author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Gerard TURNER.
    No. 2013-KA-0285.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    John T. Fuller, IV John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

LThe defendant, Gerard Turner, was charged by bill of information with discharging a firearm during a violent crime, a violation of La. R.S. 14:94(F). He originally pled not guilty. The bill of information was later amended to reduce the charge against him to aggravated assault with a firearm, a violation of La. R.S. 14:37.4. Also charged in the same bill of information were co-defendants, Patrick Lamar and Jermaine Curry. Lamar pled guilty to being an accessory to illegal use of weapons and was sentenced to five years at hard labor. Curry pled guilty to two counts of attempted illegal use of weapons and was sentenced to five years at hard labor. On the same date that Lamar and Curry pled guilty and were sentenced, Turner withdrew his prior plea to the crime of discharging a firearm during a violent crime, and he pled guilty as charged to aggravated assault with a firearm. His sentencing was set for a later date.

Two weeks after his guilty plea, Turner appeared in court with new counsel and filed a motion to withdraw his guilty plea. The motion was denied, and the trial court sentenced Turner to forty months at hard labor to be served concurrently 12with any other sentence and granted Turner credit for time served. Turner now appeals, challenging the trial court’s denial of his motion to withdraw his guilty plea.

The record reveals no errors patent.

On appeal, Turner argues that his guilty plea was vitiated because it was induced through a representation that he would be eligible for parole after serving only one-third of his sentence. Turner also argues that his original attorney was ineffective for advising him of the incorrect minimal period that he would possibly have to serve. Turner claims that, but for the erroneous information regarding his parole eligibility and “good time” relayed to him by his attorney, he would not have pled guilty. Turner claims that his guilty plea was based upon advice constituting ineffective assistance of counsel.

The Louisiana Supreme Court has held that the two-part analysis of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), relative to ineffective assistance of counsel claims, applies to challenges to guilty pleas based upon ineffective assistance of counsel. State v. Washington, 491 So.2d 1337, 1338 (La.1986); see also State v. West, 2009-2810, p. 1 (La.12/10/10), 50 So.3d 148, 149. Generally, to attain relief in an ineffective assistance of counsel claim, a defendant must show 1) that counsel’s performance was deficient, and 2) that the deficiency prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Counsel’s performance is deficient when it can be shown that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed to the defendant by the Sixth | (¡Amendment.” Id. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. Id. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. However, when challenging a guilty plea based upon ineffective assistance of counsel, a defendant must satisfy the prejudice requirement by showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Washington, 491 So.2d at 1339 (quoting Hill v. Lockhart, 474 U.S. 52, 59,106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

Turner argues that, when he pled guilty, he did not realize that he would have to serve eighty-five percent of his forty-month sentence for aggravated assault with a firearm before he would be eligible for parole. At the hearing on Turner?s motion to withdraw his guilty plea, his original attorney, Raleigh Ohlmeyer, testified that he erroneously informed Turner that he would be eligible for parole after serving only one-third of his sentence. See La. R.S. 15:574.4(A)(l)(a) (first offender parole eligibility). However, as Ohl-meyer learned after Turner pled guilty, La. R.S. 15:574.4(B)(1) mandates that “a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least eighty-five percent of the sentence imposed, before being eligible for parole.” Turner pled guilty to aggravated assault with a firearm, a crime of violence under La. R.S. |414:2(B)(33). Ohlmeyer testified that, due to time constraints, he failed to verify the law on parole eligibility prior to advising his client.

The Court notes that Ohlmeyer should have verified the law on parole eligibility prior to giving advice. However, even if Turner proved that Ohlmeyer provided deficient counsel, he cannot show prejudice because the plea agreement was extremely favorable to Turner. Turner was originally charged with discharging a firearm during a violent crime, a violation of La. R.S. 14:94(F). Pursuant to La. R.S. 14:94(F), Turner could have been sentenced to not less than ten years and not more than twenty years. By pleading guilty to aggravated assault with a firearm, Turner’s sentencing exposure was reduced to a maximum of ten years with no minimum sentence. See La. R.S. 14:37.4(C). The forty-month sentence that Turners original attorney negotiated was less than half of the maximum sentence under La. R.S. 14:37.4(C), and less than the five-year sentences that his co-defendants received. By pleading guilty to aggravated assault with a firearm, Turner significantly reduced his sentencing exposure from twenty years (which he could have received under the original charge) to the agreed-upon sentence of forty months, and he received a sentence well below those imposed on his co-defendants. Moreover, Turner failed to show that he had a viable defense at trial that might have changed his decision to plead guilty in exchange for the very favorable deal he received. We conclude that Turner failed to show that the trial court abused its discretion in refusing to grant his motion to withdraw his guilty plea.

|5For the reasons stated above, we find no error in the trial court’s denial of Turner’s motion to withdraw his guilty plea. The conviction and sentence of the defendant, Gerald Turner, are hereby affirmed.

AFFIRMED.

      . The facts of the underlying crime in this case are not necessary to address the arguments on appeal. The only reference to the facts in the record is in the transcript of the hearing at which the defendant pled guilty to aggravated assault with a firearm. At the hearing, the assistant district attorney offered the following statement: "Judge, the facts in this case are that the victim in this matter had his car fired upon by a white Cadillac Esca-lade, where Patrick Lamar was the driver and Jermaine Curry and Mr. Turner were passengers.”

      . The statute also gives the sentencing judge discretion to issue a fine of up to ten thousand dollars and to issue the sentence either with or without hard labor.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrance AUGUSTINE.
    No. 2013-KA-0164.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Defendant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| jTerranee Augustine appeals his conviction and sentence for introducing contraband into Orleans Parish Prison. For the following reasons, we affirm his conviction and remand this matter to the trial court to consider his Motion to Reconsider Sentence.

PROCEDURAL BACKGROUND:

The State of Louisiana charged Terrance Augustine on December 19, 2011 with the introduction of a knife into the Orleans Parish Prison in violation of La. R.S. 14:402, a charge to which he pled not guilty. A six-person jury found Augustine guilty as charged. Augustine filed motions for post-verdict judgment of acquittal and for new trial. The court denied these motions and sentenced Augustine to serve four years at hard labor. Augustine moved for a reconsideration of sentence, but there is no indication in the transcript that the court ruled on the motion. Nonetheless, the court granted his motion for appeal.

LFACTUAL BACKGROUND:

Terrance Augustine was found in possession of a knife during his transfer from one facility of the Orleans Parish Prison to another. On November 27, 2011, Augustine arrived at the Old Parish Prison building from Conchetta, another facility of the Orleans Parish Prison. Lieutenant Kenneth Johnson of the Orleans Parish Sheriffs Office testified that when Augustine arrived, he was placed in a holding cell and then taken to a hallway outside a tier. In response to Lt. Johnson’s order, and in accordance with standard procedure, Augustine disrobed and placed his clothing on the floor in front of him. Lt. Johnson searched each piece of clothing, and when he lifted Augustine’s underwear, it felt heavy. He found a knife attached to the underwear by a string. Lt. Johnson testified that Augustine had been incarcerated for several months at this time.

Upon finding the knife, Lt. Johnson called Sergeant Rickson of the Special Operations Division. Once Sgt. Rickson arrived, he advised Augustine of his rights. Although Augustine refused to sign a waiver of rights form, he admitted that' he understood his rights. He told the officers that he had the knife for his protection, but he refused to say where he had gotten the knife. Lt. Johnson testified that he was not aware of any fight involving Augustine, nor did he know if Augustine had been stabbed previously. He stated that there were no signs that day that Augustine had been attacked.

Lt. Johnson stated that this was the first real knife that he had ever seized from a prisoner, while he had confiscated “thousands” of shanks.

Sergeant Gregory Rickson of the Orleans Parish Sheriffs Office was assigned to the Special Operations Division and explained that one of his duties was to investigate incidents that occurred in the jail. He testified that Lt. Johnson | ..¡called him in connection with the knife he seized from Augustine’s underwear. Augustine refused to tell him where he had gotten the knife, but he insisted that he had the knife for his protection, and he admitted that he was in possession of the knife for about a month.

The correction officers were unaware of any instance of harm or threatened harm to Augustine.

DISCUSSION:

In his first assignment of error, defendant contends that the trial court erred by denying him the opportunity to present a defense of justification and by denying his motion for new trial based on this claim. He asserts that the court’s limitations during voir dire and its refusal to instruct the jury on the issue of justification deprived him of a fair trial.

Defendant contends that the trial court impinged on his right to present a justification defense for his possession of the knife. He asserts that this error began during voir dire, when the court indicated that it would not allow the parties to question the jurors about the issue of justification. A reading of the voir dire shows that the court made the following comment to the jury: “[wjhen I read you the jury instructions at the conclusion of this case ..., there will not be anything in there about self defense. So since there is not going to be anything in there about self defense it is nothing that you can consider.” Defense counsel did not object to this statement.

Notwithstanding, both the prosecutor and defense counsel were allowed to question the jurors on the subject of self-defense and justification. The prosecutor questioned the jurors about whether the fact that a prisoner felt threatened would give him the right to arm himself, and thus they would not be able to return a guilty Rverdict even if the State proved that the defendant was an inmate and possessed a knife, the only two elements of the crime with which he was charged. Defense counsel objected to this questioning, asserting that the hypothetical questions were very close to the facts of the case. During a sidebar conference, counsel stated that a legal verdict included the jurors’ consideration of whether justification applied. Counsel stated: “But if self defense is a defense and I am not saying — he is taking away the juries [sic] ability to weigh on this” because the prosecutor was asking questions “exactly similar” to the facts in the case. The court responded that it was concerned about allowing any questioning about justification because it was not going to instruct the jury on that defense. The court rejected defense counsel’s assertion that the “justification” was the defendant’s possession of the knife, stating that a defense must be relevant to the charge, and the court had not seen any case where justification was used in a case like the one before the court. The court then instructed the attorneys to continue their voir dire questioning, indicating that it would have its law clerk conduct research on the issue.

During the defense questioning of the potential jurors, counsel raised the issue of justification in several hypothetical situations where citizens would be justified in technically breaking a law to aid others in danger. Counsel was also allowed to question the potential jurors about their knowledge of the dangerous climate in the jail, with the court implicitly overruling the State’s objections to this questioning by its assertion that it would allow defense counsel some leeway in her questions. Thus, although the court indicated that the issues of justification and self-defense were not relevant, it allowed defense counsel to question the jury on these issues.

IflAt trial, during her cross-examination, defense counsel was allowed to question Lt. Johnson about violence he had seen while employed at the Orleans Parish Prison. In addition, she was able to question Sgt. Rickson about the grievance procedures that are in place in the prison that an inmate can use to report threats and violence against him by other inmates. Contrary to the defendant’s argument, the defense was allowed to question the State’s witnesses about the violent climate in the jail. The defense did not question either of the witnesses about whether the defendant made any complaint or filed any grievance concerning any threats or violence against him, nor did it present any evidence to assert the defense of justification.

Defendant next points to comments during closing argument that precluded the jurors from considering the defense of justification. During her closing argument, counsel alluded to the crowded conditions in prison and the ratio of deputies to inmates, and the court overruled the State’s objection to this argument, noting that the jurors could believe or reject argument by the attorneys. The court sustained the State’s objection to counsel’s statement that the defendant was not a seasoned inmate like the rest of the inmates in his cell who were “armed and ready to get him at any time.” The court also instructed defense counsel not to ask the jurors to “put themselves in the shoes of the defendant” when counsel asked the jurors to imagine themselves in a room with older, bigger, and stronger men whom they did not know. Counsel did not note any objection to this instruction.

During the State’s argument, defense counsel objected to the prosecutor’s question to the jurors about whether they had heard any evidence that the defendant had been threatened, asserting that the State had not produced any evidence that it did not happen. The defendant points to the prosecutor’s argument 1 fithat while the State wanted six jurors who would listen to the evidence and follow the law, the defense “did the complete opposite” and was “looking for the six jurors who will ignore the law. That is what you are to [the defense], the six jurors ... who will here [sic] this, ignore the law and justify this conduct and send these two veterans of the Orleans Parish Sheriff’s Office back to the prison with this justified. Is this how you want to thank them for their service?”

After the jury had retired to deliberate, defense counsel noted her objection to the court’s refusal to instruct the jury on the defense of justification, asserting that the court should have instructed the jury that if it found that the defense showed the defendant’s conduct was justified, the State had the burden of proving beyond a reasonable doubt that the defendant’s conduct was not justified, citing a civil law treatise of proposed jury instructions. Counsel argued that the issue of whether the defense had shown a justification was a factual issue, not a legal one, and the court’s refusal to instruct the jury on justification “usurped the province of the jury.” Counsel also cited to two reports from the Department of Justice concerning the state of Orleans Parish Prison. She asserted that during voir dire, the State “intimated that perhaps Mr. Augustine was the cause of the problems that are occurring, one of the causes of the problems that are occurring. My position would be that by that comment made by him that the justification was kind of like brought into question even more. That [sic] my right to present that justification defense was not served by his inappropriate comment.”

Defendant argues that these portions of closing arguments and the court’s refusal to instruct the jury on the defense of justification are reversible errors.

Louisiana Revised Statute 14:19 sets forth the provisions for the defense of justification. The statute provides in part:

|7A. 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 or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

A justification defense to a charge of introducing contraband into a penal facility has not been reviewed by courts in Louisiana. However, there have been cases in which justification was raised as a defense to a charge of being a convicted felon in possession of a firearm or dangerous weapon. In those cases, courts have held that the justification only occurs when the defendant is in imminent threat of danger and only lasts while the threat is imminent. The common thread in those cases was evidence of an actual threat of danger that the defendants faced when they armed themselves. See State v. Jones, 12-0510, p. 5 (La.App. 4 Cir. 6/12/13), 119 So.3d 859, 862 (defendant continued to possess gun twenty minutes after the threat of harm had passed); State v. Sanchell, 11-1672, p. 7 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, 681, writ denied 12-2554 (La.4/26/13), 112 So.3d 839 (defendant’s justification for possessing weapon was limited to time when he was acting in self-defense); State v. Goosby, 47,772, p. 12 (La.App. 2 Cir. 3/6/13), 111 So.3d 494, 502 (threatening juveniles had retreated and defendant was no longer in imminent peril of great bodily harm).

Here, defense counsel was allowed to raise the issue of justification during voir dire and was able to question Lt. Johnson about violence in Orleans Parish Prison. However, there was no evidence produced at trial that the defendant had been threatened or had been the victim of violence. In addition, there was no evidence that at the time that he was found in possession of the knife he was in | (¡imminent danger; at best, the evidence produced at trial only showed an unspecified fear on the defendant’s part that he might be threatened. Indeed, the defendant was in the process of being moved from one facility to another when he was found in possession of the knife. Given the lack of any evidence of any harm or threatened harm, we do not find that the trial court erred by refusing to instruct the jury on the defense of justification. This assignment has no merit.

II.

In his second assignment, defendant asserts that the trial court erred by denying his motion for mistrial. He argues that he was deprived of a fair trial by the prosecutor’s remarks that inaccurately inferred that he had a prior criminal record, that made a personal attack on his counsel, and that directed the jury to return a guilty verdict as thanks for the work of the two OPSO officers.

As per La.Code Crim. Proc. art. 774, the scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Art. 774 further provides that closing argument “shall not appeal to prejudice,” and the State’s rebuttal argument “shall be confined to answering the argument of the defendant.” A prosecutor should refrain from making personal attacks on defense strategy and counsel. State v. Manning, 03-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108 (citing State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660 and State v. Duplessis, 457 So.2d 604 (La.1984)). While jurisprudence has found that prosecutors may not refer to personal experience or turn their argument into a commentary on crime, prosecutors have “wide latitude in choosing closing argument tactics.” State v. Clark, 01-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183. See also State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022.

As noted in by this court in State v. Jones, 10-0018, p. 9 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 833:

Even where a prosecutor’s argument has exceeded the scope of art. 774 or is deemed to be improper, a reviewing court should credit the good sense and fairmindedness of the jurors who have heard the evidence. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703; Clark; State v. Ricard, 98-2278, 99-0424 (La.App. 4 Cir. 1/19/00), 751 So.2d 393. In addition, “a reviewing court will not reverse a conviction unless thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” Clark, at p. 15, 828 So.2d at 1173. See also State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583; Casey; State v. Wiltz, 2008-1441 (La.App. 4 Cir. 12/16/09), 28 So.3d 554. As the Court noted in Draughn: “Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Leonard, 2005-1382 p. 11 (La.6/16/06), 932 So.2d 660, 667. Moreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981).” Draughn, at p. 44, 950 So.2d at 614.

(emphasis added.)

Here, defendant first refers to an objection that the prosecutor made during the defense closing argument that he maintains inferred that he had a prior criminal record. At the time of the present offense, defendant was a pretrial detainee on a charge for which he was later acquitted. During closing argument, defense counsel stated: “Terrance wasn’t some hardened criminal. They want to make a big deal out of this knife.” The prosecutor objected, stating merely: “I would object to that statement, Judge.” The court overruled the objection. After the jury had retired to | ^deliberate, defense counsel moved for a mistrial. The trial court denied the motion, explaining that it had instructed the jury that closing argument was not evidence.

Defendant argues that the State’s objection improperly suggested that he had a prior criminal record. He asserts that under the mandatory mistrial provision of La.Code Crim. Proc. art. 770(2), the trial court should have granted his motion for a mistrial because the statement was a reference to another crime “committed by or alleged to have been committed by the defendant as to which evidence is not admissible.” We do not find that the objection raised by the State was an implied comment on a possible criminal record. He simply objected to the comment without further elaboration. Thus, we find no error by the trial court in rejecting the defense’s argument that the prosecutor’s comment implied that the defendant had a prior criminal record.

The remaining comment to which the defendant refers in this assignment occurred during the State’s rebuttal argument when the State commented that if the jury ignored the law as the defense suggested, and acquitted the defendant, it would send a detrimental message to law enforcement, particularly guards at Orleans Parish Prison. The defense objected to the comment, but was overruled.

Defendant now asserts that this argument was improper because it was a personal attack on defense counsel and it told the jury that it would be thankless if it returned a not guilty verdict. He argues that counsel moved for a mistrial with respect to this argument as well. Crediting the “common sense and fair-mindedness” of the jury, as set forth in the cases cited above, it cannot be said that the prosecutor’s argument referenced by the defendant improperly influenced the jury and contributed to the verdict. This assignment of error has no merit.

III.

|nA review of the record for patent errors reveals two errors that will require the remand of this case and will render defendant’s third assignment premature. The court denied defendant’s motion for new trial and sentenced him on the same day, failing to observe the mandatory twenty-four-hour delay as set forth in La. Code Crim. Proc. art. 873. As per State v. Collins, 584 So.2d 356, 359 (La.App. 4 Cir. 1991), the failure to observe the twenty-four-hour delay mandated by La.Code Crim. Proc. art. 873 is harmless where the defendant does not complain of his sentence on appeal. See also State v. Pleasant, 11-1675 (La.App. 4 Cir. 10/17/12), 102 So.3d 247, 255. However, defendant’s third assignment of error raises an excessive sentence claim.

Therefore, the second patent error prohibits this Court from considering the excessive sentence claim because there is no indication that the trial court ruled on the defendant’s motion to reconsider his sentence. The failure of a trial court to rule on a motion to reconsider sentence requires that the case be remanded for a ruling and that appellate review of a defendant’s sentence be deferred. See State v. Peters, 10-0326, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, 675; State v. Hailey, 02-1738, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, 566-67. Thus, we remand this case to the trial court for ruling on the motion to reconsider sentence, reserving to the defendant his right to appeal his sentence once the trial court has ruled on the motion.

There are no other patent errors.

| ^CONCLUSION:

Accordingly, we affirm Terrance Augustine’s conviction, pretermit discussion of his excessive sentence argument, and remand the case for the trial' court’s ruling on his motion to reconsider sentence, reserving his right to appeal his sentence once the court rules on the motion.

CONVICTION AFFIRMED; REMANDED.

      . The docket master indicates that the trial court denied the motion to reconsider sentence; however, the transcript does not so reflect. Where there is a discrepancy between the docket master (minute entry) and the transcript, the transcript prevails. State v. Randall, 10-1027 (La.App. 4 Cir. 6/22/11), 69 So.3d 683, writ den., 11-1560 (La.1/13/12), 77 So.3d 952.

      . While the present version of La. R.S. 14:402 provides for a mandatory fine in addition to imprisonment, this mandate was added after the offense occurred in this case.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Letitia A. MOTT v. EASY MONEY, INC. Betty Ann Porche, Wife of/and Stanley P. Stewart v. Letitia A. Mott and Easy Money, Inc.
    Nos. 2013-CA-1017, 2013-CA-1018.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Susan G. Guillot, Law Office of Susan G. Guillot, New Orleans, LA, for Defendant/Appellee.
    Charles E. McHale, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| ¡.The plaintiffs, Betty Ann Porche and Stanley P. Stewart, appeal the district court’s granting of the Exception of No Right of Action raised by the defendant, Letitia Mott. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Ms. Porche and Mr. Stewart filed suit against Ms. Letitia Mott and Easy Money, Inc. [“Easy Money”] to annul the tax sale and subsequent confirmation of title to property located at 6310-6312 Marais Street in New Orleans. In response to the suit, Ms. Mott filed an exception of no right of action contending that Ms. Porche and Mr. Stewart did not have a right to receive notice of the tax sale. The exception was heard by the trial court on February 22, 2013.

Evidence heard on the exception established the following facts. On May 30, 1991, Ms. Porche and Mr. Stewart entered into a bond for deed contract with Easy Money for the sale of the property. The contract, duly recorded in the Orleans Parish conveyance and mortgage records, provided that Ms. Porche and Mr. Stewart pay Easy Money an initial cash payment of $1,100.00 and monthly installments of $146.62 until May 30, 1996. The bond for deed contract further provided that title to the property would transfer from Easy Money to Ms. Porche and Mr. Stewart after they made all the payments required of them. In order to ensure that title would transfer, the contract contained a “special mortgage” clause in favor of Ms. Porche |sand Mr. Stewart. This provision was to ensure the “full and faithful performance of the seller” in the event Ms. Porche and Mr. Stewart made all the payments, but Easy Money did not transfer title. The bond for deed contract also obligated Ms. Porche and Mr. Stewart to pay all taxes assessed against the property beginning in 1991.

The taxes on the property became delinquent in 2005. In 2007, the property was sold in a tax sale to Letitia A. Mott. Easy Money had proper notice of the tax sale; Ms. Porche and Mr. Stewart had no notice. On July 25, 2011, Ms. Mott filed a petition to quiet tax title, naming Easy Money as the defendant. In her petition, Ms. Mott alleged that she had purchased an undivided one hundred percent interest in the property on November 26, 2007. The petition also alleged that Easy Money had been notified of the sale and that a review of the mortgage records had indicated there were no other encumbrances affecting the property. Pursuant to Article VII, Section 25 of the Louisiana State Constitution, Ms. Mott asserted that the three-year prescription period to quiet title had lapsed. Easy Money was absent from the proceeding, and an attorney was appointed to represent it. The trial court entered judgment in favor of Ms. Mott on July 27, 2012.

Following the judgment, in October 2012, Ms. Mott filed a petition for permanent injunction against Ms. Porche and Mr. Stewart enjoining them from using the property. Ms. Porche and Mr. Stewart had maintained an above-ground swimming pool on the property. On December 27, 2012, Ms. Porche and Mr. Stewart filed a petition against Ms. Mott and Easy Money to annul the tax sale and the judgment confirming title on the grounds that they had not been given notice of |4the sale. The two cases were consolidated on January 8, 2013. Ms. Mott filed an Exception of No Right of Action on the grounds that Ms. Porche and Mr. Stewart were not entitled to notice of the tax sale. The exception was granted on April 25, 2013. This appeal follows.

STANDARD OF REVIEW

We review the district court’s decision granting the exception of no right of action de novo as it involves questions of law. Parker v. State, 11-1475, p. 1 (La.App. 4 Cir. 3/7/12), 86 So.3d 791, 793, writ denied, 12-957 (La.6/15/12), 90 So.2d 1067.

ASSIGNMENT OF ERROR

Ms. Porche and Mr. Stewart appeal the granting of Ms. Mott’s Exception of No Right of Action on the grounds that the City of New Orleans Tax Collector did not properly provide notice of the tax sale and subsequent confirmation as required by the United States Supreme Court decision in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), and by La. R.S. 47:2180.

DISCUSSION

Ms. Porche and Mr. Stewart argue that the trial court erred in granting Ms. Mott’s Exception of No Right of Action. La.C.C.P. art. 681 states “[ejxcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” The exception of no right of action “raises the question whether the plaintiff has any interest in judicially enforcing the asserted right.” Sattar v. Royal Sonesta, Inc., 95-0372 (La.App. 4 Cir. 4/26/95), 654 So.2d 836, 838; Greenbriar Nursing Home, Inc. v. Pilley, 93-2059 (La.5/23/94), 637 So.2d 429, 434. On an exception of no right of action, the parties may introduce 15evidence to support or controvert the exception. La. C.C.P. art. 931. In support of her exception, Ms. Mott presented evidence of the tax bill addressed to Easy Money, the tax sale deed, and the tax sale redemption notice addressed to Easy Money. Ms. Porche and Mr. Stewart did not present any evidence to establish their right to notice. Significantly, they presented no evidence of any installment payments or that they had paid taxes on the property as required by the bond for deed contract. Further, it is clear from the evidence that title to the property never transferred from Easy Money to Ms. Porche and Mr. Stewart.

Notice Requirement of Mennonite

Ms. Porche and Mr. Stewart argue that they have a right of action because they were not given notice of the tax sale. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), the United States Supreme Court held that prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In Mennonite, the United States Supreme Court expanded the notice requirement to mortgagees by holding that “[sjince a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983).

Ms. Porche and Mr. Stewart argue that they have a duly recorded mortgage and therefore have a legally protected interest in the property. The central issue in |fithis case is whether the “special mortgage” included in the bond for deed contract triggers the notice requirement provided for in Mennonite. We find that it does not.

A bond for deed contract is defined in La R.S. 9:2941 as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” Here, the plaintiffs entered into such a contract with Easy Money. Under the terms of the contract, the plaintiffs made a down payment to Easy Money and were to make monthly installment payments through May 30, 1996. After all the payments were completed, Easy Money was to transfer title of the property.

Included in the bond for deed contract was a special mortgage in favor of the plaintiffs in the event Easy Money did not comply with its obligation to transfer title after all of the payments were made. The bond for deed contract stated:

SPECIAL MORTGAGE: In order to secure the full and faithful performance of the foregoing obligation of the Seller to deliver title to the above described property, Seller does by these presents further specially mortgage and hypothe-cate the hereinabove property unto and in favor of Purchaser, herein, and the Purchaser’s successors and assigns. This special mortgage in favor of Purchaser and Purchaser’s successors and its assign, now herein granted by Seller, is separate, distinct, and in addition to the mortgage(s) described above.

Ms. Porche and Mr. Stewart argue that this special mortgage falls under Mennonite, and therefore notice was required. The trial court, in its reasons for judgment, stated that their reliance on Mennonite was misplaced because it assumed that there was an actual mortgage recorded in favor of the appellants. We agree. Although the contract includes the word “mortgage,” it does not provide for a mortgage as contemplated by the Court in Mennonite. Mennonite, as well as every other case relied upon by the appellants, involves a traditional mortgage. The |7special mortgage provided for in the bond for deed contract is not a traditional mortgage. Rather, it is conditional. The “special mortgage” is a form of security to guarantee that the title of the property will be transferred once certain conditions have been met (that is, once all the installment payments have been made). Because this type of mortgage is conditional, even though the bond for deed contract is recorded, the mortgage may never come into being. Therefore, this type of “mortgage” does not fall under the ambit of Mennonite. Accordingly, Ms. Porche and Mr. Stewart’s rights to due process were not violated by their failure to receive notice of the tax sale.

Statutory Notice Requirement under La R.S. 47:2180

Ms. Porche and Mr. Stewart also argue that they were required to receive notice under La. R.S. 47:2180. They are incorrect. At the time the tax sale took place, La. R.S. 47:2180 provided in pertinent part:

(l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event that the record owner is deceased, written or printed notice in the manner provided herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice or that property will be sold according to law.

The statute does not create an affirmative duty to search the mortgage and conveyance records prior to a tax sale. The statute only requires that the tax collector provide notice to each person to whom taxes have been assessed or to the record title owner. At the time that the taxes became delinquent, Easy Money was the record title owner. Although the bond for deed contract required Ms. Porche |sand Mr. Stewart to pay the taxes, there is no evidence that they did pay the taxes; therefore, the taxes continued to be assessed in the name of Easy Money. The City of New Orleans and/or Ms. Mott did not violate this statute by failing to provide notice to the appellants.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the district court.

AFFIRMED.

      . In this case, for example, Ms. Porche and Mr. Stewart did not put forth evidence to show that they had made any installment payments.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Kenneth MARTIN.
    No. 2013-KA-0115.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attor-
    ney, New Orleans, LA, for Appellee, State of Louisiana.
    Kevin Vincent Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Defendant/Appellant, Kenneth Martin.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   TERRI F. LOVE, Judge.

11 This appeal arises from the conviction and sentencing of the defendant for second degree murder. The defendant alleged that insufficient evidence was presented to support his conviction. He also asserted that the trial court erroneously admitted unauthenticated statements and alleged hearsay. Following the defendant’s conviction by the jury, the defendant claimed that the trial court abused its discretion in denying his motion for new trial.

We find that sufficient evidence was presented for the jury to find that the defendant murdered the victim beyond a reasonable doubt. Additionally, the recorded statements admitted by the trial court were sufficiently authenticated by the accompanying testimony. The trial court also did nor err in admitting the alleged hearsay statements, as the statements were cumulative in nature and therefore harmless. Lastly, the trial court did not abuse its discretion in denying the defendant’s motion for new trial. Therefore, we affirm the defendant?s conviction and sentence.

PROCEDURAL HISTORY

Kenneth Martin was indicted for the second degree murder of Jerome Perkins and pled not guilty. The trial court denied Mr. Martin’s Motions to Suppress Statement and Identification. Following a jury trial, Mr. Martin was |2found guilty as charged. Mr. Martin was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Mr. Martin?s Motions for New Trial and Reconsideration of Sentence were denied by the trial court. Mr. Martin’s appeal follows.

Mr. Martin contends that insufficient evidence was presented to support his conviction, that the trial court erroneously admitted unauthenticated statements and hearsay, and abused its discretion in denying his Motion for New Trial.

Hattie Perkins

Hattie Perkins, Mr. Perkins’ mother, testified that her son, died on December 6, 2009. Ms. Perkins identified a photograph of Mr. Perkins and her family. She testified that she knew Mr. Martin, and identified him at trial. Ms. Perkins viewed Mr. Martin across from her house the day her son was shot. Mr. Martin was sitting in a car, staring at her. Mr. Martin wore dreadlocks.

Erin Stewart

Erin Stewart, a technician with the New Orleans Police Department (“NOPD”) Crime Lab, took photographs of the crime scene and collected evidence from the scene, including two red and white plastic dice stained with blood and three spent casings.

Dr. Paul McGarry

Dr. Paul McGarry, a forensic pathologist with the Orleans Parish Coroner?s Office, performed an autopsy on Mr. Perkins. Dr. McGarry testified that Mr. Perkins suffered three gunshot wounds to the head.

Terry Martin

Terry Martin (“Terry”), Mr. Martin’s uncle, knew Mr. Perkins, whose nickname was “Lucky.” Terry and Mr. Perkins were playing dice on General | ¡¡Meyer Avenue, near a barber shop. While they were playing dice, Terry heard gunshots and fled. Terry did not witness what happened after he fled. He did not remember seeing a gun or someone’s hand. Terry spoke with members of the NOPD a couple of days later, including Detective Michael McCleery. Terry did not remember his conversation with the NOPD. On direct examination by the State, Terry was presented with his statement to the NOPD; however, he stated that it did not refresh his memory. Terry did not recall informing the NOPD that he saw a hand coming around the side of the building immediately prior to the shooting. Terry allegedly only remembered being asked if he could identify Mr. Martin, to which he responded affirmatively. Terry did not recall telling Detective McCleery that he called the Fourth District nor speaking with Officer Aaron Crunk. Terry recalled identifying Mr. Martin in a photographic lineup. However, Terry did not recall informing the NOPD officers that Mr. Martin told him why he killed Mr. Perkins two days after the shooting. Terry did not see Mr. Perkins get shot.

Mr. Perkins attempted to run, but slipped. Terry admitted that Mr. Perkins did not have a gun. Terry heard that Mr. Perkins had altercations with other people in the neighborhood. Terry acknowledged that there had been a “suggestion” in the neighborhood that he set up Mr. Perkins and went through his pockets after the shooting. Terry denied any involvement and stated that he did not go through Mr. Perkins’ pockets.

Detective Aaron Crunk

NOPD Detective Crunk received a telephone call about the shooting from a person who called himself “Mike.” Detective Crunk gave the information to Detective McCleery.

| ¿Detective Michael McCleery

NOPD homicide Detective McCleery conducted the investigation of Mr. Perkins’ homicide. Detective McCleery received information from Detective Crunk regarding a telephone call from a person named “Mike,” later determined to be Terry. Detective McCleery brought Terry in for questioning and obtained a statement. Terry was presented with a photographic lineup, and identified Mr. Martin as the person who shot Mr. Perkins. Detective McCleery recorded a statement from Terry. At trial, Detective McCleery identified his voice on the recorded statement, which was played for the jury. Detective McCleery stated that no threats or coercion were used to obtain Terry’s statement.

Detective McCleery obtained an arrest warrant for Mr. Martin and Mr. Martin was arrested in Houston, Texas by a United States Marshall several months later. Detective McCleery interviewed Amanda Washington, who gave a recorded statement and identified Mr. Martin in a photographic lineup. Detective McCleery spoke with Keith Mack. Mr. Mack provided him with a recorded conversation between Mr. Mack and Mr. Martin wherein Mr. Martin discussed the shooting.

Amanda Washington

Ms. Washington knew Mr. Martin, and she identified him at trial. She was going to the grocery store when she heard gunshots. She then witnessed Mr. Martin running to his car with a gun in his hand. Ms. Washington asked Mr. Martin to let her pass because she thought he might shoot her. Mr. Martin let her pass, but she watched as she walked away. Mr. Martin placed the gun in a car?s trunk and drove away. Ms. Washington saw Mr. Martin later that night at a friend’s house on Sullen Street, but Mr. Martin did not speak to her. Ms. Washington also saw Mr. Martin speaking with his uncle, Terry. She did not see | sMr. Martin after that evening until about one month before trial when he asked her if she planned on testifying.

Ms. Washington informed Mr. Martin that she was not going to testify. Ms. Washington stated that she told Terry what she saw the day of the shooting. She acknowledged that she signed an affidavit for the defense, stating that she did not see Mr. Martin involved in the shooting of Mr. Perkins. However, she did not recall the document stating that she did not view Mr. Martin with a gun.

Keith Mack

Mr. Mack and Mr. Martin attended high school together. Mr. Mack last saw Mr. Martin prior to Hurricane Katrina. Mr. Mack decided to call Mr. Martin when he viewed Mr. Martin’s photograph on a Crimestoppers advertising board. Mr. Mack telephoned Mr. Martin and recorded the conversation. Mr. Mack admitted that hé placed the telephone call to get the Crimestoppers reward, but stated that he did not get the reward because he subsequently went to prison. Mr. Mack gave the recorded conversation to a friend who turned it over to the NOPD allegedly because a couple of his friends’ murders were never solved.

Mr. Mack identified his and Mr. Martin’s voices on the CD, which was played for the jury. Mr. Mack also recorded another conversation with Mr. Martin when Mr. Martin telephoned him. Mr. Mack stated that Mr. Martin sounded nervous and Mr. Martin said that he was going to turn himself in to the NOPD. Mr. Martin told Mr. Mack that the NOPD had no evidence to connect him to the crime and that “Lucky” deserved to be killed.

| ^ERRORS PATENT

Mr. Martin was sentenced on the same date the trial court denied his Motion for New Trial. The hearing transcript denotes that when the parties appeared for sentencing, defense counsel informed the trial court that he was filing a Motion for New Trial. The trial court denied the Motion for New Trial and then sentenced Mr. Martin, after the victim impact statements. Mr. Martin did not specifically waive his right to the delays provided in La.C.Cr.P. article 873, but when the trial court asked defense counsel if he had anything to be considered prior to sentencing, defense counsel responded in the negative.

La.C.Cr.P. art. 873 provides that: [i]f a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

“A defendant may implicitly waive the waiting period for imposing sentence by announcing his readiness for the sentencing hearing.” State v. Pierre, 99-3156, p. 7 (La.App. 4 Cir. 7/25/01), 792 So.2d 899, 903. In State v. Robichaux, 00-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 465, this Court held that “by virtue of the defense counsel’s statement, defendant announced his readiness for sentencing, which implicitly waived the waiting period.” Also, in State v. Cavazos, 11-0733, p. 8 (La.App. 4 Cir. 5/16/12), 94 So.3d 870, 878, this Court held that the defendant implicitly waived his right to the delay under La.C.Cr.P. art. 873 when the trial court asked defense counsel if had anything to say before sentencing, and defense counsel responded that there was nothing to put on the 17record.

In the case sub judice, defense counsel’s filing of a Motion for New Trial at the beginning of the sentencing hearing and his statement that he had nothing for the trial court to consider prior to sentencing implicitly waived the twenty-four hour delay required pursuant to La.C.Cr.P. art. 873. The failure to observe the twenty-four hour delay also constitutes harmless error because Mr. Martin has not challenged his sentence on appeal. Where a defendant does not challenge his sentence on appeal or raise the failure to observe the twenty-four hour delay as error, any error is harmless. State v. Celestine, 00-2713, p. 5 (La.App. 4 Cir. 2/13/02), 811 So.2d 44, 47.

SUFFICIENCY OF THE EVIDENCE

Mr. Martin asserts that the jury’s verdict, finding him guilty of second degree murder, is contrary to the law and evidence presented. Mr. Martin contends that the State failed to prove that he killed Mr. Perkins.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for examining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, 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 had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires 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.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

In the case sub judice, Mr. Martin was identified as the perpetrator by statements he made to Terry and Mr. Mack. Ms. Washington also testified that she viewed Mr. Martin in the area immediately after the shooting. She stated that Mr. Martin ran and placed a gun in the trunk of a car before driving away. Terry testified that Mr. Martin told him that Mr. Martin killed Mr. Perkins because Mr. Perkins harassed and threatened him. Mr. Martin implicated himself in his conversations with Mr. Mack, stating that the NOPD possessed no evidence on him and that Mr. Perkins deserved to be killed. Accordingly, the testimony was sufficient for the jury to conclude, beyond a reasonable doubt, that Mr. Martin was the person who shot and killed Mr. Perkins.

STATEMENTS ADMITTED INTO EVIDENCE

Mr. Martin contends that the trial court erred when it allowed the State to introduce Terry’s statement and the recorded conversations between Mr. Mack and Mr. Martin into evidence because the statement and conversations were allegedly not properly authenticated.

The record indicates that Mr. Martin did not object to the admission of Terry’s statement. The defense counsel objected to an alleged hearsay statement within the recorded statement. There was no objection to the authentication of the statement.

La.C.Cr.P. article 841(A) provides that: [a]n irregularity or error cannot be availed of after verdict |9unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La.C.Cr.P. art. 841(A). See also State v. Seals, 95-0305, p. 5 (La.11/25/96), 684 So.2d 368, 373. Not only does an objection have to be made, but La.C.Cr.P. art. 841(A) “requires a defendant to make known the grounds for his objection; and, he is limited on appeal to those grounds articulated at trial....” State v. Buffington, 97-2423, p. 9 (La.App. 4 Cir. 2/17/99), 731 So.2d 340, 346, quoting State v. Chisolm, 95-2028, p. 6 (La.App. 4 Cir. 3/12/97), 691 So.2d 251, 255. Thus, this issue was not preserved for appeal because defense counsel failed to object at trial.

However, Mr. Martin objected to the admission of the recorded statements between Mr. Mack and himself based upon the alleged lack of authentication. Authentication is required as a condition precedent to admissibility. La. C.E. art. 901(A). “One method of authenticating documents is through the testimony of a witness with knowledge of what the document is, where it comes from, and how it is kept.” State v. Amato, 96-0606, p. 17 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, 986. La. C.E. art. 901(B)(10) provides for “[a]ny method of authentication or identification provided by Act of Congress or by Act of the Louisiana Legislature.”

“To admit demonstrative evidence at trial, the law requires that the object be identified.” State v. Sweeney, 443 So.2d 522, 528 (La.1983). “The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case,” or “by chain of custody, that is, by establishing the custody of Imthe object from the time it was seized to the time it was offered in evidence.” Id. “The law does not require that the evidence as to custody eliminate all possibility that the object has been altered.” State v. Merrill, 94-0716, p. 9 (La.App. 4 Cir. 1/31/95), 650 So.2d 793, 799. “For admission, it suffices that it is more probable than not that the object is the one connected to the case.” Id.

Mr. Mack testified that he recorded the conversations with Mr. Martin. He initially called Mr. Martin, and Mr. Martin later called him. Mr. Mack identified his and Mr. Martin’s voices on the CD. Mr. Mack further stated that the CD was then sent to the NOPD. Detective McCleery testified that he spoke with Mr. Mack, who provided him with the recorded conversations. This testimony was sufficient to authenticate the recorded conversations.

ALLEGED HEARSAY EVIDENCE

Mr. Martin avers that the trial court erred in admitting alleged hearsay evidence contained within Terry’s statement that he heard that Mr. Martin killed Mr. Perkins.

“ ‘Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801. La. C.E. art. 802 provides that “[hjearsay is not admissible except as otherwise provided by this Code or other legislation.” “Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” State v. Everidge, 96-2665, p. 7 (La.12/2/97), 702 So.2d 680, 685.

“[E]vidence is not hearsay, and thus admissible, if it is introduced to show that the utterance occurred or that the conversation took place rather than to show In the truth of the matter asserted.” State v. Schexnayder, 96-98, p. 16 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, 367. Moreover, “[inadmissible hearsay which is merely cumulative or corroborative of other testimony adduced at trial is considered harmless.” State v. Winfrey, 97-427, p. 27 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 78.

“Harmless error does indeed have a place in appellate review of criminal convictions” and it “should be applied to inconsequential trial errors.” State v. Johnson, 94-1379, p. 1 (La.12/18/95), 665 So.2d 1163, 1163. “The test for determining harmless error is whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” State v. Hugle, 11-1121, p. 19 (La.App. 4 Cir. 11/7/12), 104 So.3d 598, 613, quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

Mr. Martin references two portions of Terr/s statement wherein he states that later on in the day of the shooting, Terry learned that Mr. Martin was the person who shot Mr. Perkins. However, Terry further stated that two days later, he spoke with Mr. Martin, who told Terry that he shot Mr. Perkins because he and Mr. Perkins had altercations and Mr. Perkins was threatening him. These two statements are cumulative and harmless in light of the statements Mr. Martin made to Terry and Mr. Mack. Additionally, Mr. Martin’s other statements to Mr. Mack and the testimony of Ms. Washington placing Mr. Martin near the scene at the time of the shooting were sufficient for the jury to determine that Mr. Martin killed Mr. Perkins.

MOTION FOR NEW TRIAL

Mr. Martin also asserts that the trial court erred in denying his Motion for New Trial because the jury’s verdict was not supported by the law and the 1 ^evidence.

“The decision on a motion for new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion.” State v. Quimby, 419 So.2d 951, 960 (La.1982). “The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments.” Celestine, 00-2718, p. 8, 811 So.2d at 49. “As a general rule, a motion for new trial will be denied unless injustice has been done.” Id. “An assignment of error based on the refusal of the trial court to grant a new trial on grounds that the verdict was contrary to the law and evidence presents nothing for appellate review.” State v. Gray, 351 So.2d 448, 461 (La.1977). However, in State v. Guillory, 10-1231, pp. 3-4 (La.10/8/10), 45 So.3d 612, 615, the Supreme Court determined that a grant or denial of a motion for new trial pursuant to La.C.Cr.P. article 851(5) presents a question of law that is subject to appellate review and is reviewed for abuse of discretion.

In State v. Collins, 10-1181, pp. 11-12 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, 275, this Court noted that it was “unclear whether Guillory is limited to motions filed pursuant to La.Code Crim. Proc. art. 851(5) or whether it is applicable to ... motions filed pursuant to La.Code Crim. Proc. art. 851(1).” This Court, which was considering a motion for new trial based upon La. C.Cr.P. article 851(1), wherein the verdict is allegedly contrary to the law and evidence, reviewed the evidence and concluded that the evidence supported the verdict. Collins, 10-1181, p. 12, 62 So.3d at 275. The Court stated that “even accepting arguendo that Guillory is applicable to the denial of a motion filed pursuant to La.Code Crim. Proc. art. 851(1), the trial court clearly did not abuse its discretion in denying the motion.” Id.

113“In order to obtain a conviction, the State must prove the elements of the crime charged beyond a reasonable doubt.” Collins, 10-1181, p. 3, 62 So.3d at 271. “[S]econd degree murder, defined in pertinent part by La.Rev.Stat. 14:30.1,” is “the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the perpetration or attempted perpetration of, among other felonies, armed robbery or simple robbery.” Id.

The evidence was sufficient for the jury to find, beyond a reasonable doubt, that Mr. Martin shot and killed Mr. Perkins. Dr. McGarry testified that Mr. Perkins suffered three gunshot wounds to the head. The gunshot wounds to the head provided sufficient evidence that Mr. Martin intended to inflict great bodily harm. Thus, the State produced sufficient evidence, beyond a reasonable doubt, for the jury to find that Mr. Martin was guilty of second degree murder. Therefore, the trial court did not abuse its discretion when it denied the Motion for New Trial.

DECREE

For the above-mentioned reasons, we find that sufficient evidence was presented for the jury to find that Mr. Martin killed Mr. Perkins beyond a reasonable doubt. Additionally, the recorded statements admitted by the trial court were sufficiently authenticated by the accompanying testimony. The trial court did not err in admitting the alleged hearsay statements of Terry, as the statements were cumulative in nature and therefore harmless. Lastly, the trial court did not abuse its discretion in denying Mr. Martin’s Motion for New Trial. Therefore, we affirm Mr. Martin’s conviction and sentence.

AFFIRMED.

      . Mr. Mack is presently serving time in a federal penitentiary for possession of cocaine and possession of firearms.

      . "When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, we first determine the sufficiency of the evidence.” State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and AGRICULTURAL AND MECHANICAL COLLEGE v. DIXIE BREWING COMPANY, INC. Dixie Brewery Company, Inc. v. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College Board of Supervisors of Louisiana State University Agricultural and Mechanical College v. Dixie Brewing Company, Inc.
    Nos. 2013-CA-0250, 2013-CA-0251, 2013-CA-0252.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Jon Kenton Parsons, Luke Francis Pion-tek, Thomas John Capella, Christian J. Rhodes, Shelley Ann McGlathery, Roedel Parsons Koch Blache Balhoff & McCollis-ter, New Orleans, LA, for Plaintiff/Appel-lee.
    Cesar Roberto Burgos, Gabriel 0. Mon-dino, Robert Bartholomew Evans, III, Robert Joseph Daigre, Burgos & Evans, LLC, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU.
   MADELEINE M. LANDRIEU, Judge.

hOn February 25, 2011 the Board of Supervisors of Louisiana State University (“LSU”), instituted proceedings to expropriate certain property, including a lot and building owned by Dixie Brewery Company, Inc. (“Dixie”), in connection with the development and construction of LSU’s new University Medical Center (“UMC”) and the adjacent Veterans Affairs Medical Center (“VAMC”). Since then, Dixie has filed multiple motions and petitions seeking to enjoin LSU on constitutional grounds from selling or leasing the expropriated property (“the Dixie parcel”) to the United States Department of Veterans Affairs (“V.A.”)] for use as part of the VAMC. The last two of those petitions, one filed in January, 2012, and one in October, 2012, are pertinent here. For purposes of this opinion, these will be referred to as the “first” petition and the “second” petition, respectively.

This appeal is taken from the trial court’s November 16, 2012 judgment, which dismissed with prejudice Dixie’s second “Petition for Permanent Injunction and Request for Preliminary Injunction.” The trial court granted the exception of |2res judicata filed on behalf of LSU and its former president, John Lombardi. The court concluded that its February 7, 2012 judgment, which had denied Dixie’s first petition for injunctive relief against the same two defendants, precluded consideration of the current petition.

ISSUE

The sole issue on appeal is whether the trial court erred by dismissing Dixie’s petition on the basis of res judicata.

DISCUSSION

In reviewing the granting or denial of an exception res judicata, the appellate court must determine whether the trial court’s decision is legally correct or incorrect. Myers v. National Union Fire Ins. Co. of Louisiana, 2009-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210.

The doctrine of res judicata precludes re-litigation of claims and/or issues arising out of the same factual circumstances when a valid final judgment exists. Id. Louisiana’s res judicata statute is La. R.S. 13:4231, which states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
Ia(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Also relevant is Louisiana Code of Civil Procedure Article 425, entitled “Preclusion by judgment,” which provides, in pertinent part: “A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” The Louisiana Supreme Court has held that in order to preclude a second action under the theory of res judi-cata, five elements must be satisfied:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

In the case before us, Dixie concedes in its brief that the first three elements have been met: namely, that the trial court’s February 7, 2012 judgment [“the first judgment”] is a valid, final judgment between the same parties. That judgment denied Dixie’s “request for a preliminary and permanent injunction enjoining [LSU] from selling or leasing the property referred as [sic] Square 556 or the Dixie Brewery Parcel.” Dixie did not seek review of that judgment.

Dixie filed this second petition for injunction on October 12, 2012, praying for exactly the same relief as it had in the first petition. The trial court dismissed the second petition on the basis of res judica-ta. In reviewing that decision, the Lpertinent questions are whether Dixie’s second petition asserted a cause of action that 1) arose out of the same transaction or occurrence that was the subject matter of the first petition, and 2) existed at the time the first judgment was rendered. The trial court concluded that these two elements had been satisfied. We agree.

Both Dixie’s first and second petitions sought to enjoin LSU from transferring the subject property to the V.A. because, according to Dixie, any such transfer would violate Article I, Section 4(H)(1) of the Louisiana Constitution. That section provides, in pertinent part: [T]he state or its political subdivisions “shall not sell or lease property which has been expropriated and held for not more than thirty years without first offering the property to the original owner....” (Emphasis supplied). Thus, the “transaction or occurrence” that is the subject of Dixie’s petitions is the transfer of the property in question to the V.A., which Dixie was seeking to prevent.

Dixie contends, however, that the second petition for injunction asserted a cause of action that arose out of a different set of operative facts than those upon which the first petition was based. Therefore, Dixie argues, the cause of action asserted in the second petition did not arise from the same transaction or occurrence as did the cause of action asserted in the first petition. The basis for Dixie’s argument is that in its first petition, it relied upon a “Right of Use” agreement between LSU and the V.A. as evidence that the transfer would constitute an illegal sale or lease, whereas, in its second petition, Dixie relied upon a subsequent “Act of Exchange” as such evidence. In its first petition, Dixie ^asserted it would suffer irreparable harm if its property was unconstitutionally transferred by LSU to the V.A. The trial court declined to grant an injunction. In its second petition, Dixie again asserted that it would suffer irreparable harm if its property was unconstitutionally transferred by LSU to the V.A., and sought the same injunctive relief. The fact that Dixie cited the Right of Use agreement as evidence of unconstitutionality in the first petition and cited the Act of Exchange as evidence in the second petition is of no moment. As this court has noted, the fact that a plaintiff “seek[s] to rely upon different evidence to support the same legal principles” does not state a new cause of action. Bulot v. Intracoastal Tubular Services, Inc., 2004-0398, 0399, 0400, p. 8 (La.App. 4 Cir. 9/29/04), 883 So.2d 1146, 1151. In Cooper v. Federal Land Bank of New Orleans, 197 So. 822, 824 (La.App. 1st Cir.1940), the court held that the principle of res judicata prevents a party from seeking multiple injunctions for the same purpose against the same opposing party, stating:

Where the plaintiff is aware of other grounds for an injunction other than those set up in his petition to prevent a sale of his property, he cannot in a subsequent suit filed for the same purpose avail himself of the grounds which he knew of at the time of filing his first suit. Courts look with disfavor on a multiplicity of suits to attain a purpose that can be fully litigated in one suit, and thus prevent a person from being annoyed and harassed by several suits designed to secure one particular form of relief.

We therefore conclude, as did the trial court, that the cause or causes of action asserted by Dixie in these two petitions for injunction arose from the same transaction or occurrence — the allegedly unconstitutional transfer of Dixie’s property by LSU to the V.A.

| (¡Dixie further contends that the cause of action asserted in the second petition did not exist at the time the first judgment was rendered because the Act of Exchange was executed after the date of the first judgment and before the filing of Dixie’s second petition for injunction. However, the relevant question is not whether the Act of Exchange existed at the time the first judgment was rendered, but whether Dixie’s cause of action existed at that time.

Despite the fact that the Act of Exchange was not executed until July, Dixie was clearly aware at the time it filed the first petition for injunction that LSU intended to transfer the property to the V.A. As stated previously, Dixie’s first petition relied upon the Right of Use agreement. The Right of Use agreement itself clearly spells out the parties’ intention for the V.A. “to legally acquire a Fee Simple Title Interest in the Premises from LSU as soon as possible.... ” The Act of Exchange was simply a means of accomplishing the intent expressly stated in the Right of Use agreement. Moreover, the record demonstrates that Dixie has been aware since the onset of this litigation of LSU’s intent to transfer to the V.A. all the properties located in the footprint of the VAMC, including the Dixie property. This intent was first documented in two agreements — the 2007 Memorandum of Understanding between the City of New Orleans and the VA (the “MOU”) and the 2007 Cooperative Endeavor Agreement between LSU, the City of New Orleans and the State of Louisiana (“CEA”). These agreements provided the basis for the expropriation suit. By the time of the first judgment, several Acts of Exchange had been executed between LSU and the V.A. to transfer other properties in the VAMC footprint. These Acts of Exchange have been used by LSU, the City and the State to transfer the expropriated properties to the V.A. in exchange for the site of the former V.A. hospital in New Orleans, which was devastated by Hurricane 17Katrina. LSU’s intent to transfer Dixie’s property, along with all the other properties in the VAMC footprint, to the V.A. was never disguised. Dixie was clearly aware of this eventuality at the time it filed its first petition seeking to enjoin any such transfer. We therefore do not accept Dixie’s contention that the Act of Exchange created a wholly new cause of action that did not exist at the time the first judgment was rendered. We conclude that the cause of action Dixie asserts in the petition at issue here not only existed, but was asserted, in its first petition for injunction, which the trial court denied on February 7, 2012.

Dixie’s final argument on appeal centers on its pending motion to dismiss the expropriation suit. Prior to seeking injunctive relief, Dixie filed this motion in the trial court challenging the validity of the expropriation pursuant to La. R.S. 19:147. Dixie now argues that the filing of its motion to dismiss “places the adjudication of title in the hands of the Court” and “blocks the ability of LSU to take actions relative to the property” until the motion has been decided. This argument is specious, and does not appear to have been made in the trial court.

This court has held that the expropriation authority of LSU pursuant to La. R.S. 19:141, et seq. is constitutional. La. R.S. 19:144 provides that upon the filing of the petition for expropriation, the court shall issue an ex parte order directing |sthat the amount of the estimated compensation (which amount is required to be included in the petition) be deposited into the registry of the court. La. R.S. 19:145 further provides that once that amount is deposited, “title to the property and property rights specified in the petition shall vest in the plaintiff [the expropriating authority]. ...” La. R.S. 19:146 requires the clerk of court to issue a notice of expropriation to the defendant upon receipt of the deposit by the court. La. R.S. 19:147 then affords the defendant ten days from service of this notice to file a motion to dismiss, as Dixie has done here, on the grounds that the property was not expropriated for a public use. Significantly, however, this section does not provide that the expropriating authority is divested of title to the property or of any property rights upon the defendant’s filing of a motion to dismiss. Nothing in the statute or the applicable law suggests that if a landowner challenges the taking of his property, the expropriating authority loses title or any rights to the property until the challenge has been resolved. We therefore reject Dixie’s argument in this respect.

CONCLUSION

Accordingly, for the reasons stated, we find that the trial court did not err by granting the exception of res judicata. We therefore affirm the trial court’s judgment dismissing the petition for injunction.

AFFIRMED.

      . Three separate proceedings filed by LSU and/or Dixie in relation to the expropriation were transferred to and consolidated in a single division of the civil district court prior to Dixie’s filing of either of the petitions for injunction mentioned here.

      . Dixie's petition for injunctive relief was filed against both LSU and Mr. Lombardi.

      . In the alternative to their exception of res judicata, LSU and Mr. Lombardi filed exceptions of no cause of action, which they prayed the trial court to consider in the event it denied their exception of res judicata. Despite granting the exception of res judicata, however, the trial court also granted the exception of no cause of action as to Mr. Lombardi only, finding that Dixie had not alleged any wrongdoing by Mr. Lombardi apart from actions he took in his capacity as president of LSU, and therefore had failed to state a cause of action against Mr. Lombardi in his personal capacity. The appellants argue in their brief that this exception was wrongly granted. We find no error in the trial court’s ruling. However, we pretermit discussion of this issue, which is rendered moot by our affirmation of the trial court's dismissal of Dixie’s petition against both LSU and Mr. Lombardi on the alternate ground of res judicata.

      . We particularly note that the language of Section (4)(H)(1) is limited to sales and leases. An exchange, such as the transaction that occurred here between LSU and the V.A., in which parcels of real estate have been exchanged and no money has changed hands, is neither a sale nor a lease according to the Louisiana Civil Code. La. C.C. art. 2660 defines an exchange as "a contract whereby each party transfers to the other the ownership of a thing other than money.” See Rogers v. Horseshoe Entertainment, 32,800, p. 12 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, 604.

      . La. R.S. 19:147 states:
      Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public use may file a motion to dismiss the suit within ten days from the date the notice was served on him. He shall certify thereon that a copy thereof has been served personally or by mail on either the plaintiff or his attorney of record in the suit. This motion shall be tried contradictorily with the plaintiff.
      Failure to file the motion within the time provided or to serve a copy thereof on the plaintiff constitutes a waiver of all defenses to the suit except claims for compensation.

      . See Alderdice v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 2012-0148, pp. 9-10 (La.App. 4 Cir. 7/25/12), 107 So.3d 7, 13, writ denied, 2012-1915 (La. 11/21/12), 102 So.3d 58.