author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Deairen WILLIAMS.
    No. 12-KA-687.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Deairen Williams, Jackson, LA, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

l?In this criminal proceeding, defendant appeals his convictions for attempted armed robbery and armed robbery, claiming that the state failed to put forth sufficient evidence to support his convictions. Defendant further assigns as error the trial court’s denial of his motion for mistrial, claiming he was deprived of his right to a fair trial and the presumption of innocence when jurors observed deputies escorting him into a restricted access area of the courthouse. We find the trial court did not abuse its discretion in denying defendant’s motion for mistrial. We further find the evidence sufficient to support the jury’s verdict and affirm defendant’s convictions.

PROCEDURAL BACKGROUND

The Jefferson Parish District Attorney filed a bill of information charging defendant, Deairen Williams, with one count of attempted armed robbery in violation of La, R.S. 14:27:64 (count two) and two counts of armed robbery in |sviolation of La. R.S. 14:64 (counts three and four). Defendant pled not guilty at arraignment. Defendant proceeded to trial before a twelve-person jury and on April 20, 2011, the jury found defendant guilty as charged. On May 9, 2011, the trial court sentenced defendant to twenty-five years imprisonment for the attempted armed robbery charge (count two) and fifty years imprisonment for the armed robbery charges (counts three and four). The trial court ordered defendant’s sentences to run concurrently and to be served with the Department of Corrections without benefit of parole, probation, or suspension of sentence. Defendant filed a motion for appeal, which the trial court granted.

On July 26, 2011, the state filed a multiple offender bill of information, alleging defendant to be a second felony offender. The trial court adjudicated defendant a second felony offender, vacated his original sentence as to count three and imposed an enhanced sentence of fifty-years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence under La. R.S. 15:529.1.

FACTUAL BACKGROUND

Deputy Drew Weidenbacher of the Jefferson Parish Sheriffs Office responded to a call regarding armed robberies on the evening of February 6, 2010. Two separate incidents, minutes apart, had been reported: an attempted armed robbery of William David Ivy and armed robberies of Don and Bernadette McAllister. While responding to the call, Weidenbacher noticed three individuals fitting the subjects’ general descriptions walking together down Canyon Street near |4Ames Blvd. Weidenbacher stopped his patrol unit, exited the vehicle, and announced his presence to the three individuals, who took off running. After running together for a block or two, one individual separated from the others and began running along a canal bank. Weidenbacher chased and apprehended that individual, later identified as Ashton Chopin.

After his arrest, Chopin provided two statements to police admitting his involvement in the robberies and implicating defendant and another individual, Howard Clofer, in the crimes. Officers located Clofer, who also provided two statements to police. In his statements, Clofer also implicated defendant and Chopin in the crimes.

The first victim, William David Ivy, testified that at approximately 9:00 pm. on February 6, 2010, three young black males approached him in his driveway and attempted to rob him. Ivy stated that one of the three men stood in the street as a “lookout,” another went to the other side of his yard waving a gun, and the other approached Ivy, pointed a gun to his head, and said, “[g]ive me what you got.” Ivy responded that he did not have anything to give. After again demanding money and receiving the same response, the gunman struck Ivy in the head with the gun, bringing him down to one knee. The gunman demanded Ivy’s car keys but after a neighbor’s dog made noise, the men fled. As the men fled, Ivy looked over the hood of his car. One of the three men then fired a shot in Ivy’s direction, forcing him to duck down behind his vehicle until the men were out of sight.

After the incident, detectives brought Ivy to a nearby school to identify an individual in custody. Ivy indicated he was 80-85% certain the individual in |5custody was the “lookout,” but that he could not be 100% certain. Detectives subsequently presented Ivy with three sets of photographic lineups from which he immediately identified defendant and Clofer as the two gunmen involved in the attempted armed robbery. Detectives conducted a search of Clofer’s mother’s residence with consent and located a .380 caliber handgun in Clofer’s bedroom closet. Subsequent testing confirmed that the .380 handgun recovered from Clofer’s closet was in fact the handgun fired at the scene of the attempted armed robbery. Ivy identified defendant at trial and testified that he is absolutely certain that defendant is the gunman who pointed a gun to his head, demanded his money, and struck him in the head with the barrel of the gun.

Two other victims, Don and Bernadette McAllister, reported they had also been robbed at approximately 9:00 p.m. on February 6, 2010. The McAllisters had just returned home from a shopping trip and Mrs. McAllister remained in the car to gather her things while Mr. McAllister exited the vehicle to bring a package inside. As he attempted to open his front door, Mr. McAllister noticed three black males walking in the street about seventy-five feet from his house. Seconds later, he heard footsteps rapidly approaching and then heard a male voice shout, “[b]itch, give me your money.” Mr. McAllister turned around and saw two men with guns pointed at him; he gave the lead gunman his wallet and cell phone. He testified that the other gunman then stepped up closer to him, put a gun to his face, and said, “[ljet’s jack the car.” Mr. McAllister gave the men a set of keys but told them he needed to get his wife out of the car. He walked to the car and told Mrs. McAl-lister to get out and give the men her purse. Mrs. McAllister testified that she gave the men her purse and then she and Mr. McAllister quickly went inside and le,called 9-1-1. Mr. McAllister watched from inside as the three men got into his vehicle parked in the driveway; however, the men could not start the vehicle because Mr. McAllister had given them the wrong set of keys. Mr. McAllister reported to police that the three men then fled on foot toward Canyon street.

Mr. and Mrs. McAllister could not make any positive identifications when presented with photographic lineups. Mr. McAllister reported that there were three perpetrators: two gunmen and one “lookout,” who stood approximately fifteen feet away from the other two and closer to the street. After the incident, detectives brought Mr. and Mrs. McAllister to a nearby school to identify the individual in custody; Mr. McAllister stated that he was 75% certain that the person in custody was the “lookout.” At trial, Mr. McAllister testified that the lead gunman was the tallest of the three men and that he is 75% certain that defendant is one of the gunmen who robbed him. Mrs. McAllister testified that she intentionally kept her eyes down during the robbery and could not make any positive identifications of the perpetrators.

The state compelled Clofer to testify at trial. On direct examination, Clofer testified that he, Chopin, and defendant walked through a residential neighborhood to get to Danny and Clyde’s on Ames Blvd. Clofer admitted that, while walking through the neighborhood, he, defendant, and Chopin committed the attempted armed robbery of Ivy and, minutes later, the armed robberies of Mr. and Mrs. McAllister. Clofer testified that he had been convicted for those crimes and was incarcerated at the time of trial. Clofer however testified that defendant did not carry a gun and stood back while he and Chopin committed the robberies. Clofer admitted that all three men did intend to share any money they obtained from the robberies.

|70n cross-examination, however, Clofer changed his story and testified that defendant did not participate in the robberies. Clofer testified that defendant previously lent him a pellet gun but that defendant was not present and did not have knowledge of the robberies. On re-direct, Clofer testified that he lied in his earlier testimony and that in fact a third, unknown person — not defendant — acted as a “lookout” in the crimes.

Defendant testified at trial that he has known Clofer since seventh grade and has only known Chopin for a brief period of time from the neighborhood. After he learned that Clofer and Chopin had implicated him in the crimes, he turned himself into police and voluntarily gave a recorded statement. In his statement to police and in his testimony at trial, defendant denied any involvement in the robberies. Defendant claimed that Chopin and Clofer came to his house at some point on February 6, 2010, to get a pellet gun. They told defendant they might “go on a lick,” or commit an armed robbery. However, defendant claimed that he did not believe that Chopin and Clofer would actually rob anyone. Defendant testified that he did not participate in either the attempted armed robbery of Ivy or the armed robberies of the McAllisters and maintained that he stayed home on the evening of February 6, 2010.

DISCUSSION

We will first consider defendant’s claim that the evidence at trial was not sufficient to support his conviction. When the issues on appeal pertain to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

|sThe standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600.

An appellate court’s priihary function is not to redetermine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671, 677.

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

Defendant is charged with two counts of armed robbery in violation of La. R.S. 14:64. To support a conviction for armed robbery, the state must prove beyond a reasonable doubt that defendant took anything of value from the person of another by use of force or intimidation while armed with a dangerous weapon. La. R.S. 14:64; State v. Wade, 10-997 (La.App. 5 Cir. 8/30/11), 77 So.3d 275, 279. A dangerous weapon “includes any ... instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2. A gun used in connection with a robbery is, as a matter of law, a dangerous weapon. State v. Mason, 10-284 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 425, writ denied, 11-0306 (La.6/24/11), 64 So.3d 216. Furthermore, the act of pointing a gun at a victim is sufficient to prove the required element of force or intimidation for purposes of armed robbery. Id.

Defendant is also charged with attempted armed robbery. An attempt occurs when the offender has the specific intent to commit a crime and does or omits an overt act in furtherance of accomplishing the offense. State v. Sanders, 12-114 (La.App. 5 Cir. 9/11/12), 101 So.3d 994, 999 (quoting La. R.S. 14:27(A)). Mere prepa ration to commit a crime does not constitute attempt. However, lying in wait with a dangerous weapon with the intent to commit a crime is sufficient to constitute an attempt to commit the offense intended. Id. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier of fact and a review of the correctness of that determination is guided by the Jackson standard. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599, and State v. Spears, 05-0964 (La.4/4/06), 929 So.2d 1219, 1224.

The law of principals states that all persons involved in the commission of a crime are equally culpable. See La. R.S.14:24 and State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 880. Principals are defined as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly | inor indirectly counsel or procure another to commit the crime.” La. R.S. 14:24. An individual may only be convicted as a principal for those crimes which he personally has the requisite mental state. Mason, 59 So.3d at 425. The mere presence at the scene of the crime does not make one a principal to the crime. However, “it is sufficient encouragement that the accomplice is standing by at the crime scene ready to give some aid if needed[.]” Mason, 59 So.3d at 425-426.

Defendant does not argue that the state failed to prove any of the essential statutory elements of his convictions, but rather contends the state failed to prove beyond a reasonable doubt his identity as a perpetrator in the robberies. Defendant claims that the state failed to negate a reasonable probability of misidentification and did not refute his theory that an unknown third individual participated in the crimes.

In addition to proving the statutory elements of the charged offense at trial, the state is required to prove defendant’s identity as the perpetrator. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Draughn, 950 So.2d at 593. Positive identification by one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

The state put forth evidence that defendant, Chopin, and Clofer committed the attempted armed robbery of Ivy and then, minutes later and less than one mile away, committed the armed robberies of the McAllisters. Clofer and Chopin both [ ngave statements to detectives shortly after the robberies and implicated defendant in the crimes. Chopin provided two statements to police. In both statements, Chopin indicated that defendant participated and in fact was the “lead” gunman in both the attempted armed robbery of Ivy and the armed robberies of the McAllisters. Clofer also provided two statements to police. In both statements, Clofer implicated defendant in the crimes. In his second statement to police, Clofer admitted that he, Chopin, and defendant attempted to rob Ivy and then, minutes later, proceeded to rob the McAllisters. Clofer admitted that he carried a .380 caliber handgun and that he fired that weapon during the attempted armed robbery of Ivy. He also told police that defendant carried a pellet gun during both robberies and that defendant and Chopin committed the armed robberies of the McAllisters while he stood near the street as the lookout.

At trial, Ivy positively identified defendant as the robber who pointed a gun in his face and demanded money. The McAl-listers were unable to make positive identifications. However, Mr. McAllister described the perpetrators as three young, black males and testified at trial that he was 75% certain that defendant participated in the robbery as one of the gunmen. He also testified that the lead gunman was the tallest of the three men and defendant admitted in his testimony that he is the tallest of the three alleged perpetrators.

Further, Mr. McAllister reported to authorities that the three young men fled after the robbery toward a side street, “Canyon.” The patrolling officer Weiden-bacher testified that on the evening of February 6, 2010, shortly after 9:00 p.m., he saw three young men, meeting the descriptions of the alleged perpetrators, walking together down Canyon Street near Ames Blvd. When Weidenbacher 112announced his presence, the men took off running. Weidenbacher apprehended one of the three men, Ashton Chopin, in close proximity in time and location to the reported robberies. Chopin, in his statement to police, immediately reported defendant’s involvement in the crimes.

Although all three victims could not positively identify defendant, we find the state presented sufficient evidence to link defendant to the crimes charged. See Mason, 59 So.3d at 419. The evidence shows that Clofer, Chopin, and defendant together committed the attempted armed robbery of William Ivy and then, minutes later, committed the armed robberies of Mr. and Mrs. McAllister. Accordingly, we conclude the evidence of defendant’s identity as a perpetrator involved in the robberies negates any possibility of misidentification. Therefore, this assignment is without merit.

Defendant further assigns as error the trial court’s denial of his motion for mistrial. On the second day of trial, defendant moved for a mistrial, claiming that he was deprived of his right to a fair trial and the presumption of innocence when jurors observed him escorted by deputies into a restricted access area of the building. The trial judge denied defendant’s motion, finding defendant suffered no actual prejudice that would impact the jury’s verdict.

La.C.Cr.P. art. 775 provides that, “[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial[.]” A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant that deprives 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 113disturbed absent an abuse of that discretion. State v. Pierce, 11-320 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1271.

Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. State v. Wilkerson, 403 So.2d 652, 659 (La.1981). However, the momentary use of restraints for the limited purpose of transporting the accused does not mandate a mistrial. State v. Thornton, 36,757 (La.App. 2 Cir. 1/29/03), 836 So.2d 1235, 1241, writ denied, 03-0861 (La.10/31/03), 857 So.2d 474; State v. Jones, 31,613 (La.App. 2 Cir. 04/01/99), 733 So.2d 127, writ denied, 99-1185 (La.10/01/99), 748 So.2d 434. The mere possibility that a defendant was prejudiced is insufficient to support an appellate court’s finding of reversible error. State v. Bradham, 638 So.2d 428, 429 (La.App. 5 Cir. 5/31/94). Rather, there must be a showing by the defendant that jurors did view defendant and that the viewing resulted in prejudice to the defendant which impacted upon the verdict. Bradham, 638 So.2d at 429.

In this case, defendant did not request an evidentiary hearing; rather, the state and defense stipulated to the court’s recitation of the following facts:

As deputies were transporting Mr. Williams from the courtroom across the hall, some fifteen/twenty feet (15/20'), across the hall, the Defendant was dressed in street clothing, was not handcuffed, was not shackled. As he was being walked across the hall, the jurors were being escorted out of my courtroom — or I’m sorry — out of my chambers, and it is possible that one (1), possibly two (2) or three (3), saw the defendant being escorted out. And when I say “escorted”, I say just in the presence of the guards. As I said, he was not being handled by the deputies, he was not in prison attire, he was not shackled, and he was not in handcuffs. As soon as the deputies escorting the jury out of my chambers saw the defendant and the deputies, the deputy escorting the jurors stopped the jurors and allowed the hall to be cleared.”

The state and defense stipulated that one, possibly two or three jurors, while exiting the judge’s chambers, observed defendant being escorted by two deputies 114into a restricted access area of the building. Defendant was not handcuffed or restrained in any way and was dressed in plain street clothes. The record reflects that the deputies did not “handle” defendant, but merely escorted or walked with him. Therefore, under these facts, we find the trial judge did not abuse her discretion in finding that defendant did not show actual prejudice sufficient to impact the jury’s verdict or in denying defendant’s motion for mistrial. This assignment is without merit.

In defendant’s final assignment of error, he claims that his fifty-year enhanced sentence as a multiple offender under La. R.S. 15:529.1 is unconstitutionally excessive. Defendant argues that the mechanistic application of the Habitual Offender Law imposes upon defendant — who was 17 years old at the time of the crimes — a virtual life sentence. Defendant further asserts that, in light of the recent decisions of the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and the Louisiana Supreme Court in State v. Dyer, 11-1758 (La.11/23/11), 77 So.3d 928 (per curiam), this Court should remand to the trial court for resentencing.

We find that defendant has not properly appealed his multiple offender adjudication and sentence. On May 27, 2011, defendant filed a motion for appeal of “the Verdict rendered herein on the 20th day of April, 2011 and the Sentence imposed herein on the 9th day of May, 2011.” On May 31, 2011, the trial court granted defendant’s motion for appeal. On November 18, 2011, the trial court adjudicated and sentenced defendant as a second felony offender. Defendant never filed a written motion for appeal of his multiple offender adjudication and sentence. Further, defendant’s original motion for appeal, filed on May 26, 2011, and granted on May 31, 2011, specifically states the verdict and sentences 115appealed and cannot serve as a motion for appeal of defendant’s subsequent multiple offender adjudication.

Therefore, we find that defendant has not timely appealed his multiple offender adjudication or sentence. Accordingly, defendant’s assignment of error regarding the excessiveness of his enhanced multiple offender sentence is not properly before this Court and we thus pretermit any consideration or discussion of this assignment of error.

When a defendant fails to move for an appeal within the time provided in La. C.Cr.P. art. 914, he loses his right to obtain an appeal by simply filing a motion for appeal in the trial court. State v. Gray, 04-1272 (La.App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061. This is not because the trial court has been divested of jurisdiction, but rather because the conviction and sentence became final when the defendant failed to appeal timely. Id. After the time for appealing has elapsed, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains reinstatement of his right to appeal. State v. Martin, 12-74 (La.App. 5 Cir. 9/25/12), 101 So.3d 1004, 1005.

A defendant who has failed to appeal timely can seek reinstatement of his right to appeal in the district court in which he was convicted. Gray, 04-1272, 902 So.2d at 1061. The appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal, after the delay provided in La.C.Cr.P. art. 914 has expired, is a timely-filed application for post-conviction relief. Martin, 101 So.3d at 1005. Accordingly, defendant should file in the trial court an application for post-conviction relief seeking an out-of-time appeal.

CONCLUSION

Accordingly, for the reasons provided herein, defendant’s convictions and sentences for armed robbery and attempted armed robbery are affirmed.

ERRORS PATENT DISCUSSION

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find the record contains an error patent that requires this Court to remand this matter to the trial court for correction of the commitment.

The commitment reflects the trial court sentenced defendant to “25 years at hard labor on count 2 concurrently” and “50 years at hard labor on counts 3, 4 concurrently.” The commitment does not clearly reflect that the trial court sentenced defendant separately for counts 3 and 4. Further, the commitment does not reflect that each separate sentence is to be served without benefit of parole, probation, or suspension of sentence.

Accordingly, we remand this matter to the trial court for correction of the commitment to reflect that the trial court imposed a separate fifty-year sentence on each count three and four and to reflect that each sentence is to be served without benefit of parole, probation, or suspension of sentence. The Clerk of Court for the Twenty-Fourth Judicial District Court is directed to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been 117sentenced. See La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

AFFIRMED; REMANDED

      . Two other individuals, Howard Clofer and Ashton Chopin, were also charged in this bill of information.

      . Defendant filed various pre-trial motions, including a motion to suppress the evidence, identification, and statement, which the trial court denied. Defendant has not assigned error to any pre-trial judgment.

      . See Errors Patent Discussion.

      . The state initially filed a multiple bill of information against defendant on May 27, 2011. That multiple bill set forth the incorrect predicate offense. However, a superseding indictment implicitly dismisses a first indictment. State v. Alo, 06-473 (La.App. 5 Cir. 12/27/06), 948 So.2d 275, 278.

      . The trial judge ordered the enhanced sentence concurrent with defendant’s original sentences on counts two and four.

      . Weidenbacher testified that he presented to Chopin single photographic lineups and that Chopin identified defendant and Clofer as involved in the crimes.

      . Ivy testified that he had just returned home from McDonald’s and was exiting his car at the time of the attempted robbery.

      .Detectives had Ashton Chopin in custody on the night of the robberies.

      . Ivy testified that he likes to "dabble in art” and is often able to recall details of facial features. When questioned regarding lighting in or near his driveway, Ivy testified that a street light and two porch lights provided sufficient lighting to see the individuals who approached him. •

      . Defendant's recorded statement was played for the jury at trial.

      . Attempt requires specific intent to commit the crime intended. Specific intent is defined as "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).

      . Because defendant does not challenge the sufficiency of the evidence of the statutory elements of armed robbery or attempted armed robbery, we do not address the sufficiency of the evidence with respect to the essential statutory elements of the crimes. Our review of the record however does reflect that the state presented sufficient evidence to establish the essential statutory elements of attempted armed robbery and armed robbery.

      .In his first statement, Clofer denied the presence or use of any weapons in the crimes. Further, he did not mention Chopin's participation; rather, he stated that he and defendant committed the robberies without the use of weapons.

      . Although defendant does not assign as error his original sentences for attempted armed robbery and armed robbery, we find the original sentences imposed are approximately half of the potential sentences for his attempted armed robbery and armed robbery convictions and are not unconstitutionally excessive. See State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162.

      . Although the transcript does not reflect that the trial judge sentenced defendant “at hard labor” on count two, as reflected in the commitment, she did state that the sentence would be served in the custody of the "Department of Corrections.” In State v. Up-church, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403, this Court determined that, while the transcript did not specifically state the sentence was to be served at hard labor, it did provide the sentence would be served in the Department of Corrections. "Only individuals actually sentenced to death or confinement at hard labor shall be confined to the Department of Corrections.” Id. (citing LSA-R.S. 15:824(C); State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80). Accordingly, we need not remand the matter for resentencing. See State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109 writ denied, 07-0152 (La.9/28/07), 964 So.2d 351.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrance NAPOLEON.
    No. 12-KA-749.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Terrance Napoleon, Angola, LA, for Appellant/In Proper Person.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ..¡Defendant, Terrance Napoleon, was found guilty of six felony counts: attempted armed robbery of Terry Scott while armed with a firearm, La. R.S. 14:(27)64 (Count One); one count of attempted second degree murder of Terry Scott, La. R.S. 14:(27)30.1 (Count Two); one count of possession of a firearm by a convicted felon, La. R.S. 14:95.1 (Count Three); one count of aggravated burglary of a residence belonging to Louis and Aura Napoleon, La. R.S. 14:60 (Count Four); and two counts of second degree murder of Jazman Williams and Ulrich Fleming, Jr., La. R.S. 14:30.1 (Counts Five and Six). Defendant was sentenced to 49 years and 6 months imprisonment at hard labor on Count One; 50 years imprisonment at hard labor on Count Two; 20 years imprisonment at hard labor on Count Three; 30 years imprisonment at hard labor on Count Four; and life imprisonment on Counts Five and Six. The trial court further ordered defendant’s sentences to be served consecutively, and without benefit of parole, probation, or suspension of sentence.

In this appeal, defendant alleges that the district court erred in allowing the admission of other crimes evidence, that his constitutional rights were violated by |4the requirement of a less than unanimous jury verdict, and that his trial counsel was ineffective for failing to advance his right to a speedy trial.

FACTS

Evidence at trial proved that during a ten-hour period on April 5-6, 2007, defendant committed a string of crimes that included three murders. Two of these murders formed the basis for Counts Five and Six; evidence of the third murder was admitted as La. C.E. 404B evidence of other crimes.

Prior to the commission of the crimes, on February 26, 2007, Mark Brossette reported his black Ford Ranger stolen. He reported that he loaned the truck to a black male named “Birdie” who did not return it. “Birdie” was the defendant’s nickname.

Terry Scott, April 5, 2007:

At approximately 9:00 P.M., Terry Scott was shot with a shotgun by a man he later recognized as the defendant. Scott was leaving his house in Marrero when a black two-door Ford Ranger truck pulled up and a man jumped out of the vehicle demanding money. Scott told his assailant that he did not have any money. His assailant then reached into his truck and pulled out a sawed-off shotgun, aimed it at Scott’s head, and asked him if he “was ready.” Knowing his life was in danger, Scott attempted to “wrestle” the shotgun away from the man when the gun went off and shot him in his hands. Scott was transported to University Hospital for treatment of his injuries. Scott testified that he recognized his assailant from around the neighborhood but did not know his name. While in the hospital, he was watching a television news broadcast about a separate matter which showed a picture of his assailant. When the police spoke with Scott in the hospital he identified defendant as his assailant from a photographic lineup.

| ^Gregory Singleton (Orleans Parish offense, subject of 404B “evidence of other crimes” hearing), April 6, 2007:

On April 6, 2007, at approximately 4:00 A.M., defendant knocked on the door of Gregory Singleton’s house, at 417 Whitney Avenue in Algiers, which is part of New Orleans. The knock was answered by Eva Miller, Singleton’s niece. At the door was a man she knew as “Birdie,” who was looking for her uncle. Defendant confronted Singleton looking for money, then shot Singleton in the chest. Defendant forced Miller outside, telling her that she was coming with him because she had “seen everything.” Miller was eventually able to escape when defendant turned his back to get into a black truck. Shotgun wadding and pellets recovered during the autopsy were consistent with the gun used in the Williams and Fleming murders.

Louis and Aura Napoleon, April 6, 2007:

In the early morning hours, Louis and Aura Napoleon were asleep in their apartment on Carol Sue Ave., Gretna, Louisiana. Defendant kicked in their front door, entered the bedroom and pointed a “long” gun at them. Mrs. Napoleon ran from the room and called 911, while Mr. Napoleon yelled “No, no,” calling the defendant “Birdie,” and attempted to wrestle the gun away from him. Defendant eventually took off running toward a black truck. Mr. Napoleon knew defendant, who was his cousin. Later, Mr. Napoleon received a call from defendant, who was screaming and who told him that defendant “was going to kill” Napoleon. At trial, Louis Napoleon stated that he grabbed the gun from defendant because he believed he was “going to die.”

Jazman Williams, April 6, 2007:

At approximately 7:11 A.M., Jazman Williams, a 14-year-old boy, was found dead, lying on the side of the road in the bushes off Highway 45 in Crown | (¡Point. He had sustained a gunshot wound to the back of his head and an injury to his hand. A shotgun shell was found under the victim’s foot. At the time of the murder, Juleau Williams, the victim’s sister, had dated defendant off and on for about five years. She confirmed that defendant was the last person seen with her brother on the night before his death. In investigating this murder, the officers believed that evidence belonging to defendant could be found in the apartment belonging to Rane-ka Williams, defendant’s niece and the victim’s cousin. Her apartment was searched and a .410 shotgun shell and a gun cleaning kit were seized. Shotgun wadding and shotgun fragments retrieved from the victim’s head confirmed that the victim had been shot with a .410 shotgun.

The shotgun used to commit the murder was later found inside the stolen Ford Ranger that defendant was using at the time of the murders. Both Raneka Williams and Juleau Williams stated that defendant had lived with them in the past, and that they had seen a shotgun in the closet of the room where defendant slept.

Ulrich Fleming, April 6, 2007:

Around 6:00 A.M., Ulrich Fleming was found dead inside his vehicle, which appeared to have broken down on the side of Interstate-10 in Kenner, Louisiana. Fleming had suffered from a gunshot wound to the left side of his face. Wadding and pellets from a .410 shotgun recovered during Fleming’s autopsy proved to be consistent with the wadding and pellets found during Williams’ autopsy. A white T-shirt later found in the truck that defendant was using at the time of the murders, was found to contain both defendant’s and Fleming’s DNA.

Recovery of the Ford Ranger

In April of 2007, Mr. Brossette’s black Ford Ranger, which he had previously reported stolen, was recovered in Houston, Texas. Several bullet holes |7were located on the exterior of the vehicle and a shotgun was found lying on the floorboard. CDs found in the truck were dusted for fingerprints and one of the fingerprints was identified as that of defendant. A black sawed-off .410 shotgun, along with an empty box of .410 shotgun shells and three shotgun shells (one fired and two live) were found in the truck. The shotgun shell found under victim Williams’ foot was determined to have been fired from the .410 shotgun seized from the truck. Also found in the truck was a white T-shirt, which contained blood DNA of both defendant and Ulrich Fleming.

ASSIGNMENTS OF ERROR

In his first assignment of error, defendant alleges that it was error to admit evidence of the Gregory Singleton homicide in New Orleans, as that evidence was unduly prejudicial and far outweighs its potential probative value as to any issue in the charges at trial. Defendant maintains that the error in admitting this evidence was not harmless, warranting reversal and remand for a new trial.

Generally, a court may not admit evidence of other crimes to show a defendant is a man of bad character, and that he has acted in conformity with his bad character. State v. Brown, 03-1616 (La.App. 4 Cir. 3/31/04), 871 So.2d 1240, 1247, writ denied, 04-1285 (La.10/15/04), 883 So.2d 1044 (quoting State v. Taylor 01-1638 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004)).

However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. 404 B(l). The State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. State v. Prieur, 277 So.2d 126 (La.1973). Additionally, the State must prove that the defendant committed the other acts. Id.

While the Louisiana Code of Evidence prohibits the use of evidence of other crimes or wrongful acts to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404 B(1); State v. Brown, 95-124 (La.App. 5 Cir. 5/30/95), 656 So.2d 1070, 1074-75. Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. Close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, or that defendant acted in conformity with the other crime, but rather to complete the story of the crime for which he is on trial by proving its immediate context of happenings near in time and place. State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Leonard, 543 So.2d 975, 979 (La.App. 3 Cir.1989), citing State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the State’s case would lose its narrative cohesiveness, “with power not only to support conclusions but to sustain the | nwillingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Colomb, 98-2813, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

The defendant bears the burden to show that he was prejudiced by the admission of other crimes evidence. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165-66. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. 404B(1) will not be disturbed. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

In this case, defendant’s string of crimes commenced on April 5, 2007, at approximately 9:32 P.M., and ended at approximately 7:11 A.M. on April 6, 2007, when the body of Jazman Williams was discovered. The first crime occurred when defendant committed an armed robbery and attempted second degree murder of Terry Scott for money. Scott was shot with defendant’s sawed-off shotgun after he told defendant he did not have any money. The second incident occurred at the residence of Gregory Singleton when defendant entered the residence demanding money owed by Singleton. When Singleton stated that he had not received his paycheck, he shot and killed him. Singleton’s niece, Eva Miller, knew defendant and was able to provide a description to the police. Miller identified defendant, who was known by the nickname “Birdie,” from a photographic lineup and advised the police that Singleton had been shot by defendant with a sawed-off shotgun and had fled the scene in a black two-door Ford Ranger. Next, defendant went to his cousin’s home, where he broke down the door and pointed a sawed-off shotgun at Louis and Aura Napoleon, who were asleep in their bed. Before defendant could make his demands, Louis Napoleon wrestled with defendant in an attempt to secure the shotgun because he believed defendant was going to kill them. | ^Defendant fled in the same black Ford Ranger truck. The body of Ulrich Fleming was later found inside a vehicle parked off the interstate. It was determined that Fleming had been killed by a .410 shotgun. Fleming’s blood and defendant’s DNA were later found on a T-shirt inside the stolen black Ford Ranger that had been abandoned in Texas. Jazman Williams’ body was also found on the side of the road on Highway 45 in Crown Point with a gunshot wound to the back of the head. It was later discovered that Williams had also been shot at close range by a .410 gauge shotgun. The shotgun shell recovered under Williams’ foot matched the shotgun shell found in the black Ford Ranger. Williams’ sister and cousin both testified that defendant had lived with them prior to these incidents and that they had seen a black shotgun with duct tape on the handle in the closet of the room where defendant slept. They further confirmed that defendant was driving a black Ford Ranger at the time.

The Louisiana Supreme Court has recognized that it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed, where the element of intent is an essential ingredient of the charged offense. State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037, 1040 (citations omitted). The pattern/plan exception requires a determination that a defendant achieved an ultimate goal through a series of related crimes. Id. at 1042. The Louisiana Supreme Court has held other crimes evidence admissible as proof of other crimes exhibiting almost identical mo-dus operandi, or system, committed in close proximity in time and place. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, 725, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998).

| nDefendant herein engaged in a continuous chain of criminal activity that spanned a period of ten hours. As a general rule, evidence of criminal conduct that takes place in a series of events is admissible at the trial of one of the offenses. See, La. C.E. 404(B). See also, State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908, 914, writ denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).

Furthermore, the crimes committed by defendant were all committed with the same weapon, same vehicle, by a black male, known by the nickname “Birdie,” with an apparent financially motivated purpose. All of the autopsies performed in this case indicated that the victims were shot at close range with a .410 gauge shotgun. Notably, Dr. Karen Ross, who performed the autopsies on Williams and Fleming, notified investigators when she discovered the similarities in the death of the victims who had been shot with the use of a .410 gauge shotgun. Additionally, Detective McGregor, an 18-year veteran police officer, testified that these were the first murders with a shotgun he had seen, thus giving evidence of a “system” which was somewhat unique, at least from his perspective. This pattern alerted law enforcement officials to conduct overlapping investigations in different jurisdictions to develop defendant as a suspect to the multiple crimes committed in this case.

At trial, the State used the evidence of the Singleton murder to show that the person responsible for Singleton’s death had possession of the weapon on the day the other homicides were committed. It was further used to establish a motive and the identity of defendant. Specifically, the Singleton murder further evidenced defendant’s need for money by targeting individuals with whom he was acquainted. The evidence also aided in establishing defendant’s intent to kill [ i2Jazman Williams and Ulrich Fleming, and his criminal intent to commit an offense within Louis and Aura Napoleon’s residence.

In sum, the introduction of the Orleans Parish murder of Singleton and the fact that the crimes committed in this case all involved the same weapon and the same vehicle, were relevant to prove defendant’s identity, motive, system, and intent. Whoever killed Singleton had the weapon in his possession and had an ongoing financial motive for killing again to achieve his goal. Lastly, the trial court instructed the jury on the limited purpose for which they could consider evidence of the homicide committed in New Orleans. Accordingly, we find that the trial court did not abuse its discretion in allowing the State to introduce evidence of Singleton’s murder.

In his second assignment of error, defendant challenges the constitutionality of La.C.Cr.P. art. 782(A), which allows for non-unanimous jury verdicts. In particular, he argues that the jury verdicts in this case should be declared invalid because non-unanimous verdicts violate the Sixth and Fourteenth Amendments of the United States Constitution.

The record reflects that the verdicts rendered in this case were declared legal by the trial court; however, it does not establish whether the verdicts were rendered by a non-unanimous jury. Thus, we cannot ascertain whether defendant has standing to challenge the constitutionality of La.C.Cr.P. art. 782(A) because it is unknown whether he was convicted by non-unanimous jury verdicts on all counts.

| iSThe record also reflects that defendant failed to file a motion to declare unconstitutional the non-unanimous jury verdict portions of either La. Const, art. 1, § 17(A) or La.C.Cr.P. art. 782(A). Further and significantly, the defendant did not object to the jurors being instructed that ten of twelve of them must concur to render any verdict (including acquittal, or guilty of a lessor offense), per La.C.Cr.P. art. 782(A). Nor did defense counsel object to the verdict after it was rendered.

While there is no single procedure for attacking the constitutionality of a statute, the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. State v. Hatton, 07-2377 (La.7/1/08), 985 So.2d 709, 719-20. Also, La.C.Cr.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. La.C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. Because defendant failed to raise this alleged error at trial, he is not entitled to have this issue reviewed and considered by this Court. La.C.Cr.P. art. 841(A). See also State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608.

Even if we were to find that this issue is properly before us on appellate review, the Louisiana Supreme Court has long held that non-unanimous jury verdicts for twelve-person juries are not unconstitutional in non-capital cases. State v. Edwards, 420 So.2d 663, 674 (La.1982).

Defendant’s contention is that the United States Supreme Court decision in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), holding | uthat non-unanimous jury verdicts do not violate the defendant’s constitutional rights, has been called into question by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore should no longer be followed by this court. However, the defendant herein relies on the mention of unanimity in Apprendi, in which non-unanimous verdicts were not at issue. Apprendi involved reversal of the enhancement of a defendant’s sentence upon the trial judge’s post-verdict, factual finding that the crime committed was a hate crime, with such finding made by a mere preponderance of evidence. The un-eonstitutionality found by the Apprendi Court was criminal punishment for a post-trial finding of guilt of an additional element which had not been submitted to the jury, nor which required proof beyond a reasonable doubt. A superfluous mention of required unanimity made in the Court’s holding that all elements of a crime for which the defendant is punished must necessarily be proven to the jury beyond a reasonable doubt is not surprising, especially in a state (New Jersey) whose constitution requires a unanimous verdict. It cannot be construed to mean or predict that Apodaca is, or might soon be, overturned.

In State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, the Louisiana Supreme Court held non-unanimous jury verdicts were not unconstitutional, due to its prior holdings that La.C.Cr.P. art. 782 “withstands constitutional scrutiny,” and because it refused to assume that the United States Supreme Court’s “still valid determination that non-unanimous 12-person jury verdicts are still constitutional may someday be overturned.” Relying on Bertrand, the Fourth Circuit upheld the constitutionality of non-unanimous jury verdicts in State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-934 (La.11/19/10), 49 So.3d 396, cert. denied, — U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). The | ^United States Supreme Court recently denied certiorari in Barbour, thereby declining to address the issue of non-unanimous jury verdicts.

Therefore, the contention that recent post-Apodaca. jurisprudence establishes a right to unanimous jury verdicts in all criminal cases is without merit. Accordingly, we find no merit to defendant’s assertion that the trial court erred in charging the jury that a verdict of at least ten of twelve jurors was sufficient to reach any verdict.

Defendant also filed a pro se assignment of error, in which he argues that his trial counsel was ineffective for failing to advance his right to a speedy trial under La.C.Cr.P. art. 701.

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

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article 1, § 13 of the Louisiana Constitution. Grimes, 16 So.3d at 425. To prove ineffective assistance of counsel, a defendant must show both that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Id.; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). It is unnecessary 11fito address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the two necessary elements. State v. Serigny, 610 So.2d 857, 860 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

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

Defendant asserts an ineffective assistance of counsel claim predicated upon an alleged post-indictment delay as surmised from defendant’s general reference to the 14 continuances filed by his trial counsel. Defendant contends that his counsel filed more than 14 continuances for no stated reason and failed to litigate an alleged violation of the speedy trial act. Defendant’s brief contains no argument as to how his counsel’s continuances caused a violation of the speedy trial act or how he was prejudiced by his counsel’s performance. Assignments of error that are neither briefed nor argued are considered abandoned on appeal. See Uniform Rules Courts of Appeal, Rule 2-12.4; State v. Blank, 01-564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132, 139.

| ^Defendant’s argument that counsel was ineffective has no merit. There are two separate and distinct bases for a defendant’s right to a speedy trial: the statutory right granted by La.C.Cr.P. art. 701, and the constitutional right embodied in the Sixth Amendment to the United States Constitution and in Article 1, Section 16 of the Louisiana Constitution. The two are not equivalent. State v. Cowger, 581 So.2d 283, 285 (La.App. 5 Cir.1991). A statutory speedy trial claim under La. C.Cr.P. art. 701 becomes moot after conviction because the remedy for such a violation is pre-trial release of defendant, not a bar to prosecution. State v. Johnson, 08-1156 (La.App. 5 Cir.1991), 9 So.3d 1084, 1091, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268, (citing Cowger, 581 So.2d at 286).

The constitutional right to a speedy trial attaches when an individual becomes an accused, either by formal indictment or bill of information, or by arrest and actual restraint. State v. Pleasant, 489 So.2d 1005, 1009 (La.App. 1 Cir.1986), writ denied, 493 So.2d 1218 (La.1986). Claims for speedy trial violations are evaluated under the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 530-531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The considerations in determining whether a defendant has been deprived of a speedy trial are: (1) the length of the delay, (2) the reasons for the delay, (3) defendant’s assertion of his rights, and (4) the actual prejudice to the defendant. The initial inquiry is into the length of the delay. If the delay is presumptively prejudicial, there will be an inquiry into the other factors. Id. The peculiar circumstances of the case will determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Cowger, 581 So.2d at 286; State v. Reaves, 376 So.2d 136, 138 (La.1979); See also Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Something that is acceptable in one case, may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984) (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). The manner of proof must also be considered, as must the gravity of the alleged crime. Id.

The record reflects that this case involves six counts of very serious crimes, among which include two counts of second degree murder, five different victims, multiple witnesses from various states, multi-pie crime scenes, DNA issues, and a complex factual chronology of events linking the various crimes, which spanned over two days, to defendant. Continuances were granted after requests from both the State and defense counsel, largely due to pending DNA testing results. The record appears to support these continuances, and despite the complexity and seriousness of these offenses, trial commenced approximately 20 months after indictment. At the time defendant was awaiting trial in Jefferson Parish, he was also awaiting trial in Orleans Parish for unrelated charges of second degree murder and aggravated rape. Moreover, defendant makes no argument as to how he was prejudiced by his counsel’s failure to “object or litigate” what he considers a deprivation of his right to a speedy trial. Under these circumstances, defense counsel was not ineffective, nor did any prejudice to defendant result from counsel’s failure to argue an alleged speedy trial violation. We find no merit to defendant’s pro se assignment of error.

Patent Error Review

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); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following errors in defendant’s sentences which merit consideration.

[,<)As to Count Three, Felon in Possession of a Firearm, defendant’s sentence is illegally excessive. At the time of the offense, La. R.S. 14:95.1 included a penalty of imprisonment at hard labor “for not less than ten nor more than fifteen years without the benefit or parole, probation, or suspension of sentence” and a fine of “not less than one thousand dollars nor more than five thousand dollars.” Defendant was sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. Thus, defendant was sentenced to five years more than the term allowed by law. Because the corrected sentence remains within the trial court’s sentencing discretion, correction must be by remand for resentencing, rather than by an amendment by this court. State v. Barbay, 07-1976 (La.App. 1 Cir. 3/26/08), 985 So.2d 749, 752, citing State v. Haynes, 04-1893 (La.12/10/04), 889 So.2d 224 (per curiam). Accordingly, we must vacate this illegal sentence and remand to the trial court with instructions to resen-tence defendant in accordance with the sentencing provision of La. R.S. 14:95.1 at the time of the offense. See State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232; State v. Mason, 10-284 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 430, writ denied, 11-0306 (La.6/24/11), 64 So.3d 216.

We also find clerical errors contained in the commitment. As it pertains to Count Three, the commitment is inconsistent with the transcript regarding the crime for which defendant was convicted. The transcript shows that defendant was convicted of possession of a firearm by a person previously convicted of certain felonies pursuant to La. R.S. 14:95.1. The commitment, however, indicates that |20on Count Three, defendant was found guilty of the lesser charge of 14:95B(2). This statutory citation and the statement that defendant was convicted of a lesser charge are incorrect, and the commitment must be corrected.

In addition, the date on the commitment reflects a sentencing date of March 8, 2012; however, the transcript from the sentencing proceeding and the motion for appeal reflects that sentencing in this matter took place on February 16, 2012.

Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore order the trial court to correct the commitment reflecting these changes and order the Clerk of Court to transmit the corrected commitment to the officer in charge of the institution to which defendant has been sentenced and to the Louisiana Department of Corrections Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

A second sentencing error is present on Count Four, aggravated burglary. On all counts, the trial judge stated that each sentence is to be served without the benefit of probation, parole or suspension of sentence. The sentence on Count Four is illegal because La. R.S. 14:60 does not permit the trial judge to impose the sentence without benefit of parole, probation, or suspension of sentence. Therefore, we amend the Count Four sentence to delete the restriction of benefits and order the trial court to correct the commitment accordingly on this error also. State v. Lipton, 02-162 (La.App. 5 Cir. 9/30/03), 857 So.2d 1162, 1167, writ denied, 03-3058 (La.2/20/04), 866 So.2d 818.

CONCLUSION

For the above discussed reasons, the defendant’s convictions on Counts One through Six are affirmed. The defendant’s sentences on Counts One, Two, Five and Six are also affirmed. The defendant’s sentence on Count Four is amended, 121 and as amended, affirmed. The defendant’s sentence on Count Three is vacated. This matter is remanded for resentencing on Count Three, and for the aforesaid corrections of the commitment, and for transmittal of the corrected commitment to the correctional facility.

CONVICTIONS AFFIRMED. SENTENCES ON COUNTS ONE, TWO, FIVE AND SIX AFFIRMED. SENTENCE ON COUNT FOUR AMENDED, AND AS AMENDED, AFFIRMED. SENTENCE ON COUNT THREE VACATED. CASE REMANDED.

      . The predicate offense in relation to this charge as referenced in the bill of indictment indicates that defendant was previously convicted of possession of cocaine, La. R.S. 40:967(C), in docket number 03-0790 in Division D of the 24th Judicial District Court, Parish of Jefferson.

        . McArthur is superseded by La. C.E. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Nguyen, 04-321 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 907 n. 6, writ denied, 05-0220 (La.4/29/05), 901 So.2d 1064.

      . La.C.Cr.P. art. 782(A) provides, in pertinent part, that "[cjases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” This article is a counterpart to La. Const, art. 1, § 17(A), which provides: "A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.”

      . In State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 545-46, writ denied, 11-1753 (La.2/12/12), 80 So.3d 468, cert. denied, - U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012), defendant was convicted of two counts of second degree murder under La. R.S. 14:30.1 by a unanimous twelve-person jury verdict. This Court found that the defendant did not have standing to challenge the constitutionality of La.C.Cr.P. art. 782(A) because he was convicted by a unanimous jury verdict on both counts. Jacobs, 07-887, 67 So.3d at 535 (citing Burch v. Louisiana, 441 U.S. 130, 132 n. 4, 99 S.Ct. 1623, 1624, 60 L.Ed.2d 96 (1979)).

      . See State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469; State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 508, writ denied, 09-2102 (La.4/5/10), 31 So.3d 357; and State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-934 (La.11/19/10), 49 So.3d 396, cert. denied, — U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011).

      . The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520.

      . Acts 2010, No. 815, § 1 amended the statute to provide for a maximum sentence of 20 years. That amendment took effect on August 15, 2010.

      . In addition, neither the commitment nor the transcript reflects the imposition of the mandatory fine required under the statute.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Samuel JONES.
    No. 12-KA-750.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Sunny D. Funk, David M. Hufft, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, Jude G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| gDefendant, Samuel Jones, was convicted of the second degree murder of Donald Green and of being a felon in possession of a firearm. On appeal, he argues that the evidence was insufficient to convict him of second degree murder because he did not act alone. He also argues that his sentences for the two convictions are excessive in that the trial court ordered them to be served consecutively when they arose out of one course of conduct. For the following reasons, we find that defendant’s assignments of error are without merit and accordingly affirm his convictions and sentences.

PROCEDURAL HISTORY

On August 19, 2010, a Jefferson Parish grand jury indicted defendant, Samuel Jones, and a co-defendant, Troy Cryer, for the second degree murder of Donald Green, in violation of La. R.S. 14:30.1 (count one). Additionally, defendant was also charged with possession of a firearm by a convicted felon, in ^violation of La. R.S. 14:95.1 (count two). Defendant was arraigned and pleaded not guilty to both charges. Defendant and his co-defendant were severed for trial. On May 4, 2012, a 12-person jury returned verdicts of guilty as charged against defendant on both counts.

On May 11, 2012, the trial court denied defendant’s motions for post-verdict judgment of acquittal and for a new trial, and imposed sentence. On count one, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On count two, the trial court sentenced defendant to fifteen years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to be served consecutively with the sentence imposed on count one. Defendant filed a motion to reconsider sentence, which the trial court denied. This timely appeal followed.

FACTS

On the night of March 23, 2008, which was Easter Sunday, defendant and his co-defendant, Troy Cryer, attacked the victim, Donald Green, in the Cryer apartment in Marrero, which was shared by co-defendant Troy Cryer, his father Charlie Cryer, and his sister Tiffany Cryer. During the botched execution of a scheme concocted by defendant and Troy to rob Green’s drug dealer “Rob,” Green was beaten and shot inside the apartment and his body was transported to a nearby canal, where it was dumped and further beaten by defendant in an attempt at disfigurement to delay identification. The next day, defendant fled to Texas, where he was ultimately apprehended.

Tiffany Cryer, who was an eyewitness to some of the events of that evening, testified that she had known defendant for over six years, as he was married to her cousin. He visited often and came over on Easter Sunday, March 23, 2008. After coming and going during the day, defendant came to their apartment around 9:30 |4p.m. that evening and stayed. Defendant, Troy, Ms. Cryer, and their father Charlie were all present when Donald Green, the victim, arrived soon afterwards to get some cigarettes from Charlie. According to Ms. Cryer, Green was a neighbor, friend of the family, and a known drug user. His drug dealer, Rob, was known as a “big-time” drug dealer in the neighborhood.

After Green arrived at the apartment, defendant went outside and returned with a black semi-automatic handgun, which he pointed at Green while ordering him to get on the floor. Green expressed surprise and asked Charlie what was going on, whereupon defendant demanded Rob’s number, which Green refused to give. As Green continued to refuse to give defendant Rob’s number, saying defendant “would have to kill me,” defendant started beating Green on the head with the butt of the gun. At this point, Green was on the floor, with Ms. Cryer and her father standing on one side of the scuffle and defendant and Troy, who was wearing latex gloves, on the other side. Defendant asked Ms. Cryer for something to tie Green up with, but she did not respond. When Green started to fight back, defendant then shot him in his side. Ms. Cryer and her father left the apartment at this point, went to a neighbor’s house, and called the police.

Defendant testified at trial and told a different version of the events at issue. He testified that just before Easter, he met with the Cryers and they discussed a plan to rob a neighborhood drug dealer. Defendant claimed that “Rob” was both Green’s dealer and also supplied drugs to the Cryers. Defendant returned to the Cryers’ apartment several times over the next few days to further discuss the plan, which they agreed would be carried out on Easter Sunday.

| ¡-Defendant testified that on Easter Sunday, he and Ms. Cryer drove by Rob’s apartment to see if he was home so that they could carry out their plan, but because Rob was evidently having a party, they discussed executing the plan on another day. Around 10:00 p.m. that night, Green arrived at the Cryers’ apartment. Defendant claimed that Troy and Ms. Cryer passed a “look” between them and him, signaling to defendant that it was time to carry out the plan. Defendant then went outside to his Suburban, retrieved his gun, and came back inside. He said that he planned to use the gun to intimidate Green, but did not intend to shoot or kill him.

Defendant returned inside with the gun concealed in his pocket, and went to another room while the others talked. When defendant re-entered the living room with the gun, he pointed it at Green, who then asked what was going on. Charlie answered that he didn’t know, but he also backed towards the front door, blocking it. Green refused to give up Rob’s number, so defendant made Green get on the floor on his stomach so he could tie him up. Defendant asked for something to tie Green up with, but no one gave him anything. At this point, defendant handed the gun to Troy and grabbed Green in an effort to restrain him. Green resisted and began to fight back. Defendant asked Troy to hit Green in the head to knock him out, whereupon Troy struck Green in the head with the butt of the gun at least two or three times, to no avail. At this point, Ms. Cryer and Charlie left the house.

As defendant and Green continued to wrestle on the floor, defendant got him in a “choker hold” where defendant was behind Green with his arms around Green’s neck. At this moment, defendant heard a gunshot and felt Green slump lifelessly. He then heard a second gunshot. Defendant asked Troy why he had shot Green, since it was not part of the plan and now they could not get Rob’s number.

| ^Defendant believed Green to be dead, so he and Troy began thinking of how to get the body out of the house without anyone seeing them. They also wanted to clean the house of blood and other evidence in case the gunshots had been heard and reported. They wrapped the body in bed sheets and put it in the front seat of •defendant’s Suburban. Defendant then drove to a nearby canal, as directed by Troy. They removed the body from the front seat and dumped it on the canal bank. Defendant decided to disfigure Green’s face in order to delay identification, because he was worried that the location was not concealed enough and the body would be discovered as soon as it was daylight. However, after hitting Green once in the face with an iron bar he had gotten from his truck, he realized that it would take many more blows to disfigure him and that he did not have the fortitude to continue. Defendant and Troy then left the body on the canal bank and returned to the apartment to clean up.

As they were cleaning up, defendant and Troy saw lights from police cars through the front windows of the apartment. Realizing that the police were focusing on the apartment, they decided to leave immediately through the back door. Defendant called a friend, who picked them up on the next street. Defendant said he tried to return about an hour later to retrieve his Suburban, but the police were still there and his truck was being towed. The two men ended up spending the night in Algiers at another friend’s house.

The next morning, defendant decided to leave the state and took a Greyhound bus to Texas. While there, he was arrested for and pleaded guilty to aggravated assault, for which he received a 45-year sentence. At the time of trial, defendant remained incarcerated in Texas on that conviction.

The Jefferson Parish Sheriffs Office investigated the incident after receiving the Cryers’ call. They went to the apartment that night and saw blood droplets 17inside the house, a bullet hole in the wall, and a projectile jacket, but no victim. A .380 caliber semi-automatic Bersa handgun was found in the backyard of the apartment. It had two live rounds in the magazine, and one spent round in the chamber, which indicated that the gun had malfunctioned at the time of use. The State’s firearms expert determined that the projectile jacket in the apartment had been fired by the Bersa pistol. Green’s body, wrapped in sheets, was discovered on the canal bank the next day by a deputy investigating the incident. An autopsy revealed blunt force trauma to Green’s head and a gunshot wound to his side, neither of which was immediately fatal, but both of which contributed to his death. Defendant’s Suburban was searched (pursuant to a warrant), which revealed blood in the seat and an iron bar with blood and tissue matter on it. Subsequent DNA testing linked the Suburban and the iron bar to both defendant and Green.

ASSIGNMENT OF ERROR NO. ONE

Sufficiency of the evidence

In his first assignment of error, defendant argues that the evidence was insufficient to convict him of second degree murder. Specifically, he argues that the trial court erred in denying his post-trial motions for post-verdict judgment of acquittal and for a new trial, where he argued that the evidence was insufficient to show that he had specific intent to kill or cause great bodily harm to Green because he, defendant, did not act alone.

The question of sufficiency of evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. State v. Hooker, 05-251 (La.App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074. A post-verdict judgment of acquittal 18shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. La.C.Cr.P. art. 821(B). An appellate review of the denial of the motion for post-verdict judgment of acquittal is controlled by the standards set forth in Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which is codified in La.C.Cr.P. art. 821.

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

A motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La.C.Cr.P. art. 851. The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear abuse of discretion. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. When a motion for a new trial is based on the verdict being contrary to the law and the evidence, pursuant to La. C.Cr.P. art. 851(1), courts have addressed the constitutional issue of the sufficiency of the evidence. State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50.

|9Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 284, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. It is not the function of the appellate court to second guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on fundamental due process of law. Id.

Defendant was convicted of second degree murder, which 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 inflict great bodily harm. La. R.S. 14:30.1. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. State v. Martinez, 09-740 (La.App. 5 Cir. 3/23/10), 38 So.3d 926, 932. Specific intent, as a state of mind, need not be proven as fact, but may be inferred from the circumstances and the acts of the accused. Id.; State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 849-50, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118 (citation omitted).

Principals are defined as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly [incounsel or procure another to commit the crime.” State v. Massey, 11-357 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, 463, wiit denied sub nom., State ex rel. Massey v. State, 12-0991 (La.9/21/12), 98 So.3d 332 (citing La. R.S. 14:24). Mere presence at the scene of the crime does not make one a principal to the crime. Id. Only those persons who “knowingly participate in the planning or execution of a crime” are principals to that crime. Id. A principal may be connected to only those crimes for which he has the requisite mental state. Id. at 464.

The trial court was presented with two different versions of events: Ms. Cryer’s version, which identified defendant as the shooter; and defendant’s version, which alleges that Troy, not him, was the shooter, and further implicates the whole Cryer family as accomplices. In all other respects, the versions are not significantly in conflict. In both versions, defendant concocts the scheme to rob Rob with, at the very least, Troy Cryer’s participation. Defendant gets his gun to intimidate Green, orders Green to the floor, orders Green to tell him Rob’s number, and attempts to tie Green up when he resists. In his version, defendant orders Troy to beat Green on the head with the gun butt in order to render him unconscious, while in Ms. Cryer’s version, defendant beats Green on the head himself.

At this point, Green is shot, either by defendant or Troy. Ms. Cryer testified that she witnessed the shooting; defendant alleges that she left the apartment before the shooting. Because Ms. Cryer left the apartment at this point, defendant alone described what happened next. Defendant and Troy planned to clean the apartment of evidence of the crime and dispose of the body. After using defendant’s vehicle to dump the body, defendant admitted it was he who had the idea of disfiguring Green’s face, and in fact started to do so with the iron bar from his vehicle. Finally, upon seeing the police approach the apartment while they were insideJjjcleaning up, defendant fled the scene, and ultimately the state, in order to elude responsibility.

We find no error or abuse of discretion in the trial court’s denials of the post-verdict motion for acquittal and the motion for a new trial. A review of the record does not show under what theory of second degree murder the State prosecuted defendant. The record does not reflect which version the jury believed. Ms. Cryer, an eyewitness, testified that defendant shot the victim. Positive identification by only one witness is sufficient to support a conviction. State v. Williams, 08-272 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470. Even assuming arguendo that the jury accepted defendant’s version, the evidence of defendant’s guilt is overwhelming. Defendant produced the gun that was used to shoot Green, either ordered Troy to beat Green or did it himself, either shot Green or had Green in a stranglehold while Troy shot him, planned and participated in the attempt to cover up the crime, dumped Green’s body in a remote location, and tried to disfigure his corpse, all before fleeing the state to elude capture. Even under his version of events, defendant acted with specific intent to, at the very least, cause great bodily harm to Green at several different points during the incident. Further, Green was killed as part of a scheme to commit a robbery, which qualifies as an enumerated felony as per La. R.S. 14:30.1(2).

| ^Defendant’s brief acknowledges the law of principals, but disregards it after arguing that the evidence of specific intent was insufficient because defendant did not act alone. This position has no merit. In State v. Page, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 449-450, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299, this Court found sufficient evidence of second degree murder under the law of principals, where the defendant, who maintained that he was not the shooter, remained with his co-defendant at the scene, did nothing to prevent the crime, fled the scene rather than coming to the victim’s aid, and did not attempt to report the shooting.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO

Excessive ness of sentence

In his second assignment of error, defendant argues that his life sentence for second degree murder and his fifteen-year sentence for possession of a firearm by a convicted felon are excessive because they were imposed consecutively.

This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hunter, 10-552 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272. This Court has also held that when the consecutive nature of sentences is not specifically raised in the trial court, the issue is not included in the bare constitutional excessiveness review, and the defendant is precluded from raising the issue on appeal. State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411.

| isln the instant case, defendant filed a motion to reconsider sentence wherein he asserted that his sentences were unconstitutionally excessive, but did not specifically object to the consecutive nature of the sentences. Accordingly, he is not entitled to a review of the consecutive nature of his sentences on appeal, but is limited to a constitutional excessiveness inquiry. Id. Defendant did not, however, argue in brief that the individual sentences themselves were excessive other than they should not have been imposed consecutively because they arose from one course of conduct and defendant was not the worst of offenders. The record shows, however, that defendant is a violent recidivist, having both past and subsequent convictions for crimes of violence.

This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed 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). We find no errors patent requiring correction.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED

      . At trial, Ms. Cryer surmised that defendant wanted Rob's telephone number from Green in order to facilitate robbing him.

      . Defendant claimed that both Charlie and Troy used cocaine and marijuana supplied by Rob. He claimed to have seen Ms. Cryer use marijuana but not any other drugs.

      . The medical examiner testified that Green was still alive on the canal bank when defendant hit him in the face with the iron bar.

      . In defendant’s motions for post-verdict judgment of acquittal and a new trial, he references both of his convictions. However, on appeal, he argues only that the evidence was insufficient to support his second degree murder conviction. Accordingly, we will only address the sufficiency of the evidence regarding the murder conviction.

      . The enumerated felonies are aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, and terrorism.

      .Opening and closing statements, as well as jury instructions, were not transcribed. However, courts have held that a lack of transcripts of the opening statements, closing arguments, and jury instructions did not render the trial record inadequate for full appellate review of defendant’s conviction, in light of fact that missing portions of record did not concern evidentiary matters, and in light of minute entries indicating defendant did not make any objections during missing portions of trial. State v. Hawkins, 90-1235 (La.App. 4 Cir. 9/15/95), 667 So.2d 1070, rehearing denied, writ granted, 96-0766 (La.9/13/96), 679 So.2d 97, affirmed, 96-0766 (La.1/14/97), 688 So.2d 473; La.C.Cr.P. art. 843.

      . On cross-examination, Ms. Cryer denied that she would lie to protect or help her brother, who was also charged in this crime.

      . Defendant’s flight and attempt to, avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

      . Defendant did not argue that each sentence separately was excessive.

      . Defendant had previous convictions of simple escape, two counts of armed robbery, and second degree kidnapping, as noted in the record. Additionally, at the time of trial, defendant was incarcerated on an aggravated assault conviction in Texas. La. R.S. 14:2(B)(7), (16), and (21) define aggravated assault, second degree kidnapping, and armed robbery, respectively, as crimes of violence.