all, of the non-responsive misdemeanor of resisting arrest. Therefore, we find Marse is distinguishable; we further find that, based on the lack of | ^argument or evidence presented to the jury in this case as to the theory of defense that defendant actually committed the uncharged crime of misdemeanor resisting arrest, the trial court had no basis to give the requested instruction.

Furthermore, we find no error in the trial judge’s denial of defendant’s request for the special jury charge because the requested charge — “[i]f you find that defendant resisted arrest but not by force or violence you must find him not guilty” — is adequately included or covered in the general charges to the jury. The trial judge instructed the jury, in pertinent part, as follows:

The Defendant is charged with resisting an officer with force or violence ...
[T]o convict the Defendant of resisting an officer with force or violence, you must find that the Defendant used or threatened force or violence toward a police officer, and that the police officer was performing any official duty at the time ...
A responsive verdict to the crime of resisting an officer with force or violence is attempted resisting an officer with force or violence ... in order to convict the Defendant of attempting resisting an officer with force of violence, you must find that the Defendant had a specific intent to commit the crime of resisting an officer with force or violence, and that the Defendant did or omitted an act for the purpose of and tending directly toward the commission of the crime of resisting an officer with force or violence
A further responsive verdict to the crime of resisting an officer with force or violence is not guilty. If the State has failed to prove beyond a reasonable doubt that the Defendant is guilty of either the [] offense charged or of a lesser responsive offense, the form of your verdict should be not guilty ...
[T]o convict the Defendant of the offense charged, you must find beyond a reasonable doubt that the State proved every element of the offense charged ...

11sThe trial judge instructed the jury that if the state failed to prove the elements of the charged offense or the lesser responsive offense, it should return a verdict of not guilty. We find the trial judge sufficiently informed the jury of its duty to acquit defendant if the evidence did not support each element of the charged offense of resisting a police officer with force or violence or the lesser responsive verdict of attempted resisting a police officer with force or violence.

Defendant further contends that the trial judge’s error in denying his special jury charge request was compounded when, during jury deliberations, the jury submitted a note to the trial court inquiring whether a misdemeanor verdict applied and asking for the applicable sentence for each responsive verdict. In response to the jury’s questions, the trial judge informed the jury that he could not respond and instructed the jury to return to deliberations. Defendant now argues that the trial judge erred in failing to respond to the jury’s questions regarding misdemean- or offenses.

The record reflects that defense counsel did not object to the trial judge’s response to the jury’s questions. Failure to contemporaneously object to a trial court error constitutes a waiver of the right to complain on appeal. La.C.Cr.P. art. 841. The contemporaneous objection rule is specifically designed to promote judicial efficiency by preventing a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the trial court level. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 368, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). Therefore, because defendant failed to object or complain of the trial judge’s response to the jury’s note submitted during deliberations, defendant is precluded from raising this argument for the first time on appeal.

I,¿CONCLUSION

For the reasons discussed herein, we find defendant’s assignment of error regarding the special jury charge request lacks merit. We further find the evidence presented at trial sufficient to support defendant’s conviction for attempted resisting a police officer with force or violence in violation of La. R.S. 14:27:108.2. Accordingly, defendant’s conviction and sentence are affirmed.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The record reflects that the trial court failed to adequately advise defendant of the time period for seeking post-conviction relief as required by La.C.Cr.P. art. 930.8. Accordingly, we hereby advise defendant that, pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922. See State v. Ramsey, 10-333 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42.

AFFIRMED.

      . Defendant was arraigned on March 12, 2012, and pled not guilty.

      . The trial judge ordered the first two years to be served on active probation, followed by three years of inactive probation. As special conditions of defendant's probation, the trial court ordered that defendant undergo evaluation and complete all treatment recommended by the Intensive Probation Services Division for substance abuse and mental health issues. He further ordered that defendant undergo random drug screening, complete 100 hours of community service, and obtain a GED or votech training in a trade if defendant did not have proof of a high school diploma.

      . Officer Wilkerson testified that, due to the physical struggle with defendant, he was unable to access his own taser, pepper spray, or handcuffs. Officer Stein testified that, after observation of the physical struggle, he intended to tase defendant regardless of Officer Wilkerson’s instruction to do so.

      . At trial, Ms. Conaway testified that the cell phone “dropped” in the driveway.

      . When questioned regarding the altercation with Ms. Conaway, defendant admitted to breaking Ms. Conaway’s cell phone but denied hitting her that day. On cross-examination, defendant testified that he "smashed” Ms. Conaway’s cell phone because he no longer wanted to pay for Ms. Conaway’s cell phone use. He denied that he smashed the cell phone to prevent Ms. Conaway from calling the police after he hit her.

      . Defendant testified that Officer Stein appeared hesitant to tase him upon Officer Wilkerson’s instructions. When questioned if he was hesitant to tase defendant, Officer Stein testified that he was not hesitant to tase defendant but that he had "trouble getting it out, my taser.”

      . Ms. Conaway further confirmed the existence of defendant’s prior left wrist injury. Ms. Conaway testified that the prior injury limited defendant's use of his left arm and hand.

      . Defendant further asserts that his prior left wrist injury proves that he was unable to resist Officer Wilkerson after he placed defendant into an “escort position” with his left arm behind his back.

      . "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent is a state of mind and, therefore, need not be proven as fact, but may be inferred from the circumstances and actions of the accused. State Petty, 99-1307 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, 949, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301.

      . In denying the request, the trial judge stated, "[y]ou ask for a charge, you give me a cite. We don’t make it up as we go along.”

      . The responsive verdicts provided to the jury in this case were: (1) Guilty of Resisting a Police Officer with Force or Violence; (2) Guilty of Attempted Resisting a Police Officer with Force or Violence; (3) Not Guilty.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Darren STERLING.
    No. 13-KA-287.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Thomas F. Daley, District Attorney, Philip Prescott, Assistant District Attorney, Edgard, Louisiana, Counsel for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, Counsel for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Defendant, Darren Sterling, was charged with four counts of attempted first degree murder (Counts 1 through 4) and one count of possession of a weapon by a convicted felon (Count 5). Thereafter, the trial judge severed Count 5.

Defendant was tried before a twelve-person jury that found defendant guilty of aggravated battery on Count 1 and not guilty on Counts 2, 3, and 4. Pursuant to a multiple bill hearing, the trial court found defendant to be a “fifth felony offender” and defendant was sentenced to imprisonment in the Department of Corrections for 50 years without benefit of probation, parole, or suspension of sentence. After the denial of defendant’s motion to reconsider sentence, this appeal followed. For the reasons stated below, we affirm defendant’s conviction and sentence.

Facts and Procedural History

On December 31, 2010, Andrea Franklin was locking the door of her hair salon while talking to Tranda Crier, a customer, when defendant, Ms. Franklin’s long-time live-in boyfriend, pulled up in a car and approached her. Defendant 13made a comment to Ms. Franklin about her throwing his personal belongings out of the house and then he hit her in the head, causing her sunglasses and one of her earrings to fall off. Defendant then stepped back, pulled a gun from his pants, and shot Ms. Franklin twice in the abdomen. Afterward, Ms. Franklin ran to Ms. Crier’s car, and defendant ran behind her. Ms. Franklin jumped into the front passenger seat of the car, sat on one of Ms. Crier’s daughters, and closed the door. Defendant shot into the car, and the bullet shattered the glass and grazed Ms. Franklin’s arm and breast.

Assignments of Error & Discussion

In his first assignment of error, defendant contends that the trial judge erred by denying his motion for a new trial. He claims that the evidence was insufficient to support the verdict of aggravated battery and the State did not rebut his claim of self-defense.

Defendant filed a motion for judgment of acquittal arguing that the evidence did not reasonably permit a finding of guilty. Defendant additionally filed a motion for a new trial pursuant to La.C.Cr.P. art. 851(1) and (5), arguing that the verdict was contrary to the law and the evidence, and that the ends of justice would be served by the granting of a new trial. A hearing was held on defendant’s motions wherein defense counsel informed the court that both motions were based on the same argument. The motions were denied without reasons.

A post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. La. C.Cr.P. art. 821B. The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. See La.C.Cr.P. art. 821; State v. Hampton, 98-331 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 17, writ denied, 11-282 (La.6/17/11), 63 So.3d 1039. Thus, the denial of defendant’s motion for post-verdict judgment of acquittal based on the sufficiency of the evidence is properly before this Court on review.

A motion for a new trial is based on the supposition that injustice has been done to the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La.C.Cr.P. art. 851. The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle, 06-898 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 829, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154. On motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. La.C.Cr.P. art. 851(1). When a motion for a new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163. However, both the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. Id. Therefore, the denial of defendant’s motion for a new trial based on the sufficiency of the evidence will be addressed by this Court on review.

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 rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

In cases involving circumstantial evidence, the trial court must instruct the jury 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. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. The reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

Defendant was charged with attempted first degree murder, but was convicted of the responsive verdict of aggravated battery (Count 1). To support a conviction of aggravated battery, the State must prove: (1) the defendant intentionally used force or violence against the victim; (2) the force or violence was inflicted with a dangerous weapon; and (3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. La. R.S. 14:34; State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2A(3).

Defendant contends that his actions were justified because they were committed in self-defense. The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime | abased on that conduct. La. R.S. 14:18. The 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. 14:19A. 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.

When self-defense 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. State v. Rainey, 722 So.2d at 1103. However, in non-homicide cases, this Court has found that the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense. See State v. Nailor, 10-1062 (La.App. 5 Cir. 11/15/11), 78 So.3d 816, 821, writ denied, 11-2780 (La.4/27/12), 86 So.3d 626.

Ms. Franklin testified that defendant went to her shop, jumped out of Keith Robertson’s vehicle, approached her, and hit her. Afterward, defendant pulled a gun from his pants and shot Ms. Franklin twice in her abdomen. Ms. Franklin ran away from defendant, got into Ms. Crier’s vehicle, and shut the door. Defendant subsequently ran after Ms. Franklin and fired the gun into the vehicle, shattering the glass, and grazing Ms. Franklin’s arm and breast. Defendant then fled the scene. Ms. Franklin’s version of the events was corroborated at trial by Ms. Crier and Mr. Robertson. Additionally, Officer Michael Boyington, of the St. John the Baptist Parish Sheriff’s Office, testified that defendant admitted he shot Ms. Franklin because he had cancer and she was “hurting him.”

1 ./Defendant testified that Mr. Robertson picked him up and drove him to Ms. Franklin’s shop after he was informed that Ms. Franklin had thrown his belongings out in the yard. He testified that he pushed Ms. Franklin, that Ms. Franklin then reached into her purse and pulled out a gun, that he took the gun and pushed her, and that the gun “went off.” Defendant further testified that when Ms. Franklin ran and jumped in Ms. Crier’s vehicle, the gun jammed and “went off’ again. Defendant testified that he grabbed the gun because he did not want to get shot and that he was defending himself and not trying to kill anyone.

The State’s firearms expert, Patrick Lane, testified that the gun was in good working order, that it would not just go off by itself, that someone would have to pull the trigger in order for it to fire, and that there was nothing about the firearm that would cause it to go off without somebody pulling the trigger.

After hearing the testimony, the jury obviously found the State’s witnesses to be credible and rejected defendant’s version of events. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

A rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant’s conviction of aggravated battery. The evidence showed that defendant intentionally used force or violence against Ms. Franklin, that the force or violence was inflicted with a dangerous weapon, and that the dangerous weapon was used in a manner likely to cause death or great bodily harm. Additionally, a rational trier of fact could have found that, under either burden of proof, the evidence was sufficient to establish that defendant did not act in self-defense. Defendant brought the gun with him to Ms. Franklin’s |sshop and fired it repeatedly at Ms. Franklin, even though Ms. Franklin did nothing to provoke him. Defendant cannot claim the right of self-defense since he was the aggressor and he did not withdraw from the conflict. Accordingly, this assignment of error is without merit.

In his second assignment of error, defendant contends that the trial judge erred in not declaring a mistrial when a woman yelled out “murderer” in the presence of the jurors. He contends that this outburst prejudiced the defense and made a fair trial highly unlikely.

The record indicates that during the trial, after a witness left the witness stand, there was a disturbance in the courtroom. The trial judge took a recess, after which she asked, “Who was that?” The state and the bailiff said they thought it was the wife of a witness, Keith Robertson. The trial judge asked what the woman said and defense counsel stated that she screamed “murderer.” The trial judge ordered the woman, Keisha Dawson, to approach and Ms. Dawson apologized for what she said. When the trial judge asked her what she said, Ms. Dawson replied, “murderer.” The trial judge subsequently found Ms. Dawson in contempt of court and ordered that she be taken into custody.

The State thought the court should question the jury to determine what they heard and how it affected them. Defense counsel disagreed and moved for a mistrial, arguing that an admonishment would be insufficient. The trial judge questioned each juror individually. Jurors 1, 8, 4, 5, 6, and 10 and alternate 2 heard the outburst and all of them, including the jurors who did not hear it, said that the outburst did not affect their ability to be fair and impartial in this case.

The trial judge stated that the comment was not made by a judge, a district attorney, or a court official. She found that the jury was not prejudiced by the remark, that it did not affect any of them, and that she thought the jury looked at it |flsimply as an emotional outburst. The trial judge said that she would give an admonition to the jury to disregard what was heard if the defendant or the State requested it and denied the motion over defense counsel’s objection. When the jury was brought back out, the trial judge issued a formal admonition informing them to disregard anything they heard or saw. The trial judge further instructed the jurors that they were not to consider it at all as part of the evidence and told them to not allow it to affect their feelings or deliberations.

A mistrial is a drastic remedy, and except when mandatory, is warranted only when a trial error results in substantial prejudice to defendant depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285. According to La.C.Cr.P. art 775, upon a defendant’s motion, a mistrial shall be ordered, and in a jury trial the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

La.C.Cr.P. art. 770 provides in pertinent part that upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (1) race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury; (2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; (3) the failure of the defendant to testify in his own defense; or (4) the refusal of the judge to direct a verdict.

| i0La.C.Cr.P. art. 771 provides in pertinent part:

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:
(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.

The trial judge did not err by denying the motion for mistrial. First, a mistrial was not mandatory under La.C.Cr.P. art. 770 because the comment was not made by a judge, district attorney, or court official. Second, the trial judge questioned each juror individually to ascertain the impact of the outburst upon them. The jurors who heard the outburst, and even those who did not hear it, said that it did not affect their ability to be fair and impartial in this case. Third, the trial judge also admonished the jury, telling them to disregard whatever they had heard or saw and to not consider it at all as part of the evidence and to not allow it to affect their feelings or deliberations. The trial judge also instructed the jury that they were not to be influenced by sympathy, passion, prejudice, or public opinion. See State v. Alexander, 12-807 (La.App. 5 Cir. 5/16/13), 118 So.3d 1138, 1154; State v. Brown, 96-1002 (La.App. 5 Cir. 4/9/97), 694 So.2d 435, 439 writ denied, 97-1310 (La.10/31/97), 703 So.2d 19; State v. Hopkins, 626 So.2d 820 (La.App. 2 Cir.1993). Lastly, defendant has not demonstrated and the record does not reflect how the outburst prejudiced him to such a degree that a mistrial was warranted. See State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 183, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999); State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1249, writ denied, 13-306 (La.6/21/13), 118 So.3d 413; Alexander, supra. Thus, this assignment of error is without merit.

In his third assignment of error, defendant argues that his 50-year enhanced sentence is unconstitutionally excessive. He contends that the sentence is too severe considering the weak facts of this case and his health issues. Defendant asserts that the trial judge gave no justification for the sentence, that there was nothing particularly heinous or offensive about this crime, and that the sentence does nothing to rehabilitate him or teach him a trade.

Defendant filed a sentencing memorandum arguing for a deviation from the mandatory minimum sentence pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993). A pre-sentence investigation (PSI) was subsequently completed. Additionally, defendant filed a “Motion to Deviate from the Mandatory Minimum Sentence” in the event he was found to be a multiple offender. Pursuant to a multiple bill hearing, defendant was found to be a fifth felony offender.

During the sentencing hearing, the trial judge indicated she had read the PSI, the letters on behalf of defendant and the victim, and defendant’s motion to deviate. The trial judge noted that aggravated battery was a crime of violence under La. R.S. 14:2. The trial judge further noted as mitigating factors that defendant was 45 years old, had a normal mental capacity, went to a very nice school, St. Augustine High School, and received an associate degree. However, she stated that at some point defendant’s life went “downhill,” that he was a fifth felony offender and that he had numerous arrests for violent crimes, non-violent crimes, drug crimes, crimes of violence, and crimes involving firearms and drugs.

112The trial judge stated that an aggravating circumstance in this case was that a firearm was discharged multiple times in the vicinity of other people and children, as well as the victim. She said that because of the circumstances, particularly the violence involved, and the record of defendant, she was sentencing defendant under the multiple bill statute to imprisonment in the Department of Corrections for 50 years without benefit of probation, parole, or suspension of sentence.

Defendant filed a motion for reconsideration of sentence, arguing that the sentence was excessive given his health issues, his age, his lack of convictions, and the likelihood of rehabilitation, which the trial judge denied.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In Reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the |]3crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id. at 656.

Defendant was convicted of aggravated battery and subsequently found to be a “fifth felony offender.” La. R.S. 15:529.1A(1)(c)(ii) provides in pertinent part:

(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), ..., or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-859 (La.6/15/07), 958 So.2d 1179. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the ease.” Id. at 28. Departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. Id. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Id.

| defendant’s underlying offense, aggravated battery, is punishable by imprisonment for a term less than defendant’s natural life. Aggravated battery is defined as a crime of violence under La. R.S. 14:2B(5). One of defendant’s prior convictions was for aggravated burglary (La. R.S. 14:60), which is a crime of violence under La. R.S. 14:2B(20), and it is punishable by imprisonment for not less than one nor more than 30 years. Another prior conviction was for simple possession of heroin (La. R.S. 40:966C), which is a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for not less than four years nor more than ten years. The trial judge found defendant to be a fifth felony offender based on these two convictions and three other prior convictions. Thus, under the habitual offender statute, defendant was subject to an enhanced mandatory minimum sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Accordingly, defendant’s 50-year enhanced sentence is illegally lenient. However, neither the State nor defendant raised that issue below or on appeal.

Pursuant to La.C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. This authority is permissive rather than mandatory. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830. Prior to sentencing defendant as a fifth felony offender, the trial court noted defendant’s age, mental status and education. The court additionally expressed concern about the violent nature of this crime and defendant firing a weapon at close range to the victim with children in the vicinity. Under the circumstances of this case, we decline to exercise our discretion under La.C.Cr.P. art. 882 to correct the illegally lenient sentence.

115 After reviewing the record, including defendant’s prior convictions, we find that the 50-year sentence for a fifth felony offense is not unconstitutionally excessive. Additionally, defendant has an extensive criminal history, and his crime was particularly violent in that he shot at the victim multiple times at close range in the vicinity of children. Pursuant to La. R.S. 15:529.1A(l)(c)(ii), the mandatory minimum sentence for defendant was actually life imprisonment without benefit of parole, probation, or suspension of sentence. Thus, we find no merit to this assignment of error.

In his fourth assignment of error, defendant argues that the trial judge erred in failing to replace a sleeping juror with an alternate prior to deliberations at the request of defense counsel.

The record reflects that after the jury was instructed and just before it retired for deliberations, defense counsel requested a side-bar. He said he wanted the record to reflect that when the trial judge stopped during the jury charges and addressed a juror, Mr. Freeman, it was because the juror was “nodding off.” Defense counsel and the State added that the juror was “nodding off’ in their closing arguments as well. The trial judge agreed and said the juror “nodded off’ several other times during trial, including voir dire and when he was sitting out in the hall, but noted that defense counsel and the State still chose him.

When the trial judge again asked defense counsel what he wanted to do about it, he replied that he did not know. The trial judge stated that she did not see the juror sleeping for any extended period of time, and that usually someone nudged the juror when he was sleeping. Defense counsel asserted that he did not know if the juror was falling asleep during the trial because he could not see from where he was sitting. The trial judge said that at one time, while the jury was passing around the exhibits, she thought she saw the juror sleeping. The trial judge | ^subsequently stated that she did not know for sure whether the juror was actually asleep during the taking of evidence and, therefore, she was not going to remove him at that time.

La.C.Cr.P. art. 789A provides in pertinent part: “The court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.”

The trial judge did not err by not removing the juror in question, Mr. Freeman. Although the juror was observed “nodding off’ during voir dire, the viewing of exhibits, the jury instructions, and closing arguments, he was not observed sleeping during a substantial part of the trial or during the taking of evidence at trial. See State v. Cass, 356 So.2d 396, 397-398 (La.1977); State v. King, 11-767 (La.App. 5 Cir. 2/28/12), 88 So.3d 1147, 1155-1156, writ denied, 12-660 (La.9/14/12), 99 So.3d 35. The trial judge stated that she did not see the juror asleep for any extended period of time and that someone would nudge the juror when he was sleeping. Further, defendant did not request a hearing to determine whether the juror was actually asleep or unable to perform his function. See King, supra; State v. Johnson, 463 So.2d 620 (La.App. 1 Cir.1984). Even if the juror briefly dozed off, this would not be per se proof that he was unable to perform his duties, or that he should be disqualified, and thus, there would be no legal cause for removing him. See Cass, supra. Moreover, defendant did not promptly bring the matter to the court’s attention. The record shows that defendant only made an objection just prior to deliberations even though he saw the juror | i7asleep during voir dire. See King, supra. Therefore, this assignment of error is without merit.

Error Patent Discussion

Defendant requests an error patent review. This Court automatically reviews the record for errors patent according to the mandates of 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) regardless of whether defendant makes such a request. A review of the record reveals that there are no errors patent that require corrective action.

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

CONVICTION AND SENTENCE AFFIRMED.

      . Count 1: attempted first degree murder of Andrea Franklin (La. R.S. 14:27/30); Count 2: attempted first degree murder of Tranda Crier (La. R.S. 14:27/30); Count 3: attempted first degree murder of juvenile, T.C. (La. R.S. 14:27/30); Count 4: attempted first degree murder of juvenile, K.C. (La. R.S. 14:27/30).

      . The State entered a nolle prosequi on Count 5.

      . Defendant was not sentenced on the underlying conviction of aggravated batteiy. However, the habitual offender statute does not require that an original sentence be imposed prior to the imposition of an enhanced sentence. See State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 455 n. 2, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161.

      . Defendant admitted during examination that he was a fifth felony offender.

      . La. R.S. 14:34 provides that whoever commits an aggravated battery shall be fined not more than $5,000.00, imprisoned with or without hard labor for not more than ten years, or both.

      . The State indicates that defendant was not prejudiced by Mr. Freeman (Juror 12) serving on the jury, since Mr. Freeman was one of two jurors who voted "not guilty." In order to prove this assertion, the State attached to its brief a copy of Juror 12's poll sheet, which is not found in the record. However, the court of appeal has no authority to consider matters attached to briefs that are not found in the appellate record. Distefano v. B & P Const., Inc., 04-25 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 411, writ denied, 04-1735 (La. 10/15/04), 883 So.2d 1058.


text:
    STATE of Louisiana v. Khanh LE.
    No. 13-KA-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Assistant District Gretna, Louisiana, for Plaintifi/Appellee.

      Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERTA. CHAISSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12Pefendant, Khanh Le, along with co-defendant Katherine Le, was charged with the intentional discharge of a firearm during the commission of an aggravated assault and/or aggravated criminal damage to property, wherein it was foreseeable that it may result in death or great bodily harm, in violation of La. R.S. 14:95F. Both proceeded to trial by jury, after which defendant Khanh Le was found guilty and Katherine Le was found not guilty. Defendant was sentenced to 15 years imprisonment with the Department of Corrections, to be served without benefit of parole, probation, or suspension of sentence. Defendant now appeals his conviction and sentence.

FACTS ADDUCED AT TRIAL

On October 4, 2009, gunshots were fired into Club Fusion located on Lapalco Boulevard in Harvey. Three eyewitnesses, Kevin Smith, Kim Bui, and Dianna Luong, named defendant as the shooter.

At the time of the incident, Club Fusion was managed by Dianna Luong, mother of the registered owner, who also served as the club’s bartender. Kim Bui, also a daughter of Ms. Luong, worked as one of the waitresses at the club. Kevin Smith worked part-time, on weekends, as the club’s doorman. Ms. Luong testified that defendant and Ms. Le were frequent patrons of the club, and went there every weekend.

^Approximately two weeks before the shooting, defendant was banned from the club because of a riot that started inside the club and escalated into a fight in the parking lot. Mr. Smith testified that he has known defendant for two years from defendant’s weekly visits to the club, and that “every time he comes to the club, he always cause [sic] problems.”

On the night of the shooting, defendant attempted to enter the club five times but Mr. Smith prevented him from doing so, explaining that he was “not welcome there.” Defendant eventually walked away towards the parking lot. Meanwhile, defendant’s wife, co-defendant Ms. Le, was inside the club where she got into an argument with one of the customers and Mr. Smith was called to escort her outside. Once Ms. Le was outside, Mr. Smith went back inside the club to make sure “everything was straight.” When Mr. Smith went back towards the open front door of the club he observed defendant with a gun in his hand. Mr. Smith then saw defendant start shooting inside the club. When the shooting started, he closed the front door and took cover. Mr. Smith testified that Ms. Le was outside at the time of the shooting but could not recall if Ms. Le was standing next to defendant at the time of the shooting. After the shooting ceased, Mr. Smith saw defendant leave in a white SUV. He did not see Ms. Le leave with defendant.

Kim Bui testified that on the night in question, defendant and Ms. Le entered the club and sat down at a table together, but at some point were asked to leave. Ms. Bui testified that she went outside to smoke a cigarette and heard Ms. Le yelling at defendant to “shoot at the place.” Defendant and Ms. Le were standing |4in front of the club, by the door, when defendant started shooting. When the shooting started, Ms. Bui ran back inside the club. Ms. Bui testified that there were over 50 people in the club that night, and when the shots were fired it was “complete chaos.” She was positive that defendant was the individual who fired the shots into the club. Ms. Bui testified that she is familiar with defendant and Ms. Le from their occasional patronage at the club. She testified that she is afraid of defendant and Ms. Le and in the past she has attempted to get a restraining order against them, but she was told they could not get one “on the business because it’s a public place.” Ms. Bui admitted at trial that it was not until a week before trial that she told the prosecutor that she had witnessed the shooting.

Ms. Luong testified as to the events as follows. On the night of the incident, Ms. Le entered the club and “picked a fight” with a woman. As a result, Mr. Smith escorted Ms. Le out of the club. Defendant also tried to enter the club but Mr. Smith would not let him inside. Ms. Luong testified that she was standing by the front door, which was open, when she heard Ms. Le tell defendant to “shoot them.” In response, defendant pulled out a gun and fired about “six rounds.” After the first shots were fired, she ran to one of the side doors in the club and looked outside where she saw defendant still shooting and then observed defendant and Ms. Le flee towards the parking lot.

Lieutenant Mike Kinler, of the Jefferson Parish Sheriffs Office, testified that on October 4, 2009, at approximately 3:30 A.M., he also responded to the shooting at the Fusion Club. Upon arrival at the scene, Lieutenant Kinler identified and interviewed several potential witnesses. From his conversations with various witnesses he was able to identify a potential suspect. The shooter, |5known by Mr. Smith, the club’s doorman, as “Kenny” was said to have left in a white Mercedes SUV. The mention of a gold Honda vehicle was also made by various witnesses, however, Lieutenant Kinler could not recall who provided this information. Lieutenant Kinler also indicated that reference to a gold Honda was also recorded on one of the 911 transcripts. The officers searched for the gold Honda and white Mercedes SUV at a nearby club known as Club Hawaii where defendant was known to frequent, however, the club was closed when they arrived. Both defendant and Ms. Le admitted that they were the owners of a gold Honda Accord.

Ms. Luong also testified that at some point after the shooting, defendant told Ms. Luong that he was “sorry” and asked her if she would drop the case. She also testified that a week before trial defendant called her and told her that she “point [sic] the wrong person that night of the shooting.”

The defense presented a different version of the events at trial. Defendant took the stand on his own behalf and testified that on the night of the shooting, he and Ms. Le went to Club Hawaii between 11:00 P.M. and midnight. The two rode to Club Hawaii together in their gold Honda Accord. Once at Club Hawaii they met up with two friends, Mr. Thovan Do and Ms. Kim Nguyen. While there, defendant and Ms. Le got into an argument and Ms. Le left the bar in their car. Defendant believed she was likely going to the Fusion Club. When defendant was ready to leave, he called his friend Loan Le, who came and picked him up from Club Hawaii between 4:00-4:30 A.M. His friend took him to her home where he spent the night. This testimony was corroborated by Mr. Do and Ms. Nguyen. However, both admitted at trial that they never reported this information to the |6police. Mr. Do further testified that since the shooting incident he had seen both defendant and Ms. Le in the Fusion Club about eight or nine times.

Loan Le testified that between 4:00 and 4:30 a.m., defendant called her and asked her to pick him up at the Hawaii Club and take him home. She picked him up at the Hawaii Club and took him to her house where defendant spent the night. She testified that they did not stop at the Fusion Club on the way home.

Defendant’s wife, Ms. Le, also testified that on the night of the shooting, she and defendant drove to Club Hawaii between 11:00 P.M. and midnight in her Honda Accord. Ms. Le testified that she left Club Hawaii after seeing her husband “talking to another woman.” She then drove to the Fusion Club by herself. Once inside the club, she and the waitress from the prior September 2009 altercation exchanged words and Ms. Le was asked to leave by Ms. Luong and Mr. Smith. As Ms. Luong and Mr. Smith were escorting her out, she heard gunshots. Ms. Le testified that they were inside, a foot away from the front door, when the shots were fired. After the gunshots ceased, she ran to her Honda Accord and left the club. She testified that she never saw defendant at Club Fusion that morning, nor did she yell out for him to “shoot.”

Alice Tran, the owner of Club Hawaii, testified that she had known defendant and Ms. Le for eight or nine years. On the night of the shooting, she closed her bar between 4:00 and 4:30 A.M. Ms. Tran testified that she saw defendant and Ms. Le in her bar that night. According to Ms. Tran, Ms. Le left the bar early and defendant left sometime after her. Ms. Tran was not certain, but she believed defendant left her bar approximately 30-45 minutes before she closed. However, Jefferson Parish Sheriffs Officer James Carrigan testified that at 4:10 A.M. on the morning of the shooting, he went to Club Hawaii to check for a gold Honda and a white Mercedes SUV, and the Club was closed when he arrived.

| ^Defendant also testified at trial that he did not own a white Mercedes SUV. He admitted that he was the owner of a white Acura MDX, which was in a repair shop on the night of the incident. Dung Tran, the owner of the Barataría Collision Center, located in Marrero, testified that he had known defendant for 15 years. Mr. Tran testified that defendant brought in his 2006 white Acura MDX to be repaired in January of 2009, and that two years later, the vehicle was still in his shop because defendant could not pay the bill. Mr. Tran testified that he took the main fuse out of the car so it could not be driven. On cross-examination, Mr. Tran testified that defendant had abandoned the vehicle and left him with the bill.

In contrast, Deputy Jeffery Reynolds testified that he had responded to a disturbance call two weeks before the shooting. The defendant and Ms. Le were each involved in the disturbance, which was a different incident from the September 2009 altercation in the parking lot. Once there, Deputy Reynolds had to place defendant inside his vehicle, which was a white Mercedes SUV. When Deputy Reynolds was investigating the instant shooting, the “owner” of the club advised him that the man he had placed in the white Mercedes SUV before “was the guy that did the shooting.”

Finally, both defendant and Ms. Le testified that they were angry with Ms. Luong, who they believed was the owner of the club, because she stood up for the waitress instead of Ms. Le, whom they claimed caused the September 2009 altercation. Sometime after that altercation and before the instant shooting, Ms. Le reported claims of illegal activities with the Health Department, IRS and “Medicare.” As a result of the complaint lodged with the Health Department, the Fusion Club’s kitchen was shut down. On cross-examination, Ms. Luong admitted that the Health Department closed down her kitchen after Ms. Le reported her to |sthe authorities. Also, on cross-examination, Ms. Luong denied that prostitution, gambling, and drug transactions went on at the club.

SUFFICIENCY OF EVIDENCE

In his second assignment of error, defendant argues that insufficient evidence exists to support his conviction. Defendant does not dispute that there was a shooting at the Fusion Club on October 4, 2009. Rather, defendant argues that the evidence was insufficient to prove he was the person that committed the offense. Specifically, defendant maintains that the State’s case was riddled with inconsistencies, that the State’s witnesses, Ms. Luong, Ms. Bui, and Mr. Smith, had strong motives to lie, and that a number of defense witnesses placed defendant away from the Fusion Club at the time of the shooting.

In response, the State argues that through the eyewitness testimony of Ms. Luong and Mr. Smith, it proved beyond a reasonable doubt that defendant was the individual who fired gunshots into Club Fusion. The State further asserts that the jury was made aware of the alleged testimonial inconsistencies and the State’s witnesses’ motivations to lie, and nonetheless chose to believe the State’s witnesses as to defendant’s identity as the shooter.

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 by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard of review 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. Id. Under the \cJackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. Rather, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319, 99 S.Ct. 2781; See also State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. In other words, circumstantial evidence is evidence which proves a fact, and from that fact one may indirectly but reasonably and logically conclude another fact which is sought to be proven.

When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides 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.” State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Wooten, 738 So.2d at 675.

Defendant does not contest that the State failed to prove the elements of the crime for which he was convicted. Defendant challenges his conviction for illegal use of a firearm during the commission of a crime of violence, a violation of La. R.S. 14:94F, on the basis that the evidence was insufficient to prove his identity as the perpetrator of the offense.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Long, 408 So.2d 1221, 1227 (La.1982); State v. Searls, 04-790 (La.App. 5 Cir. 1/25/05), 895 So.2d 40, 43. A positive identification by only one witness is sufficient to support a conviction. State v. Williams, 08-272 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297 (citation omitted). A reviewing court may impinge on Inthe fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Harris, 02-1589 (La.5/20/03), 846 So.2d 709, 713 (citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988)).

In this case, defendant’s identity as the shooter was established by three witnesses; Ms. Luong who was the manager/bartender of Club Fusion, Ms. Bui who was an employee of the club, and Mr. Smith who was the doorman who worked at the club. However, defendant challenges his identity as the perpetrator of the offense, arguing that the testimony of these witnesses should be discredited based upon their motives to lie and to blame defendant. Defendant contends that Ms. Luong, a convicted felon, encouraged illegal activities in her club including prostitution and illegal gambling. According to defendant, by placing blame on him and declaring no knowledge of the illegal activities, Ms. Luong hoped to divert any scrutiny away from her. Additionally, defendant maintains that Mr. Smith, a sheriffs office employee, did not report the income he made at the club on his taxes and chose to ignore the illegal activities at the club, quitting his job as a doorman one week after the shooting, in hopes of retaining his job with the sheriffs office. Defendant further contends that several defense witnesses testified that he could not have been present at Club Fusion at the time of the shooting because he was at Club Hawaii shortly before the shooting occurred.

In the present case, Ms. Luong testified that she had known defendant for over ten years, and that defendant had been going to her club every weekend. Ms. Luong testified that she was standing inside of the club near the open front door when she saw defendant start shooting at the club. After the first shots were fired, Ms. Luong testified that she ran to a side door inside the bar and observed defendant firing the last shots before he fled to the parking lot. Ms. Luong gave a statement to the police during which she identified defendant from a photographic 112line-up as the person who fired the shots into the club. Ms. Luong’s daughter, Ms. Bui, also testified that she was outside smoking a cigarette when she saw defendant start the shooting. She testified that she was “positive” that defendant was the person who fired the shots into the club.

Mr. Smith also testified that he had known defendant for two years from defendant’s weekly visits to the club. Mr. Smith testified that on the night of the shooting, he prevented defendant from entering the club because he had been previously banned. Mr. Smith was standing by the open front door when he observed defendant start to shoot inside the club. He immediately shut the door and “took cover.” After the shooting, Mr. Smith positively identified defendant as the shooter from a photographic line-up.

The defense called defendant’s friends, Thovan Do and Kim Nguyen, to testify that he was at Club Hawaii at- the time of the shooting, at approximately 3:30 A.M. and thus, could not have committed the crime. Another friend of defendant, Loan Le, testified on defendant’s behalf that she picked him up from Club Hawaii and took him to her house between 4:00 and 4:30 A.M., after the shooting had occurred. The owner of Club Hawaii stated that she was not certain but believed that defendant left Club Hawaii 30-45 minutes before she closed her bar, which was around 4:00-4:30 A.M. on the morning of the shooting. In addition, several of the defense witnesses testified about the alleged illegal activities, such as gambling and prostitution that they believe occur at Club Fusion.

The jury was presented with the evidence regarding the alleged illegal activities at Club Fusion and defendant’s contentions regarding the motivations for the State’s witnesses to lie. Having considered and weighed the evidence, the jury obviously believed Ms. Luong, Ms. Bui and Mr. Smith’s testimonies over the defense witnesses. The jury’s conclusions regarding the credibility of the [^witnesses is dependent upon its in-court observation, and when faced with a conflict in testimony, the jury is free to accept or reject, in whole or in part, the testimony of any witness. See State v. Alexander, 12-836 (La.App. 5 Cir. 5/23/13), 119 So.3d 698; State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. It is the trier of fact who weighs the respective credibility of the witnesses, and this Court will generally not second-guess those determinations. See State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047, 1051. A positive identification by one witness is sufficient to support a conviction. State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, writ denied, 02-1457 (La.5/9/03), 843 So.2d 387. Despite the testimony regarding the alleged motives of the State’s witnesses to lie, and the fact that some defense witnesses provided an alibi defense for defendant, the jury was within its discretion to believe Ms. Luong, Ms. Bui, and Mr. Smith regarding the identification of defendant as the shooter.

Accordingly, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found defendant guilty of illegal use of a firearm during the commission of a crime of violence beyond a reasonable doubt. We find that this assignment of error lacks merit.

OTHER CRIMES EVIDENCE

In his first assignment of error, defendant argues that the trial court erred in allowing the admission of other crimes evidence, charging that the trial court did not weigh its prejudicial effect and did not apply the proper standard of proof necessary for admittance. Defendant argues that the trial court erred in granting the State’s La. C.E. art. 404B motion and allowing testimony that Mr. Smith has had problems with defendant in the past, and of an altercation that occurred at the Fusion Club in September 2009, about a month prior to the instant crime.

|14On May 13, 2010, the State filed a Notice of Intent to Use Evidence of Other Crimes. In the notice, the State asserted that it intended to introduce at trial an altercation that occurred outside of the Fusion Club on September 9, 2009, involving defendant and his wife, Ms. Le. It was noticed that as a result of the altercation, Ms. Le pled guilty to violating La. R.S. 14:103 and that the charges against defendant were dismissed. The State further advised that it intended to call Mr. Smith, the doorman at the Fusion Club, to testify that he has “had many problems with the defendants and that he has had to put [defendant] out on multiple occasions.” The State maintained that the instant offense was precipitated by these previous incidents, thus, the State intended to use them for the purpose of showing intent, motive, and identity.

On May 19, 2010, the 404B hearing was held. At the conclusion of the testimony, the State argued that it intended to use Mr. Smith’s testimony to establish that he has had many problems with defendant and Ms. Le in the past. The State submitted that the evidence was important to prove identity since defendant was claiming an alibi defense, and Mr. Smith would testify that he knows the person who fired the shots into the club based on these previous dealings with defendant. It further argued that the evidence would be necessary to show motive and intent, establishing why defendant may have fired into the club.

In response, defendant argued that to allow these alleged incidents into evidence would “simply smear his character.” Defendant further argued that not one of the instances cited by Mr. Smith involved a firearm. Defendant noted that he could not defend against these alleged incidents because there had been no dates provided to prepare a proper alibi.

After listening to the arguments of counsel, the trial court granted the State’s motion to introduce evidence of other crimes, finding the evidence showed motive, |1finoting that defendant may have been “mad at the doorman, mad at the club, often got into fight and needed protection....”

Defendant then asked the trial court to clarify the scope of his ruling, questioning whether Mr. Smith would be allowed to testify about “fifteen things, or is he limited to [the] September 8th [incident]?” The State responded that it intended to do a “broad brush” approach and would not go into “every single punch ever thrown in the bar.” In response, the trial court ruled:

Alright, here’s what I’m going to do. Cuz [sic], you know, Mr. Regan brings up a good point. And I think we’re kind of bordering on character evidence versus Prieur. And so what I think what I’m going to do to satisfy that is I’m not going to allow the deputy to give a number. Can’t say fifteen times. You can say that he, you know, they were patrons, he know [sic] them — He’s had problems with them in the past or something to that effect.

As a result of the trial court’s ruling, the State introduced the September 8, 2009 altercation at the club into evidence at trial. Mr. Smith also testified at trial that he had known defendant for two years and was familiar with defendant from his weekly visits to the club, stating that “every time he comes to the club, he always cause [sic] problems.” Mr. Smith also testified in rebuttal that at one time, he and defendant got into a verbal altercation and that they had to be separated from each other.

Evidence pertaining to a defendant’s commission of crimes, wrongs or acts, other than the one with which he is currently charged, is inadmissible when the only purpose of such evidence is to prove the defendant’s character and, thus, his subsequent disposition to break the law. La. C.E. art. 404; State v. Harrison, 604 So.2d 583 (La.1992); State v. Humphrey, 412 So.2d 507 (La.1981); State v. Wright, 94-682 (La.App. 5 Cir. 1/18/95), 650 So.2d 291, writ denied, 96-0855 (La.9/20/96), 679 So.2d 430. The underlying rationale behind this rule is that the prejudicial tendency of such evidence outweighs its probative value, since the finder of fact is likely to convict because the defendant is a “bad person” regardless of the strength of evidence against him in the case being tried. State v. Brown, 318 So.2d 24 (La.1975); State v. Gay, 616 So.2d 1290 (La.App. 2 Cir.1993), writ denied, 624 So.2d 1223 (La.1993).

However, such evidence may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule when it tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. La. C.E. art. 404B(1) provides that:

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

In order for other crimes evidence to be admitted under La. C.E. art. 404B(1), certain requirements must be met. State v. Page, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 451, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299; State v. Jackson, 05-923 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 78, writ denied, 06-1589 (La.1/8/07), 948 So.2d 121. First, pursuant to Priewr, the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. Page, 28 So.3d at 451 (citing Jackson, 926 So.2d at 78). Additionally, one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of|17the crime charged. Id.; See also State v. Schaller, 08-522 (La.App. 5 Cir. 5/26/09), 15 So.3d 1046, 1060, writ denied, 09-1406 (La.2/26/10), 28 So.3d 268. Finally, Prieur requires that the State show that the defendant committed the other crimes. Jackson, 926 So.2d at 78. This Court has recognized that not every violation of Priewr notice requires reversal, and a defendant must show prejudice before he can complain of such a violation. State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 698, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301.

Finally, the probative value of the extraneous evidence must outweigh its prejudicial effect. Page, 28 So.3d at 451 (citing La. C.E. art. 403; Jackson, 926 So.2d at 78). The purpose behind Article 404(B) is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. Schaller, 15 So.3d at 1060-61. The burden is on the defendant to show that he was prejudiced by the admission of the other crimes evidence. Schaller, 15 So.3d at 1060; Jackson, 926 So.2d at 78. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art 404B(1) will not be disturbed. Schaller, 15 So.3d at 1061.

Here, the testimony at trial revealed that defendant frequently “caused problems” at the Fusion Club. Specifically, in September 2009, less than a month before the instant offense was committed, defendant and Ms. Le were involved in a bar fight with one of the waitresses, which escalated out into the parking lot. Defendant and Ms. Le were injured as a result of the altercation. Defendant declined medical treatment, but Ms. Le was treated for her injuries at the hospital. Both defendant and his wife were issued misdemeanor summons. Although the charges against defendant were dismissed in connection with this incident, Ms. Le pled guilty to disturbing the peace. At trial, defendant testified that he was angry 118with the owner of the club as a result of the fight because she defended the waitress who allegedly caused the fight instead of his wife nor did she come to his wife’s aid. He also testified that it was not fair that he received a summons as a result of the altercation, and the waitress did not because he did nothing wrong. Defendant’s wife testified that just prior to the shooting, she was being removed from the club by the owner, Ms. Luong, and the doorman, Mr. Smith, for engaging in a verbal altercation with the same waitress who injured her in the September 2009 fight.

The Louisiana Supreme Court has found that “[f]or evidence of motive to be independently relevant, it must be factually pai'ticular to the victim and the charged crime.” State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236, 1244. Considering that the record demonstrates that these “other crimes” are highly relevant to establish defendant’s motive for shooting into the club, we find that the probative value of the “other crimes” evidence outweighed its prejudicial effect.

Nevertheless, even if the other crimes evidence was erroneously admitted at trial, the admission was harmless. The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Williams, 05-318 (La.1/17/06), 921 So.2d 1033, 1036, writ denied, 06-0973 (La.11/3/06), 940 So.2d 654. An error is harmless when the verdict is “surely unattributable to the error.” Id. Here, as previously discussed in detail in assignment of error number two, there appears to have been sufficient evidence presented to prove defendant’s guilt as to the charged offense without the admission of these “other crimes.” Three eyewitnesses, Ms. Luong, Ms. Bui, and Mr. Smith, testified that they observed defendant fire his gun into the Fusion Club, and identified defendant in open court as the shooter. Ms. Luong and Mr. Smith also identified defendant from a photographic lineup during interviews conducted after the incident. Given the | ^positive identification by these witnesses, the jury’s verdict was unattributable to any alleged error in permitting the “other crimes” into evidence.

ERROR PATENT REVIEW

We have reviewed the record for errors patent according to the mandates of 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), and note the following.

The commitment is inconsistent with the transcript in that the commitment reflects that defendant was found guilty by a jury of the charged offense, however, it then goes on to state that the “plea was acceptable to the State,” and that the court advised defendant of his rights, which defendant waived, and that a waiver of rights form was executed and filed into the record. The error in the commitment appears to be a clerical one. Since a clerical error does not cause prejudice to a defendant’s rights, such error does not merit reversal. See State v. Gilmore, 522 So.2d 658, 661 (La.App. 5 Cir. 1988). However, we order the trial court to correct the clerical error in the original commitment to insure an accurate record.

For the above discussed reasons, the defendant’s conviction and sentence is affirmed. The case is remanded to allow the trial court to correct the commitment consistent with this opinion.

AFFIRMED AND REMANDED.

      . Kevin Smith worked full-time as a correctional officer for the Jefferson Parish Sheriff’s Office.

      . Tammy Howard of the Jefferson Parish Sheriff’s Office testified that at 1:50 a.m. on September 8, 2009, she responded to a call regarding a disturbance at Club Fusion. When she arrived she observed five people fighting in the parking lot. Deputy Howard issued several misdemeanor summons, including one to defendant and co-defendant. Both defendant and co-defendant were injured in the altercation.

      . On cross-examination, Ms. Bui testified that Ms. Le was yelling in Vietnamese, however, when asked to repeat what was said in Vietnamese, Ms. Bui stated that she does not speak the language well but does understand it.

      . At trial, it was established that "Kenny” is defendant’s nickname.

      . La. R.S. 14:94 provides, in pertinent part:
      A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
      F. Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence ... shall be imprisoned at hard labor for not less than ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence.

      . See also State v. Prieur, 277 So.2d 126, 128 (La.1973).

      . The altercation occurred in the late hours of September 8, 2009, and the police arrived in the early hours of September 9, 2009.