author: ROSEMARY LEDET, Judge. LOVE, J.,

text:
    NATIONSTAR MORTGAGE LLC v. Deborah Morris HARRIS and Gloria Butler Morris.
    No. 2013-CA-1335.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2014.

      Tonya S. Johnson, Johnson Law Office, New Orleans, LA, for Defendant/Appellee, Deborah Morris Harris and Gloria Butler Morris.
    Charles K. Watts, Jessica W. Chapman, Mark C. Garrison, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, Anthony J. Rollo, Jr., Gabriel A. Crowson, Mark R. Deethardt, McGlinchey Stafford, PLLC, New Orleans, LA, for Plaintiff/Appellant, Nationstar Mortgage, LLC.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| T This is an executory proceeding. From the trial court’s judgment dismissing its executory proceeding as abandoned under La. C.C.P. art. 561, Nationstar Mortgage, LLC (the “Lender”) appeals. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On May 11, 2004, Deborah Morris Harris and Gloria Butler Morris (collectively the “Borrowers”) executed a promissory note in the principal amount |2of $362,205.00 (the “Note”), in the Lender’s favor. The Note was secured by a mortgage (the “Mortgage”) encumbering the Borrowers’ property located at 16 Tennyson Place in New Orleans, Louisiana (the “Property”). The Note also contained an acceleration clause. In the Mortgage, the Borrowers agreed that should the Note not be paid within the terms and conditions in the Mortgage, the Property could be seized and sold by executory process. To facilitate the use of executory process, paragraph 25 of the Mortgage contained the following confession of judgment: “[flor purposes of foreclosure under execu-tory procedure, Borrower confesses judgment and acknowledges to be indebted to Lender for all sums secured by this Security Instrument, in principal, interest, costs, expenses, attorneys’ fees and other fees and charges.”

The Borrowers defaulted on the Note and the Mortgage by failing to make any payments on the Note after October 15, 2007. On January 20, 2009, the Lender exercised its right under the Note and Mortgage to accelerate the entire unpaid principal balance on the Note by filing a Petition for Executory Process (the “Exec-utory Foreclosure Case”). In its petition, the Lender averred that the Borrowers failed to pay the installments due on the Note and that the balance of $340,925.58, together with interest, attorneys’ fees, and costs were due on November 15, 2007. In its petition, the Lender alleged that under La. R.S. 13:4359 it was entitled to “100% of the purchase price at Sheriffs sale.”

13Although no signed order of seizure and sale appears in the record, on January 28, 2009, the clerk of court issued a writ of seizure and sale. A sheriffs sale was initially scheduled for May 28, 2009; however, the Lender, by letter dated May 26, 2009, stopped the sale due to a title problem. The Lender requested that the sale be rescheduled after the title had been cleared. The Lender’s last filing in the record of the Executory Foreclosure Case was another letter dated May 26, 2009, regarding Mennonite notices.

No pleadings were filed in the Executo-ry Foreclosure Case after September 24, 2009, which was the date on which a curator’s motion to withdraw funds was filed. On March 1, 2018, the Borrowers filed an Ex Parte Motion and Order to Dismiss for Abandonment, which the trial court granted on the same date. |4The Lenders then filed a Motion to Set Aside the Order of Dismissal Based on Abandonment. The trial court denied the Lender’s motion. In its written reasons for judgment, the trial court reasoned that La. C.C.P. art. 561 applies to executory foreclosure proceedings and that “[f]rom September 24, 2009, when a Curator’s Motion to Withdraw Funds ... was signed, until March 1, 201S[, when the Borrowers filed their Ex Parte Motion to Dismiss], there were no pleadings filed into this record nor did any sale take place.” The trial court thus denied the Lender’s Motion to Set Aside the Order of Dismissal Based on Abandonment. The Lender then filed the instant appeal.

DISCUSSION

The sole issue on appeal is whether the trial court erred in finding the Lender’s Executory Foreclosure Case has been abandoned under La. C.C.P. art. 561. “Whether an action has been abandoned is a question of law; thus the | r,standard of review of the appellate court is simply to determine if the trial court’s decision was correct.” Heirs of Simoneaux v. B-P Amoco, 13-0760, pp. 2-3 (La.App. 4 Cir. 2/5/14), 131 So.3d 1128 (citing Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721); Succession of Sigur v. Henritzy, 13-0398, pp. 8-9 (La.App. 4 Cir. 9/18/13), 126 So.3d 529, 535-36 (collecting cases).

A preliminary issue in this case is whether the abandonment article applies to an executory proceeding. Answering this question in the affirmative, the trial court reasoned that “article 561 does apply to suits for executory process. While the article itself states that it does not apply to certain succession proceedings, there is no other prohibition in the article. Furthermore, in Semel v. Green, 252 La. 386, 211 So.2d 300 (1968), the court did apply the then abandonment article to an executory proceeding.”

Application of the abandonment article to an executory proceeding is supported by an analysis of the plain language of La. C.C.P. art. 561, which employs the broad term “action” and excludes from it only succession proceedings. See Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5, n. 8 (La.5/15/01), 785 So.2d 779, 783 (noting that Article 561 uses the broad term “action.”). We thus find no error in the trial court’s finding that the abandonment article applies to executory proceedings.

Although the Lender acknowledges the Louisiana Supreme Court’s holding in the Semel case that the abandonment article generally applies to executory | (¡proceedings, the Lender contends that the abandonment article does not apply under the facts of this particular case. According to the Lender, the Semel case is factually distinguishable from this case because, unlike in Semel, the Borrowers in this case failed to seek an injunction or to file an appeal. As a result, the Lender contends that the order of seizure and sale in this case is a final judgment to which res judicata applies and the abandonment article does not.

In support of its position that res judica-ta applies, the Lender cites Countrywide Home Loans Servicing, LP v. Thomas, 12-1304, p. 5 (La.App. 4 Cir. 3/20/13), 113 So.3d 355, 358, writ denied, 13-0894 (La.5/31/13), 118 So.3d 397, for the proposition that Louisiana courts have treated orders of seizure and sale as judgments for res judicata purposes. Continuing, it contends that because abandonment does not apply once a final judgment has been rendered, the trial court erred in finding it abandoned the Executory Foreclosure Case.

Rejecting the Lender’s argument, the trial court distinguished the Countrywide case. The trial court noted that in the Countrywide case there was a sale of the property; whereas, in this case there was no sale. Contrary to the Lender’s contention, we agree with the trial court that the Countrywide case is distinguishable on that basis. An executory process is not complete until there is a sale. As a commentator has noted, “[t]he essence of exec-utory process is that a creditor whose debtor has confessed judgment in advance may obtain immediate seizure and prompt judicial sale of the security by submitting sufficient proof to the court.” Frank Mar-iast, 1A LA. CIV. L. TREATISE, CIVIL PROCEDURE-HSPECIAL7 PROCEEDINGS § 3.1 (2013 ed.). Hence, until there is a sale, logic dictates that the abandonment article continues to apply in the exec-utory proceeding context.

In so finding, we note that the true judgment in an executory proceeding is not the order of seizure and sale; rather, it is the debtor’s confession of judgment in the mortgage. It is the confession of judgment that gives the creditor the right to invoke an executory proceeding, which is defined as “those which are used to effect the seizure and sale of property, without previous citation and judgment.” La. C.C.P. art. 2631. Although the trial court in an executory proceeding issues an order of seizure and sale, the order of seizure and sale is only analogous to a judgment. Indeed, in the Countrywide case, this court noted that in order to apply the doctrine of res judicata in the executory process context, it was necessary to tailor that doctrine to fit the context.

By analogy, we find the doctrine of abandonment applies to all executory proceedings, but it must be tailored to fit the context. Tailoring the abandonment doctrine to fit the executory proceeding context, we find that until there is a sale, the abandonment article continues to apply. Since no sale has occurred in this case, we find no error in the trial court’s finding that the abandonment article applies.

IsAs noted at the outset, the controlling statutory provision is La. C.C.P. art. 561, which provides, in part, that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” La. C.C.P. art. 561 A(l). The jurisprudence has outlined the following governing principles on abandonment:

• “Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (B) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.” Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-6 (La. 12/6/11), 79 So.3d 978, 981-82 (citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, pp. 5-6 (La.5/15/01); 785 So.2d 779, 784).
• In this context, “[a] party takes a ‘step’ in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice.” James v. Formosa Plastics Corp. of Louisiana, 01-2056, p. 4 (La.4/3/02), 813 So.2d 335, 338 (citing Clark, 00-3010 at p. 6, 785 So.2d at 784 and collecting cases); see also Bryant v. City of Monroe, 859 So.2d 907, 910 (La.App. 2d Cir.2003).
• To distinguish informal actions, which are insufficient to prevent abandonment, from “steps,” the jurisprudence has crafted the requirement of “ ‘some formal action before the court.’ ” Clark, 00-3010 at p. 16; 785 So.2d at 790 (quoting DeClouet v. Kansas City Southern Railway Co., 176 So.2d 471, 475 (La.App. 3rd Cir.1965))(Tate, J., dissenting from denial of reh’g). Applying that requirement, the jurisprudence has required “certainty of formal action in the judicial proceedings themselves, rather than the uncertainty of informal action by counsel outside thereof, as necessary to interrupt the running of the [legislatively ordained abandonment period] during which action is required.” Clark, supra (quoting Sanders v. Luke, 92 So.2d 156, 159 (La.App. 1st Cir.1957)).
• The purpose of this “formal action” requirement has been summarized as follows: “the courts have refused to characterize matters outside the record as steps in the prosecution of the suit because: (a) of the uncertainty of accepting informal non-legal proceedings as a step |;,preventing abandonment; or (b) of the ex parte, informal nature of the action, without formal notice to the opposing party, as being an insufficient step in the advancement of the suit.” Clark, 00-3010 at p. 17; 785 So.2d at 790 (quoting DeClouet, 176 So.2d at 476).
• The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark, 00-3010 at pp. 10-11; 785 So.2d at 787.
• The Louisiana Supreme Court has uniformly held that Article 561 must be liberally construed in favor of maintaining a plaintiffs suit. Oilfield Heavy Haulers, 11-0912 at p. 5, 79 So.3d at 981-82 (citing Clark, 00-3010 at p. 8, 785 So.2d at 785). “Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Oilfield Heavy Haulers, supra (citing Clark, 00-3010 at p. 10, 785 So.2d at 787).
• “The intention of Article 561 is not to dismiss suits as abandoned based on technicalities.... For the purpose of determining abandonment, the intent and substance of a party’s actions matter far more than technical compliance.” Oilfield Heavy Haulers, 11-0912 at pp. 5-6, 79 So.3d at 982 (internal citations omitted).

Assuming, arguendo, that the abandonment article applies in this case, the Lender contends that the trial court erred in finding that it abandoned the Executory Foreclosure Case. In support, the Lender cites its actions within the three-year abandonment period to clear title to the Property. Explaining the purpose of its title clearing actions, the Lender points out that the mortgage certificate, which the sheriffs office provided to it after it commenced the Executory Foreclosure Case, showed there were two superior liens on the l1f>Property. For this reason, on May 26, 2009, the Lender informed the sheriffs office, by letter, that it was postponing the previously scheduled sale due to the title problem.

According to the Lender, on October 10, 2011, it obtained from the Orleans Parish Clerk of Court and Ex-Officio Recorder a certificate of cancellation of one of the superior liens on the property — the mortgage in favor of Wells Fargo Home Mortgage, Inc. The certificate of cancellation of the mortgage was filed only in the mortgage records, not in the trial court record (in the Executory Foreclosure Case). The Lender points out that the cancellation of the mortgage is a matter of public record. See Skrzysinski v. Swift Independent Packing Co., 571 So.2d 230, 231 (La.App. 3rd Cir.1990) (noting that a step must appear in the record and “without resort to extrinsic evidence”). The Lender additionally points out that there is no requirement under La. C.C. art. 3366, or any other applicable provision, that a written request for cancellation of a mortgage be filed into the foreclosure proceeding or any other proceeding to be valid.

Rejecting the Lender’s contention that its title clearing actions constituted a “step,” the trial court reasoned that “the article itself [La. C.C.P. art. 561] has a requirement that ‘the step in prosecution’ be taken in the record, in the trial court. The only exception to this requirement involves formal discovery as authorized by the Code. In this case, the record reflects that there was a period of over three years from September 24, 2009 until March 1, 2013 when there were no steps taken in either the prosecution or defense of this matter.” We disagree.

In resolving the issue presented on appeal, the difference between an executory and an ordinary proceeding cannot be ignored. As the Lender’s counsel pointed out at oral argument before this court, once the trial court renders an order of seizure and sale, all of the activities in the executory proceeding occur not in the trial court — as in an ordinary proceeding — but in the sheriffs office. Moreover, this court has recognized that a creditor’s actions that are necessary to proceed with an executory proceeding can constitute a “step” under La. C.C.P. art. 561. Freedlander, Inc., The Mortgage People v. Certain, 628 So.2d 677, 678-79 (La.App. 4th Cir.1993) (holding that “[s]ince a request for issuance of a writ of seizure is required in executory proceedings, La.Code Civ. Proc. Ann. art. 2638 (West 1961), we will consider Freedlander’s request a step in prosecution.”)

Although there is no exception in La. C.C.P. art. 561 for title clearing actions, we find it is appropriate — given the unique nature of an executory proceeding coupled with this court’s holding in the Freedlan-der case — to define a step in an executory proceeding as including such actions taken to facilitate the sale of the property. We thus find that the Lender’s title clearing actions constituted a “step” in the prosecution of the Executory Foreclosure Case. As the Lender points out, it could not proceed with the sale without first obtaining clear 11gtitle to the Property. Thus, we find the Lender’s action in securing the cancellation of the superior mortgage constituted a “step” intended to facilitate the prosecution of its executory proceeding.

Our finding is consistent with the well-settled principle that “any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim.” Dean v. Delacroix Corp., 12-0917, p. 8 (La.App. 4 Cir. 12/26/12), 106 So.3d 283, 288 (citing Clark, 00-3010 at p. 10, 785 So.2d at 787). As the Louisiana Supreme Court has noted, “[t]he intention of Article 561 is not to dismiss suits as abandoned based on technicalities.” Oilfield Heavy Haulers, 11-0912 at p. 5, 79 So.3d at 981-82. Accordingly, we hold that the trial court erred in denying the Lender’s Motion to Set Aside the Order of Dismissal Based on Abandonment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. This case is remanded for further proceedings.

REVERSED AND REMANDED.

LOVE, J., Dissents and Assigns Reasons.

LOVE, J.,

dissents and assigns reasons.

Id respectfully dissent from the majority’s conclusion that the alleged “title clearing actions” taken by the Lender constitute a “step” in furtherance of the prosecution in order to hold that the Lender’s Executory Foreclosure Case was not abandoned.

“Article 561 was designed to prevent protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment.” Prestenback v. Hearn, 11-1380, p. 4 (La.App. 4 Cir. 2/22/12), 85 So.3d 256, 259.

Dismissal for abandonment is not intended to be punitive; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court without the risk of losing same due to technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not linger indefinitely, preserving stale claims from the normal extinguishing operation of prescription.

Id. While formal discovery not contained in the record is deemed a “step” towards lathe prosecution, there is no La. C.C.P. art. 561 exception for allegedly taking actions to clear title to property over a ti-mespan of almost four years.

The majority notes that “there is no requirement under La. C.C. art. 3366, or any other applicable provision, that a written request for cancellation of a mortgage be filed into the foreclosure proceeding or any other proceeding to be valid.” (Footnote omitted). However, this is true as to the efficacy of the cancellation of the mortgage. There is no precedent, statutorily or jurisprudential, that filing a document into the mortgage records constitutes a “step” in furtherance of the prosecution of an executory proceeding.

Further, I find Freedlander, Inc., The Mortg. People v. Certain, 623 So.2d 677, 678 (La.App. 4th Cir.1993), distinguishable because the request for a writ of seizure and sale was indeed a requirement in an executory proceeding that is included in the record of the proceedings. Freedlan-der requested that the clerk of court act in furtherance of the prosecution of the suit. In the present case, Nationstar allegedly began to clear title to the Plaintiffs’ property. Nationstar did not request that the clerk of court perform any duties required in furtherance of an executory proceeding. Thus, Nationstar’s alleged “title clearing actions” do not constitute a step in the prosecution. Accordingly, I would not create another jurisprudential exception “given the unique nature of an executory proceeding.” I find that the trial court correctly held that Nationstar’s Executory Foreclosure Case was abandoned and would affirm.

      . La. C.C.P. art. 561 provides, in pertinent part, as follows:
      A. (1) An action, except as -provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ...

      (3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

      B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

      . Nationstar Mortgage, LLC ("Nationstar”) was formerly known as Centex Home Equity Company, LLC ("Centex”). On June 27, 2006, Centex changed its name to Nationstar.

      . In the trial court, the Lender acknowledged its inability to locate the order of seizure and sale that it represented the trial court signed on January 23, 2009. Although the trial court subsequently signed an order of seizure and sale on April 17, 2013; the trial court vacated the order on the same day that it signed it. In so doing, the trial court noted on the order that a hearing was set for May 25, 2013, on the Lender’s Motion to Set Aside the Order of Dismissal Based on Abandonment. The record, thus, is devoid of a signed order of seizure and sale.

      . In Hood Motor Co., Inc. v. Lawrence, 320 So.2d 111, 114 (La.1975), the Louisiana Supreme Court rejected the argument that an order of seizure and sale signed only by a clerk of court is constitutionally invalid. In so doing, the Supreme Court stated that “Louisiana’s executory proceedings do not deny a debtor due process because an order of seizure and sale is signed by a clerk instead of by a judge.” The Supreme Court reasoned that “the clerk upon signing the order of seizure and sale is under no less a duty than is a judge to satisfy himself that the requirements of law have been met before the order to issue the writ is signed.” Id. (citing La. C.C.P. art. 2638, which provides that ”[i]f the plaintiff is entitled thereto, the court shall order the issuance of a writ of seizure and sale commanding the sheriff to seize and sell the property affected by the mortgage or privilege, as prayed for and according to law.”) The Supreme Court further noted that “the clerk is exercising a quasi-judicial power authorized by the constitution and by statute.” Id. (citing La. C.C.P. art. 283, which provides that ”[t]he clerk of a district court may sign ... [a]n order for the issuance of executory process.”). Given the holding in Hood, supra, the lack of a signed order of seizure and sale in the record does not invalidate the executo-ry proceeding. As the Lender points out, the clerk of court has the authority to sign an order of executory process. See La. C.C.P. art. 283(A)(2).

      . Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

      . Because one of the Borrowers could not be served, a curator was appointed to represent her.

      . Meanwhile, on November 16, 2012, the Borrowers filed a Petition for Writ of Mandamus, which was allocated to a different trial court division than the Executory Foreclosure Case (the "Mandamus Case”). In the Mandamus Case, the Borrowers named as defendants the Lender and Dale Atkins, in her official capacity as the Recorder of Mortgages and Registrar of Conveyances for the Parish of Orleans (the "Clerk of Court”). In the Mandamus Case, the Borrowers prayed for the cancellation of the Note based on the Executory Foreclosure Case being abandoned under La. C.C.P. art. 561. As a result of the abandonment, the Borrowers contended that the underlying Note was prescribed given that their last payment on the Note was made on October 17, 2007. On January 2, 2013, the trial court granted the Borrowers’ writ of mandamus and ordered the Clerk of Court to cancel the Note. The Lender then filed a Motion for New Trial alleging that it was not served timely pursuant to La. C.C.P. art. 3782. On February 28, 2013, the trial court granted the Lender’s Motion for New Trial and vacated its previously issued order requiring the Clerk of Court to cancel the Note. In so doing, the trial court reasoned that the Note had not prescribed. In response, the Borrowers filed a Motion for New Trial, which the trial court denied. From that decision, the Borrowers filed an appeal. On the Lender's Unopposed Motion, the Borrowers’ appeal in the Mandamus Case (2003-CA-0800) and the Lender’s appeal in the Executo-ry Foreclosure Case (2003-CA-1335) were consolidated in this court. Following oral argument before a five-judge panel of this court, the Borrowers filed a motion to dismiss their appeal of the decision in the Mandamus Case, which was granted. Hence, the only appeal before us is the Lender’s appeal of the decision in the Executory Foreclosure Case.

      . "Under the Louisiana Constitution of 1921, confessions of judgment for purposes of exec-utory process were the only exception to the constitutional provision prohibiting such stipulations. La. Const, art. VII, § 44 (superseded 1974). While this general proscription was not incorporated in the Louisiana Constitution of 1974, it is contained in La. R.S. 9:3590 (1983).” Patrick S. Ottingera, Enforcement of Real Mortgages by Executory Process, 51 La. L.Rev. 87, 139, n. 16 (1990). La. R.S. 9:3590 provides that "[ejxcept for the purpose of executory process, confessions of judgment, prior to the maturity of the obligation sued on, are hereby prohibited.”

      . The first superior lien was a minor's mortgage in the amount of $100.00; the second superior lien was a mortgage in favor of Wells Fargo Home Mortgage, Inc., in the amount of $285,000.00.

      . La. C.C. art. 3366 provides:
      A. The recorder of mortgages shall cancel, in whole or in part and in the manner prescribed by law, the recordation of a mortgage or privilege upon receipt of a written request for cancellation in a form prescribed by law and that:

        (1) Identifies the mortgage or privilege by reference to the place in the records where it is recorded; and
      (2) Is signed by the person requesting the cancellation.
      B. The effect of recordation of the instrument ceases upon cancellation by the recorder pursuant to the provisions of this Article.

      . The filing of the Executory Foreclosure Case interrupted prescription of the Note. La. C.C. art. 3462. (providing that ‘'[prescription is interrupted when the owner commences action against the possessor, or when the obli-gee commences action against the obligor, in a court of competent jurisdiction and venue.”) Thus, the Note has not prescribed.

      . The superior lien in favor of Wells Fargo Home Mortgage, Inc. for $285,000.00 was a mortgage Nationstar was obligated to pay and obtain clear title the Property when Nations-tar was previously known as Centex Home Equity Company, LLC, which amended its articles of organization on June 27, 2006, to change its name to "Nationstar Mortgage, LLC.” However, Nationstar failed to clear title from 2006 until October 11, 2011, when Nationstar allegedly obtained the cancellation of the superior lien. Meanwhile, the amount allegedly owed by the Plaintiffs continued to increase.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Alphonso PARKER, Appellant.
    No. 49,009-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2014.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, for Appellee. ■
    Tommy J. Johnson, Jordan B. Bird, Kelvin M. Rodgers, Assistant District Attorneys.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

LA jury convicted defendant, James Alphonso Parker, of second degree kidnapping and armed robbery with a firearm. The trial court sentenced him to 30 years at hard labor for the armed robbery conviction; an additional five years without the benefit of probation, parole, or suspension of sentence for use of a firearm, to run consecutive to the 30-year armed robbery sentence; and, a concurrent sentence of 20 years at hard labor, two of them to be served without the benefit of probation, parole, or suspension of sentence, for the second degree kidnapping conviction. Defendant has appealed his convictions and sentences. For the following reasons, defendant’s convictions and sentences are affirmed, except that his sentence for armed robbery is amended to delete the five-year enhancement for use of a firearm.

Facts

On the morning of October 30, 2012, while driving to his office at Centenary College, Matthew Jarrod Bailey stopped at the Auto Zone on Kings Highway in Shreveport to buy a new taillight for his ear. Bailey got out of his car and went into the Auto Zone. After making his purchase, Bailey returned to his car and attempted to change the taillight. Unsuccessful in his attempt to fix the light, Bailey got back into his car and responded to a few emails on his cell phone. As he sat in the car with his door partially open, Bailey heard someone walking toward him. Before Bailey could close the door fully, a man pulled it open and pointed a black semi-automatic handgun (a 9mm or .45 caliber) at Bailey. After looking into the man’s face for only a moment, Bailey turned his face forward and held his hands in the air. Bailey assumed that the man was trying to steal his car, but when Bailey tried to get out of the car, the man kicked Bailey’s legs back | ¡.into the car and said, “Don’t fight. Don’t fight.” The man then opened the back door and got in the car behind Bailey, grabbed him by his collar, pressed the end of what Bailey assumed to be the gun into his ribs, and commanded Bailey to drive. Bailey frantically pled with his captor not to hurt him.

As directed by the assailant, Bailey drove away. Bailey told the man he had no cash, so the man told him to stop at the Family Dollar store on Centenary Blvd. The man first said that he wanted Bailey to go into the Family Dollar and use the ATM to withdraw money, but as they neared the store, the man changed his mind because he did not want Bailey to leave the car. The man then directed Bailey to turn around and drive to two banks on Line Avenue. At the Regions Bank, the man instructed Bailey to go to the drive-through ATM and make a withdrawal. The ATM had a $400 withdrawal limit, and Bailey withdrew that amount. During the withdrawal, the man reclined in the back seat to avoid being seen by security cameras. After the first withdrawal, the man directed Bailey across the street to the Chase Bank, which had another outside ATM. The assailant ordered Bailey to request “quick cash” in the amount of $200, which Bailey was able to do.

Through almost all of the car ride, the captor talked to Bailey and asked him questions about things like his family and job. The man also took Bailey’s wallet, looked through it, and read aloud his name and address before throwing the wallet back to the front seat so that Bailey could use his ATM card.

Is After the second withdrawal, the man told Bailey, “I made you a deal. I told you I wouldn’t hurt you if you got me what I needed. And so I’m just going to let you go.” The man then directed Bailey to drive to a park on Coty Street, where the man got out of the car and began walking down the hill by the park. Bailey drove straight to the Centenary police station, where he reported the incident to Corporal Denise Thornton and Detective Jack Miller.

On the same morning, Michelle Wells and her father were at the Auto Zone on Kings Highway to get some oil for her truck. When they arrived, Wells’ father stayed in his car while Wells went into the store to buy the oil. As Wells stood waiting to pay for her purchase, she heard her father outside blowing his car horn. As she looked out of the store window, she saw a man standing next to a green Jeep sport utility vehicle “tussling” with a white man. The Jeep quickly departed the parking lot. After realizing what had occurred, Wells called the police.

Michelle Wells identified defendant as the person whom she saw standing next to the green Jeep and fighting with its owner. She recognized him at the Auto Zone because she had seen him a day or two previously, knocking on people’s car windows at the intersection of Kings Highway and Youree Drive, and later that day as he was approaching cars in the parking lot of the Super 1 Foods grocery store. When Wells saw defendant at Kings and Youree, the distance between them was about five to ten feet. At Super 1 Foods, Wells saw him close up, and he looked directly at her before walking to the next truck in the parking lot.

|4In a meeting with Detective Miller after the crime, Wells selected defendant’s picture from a six-person photographic lineup. Wells was also able to identify in court Matthew Bailey as the white man who drove the Jeep. Wells testified that she was “positive” that defendant was the man whom she saw at the Auto Zone. Wells stated that, other than these three encounters, she had never seen or met defendant before.

On cross-examination Wells testified that she did not know whether the assailant wore a hat or gloves, and she did not see a firearm. She testified that she had told police that he wore denim blue jean overalls and a blue jean jacket, and was not wearing glasses. Wells admitted that she initially told the police that her last name was Johnson when she talked to them because she did not want defendant to be able to find her. She explained that Johnson had once been her name, and had merely been changed by marriage.

Bailey stated at trial that he had not been able to look prolongedly at his captor. When the man first approached him and opened his door, Bailey looked into his face for only a moment before seeing the gun and then looking forward. After the man entered the car, he held Bailey’s shirt collar from behind for most of the ride and continued to hold something at Bailey’s ribs (the object which Bailey assumed was the gun). The man told Bailey not to look at his face. Nonetheless, Bailey was able to see that the assailant was a black male in his late forties or fifties, that he was five feet and ten inches to six feet in height and taller than Bailey, who is five feet and eight and one-half inches tall, that he was “bigger” though neither fat nor skinny, and that he had a little facial hair. Bailey also saw the man’s clothing, |fiwhich he described as a blue jacket, black pants, black boots, a black knit hat, and black gloves.

Two or three days after the incident, Bailey met with Detective Miller of the Shreveport Police Department. Based on the descriptions given by Bailey and Wells, Corporal Javon Tyler, a community liaison officer for District Five, came across defendant later the same day as the incident. After defendant was taken into custody, Detective Miller prepared a photographic lineup which included defendant’s picture. Although Detective Miller told Bailey that the lineup might not contain the assailant’s picture, Bailey chose defendant’s picture and said that he was “78%” sure that this was the man who kidnapped and robbed him. Bailey testified that he was in the courtroom the day before the trial began, and he saw defendant in the courtroom at that time. When he heard defendant speak in court on that day, Bailey was certain that defendant was the man who kidnapped and robbed him. At the time of his testimony at trial, based on everything, Bailey was “100% sure” that defendant was his assailant.

On cross-examination, Bailey stated that he only saw the perpetrator’s face for a split second. Because he was in the military, he was able to tell that the gun was a large, semi-automatic firearm. The only time that he saw the gun was in that instant when the man was outside of his car.

Detective Jack Miller of the Shreveport Police Department testified. Detective Miller testified that he had spoken to Michelle Wells after the incident. Wells told him that she also had seen defendant around the Salvation Army shop on Stoner Avenue. According to Miller, when he showed Bailey the six-person photographic lineup, Bailey picked out ¡(¡defendant and said that he was about 80% sure that he was the perpetrator. When Miller asked Michelle Wells and her father to look at the lineup, the father was unable to select a photo, but Wells selected the photograph of defendant. Detective Miller retrieved security camera pictures from the banks at which the ATMs were visited during the crime, but the pictures did not show the contents of the back seat of Bailey’s car because of the tint on the rear windows. The police department performed a crime scene investigation of Bailey’s car, but neither the fingerprints nor the DNA samples which police collected yielded useful results.

After the state rested, defendant took the witness stand to testify. Defendant stated that around the time of the crime he was homeless, and that he slept on the porch of the bingo hall near the Super 1 Foods and the “Hong Kong.” He said that he came back to Louisiana from Kansas City nine months before trial to see his girlfriend in Bossier City. When he arrived and learned that she no longer cared to see him, that’s when he became homeless. Defendant stated that, because of his transient way of life, he did not know his location at the time of the crime, but he guessed that he had been either on a city bus, on the porch of the bingo hall or by Wal-Mart. The only two people who he thought might be able to attest to his whereabouts would be the security guard and the nighttime janitor at the bingo hall. Defendant stated that he was a professional panhandler and that he gambled on a daily basis. Defendant put great emphasis on the fact that the state had no gun, no fingerprints, and no video recordings to show that he committed the crimes with which he was charged.

17Regarding his identifications by Bailey and Wells, defendant said that he had come in contact with Bailey while panhandling at a Wendy’s restaurant parking lot. One day after gambling at “What’s on Tap?,” which is near the Wendy’s restaurant, defendant asked Bailey for some change. According to- defendant, Bailey said to him, “You look like the guy that just robbed my wife. Did you just rob my wife?” Defendant stated that he had never seen Bailey before that, and that on that day Bailey drove a gray Chrysler car.

Defendant stated that Michelle Wells looked familiar to him, but that he did not remember ever meeting her. He explained that she could identify him because she had probably seen him panhandling in the area like she said. He also stated that he had worn glasses before going to jail, where he lost them, apparently implying that this fact tended to show that the •witnesses had misidentified him. He asserted that Wells’ claim to have seen him commit a crime arose from a “malicious intent” which she developed against him when she saw him panhandling.

On cross-examination, defendant admitted that he had a prior theft conviction, but stated that it occurred in the 1980s and it was for a fishing pole. Defendant also admitted to a 2007 Nebraska conviction for possession of crack cocaine, for which he received two years of parole. He explained that he had been addicted to crack cocaine for 17 years, and that he supported his habit with his monthly Social Security check and by panhandling. He was unsure whether he had smoked crack cocaine on the day of the crime. According to defendant, he has always been able to support himself, and he has never had to rob “nobody for nothing.” Defendant also 1 ^testified that he was being set up and sold out by his public defender and railroaded by the state.

The state called Matthew Bailey on rebuttal. Bailey testified that he had never owned a gray Chrysler, he had never seen defendant before October 30, 2012, his wife had never been robbed or attacked, and he had never met Michelle Wells.

The jury returned a verdict of guilty as charged of armed robbery with a firearm and guilty as charged of second degree kidnapping

Thereafter, the defense submitted a motion in arrest of judgment, a motion for new trial, and a motion for post-verdict judgment of acquittal.

The trial court denied defendant’s motions. Defendant waived sentencing delays. The court then noted that the statutory range for armed robbery was 10 to 99 years at hard labor and sentenced the defendant to 30 years at hard labor. For use of a firearm in the robbery, the court sentenced defendant under La. R.S. 14:64.3 to an extra five years without benefit of parole, probation, or suspension of sentence. For the second degree kidnapping, the court sentenced defendant to 20 years at hard labor, to be served concurrent to the robbery sentence, with two of the years to be served without the benefit of parole, probation, or suspension of sentence. The trial court gave no explanation for the sentences imposed and cited no sentencing factors.

Defendant’s motion to reconsider excessive sentence was denied. Defendant has appealed, urging five assignments of error.

Discussion

Sufficiency of the Evidence

| gAccording to defendant, the evidence was insufficient to support his conviction for armed robbery and second degree kidnapping. Specifically, defendant emphasizes that after viewing the photo array, Bailey told Detective Miller that he was only 78% sure that defendant’s photograph matched the face of his assailant. Defense counsel notes Bailey’s testimony that he was only able to view the assailant’s face for a moment because he was too frightened to look for longer than that, and at trial Bailey’s testimony was:

And for a long time I just wondered — I mean, after — after they arrested him and after I had identified him and even hearing that — you know, even hearing that the other witness identified him, I still — I still would see people on the street sometimes and — and think, well, you know, well, is that the guy or — I mean, I just — I was just still scared to the point where I — you know, I was still worried that maybe they didn’t have the right guy; maybe he was still out there.

Regarding Michelle Wells’ identification of defendant, defense counsel argues that Wells recognized defendant from the two times that she saw him panhandling before the crime, and that her ability to identify defendant as the assailant is weak because she wasn’t really paying attention to the fight between the assailant and Bailey in the Auto Zone parking lot.

Defendant also emphasizes that although he was arrested on the day of the crime, police found no money on him, nor did they ever find the gun allegedly used in the crime, the money allegedly stolen, fingerprints, DNA evidence, or any video recordings depicting defendant.

Sufficiency of the evidence to sustain a state criminal conviction implicates the due process clause of the Fourteenth Amendment. Due process requires that the state prove beyond a reasonable doubt every 110essential element necessary to constitute the crime charged. Thus, a claim that evidence is insufficient to support a conviction as a matter of due process depends on whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. The defendant must be acquitted if the evidence is insufficient to support the jury’s findings on each element of the offense, as a conviction based on legally insufficient evidence on any element of the charged offense constitutes a denial of due process. Jackson v. Virginia, 448 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 90-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

In the instant case, two witnesses testified that defendant was the man who fought with Matthew Bailey in the parking lot of the Auto Zone. The victim, Matthew Bailey, testified that defendant was the man who kidnapped and robbed him. Both Bailey and Wells picked defendant out of a six-man photographic lineup. Although Bailey testified that he was not fully certain that defendant was his assailant until he saw and heard defendant in court, | nBailey was nonetheless certain of defendant’s identity at trial, recognizing defendant by both his appearance and his voiee.

What defendant appears to claim is that Bailey’s and Wells’ identification of him as the assailant was not credible. Both witnesses had an opportunity to see the criminal at the time of the crime, the degree of attention was great, the accuracy of the witnesses’ prior descriptions was high, as they were largely the same, the two witnesses separately chose the same man from the photographic lineup, and their level of certainty was high. Bailey was 78% sure of his identification when looking at a photograph and 100% sure in court, while Wells was entirely sure defendant was Bailey’s attacker both when looking at defendant in the photo lineup and in court. The length of time between the crime and the confrontation is very short: apparently both Bailey and Wells viewed the photographic lineup only two or three days after the crime, and the trial occurred only about six months after the offense. According to these factors, the identification of defendant by Bailey and Wells was reliable. See State v. Kemp, 39,358 (La.App.2d Cir.03/11/05), 896 So.2d 349, unit denied, 05-0937 (La.12/09/05), 916 So.2d 1052.

Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient for a rational jury to find guilt proven beyond a reasonable doubt. This assignment of error is without merit.

Admissibility of Photo Lineup

In this assignment of error, defendant argues that the photographic lineup was unduly suggestive because defendant’s head was larger than the heads of the other five people pictured. Defendant argues that the 112suggestiveness of the lineup created such a likelihood of misidentifi-cation that reversal of the conviction is necessary.

A hearing on defendant’s motion to suppress photo identification and in court identification was held on May 2, 2013. At the hearing, Detective Jack Miller testified that he had received defendant’s photograph from the jail where he was being held, and that he compiled the lineup using the AEIS computer system, which randomly picks photographs of persons with physical qualities identified by the compiler of the lineup. Det. Miller testified that these pictures are often taken from different distances, and he has no way of adjusting the sizes of the people depicted in the pictures.

In seeking to suppress an identification, the defendant must prove the procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. State v. Martin, 595 So.2d 592 (La.1992).

Photographs used in a lineup are suggestive if they display the defendant so singularly that the witness’s attention is unduly focused on the defendant. State v. Smith, 430 So.2d 81 (La.1988). It is not required that each person whose photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is sufficient resemblance to reasonably test identification. State v. Smith, supra; State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

In the photographic lineup shown to both Bailey and Wells, defendant’s head is bigger than the heads in the other pictures. However, it is not that much bigger than the head of the picture on the bottom left corner |1sof the page. Although the larger size of a picture might tend to focus a witness’s attention upon it, the difference in this case is so small that the slightly greater size of defendant’s picture is very unlikely to have weighed upon the witnesses’ identification. We note that, regarding the photo lineup, defendant remarked during his testimony that the picture of the man directly above his looked enough like him that he could have been his brother. This assignment of error is without merit.

State’s Use of Peremptory Challenges

In his third assignment of error, defendant argues that the state wrongly used its peremptory challenges to strike black jurors. The defense made the same argument in the trial court when it moved orally to quash the jury panel at the end of voir dire. In the estimate of defendant’s trial counsel, half of the initial venire jurors were white and half were black. The state then used nine of its ten peremptory strikes against black jurors, so that only a fourth of the final jury, three members out of twelve, were black. The court found that the fact that the state used nine of its ten strikes against black venire jurors did not in itself create a prima facie case; even so, it ordered that the parties proceed through the list of challenges one by one. Defense counsel identified the specific strikes that it contested, and the state presented its race-neutral reasons for the strikes. The court then analyzed each juror individually and concluded that “the prosecutor did not demonstrate a pattern of challenging these Jurors only on the basis of their race.”

It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 141712, 90 L.Ed.2d 69 (1986); La. C. Cr. P. art. 795. In State v. Draughn, 05-1825 (La.01/17/07), 950 So.2d 583, 600, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the proper reviewing process for a Batson claim, as recently described by the U.S. Supreme Court in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), was set forth as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S. at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id., at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 884 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331-2332, 162 L.Ed.2d 196 (2005). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834.
A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991); Batson, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724.

In State v. Green, 94-0887 (La.05/22/95), 655 So.2d 272, the Louisiana Supreme Court held that the sole focus of the Bat-son inquiry is the intent of the prosecutor at the time he exercised his peremptory strikes. 15See also State v. Juniors, 03-2425 (La.06/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. Id.; State v. Myers, 99-1803 (La.04/11/00), 761 So.2d 498; State v. Jones, 42,531 (La.App.2d Cir.11/07/07), 968 So.2d 1247; State v. Coleman, 41,764 (La.App.2d Cir.01/24/07), 949 So.2d 570, writ denied, 07-0459 (La.10/12/07), 965 So.2d 398.

According to the analysis set forth in State v. Draughn, supra, the trial court should first determine whether the defendant has made a prima facie showing of race-based peremptory challenges. If the prima facie showing exists, then the state must provide race-neutral reasons for each challenge. It is then that the trial court must then determine whether the state has carried its burden.

In this case, the trial court found that defendant had not made a prima facie showing of race-based peremptory challenges, but nonetheless moved to step two of the Draughn inquiry and allowed defendant to present individual arguments that each of the challenges exercised by the prosecutor had a racial basis.

Of the nine contested peremptory challenges, seven were challenges of venire jurors who either had been a victim of a crime, had relatives who had been victims, or had relatives who were convicted criminals. Four potential |1fijurors said that they were unhappy with the state’s treatment of the crimes involving them or their family members. Two potential jurors were challenged for their inability to pay attention or for flippant responses and an inappropriate attitude toward the gravity of these proceedings.

The state gave race neutral reasons for all of the contested peremptory strikes. All of them are facially persuasive, and all were analyzed and found to be non-racially motivated by the trial court. The record shows no manifest prosecutorial intent to strike jurors because of their race. This assignment is without merit.

| itDenial of Request for Mistrial

Defendant argues that the trial court erred in refusing to grant a mistrial after the state solicited testimony about defendant’s post-arrest silence in the presence of the jury. At trial, the following colloquy occurred between the prosecutor, defense counsel, trial judge, and Detective Jack Miller during the state’s direct examination of Detective Miller:

Prosecutor: Did you subsequently arrest the Defendant for the charges of armed robbery and kidnapping?
Det. Miller: Yes, I did do charge sheets on him for the armed robbery and kidnapping.
Prosecutor: Okay. Did you speak with the defendant?
Defense Counsel: Objection.
The Court: What is your objection?
Defense Counsel: Fifth Amendment.
Prosecutor: We’re talking about an investigation here. Am I to get the Detective to lie and say that he didn’t attempt to talk to somebody? Pm unsure.
The Court: It’s not a valid objection. I overrule it. Move on.
Prosecutor: Okay.
Prosecutor: Did [defendant] make a statement to you?
Det. Miller: He did not. I went to the jail to talk to him, and he just advised he would like to speak to his Attorney. That ended the interview.

At the end of Detective Miller’s testimony, defense counsel moved for a mistrial. Although the judge denied the mistrial, when the jury returned from a short recess, the judge nonetheless admonished the jury to disregard the testimony about defendant’s post-arrest silence.

The Fifth Amendment to the U.S. Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. To give full effect to the Fifth Amendment’s protection, the Supreme Court has held that the Fifth Amendment prohibits comments by the prosecution on the defendant’s post-arrest silence. Griffin v. California, 18380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The general rule is that a defendant’s silence cannot be used against him as evidence of guilt. Griffin, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Under La. C. Cr. P. art. 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the state, to promptly admonish the jury. State v. Washington, 46,265 (La.App.2d Cir.08/17/11), 72 So.3d 422. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant of a fair trial, the court may grant a mistrial upon the motion of the defendant. La. C. Cr. P. art. 771.

A mistrial is a drastic remedy to be invoked only when defendant suffers such substantial prejudice that he is deprived of any reasonable expectation of a fair trial. State v. Higginbotham, 46,975 (La.App.2d Cir.04/25/12), 122 So.3d 1, writ denied, 12-1718 (La.05/24/13), 116 So.3d 658. The decision to grant or deny a mistrial lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Id. Likewise, the determination of whether an admonition will adequately cure any prejudice and assure a fair trial lies within the trial court’s discretion. Id.; State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993).

A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes. State v. Jones, 40,652 (La.App.2d Cir.01/25/06), 19920 So.2d 941, writ denied, 06-1164 (La.12/15/06), 944 So.2d 1278; State v. Mays, 612 So.2d 1040 (La.App. 2d Cir.1993), writ denied, 619 So.2d 576 (La.1993).

The state specifically presented the information that defendant exercised his right to remain silent and asked for an attorney. The trial judge allowed this information. This was clearly wrong. However, the trial judge, after a break, did, without a request from the prosecutor or defense counsel, admonish the jury to disregard the question and answer. The testimony about defendant’s refusal to speak to Det. Miller was general and brief. See State v. George, 95-0110 (La.10/16/95), 661 So.2d 975; State v. Kersey, 406 So.2d 555 (La.1981). Furthermore, defendant’s post-arrest silence was not mentioned again by any other witness or by the prosecutor in his closing argument. The trial as a whole was conducted fairly. We find that the prosecutor’s questions, while clearly improper, were unlikely to have been a factor in the jury’s decision to convict defendant, where two separate eyewitnesses identified with certainty defendant as the kidnapper and robber. The jury’s finding of guilt was surely unattributable to the error. This assignment lacks merit.

| ^Excessive Sentence

We will first address defendant’s argument that the trial court imposed an extra five years of imprisonment under La. R.S. 14:64.3 because defendant committed the robbery with a firearm. The state agrees with defendant that the five-year sentence for use of a firearm during a robbery was wrongly imposed based upon the state’s failure to accuse defendant of this specific crime in the bill of information or the bill of particulars. We will therefore amend defendant’s sentence to delete the extra five-year term of imprisonment for use of a firearm in an armed robbery. See State v. Willis, 45,857 (La.App.2d Cir.12/15/10), 56 So.3d 362, writ denied, 11-0150 (La.06/17/11), 63 So.3d 1034.

Defendant asserts that his sentences are excessive. Defendant cites the trial court’s failure to state its consideration of any of the sentencing factors of La. C. Cr. P. art. 894.1.

When the trial judge sentenced defendant, the only explanation that she gave was the statutory range for the sentences. The court did not name any of the La. C. Cr. P. art. 894.1 factors or list any qualities of the offense or the offender to illustrate the reason for the length of sentences given. This failure is a violation of La. C. Cr. P. art. 894.1(C), which requires a sentencing judge to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

In State v. Landos, 419 So.2d 475, 477-78 (La.1982), the Louisiana Supreme Court held:

[T]he trial judge’s failure to comply with Article 894.1 does not automatically render a sentence invalid. This court has held that although Article 894.1 provides useful guidelines for the | ⅞1 determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 408 So.2d 660 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980). Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed this court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1. (Emphasis added).

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

As the Louisiana Supreme Court stated in State v. Landos, supra, the failure to state the factual basis for a sentence is not grounds for reversal where the basis is apparent from the record.

The trial court heard the evidence at trial and implicitly considered the information presented. We note that defendant waived any sentencing delays. Several of the factors from La. C. Cr. P. art. 894.1 apply: defendant received something of value by committing the crime; defendant used threats of or actual violence; and, defendant used a dangerous weapon in the | ^commission of the offense. Also presented was defendant’s absence of a violent criminal history; his status as a homeless, drug-addicted, possibly disabled panhandler; and his age of 50 years. Defendant’s only prior convictions mentioned in the record, an old theft conviction and possession of cocaine, are non-violent offenses.

La. R.S. 14:64 provides that the sentence for armed robbery is imprisonment at hard labor for not less than 10 years nor more than 99 years, without the benefit of parole, probation, or suspension. Although not a light term, defendant’s 30-year robbery sentence is 69 years shorter than the statutory maximum and much closer to the lowest allowable sentence than to the highest. Furthermore, the robbery sentence encompasses the concurrent second degree kidnapping sentence of 20 years, which itself is only half of the statutory maximum of 40 years. See La. R.S. 14:44.1. The facts present in the record support the sentences imposed, which we find neither to constitute an abuse of the trial court’s sentencing discretion, nor to be excessive by constitutional standards. The fifth assignment of error fails in this regard.

Error Patent Review

Our error patent review reveals three such errors. First, defendant’s robbery sentence should have been ordered to be served without benefit of probation, parole or suspension of sentence. La. R.S. 14:64. However, the trial court’s failure to state that the sentence for armed robbery is to be served without benefit will be corrected automatically by operation of La. R.S. 15:301.1. State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.03/11/05), 896 So.2d 57.

^Second, the bill of information charged defendant with second degree kidnapping under La. R.S. 14:44.2. Second degree kidnapping is actually La. R.S. 14:44.1, while La. R.S. 14:44.2 is aggravated kidnapping of a child. The error, however, is harmless; the bill of information charges “Second Degree Kidnapping” as Count One, and nothing else in the record gives any cause for doubt that second degree kidnapping was the offense charged. The error, not having been objected to, has been waived. La. C. Cr. P. art. 585(A)(2).

Finally, the trial court did not inform defendant of the two-year delay for the filing of post-conviction relief as required by La. C. Cr. P. art. 930.8(C). This court hereby notifies defendant that he has two years from the date that his convictions and sentences have become final under La. C. Cr. P. Art. 914 or 922 to file any applications for post-conviction relief. State v. McNeil, 42,231 (La.App.2d Cir.06/20/07), 961 So.2d 554.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed except that the armed robbery sentence is amended to delete the extra five years for use of a firearm in an armed robbery. CONVICTIONS AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.


author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Ladoia SMITH.
    No. 2013-KA-0143.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirkham, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS.
   SANDRA CABRINA JENKINS, Judge.

11 Ladoia Smith was found guilty as charged of simple kidnapping, a violation of La. R.S. 14:44, and home invasion, a violation of La. R.S. 14:62.8. Smith was sentenced to five years for simple kidnapping and sentenced, as a multiple offender, to forty years for home invasion. Smith appeals his conviction for home invasion, arguing that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he committed the essential elements of that crime. For the following reasons, we affirm Smith’s convictions and sentences.

RELEVANT FACTS AND PROCEDURAL HISTORY

Natasha Dorsey testified that, in the summer of 2010, she began a romantic relationship with the defendant, Ladoia Smith, but she ended the relationship with him in January, 2011. During the course of their relationship, they both lived on the westbank of New Orleans, and she and Smith often stayed together at his mother’s house or a friend’s house on the west-bank. When Ms. Dorsey ended the relationship with Smith, she went to live on the eastbank of New Orleans at Ms. Barbara Jackson’s house on Josephine Street.

li-Ms. Dorsey testified that Ms. Jackson’s house is a two story residence with two municipal addresses, 1004 and 1006 Josephine Street. There is an upstairs residence, a downstairs apartment, and a nursery daycare center in the downstairs portion of the house. Ms. Dorsey moved into the residence with her daughter, Brit-tani, and lived there with Ms. Jackson and her daughter, Tasmen, who ran the daycare program. Ms. Dorsey also worked as an assistant teacher at the daycare program that operated out of 1004/1006 Josephine Street.

Not long after Ms. Dorsey went to live on Josephine Street, an incident with Smith prompted Ms. Dorsey to file for an order of protection from Smith. On February 13, 2011, at approximately 2 p.m., Ms. Dorsey walked from the house on Josephine Street to a nearby store. She left her daughter Brittani at the house in the care of LaShawn Jackson, Ms. Jackson’s granddaughter, and Rochelle Peck. When Ms. Dorsey returned to the house, LaShawn informed her that “Brittani’s dad” had come to pick up Brittani. When Ms. Dorsey heard the description of the man, she knew that it was Smith, not Brittani’s father, who had picked up Brit-tani. Ms. Dorsey contacted Smith’s mother and she learned that Smith did have Brittani. Ms. Dorsey then called 911 to report that Smith had taken her daughter without her permission.

Officer Jamar Goines testified that he arrived at the house on Josephine Street at approximately 5 p.m. and obtained a statement from Ms. Dorsey. While Officer Goines was at the house, Ms. Dorsey continued to contact Smith’s mother and a friend of Smith’s, Ashley Singleton, about the whereabouts of Smith and Brittani. Ms. Dorsey eventually arranged to get Brittani from Smith at Ashley’s house on the westbank. Officer Goines stayed at 1006 Josephine Street until Ms. Dorsey returned with Brittani at approximately 8:30 p.m. that evening.

|oTwo days after the incident, on February 15, 2011, Ms. Dorsey filed for an order of protection from Smith. In her application for the order of protection, Ms. Dorsey listed 1006 Josephine Street as her residence where she sought protection for herself and her daughter. The order was granted by the Orleans Parish Civil District Court on February 15, 2011, and a temporary restraining order was issued, ordering Smith not to contact Ms. Dorsey personally or go within 100 yards of her.

At trial, Ms. Dorsey and Rochelle Peck each testified that, on the morning of February 18, 2011, they were standing outside the gated entry of 1004/1006 Josephine Street awaiting the arrival of children for the daycare program. While standing outside the gate, Ms. Dorsey heard someone calling her name from across the street and she saw Smith running towards the residence. Ms. Dorsey told Rochelle to run and they both ran inside the gate and into the residence. Rochelle ran ahead through the door and the hallway while Ms. Dorsey closed and locked the downstairs door to the residence behind her. As the women ran through the house, they heard a loud crashing sound behind them. They went out of the back door and climbed the back stairs leading to the upstairs residence, but the upstairs door was locked. Ms. Dorsey started to bang on the door to get the attention of Ms. Jackson who was in the upstairs residence. Rochelle ran down the stairs to go around the house and get in from another entrance. Rochelle saw someone come through the downstairs back door and go towards Ms. Dorsey, but she did not see the person clearly.

Ms. Dorsey testified that she was at the top of the stairs, when Smith came out of the downstairs back door and up the steps. Smith pulled her by the hair and began hitting her. Ms. Dorsey stated that she believed he was going to break her | Jaw or kill her if she did not go with him. Smith led her down the steps, back through the house, and out the front door onto Josephine Street. Smith continued to threaten her, hit her, and pull her hair as they walked down Josephine Street and turned onto Magazine Street.

Ms. Lilly Vuong testified at trial that, on the morning of February 18, 2011, she was standing on Magazine Street near St. Mary Street (two blocks from Josephine Street) when she saw a man and woman walking towards her. Ms. Vuong stated that the man was hitting the woman on the head and pulling her by her hair. Ms. Vuong did not intervene but waited for them to pass and then called 911. Ms. Vuong reported what she saw to the 911 operator and described the man as a black male wearing a yellow Hawaiian shirt and the woman as a black female with a purple shirt.

Detective Kevin Marshall testified that he was on patrol on the morning of February 18, 2011, when he responded to a 911 dispatch in the 1000 block of Josephine Street. He stated that the address was 1006 Josephine Street. When he arrived, he spoke with Ms. Barbara Jackson, Tas-men Jackson — who had not been present during the incident — and Rochelle Peck. From speaking with the women, Det. Marshall learned that Ladoia Smith entered the house and forcibly took Ms. Dorsey from the house. Det. Marshall broadcast over the radio a description of Smith and Ms. Dorsey. He stated that Smith was wearing a bright colored shirt and jeans and Ms. Dorsey was wearing a purple shirt. When Det. Marshall checked their names in the computer-assisted dispatch, he learned that Ms. Dorsey had an order of protection against Smith.

Det. Marshall also called the crime lab to take photographs of the scene at the residence. Det. Marshall observed that the front downstairs door appeared to 15be broken. He described it as a wooden door with nine window panes, six of which had been broken, particularly near the doorknob. Det. Marshall noted that there was some broken glass on the outside of the door, but most of the broken glass was on the inside of the residence, consistent with the glass being broken from the outside.

While Det. Marshall was still investigating the scene at 1006 Josephine Street, Tasmen Jackson received three or four phone calls from Ms. Dorsey. During each phone call from Ms. Dorsey, Det. Marshall was standing next to Tasmen and listening to the calls. He heard Ms. Dorsey crying and sobbing on the phone and a male voice in the background screaming at her and telling her what to say. Through the information gathered from the phone calls, Det. Marshall learned that Smith had taken Ms. Dorsey on the Mississippi River ferry to the westbank, and he learned the address of where they were heading. Det. Marshall contacted the Sixth District Police Station and communicated this information.

Detective Sandra Contreras testified that in February, 2011, she was a sergeant in the Sixth District and assigned to Persons Crimes. On February 18, 2011, she received a call from her supervisor about an ongoing investigation of Smith for the kidnapping of Ms. Dorsey. Det. Contreras received information that Smith was en route to 1914 Shallett Street on the west-bank. Det. Contreras responded to that location with three other detectives. As they arrived in the 1900 block of Shallett Street, Det. Contreras observed the persons matching the descriptions of Smith and Ms. Dorsey walking towards the address of 1914 Shallett. Det. Contreras instructed one of the other detectives to “grab” Ms. Dorsey, and secure her safety. Det. Contreras identified herself as a police officer |fiand ordered Smith to get on the ground. Smith complied and Det. Contreras took him into custody.

Ladoia Smith was charged by the Orleans Parish Grand Jury, through bill of indictment filed on April 21, 2011, with one count of home invasion of the inhabited dwelling “belonging to Natasha Dorsey,” and one count of aggravated kidnapping of Natasha Dorsey. On June 10, 2011, Smith entered a plea of not guilty to the charges in the indictment. Prior to trial, the State amended the indictment on the count of home invasion to state, “an inhabited dwelling located at 1004 and 1006 Josephine Street where a person Natasha Dorsey was present.” The State also amended the original charge of aggravated kidnapping to simple kidnapping.

On March 21, 2012, Smith elected a trial by jury. On March 28, 2012, a unanimous jury found Smith guilty as charged in a unanimous verdict. Smith filed a motion for new trial and motion for post-verdict judgment of acquittal; the trial court denied both motions on August 10, 2012. At the sentencing hearing on September 6, 2012, the trial court reviewed the pre-sentence investigation of Smith, stated the considerations and factual basis for imposing sentence, and sentenced Smith to five years for simple kidnapping and twenty years without the benefit of parole, probation or suspension of sentence for home invasion.

After sentencing, the State filed a multiple offender bill against Smith. On September 17, 2012, Smith appeared before the trial court and entered a plea of guilty as a multiple offender on the charge of home invasion. The trial court accepted the plea, vacated the sentence previously imposed for Smith’s conviction on home invasion, and sentenced Smith to forty years with the first twenty to be |7served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals.

ERRORS PATENT

The record reveals one error patent in Smith’s sentence for home invasion. The trial court erred in imposing Smith’s sentence without benefit of parole, probation or suspension of sentence. Under the provisions of La. R.S. 14:62.8(B), a sentence for home invasion shall be imposed without benefit of parole, probation or suspension of sentence if, “at the time of the unauthorized entering, there is present in the dwelling or structure any person who is under the age of twelve years, is sixty-five years of age or older, or who has a developmental disability as defined in R.S. 28:451.2.” La. R.S. 14:62.8(B)(1). No such facts were alleged in the indictment, argued to the jury, or included in the jury instructions and verdict form. Under the facts of this case and in accordance with La. R.S. 14:62.8, the trial court erred by imposing restrictions on parole, probation, and suspension of sentence for Smith’s conviction for home invasion. Under La. R.S. 15:529.1(G), however, Smith’s sentence as a multiple offender shall be served without benefit of probation or suspension of sentence. We need not remand for re-sentencing, because this sentencing error is self-correcting under the provisions of La. R.S. 15:301.1(A). State v. Williams, 00-1725, pp. 14-15 (La.11/28/01), 800 So.2d 790, 801. In all other respects, we affirm Smith’s sentence and we find no other errors patent in the record.

| «DISCUSSION

Sufficiency of the Evidence

In his only assignment of error, Smith argues that the evidence adduced at trial is insufficient to support his conviction for home invasion because the State did not prove that he made unauthorized entry into an inhabited dwelling, as required by La. R.S. 14:62.8. Smith argues that the State had the burden to prove that he entered a property used specifically as an inhabited dwelling, or used in whole or in part as a home; but, he contends the State only produced evidence that Smith entered a business — the daycare — located within the same building as an inhabited dwelling. Smith contends that the building at 1004 and 1006 Josephine Street contains a daycare center within the downstairs unit at 1006 Josephine Street, which functions solely as a business; but, the residence is in the upstairs unit at 1004 Josephine Street. Smith argues that the State did not produce any evidence that he entered into the upstairs unit of the building that constitutes an inhabited dwelling. Therefore, Smith argues, the State failed to prove beyond a reasonable doubt an essential element of the crime of home invasion and the evidence is insufficient to sustain his conviction for that crime.

In reviewing the sufficiency of the evidence, Louisiana courts apply the constitutional standard set forth by the United States Supreme Court in Jackson v. Virginia. Under the Jackson standard, the appellate court must determine whether, after viewing all the record evidence in the light most favorable to the prosecution, any rational fact finder could have found the essential elements of the crime 9beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988); State v. Pleasant, 10-1533, pp. 5-6 (La.App. 4 Cir. 5/18/11), 66 So.3d 51, 55. Considering the record as a whole, if rational fact finders could disagree as to the interpretation of the evidence, the fact finder’s view of all the evidence most favorable to the prosecution must be adopted. State v. Egana, 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228. The fact finder is presumed to be rational in the determination of facts and credibility of witnesses, and it is not the function of the appellate court to assess the credibility of witnesses or re-weigh the evidence absent a finding that the factual conclusions are clearly contrary to the evidence. State v. Jones, 97-2591, p. 7 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169. In the absence of internal contradictions or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient to support a requisite factual conclusion. State v. Higgins, 03-1980, p. 6 (La.4/1/05), 898 So.2d 1219, 1226.

To convict Smith of home invasion, as defined in La. R.S. 14:62.8, the State had to prove beyond a reasonable doubt the following elements: (1) Smith entered 1004/1006 Josephine Street without permission or authorization; (2) that the place he entered was an inhabited dwelling or a place used in whole or in part as a home by another person; (3) that a person was present in the home when Smith made entry; and (4) Smith had the intent to use force or violence against a person in the home or to vandalize, deface, or damage the property. State v. Hart, 10-1614, p. 6 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 30.

Addressing Smith’s argument first, we consider whether, viewing all the evidence in a light most favorable to the prosecution, the jurors could find that | TnSmith entered into an inhabited dwelling, a place used in whole or in part as a home, at 1004/1006 Josephine Street. In order to satisfy the element of inhabitation at the time of entry, jurors must be able to conclude beyond a reasonable doubt that the place was being used in whole or in part as a home. “To determine whether the house was ‘lived in’ at the time of the unauthorized entry, it is proper to consider whether the occupant deemed the house to be her place of abode and treated it as such.” State v. Black, 627 So.2d 741, 745 (La.App. 2nd Cir.1993) citing State v. Conn, 420 So.2d 1123, 1125.

Ms. Dorsey testified at trial that she was living at 1006 Josephine Street on, and prior to, February 18, 2011. She also listed 1006 Josephine Street as her residence when she filed for an order of protection from Smith on February 15, 2011. The New Orleans Police Department incident recall and the police report from February 18, 2011, show the location of the incident as 1006 Josephine Street. In his police report, Det. Marshall recorded 1006 Josephine Street as the home address of Natasha Dorsey and Barbara Jackson; it is also listed as the work address of Natasha Dorsey and Tasmen Jackson; but Tas-men Jackson’s home address is listed as 1004 Josephine Street. Det. Marshall further testified about the incident, stating that Ms. Dorsey was taken from her home at 1006 Josephine Street.

The record reveals that the addresses of 1004 and 1006 Josephine Street are used interchangeably to refer to the residence and the daycare, but the testimony is consistent on the fact that Ms. Dorsey was taken from the place where she lived and considered to be her home. Viewing all of the record evidence and testimony in a light most favorable to the prosecution, we find that the evidence was sufficient for the fact finders to conclude beyond a reasonable doubt that Smith |n entered into an inhabited dwelling, at 1006 Josephine Street, where Natasha Dorsey resided on February 18, 2011.

To satisfy the other essential elements of the crime of home invasion, the State had to prove that Smith entered the inhabited dwelling without permission or authorization and that he entered with the intent to use force or violence against a person inside or to damage property. The record reveals sufficient evidence and testimony to satisfy these requirements beyond a reasonable doubt.

Ms. Dorsey testified that, on February 15, 2011, she filed for an order of protection from Smith, “[s]o that [Smith] wouldn’t cause any harm to Brittani or myself.” In that order of protection, Smith was ordered not to go within 100 yards of Ms. Dorsey’s residence at 1006 Josephine Street. Thus, Smith was not permitted or authorized to go near the house on Josephine Street, but the evidence clearly supported the fact that he went on the property and inside the house. Ms. Dorsey also testified that, on the date of the incident, she saw Smith approaching her as she stood outside the house. She then ran inside the house and locked the door in order to keep him out. Ms. Dorsey and Rochelle Peck each testified to hearing a loud crashing noise after Ms. Dorsey locked the front door and as they ran toward the back stairs. Det. Marshall testified that his investigation of the scene revealed a broken door with several broken panes of glass consistent with the door being broken from the outside. Thus, the evidence and testimony reveals that Smith came onto the property, gained entry into the house without authorization or permission and caused damage to the property.

The testimony of Ms. Dorsey also reveals Smith’s intent to use force or violence against her after he gained entry into the house. She testified that he reached her on the back stairs, grabbed her, pulled her hair, and began hitting her. |12She stated that he continued to grab, pull, and hit her as they walked from the house and onto Magazine Street. Ms. Lily Vuong also testified that she witnessed Smith pulling and hitting Ms. Dorsey as they walked along Magazine Street. The eyewitness testimony corroborates Ms. Dorsey’s testimony and shows Smith’s intent to use force against Ms. Dorsey after he gained entry to the house.

Viewing all of the evidence and testimony, we find the evidence is sufficient for rational jurors to conclude beyond a reasonable doubt that Smith committed each essential element of the crime of home invasion. Despite Smith’s argument that he only entered the downstairs daycare and not an inhabited dwelling, the jury weighed the credibility of all witnesses alongside the evidence introduced at trial, and the jury’s findings and verdict were not contrary or irreconcilable with the evidence. It is not the function of this Court to assess the credibility of the witnesses or reweigh the evidence. State v. James, 09-1188, pp. 4-5 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996; State v. Vessell, 450 So.2d 938, 943 (La.1984). Considering all of the record evidence, both direct and circumstantial, in a light most favorable to the prosecution, we find the evidence sufficient beyond a reasonable doubt to sustain Smith’s conviction for home invasion.

CONCLUSION

For the reasons stated above, we affirm Smith’s convictions and sentences for simple kidnapping and home invasion.

AFFIRMED.

      . Orleans Parish Civil District Court Case No. 11-1578.

      . Smith does not assign error to his conviction or sentence on the charge of simple kidnapping. Finding no errors patent with that conviction or sentence, we affirm. La.C.Cr.P. art. 920.

      . Home invasion is defined in La. R.S. 14:62.8 as,
      the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.