author: EZELL, Judge.

text:
    STATE Of Louisiana v. David Thomas SCHWARZ.
    No. 13-254.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    See also 123 So.3d 1256, 2013 WL 5539305.
    John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee: State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: David Thomas Schwarz.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

l/The Defendant, David Thomas Schwarz, was charged by indictment filed on March 17, 2011, with one count of aggravated rape, a violation of La.R.S. 14:42, and one count of indecent behavior with a juvenile, a violation of La.R.S. 14:81. The Defendant entered a plea of not guilty on March 23, 2011. On May 7, 2012, the charge of indecent behavior with a juvenile was amended to cruelty to a juvenile, a violation of La.R.S. 14:93, and the Defendant then entered a plea to that charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The remaining charge of aggravated rape was nolle prosequied. On July 30, 2012, the Defendant was sentenced to three years at hard labor, to run concurrently to the sentence imposed in trial court docket number 11028-11. A motion to reconsider sentence was filed on September 4, 2012, and was denied on September 17, 2012. A motion for appeal was filed on October 16, 2012, and was subsequently granted.

The Defendant is before this court asserting he received ineffective assistance of counsel.

FACTS

Between January 1, 2010, and January 25, 2011, the Defendant touched the “private parts” of the victim, who was eight to nine years old.

JgERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER TWO

At the sentencing hearing, defense counsel noted the plea occurred on May 7, 2012, and, on June 25, 2012, the United States Supreme Court issued its opinion Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Defense counsel told the trial court that in Miller the Supreme Court held that “mandatory life on someone who is 17 at the time of the offense violates the eighth amendment.” Defense counsel maintained the allegations in the case at bar were false and informed the trial court that the Defendant entered the plea agreement in the case at bar so that the charge of aggravated rape in trial court docket number 11028-11 would be reduced to forcible rape. Defense counsel alleged that had he had the benefit of the Miller decision at the time of the plea, the Defendant “could’ve got[ten] forcible rape without taking anything” in the case at bar. The trial court proceeded with sentencing but informed defense counsel that he had thirty days to file a motion to withdraw the Defendant’s guilty plea.

Based on the colloquy set forth above, the Defendant contends that defense counsel should have filed a motion to withdraw his guilty plea, and his failure to do so constituted ineffective assistance of counsel.

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701, this court stated:

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

The record is sufficient in this case to consider the issue of whether defense counsel was ineffective for failing to file a motion to withdraw the Defendant’s guilty plea. “According to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant seeking to establish ineffective assistance of counsel must prove that 1) the defense attorney’s performance was deficient and that 2) the deficiency prejudiced the outcome of the trial.” State v. Walton, 11-1085, p. 6 (La.App. 3 Cir. 4/4/12), 87 So.3d 328, 332, writ denied, 12-875 (La.10/26/12), 99 So.3d 639.

In Miller, 132 S.Ct. 2455, the Supreme Court held that mandatory sentences of life without benefit of parole “for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’ ” Id. at 2460. The Supreme Court explained “[s]uch mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Id. at 2467. The Supreme Court further stated: “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469 (footnote omitted).

Miller deals with juvenile offenders charged with or convicted of committing homicide offenses. Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 [4(2010), in which the Supreme Court held that the Eighth Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted of a non-homicide offense, should have been the case cited by defense counsel. However, we find that neither case was applicable to the charge of aggravated rape in trial court docket number 11028-11.

The indictment in the case at bar and the “WAIVER OF CONSTITUTIONAL RIGHTS AND PLEA OF GUILTY” form both list the Defendant’s date of birth as December 10, 1992. Further, the factual basis set forth at the time the Defendant entered his plea to the amended charge of forcible rape in trial court docket number 11028-11 indicated that the offense occurred on January 25, 2011. Based on this information, the Defendant was eighteen years old at the time he committed the offenses charged in trial court docket number 11028-11. Thus, he was not a juvenile at that time and could have been sentenced to life imprisonment pursuant to La.R.S. 14:42. Accordingly, the filing of a motion to withdraw guilty plea on the basis set forth by defense counsel at the sentencing hearing and argued by appellate counsel in brief to this court would not have been proper in the case at bar.

For the reasons asserted herein, this assignment of error lacks merit.

DISPOSITION

The Defendant’s conviction for cruelty to a juvenile is affirmed.

AFFIRMED.

      . The appeal in trial court docket number 11028-11 is before this court in appellate docket number 13-255.

      . This matter was consolidated for briefing purposes with appellate docket number 13-255. Assignment of error number one will be addressed in that docket number, as it pertains solely to the offense committed therein.


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Latrell J. COLEMAN.
    No. 2012-KA-1408.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Donald G. Cassels, III, Assistant District Attorney, Matthew R. Rayne, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

1 TLatrell Coleman appeals his conviction of attempted second degree murder. After review of the record, we have ascertained two errors patent. For the reasons that follow, we affirm the conviction and sentence of Mr. Coleman. We remand for the limited purpose of correcting the minute entry.

STATEMENT OF THE CASE

Latrell Coleman was charged by bill of information with one count of attempted second degree murder, a violation of Louisiana Revised Statute 14:(27)30.1. Following a jury trial, Mr. Coleman was found guilty as charged. The trial court sentenced him to forty years at hard labor, to be served without benefit of parole, probation, or suspension of sentence. The State then filed a multiple offender bill of information pursuant to Louisiana Revised Statute 15:529.1, charging him as a second felony offender. Mr. Coleman waived a multiple bill hearing and pled guilty to being a second felony offender. The trial court vacated his original sentence and resentenced him to fifty-five years at hard labor, to be served without benefit of parole, probation, or suspension of sentence.

Mr. Coleman filed this appeal raising five assignments of error that the evidence was insufficient to support his conviction; that the trial court erred in ^denying his motion for a mistrial; that the trial court erred in denying his motion for a new trial; that his due process rights were violated at trial; and that the trial court erred by failing to properly authenticate a letter admitted as evidence at trial. This appeal follows.

FACTS

Late in the evening on October 31, 2010, two groups of people were in the French Quarter celebrating a New Orleans Saints football team winning a game. One group included the victim, and the other group included the defendant. At approximately 1:00 a.m. on November 1, a fight erupted in the 100 block of Bourbon Street between members of the two groups. All of the witnesses testified that the fight began between the victim, Christopher Schexnay-der (“Chris”) , and Robert Jenkins (“Robert”). The victim’s older brother, Lynell Schexnayder (“Lynell”), and his friend, Benny Swanigan (“Benny”), also became involved in the fight. Shots were fired leaving Chris with three gunshot wounds lying unconscious on the ground. Days later, Mr. Coleman was arrested in Georgia. He executed a waiver of extradition on November 6, 2010 and was returned to Louisiana where he was charged with the attempted second degree murder of Chris.

Following the shooting, N.O.P.D. officers arrived on the scene and detained Lynell, Benny, Robert, and Angelique Kel-son (“Angelique”). Officers also learned of four bystanders who may have witnessed the shooting.

Detective Tindell Murdock was the investigator assigned to the case. At the scene, Detective Murdock observed a pool of blood on the ground and two spent |3.40 caliber Smith & Wesson shell casings. No weapons were found on the scene. Detective Murdock relocated to headquarters to obtain statements from the bystanders. He conducted a show-up identification of Robert to four bystanders. One of them identified Robert as the shooter; one said he might be; and two said he was not the shooter. No one was arrested that night for the shooting.

Lynell and Angelique both gave statements to the detective and testified at trial. They both testified that they, along with Chris and Benny, had attended a party to watch the Saints game. After the game, they went to Bourbon Street where they ran into Mr. Coleman and Robert. A fight broke out between Chris and Robert. During the fight, Robert slammed Chris into the ground. Lynell and Benny jumped into the fight to defend Chris. At some point, shots were fired and Chris lay on the ground unconscious.

The night of the incident Detective Mur-dock took a taped-recorded statement from Lynell. Lynell described the shooter as being 5'9" tall, a “red” or fair-skinned African American male, who wore dreadlocks with blond tips. Lynell identified the shooter as “Terell.” He testified that he knew “Terell” from their school days and that “Terell” lived in Harvey, Louisiana. Lynell described the fight and stated that out of the corner of his eye he saw the gun in “Terell’s” hand and when he looked back, he saw his “lil brother on the ground breathing for air.” Although he did not say it on tape, after Detective Murdock concluded the recording, Lynell verified to the detective that “Terell” and the defendant, Latrell Coleman, were the same person.

14At trial, although he denied being intimidated, Lynell stated that he was not sure who fired the gun. He acknowledged that Mr. Coleman’s family was in the courtroom and that he knew of the gang 3GM.

On the night of the shooting, Angelique also gave a statement to Detective Mur-dock narrating the events of the night. Her statement was consistent with Ly-nell’s statement. However, Angelique testified that before the fight began, she saw Mr. Coleman holding a gun. Angelique watched Mr. Coleman shoot the victim three times. Mr. Coleman stood about two feet from the victim and shot him as he lay on the ground. She also stated that the victim remained conscious until after the second shot. After the shooting, everyone ran, including Mr. Coleman. She identified Mr. Coleman by name as the shooter.

Detective Murdock compiled a six-person photographic lineup which he presented to both Lynell and Angelique. When he showed it to Lynell, Lynell began to cry, put the lineup down and did not identify anyone. Detective Murdock noted that the lineup contained a picture of Mr. Coleman. Angelique picked Mr. Coleman out from the photo lineup and testified that she was 100% certain of her identification.

On the basis of Angelique’s identification, Detective Murdock obtained an arrest warrant for Mr. Coleman and a warrant to search his residence located at 2305 East-mere Drive in Harvey. The search of Mr. Coleman’s room in the Eastmere residence produced a black gun case for a .40 caliber Smith & Wesson fifteen-shot gun and an empty box of Monarch .40 caliber bullets. There was no gun in the gun case, only a cleaning brush.

Initially, Detective Murdock was unable to interview the victim, Chris, as he was in a coma. About two weeks after the shooting, Detective Murdock | .^interviewed Chris in the hospital, and he identified Mr. Coleman as the man who shot him. Chris also selected Mr. Coleman from the six-person photo lineup Detective Murdock presented to him. Chris was unable to memorialize his identification of Mr. Coleman by signing the back of the lineup because the shooting left him partially paralyzed. However, Chris’ mother attested on the back of the lineup that Chris had identified Mr. Coleman as his assailant.

At trial, Chris’s testimony was consistent with the testimony of Lynell and Angelique about the events leading up to and including the fight. Chris testified that he noticed the defendant with friends, Robert and Jarell Jessee (“Jarell”) on Bourbon Street. At some point, a fight broke out. He and Robert began fighting. Chris fell, and Robert got up. Lynell and Benny then began to fight with Robert. Chris then witnessed Jarell hand Mr. Coleman a gun which Mr. Coleman used to shoot him three times as he lay on the ground. Chris identified Mr. Coleman as the man who shot him.

Mr. Coleman’s father, Giovanni Johnson (“Giovanni”), testified that his son told him that he was going to Bourbon Street on the night of October 31, 2010. He did not see him again until he was captured in Georgia. Giovanni identified several family members and friends seated in the courtroom. When questioned about a gang by the name of 3G, he stated that he had heard of them but did not know where they operated.

Jameelah Lewis (“Jameelah”) testified that she was familiar with Chris and Mr. Coleman. She knew Chris from the neighborhood and she knew Mr. Coleman from middle school. She was not on Bourbon Street at the time of the shooting. However, she testified that she received a letter from Mr. Coleman in January 2011 while he was incarcerated awaiting trial. Jameelah confirmed that her mother | (¡contacted Detective Murdock when she received this letter. Jameelah identified the letter, noting that it bore the defendant’s name, folder number, location and his address at the Orleans Parish jail. Jameelah read the letter in which Mr. Coleman asked her to supply the police with false information, i.e., that he was not the shooter.

Sgt. James Tyler, who worked in the Special Operations Division of the Orleans Parish Sheriffs Office, testified that as an inmate arrives at the Orleans Parish jail, he is given a folder number which follows him through the jail system. A folder number is unique to each inmate. Sgt. Tyler identified the letter to Jameelah as bearing Mr. Coleman’s name and folder number.

Mr. Coleman testified on his own behalf. He stated that he did not shoot the victim and did not know who did. He admitted that he was on Bourbon Street on the night of the shooting, but said he did not see the actual shooting. He claimed that he went to Georgia to escape the violence. Mr. Coleman explained that the gun box the police confiscated from his bedroom belonged to his mother. He stated that he found it in the garage of their residence; that it was empty when he found it; and that he used it to store hair clippers. He could not explain how the empty ammunition box got into his room. He verified that he wrote the letter identified by Jam-eelah, but said he did so because he was frightened and did not know what he was doing.

ERRORS PATENT

A review for errors patent on the face of the record reveals two.

First, the trial judge sentenced Mr. Coleman immediately after denying his motion for new trial. Louisiana Code of Criminal Procedure article 873 mandates a twenty-four hour delay before a sentence can be imposed after the denial of a 17motion for a new trial or a post-verdict judgment of acquittal absent a waiver of the delay. However, as per State v. Collins, 584 So.2d 356, 359 (La.App. 4th Cir.1991), the failure to observe the twenty-four-hour delay mandated by Louisiana Code of Criminal Procedure article 873 is harmless where, as in this case, the defendant does not complain of his sentence on appeal. See also State v. Riley, 2005-1311, p. 4 (La.App. 4 Cir. 9/20/06), 941 So.2d 618, 621; State v. Wheeler, 2004-0953, p. 9 (La.App. 4 Cir.3/9/05), 899 So.2d 84, 89.

Second, the minute entry of Mr. Coleman’s sentencing does not indicate that his sentence is to be served without benefit of parole, probation, or suspension of sentence as is required by Louisiana Revised Statute 14:27(D)(1)(a). However, the transcript does. When there is a discrepancy between a minute entry and the transcript, the transcript prevails. State v. Bridges, 2011-1666, p. 2 n. 2 (La.App. 4 Cir. 11/28/12), 104 So.3d 657, 659, citing State v. Lynch, 441 So.2d 732, 734 (La.1983).

Therefore, the case is remanded to the district court for correction of the minute entry to reflect that the sentence is to be served without benefit of parole, probation, or suspension of sentence.

ASSIGNMENTS OF ERROR

Mr. Coleman raises five assignments of error:

1. The evidence is insufficient to uphold his conviction.
2. The trial court erred in denying his motion for a mistrial.
3. The trial court erred in denying his motion for a new trial.
4. His due process rights were violated at trial.
5. The trial court erred by failing to properly authenticate a letter purportedly written by Mr. Coleman and introduced as evidence at trial.

| «SUFFICIENCY OF EVIDENCE

In this assignment of error, Mr. Coleman challenges the sufficiency of the evidence supporting his conviction. Mr. Coleman does not dispute that the victim was shot, but claims that the State produced insufficient evidence to prove his identity as the perpetrator.

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).

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in evaluating whether evidence is constitutionally sufficient to support a conviction, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Green, 588 So.2d 757, 758 (La.App. 4th Cir.1991). If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. Notably, an appellate court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable | ^probability of misidentification. State v. Weary, 2003-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311.

Mr. Coleman was convicted of attempted second degree murder. Second degree murder is defined, in pertinent part, as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1(A)(1). A person is guilty of an attempt to commit an offense if, having a specific intent to commit a crime, he does an act for the purpose of and tending directly toward the accomplishing of his object, and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A).

To obtain a conviction for attempted second degree murder the State must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R.S. 14:27; 14:30.1; State v. Bishop, 2001-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437; State ex rel. G.B., 2007-1577, p. 4 (La.App. 4 Cir. 5/14/08), 985 So.2d 828, 830. Attempted second degree murder requires proof of specific intent to kill. Bishop, 2001-2548 at p. 4, 835 So.2d at 437; State v. Johnson, 2008-1488, p. 10 (La.App. 4 Cir. 2/10/10), 33 So.3d 328, 334. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Bishop, 2001-2548 at p. 4, 835 So.2d at 437. Specific intent can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La.11/25/96), 684 So.2d 382, 390; State v. Sartain, 2008-0266, p. 27 (La.App. 4 Cir. 12/30/08), 2 So.3d 1132, 1148.

Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18.

_]_lflIn this case, Angelique testified that she was standing within five to ten feet of the victim at the time of the shooting. She unequivocally identified Mr. Coleman as the shooter. The victim also positively identified Mr. Coleman as the man who shot him. Finally, the State introduced the recording of a statement Lynell made on the evening of the shooting. While Lynell testified at trial that he did not know who shot Chris, he identified Mr. Coleman as the shooter in this statement.

The State also provided evidence of Mr. Coleman’s specific intent to kill the victim. Chillingly, the victim testified that as he lay helpless on the ground, Mr. Coleman stood over him, looked him in the eyes and shot him three times. The victim’s injuries have left him partially paralyzed and his cognitive skills are severely impaired.

In addition to the eyewitness identifications of Mr. Coleman as the shooter, circumstantial evidence lends further support to his guilt. Within hours of the shooting, the police recovered a .40 caliber Smith & Wesson gun case, an empty ammunition box and one .40 caliber bullet from Mr. Coleman’s bedroom. The shell casings gathered from the scene of the shooting were of the same caliber as the ammunition seized during the search of Mr. Coleman’s bedroom. During his testimony, Mr. Coleman admitted that he fled to Georgia after the incident on Bourbon Street. His father testified that after the night of October 31, 2010, he did not see his son again until the authorities returned him to New Orleans from Georgia. “Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which a jury may infer guilt.” State v. Davies, 350 So.2d 586, 588 (La.1977).

| ^Finally, the letter written to Jameelah by Mr. Coleman while he was incarcerated on this charge belies his claim of innocence. Though Mr. Coleman does not admit guilt in the letter, he instructs Jamee-lah how to provide him with a false alibi, which is as good as an admission of guilt. See State v. Graves, 301 So.2d 864, 866 (La.1974) (“... an attempt to fabricate evidence is receivable in a criminal prosecution as evidence of one’s guilt of the main facts charged, such fabrication being in the nature of an admission.”)

Accordingly, the record before us established the State proved Mr. Coleman’s identity as the shooter beyond a reasonable doubt. Moreover, the State established the statutory requisites to support a conviction for attempted second degree murder. This assignment has no merit.

MOTION FOR MISTRIAL

In this assignment or error, Mr. Coleman argues the trial court erred by denying his request for mistrial. This motion was based on a comment made by the trial judge during the voir dire of the first jury panel. As the first potential juror introduced herself and was about to state her address, the trial judge advised her: “You don’t have to tell us your address, just what part of town. Because some of these people might follow you, you know?” No contemporaneous objection was lodged by the defense. Nor did the defense request an admonition. The defense did not object to the judge’s remark until the end of the first day of trial, conceding: “[w]e did not object to it [the comment] at the time but I believe we have to.”

| i?This motion for a mistrial does not fall within the ambit of Louisiana Code of Criminal Procedure article 770 which contains grounds for mandatory mistrial. Therefore, we must look to the law regarding discretionary mistrials and admonitions as set forth in Louisiana Code of Criminal Procedure article 771. This article provides, in pertinent part, that upon request of the defense or the state an admonition must be given to the jury to disregard a remark or comment made by a judge during trial or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury. It also provides for a mistrial if an admonition is not sufficient to assure the defendant a fair trial.

Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. State v. Leonard, 2005-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. The mere possibility of prejudice is insufficient to warrant .a mistrial. Id. “Mistrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La.C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown.” State v. Castleberry, 98-1388, p. 22 (La.4/13/99), 758 So.2d 749, 768.

[ mAs defense counsel neither objected to the judge’s comment nor requested an admonition in a timely fashion, this issue has not been preserved for appellate review. Louisiana’s contemporaneous objection rule provides “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.C.Cr.P. art. 841(A); State v. Knott, 2005-2252, p. 2 (La.5/5/06), 928 So.2d 534, 535. The contemporaneous objection rule has two purposes: (1) to require counsel to call an error to the judge’s attention at a time when the judge may correct the error; and (2) to prevent defense counsel from “sitting on” an error and gambling unsuccessfully on the verdict, and later resorting to appeal on an error that might have been corrected at trial. Id., 2005-2252 at p. 2, 928 So.2d at 535.

Nevertheless, even assuming the issue had been preserved for appellate review, there was no error in the denial of the motion for mistrial.

To determine whether a mistrial was warranted under article 771, we must first determine whether the remark was prejudicial to the defendant and second whether the defense requested an admonition. La.C.Cr.P. art 771. We find that the remark was not prejudicial and that the defense did not request an admonition. The trial judge explained that the remark did not refer to anyone making a threat, just that: “Anybody might follow somebody home.” Nor did the comment infer or imply the judge’s opinion as to the defendant’s innocence or guilt, which if it did, would require reversal. See State v. Green, 231 La. 1058, 1064, 93 So.2d 657, 659 (1957). To constitute reversible error the effect of an improper comment must have influenced the jury or contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La.1983).

| ^Throughout the voir dire, both parties emphasized that the jury was to consider the evidence presented at trial and the law as they were instructed by the trial court. At the conclusion of the impaneling of the jury, all of the jurors chosen affirmed that they would remain unbiased and fair during the trial and in their decision-making process. The defense has failed to establish that the verdict in this case was influenced by the judge’s comment. Moreover, the defense did not request an admonition concerning the comment. The trial judge did not abuse his discretion in denying the motion for a mistrial. This assignment has no merit.

MOTION FOR NEW TRIAL

In his next assignment or error, Mr. Coleman argues the trial court erred in denying his motion for new trial. Specifically, he claims the trial court erred by allowing the State to suggest that Mr. Coleman was part of the 3G gang. Mr. Coleman contends that the reference to gang activity was irrelevant, prejudicial, and a violation of Louisiana Code of Evidence article 404(B), which prohibits the use of evidence of other crimes or bad acts to prove bad character of the defendant and to show he acted in conformity therewith. Mr. Coleman also asserts that the trial court erred when it allowed the State to call his father as a witness allegedly for the sole purpose of accusing the father of threatening witnesses.

Louisiana Code of Criminal Procedure article 851(2) provides that the 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. The court, on motion of the defendant, shall grant a new trial whenever the court’s ruling on an objection made during the proceedings shows prejudicial error.

11sThe decision on a motion for new trial rests within the sound discretion of the trial judge, and its ruling will not be disturbed on appeal absent a clear showing of abuse. State v. Quimby, 419 So.2d 951, 960 (La.1982). The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. As a general rule, a motion for new trial will be denied unless injustice has been done. State v. Cox, 2010-2072 (La.11/19/10), 48 So.3d 275.

We first address Mr. Coleman’s assertion that the trial court erred when it allowed the State to call his father as a witness. Mr. Coleman asserts that the only basis for calling his father was to accuse his father of threatening witnesses. We disagree.

Mr. Coleman’s father’s testimony was relevant and probative. His father testified that his son was living with him on the night of the shooting, that his son told him he was going to Bourbon Street that night, and that his son did not return home after the shooting. His father’s testimony also confirmed that the defendant fled New Orleans after the shooting. This testimony was clearly relevant to the proceedings.

Mr. Coleman’s second basis for a mistrial was the State’s continuous references to gang activity on the part of Mr. Coleman when there was no evidence to support those inferences in the record.

During trial, the State asked Mr. Coleman’s father and the victim’s brother, Ly-nell, if they were familiar with the “3G” or “3 GM” gang. Each responded that they were familiar with the gang but denied that either they or the defendant were involved with it. The gun box found in Mr. Coleman’s bedroom when his home | lfiwas searched by police contained the letters “3G” on it. This box was introduced into evidence.

During closing argument, the State attempted to explain Lynell’s change in his testimony at trial from the recorded statement he gave the police the night of the shooting by insinuating it was due to gang intimidation. Although in his recorded statement Lynell said he was positive he saw Mr. Coleman shoot the victim, at trial, he waivered, testifying that he was not certain he saw Mr. Coleman shoot the victim. In closing statement, the prosecutor reminded the jury of the empty .40 caliber Smith & Wesson gun box bearing the letters “3G” and the .40 caliber bullet, both of which were seized during the search of Mr. Coleman’s bedroom. The defense lodged an objection which was overruled, and then asked for a mistrial stating that the reference was “inappropriate.” This was also overruled. The prosecutor went on to argue that Lynell identified Mr. Coleman as the shooter “... before he realized that half of 3G would be in the audience.” Again, the defense moved for a mistrial which was again overruled. At this point, the judge admonished the State “Enough references to BG, sir.”

The State’s reference to “half of 3G” being in the audience without any evidence that the members of the audience were involved in the gang was, no doubt, improper. However, we find that the court properly admonished the State and any error was harmless.

The erroneous admission of evidence is subject to harmless error analysis. State v. Hugle, 2011-1121, p. 19 (La.App. 4 Cir. 11/7/12), 104 So.3d 598, 613, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). An error is harmless if it can be said beyond a reasonable doubt that the li7guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166,172.

The evidence of the defendant’s guilt is overwhelming. He was identified as the shooter by the victim and two eyewitnesses. The defendant fled the state immediately after the shooting and attempted to have a friend fabricate an alibi for him. The evidence found in the defendant’s home links him to the crime. In light of the evidence, the verdict was not the result of references to gang activity. This assignment has no merit.

DUE PROCESS

In this assignment, Mr. Coleman argues that his due process rights were violated in two respects: (1) by the judge posing questions to witnesses during the trial and (2) by restricting the cross-examination of Detective Murdock.

Questioning by the judge

Louisiana Code of Criminal Procedure article 772 provides, “[t]he judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

This no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421, 430 (La.1974). Thus, if the effect of a comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. See State v. Green, 231 La. 1058, 93 So.2d 657 (1957). To constitute reversible error, however, the effect |1sof the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La.1983). A trial judge may ask clarifying questions but must be cautious in questioning a witness, so as not to imply comment on the facts. La.C.Cr.P. art. 772; State v. Burrell, 561 So.2d 692, 702 (La.1990).

The three instances which Mr. Coleman cites as impermissible comment on the evidence occurred during direct and cross-examination of Detective Murdock. As the following examination shows, the judge’s questions were for purposes of clarification, and none of the questions expressed or implied the judge’s opinion as to Mr. Coleman’s innocence or guilt.

The first instance Mr. Coleman cites occurred during Detective Murdock’s direct testimony relative to Lynell’s identification of Mr. Coleman from a photo lineup:

Witness: When [Schexnayder] turned the lineup over he viewed it ... he immediately became upset ... He didn’t even attempt to make an identification ....
Prosecutor: ... at this time we would offer, file and introduce State’s Exhibit 4. We’d like to publish this to the jury now, if possible, just this one lineup.
Judge: Was there ever an identification made?
Witness: Yes, sir.
Judge: Go through that part first because I haven’t heard that.

The prosecutor got ahead of himself in the order of presentation of the evidence, in that he was seeking to offer an exhibit into evidence and publish it to the jury which prompted the judge to seek clarification for the jury as to whether Lynell had identified Mr. Coleman as the shooter from the lineup. The judge’s question was one prompting the State to lay the proper foundation. While a judge |19should be cautious in this regard, we cannot say that the question was a comment on the facts. It clearly did not express or imply the judge’s opinion as to innocence or guilt. The question was not an impermissible comment on the evidence.

The second instance complained of by the defense also occurred during Detective Murdock’s testimony, this time as to the victim’s identification of Mr. Coleman from a photo lineup. This lineup was conducted while the victim was hospitalized. Due to his injury-induced motor and speech impediments, the victim’s mother was present to give a written attestation to the victim’s identification of Mr. Coleman from the photo lineup.

Prosecutor: And Detective, when he pointed to Latrell Coleman, did he appear certain in his identification? Witness: Absolutely.
Prosecutor: Did he appear to have any doubt that the shooter was Latrell Coleman?
Witness: No.
Prosecutor: May I approach?
Judge: You may. How did he identify Mr. Coleman?
Witness: He pointed to him.

Although defense counsel objected to the judge asking a question, this clearly was a question of clarification by the judge due to the victim’s physical limitations.

The third instance of complaint stemmed from defense counsel’s attempt to establish that Lynell’s recorded statement taken by Detective Murdock did not contain a clarification that the person Ly-nell identified was in fact Latrell Coleman.

Defense Counsel: And can you review this document [State’s Exhibit 6] and show me anywhere in that transcription that you did, where it says or the question is Terell Latrell Coleman, where you cleared this up with Mr. Lynell Schexnayder?
^Witness: That was asked after the statement was concluded. Latrell Coleman had already been named as a suspect. This statement was taken just before the lineup was shown to him. Judge: So it’s not in there, correct? Witness: No, sir.

As the foregoing exchange shows, the judge’s question confirmed the exact point the defense wanted to emphasize to the jury.

Later, outside the presence of the jury in response to the defense’s objection to the court questioning witnesses, the judge offered the State and the defense his reason for asking the questions:

... the ... questions [the court] asked it simply did not understand the particular use of pronounce (sic) which is always a problem in [this courtroom]. This, that, him, they. And I think that was the context in which the court asked the question.

In any event, none of the judge’s questions complained of by the defense amounted to impermissible comments on the evidence. Nor did the questions express the judge’s opinion as to the guilt or innocence of the defendant. This portion of the assignment of error has no merit.

Limitation of Cross Examination of Detective Murdock

Mr. Coleman claims the trial court erred by unjustifiably limiting its cross-examination of Detective Murdock as to the identification of another person as the shooter. This issue has no merit. The defense was well aware, prior to trial, that the only way it could establish that another person had been identified as the shooter was to call the witnesses who made the identification. The defense was further aware that to elicit this testimony from Officer Murdock would result in impermissible hearsay testimony.

121 At a motions hearing prior to trial, Detective Murdock testified that Robert, who participated in the fight prior to the shooting, was identified during a show-up identification by one person as the shooter and by another as possibly the shooter. Mr. Coleman claims his due process rights to a fair trial and to put on a defense were violated by his inability to present this evidence to the jury. He claims that had the jury been aware of Robert’s identification as the shooter by persons having no connection to the victim or the defendant, the verdict would have been different.

Prior to trial, the State asked the court to restrict the defense’s questions regarding this show-up identification. The following colloquy took place before the court whereby the State and the defense agreed that neither party could elicit from Detective Murdock any hearsay statements by any witnesses regarding this show-up identification:

Prosecutor: Judge, the only motion we have was discussed with [defense counsel] while we were here last week. During the course of that investigation, the detective met with four laypersons who were on the street at the time of the shooting, conducted a show-up identification procedure with those four witnesses regarding a person by the name of Robert Jenkins. We ask that unless the defense intends to call any of those four witnesses that the specific contents of what each of those four witnesses said deemed obviously hearsay and not admissible.
Defense Counsel: We understand the rules of evidence and we know what hearsay is. However, we believe that the officer can testify that they did have a suspect that he conducted a show-up with, we obviously can’t elicit anything that these individuals told the detective, but he can say what he did.
Judge: I think all three of us hopefully agree on that. Prosecutor: I agree.
Judge: I agree and you agree, so that’s done.
Prosecutor: Questions about was a show-up conducted would not be contents of the show-up.
Judge: Agreed

|aaAt trial, defense counsel was allowed to question Detective Murdock about the fact that a show-up identification of Robert was conducted with four witnesses at the police station immediately following the shooting. The State did not object to that line of questioning. However, when the defense asked whether Robert was identified by one of the witnesses as the shooter, the State objected and the court properly sustained the objection as it called for hearsay. See, La. C.E. art. 801(C).

The assignment is without merit.

AUTHENTICATION OF LETTER

In his final assignment of error, Mr. Coleman argues he was prejudiced by the trial court’s admission of unauthenticated evidence. The evidence Mr. Coleman complains of is a jailhouse letter written to Jameelah requesting that she and others fabricate an alibi for him.

Authentication of evidence is a condition precedent to admissibility; an exhibit that is not authenticated does not constitute competent evidence. See La. C.E. art. 901. “Authentication” is a process whereby something is shown to be what it purports to be. Malloy v. Vanwinkle, 94-2060 (La.App. 4 Cir. 9/28/95), 662 So.2d 96, 100. Louisiana Code of Evidence article 901(B) includes a nonexclusive list of methods that may be utilized to authenticate evidence, including testimony of a witness with knowledge; non-expert opinion as to the genuineness of handwriting based on familiarity; and comparison with specimens that have been authenticated.

In this ease, the testimony of Jam-eelah and Sgt. James Tyler authenticated the “alibi” letter. Jameelah was shown the letter and identified it as being the one she received from Mr. Coleman. She identified the return address on the letter as 12,-jbeing “Latrell Colemen 2274647, OPP B1C2 3000 Perdido Street, New Orleans, La. 70119.”

Sgt. Tyler of the Orleans Parish Sheriff Office testified concerning the requirements for outgoing inmate mail. In addition to his name in the return address, an inmate must include his unique folder number, his location in OPP by tier and cell number, and the Orleans Parish Prison address of 3000 Perdido Street. Sgt. Tyler testified that he researched the defendant’s location history and folder number while he was incarcerated and verified that that the information he retrieved was the same as that contained in the return address of the letter addressed to Jameelah.

Additionally, we note that the content of the letter further supported that it was written by Mr. Coleman. The letter contained information-names of witnesses at the scene, specifics of the fight and shooting-that only a person who had been present at the scene would have known.

Considering the foregoing, the trial court did not err by finding that the “alibi” letter was properly authenticated. This assignment has no merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Mr. Coleman. However, we remand the case to the district court with instructions to correct the minute entry to comply with the transcript and reflect that the sentence is to be served without benefit of parole, probation, or suspension of sentence.

CONVICTION AND SENTENCE AFFIRMED; REMANDED TO CORRECT MINUTE ENTRY.

      . The bill of information spells the victim’s name with a “K," but all briefing in the record spell it with a "C."

      . Benny did not give a statement to the police nor did he testify at trial.

      . Louisiana Code of Criminal Procedure article 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . The casings found at the shooting scene were from .40 caliber bullets.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Myra KELLY.
    No. 2013-KA-0715.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET.
   ROLAND L. BELSOME, Judge.

I,The State is challenging the trial court’s grant of the Defendant’s motion to quash the bill of information.

The record provides that the Defendant, Myra Kelly, was arrested in July 7, 2004 and charged with access device fraud. On July 19, 2004, the Defendant was released from custody on her own recognizance. On the personal recognizance bond, she listed her address as 1526 Governor Nie-holls Street. The bond did not fix a date for the Defendant to appear in court.

On December 8, 2004, the Defendant was charged by bill of information with one count of bank fraud in violation of La. R.S. 14:71.1. Subsequently, arraignment was set for January 18, 2005, but the Defendant failed to appear for her arraignment. Upon the request of the State, the trial court rendered judgment of bond forfeiture and issued an alias capias for her arrest. On March, 11, 2005, the clerk of court mailed notice of bond forfeiture by certified mail to the Governor Nicholls address that the Defendant listed on the bond.

|?Eight years later, on March 12, 2013, the Defendant was arrested pursuant to the alias capias. She appeared for arraignment on April 3, 2013 and entered into a plea of not guilty. The Defendant was released on a recognizance bond on April 10, 2012, and on April 12, 2013, she filed a motion to quash the bill of information, alleging that the time period for which the State to commence trial had expired and that that her right to a speedy trial had been violated. The trial court granted the Defendant’s motion to quash on April 17, 2013. The State objected to the trial court’s ruling and filed a motion for appeal the same date.

STATEMENT OF FACT

The facts underlying the instant offense are not relevant to the issue on appeal. However, the bill of information provides that from March 17, 2004 through March 25, 2004, the Defendant “knowingly executed a scheme to defraud Whitney National Bank of monies, funds, credits, assets, securities or other properties by means of false or fraudulent pretenses, practices, transactions, representations, or promises.”

DISCUSSION

A trial court’s ruling on a motion to quash is a discretionary one, which should not be disturbed absent a clear abuse of discretion. State v. Sorden, 2009-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Kitchens, 2009-0834, 2009-0835, p. 4 (La.App. 4 Cir. 3/24/10), 35 So.3d 404, 406-07; State v. Ramirez, 2007-0652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207; State v. Love, 2000-3347, pp. 9-10 (La.5/23/07), 847 So.2d 1198, 1206 (“[b]e-cause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to preverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion”).

The State contends that the trial court erred in granting the Defendant’s motion to quash on the grounds that the case had prescribed pursuant to La.C.Cr.P. art. 578. Specifically, the State argues that the two-year period to bring the defendant to trial was interrupted when she failed to appear in court after receiving actual notice of her arraignment and bond forfeiture.

La.C.Cr.P. art. 578 mandates the time limits on the commencement of trials depending upon the classification of the offense charged. It provides:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
B. The offense charged shall determine the applicable limitation. [Emphasis added].

Bank fraud is punishable by imprisonment with or without hard labor for not more than ten years; it is also a non-capital felony. La. R.S. 14:71.1; La. C.Cr.P. art. 933(3). Thus, as a general rule, trial for the instant offense must have commenced within two years of the institution of prosecution. La.C.Cr.P. art. 578(A)(2). Because the prosecution was instituted against the Defendant on |4Pecember 8, 2004, she should have been brought to trial no later than December 8, 2006.

Once it is established that the State has failed to commence trial within the time periods specified by La. C.Cr.P. art. 578, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205 (per curiam); State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032; State v. Bell, 2002-2349, p. 9 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, 434; State v. Franklin, 2010-0792, p. 4 (La.App. 4 Cir. 4/6/11), 62 So.3d 817, 819.

La.C.Cr.P. art. 579 governs the interruption of time limitations for commencing trial, and provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. [Emphasis added].

The State argues that Defendant’s failure to appear in court after receiving actual notice of her arraignment and bond forfeiture interrupted the two year time period for the prosecution to commence trial. The State concedes that the record |fidoes not contain documentation that “conclusively proves” that the Defendant received notice for the January 18, 2013 arraignment. Nevertheless, as proof of notice, the State relies on the January 18, 2013 minute entry, which reflects that the State introduced evidence of a subpoena to the Defendant to support its motion for bond forfeiture, and the certified mail receipt/clerk affidavit, which shows that notice of bond forfeiture was sent to the Governor Nicholls address. The State argues that because judgments of bond forfeiture enjoy a presumption that the evidence upon which they are based is sufficient, this presumption proves that the Defendant received actual notice of the arraignment. See, La. R.S. 15:423 (providing a legal presumption as to the regularity of judicial proceedings).

The State cites State v. Green, 2011-0094 (La.App. 4 Cir. 8/31/11), 72 So.3d 949, to support its argument. In Green, this Court held a minute entry evidencing that a defendant had appeared in open court and received notice of a rescheduled hearing date was sufficient proof of actual notice and thus found that the defendant’s subsequent absence from court after receiving notice interrupted prescription. Green, 2011-0094, p. 5, 72 So.3d at 952. However, as noted by the Defendant in her brief, Green is distinguishable because in the instant case, the minute entry does not show the Defendant was present or received notice in open court. The minute entry of January 18, 2005 provides: that the Defendant failed to appear for the arraignment; that the State moved for bond forfeiture and introduced the bond and “subpoena to Defendant” into evidence; and that the trial court granted the bond forfeiture and issued a capias for her arrest. Although the entry indicates that a subpoena was issued to the Defendant, it does not establish that she | ¿was actually served with a notice of the arraignment date. Thus, unlike Green, there is nothing in the record that proves that the Defendant actually received notice of the subpoena. As such, the State’s reliance on Green is misplaced.

Moreover, this Court in State v. Franklin, 2010-0792 (La.App. 4 Cir. 4/6/11), 62 So.3d 817, found that a minute entry reflecting that a subpoena to the defendant was offered into evidence and a capias was issued was not proof that the defendant received actual notice of a pre-trial hearing. As in the present case, the prosecution in Franklin claimed that the minute entry constitutes sufficient proof of notice to interrupt the time limitations established by La. C.Cr.P. art. 578 based on the presumption of regularity of proceedings and judgments of bond forfeiture. The Franklin Court disagreed, reasoning:

In State v. McCord, 98-2924 (La.App. 4 Cir. 2/3/99), 727 So.2d 1262, the State argued that the defendant’s failure to appear for his arraignment provided a sufficient interruption of the time limit to commence trial. Similar to this case, the trial court had issued a capias for the defendant’s arrest when he failed to appear for his arraignment, and the State relied upon the issuance of the capias to show an interruption in the time limit. The trial court accepted the State’s argument and refused to quash the bill. In a writ of review, this Court reversed the trial court’s decision, noting that although the State argued that the defendant did not appear for arraignment in September 1990, it presented no evidence to show that the defendant was notified of this arraignment date. La. C.Cr.P. art. 579 requires that the State show proof of actual notice to appear. Here, the State presented no such proof. McCord, p. 3, 727 So.2d at 1264.
|7In the case at hand, the only evidence of any notice to the defendant is the August 2nd minute entry reflecting that a subpoena to defendant was filed into evidence at the bond forfeiture hearing. However, the record does not contain any subpoenas or certified mail return receipts which would indicate that the defendant actually received notice of the scheduled pretrial hearing on August 2, 2006, the date the court ordered the defendant’s recognizance bond forfeited. Also, at the motion to quash hearing, the State made no attempt to delay a ruling on the motion so that it might locate the missing subpoena. In light of the total absence in the record of any evidence that the defendant received the subpoena noted in the minute entry of August 2, 2006, the State failed to meet its burden of showing an interruption of the prescriptive period. Thus, the trial court did not commit error when it quashed the bill of information. [Emphasis added].

Franklin, 2010-0792, pp. 4-5, 62 So.3d 817, 819-820.

Likewise, in the present case, the record does not contain documentation showing that the Defendant received the subpoena referenced in the minute entry, and thus the State has not established proof that she had “actual notice” of the arraignment date. Accordingly, the State did not meet its burden of establishing that an interruption occurred that would toll the two-year limitation to bring the Defendant to trial.

|RThe State also attempts to establish an interruption by the notice of bond forfeiture sent by the clerk of court by certified mail on March 11, 2005. As noted earlier, the notice was mailed to the Governor Nicholls address the Defendant listed in the bond. However, the certified mail receipt upon which the State relies |3only shows that it was mailed, not that the Defendant actually received the notice. See, State v. Hassan, unpub., 2005-0135 (La.App. 4 Cir. 5/11/05), 902 So.2d 573 (finding that receipt of certified mail showing that notice of bond forfeiture was sent to the defendant’s address on his bond that corresponded to the affidavit signed by the clerk, but did not indicate that the mail was ever received, was insufficient to prove the defendant received actual notice and thus affirmed the trial court’s grant of a motion to quash). Moreover, as argued by the Defendant, the notice of bond forfeiture does not require an appearance, nor does it notify the Defendant of an upcoming hearing such that it would fall under La. C.Cr.P. art. 579(A)(3). Therefore, as in Franklin, the State did not meet its burden of showing that Defendant’s failure to appear at a proceeding “pursuant to actual notice, proof of which appears in the record” interrupted the two-year limitation to bring Defendant to trial. See also, State v. Dillon, 2011-0188 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 476 (finding that leaving a notice of arraignment at a defendant’s door did not constitute proper service for purposes of interrupting prescription and reversing the trial court’s denial of a motion to quash on those grounds); State v. Gibson, 2007-0530, p. 11, fn. 1 (La.App. 4 Cir. 10/24/07), 971 So.2d 389, 395 (noting in dictum that “the record [did] not contain evidence that [the defendant] received the notice that was mailed to him advising him of the hearing date” and thus “there [was] no proof in the record that [the defendant] received actual notice of that hearing as required by La.C.Cr.P. art. 579(A)(3)”). As such, the trial court did not abuse its discretion in granting the motion to quash based on prescription.

The State also argues that the trial court erred in granting the Defendant’s motion to quash on the grounds that her constitutional right to a speedy trial had been violated because the delay in bringing the Defendant to trial was solely 110attributable to the Defendant herself. Given our finding that the district court did not err in granting the motion to quash on statutory grounds, we find it unnecessary to address this assignment of error.

Accordingly, the trial court’s ruling granting the defendant’s motion to quash is affirmed.

AFFIRMED.

      . The docket master provides that the arraignment was originally set for December 27, 2004. The minute entry of December 27, 2004 states that the Defendant did not appear for the "status hearing” and reset the arraignment of January 18, 2005. It also provides an instruction to "send notice" to the Defendant and the surety.

      . This Court in State v. Hall, No. 2013-0453, (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 38-39, recently noted that although generally a trial court’s ruling on a motion to quash will not be reversed absent an abuse of discretion; when the motion to quash involves solely a legal issue the trial court's decision is subject to a de novo standard of review. Here, however, because Defendant’s motion to quash is based on prescription and involves some factual determinations, this Court applies an abuse of discretion standard of review. See, State v. Dillon, 2011-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475 (trial court rulings on motions to quash on grounds of prescription are reviewed under an abuse of discretion standard); State v. Brown, 2005-1146, p. 5 (La.App. 4 Cir. 7/26/06), 937 So.2d 419, 422 (the appropriate standard of review on a motion to quash based on a violation of defendant’s right to speedy trial is the abuse of discretion standard).

      . The record shows that a subpoena was issued to the Defendant on December 9, 2004, notifying her of her initial arraignment date of December 17, 2004. It also indicates that notice was issued to the Defendant on January 10, 2005, for the January 18, 2005 arraignment. However, it does not contain any documentation showing that Defendant actually received either notices/subpoenas.

      . It is important to add that the trial court in Franklin admitted that it would not have issued capias unless the defendant had received service, but this Court nevertheless found it insufficient evidence to prove actual notice of arraignment as required by La.C.Cr.P. art. 579, to show that two-year time limitation for bringing defendant to trial had been interrupted by defendant's non-appearance. Franklin, 2010-0792, p. 5, fn. 1, 62 So.3d at 819.

      .The Franklin Court noted:
      Under La.C.Cr.P. art. 735, types of service, subpoenas are to be served by "domiciliary service, personal service, or United States mail as provided in Paragraph B.” Domiciliary and personal service require delivery by the sheriff to the addressee or to someone of appropriate age and discretion residing at the addressee's dwelling. Under Paragraph B, subpoenas may be sent by certified mail with return receipt requested or by first class mail. Section three of Paragraph B sets out the requirements; it states:
      Service by mail shall be considered personal service if the certified return receipt or the return form is signed by the addressee. Service by mail shall be considered domiciliary service if the certified return receipt or the return form is signed by anyone other than the addressee.

        Franklin, 2010-0792, p. 5, fn. 3, 62 So.3d at 820.

      . The State also suggested at the hearing on the motion to quash that the "actual notice requirement is satisfied when mail is sent to the address on the bond” under La.C.Cr.P. art. 344 and because certified mail was sent to the Governor Nicholls address as required by La.C.Cr.P. art. 322, the Defendant had notice. La.C.Cr.P. art. 344 is entitled "Right to notice of time and place of defendant’s required appearance” and provides in relevant part:
      B. When a bail bond does not fix the appearance date, written notice of the time, date, and place the defendant is first ordered by the court to appear shall be given to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety.

      D. Notice required pursuant to the provisions of this Article to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be made to the address provided pursuant to Article 322. Notice may be:
      (1) Delivered by an officer designated by the court at least two days prior to the appearance date.
      (2) Mailed by United States first class mail at least five days prior to the appearance date.
      La.C.Cr.P. article 322(B) states that the address provided by the defendant when signing his bail bond "shall be conclusively presumed to continue for all proceedings on the bond until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed.” The State thus claimed that by mailing notice, to the Defendant at the address listed on the bond, the defendant had sufficient notice of the pending charges.
      However, in order to interrupt the time period to bring a defendant to trial, the State must prove that a defendant failed to appear at any proceeding "pursuant to actual notice, proof of which appears of record.” La. C.Cr.P. art. 579(A)(3). Thus, although certified mail may constitute adequate notice for appearance and bond forfeiture under La. C.Cr.P. art. 344(D), the mere mailing of notice is insufficient to establish an interruption under La.C.Cr.P. art. 579(A)(3), as it explicitly requires proof of actual notice, which must appear in the record. As discussed above, the State has not established that the Defendant had actually received notice and did not satisfy its evidentiary burden. See, State v.

        McLaurin, 05-857, p. 6 (La.App. 5 Cir. 3/28/06), 927 So.2d 570, 573 (the purpose of the notice provisions in bond forfeiture statutes is to provide prompt and adequate notice to the surety so the surety can quickly identify its bond obligation, locate the defendant, and surrender them to the court for trial); In re Bond Forfeitures Against Indiana Lumbermens Mut. Ins. Co. in Baton Rouge City Court, 633 So.2d 715 (La.App. 1 Cir.1993) (same). Moreover, the State failed to cite any jurisprudential authority to support its position that notice under La.C.Cr.P. art. 344(D) is sufficient to demonstrate actual notice of a proceeding to interrupt prescription pursuant to La.C.Cr.P. art. 579(A)(3).
      It is important to add that Louisiana courts have discussed a defendant’s duty to provide a change of address under La.C.Cr.P. art. 322(B) in the context of prescription. State v. Paul, 2011-1347 (La.App. 4 Cir. 10/3/12), 126 So.3d 519, reh’g denied (10/31/12), writ denied, 2012-2576 (La.5/24/13), 116 So.3d 658 (finding that the State failed to carry its burden of establishing that defendant’s failure to notify court of change of his address interrupted two year prescriptive period where the sheriffs’ return did not indicate that address was abandoned or derelict and thus failed to present evidence that defendant was avoiding detection or prosecution, or any evidence of proof of actual notice). However, the State has not offered any evidence that Defendant either at the hearing or on appeal had changed her address such that it would trigger La.C.Cr.P. art. 322.


author: JAMES F. McKAY, Chief Judge.

text:
    STATE of Louisiana v. Jermaine D. LECOUR.
    No. 2013-KA-1041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.
    Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. MeKAY III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY, Chief Judge.

| Jermaine Lecour appeals his conviction and sentence for violating La. R.S. 14:94(A) relative to the discharge of a firearm where it is foreseeable that it may result in death or great bodily harm to a human being, requesting only a review of the record for errors patent. Finding no errors patent, we affirm Mr. Lecour’s conviction and sentence, and we grant counsel’s motion to withdraw.

On January 28, 2011, the State filed a bill of information charging Jermaine Lec-our with violating La. R.S. 14:94(F), the intentional or criminally negligent discharge of a firearm where it is foreseeable that it may result in death or great bodily harm while committing a crime of violence, to which charge he entered a plea of not guilty on February 18, 2011. A preliminary hearing was conducted on April 13, 2011; the court found sufficient probable cause to bind Mr. Lecour over for trial. A trial held on August 1, 2011, resulted in a mistrial. A second trial commenced on January 23, 2012, and concluded on the second day, January 25, 2012, when the twelve-person jury returned a responsive verdict of guilty of intentional or criminally negligent discharge of a firearm where it was foreseeable that death or great bodily to a human being could result, a violation of La. R.S. 14:94(A). A motion for new trial was filed and then denied by the trial court on [2March 9, 2012. After Mr. Lec-our waived the statutory delay of twenty-four hours, the court sentenced him to serve twenty months in the Department of Corrections.

On June 7, 2013, the trial court granted a motion for an appeal and appointed counsel to represent Mr. Lecour on appeal. The record was lodged on July 26, 2013. The appellant’s brief was filed on September 17, 2013, and the State responded on September 19, 2013.

Jermaine Lecour and Keyoea Adams had at one time been involved in a relationship from which a daughter was born. On December 29, 2010, Ms. Adams arrived at her mother’s home with that daughter, who was then approximately eleven months old, in a car driven by Justin Vi-nette. At that time, Mr. Lecour was a New Orleans police officer; Mr. Vinette was a Tulane University police officer. Although both men were off-duty, they were both in possession of firearms. Within seconds of Mr. Vinette parking his car, Mr. Lecour arrived at the residence and parked his car. Ms. Adams and Mr. Vi-nette stayed in their vehicle for a few minutes, during which time they observed Mr. Lecour go into the residence, remain inside for only a minute or so, and then return to his vehicle. Ms. Adams and Mr. Vinette then got out of Mr. Vinette’s vehicle. Ms. Adams was carrying her daughter and a diaper bag. Mr. Lecour yelled at her to bring him his child, to which Ms. Adams responded that he should wait while she put her things in the house.

As Ms. Adams entered the residence, with Mr. Vinette a few steps behind her, she heard several gunshots. She put her belongings down and went back outside. She saw Mr. Vinette standing in the driveway with his weapon drawn. She saw Mr. Lecour still sitting in his vehicle; he was holding a gun outside the window, pointing it to the ground. Ms. Adams asked what was happening. Mr. |sLecour placed his weapon back inside his vehicle, and Ms. Adams then went over and spoke to him, asking why he was there. After she told him that she did not want to be in the middle of anything, Mr. Lecour drove away from the scene.

Sergeant Tokishiba Lane of the Seventh District responded along with two other officers to the dispatch of shots fired. After she learned that a police officer was involved in the incident, she notified ranking officers. A few minutes after she arrived at the scene, Mr. Lecour arrived, having been called and asked to return by another one of the on-scene police officers. Mr. Lecour surrendered his weapon to Sergeant Lane, as did Mr. Vinette. Both weapons were then secured in the trunk of Sergeant Lane’s vehicle. After that, Sergeant Lane and the other district officers waited for an officer from the Public Integrity Bureau (“PIB”) to arrive and take over the investigation.

Tarez Cook, a Crime Lab technician, was also called to the scene of the incident. She and other technicians processed the scene, taking photographs and making a sketch. She personally collected three spent casings which were found in the grass near the sidewalk next to where Mr. Lecour’s vehicle had been parked. No other casings were collected.

Detective Walter Zschiedrich, a thirty-eight year veteran with the New Orleans Police Department who was assigned to PIB, handled the investigation on the scene. After speaking with Sergeant Lane, he interviewed Ms. Adams and Mr. Vinette. When the personnel from the Crime Lab arrived, he directed them as to what needed to be done to process the scene. As part of the investigation, Detective Zschiedrich had the area closely examined for any bullet strike marks which would show in what direction any weapons had been fired. As part of that process, the detective requested that a ladder truck from the fire department come |4to the scene. The detective personally climbed the ladder to closely examine a spot on a tree where it appeared a bullet might have struck. However, upon close examination, the detective concluded that there was no strike mark. Also, there was no other evidence found that more than three shots were fired.

Officer Demond Davis of the Seventh District testified at trial that he and Officer Kish were first on the scene, followed immediately by Sergeant Lane. He stated that the brother of Mr. Vinette arrived at the scene at approximately the same time. Mr. Vinette pointed to the three casings on the ground; Officer Kish went to the spot and stayed there to preserve the evidence until the casings could be secured. Officer Davis testified further that he was the one who called Mr. Lecour and told him he should return to the scene. He recountéd that Mr. Lecour told him that the other guy fired a round first, and so he fired a shot to the ground.

Justin Vinette testified at trial that he was with Ms. Adams on the night of the incident because he had some old clothing which he was going to give to Ms. Adams’ cousin. He . picked Ms. Adams up at her mother’s house, and they went to his house, where they stayed for less than an hour. After Ms. Adams had selected the clothes for her cousin, they drove back to the home of Ms. Adams’ mother, which was where Ms. Adams was apparently also living. He described the arrival of Mr. Lecour as Ms. Adams had. He also stated that, as Ms. Adams was about to go in the house, he heard three gunshots. Mr. Vi-nette turned, drew his weapon, and took what he called a “ready gun stance.” He denied ever firing his weapon. He also denied that he or his brother, who was also a Tulane University police officer, tampered with any evidence after Mr. Lecour drove away. Mr. Vinette stated that he called his brother because he was unsuccessful in reaching the 911 operator.

| nJermaine Lecour testified on his own behalf at trial. He stated that Ms. Adams had called him approximately ten minutes before he arrived at her residence. Ms. Adams told him that they needed to talk because she was considering moving to Arizona with his child. He recounted parking his vehicle and going inside the residence; after Ms. Adams’ sister told him that she was not home, he returned to his vehicle to text Ms. Adams, a text which she had admitted receiving.

According to Mr. Lecour, Mr. Vinette had a gun in his hand when he exited his car. Mr. Vinette allegedly went behind a large tree in the yard, at which point he heard two shots. Mr. Lecour, who said he was outside of his vehicle when these shots were fired, returned to his vehicle and retrieved his firearm from the floorboard where he kept it. Because he could not see exactly where Justin Vinette was, Mr. Lecour stated that he fired his weapon upwards toward another tree so that Vi-nette would know that he was armed. He then got into his vehicle and put his gun outside through the window. When he saw Ms. Adams coming out of the house with their child in her arms, he put his weapon back on the floor so that they would not be caught in a cross-fire. Mr. Vinette then ran into the house, and Mr. Lecour drove from the scene towards the Seventh District police station. On his way, he received a phone call from Officer Davis and then returned to the scene.

On rebuttal, Mr. Vinette testified that Ms. Adams did not use her phone during the time they were together that night.

At trial, Meredith Acosta, a firearms examiner for the New Orleans Police Department crime lab testified that she compared the casings recovered from the scene with the firearm, a Ruger nine millimeter, which Sergeant Lane had obtained from Mr. Lecour. She stated that the casings were fired by the Ruger pistol.

RBy his sole assignment of error, Mr. Lecour requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to -withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to Mr. Lecour, and this Court informed him that he had the right to file a brief in his own behalf. He has not done so. Thus, this Court’s review is limited to errors on the face of the record. La.C.Cr.P. art. 920.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. Mr. Lecour was properly charged by bill of information with the intentional or criminally negligent discharge of a firearm where it is foreseeable that it may result in death or great bodily harm while committing a crime of violence, a violation of La. R.S. 14:94(F), and the bill of information was signed by an assistant district attorney. Mr. Lecour was present and represented by counsel at arraignment, during trial, and at sentencing. The jury’s verdict of guilty of the responsive verdict of the intentional or criminally negligent discharge of a firearm where it is foreseeable that it may result in death or great bodily harm (without reference to being in the commission of a crime of violence), a violation of La. R.S. 14:94(A), is legal in all respects, as is Mr. Lecour’s sentence. ^Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Lecour was guilty of the verdict rendered by the jury.

This Court’s review reveals no patent error and no non-frivolous issue or trial court ruling that supports the appeal. Therefore, we affirm Mr. Lecour’s conviction and sentence. We also grant appellate counsel’s motion to withdraw.

AFFIRMED; COUNSEL’S MOTION TO WITHDRAW IS GRANTED.


text:
    Melvin J. BARROIS and Neila Ann Wiseman Barrois v. Rock John PANEPINTO and Colleen Martin Panepinto.
    No. 2013-CA-0577.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.

      Timothy Thriffiley, George Pivach II, Pivach Pivach Hufft Thriffiley & Nolan, L.L.C., Belle Chasse, LA, for Plaintiff/Ap-pellee.
    Francis Joseph Lobrano, William Allen Schafer, Jack E. Chappuis, Jr., Brad M. Driscoll, Law Office of Francis J. Lobrano, LLC, Belle Chasse, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

11 This appeal arises from a dispute over property boundaries by adjacent property owners. After a trial on the merits, the trial court ruled in favor of the plaintiffs, Melvin and Neila Barrois, finding that the defendants, Rock and Colleen Panepinto, had not established ownership by acquisitive prescription. For the following reasons, we affirm.

STATEMENT OF FACTUAL AND PROCEDURAL BACKGROUND

The disputed strip of land lies between two Plaquemines Parish properties. The Panepintos own the property situated at 12288 Highway 11, in Jesuit Bend. The Barrois’s own the tract of land adjacent to the Panepinto residence.

The plaintiffs filed suit against the defendants, alleging that a portion of the defendants’ driveway and fence encroached upon their adjoining tract of land by approximately eight feet. The defendants filed an answer, which they later amended to include the affirmative defense of ten-year acquisitive prescription. After a bench trial and the filing of post-trial memoranda, the trial court signed a judgment ordering the defendants to remove the encroaching driveway and fence from the plaintiffs’ land and return it to its original condition. This timely appeal followed.

| ¿DISCUSSION

The sole assignment of error presented by the defendants is that the trial court erred in concluding that they had not acquired the disputed portion of property through ten-year acquisitive prescription.

“The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to support it.” St. John Baptist Church of Phoenix v. Thomas, 08-687, p. 7 (La.App. 4 Cir. 12/3/08), 1 So.3d 618, 623. Ownership of immovable property can be acquired through either a ten-year or a thirty-year prescriptive period. La. C.C. arts. 3473 et seq. A good-faith possessor with just title is subject to the ten-year period. La. C.C. arts. 3475.

The defendants contend that they have just title to the property, sufficient to meet the requirements for ownership by ten-year acquisitive prescription. A title is just for purposes of acquisitive prescription when the deed is regular in form, is valid on its face, and would convey the property if executed by the owner. La. C.C. art. 3483; Ensenat v. Edgecombe, 95-641, 95-642, p. 8 (La.App. 4 Cir. 5/15/96), 677 So.2d 138, 143 (citing Harry Bourg Corp. v. Punch, 94-1557, p. 4 (La.App. 1 Cir. 4/7/95), 653 So.2d 1322, 1325). The title relied upon by one seeking to establish ten-year acquisitive prescription must sufficiently describe the property so as to transfer its ownership. One must be able to identify and locate the property from the description in the deed itself or from other evidence which appears in the public record. Id. This is necessary because one cannot, by the prescription of ten years, acquire property not embraced within the title upon which the plea of prescription is founded. Id. (citing Honeycutt v. Bourg, 588 So.2d 1204, 1207 (La.App. 1 Cir.1991)).

|3The determination of whether property has been acquired through acquisitive prescription is one of fact and subject to the manifest error/clearly wrong standard. Chambless v. Brown, 10-716, p. 3 (La.App. 4 Cir. 12/1/10), 52 So.3d 959, 961 (citation omitted). Likewise, mixed questions of law and fact are also reviewed under the manifestly erroneous standard of review. Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 10-368, p. 5 (La.App. 4 Cir. 2/2/11), 57 So.3d 1142, 1146 (citation omitted).

The uncontroverted evidence introduced at trial established that the legal description contained in the plaintiffs’ title included the disputed portion of land. Thus, in its reasons for judgment, the trial court found that the defendants “did not satisfy the just title requirement for 10-year acquisitive prescription.” Because the legal property description in the Pa-nepinto title did not encompass the area at issue, a vital requisite for ten-year acquisitive prescription is lacking.

The defendants argue that they had just title, because the description in their act of sale included the improvements associated with the municipal address. The trial court correctly rejected this argument because the legal description controls. See, McClendon v. Thomas, 99-1954 (La.App. 1 Cir. 9/22/00), 768 So.2d 261, (where there is a discrepancy between the plat description and the lot number or municipal address, the plat description controls). Moreover, as noted by the trial court in its reasons, the defendants only obtained title to the improvements situated on the lot described in the deed. Therefore, the Panepintos do not have title to any ^portion of the driveway and fence that are not situated on their lot. Thus, the trial court was correct in concluding that the Panepintos did not possess just title to the property.

Given the facts and evidence presented, we cannot find that the trial court’s determination regarding the acquisitive prescription issue was manifestly erroneous. Accordingly, the matter is affirmed.

AFFIRMED.

      . The defendant notes that the deed for Lot or Tract Number Four provided: "That certain lot of ground, together with all buildings and improvements thereon, and all ... appurtenances ... thereunto belonging or in anywise appertaining ... bearing the Municipal No. 12288 Highway 11, Jesuit Bend.” However, this description is misleading, as the deed first identifies the lot and improvements by lot and tract number. Within this description, the lot is further identified by plat, "more fully shown” on a 1993 survey. In the next paragraph, the deed further explains: "Improvements thereon bear the Municipal Number 12288 Highway 11, Jesuit Bend, LA 70037.” Read in context, the municipal address is only identifying the residence, or improvements, associated with the previously identified lot. Thus, any improvements not within the legal description of the lot were not transferred.