author: ROBERT M. MURPHY, Judge.

text:
    John B. WELLS v. Timothy FANDAL, Chairman for Alliance for Good Government, Alliance for Good Government, Board of Directors, Alliance for Good Government, Alliance for Good Government, Inc.
    No. 13-CA-620.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.

      Robert T. Lorio, Attorney at Law, Mandeville, Louisiana, for Plaintiff/Appellant.
    Carolyn B. Hennesy, Attorney at Law, Jacque R. Touzet, Attorney at Law, New Orleans, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

l2On June 1, 2012, plaintiff John B. Wells filed a “petition for declaratory judgment, quo warranto, injunctive relief, damages and to appoint a corporate receiver.” Wells asserted that the Alliance for Good Government, Inc., its Board of Directors, and its chairman, Timothy Fandal, illegally removed him from his one-year position on the Alliance for Good Government’s Board and expelled him from membership.

At the May 3, 2013 hearing, the trial court sustained defendants Alliance for Good Government, Inc. (“Alliance”) and Fandal’s (collectively “defendants”) exceptions of no right of action and mootness, dismissing all of plaintiffs claims with prejudice except for defamation; sustained defendants’ exception of lack of |sprocedural capacity as to the “Board,” the “Secretary,” and “Treasurer,” dismissing them with prejudice; sustained defendants’ exception of no cause of action against chairman Fandal, dismissing claims against him individually with prejudice; sustained defendants’ exception of vagueness with respect to the defamation claim, giving plaintiff 15 days from May 9, 2018 to amend and state his claim for defamation; mooted defendants’ exceptions of improper cumulation and improper use of a summary proceeding; denied plaintiffs motion to compel and to deem facts admitted; and deferred defendants’ motion for a protective order.

On May 9, 2013, the trial court entered a judgment without assigning reasons. On May 22, 2013, Wells filed a devolutive appeal from the trial court’s rulings on the exceptions of no right of action and mootness, writ of quo warranto, exception of no cause of action, exception of lack of procedural capacity, and plaintiffs motion for discovery. Defendants answered the appeal seeking this Court’s ruling on their exceptions of improper cumulation and improper use of a summary proceeding. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 13, 1967, the Alliance was organized as a non-profit corporation under the laws of the State of Louisiana with the filing of its articles of incorporation. The Alliance’s articles have remained unchanged with its bylaws last amended in 2005. The Alliance is active in four parishes including St. Tammany.

In late 1999, Wells became a member of the St. Tammany Chapter of the Alliance and served as Vice-President of that Chapter for six months in 2002. In November of 2006, he was elected President of the St. Tammany Chapter and took 14office in January of 2007. In November of 2008, he was re-elected. In August of 2010, plaintiff made a statement to a board member which resulted in an ethics complaint. Plaintiff contended he was then exonerated by the Alliance’s ethics eom-mittee, though he admitted he was reprimanded.

In November of 2011, the St. Tammany Chapter elected Wells to the Alliance’s board. On January 19, 2012, the board in executive session voted not to seat him on the board. In March of 2012, the board then voted to expel him from membership.

On June 1, 2012, Wells filed a petition for declaratory judgment, quo warranto, injunctive relief, damages and to appoint a corporate receiver. Named defendants were Timothy Fandal, chairman of the board of the Alliance for Good Government, the Board of Directors of the Alliance of Good Government, the Alliance for Good Government, and the Alliance for Good Government, Inc. (“Alliance”).

Plaintiff questioned the authority of the board to act. He further contended that the articles and bylaws, both attached to the petition, are inconsistent as to the number of directors required to serve on the board. In fact, the articles provide for a board comprised of five directors, and the bylaws, a board of nine. It is undisputed that the size of the board, which acted to deny plaintiff his seat on the board and expel him from membership, was comprised of nine members.

Plaintiff sought court appointment of a temporary and permanent receiver under La. R.S. 11:258, et seq., contending that the Directors were grossly mismanaging the corporation and committing ultra vires acts. Wells specifically complained of the actions the purported board had taken against him in refusing to | 5seat him and expelling him from the Alliance’s membership. Plaintiff sought a writ of quo war-ranto if the trial court found the board properly constituted.

Plaintiff contended that the board’s actions were improper and illegal. He first argued that the board was improperly constituted, rendering the actions of the nine-member board null. Plaintiff contended that the board itself had no authority to remove or appoint a director except to fill a vacancy, and thus its actions were null.

Plaintiff further cited Alliance bylaws which incorporated Robert’s Rules of Order for its ethics committee procedures. He alleged specifically that Robert’s Rules required that a matter be dropped if the member was exonerated by the ethics committee; additionally, under Robert’s Rules, the matter would have had to have been referred to the general membership and not to the board for a vote on his expulsion from membership.

Wells contended that defendants failed to comply with the articles and bylaws and in doing so breached their fiduciary duties to its members. Plaintiff further sought a temporary and permanent receiver to effect the Alliance’s compliance with the articles and bylaws.

Plaintiff claimed that the board, secretary, and treasurer, “acting on behalf of the Board,” provided false and defamatory information to the Board of Directors that plaintiff “derailed the forum rules from being put into action.” Plaintiff further sought injunctive relief, again on the basis that the board was operating in violation of the corporate articles and bylaws.

Plaintiff prayed for the court to restore his membership in the Alliance; to nullify all actions of the board taken without his notice, participation, and deliberation; to conduct a show cause hearing to appoint a temporary receiver and after trial appoint a permanent receiver; to restore Wells to a one-year term on the [ f,board as its St. Tammany representative; to issue a permanent injunction after trial, restraining the chairman and the board from violating the articles, bylaws, and Louisiana’s nonprofit corporation law; to award damages after trial for defamation as proven; and to award costs.

On July 20, 2012, defendants Alliance and Fandal filed exceptions of improper venue, lack of procedural capacity and no cause of action. On July 24, 2012, defendants added exceptions of vagueness, improper cumulation of actions, and improper use of summary procedure. On April 12, 2013, defendants filed exceptions of no right of action and mootness.

On May 22, 2013, Wells filed a devolu-tive appeal from the May 9, 2013 judgment, which was granted on May 23, 2013.

ASSIGNMENTS OF ERROR

On appeal, plaintiff assigns the following errors by the trial court:

One: the trial court erred in granting the defendants’ exception of no right of action. Appellant contends that he had standing and that the trial court erred in not ruling on his status as a member, a threshold matter in determining whether he had a right of action. Appellant further contends that his purported expulsion was illegal because it did not comply with Robert’s Rules of Order as required by the bylaws.

Two: the trial court erred in granting defendants’ exception of lack of procedural capacity.

Three: the trial court erred in granting defendants’ exception of no cause of action, contending that he stated a cause of action against Fandal or alternatively should have been given an opportunity to amend.

|7Four: the trial court erred in denying appellant’s motion to compel which made it impossible to amend the defamation action.

The appellant asserts that the exceptions cited in appellee’s answer, improper cumulation and improper use of summary proceeding, for which appellees seek a ruling, are not ripe for consideration.

STANDARD OF REVIEW

The exception of no right of action assumes a viable cause of action and questions whether the plaintiff had a legal interest in judicially enforcing that cause or remedy. La. C.C.P. art. 681. The standard of review for the exception of no right of action is de novo. Morton v. Washington Nat’l Ins. Co., 420 So.2d 1019 (La.App. 5 Cir.1982).

The appellate court also conducts a de novo review of a trial court’s ruling sustaining an exception of no cause of action because the exception raises a question of law, and the court’s decision should be based only on the sufficiency of the petition. Gaudet v. Jefferson Parish, 12-707 (La.App. 5 Cir. 8/27/13), 116 So.3d 691, 693.

When considering a legal issue, the appellate court assigns no special weight to the trial court and, instead, conducts a de novo review of questions of law and renders judgment on the record. Roberts v. Hartford Fire Ins. Co., 05-1178 (La.App. 3 Cir. 4/5/06), 926 So.2d 121, writ denied, 06-1056 (La.6/23/06), 930 So.2d 984. This de novo review extends to this Court’s review of the trial court’s ruling on the exception of lack of procedural capacity.

Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery; and such discretion will not be disturbed on appeal absent a clear showing of abuse. Roccaforte v. Nintendo of America, Inc., 05-239 (La.App. 5 Cir. 11/29/05), 917 So.2d 1143, writ denied, 01-3301 (La.3/8/02), 811 So.2d 884.

If amendment of a petition would constitute a vain and useless act, amendment of the petition is not permitted. La. C.C.P. art. 934; NOLA 180 v. Harrah’s Operating Co., Inc., 12-72 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, writ denied, 12-1391 (La.10/8/12), 98 So.3d 855.

LAW AND DISCUSSION

In their exception of no right of action, defendants cite Article VII of the Alliance’s articles of incorporation which provides that the majority of the board may expel a member for cause. They further contend that following his expulsion, Wells has no actual interest/standing in challenging the acts of the corporation and thus had no right of action for any relief including receivership, quo warranto or injunc-tive relief. Defendants also assert that plaintiffs term on the board had expired, thus mooting, or rendering futile, any right of action to restore him to the board.

As indicated by plaintiff, the articles and bylaws are seemingly inconsistent as to the number of required directors on the Alliance’s board.

ARTICLES OF INCORPORATION

The Articles of Incorporation provide, in pertinent part:

Article V: “The corporate powers and management of this corporation shall be vested in, and exercised by, a board of directors of five members.... ” Any vacancy occurring among the directors of this corporation by death, resignation or otherwise, shall be filled, by election at the next regular or special meeting of the board of directors.
A majority of the directors shall constitute a quorum; and a quorum shall be necessary to consider any question that may come before any meeting of directors .... A quorum being present, the affirmative vote of a majority of the directors present shall be necessary to decide any question.
|nThe board of directors shall have the power to make, alter and annul such bylaws, rules and regulations for the government of the affairs of this corporation as it may deem proper. (Emphasis added).
* ⅜: ⅜
Article VII: Membership may be revoked for cause by a majority of the Board of Directors.

BYLAWS

The bylaws provide, in pertinent part, for a board of nine members after the addition of St. Tammany as a new chapter with its allotted two board seats:

Article VI(4): Each chapter will elect members to the Board of Directors as follows:
Orleans Chapter: 2 five-year seats; 1 one-year seat
St. Bernard Chapter: 2 five-year seats
Jefferson Chapter: 1 five-year seat; 1 one-year seat
A. All new chapters, as approved by a majority vote of the Board of Directors, having completed all requirements of the Bylaws, will have the opportunity to be represented on the Board of Directors with 1 five-year seat and 1 one-year seat.

Appellant argues that the articles control any inconsistency and contends that the actions taken by the allegedly improperly constituted nine-member board were void because the articles provide only for a five-member board. Appellant further argues that Louisiana corporation law provides that the corporation has the power “[t]o make and alter bylaws, not inconsistent with the laws of the state or with the articles, for the administration and regulation of the affairs of the corporation.” La. R.S. 12:207(B)(10). Appellant further contends that La. R.S. 12:222 provides that bylaws inconsistent with the Charter are void; if there is any inconsistency between the bylaws and the articles, the articles control. The actions 110of the nine-member Alliance board not to sit plaintiff on the board and to expel him would be void, per appellant’s argument.

The record does not contain minutes reflecting the actual vote where the court might, for instance, have regarded a unanimous vote on expulsion as mooting any inconsistency of the articles with the bylaws.

On December 13,1967, the Alliance filed its articles of incorporation with the Louisiana Secretary of State. Article V states that the “corporate powers and management of this corporation shall be vested in, and exercised by, a board of directors of five members.... ” That same article provides that “[t]he board of directors shall have the power to make, alter and annul such by-laws, rules and regulations for the government of the affairs of this corporation as it may deem proper.”

On January 20, 2005, the Alliance ratified the bylaws including Article VI, Section 4, pertaining to establishing the nine-member board of directors, at issue here.

LEGISLATION ON NONPROFIT CORPORATION BYLAWS

Subsequent to the creation of the Alliance for Good Government, Inc., the Legislature adopted Acts 1968, No. 105, eff. Jan. 1, 1969. Act 105 provides, in pertinent part:

Non profit corporation law by-laws, La. R.S. 12:222

A. The members or the directors of a [nonprofit] corporation may make, amend and repeal the bylaws of the corporation, subject always to the power of the members to change the action of the directors. Unless the articles or by-laws provide otherwise, the powers hereby conferred shall be exercised by a majority vote of the directors or the voting members of the corporation, as the case may be, present or represented at any regular or special meeting convened after notice of the purpose thereof; provided, however, that no greater proportion of the voting members shall be required by bylaw, article, or otherwise to make, amend, or |n repeal by laws than that proportion of directors which is required to make, amend, or repeal bylaws.
C. Subject to the provisions of this Chapter, the bylaws may include any provision for the regulation and management of the affairs of the corporation, its rights or powers, the rights, powers or duties of its members, directors or officers, or the directors’ qualifications, classification, office, or fixing their compensation, not inconsistent with law or the articles. (Emphasis added). number or term of

Article V of the articles sets both the number of board members at five and permits the adoption of bylaws for the government of corporate affairs, consistent with bylaw Article VI(4), above. The comment to the 1968 revision notes a change in the law at issue here: “This section does not change the law, except to eliminate the necessity for setting forth in the articles the by-law authority of the directors.” The authority to adopt by-laws regarding the number of directors and limiting director authority is also set forth in Act 105 pertaining to business corporation law.

Business corporation law by-laws, La. R.S. 12:28:

A. Unless the article provides otherwise, the board of directors may make and alter by-laws, including by-laws fixing the directors’ qualifications, classifications, number or term of office, or fixing their compensation, subject to the power of the shareholders to change or repeal any by-laws so made. La. R.S. 12:28 (Emphasis added).

The comment to the 1968 revision notes a change in the law: “This section changes the former law by authorizing the directors to make and alter all by-laws, including bylaws affecting their own office, unless the articles provide otherwise....”

In the instant case, the Alliance board altered its own power by ratification of bylaws authorized and consistent with Article V of its articles of incorporation. This Act under both business corporation and nonprofit corporation law, expressly expands the scope of possible bylaws to include the number of directors. See Mary v. Lupin Foundation, 609 So.2d 184, (La.1992) (Business corporation laws, La. | i?R.S. 12:1, et seq., may be referred to for guidance in case involving nonprofit corporations); see also White v. St. Elizabeth B.C. Brd. of Directors, 43,329 (La.App. 2 Cir. 6/4/08), 987 So.2d 202, 205, writ denied, 08-1440 (La.10/10/08), 993 So.2d 1284.

This legislation on its face permits a change and expansion in board composition via bylaws and validates the board’s votes on not seating plaintiff and his ouster from membership. We conclude, based on review of the petition, attached exhibits, and La. R.S. 12:222, that any discrepancy between the articles and bylaws on the number of directors, does not in itself determine that the board’s votes were illegal.

Plaintiff further contends that his expulsion was illegal as it did not comply with Robert’s Rules of Order as provided by the bylaws. However, the central issue is the authority of the board to act and not the procedural requirements of the Alliance’s ethics committee provided in Robert’s Rules.

By virtue of plaintiffs membership in the Alliance since 1999 and his November 2011 election by the St. Tammany chapter to the Alliance’s board of directors, plaintiff argues that he had a real and actual interest in a seat on the board and membership in the Alliance. Contrariwise, defendants argue that plaintiffs expulsion from the board and membership eliminated his standing/right of action in quo war-ranto, receivership and injunctive relief.

We find that Wells has the requisite standing based on his actual interest in this proceeding; La. C.C.P. art. 681; see Parish of Jefferson v. Lafreniere Park Foundation, 98-146 and 98-147 (La.App. 5 Cir. 7/28/98), 716 So.2d 472 (holding that plaintiff had a right of action based on a real and actual interest in judicially enforcing the right asserted). However, as his one-year term on the board had already expired and that seat was filled for 2012, plaintiff lacks a right of action | ^insofar as his being restored to his expired term on the board. See Hardy v. Albert, 225 So.2d 127 (La.App. 4 Cir.1969) (where director’s term of office had expired and new election held, plaintiff had no right of action for quo warranto as it was moot); Industrial Companies, Inc. v. Durbin, 01-0665 (La.1/28/03), 837 So.2d 1207, 1216. On de novo review of the defendants’ exception of no right of action, we affirm the sustaining of the exception of no right of action dismissing plaintiffs claim for restoration to the board.

The authority of the nine-member board to expel plaintiff from membership is validated by Article V of the Charter which permits the five-member board to adopt bylaws and La. R.S. 12:222 which permits nonprofit corporation bylaws to address the number of directors. We thus affirm the trial court’s ruling sustaining defendants’ exception of no right of action.

In their exception of lack of procedural capacity, defendants argued that the board was not a juridical person capable of being sued, nor were the unnamed secretary and treasurer. Defendants further argued in their no cause of action exception, that chairman Fandal was improperly sued individually.

Lack of procedural capacity is a dilatory exception which tests a party’s legal capacity to bring an action or to have one brought against it. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App. 2 Cir. 5/28/04), 877 So.2d 1003, writ not considered, 04-2136 (La.11/15/04), 887 So.2d 466. An entity must qualify as a juridical person to have the capacity to be sued; “[a] juridical person is an entity to which the law attributes personality, such as a corporation or a partnership.” La. C.C. art. 24. Plaintiff cites numerous cases in which boards sued or were sued. La. C.C. art. 3 provides, however, that custom cannot abrogate existing legislation; here, La. C.C. art. 24 specifically addresses the context in which a corporation has legal personality. The filing of the Alliance’s articles |14created the corporate entity; the board is a designation when the directors are present to decide a given matter. See Dejoie v. Med ley, 41,635 and 41,338 (La.App. 2 Cir. 12/20/06), 945 So.2d 968, rev’d on other grounds, 08-2223 (La.5/5/09), 9 So.3d 826 (judges en banc were decision-makers but not juridical persons capable of being sued). The trial court sustained the exception of lack of procedural capacity and dismissed the board with prejudice, indicating that the board was not a juridical person to be sued.

On de novo review of the legal issue of whether the Alliance board is a juridical person capable of being sued, we find that the Alliance’s board is not a juridical person and lacks the requisite procedural capacity. The trial court did not err in refusing to allow amendment here, as the corporate entity, Alliance for Good Government, Inc., having legal personality under La. C.C. art. 24, was already named as a defendant in the petition. Allowing an amendment would serve no useful purpose. See La. C.C.P. art. 934. We therefore affirm the trial court’s dismissal of the board as a defendant.

On de novo review, and assuming all the well-pled facts are true, we find the trial court’s ruling that plaintiff lacks a cause of action against Chairman Fandal was correct. The allegations against Fan-dal and the unnamed secretary and treasurer concern only their official capacity. The petition complains that Fandal did not call the votes at issue out of order, certainly the actions or non-actions of a chairman. Plaintiff has not alleged facts that would make Fandal, the secretary or treasurer individually liable.

Defendants argued in their exceptions of improper use of summary procedure and improper cumulation of actions that receivership and quo warranto, available under summary procedure, were wrongfully cu-mulated with causes of action under ordinary procedure such as defamation. In answering the appeal, 11fidefendants seek this Court’s review of the lower court’s rulings on the exceptions of improper use of summary procedure and improper cu-mulation of actions under La. C.C.P. art 462.

The trial court held that the two exceptions, improper use of summary procedure and improper cumulation were mooted by the other rulings. Wé find no reason to disturb the trial court’s ruling.

Defendants further argued that Wells’ defamation claim was excessively vague, e.g., that the petition refers to actions by two chairmen, Charles Imbornone and Fandal, without specifying the applicable dates and which chairman committed the acts complained of. On March 11, 2013, plaintiff filed a motion to compel responses to discovery and to deem requests for admission admitted. Defendants opposed plaintiffs motion to compel, contending that plaintiff was provided notice that discovery would not precede rulings on the exceptions.

The trial court ordered plaintiff to amend within 15 days subject to dismissal. The petition was not amended to state a claim for defamation within the 15 days as ordered, nor did plaintiff appeal the trial court’s ruling on vagueness. It is therefore within the discretionary power of the trial court to dismiss the defamation claim without prejudice. Jenkins v. Hartford Accident & Indem. Co., Inc., 356 So.2d 490 (La.App. 1 Cir.1977).

The trial court’s action on the motion to compel discovery is interlocutory and not appealable absent irreparable harm. See Price v. Price, 03-272 (La.App. 5 Cir. 6/19/03), 850 So.2d 860. We find plaintiffs argument that he could not amend his defamation claim due to lack of discovery, to be unavailing. Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery, and such discretion will not be disturbed on appeal absent a clear showing of abuse. Roccaforte, supra, 917 So.2d at 1147. We find no reason to disturb the trial court’s discretion ruling on the discovery issues.

DECREE

For the above reasons, we affirm the trial court’s judgment as follows: we affirm the trial court’s ruling sustaining the exception of no right of action; we affirm the trial court’s rulings on defendants’ exception of lack of procedural capacity as to the board, secretary, and treasurer; we affirm the trial court’s ruling on defendants’ exception of no cause of action against chairman Fandal individually; we affirm the trial court’s denial of plaintiffs motion to compel discovery responses; and we affirm the trial court’s ruling on the defendants’ exceptions of improper use of summary procedure and improper cumulation of actions.

AFFIRMED.

      . The matter was originally filed in the Twenty-Second Judicial District Court before being transferred to the Twenty-Fourth Judicial District Court.

      . Plaintiff further claims breach of fiduciary duties and defamation in his fourth and fifth causes of action, respectively.

      .The board, secretary, and treasurer, though not named as defendants in the petition, are referred to as the individuals who "provided false and defamatory information regarding the petitioner to the Board of Directors.”

      . Plaintiff did not appeal the trial court's decision on defendants’ exception of vagueness.

      . The minutes of the votes at issue and the voting tallies were not included in the record.

      . Appellant's assigned errors combine multi-pie questions and issues.

      . Interestingly, the one-year St. Tammany seat sought by plaintiff is a creation of the bylaws which plaintiff contends are contrary to the articles.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    ON LEONG CHINESE MERCHANTS ASSOCIATION v. AKM ACQUISITIONS, L.L.C., Aaron K. Motwani, and Marcus L. Giusti.
    No. 13-CA-658.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.

      Kenneth C. Fonte, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant, On Leong Chinese Merchants Association.
    Steven W. Copley, Donna P. Currault, Phillip J. Antis, Jr., Patrick “Rick” M. Shelby, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee, AKM Acquisitions, L.L.C.
    Fred L. Herman, Thomas J. Barbera, Mayra L. Scheuermann, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee, Aaron K. Motwani.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

IsPlaintiff has appealed a trial court judgment that granted defendants’ exceptions and dismissed plaintiffs possessory action petition. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On December 10, 2012, On Leong Chinese Merchants Association (“On Leong” or “plaintiff’), a Louisiana non-profit corporation, filed a petition entitled “Petition for Possessory Action Relief and Damages,” against AKM Acquisitions, L.L.C. (“AKM”), Aaron K. Motwani, and Marcus L. Giusti, alleging, among other things, that:

• On November 29, 2012, plaintiff was in quiet and uninterrupted possession of three particularly-described tracts of immovable property, being one certain lot located in New Orleans, Orleans Parish, Louisiana, bearing municipal numbers 530, 532, and 534 Bourbon Street, New Orleans, LA, and two additional certain contiguous lots located in Kenner, Jefferson Parish, Louisiana, bearing municipal number 3201 Georgia Avenue, Kenner, LA (collectively, “the subject property”).
• Defendants “engaged in a disturbance in law” of the subject property possessed by plaintiff by “executing, recording, registering and continuing in existence a single instrument [an Act of Sale of the subject |4property from plaintiff to AKM dated November 29, 2012, a copy of which is attached to the petition] which asserts or implies a right of ownership or to the possession, or a claim or pretension of ownership or right to the possession” of the subject property.
• “Executing, recording, registering and continuing in existence the Act of Sale” constituted “a wrongful disturbance in law of [plaintiffs] possession” of the subject property.
• The Act of Sale violated La. R.S. 12:207(D) because plaintiff is a nonprofit corporation and its property can only be sold if a resolution authorizing a sale of the subject property has been approved by the voting members of the corporation. Such a resolution was never passed.
• The statement in the Act of Sale that the president of plaintiff, Chiu Hon Lee, appeared at the Act of Sale “pursuant to a unanimous consent of its Board of Directors” is insufficient to comply with La. R.S. 12:207(D). Chiu Hon Lee was not the president of plaintiff on November 29, 2012 and had been suspended from office and membership in the corporation on November 19, 2012.
• The immovable property in question comprised all of the immovable property possessed by plaintiff. The Act of Sale failed to comply with La. R.S. 12:247(B), “which provides that the sale of substantially all of a solvent non-profit corporation’s immovable property must be approved by a vote of two-thirds of the members present at a meeting called by a notice including such authorization as a purpose of the meeting.”
• None of the persons who signed the corporation’s unanimous board of directors consent resolution to sell the subject property were actually directors.
• The proper procedure was not followed to purportedly amend plaintiffs articles of incorporation on November 25, 2012.
• Plaintiff suffered damages, including the loss of revenues, by the “wrongful disturbance” of its possession of the subject property.
The petition prayed for judgment:
• recognizing, protecting and restoring plaintiffs right to possession, and maintaining plaintiff in possession, of the subject property;
• ordering AKM to assert its adverse claim of ownership of the subject property in a petitory action to be filed within a delay to be fixed by the court, not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof;
Is* awarding plaintiff all damages, and losses of fruits and revenues, caused by AKM, Mr. Motwani and Mr. Giusti’s disturbance of plaintiffs possession of the subject property, and legal interest thereon from date of judicial demand until paid;
• granting plaintiff a preliminary injunction, and a permanent injunction, protecting and restoring plaintiffs possession of the subject property; and .
• awarding plaintiff all costs of this action.
On February 4, 2013, AKM filed peremptory exceptions of:
• no cause of action (asserting that because plaintiff voluntarily transferred possession of the subject property to AKM in consideration of a payment by AKM to plaintiff of $1.8 million, ’there was no disturbance in fact or in law adverse to plaintiffs possession in accordance with La. C.C.P. art. 3660, and as such, AKM is the rightful possessor of the subject property); and
• nonjoinder of a party (asserting that because plaintiff seeks damages and nullification of the Act of Sale by asserting a defect in the title and/or in the Act of Sale, additional parties currently not named in the proceeding need to be joined as parties);

as well as dilatory exceptions of:

• lack of procedural capacity (asserting that because plaintiff voluntarily transferred possession of the subject property to AKM, it lacks procedural capacity to assert possession based upon ownership or title to the subject property);
• nonconformity of the petition to required formalities (asserting that plaintiffs petition does not conform to the requirements of La. C.C.P. art. 891 because plaintiff has failed to establish or otherwise allege that it is in possession of the subject property because it does not allege or deny that it received the $1.8 million in consideration paid by ARM for the subject property);
• improper cumulation of actions (asserting that plaintiffs petition improperly cumulates a possessory action claim “with what seems to be a petito-ry action” in violation of La. C.C.P. art. 3657, because plaintiff appears to seek nullification of the sale of the subject property to ARM in order to establish a claim for possession thereof); and
• vagueness or ambiguity of the petition (asserting that plaintiffs petition is so vague and ambiguous that it does not provide the nature of the facts to be proved).

On February 4, 2018, Mr. Motwani filed similar peremptory exceptions of no cause of action (but also asserting therein that plaintiff has not stated a cause of faction against Mr. Motwani individually because Mr. Motwani was not then and has never been a possessor of the subject property individually, as he was always acting solely in the capacity of president and member of ARM), and nonjoinder of a party, and dilatory exceptions of lack of procedural capacity, nonconformity of the petition, improper cumulation of actions, and vagueness or ambiguity of the petition.

On February 25, 2013, plaintiff filed an “Amendment to Petition for Possessory Action Relief and Damages.” In this amended petition, plaintiff made the following supplemental allegations:

• ARM and Mr. Motwani bribed Chiu Hon Lee to induce him to make and sign the transaction described by the Act of Sale for a price substantially below the fair market value of the properties by agreeing to pay the total amount of $980,000.00 dollars, consisting of $250,000 cash and $730,000 by promissory note to “Hai Wei Zhang.”
• The Act of Sale is void and contrary to law and should be declared null, set aside, and cancelled.

The amended petition additionally prayed for judgment “declaring the Act of Sale null, setting aside the Act of Sale, and cancelling the Act of Sale.”

In response to the amended petition, ARM and Mr. Motwani filed additional similar supplemental peremptory exceptions of no cause of action and nonjoinder of a party, as well as similar supplemental dilatory exceptions of improper cumulation of actions, and vagueness or ambiguity of the petition. Mr. Motwani also filed additional similar supplemental dilatory exceptions of lack of procedural capacity and nonconformity of the petition.

Defendants’ exceptions came on for a hearing before the trial court on May 22, 2013. At the hearing, ARM’s counsel argued that the relief plaintiff seeks is |7not available in a possessory action. He explained that a possessory action only determines possession of immovable property, and in its pleadings, plaintiff is actually attempting to nullify the Act of Sale to ARM. He specifically argued that what plaintiff has pled “sounds more to me like a petitory action,” and that “[i]f the plaintiff cumulates a possessory and a petitory action, it’s converted to a petitory action and the possessory action is dismissed.”

Mr. Motwani’s counsel agreed, arguing to the trial court that plaintiff filed a pos-sessory action in an attempt to shift the burden of proof to the current possessor of the subject property, to-wit:

[Plaintiff] filed a possessory action in an effort to shift the burden to the current possessors, if you would. And it became very clear to me in their memo in opposition that they asked this court to assume, assume the act of sale is null and void and to let me try the possessory action. But they have to prove that the act of sale is null and void. And, therein, lies the problem. In doing so, that is not a possessory action. That is the petitory action. And that’s why we believe the no cause and the improper cumulation is a proper exception, [sic]

Mr. Motwani further argued that a posses-sory action against him individually is improper since he never possessed the subject property in his individual capacity.

Plaintiffs counsel responded that the filing of the Act of Sale was a disturbance in law of its possession, and that its petition clearly seeks possessory relief, not petitory relief.

At the conclusion of the hearing, the trial court found that a possessory action is the “improper vehicle” to produce the results requested by plaintiff. On May 28, 2013, the trial court signed a partial final judgment granting all of AKM and Mr. Motwani’s exceptions to plaintiffs original and amended petitions, and dismissing plaintiffs original and amended petitions in full as to these defendants. This timely appeal followed.

\ffjAW AND ANALYSIS

Has plaintiff improperly cumulated its alleged possessory action against defendants with a petitory action?

We will first determine whether the trial court erred in granting defendants’ exceptions of improper cumulation of plaintiffs alleged possessory action against defendants by also asserting a pet-itory action of the subject property against defendants in the same suit, and consequently, whether the trial court properly dismissed plaintiffs suit.

“The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.” La. C.C.P art. 3651. If the defendant is in possession of the immovable property at issue, the plaintiff in a petitory action must prove “he has acquired ownership from a previous owner or by acquisitive prescription,” but if the defendant is not in possession, the plaintiff must prove a “better title” than the defendant. La. C.C.P. art. 3653.

Louisiana Civil Code article 481 provides that “[t]he ownership and the possession of a thing are distinct.” Ownership is the “right that confers on a person direct, immediate, and exclusive authority over a thing.” La. C.C. art. 477. Possession, rather, connotates “the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” La. C.C. art. 3421. In recognition of this distinction between possession and ownership, La. C.C.P. art. 3657 provides, in pertinent part, that “[t]he plaintiff may not cumulate the petitory, and the possessory actions in the same suit or plead them in the alternative, and when he does so he 13waives the possessory action,” and that if the plaintiff brings or institutes a possessory action and a petitory action in the same suit, “the possessory action is abated.” Comment (a) of this Article instructs that this rule is “intended to keep the trial of the issues of possession and ownership as separate as possible,....” In a possessory action, the ownership or title of the parties to the subject immovable property is not at issue. La. C.C.P. art. 3661. Once the possessory action is waived or abated under these circumstances, the matter obviously proceeds as a petitory action.

In the present case, in brief on appeal, defendants argue that plaintiffs case “is about ownership of property, not mere possession,” and further that by “requesting nullification [of the Act of Sale], Plaintiff seeks more than simple possession; Plaintiff seeks return of ownership of the immovable property at issue.” (Emphasis in original.) Defendants further argue that plaintiff has acted improperly “by alleging a possessory action while at the same time seeking to be returned as owner of the immovable.” (Emphasis in original.) Particularly, defendants show that in its petitions, in addition to its possessory action allegations, plaintiff also seeks nullification of the Act of Sale for “lack of On Leong’s consent,” and further, that plaintiffs amended petition alleges that “[t]he Act of Sale is void and contrary to law. The Act Sale should be declared null[,] set aside, and cancelled.” Defendants also point out that plaintiff also prays in its amended petition that the Act of Sale to AKM be declared null, set aside, and can-celled. Defendants conclude that “the result of nullification of the Act of Sale has one very significant consequence — ownership of the immovable property is returned to Plaintiff.”

Although plaintiff argues in reply that in its original and amended petitions, it only asserted a cause of action for a pos-sessory action against defendants and not |Tna petitory action, we agree with defendants’ contention that the allegations contained in plaintiffs original and amended petitions show otherwise. As noted above, in its petitions, in addition to its possesso-ry action allegations, plaintiff also seeks nullification of the Act of Sale for lack of plaintiffs consent. Further, plaintiffs amended petition alleges and prays that the Act of Sale to AKM be declared null, set aside, and cancelled. By making such allegations and praying that the Act of Sale be declared null, set aside, and can-celled, plaintiff is in essence asking the court to recognize it as the owner of the subject property, which is precisely the purpose and goal of a petitory action. As such, plaintiff has waived its alleged pos-sessory action. Accordingly, upon review, we agree with defendants’ arguments that plaintiff has improperly cumulated a pos-sessory action and a petitory action in the same suit, in direct violation of La. C.C.P. art 3657, and as a result thereof has waived its alleged possessory action. The possessory action is thus abated.

Our inquiry does not end there, however. Although plaintiff has waived its alleged possessory action, the matter must now obviously proceed as a petitory action. As such, although the trial court did not err in granting defendants’ exceptions of improper cumulation, we find that the trial court erred in dismissing the matter in its entirety. Accordingly, we affirm the trial court’s granting of defendants’ exceptions of improper cumulation of actions, reverse the trial court’s dismissal of this matter in its entirety, and remand the matter for further proceedings consistent with this opinion.

Review of other exceptions fíled by defendants.

At the conclusion of the hearing on the exceptions on May 22, 2013, the 'trial court gave the following oral reasons for judgment:

Ini think a possessory action, as this suit is, is the improper vehicle to produce the results that the plaintiffs [sic] want. I’m going to maintain the exceptions.

In its written judgment signed on May 28, 2013, the trial court granted all of defendants’ exceptions and dismissed plaintiffs suit in its entirety.

First, our finding that plaintiff has improperly cumulated a possessory action with a petitory action in the same suit (and thus resulting in the waiver and abatement of plaintiffs alleged possessory action claim) renders review of defendants’ exceptions of no. cause of action moot with respect to plaintiffs alleged possessory action claim. Further, considering the particular and peculiar facts, circumstances and current procedural posture of this case, and in light of the fact that the matter is being remanded for prosecution as a petitory action, in the interest of justice, we further vacate the trial court’s grant of defendants’ exceptions of nonjoin-der of a party, lack of procedural capacity, nonconformity of the petition, and vagueness or ambiguity of the petition, so as to allow defendants the opportunity to reurge these exceptions on remand if so desired within the context of plaintiffs petitory action claims against defendants.

CONCLUSION

In conclusion, for the reasons assigned herein:

• the trial court’s grant of defendants’ exceptions of improper cumulation of actions is hereby affirmed;
• the trial court’s dismissal of plaintiffs suit in its entirety is hereby reversed; and
• the trial court’s grant of defendants’ exceptions of nonjoinder of a party, lack of procedural capacity, nonconformity of the petition, and vagueness or ambiguity of the petition, is hereby vacated so as to allow defendants the opportunity to reurge these exceptions on remand if so desired within the context of plaintiffs petitory action claims against defendants.

112This matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED.

      . Mr. Lee’s first name is stated as either "Chiu” or "Chin" in various places in the record. For the sake of consistency, we will use "Chiu” as his first name in this opinion.

      . The lessee/sublessee and the personal guarantor of the leases on the subject Bourbon Street property intervened in this matter, seeking to maintain their rights under their leases of the subject Bourbon Street property. Their intervention was dismissed, however, in the trial court's judgment under review. These parties have not appealed the judgment and thus are not parties to this appeal.

      . Mr. Giusti answered the petition and thus is not directly affected by the trial court’s rulings on AKM and Mr. Motwani’s exceptions.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Nakeith C. SPARKMAN.
    No. 13-KA-640.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Ernest C. Chen, Thomas Sander-son, Assistant District Attorneys, Gretna, LA, for Appellee the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Appellant Nakeith C. Sparkman.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERTA. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

pOn appeal, defendant challenges his convictions and sentences for second degree murder, attempted second degree murder, aggravated burglary, and possession of a firearm by a felon. For the following reasons, we affirm his convictions and sentences for second degree murder, attempted second degree murder, and possession of a firearm by a felon, but remand for correction of patent error in defendant’s sentence for aggravated burglary.

Procedural History

On June 28, 2012, the Jefferson Parish Grand Jury indicted NaKeith Sparkman, defendant-herein, and co-defendant, Michael C. Shelby, on one count of second degree murder, in violation of La. R.S. 14:30.1 (Count 1). Further, Sparkman was also indicted for attempted second degree murder, in violation of La. R.S. 14:27 and 14:30.1 (Count 2); aggravated burglary, in violation of La. R.S. 14:60 (Count 3); and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (Count 4).

|3On May 7, 8, and 9, 2013, the matter was tried before a twelve-person jury, which found defendant guilty as charged on all counts. Defendant filed a timely motion for new trial, which was denied on May 17, 2013. On May 22, 2013, the trial judge sentenced defendant to consecutive sentences as follows: on Count 1, life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence; on Count 2, 45 years at hard labor; on Count 3, 25 years at hard labor, and, on Count 4, 20 years at hard labor. That same day, defendant filed a timely motion for appeal that was granted. This appeal follows.

Facts

At trial, Shartina Norman testified that, on November 14, 2011, at approximately 8:00 p.m., she was hanging out with her boyfriend, Ranard “Deuce” Brown, Jr., when he got a call from NaKeith Spark-man about purchasing marijuana. After speaking with Mr. Sparkman, Mr. Brown told Ms. Norman that they were going to pick up Mr. Sparkman in Algiers. Mr. Sparkman called Mr. Brown back to tell Mr. Brown not to bring any guns since there would be a lot of people around when they picked him up.

When Mr. Brown and Ms. Norman finally located Mr. Sparkman, he was standing around with five or six guys in the parking lot of an apartment complex. After Mr. Sparkman got into their vehicle, Mr. Brown drove them back to his apartment to pick up marijuana. When they arrived at his apartment complex, Mr. Brown parked away from his apartment in an attempt to conceal its exact location. While Mr. Brown went to his apartment, Ms. Norman and Mr. Sparkman stayed in the car; Ms. Norman had a “bad vibe” that Mr. Sparkman was trying to scout out the exact location of Mr. Brown’s apartment.

| ¿When Mr. Brown returned to the car, he was carrying a backpack, which he put in the vehicle’s trunk. Mr. Brown drove the group to the “W” Hotel to meet Mr. Sparkman’s “friend” that wanted to purchase marijuana. After arriving, Ms. Norman waited in the vehicle while Mr. Brown and Mr. Sparkman went inside. After about 30 minutes, Mr. Brown and Mr. Sparkman returned; Mr. Brown was angry because Mr. Sparkman’s “friend” would not complete the deal. Ms. Norman told Mr. Brown that Mr. Sparkman was setting him up, but Mr. Brown refused to believe it. Not long after, Mr. Brown picked up his cousin, Craig Smith, then dropped Mr. Sparkman off at a gas station on Claiborne.

Craig Smith testified that, after they dropped Mr. Sparkman off, they went to Mr. Brown’s new apartment in Waggaman. Mr. Smith remembered that they arrived at Mr. Brown’s apartment about 9:00 p.m. Ms. Norman testified that, when they got out of the car, she noticed a man, who looked just like one of the men that was “hanging” with Mr. Sparkman earlier in Algiers. She thought that he looked suspicious because he kept looking at them while he talked on a cell phone and paced back and forth in a lot across from Mr. Brown’s apartment. Ms. Norman voiced her concerns but Mr. Brown disregarded her.

After they returned to Mr. Brown’s apartment, Mr. Brown and Mr. Smith smoked marijuana while the three watched a movie. When Mr. Brown and Mr. Smith “got the munchies,” they sent Ms. Norman — with a list typed on Mr. Brown’s cell phone — to “Brother’s Market” for food.

When Ms. Norman returned to the apartment complex, she called Mr. Smith from Mr. Brown’s phone because, as she parked and turned off the lights, she noticed someone move “real fast” away from Mr. Brown’s door. When Mr. Brown opened the door, NaKeith Sparkman was standing on his stoop and came | ^toward him with a gun drawn. A struggle ensued. Once Mr. Brown stepped back into the apartment, Mr. Smith saw Mr. Sparkman pull back and shoot Mr. Brown in the face. Mr. Brown later died as a result of the gunshot wound to his head.

Mr. Smith tried to find a weapon or a way out but he could not. As he knelt on the floor, he asked Mr. Sparkman to spare him, then raised his hand in defense. Mr. Sparkman shot Mr. Smith; the bullet pierced his hand and grazed his scalp. Next, Mr.'Smith played “dead” while Mr. Sparkman rifled through the apartment, looking in the oven and the living room closet. After Mr. Sparkman left without taking anything, Mr. Smith got up and locked the door. Mr. Smith ran into the bathroom while Mr. Brown tried to crawl out of the room.

Ms. Norman testified that, right after she saw Mr. Sparkman shoot “Deuce,” she saw a second man running toward her with a gun so she quickly fled in Mr. Brown’s car. Mr. Smith ultimately left the apartment to try to get help.

Gerard Palisi, who lived at the same apartment complex as Mr. Brown, testified that he was awakened by someone knocking on his door. When he went outside, a young man approached, asking him to call 9-1-1 because he and his friend had been shot. Mr. Palisi called 9-1-1, reported the shootings, and informed the 9-1-1 operator that the injured man said that “Nak-eith” shot them. A little while later, Mr. Palisi went to the street to flag down the sheriffs officers since the building was not clearly marked.

Deputy Timothy Massenburg of the Jefferson Parish Sheriffs Office (“JPSO”) responded to the apartment complex to investigate. When he arrived, the front door of the apartment was ajar and there was blood on the floor in the entryway. Immediately, Deputy Massenburg observed two victims lying on the floor in the main room of the apartment. The officers secured the scene until EMS | ^arrived. Craig Smith told the officers what had happened and identified the shooter as “Nakia Magee.” Mr. Smith identified NaKeith Sparkman, defendant-herein, as the man that had shot him and Mr. Brown from a six-person photographic lineup. Mr. Smith denied that either he or Mr. Brown had a gun during the incident.

Ms. Norman also talked to a JPSO detective and gave statements. Ms. Norman positively identified defendant in a photographic lineup as the man that shot Mr. Brown. At trial, Ms. Norman testified that Mr. Smith did not have a gun, and she did not remember telling police that he had a gun or that there was a gun in the apartment.

Deputy Jamey Perque of the JPSO Crime Scene Division took photographs and collected evidence at the scene. He retrieved two cartridge casings, one projectile, an ammunition magazine, a firearm holster, and various illegal narcotics and narcotics paraphernalia. However, no guns were found in the apartment.

After defendant was arrested and advised of his rights, Detective Solomon Burke of the JPSO took two statements, which were both admitted at trial, from defendant. In his first statement dated November 16, 2011, at 4:45 p.m., defendant stated that, about one hour after they dropped him off at the gas station on Claiborne, Mr. Brown, Mr. Smith and Ms. Norman returned to New Orleans to retrieve defendant to “see if I know the person who was standing outside his house.”

In this statement, defendant declared that Ms. Norman became angry with him and left the apartment to “get her people.” After Ms. Norman left, Mr. Smith choked him while Mr. Brown approached defendant with a small silver handgun, then kicked defendant twice, hit him in the stomach, and stomped on his knee. Defendant wrestled the handgun away from Mr. Brown and shot him and Mr. 17Smith. Defendant claimed that he hid the gun in the complex and that he would show the officers where it was. Defendant denied that he was with anyone else at the time of the incident.

In his second statement, which is dated November 16, 2011, at 6:48 p.m., defendant recounted the events with a more accurate timeline. Defendant denied taking anything from the apartment and denied intending to rob Mr. Brown or Mr. Smith of money or drugs. Defendant said that he shot Mr. Smith because Mr. Smith choked him and he shot Mr. Brown because Mr. Brown “drew down” on him.

Timothy Guillot testified that he was currently incarcerated and serving a 15-year sentence. In November and December of 2011, he had daily contact in parish prison with defendant, whom he identified in court. During that time, defendant told him details regarding the events of this case. Defendant explained that he went to his friend’s house and knocked on the door. When his friend answered the door, defendant pushed in the door, struggled with his friend, then shot his friend in the head.

Defendant also told Mr. Guillot that he shot a second guy that was in the apartment in the hand and the head. Defendant stated that he pilfered marijuana from the kitchen then fled. Later, defendant went to the Calliope project and sold the gun.

Dr. Marianna Sandomirsky, who was accepted as an expert in the field of forensic pathology, performed the autopsy on Mr. Brown. She testified that the cause of Mr. Brown’s death was a gunshot wound to the head. She indicated that the wound was a result of a gun fired in an intermediate range, between about two inches and three feet. She further testified that she was able to recover a copperjjacketed8 projectile during Mr. Brown’s autopsy, which was collected by Kimberly Steirwald, a JPSO crime scene technician.

Jené Rauch, who was accepted as an expert in the field of ballistics and tool mark examination, testified that the two cartridge cases were fired from the same weapon, and the two projectiles were also fired from the same weapon.

The State and the defense also stipulated that on May 25, 2004, defendant was convicted of attempted armed robbery in the 24th Judicial District Court in case number 03-6248. The defense did not call any witnesses. At the close of trial, the twelve-person jury found defendant guilty as charged on all four counts.

Law and Argument

On appeal, defendant assigns three counseled and two pro se assignments of error. In his counseled assignments, defendant argues: first, there was insufficient evidence to support Nakeith Spark-man’s convictions for second degree murder, attempted second degree murder, aggravated burglary, and felon in possession of a firearm; second, the trial court erred in denying a mistrial after a key State witness commented that she had passed a lie detector test; and, third, the trial court violated Nakeith Sparkman’s right to a public trial when it ejected almost all spectators from the courtroom. In his pro se assignments of error, defendant argues that his “due process rights were violated due to the State’s failure to correct [Shartina Norman’s] testimony or the results or the questions presented to Shartina A. Norman during the polygraph examination.”

Counseled Assignments of Error

In his first counseled assignment of error, defendant argues that the State presented insufficient evidence to support his convictions for second degree murder, attempted second degree murder, aggravated burglary; and felon in possession of a firearm. Defendant specifically contends that the State failed to 1nprove beyond a reasonable doubt that he did not act in self-defense when he shot Mr. Brown and Mr. Smith. He further contends that the jury erred in relying on testimony from Mr. Smith and Ms. Norman that was internally contradictory and conflicted with the physical evidence. Regarding his aggravated burglary and firearm possession convictions, defendant argues only “the State, moreover, failed to prove that [defendant] committed an aggravated burglary or possessed a firearm.”

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or, as in this case, 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, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Second degree murder (Count 1)

Defendant was convicted of second degree murder of Mr. Brown, in violation of La. R.S. 14:30.1. Under that statute, second degree murder is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. See State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-757 (La.12/15/06), 944 So.2d 1277.

According to the jury instructions, the State prosecuted this case under both theories of murder: specific intent murder and murder while committing or attempting to commit armed robbery.

ImUnder the first theory of second degree murder, the State had to prove that defendant had the specific intent to kill or to inflict great bodily harm. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Here, Mr. Smith testified that defendant shot Mr. Brown in the head, and defendant admitted in his statement that he shot Mr. Brown. Additionally, Dr. San-domirsky testified that Mr. Brown sustained a lethal gunshot wound to the head. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person, State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869 (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27, and from the extent and severity of the victim’s injuries, State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-411 (La.10/10/03), 855 So.2d 327.

Applying the legal principles to the evidence in this case, we find that a rational trier of fact could have found that the State carried its burden of proving beyond a reasonable doubt that defendant acted with specific intent to kill or inflict great bodily harm. Because the evidence is sufficient to convict defendant under the specific intent theory of second degree murder, there is no need to determine whether the State presented sufficient evidence of felony murder.

Attempted second degree murder (Count 2)

Next, defendant was convicted of the attempted second degree murder of Mr. Smith, in violation of La. R.S. 14:27 and 14:30.1. The crime of attempted second degree murder requires proof, beyond a reasonable doubt, of the specific | ^intent to kill a human being and the commission of an overt act in furtherance of that goal. State v. Bannister, 11-602 (La.App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied, 12-628 (La.6/15/12), 90 So.3d 1060. This Court has recognized that although specific intent to inflict great bodily harm is sufficient to support a second degree murder conviction, attempted second degree murder requires a specific intent to kill. Id.

In this case, Mr. Smith testified that he was on his knees pleading with defendant not to kill him when defendant shot him in his hand and in the side of the head. Also, defendant admitted in his statement that he shot Mr. Smith. As noted previously, specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. Hoffman, supra; Batiste, supra. Applying the legal principles to the evidence adduced at trial, we find that a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to support defendant’s conviction for attempted second degree murder of Mr. Smith.

Self-defense

In this first counseled assignment of error, defendant did not argue that the State failed to prove essential elements of the charged crimes, but rather that the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot Mr. Brown and Mr. Smith. When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Reed, 11-507 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-644 (La.9/14/12), 97 So.3d 1014. However, in non-homicide cases, this Court has found that the defendant has the burden of proof by a preponderance of the evidence that 112his actions were in self-defense. See State v. Nailor, 10-1062 (La.App. 5 Cir. 11/15/11), 78 So.3d 816, 821, unit denied, 11-2780 (La.4/27/12), 86 So.3d 626.

The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. According to La. R.S. 14:20(A)(1), a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know his desire is to withdraw and discontinue the conflict. La. R.S. 14:21. In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. King, 11-767 (La.App. 5 Cir. 2/28/12), 88 So.3d 1147, 1153, writ denied, 12-660 (La.9/14/12), 99 So.3d 35.

The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied, 12-2024 (La.1/25/13), 105 So.3d 713.

In the instant case, the State presented evidence to negate defendant’s claim of self-defense beyond a reasonable doubt with respect to Mr. Brown. Further, defendant failed to establish by a preponderance of the evidence that he acted in self-defense in shooting Mr. Smith.

11sFirst, Mr. Smith testified that he and Mr. Brown were both unarmed when defendant entered the apartment and shot Mr. Brown in the head without provocation, then turned the gun on him and shot him in the hand and the head. Next, Ms. Norman testified that she witnessed defendant shoot Mr. Smith, who was unarmed, without provocation. Third, Deputy Per-qué testified that a search of the crime scene revealed no firearms. Fourth, Mr. Guillot testified that defendant admitted he pushed the door in, wrestled with his friend, and then shot the friend in the head. Mr. Guillot also testified that defendant admitted that he shot the other “guy” in the hand and in the head.

Defendant, in his statement to the police, stated that he shot Mr. Brown after Mr. Brown pulled a gun on him. He also claimed that he shot Mr. Smith, who had already choked him, before Mr. Smith could get a gun from the kitchen.

The jury heard this conflicting testimony and apparently credited the version of events established by the State’s witnesses. The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. State v. Sinceno, supra. Moreover, 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. Based on the foregoing, this argument lacks merit.

Next, defendant argues that the testimony of Mr. Smith and Ms. Norman was internally contradictory and in conflict with the physical evidence. He contends that Mr. Smith’s statement that Mr. Brown had no gun in the apartment was contradicted by Ms. Norman’s statement to police wherein she acknowledged there was a gun in the apartment. Further, Ms. Norman’s claim at trial that the transcription of her statement was inaccurate proved her lack of credibility. 114Pefendant lastly asserts that Mr. Guil-lot’s testimony was not credible since Mr. Guillot admitted at trial that, while in jail, he allied with a relative of the victim, who is defendant’s “enemy.”

A review of the record shows that the jury was made aware of these alleged contradictions and inconsistencies during the direct and cross-examination of the witnesses, but nevertheless, chose to believe the State’s witnesses, which was the jury’s prerogative. 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, supra. This argument also lacks merit.

Aggravated burglary (Count 3)

By this argument, defendant contends that “the State, moreover, failed to prove that [defendant] committed an aggravated burglary....” Aggravated burglary is the unauthorized entering of any inhabited dwelling with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon, or commits a battery upon any person while in such place, or while entering or leaving the place. La. R.S. 14:60.

First, the State had to prove that defendant committed an unauthorized entry of an inhabited dwelling. Mr. Smith testified that defendant entered the apartment in question by force without consent of the present occupant. The State thus clearly established the elements of unauthorized entry into an inhabited dwelling.

Next, the State had to prove one of the other elements of the crime, including that the offender was armed with a dangerous weapon or committed a battery upon any person while in such place or while entering or leaving the place. Battery is “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. Aggravated battery is defined as “a battery committed with a | ^dangerous weapon.” La. R.S. 14:34. Mr. Smith testified that, after the defendant entered the apartment, defendant shot him. The State presented sufficient evidence to prove that defendant committed an aggravated battery on Mr. Smith while inside the apartment. See State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070-71, writ denied, OS-1381 (La.1/13/06), 920 So.2d 233.

In the instant case, we find that a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient under the Jackson standard to support defendant’s conviction for aggravated burglary.

Possession of a firearm by a convicted felon (Count ⅛)

Defendant contends that “the State, moreover, failed to prove beyond a reasonable doubt that [defendant] ... possessed a firearm.” In order to convict a person of being a convicted felon in possession of a firearm, in violation of La. R.S. 14:95.1, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense. State v. Watson, 08-214 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 784.

Here, defendant admitted to shooting Mr. Brown and Mr. Smith on the night in question. Additionally, defendant stipulated that, on May 25, 2004, defendant was convicted of attempted armed robbery in the 24th Judicial District Court in case number 03-6248. Thus, defendant admitted that he intended to and did possess a firearm within ten years of his prior felony conviction. As such, the elements of this offense were proven at trial.

Based on the foregoing, we conclude that, the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all of the elements of second degree murder, attempted |1(isecond degree murder, aggravated burglary, and felon in possession of a firearm, beyond a reasonable doubt. Further, the State proved beyond a reasonable doubt that defendant did not act in self-defense. Based on the foregoing, we find that this assignment of error lacks merit.

In his second counseled assignment of error, defendant contends that the trial court erred in denying a mistrial after a key State witness commented that she had passed a lie detector test, which improperly bolstered her credibility and damaged his defense.

During co-defendant’s counsel’s cross-examination of Ms. Norman at trial, counsel asked her if the victim, Mr. Brown, had told her to take his gun for protection when she left the apartment around midnight. Ms. Norman denied that Mr. Brown told her to take his gun. She added that detectives had asked her that question also and that she had taken a lie detector test.

Co-defendant’s counsel immediately asked to approach the bench then moved for a mistrial because the witness had mentioned taking a polygraph test. The trial judge remarked that he did not hear the witness mention a polygraph, denied the motion for a mistrial, but offered to admonish the jury that the polygraph test was neither admissible nor evidence. Co-defendant’s counsel declined the admonition, because the jury might not have heard the witness’s non-responsive comment.

Co-defendant’s counsel resumed his cross-examination of Ms. Norman by showing the witness her statement to the police, in which she stated that Mr. Brown had told her to take the gun. At trial, Ms. Norman denied that statement, testifying as follows:

He never said take the gun. When the detectives kept asking me about the same thing you asked me about, they thought I was lying and I |17told them, I asked them, “Can I take a lie detector test,” and I passed it. But I don’t recall him — ever asking me to take no gun.

Co-defendant’s counsel paused and asked the prosecutor to instruct his witness properly, which he did.

On May 16, 2013, defendant filed a motion for new trial, arguing, inter alia, that the trial court erred in denying a mistrial when Ms. Norman said she had taken a polygraph examination and passed it. On that same date, the trial judge heard and denied defendant’s motion for new trial. The trial judge noted that he had offered to admonish the jury, which counsel declined.

Initially, we note that, if an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all the defendants. La.C.Cr.P. art. 842. Further, co-defendant’s counsel objected only after Ms. Norman’s first reference to taking a lie detector test; thus, only issues surrounding that reference were preserved for review. La. C.Cr.P. art. 841.

According to La.C.Cr.P. art 775, upon the 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. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under Article 770. State v. Alexander, 12-807 (La.App. 5 Cir. 5/16/13), 118 So.3d 1138, 1152.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. 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. Id. (citing State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285).

In State v. Legrand, 02-1462 (La.12/3/08), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005), the Louisiana Supreme Court set forth the law regarding lie detector or polygraph tests:

This Court has long adhered to the view that lie detector or polygraph test results are inadmissible for any purpose at the trial of guilt or innocence in criminal cases. Consistent with this view, the Court has ‘made it clear’ that the rule excluding polygraph evidence ‘also operates to prevent any reference during trial to the fact that a witness has taken a polygraph examination with respect to the subject matter of his testimony.’ Such evidence is prohibited because it ‘invites a probable inference by the jury that the witness passed the polygraph examination and therefore is testifying truthfully.’ Moreover, this Court has held that polygraph information and test results are inadmissible ‘either as substantive evidence or as relating to the credibility of a party or witness.’ However, ‘[ejven though any reference to the results of a polygraph test would be improper, an appellate court will not automatically reverse a conviction whenever an impermissible reference to a polygraph exam is made during a criminal trial.’ A reversal and new trial are required only if there is a reasonable possibility that the error complained of might have contributed to the conviction. [Citations omitted; Emphasis added].

Id. at 98.

In State v. Weatherspoon, 06-539 (La.App. 5 Cir. 12/12/06), 948 So.2d 215, writ denied, 07-462 (La.10/12/07), 965 So.2d 398, the defendant asserted that the trial court erred in failing to grant a mistrial when a State witness testified he took a lie detector test that showed he was not lying when he said he did not shoot a gun during the incident. The defendant testified that the witness was one of the shooters. This Court found that the portion of the witness’s testimony about not possessing a gun at the time of the shooting was corroborated by other evidence, and the witness’s reference to taking a polygraph examination in connection with 119that fact was not prejudicial to the defendant. This Court further found that, because of the overwhelming evidence of the defendant’s guilt, it could not be said that any remarks about the polygraph examination might have contributed to the defendant’s conviction. This Court affirmed the trial court’s denial of a mistrial. Id. at 230-33.

In the instant case, a mistrial was not mandatory because the remark was neither made by a judge, district attorney, or court official, nor a reference to any of the topics prohibited in La.C.Cr.P. art. 770. Thus, we must determine whether the trial judge abused his discretion when he denied the motion for mistrial based on permissive grounds listed in La.C.Cr.P. art. 771.

Here, to bolster his client’s claim of self-defense, co-defendant’s counsel attempted to establish that the victim, Mr. Brown, had a gun on the night of the shooting. To that end, during cross-examination, counsel showed Ms. Norman her statement to the police that Mr. Brown told her to take his gun with her to the store. Ms. Norman denied the accuracy of her statement to the police and stated that she had taken a polygraph test on the issue.

Although we find that Ms. Norman’s reference to her polygraphs test was improper, we find no error in the trial court’s denial of a mistrial after this comment because, as in Weatherspoon, supra, there was no reasonable possibility that the error complained of might have contributed to the conviction.

Here, defendant admitting to shooting both victims in the head. Although defendant contends that his actions were in response to aggression, both Mr. Smith and Ms. Norman testified that they observed defendant, who was armed, catching Mr. Brown unaware and initiating the conflict at Mr. Brown’s front door. Mr. Smith further testified that there was no gun in Mr. Brown’s apartment that he 12f)knew of, that he did not see a gun, that neither he nor Mr. Brown had a gun that night, and that neither he nor Mr. Brown pointed a gun at defendant. Further, the crime scene technician testified that no guns were found at Mr. Brown’s apartment during the investigation on the night in question. This assignment of error lacks merit.

In his third counseled assignment of error, defendant argues that the trial court violated NaKeith Sparkman’s right to a public trial when it ejected almost all spectators from the courtroom. Specifically, defendant contends that the trial judge failed in his obligation to take every reasonable measure to accommodate public attendance at the trial, thus, entitling defendant to a new trial.

First, we note that the event in question was a partial closure of the courtroom, which the trial judge ordered “in the interest of public safety ... except for certain family members” after learning that relatives of the victims and defendants were clashing in the lobby of the courthouse. Further, the partial closure occurred during the testimony of the eleventh and final witness and outside of the presence of the jury.

Most importantly, the transcript of the bench conference regarding this issue reflects that both defendants acquiesced in the partial closure as long as the defendants’ parents and significant others were permitted to stay. Thus, we find that defendant failed to preserve this issue for review by registering an objection. La. C.Cr.P. art. 841(A) (“[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence”); State v. Price, 02-0360 (La.App. 4 Cir. 4/2/03), 842 So.2d 491, 514, writ denied, 03-1322 (La.11/21/03), 860 So.2d 542 and 03-1517 (La.12/12/03), 860 So.2d 1151.

121 Pro Se Assignments of Error

Defendant has filed two pro se briefs containing a similar assignment' of error. In his first brief, defendant argues that his “Due Process rights were violated due to the State allowing ... Shartina A. Norman to testify falsely abut [sic] the polygraph questions she testified to: and State’s failure to correct her testimony.” Specifically, defendant contends that the State failed to turn over the questions asked and the results of the polygraph examination of Ms. Norman by the JPSO. He avers that the State withheld this critical information that was favorable to the defense, in violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In Brady v. Maryland, supra, the United States Supreme Court held that the suppression by the State of evidence favorable to the accused after it receives a request for such evidence violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecutors. See also, State v. Bright, 02-2793 (La.5/25/04), 875 So.2d 37, 41-42. The duty to disclose applies to both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Kemp, 00-2228 (La.10/15/02), 828 So.2d 540, 545. Evidence is “material” under Brady only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A reasonable probability is one that is sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

Brady challenges, like the one asserted in defendant’s pro se supplemental briefs, present fact-based judgments that cannot be adequately first made on appellate review. United States v. Gonzales, 436 F.3d 560, 580 (5th Cir.2006). 19,Brady challenges must be brought to the district court’s attention, winnowed by the trial judge, and made part of the record through a motion for new trial. State v. Wise, 13-247 (La.App. 5 Cir. 11/19/13), 128 So.3d 1220, 1228-30 (citing United States v. Chorney, 63 F.3d 78, 80-81 (1st Cir. 1995); United States v. Jones, 112 Fed.Appx. 343, 344 (5th Cir.2004), cert. denied, 543 U.S. 1174, 125 S.Ct. 1369, 161 L.Ed.2d 156 (2005); State v. Chesson, 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, writ denied 03-2913 (La.2/13/04), 867 So.2d 686).

We find two problems with defendant’s Brady challenge. First, he did not raise this issue at the trial court level so it has not been preserved for review. Assuming arguendo that it had been preserved for review, defendant admits in his brief that “Ms. Norman’s statement, along with the results from the polygraph examination, were disclosed during the course of discovery.” Thus, there was no failure to disclose evidence. This assignment of error lacks merit.

In his second brief, defendant argues that the State knew that Ms. Norman testified falsely because the polygraph examination report reflects that Ms. Norman was not questioned about a gun, which the State failed to correct at trial, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

In Napue, the United States Supreme Court held that, where a prosecutor allows a state witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness’s testimony reasonably Could have affected the jury’s verdict, even if the testimony goes only to the credibility of the witness. Napue, 360 U.S. at 269, 79 S.Ct. at 1177.

To prove a Napue claim, the defendant must show that the prosecutor acted in collusion with the witness to facilitate false testimony. State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 814. Furthermore, fundamental fairness, i.e., | gjdue process, is offended “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, supra. When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the statements were material. United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.1997).

Again, we find two problems with defendant’s Napue challenge. First, he did not raise this issue at the trial court level so it has not been preserved for review.

Assuming arguendo that it had been preserved for review, we reiterate, as noted in our discussion of defendant’s second counseled assignment of error, that the results of polygraph examinations are inadmissible in Louisiana. State v. Legrand, supra. Moreover and most importantly, the inconsistency that defendant seeks to expose to impeach Ms. Norman was revealed at trial. Ms. Norman’s testimony at trial reflected a discrepancy: her statement to the police immediately after the crime reflected that Mr. Brown spoke with her about a gun but, at trial, she denied speaking about a gun and reported that the transcription of her statement was incorrect. Thus, this assignment of error lacks merit.

ERRORS PATENT

As is our routine procedure, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals an error patent that requires corrective action.

After the trial court imposed sentence on all four counts, defendant orally moved to reconsider sentence on Count 3. The transcript reflects that the trial judge stated, “I’ll strike Count 3,” which indicates that there was no sentence imposed on defendant for Count 3. A court is required to impose a determinate sentence. La. C.Cr.P. art. 879. Accordingly, we remand the case for sentencing on Count 3, defendant’s conviction for aggravated burglary. See, State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 969-70, writ denied, 99-2551 (La.2/18/00), 754 So.2d 964.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed. This matter is remanded to the trial court for correction of the error patent as noted.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS ONE, TWO, AND FOUR AFFIRMED; REMANDED FOR SENTENCING ON COUNT THREE.

      . The jury acquitted co-defendant, Michael Shelby, on the charge of second degree murder.

      . Although the jury convicted defendant and the trial judge imposed sentence on Count 3, the trial judge immediately thereafter granted defendant’s motion to reconsider and "struck” the sentence for Count 3. The State did not appeal this ruling. See Errors Patent, infra.

      . Mr. Smith explained that Mr. Brown, who sold drugs, had marijuana and Xanax pills in his apartment.

      . In March of 2012, Ms. Norman positively identified co-defendant, Michael Shelby, as the man who ran towards her with a gun.

      . Whether the State or the defendant bears the burden of establishing that the defendant did or did not act in self-defense in a non-homicide case is unsettled in some circuits. Cf. State v. Jones, 12-510 (La.App. 4 Cir. 6/12/13), 119 So.3d 859, 866; State v. Christof, 12-1995, 2013 WL 2484709, at *3 (La.App. 1 Cir. 6/7/13) (unpublished opinion). See La. C.C.P. art. 2168.

      . See also State v. Legrand, supra, and State v. Matthews, 322 So.2d 159 (La.1975), discussed by this Court in Weatherspoon, supra.

      . See also, State v. Richardson, 11-1178 (La.App. 1 Cir. 2/13/12), 2012 WL 440410, at *10-11, writ denied, 12-538 (La.9/12/12), 98 So.3d 818 (no violation of right to public trial when no objection was made to the closure of the courtroom).

      . It is noted that this opinion has not been released for publication in the permanent law reports and until released, it is subject to revision or withdrawal.