author: JAMES T. GENOVESE, Judge.

text:
    STATE of Louisiana v. Ronald PETE.
    No. 13-1107.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Ronald Pete.
    Ronald Pete, Pine Prairie, Louisiana, In Proper Person.
    Trent Brignae, District Attorney-Thirteenth Judicial District, J. Gregory Vid-rine, Assistant District Attorney, Ville Platte, Louisiana, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   JAMES T. GENOVESE, Judge.

Lin this criminal case, Defendant, Ronald Pete, appeals his convictions for aggravated burglary, armed robbery, and possession of a firearm by a convicted felon. Defendant’s appellate counsel alleges insufficiency of the evidence and trial court error in substituting an alternate juror for an original juror. Defendant, pro se, has filed a brief, alleging an incomplete record and double jeopardy. For the following reasons, we affirm Defendant’s convictions with instructions.

FACTS AND PROCEDURAL HISTORY

The victim in this case, Mr. Roy Dela-fosse, alleges that on June 20, 2012, Defendant entered his home, uninvited, demanded money while holding a knife to his chest, and took his wallet, cell phone, and antique pistol. Defendant was later arrested and charged by bill of information with one count each of aggravated burglary, a violation of La.R.S. 14:60; armed robbery, a violation of La.R.S. 14:64; and, possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.

Subsequent to trial by jury, Defendant was found guilty as charged. He was sentenced to fifteen years at hard labor on his conviction for aggravated burglary; twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on his conviction for armed robbery; and, fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence on his conviction for possession of a firearm by a convicted felon. The trial court ordered Defendant’s sentences to run concurrently. Defendant has perfected a timely appeal, alleging the following assignments of error through his appellate counsel and also pro se.

^ASSIGNMENTS OF ERROR

By Defendant’s Appellate Counsel:

I. The [tjrial [cjourt erred in removing Juror Hayden Joubert prior to deliberations and replacing her with an alternate juror.
II. The evidence adduced at trial was insufficient to support the convictions.

By Defendant Pro Se (Usted as Issues):

1) Whether the fifty-five inaudibles in the trial transcript in violation of the Louisiana Code of Criminal Procedure (La.C.Cr.P.) Article 843 constituted plain error or deprived the defendant of his “right of judicial review based upon a complete record of all evidence upon which the judgment is based.” La. Const. Art. 1, § 19[J
2) Whether using the same evidence to establish a required element of the crime in both the Aggravated Burglary and the Armed Robbery charge constituted double jeopardy[.]

ERRORS 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 note that there is an error patent concerning Defendant’s sentence for possession of a firearm by a convicted felon and that the court minutes of sentencing are in need of correction.

Regarding possession of a firearm by a convicted felon, La.R.S. 14:95.1(A) requires the court to impose a fine of not less than one thousand dollars, nor more than five thousand dollars. This mandatory fine was not imposed by the trial court for Defendant’s conviction of possession of a firearm by a convicted felon, thereby rendering the sentence illegally lenient. However, we do not address this error patent as it was not raised as an assignment of error.

| sNext, we note that there is a discrepancy between the transcript and the court minutes of sentencing regarding Defendant’s sentence for armed robbery. The transcript indicates that Defendant’s twenty-five year sentence for armed robbery was imposed without benefit of parole, probation, or suspension of sentence, but the court minutes do not reflect the restriction of benefits. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, we instruct the trial court to correct the sentencing minutes to reflect that Defendant’s sentence for armed robbery is to be served without these benefits. See State v. Clayton, 10-1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-1015 (La.11/4/11), 75 So.3d 923; State v. Hurst, 10-1204 (La.App. 3 Cir. 4/13/11), 62 So.3d 327, writ denied, 11-975 (La.10/21/11), 73 So.3d 383.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, Defendant alleges insufficiency of the evidence. This assignment will be addressed first because, in the event there is merit to this assignment, Defendant may be entitled to an acquittal of the convictions. Accordingly, the remaining claim would be moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); State v. Hearold, 603 So.2d 731 (La.1992).

Defendant was convicted exclusively on the testimonies of the victim, Mr. Dela-fosse, and of Phyllis Serie, who was alleged to have been Defendant’s accomplice in the burglary and armed robbery of Mr. Dela-fosse. However, Defendant argues that both of these witnesses’ testimonies were so incredible that they cannot be deemed as sufficient evidence to establish his guilt beyond a reasonable doubt. With regard to sufficiency of the evidence, this court set forth the standard to be used in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Phyllis Serie testified that her father lived next door to Brittany Fontenot, Defendant’s girlfriend and mother of his son, in Ville Platte, Louisiana. She stated that on the day of the robbery, she was at her father’s house, drinking with her father and Defendant. Eventually, Defendant and Ms. Serie went next door to sit on Ms. Fontenot’s porch and began to discuss the possibility of robbing the victim. She stated that Defendant wanted her to seduce the victim to get money for drugs. She declined at that time, but later went to the victim’s house and asked him for money. Mr. Delafosse refused to give her money. She then went back to Defendant’s house. Ms. Serie testified that she had been having sex with the victim for years and that she agreed to call the victim later in the evening and tell him she was just around the corner and to leave the front door open. She explained that she knew Mr. Delafosse had money because he declined to give her money the first time she asked, saying that he had to pay his bills first.

Ms. Serie testified that around 10:00 or 11:00 p.m., Defendant, dressed in black jeans and a red and black flannel shirt with a black ski mask in hand, left to go to the victim’s house, which was just a few blocks away. She stayed behind | ¡¡because Defendant had been babysitting Ms. Fon-tenot’s children, and they were asleep. About ten minutes later, Defendant came running back through Hope Park. He had the victim’s wallet, cell phone, and antique .38 revolver. Ms. Serie testified that she noticed a knife in his jeans’ pocket that was poking out of the pocket through a hole. At trial, she identified the black jeans with the hole in the pocket, which had been later located in Ms. Fontenot’s house. She further stated that she knew the cell phone belonged to the victim because, when she looked at it, there was a missed call from his cousin in California whom he spoke with often.

Ms. Serie agreed that she initially told the police that the shirt Defendant was wearing was a “blue green turquoise shirt[,3” but explained that it was dark when he left the house and that she was uncertain of the exact color because he had taken it off before they went into the house to split the money. However, in open court, she identified the shirt located with the black pants as the shirt Defendant was wearing the night of the robbery.

She said that when Defendant returned, he described the robbery to her. He told her that he had put the knife to the victim’s throat and demanded money. As he left the house, the victim yelled after him that he was going to get him. Ms. Serie further testified that Defendant gave her about a hundred and twenty-four dollars from the wallet. She stated that she took her share of the money and purchased drugs with it and that she then went to a friend’s house to “chill.” She stated that Defendant called her about forty times early in the morning, using the victim’s cell phone. She further stated that at that time her phone number was 831-0798, that he had also called Ms. Fontenot with the phone, and that Ms. Fontenot’s phone number at that time was 532-4076.

IfiMs. Serie admitted she was addicted to painkillers and that she had spent time in prison for theft and unauthorized use of an access card. She stated that she decided to confess to the police because she needed to turn her life around and said she never wanted to hurt the victim. She acknowledged that she had been charged with armed robbery and understood that her testimony at Defendant’s trial essentially convicted her. She further testified that after Defendant was arrested, he called her from jail and threatened her and her family.

Ms. Serie also admitted that she had sex with men and received money from them, but denied that she was a prostitute. Although she denied that she had been promised anything for her testimony, she stated that Detective Nathaniel Savoy, an officer with the Ville Platte Police Department, had said he would help her. She also denied being a confidential informant for the detective.

Mr. Delafosse testified that around 10:00 p.m., he received a call from Ms. Serie asking if she could bathe at his house. When he agreed, she requested that he leave the front door open. He then talked on the phone to his cousin in California and, shortly thereafter, a tall, skinny, black man entered his house uninvited. The man wore black pants, a red and black plaid flannel shirt, and a ski mask. He was armed with a knife, which he pressed to Mr. Delafosse’s chest, and demanded money. When he said he did not have any, the man reached under a pillow on the couch where Mr. Delafosse had stashed his wallet and pulled it out. He then took Mr. Delafosse’s cell phone and grabbed his antique pistol off the floor. He said that the robber pointed the gun at his head and pulled the trigger twice, but the gun was not loaded.

In court, Mr. Delafosse identified the red and black plaid flannel shirt as the shirt the robber wore. He also identified Defendant as the robber; however, when 17asked how he could identify the robber since the robber was wearing a mask, he claimed that he recognized his voice. He described Defendant as speaking with a Lake Charles accent as opposed to a Ville Platte accent. He said that he had seen Defendant earlier in the day, walking back and forth in front of his house, and that he had seen Defendant and Ms. Serie standing on the street corner. However, Mr. Delafosse admitted that he never told the police on the two occasions that he gave them statements that he had recognized Defendant as the robber by his voice, even after he told the police that Ms. Serie had set him up for the robbery.

Mr. Delafosse testified that he never got his phone back, but he identified phone records of the calls made on the phone in the early morning of July 1, 2012, after the robbery. He identified Ms. Serie’s phone number as outgoing calls made forty-five times after the time of the robbery as well as some incoming calls from her phone. He further identified Ms. Fontenot’s phone number, which was shown twice as outgoing calls.

Detective Charles Hall, an officer with the Ville Platte Police Department, testified that after Mr. Delafosse told him Ms. Serie had something to do with the robbery, he brought her down to the police station and took a statement from her. Based on her statement, a search warrant was obtained for Ms. Fontenot’s residence. He testified that a pair of black pants and a flannel shirt were found stuffed in a crawl space in the bathroom. The wallet, cell phone, and antique pistol were never located. Detective Hall also stated that he had used Ms. Serie in the past as a confidential informant and had found the information she brought him to be reliable.

Finally, Defendant testified on his own behalf. He denied that he lived at Ms. Fontenot’s house in Ville Platte. He stated that he visited with her often in | sorder to see his son. He explained that Ms. Serie had “messed” with him when she accused him of touching her inappropriately and had gotten him in trouble with his girlfriend. He further stated that Ms. Fontenot and Ms. Serie had apparently remained friends and that Ms. Serie had told him she was going to get him anyway.

Defendant admitted that he had an armed robbery conviction in 2007. He denied robbing Mr. Delafosse. He stated that he was watching the kids the night of robbery and that he had been there on this particular visit for about a week. He denied that the pants and flannel shirt were his, indicating that they were some other man’s clothes. He further stated that Ms. Serie had access to Ms. Fontenot’s house and that she set him up.

In brief, Defendant argues that there was no evidence that the clothes found in the crawl space in the bathroom were his and that no DNA was extracted from the items. He argues that Ms. Serie, a convicted felon, drug addict, and prostitute, is not to be believed. He further argues that Mr. Delafosse’s testimony at trial that he recognized his voice was not to be believed since he never told anyone he recognized the robber’s voice until trial. Also, in brief, Defendant acknowledges that credibility is an issue in this case and correctly notes that credibility issues are normally not reviewed on appeal.

In State v. Lafitte, 10-1253, pp. 18-19 (La.App. 3 Cir. 5/11/11), 63 So.3d 1195, 1206-07, writ denied, 11-1230 (La.12/2/11), 76 So.3d 1174, this court addressed the issue of credibility of a witness on appellate review, stating:

Defendant argues that the trial court should have believed the testimonies given by him and his psychologists over the account given by the victim in the matter. It is not the function of the appellate court to reassess credibility of witnesses or reweigh evidence:
[The supreme court has] repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.”
State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert, denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

Furthermore, considering the fact that Ms. Serie was an accomplice of Defendant, this court has noted:

Regarding the potential jury instruction, our brethren on the Fifth Circuit have stated: “While the testimony of a co-defendant in a crime should be received with a great deal of caution, a jury or judge may nonetheless convict on this testimony if it is deemed sufficient. State v. May, 339 So.2d 764, 775 (La.1976).” State v. Addison, 00-1730, p. 8 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 614. The footnote to this passage elaborates:

See also: State v. Howard, 98-0064 (La.4/23/99), 751 So.2d 783, 801, quoting State v. Schaffner, 398 So.2d 1032, 1035 (La.1981), where it was held that when the state’s case turns upon the uncorroborated testimony of an accomplice, the trial judge should instruct the jury to treat such testimony with great caution. However, when the accomplice’s testimony is corroborated by other evidence, such language is not required.

Id. at 614, n. 4.

State v. Zeno, 01-1340, pp. 9-10 (La.App. 3 Cir. 3/13/02), 811 So.2d 1222, 1229, writ denied, 02-1051 (La.11/15/02), 829 So.2d 423.

Regarding the level of corroboration necessary, this court has stated that a “great caution” instruction regarding accomplices is not necessary where there is material corroboration of an accomplice’s | ^testimony. State v. Chesson, 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686. “Testimony is materially corroborated ‘if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation.’ ” Id. at 186 (quoting State v. Schaffner, 398 So.2d 1032, 1035 (La.1981)).

State v. Stringer, 06-800, pp. 32-33 (La. App. 3 Cir. 12/6/06), 949 So.2d 464, 486, writ denied, 07-04 (La.9/14/07), 963 So.2d 996.

We note that there were several substantial corroborating material points made by Ms. Serie in support of her allegation that Defendant was the robber who entered Mr. Delafosse’s home. Ms. Serie testified that after the robbery, she and Defendant did some cocaine. After that, she left to get some more drugs and went to a friend’s house. She stated that Defendant called her phone more than forty times using Mr. Delafosse’s phone. She also stated that throughout the morning hours, they would meet up and do more drugs. She testified that Defendant had called Ms. Fontenot twice to get her to come home because he wanted to go out to find more drugs, but he was babysitting the children. At the time, Ms. Fontenot’s phone number was 532-4072. As noted above, Mr. Delafosse’s phone records for the early morning of July 1, 2012, show over forty outgoing calls to Ms. Serie’s phone and two calls to Ms. Fontenot’s phone.

Ms. Serie also testified that Defendant described the robbery to her. He said that after he left Mr. Delafosse’s house, Mr. Delafosse yelled to him that he (Mr. Delafosse) would get him. Mr. Delafosse testified that after the robber left the house, he “walked to the door and he was turning the corner by the park. I said I will get you[,] I remember, I know who you are.”

At trial, Defendant insisted that he did not live at the house with Ms. Fontenot and that the black pants with the hole in the pocket and the plaid, Inflannel shirt found in the crawl space in the bathroom were not his clothes. He argued that other men came into and out of the house. He testified that he had been at the house for approximately a week prior to the robbery, but could not name one man who could have stashed the clothes in the bathroom crawl space.

Though the witnesses’ testimonies were at times vague and disingenuous, there was sufficient evidence to convict Defendant beyond a reasonable doubt.

[T]he testimony of a single witness, absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. The credibility of the witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the trier-of-fact’s sound discretion and will not be re-weighed on appeal. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, writ denied, OS-1464 (La.3/27/09), 5 So.3d 138.

State v. Jeter, 09-1004, pp. 3-4 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043-44.

In the instant case, we find that the witnesses’ testimonies were not so incredible as to render the verdict clearly contrary to the evidence. The jury heard all of the testimony, including any inconsistencies, had the opportunity to observe the demeanor of the witnesses, and obviously believed Ms. Serie’s and Mr. Delafosse’s testimonies over that of Defendant. Therefore, we find that the evidence was sufficient to support Defendant’s convictions. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant argues that his substantial right to be tried by a jury selected by him was violated when the trial court released a juror on the second day of trial and substituted an alternate juror therefor. During voir dire, the trial court questioned a potential juror because she had indicated that she was in her last semester of nursing school in pursuit of becoming a registered nurse. She informed the trial court that she was doing her clinicals every Thursday and Friday.

| )aThe trial court asked her if it would be a problem if she missed a day. She said she did not think so, but would check to be sure. The potential juror was accepted and sworn in the same day. The next day, prior to the jury being brought into the courtroom, the trial court informed the State and defense counsel that the juror had informed him that there was a problem. She had been advised that missing a day of clinicals could possibly interfere with her graduating that semester. The trial court then questioned the State and defense counsel as to whether they thought the trial would conclude that day, a Wednesday. Both parties indicated that the trial could very well conclude on Wednesday.

The trial court then called the juror, Ms. Joubert, into the courtroom. The following conversation took place:

BY THE COURT:
So ... so I’m telling you, you did the right thing. So I’m understanding that maybe we got a problem with the clini-cals now is that....
BY MS. JOUBERT:
Yes[,] sir. I contacted my clinical instructor yesterday after we left[,] and I told her that I would be missing a day of clinical!,] and she told me that I needed to contact our head of nursing to see if it would risk my position in the program. So[,] I e-mailed her and let her know that hopefully it would end on Thursday and that I would be back for clinical on Friday.
BY THE COURT:
Right.
BY MS. HAYDEN ELIZABETH JOU-BERT, JUROR # 79: And she asked if I expressed that I cannot miss clinical during my last semester of nursing school cause it could risk my position in graduating here in May, to see when I can make up that time in such a short period now that we’re graduating less than three months.
11SBY THE COURT:
And ... what was the outcome of that? Do you think you could make it up if you need it or not?
BY MS. HAYDEN ELIZABETH JOU-BERT, JUROR # 79:
I ... and I don’t think that we can cause only certain amount of students are allowed per day on the floor[,] and we have one clinical instructor and she has thirty of us, meaning ten people per day. So[, if] I miss a day[,] I can’t just come another day cause that would make eleven[,] and we have other schools that are also using the facility. So[,] it would present a problem of when I can within the next three months of graduation.

The trial court then told Ms. Joubert that there was a fifty-fifty chance they could finish that day and asked, if so, could she stay and be attentive to the issues presented. She responded that she could and would stay, but emphasized that if she were required to stay the next day, Thursday, she would not be able to keep her mind on the trial. “Today[,] I could give my full attention. If I was to miss tomorrow!,] then I would be afraid that my attention would not be here tomorrow.” The trial court then stated that if, at the end of the day, it became apparent the trial would continue into the next day, Ms. Joubert could be excused and an alternate would be substituted in her place. The State had no problem with Ms. Joubert being excused at the end of the day in this event; however, defense counsel objected stating:

BY MR. FUSILIER:
Judge, excuse me. Speaking with my client ... he is concerned that[,] if she ... has a job to go back to[,] that he’d rather her be released today if it’s alright with the Court.
|UBY THE COURT:
He can rather all he wants. She just told me she can give full attention today. Ya’ll both told me before we started that we’d probably finish today. There’s no reason to excuse Ms, Joubert at this point. Her problem comes in after this afternoon. She has to be in clinicals tomorrow!,] and I’m guaranteeing her that I will not require her to be here tomorrow.
BY MR. FUSILIER:
If that’s the case!,] I’d like to note my client’s objection for the record.

However, at the end of the day, because the State was unable to obtain a necessary document to submit into evidence until the next day, it became apparent the trial would carry over to the next day. The trial court then excused the juror and substituted an alternate juror. We note that at this time, Defendant did not object, but seemingly agreed that the alternate juror was fully capable of proceeding into deliberations.

In brief, Defendant’s counsel argues:

After a jury has been selected and trial has commenced, double jeopardy attaches. It is at this point that “the accused has a right to have the particular jurors selected to try him and decide his fate, save in cases of death, illness or any other cause which renders a juror unfit or disqualified to perform this duty!.]” State v. White, 244 La. 585, 153 So.2d 401, 620 [413] (1963). The Court in White went on to state that this “right of the accused is a substantial one, the improper deprivation of which is prejudicial. Hence, Article 557 of the Code of Criminal Procedure (La.R.S.15:557) which deals with harmless error, is inapplicable.” Id. at 620 [413].
As noted by the Louisiana Supreme Court in State v. Cass, 356 So.2d 396 (La.1977), a defendant should be given a hearing to determine if the juror has become disqualified to perform his duties. See La.Code Crim.P. art. 789[,] State v. Fuller, 454 So.2d 119 (La.1984). Clearly the trial court did not find that Juror Joubert was unable to perform her duties or disqualified from doing so in the true meaning of La.Code Crim.P. art. 789. The trial court must have a valid reason for finding her unable to perform her duties, thereby necessitating her removal from the jury panel. As the trial court was 11saware that Juror Joubert would need to attend clini-cals, it should have excused her for hardship at that time.

It is not clear whether Defendant is alleging that the trial court erred because it did not excuse the juror initially or that the trial court erred because it excused the juror prior to deliberations. However, Defendant refers to State v. Termors, 05-538 (LaApp. 3 Cir. 2/15/06), 923 So.2d 823, wherein the trial court excused a juror prior to deliberations for the reason that the juror had a personal obligation that evening, and it was clear that deliberations would interfere with the juror’s obligation. The juror’s personal obligation was that of officiating a high school football game. This court reversed the convictions noting that “[t]he trial court’s well-intentioned release of a juror to allow him to fulfill a personal or business obligation deprived the Defendant of his ‘substantial’ right to be tried by a jury selected by him.” Id. at 838.

In Termors, this court did an extensive review of Louisiana’s jurisprudence regarding the release of sworn-in jurors. This court noted that La.Code Crim.P. art. 789(A) provided, in pertinent part, that “[a]lternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.” Id. at 826. This court also noted that in State v. Square, 257 La. 743, 244 So.2d 200, 237 (1971), vacated and remanded on other grounds, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), the supreme court held, “ ‘[w]e are of the opinion that under Article 789 the jurors once selected are expected to serve, save in cases of death, illness or other cause which renders the juror unfit or disqualified to perform his duty.’ ” Id. at 828.

We find Tennors distinguishable from the instant case.

In State v. Robertson, 518 So.2d 579, 582-583 (La.App. 1 Cir.1987), writ denied, 523 So.2d 227 (La,1988), a juror failed to return to the courthouse the day after she was selected to serve on the jury because she had learned her employer would not pay her for the days she would spend on jury duty. Following the issuance of a summons, the juror reported back to court. When asked by the prosecutor whether she could be a' fair and impartial juror in light of this situation, the juror explained that she could not because her mind would not be on the trial. The First Circuit held that because the juror’s answers indicated that she did not wish to serve on the jury and that she would not be paying attention to the trial, the trial judge had no choice but to excuse the juror pursuant to LSA-C.Cr.P. art. 796. 1989), a juror notified the court that he was losing business due to his inability to work and that this situation was causing him to be distracted from the case. The Second Circuit held that due to the juror’s testimony that he was unable to concentrate on the case, the trial judge’s ruling was not an abuse of discretion. See also State v. Wiley, 513 So.2d 849 (La.App. 2 Cir.1987), writ denied, 522 So.2d 1092 (La.1988)(trial judge properly dismissed juror whose decision-making ability was probably impaired and who could not concentrate on the trial because no one was home to take care of her children).

In State v. Taylor, 545 So.2d 1237 (La.App. 2 Cir.1989), judgm’t amended on other grounds, 551 So.2d 1332 (La.

Id. at 832-33 (quoting State v. Mdhamed, 96-845, p. 5 (La.App. 5 Cir. 9/17/97), 700 So.2d 881, 883).

In the instant case, the trial court had no choice but to excuse Ms. Joubert pursuant to La.Code Crim.P. art. 796 and did not abuse its discretion. In Robertson, the juror who was losing wages claimed she could not be impartial because her mind was not on the trial. In Taylor, a juror was distracted from the trial because he was losing business. In this case, Ms. Joubert explained that she would be distracted during deliberations if she missed her clinicals and would thereby be required to wait another semester to graduate. Her livelihood depended on graduating. Ms. Joubert’s obligation was not a personal obligation such as | ^officiating a football game. Her ability to fulfill her legal obligation as a fair and impartial juror would have been severely compromised if not abrogated.

Though Defendant has a substantial right to be tried by a jury selected by him, he also has the reciprocal and substantiated right to have a jury comprised of jurors that are paying attention and not distracted by legitimate and stressful outside concerns. We find that the trial court did not abuse its discretion when it released Ms. Joubert and replaced her with an alternate juror. Accordingly, there is no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant contends that he is being denied his constitutional right to a judicial review because of some fifty-five “inaudible” notations contained in the record of the trial.

Both this court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where appellate counsel was not counsel at trial. State v. Deruise, 98-0541, p. 11 (La.4/3/01), 802 So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), citing Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) and State v. Robinson, 387 So.2d 1143 (La.1980). The Louisiana State Constitution guarantees that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” LSA-La. Const, art. I § 19. Additionally, in all felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel. LSA-C.Cr.P. art. 843. The court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the trial proceedings required. LSA-R.S. 13:961(C).
Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal require reversal. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214; Robinson, 387 So.2d at 1144. Although this court has found reversible error when material portions of the trial record were unavailable or incomplete, a “slight 11sinaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a conviction. State v. Brumfield, 96-2667, pp. 14-16 (La.10/20/98), 787 So.2d 660, 669, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999); State v. Parker, 361 So.2d 226, 227 (La.1978). A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcript. State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Hawkins [,] 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480.

State v. Boatner, 03-485, pp. 4-5 (La.12/3/03), 861 So.2d 149,152-53.

Our review of the record in this case reveals that the omissions were few and inconsequential to the issues being discussed at the time. One of the “inaudi-bles” was during defense counsel’s closing argument. One “inaudible” occurred during a discussion between the trial court and the foreperson of the jury regarding the verdict sheet forms. Another “inaudible” occurred during the polling of the jury when the jurors were writing down their individual verdicts. These particular omissions were not material to Defendant’s guilt or innocence.

Defendant points to one “inaudible” during Ms. Serie’s testimony. There was some confusion as to the exact color of the flannel shirt Defendant supposedly wore the night of the robbery. Mr. Delafosse described the shirt as red and black plaid. At trial, Ms. Serie agreed with Mr. Dela-fosse, but also admitted that she had told the police that she thought the shirt was blue or turquoise and black plaid. During a lengthy discussion regarding the confusion in color, with the shirt in hand, the State asked Ms. Serie, “And is this the same shirt that (inaudible) got back?” Ms. Serie answered, “Yes. The ... colors on it like the blackish grayish or whatever[,] maybe that’s why I’m mistaken it [sic] for being bluish green[,] but that’s definitely the shirt.”

| iflThe remaining “inaudibles” pointed out by Defendant occurred during Mr. De-lafosse’s testimony. In each case, from the context of the subject being discussed and its placement in the sentence structure, it is clear that the omission was a single word or a colloquialism that was inaudible to the court reporter, but nothing that would have interfered with our appellate review of Defendant’s conviction. As noted above, the identification of the robber came primarily from Ms. Serie and not Mr. Delafosse.

Defendant also alleges that “an apparent objection and discussion made by the State is completely missing[.]” Following closing arguments, out of the presence of the jury, the trial court discussed the jury instructions with counsel, as follows:

BY THE COURT:
Um ... In that case, the next question is when the jury is asked to deliberate, the jury is going to be allowed to take a copy of the jury instructions into the jury room unless this action is objected to by either party. And so, I’m asking for the record, does the State have any objection to the jury being provided a copy of the jury instructions during deliberation?
BY MR. FONTENOT:
Yes sir.
BY THE COURT:
You do object?
BY MR. FONTENOT:
In that case, we will not allow the jury to have jury instructions with them in the jury room during deliberations. The only other issue I think that the two attorneys and I discussed this morning was the stipulation with regard to the prior conviction.
BY MR. FONTENOT:
Yes, sir.

|2nIt appears that the court reporter left out the State’s response and the caption “BY THE COURT.” Louisiana Code of Criminal Procedure Article 801(A) and (B)(1) provides that a written copy of the jury instructions may be given to the jury absent an objection by either the defense or the State. Defendant fails to show how this omission prejudiced his case.

In Boatner, 861 So.2d 149, the supreme court noted there were no fewer than two hundred and ten instances in which testimony was inaudible. In some cases, entire questions and their answers were inaudible. However, the supreme court noted that “[t]he crucial issue is not the amount or number of omissions[,] but rather whether the omissions are material and caused prejudice to the defendant.” Id. at 153. The supreme court noted that the testimony of all the witnesses were identified and transcribed. The “Q” and “A” format was used throughout the transcript, and, although there were numerous inaudible portions of the transcript, the omissions did not preclude a complete review. The state’s case rested almost entirely on the testimony of two witnesses, and the jury was presented with a relatively straightforward credibility determination. The defendant testified, and “[although his trial testimony was not perfectly transcribed, the essence of his testimony could be ascertained from the record.” Id. at 154. The supreme court went on to state:

An incomplete record may be adequate for full appellate review. See Hawkins, 96-0766 at 8, 688 So.2d at 480. Additionally, we note there exists a presumption of regularity in judicial proceedings. LSA-R.S. 15:432. The record in this matter is adequate for the court to examine and determine there was sufficient evidence to support a conviction. Defendant has failed to show how he was prejudiced by the missing portions of the testimony replaced by an “inaudible” designation. Unlike other cases reviewed by this court, the record did not lack the complete testimony of one or multiple witnesses or significant steps in the trial procedure.

12iId. at 155 (footnote omitted).

In the instant case, Defendant argues only that “since they [inaudible designations] have to do with sufficiency of the witnesses’ testimony[,] then the evidence is insufficient^] and the defendant suffered prejudice as a result.” As noted above, we have found the evidence to be sufficient to establish the offenses beyond a reasonable doubt. Accordingly, we find that Defendant failed to show any reasonable likelihood that he was prejudiced by the “inaudible” portions of sentences spoken by the witnesses. There is no merit to this pro se assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that he was subjected to double jeopardy. As noted herein, after arranging for the victim to leave his door unlocked, Defendant entered the victim’s house, uninvited, with a knife. Thereafter, among the things he stole from the victim was a gun. He argues:

If the knife is applied to the aggravated burglary and the firearm is applied to
the pooession [sic] of [the] firearm charge, what weapon was applied to the armed robbery charge (14:64). To apply the two weapons to three charges is a violation of the “same evidence test” and is therefore double jeopardy. At least one of the defendant’s convictions must be ste [sic] aside.

In State v. Grace, 10-1222, pp. 14-15 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 823, writ denied, 11-961 (La.10/21/11), 73 So.3d 382, this court outlined what constituted double jeopardy and the tests to determine whether double jeopardy had occurred as follows:

The constitutional protections against double jeopardy prevent a second prosecution for the same offense after an acquittal or conviction, and prevent multiple punishments for the same offense. State v. Smith, 95-061 (La.7/2/96); 676 So.2d 1068. Our courts apply two separate tests — the Blockburger test and the “same evidence” test — in order to determine whether offenses are the same for double 1 ¡.¿jeopardy purposes. The Blockburger test, derived from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), requires the court to determine whether each crime requires proof of an additional fact that the other does not. Id. The “same evidence” test is as follows:
If the evidence required to support a finding of guilty of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all of the evidence introduced at trial.
Smith, 676 So.2d at 1069-70. The remedy for a double jeopardy violation for multiple punishments for the same offense is to vacate the conviction and sentence for the less severely punishable offense and affirm the conviction and sentence for the more severely punishable. offense. [Slate u] Rabun, [38,655 (La.App. 2 Cir. 8/18/04),] 880 So.2d 184.

In the instant case, aggravated burglary, in pertinent part, is defined as “the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender, (1) Is armed with a dangerous weapon[.]” La.R.S. 14:60. Armed robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64. Finally, it is illegal for a felon convicted of certain crimes as enumerated in La.R.S. 14:95.1 to be in possession of a firearm. At trial, it was stipulated that Defendant had been convicted of first degree robbery in 2007, which was one of the enumerated crimes for the purpose of La.R.S. 14:95.1.

In State v. Lefeure, 00-1142 (La.App. 5 Cir. 1/30/01), 778 So.2d 744, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669, the fifth circuit discussed whether convictions for aggravated burglary and armed robbery violated the defendant’s 1 «¡right not to be subjected to double jeopardy. In Lef-eure, the defendant forced his way into a daiquiri shop as the employee attempted to lock the door and robbed the employee at gun point of the day’s proceeds. Among other offenses, he was convicted of aggravated burglary and armed robbery. After defining the offenses of armed robbery and aggravated burglary, the fifth circuit noted:

In [State v.] Bridgewater, [98-658 (La.App. 5th Cir.12/16/98), 726 So.2d 987,] the defendant was convicted of armed robbery and aggravated burglary and he appealed. The defendant argued that the trial court erred in denying his motion to quash because the indictment violated the constitutional prohibition against double jeopardy when it subjected him to multiple punishments for the same offense. The victim, in Bridgewa-ter, testified that he was working on his car in the driveway, when the defendant and another man approached him from behind, pointed their gun at him and ordered him to give him all of his money. The victim’s wife was standing nearby. The perpetrators ordered both to go inside their house. The two men then ordered the victim’s wife to give them all of her jewelry. The perpetrators searched through the victims’ belongings and eventually left. Id. at 989.

This court found that the defendant in Bridgewater was not subject to double jeopardy based on the following analysis:

When defendant pointed his gun at Mr. Ghebreziabher and ordered him to give him all the money he had, the armed robbery against Mr. Ghebrezia-bher was completed. Thereafter, the defendant entered the victims’ home without authorization and forced them to accompany him by holding them at gunpoint with the intent to commit a felony or theft. That completed the aggravated burglary. Likewise, the armed robbery of Mrs. Ghebreziabher occurred when the defendant pointed his gun at her and forced her to give him her jewelry. Therefore, we conclude that defendant was not subjected to double jeopardy.
State v. Bridgewater, 726 So.2d at 992-993.
In reaching its conclusion that the defendant was not subjected to double jeopardy, the court in Bridgewater used the rationale of State v. Cureaux, 467 So.2d 1377, 1379-1380 (La.App. 5th Cir.1985) and State v. Ford, 608 So.2d 1058, 1063-1064 (La.App. 1st Cir.1992), li^which both held that convictions for the crimes of aggravated burglary and armed robbery do not violate the principle of double jeopardy:
In State v. Cureaux, 467 So.2d 1377, 1379-1380 (LaApp. 5th Cir.1985), defendants were charged with aggravated burglary and armed robbery. One of the defendants knocked on the door to the victims’ home and asked if she could use the telephone. When the victims opened the door to allow her to enter their home, defendants burst through the door. Defendants were armed with guns. After committing batteries upon the victims, defendants stole various items from the house.
On appeal, defendants claimed that a joint trial for the crimes of aggravated burglary and armed robbery subjected them to double jeopardy. A panel of this court held that, although the crimes arose from the same criminal incident, prosecution for both aggravated burglary and armed robbery did not violate the bar against double jeopardy because the two crimes encompass different elements. Id. We explained that the crime of aggravated burglary was completed upon the defendants’ entry into the victims’ residence, while the victims were present, with the specific intent to commit theft while armed with guns, or when they committed battery upon the victims. Id. Further^] the armed robbery did not occur until the defendants actually took the victims’ belongings while holding the victims at gunpoint.
The First Circuit has determined that under both the Blockburger test and the “same evidence” test, convictions for the crimes of aggravated burglary and armed robbery do not violate the principle of double jeopardy because the two offenses do not contain identical elements, neither offense is a lesser included offense of the other, and the offenses, although possessing similar elements, do not require the “same evidence” for a conviction. State v. Ford, 608 So.2d 1058, 1063-1064 (La.App. 1st Cir.1992). See also State v. Jacobs, 493 So.2d 766, 767-770 (La.App. 2nd Cir.1986).
State v. Bridgewater, 726 So.2d at 992.
In this case, using the rationale in Bridgewater, we find that the crime of aggravated burglary of the Bayou Daiquiris store was completed upon the Defendant’s unauthorized entry into the store by pushing his way in when Moore unlocked the door to leave, while lasMoore was present, with the specific intent to commit a felony of theft while armed with a gun. The crime of armed robbery of Moore was thereafter accomplished when he forced Moore at gunpoint to turn over the money.
Based on the foregoing, we find no double jeopardy violation in trying and convicting the Defendant of both the aggravated burglary of Bayou Daiquiris and the armed robbery of Moore.

Id. at 751-52.

According to the jurisprudence set forth above, in the instant case, the offense of aggravated burglary was completed when Defendant entered the victim’s house, uninvited, with the specific intent to commit a felony with the use of a dangerous weapon, the knife. The offense of armed robbery was committed when he pressed the knife to the victim’s chest and demanded money. The gun he took from the victim’s possession was just another item of the theft. The offenses of armed robbery and aggravated burglary do not contain identical elements and neither offense is a lesser included offense of the other. Accordingly, Defendant was not subjected to double jeopardy in this case. State v. Hammond, 97-712 (La.App. 3 Cir. 1/7/98), 704 So.2d 1281, writ denied, 98-374 (La.6/5/98), 720 So.2d 679. There is no merit to this assignment of error.

DISPOSITION

Defendant’s convictions are affirmed in their entirety; however, the trial court is instructed to correct the court minutes of sentencing to reflect that Defendant’s sentence for armed robbery is to be served without benefit of parole, probation, or suspension of sentence.

AFFIRMED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE in the Interest C.V.
    No. 13-1207.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Michael Harson, District Attorney, Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Jane Hogan, Public Defenders Office, Lafayette, LA, for Defendant/Appellant, C.V.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|2C.V., a juvenile, was found in possession of marijuana while at Judice Middle School in Lafayette, Louisiana. The Juvenile was charged by petition with one count of possession of marijuana, a violation of La.R.S. 40:966. The Juvenile entered a denial to the charge on March 18, 2013. On September 4, 2013, the trial court adjudicated him a delinquent for having possessed marijuana. On that same date, the trial court entered the following disposition: “six months suspended and six months active supervised probation.” The trial court also ordered a drug screen within twenty-four hours. The Juvenile is now before this court, alleging one assignment of error. We affirm.

ERRORS PATENT

Although the Louisiana Children’s Code is silent on whether a juvenile criminal proceeding is entitled to an errors patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State ex reí. J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. There are several errors patent.

There are two errors in the petition. Louisiana Children’s Code Article 845 provides that the petition shall contain the “name, date, and place of birth, sex, race, address, and present location of the child.” The petition filed in the present case fails to allege the Juvenile’s place of birth. Additionally, the petition mistakenly states that the Juvenile is a female. The Juvenile alleges no prejudice due to the petition’s failure to set forth his place of birth and mistakenly stating that he is a female. Accordingly, these defects in the petition are harmless and require no action by this court.

[oThe trial court failed to advise the Juvenile of his rights as required by La. Ch.Code art. 855 when he appeared to answer the allegations contained in the petition.

Louisiana Children’s Code- Article 855 states in pertinent part:

A. When the child appears to answer the petition, the court shall first determine that the child is capable of understanding statements about his rights under this Code.
B. If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
(3) His right to an adjudication hearing.
(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7) The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court might impose pursuant to Articles 897 through 900.

The transcript of the proceeding to answer the petition reflects that the Juvenile was arraigned and entered a denial to the charge. The transcript of this proceeding does not indicate that the Juvenile was advised of his rights pursuant to La.Ch. Code art. 855. In State ex reí. K.G., 34,-535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716, the trial court failed to advise the juvenile of the enumerated rights in La.Ch.Code art. 855 when he appeared to answer the allegations of the delinquency petition. In determining that the error was harmless, the appellate |4court noted that the juvenile was represented by counsel and entered a denial of the charge. See also State ex rel. J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633. In this case, the juvenile entered a denial and was represented by counsel. Additionally, the record indicates that the Juvenile proceeded without objection to the adjudication hearing. See State ex rel. Z.S., 01-1099 (La.App. 5 Cir. 2/26/02), 811 So.2d 1003. Accordingly, the error is harmless and/or waived.

On the face of the record, the adjudication was not commenced within the time period mandated by La.Ch.Code art. 877, which provides:

A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In State ex rel. R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, 749, the court held: “In sum, we find that La.Ch.Code art. 877 sets out mandatory time limits within which the adjudicatory hearing must be commenced. These limits may only be extended by the court based on a finding of good cause.”

In this case, the Juvenile appeared in court to answer the petition on March 13, 2013. The adjudication was held on September 4, 2013, almost six months later. Nothing in the record indicates that the Juvenile was held in continued custody for this misdemeanor offense; thus, the ninety-day period applies. On RMay 8, 2013, the date of the timely-set initial hearing, the Juvenile’s attorney requested and was granted a continuance. The trial court set the adjudication hearing for June 12, 2013, one day after the ninety-day period had elapsed. See La.Ch.Code art. 114. The court minutes do not indicate a reason for the continuance. On June 12, 2013, the court minutes indicate that the Juvenile’s attorney requested and was granted a continuance. The trial court set the hearing date for September 4, 2013. The ground for the continuance was that new counsel enrolled on behalf of the Juvenile. The Juvenile’s attorney requested that the legal delays be waived.

In State ex rel. K.E.C., 10-953 (La.App. 3 Cir. 12/8/10), 54 So.3d 735, and State ex rel. N.F., 13-589 (La.App. 3 Cir. 11/6/13), 124 So.3d 1262, this court recognized untimely adjudication as an error patent.

In N.F., the adjudication was initially timely set. However, because of continuances, the adjudication was held outside of the mandatory periods set forth in Article 877. This court recognized as an error patent that the record indicated the adjudication was untimely held, and it found the error harmless, holding in pertinent part:

Pursuant to La.Ch.Code art. 877, N.F.’s adjudication hearing should have been set within sixty to ninety days of July 12, 2012, depending on whether he was continued in custody, except for good cause shown. It was initially set for August 9, 2012, which is within the sixty-day time period. The trial court reset the adjudication date to October 4, 2012. In September 2012, the State filed a motion to continue, claiming delays associated with the criminalist report on DNA analysis, a pending investigation request, the need to address N.F.’s motion to suppress, and that N.F. had indicated a need for more time as well. A hearing was held in October 2012, and N.F.’s attorney acknowledged it was a joint motion. The trial court granted the motion, and the matter was set for December 13, 2012. The adjudication commenced on that date. We find that the State proved that good cause was shown for the delay; thus, any error is harmless. See State in the Interest of R.D.C, Jr., 93-1865 (La.2/28/94), 632 So.2d 745.

Id. at 1266.

In this case, we find the record supports that good cause was shown for the delay: the enrollment of new counsel. Therefore, any error is harmless.

The trial court failed to set forth a written disposition in the record. Louisiana Children’s Code Article 903 provides in pertinent part:

B. The court shall enter into the record a written judgment of disposition specifying all of the following:
(1) The offense for which the child has been adjudicated a delinquent.
(2) The nature of the disposition.
(3) The agency, institution, or person to whom the child is assigned.
(4) The conditions of probation, if applicable.
(5) Any other applicable terms and conditions regarding the disposition.
(6) The maximum duration of the disposition and, if committed to the custody of the Department of Public Safety and Corrections, the maximum term of the commitment.
D. An extract of the minutes of court specifying the information required by Paragraph B of this Article and signed by the court shall be considered a written judgment of disposition.

Thus, we order the trial court to file a written disposition into the record in accordance with La.Ch.Code art. 903.

The record before us does not indicate that the trial court gave the Juvenile credit for time spent in secure detention, if any, prior to the imposition of disposition, as required by La.Ch.Code art. 900. State ex rel. J.F., 03-321 17(La.App. 3 Cir. 8/6/03), 851 So.2d 1282. Accordingly, we amend the Juvenile’s disposition to give him credit for time served in a secure detention facility before the imposition of disposition, if any, and instruct the trial court to note the amendment in the written disposition and in the minute entry. State ex rel. M.M., 06-607 (La.App. 3 Cir. 11/2/06), 941 So.2d 716.

The trial court failed to inform the Juvenile of the two-year prescriptive period for filing post-conviction relief as required by La. Code Crim.P. art. 930.8. Although the Children’s Code contains no similar provision, this court has previously held that this notice should be given. State ex rel. J.C.G., 706 So.2d 1081; State ex rel. J.F., 851 So.2d 1282. Accordingly, we order the trial court to inform the Juvenile of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof that the Juvenile received the notice in the record of the proceedings.

ASSIGNMENT OF ERROR

The Juvenile alleges that the trial court erred in adjudicating him a delinquent for possession of marijuana. Specifically, the Juvenile contends that the trial court erred in disallowing him to present evidence of a justification defense under La.R.S. 14:18(6).

Louisiana Revised Statute 14:18(6) allows for the offense of justification in the following circumstance:

When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed!/]

The person claiming the compulsion defense has the burden of proving the defense by a preponderance of the evidence. State ex rel. White, 411 So.2d 537 (La.App. 1 Cir.1982).

In this case, the Juvenile admitted to possessing the marijuana found on him but contended that he was forced to possess the marijuana by another student. The Juvenile attempted to prove his justification defense through his own testimony and the cross-examinations of Officer Chris Bachelor and Principal Samuel Clay. The Juvenile testified that another student, Dekalin, told him to hold the marijuana until the end of school and threatened to jump the Juvenile if he dumped the marijuana or told anyone about it. Officer Bachelor, the Lafayette Parish Sheriffs Officer assigned to Judice Middle, arrested the Juvenile when the marijuana was found on him.

According to Officer Bachelor, the Juvenile told him that the reason he had the marijuana on him was because another student told him to hold it and threatened to jump him if he got rid of the marijuana or if he told anyone about it. On cross-examination, Officer Bachelor testified that the name of the student who allegedly threatened the Juvenile was Dekalin Perry. When asked if he was aware of any interactions between Dekalin and the Juvenile prior to that day, Officer Bachelor responded, “No, I do not.” Officer Bachelor also testified that he did not recall the Juvenile ever coming to him about any interactions between he and Dekalin. When the Juvenile’s counsel asked Officer Bachelor if Dekalin had “extensive dealings from a disciplinary standpoint,” the State objected, arguing that such information was not relevant. The Juvenile’s counsel responded:

I believe it’s relevant to the defense, Your Honor, if he’s afraid of being jumped. The propensity for somebody to act violent is relevant and material to whether—

|flThe trial court responded: “Whether he had possession of marijuana? It’s not a self-defense. I sustain the objection.” The Juvenile’s counsel then asked Officer Bachelor if he ever witnessed the Juvenile being bullied by Dekalin, and Officer Bachelor responded, “No, sir, I haven’t.”

The school’s principal, Samuel Clay, also testified that the Juvenile said he was threatened by Dekalin to keep the marijuana until the end of the day or be jumped. During the cross-examination of Principal Clay, the Juvenile’s counsel asked the principal if he was familiar with Dekalin Perry. The State objected to the question, and the following colloquy took place:

THE COURT: I’m going to give him some latitude with regards to that question—
MS. BREAUX: Okay.
THE COURT: — based on what maybe—
A: We usually don’t discuss other students with that student present. We sometimes discuss with adults, but we usually don’t discuss other students with that student present.
THE COURT: You are now in a court of law. You don’t have a choice.
A: Okay.
THE COURT: And actually, what I want to know with regards to him— and you are absolutely correct, he has a privacy issue. The only thing I want to know with him is if you know of any issues that that person had with the defendant here. That’s the only thing you can answer to that. That’s it, because there is a privacy issue. This is a juvenile, and whether or not he had an issue—
MR. SCANDRETT: Note my objection for the record, Your Honor.
THE COURT: Yes. Okay. Were you ever notified of an issue between this defendant and the gentlemen who was named?
JjjMR. SCANDRETT: And note my objection for my inability to ask my questions and put on my evidence. THE COURT: With regards to that juvenile and his privacy issues at Judi-ce Middle, yes, I would sustain that objection. Okay. But having said that, this defendant has a right to have a response to the question. Between this defendant and the person named, are you aware of any dealings with them?
A: No. [The Juvenile] did state that name that you mentioned, Dekalin Perry, gave him marijuana and wanted it back from him at the end of the day or would jump him.
Q: Had you had any previous incidents that — in which concern was raised by [the Juvenile] for safety at the hands of Dekalin Perry?
A: No, sir. The first time I ever heard was that day.
Q: [The Juvenile] had never reported that to you before?
A: As I said, no, sir.
Q: And you are unaware of anyone else ever raising that issue?
A: Anyone is broad. Nobody else has mentioned [the Juvenile’s] issue with Dekalin to me except [the Juvenile] on that day.
Q: No one, including [the Juvenile], prior to December 21st 2012, had cited Dekalin for bullying or indicated that Dekalin had bullied [the Juvenile]?
A: He’s crossing over into my field—
THE COURT: No, no. He’s asking if—
MR. SCANDRETT: But, Your Hon- or—
THE COURT: But you asked an answer, and now you’ve changed it to bullying, I think. You asked if anybody had brought this gentleman’s name with regards to your client. Is that what you’re asking?
MR. SCANDRETT: I’d asked that if there were any disciplinary actions involving both [the Juvenile] and Deka-lin; additionally, specific to the type of disciplinary actions, were there any reports that Dekalin had been bullying [the Juvenile].
| nTHE COURT: Okay. Well, I think he said he never received a response by [the Juvenile] about this gentleman.
MR. SCANDRETT: No further questions for this witness.

During the Juvenile’s testimony, he testified that on the day in question, Dekalin pulled him aside and told him to hold the marijuana until the end of school. According to the Juvenile, Dekalin threatened to jump him if he dumped the marijuana or told anyone about it. When asked if he felt Dekalin was capable of jumping him, the Juvenile responded, ‘Yes, sir.” The Juvenile further testified that a few weeks before, Dekalin wanted to fight him at recess. When asked if Dekalin threatened him at any other time, the Juvenile responded, “No, sir.” The Juvenile did not report these alleged incidents to the principal but did tell his teacher, who committed to handling the problem after recess. The Juvenile did not report the incidents to anyone else. The following colloquy then took place regarding the Juvenile’s belief that Dekalin could hurt him:

Q: Okay. Did you feel that Dekalin was capable of seriously hurting you?
A: Yes, sir.
MS. BREAUX: Judge, I’m going to object. That’s speculation.
Q: Did you feel that Dekalin was capable of carrying out the threat?
MS. BREAUX: Again, speculation. THE COURT: You are. You are asking him to speculate whether it could have happened or not.
Q: Did you witness Dekalin harm anybody else in the past?
A: No, sir.
Q: No? Did Dekalin ever harm you in the past?
112A: He’d like hit me on the shoulder and mess around with me. He thought it was funny, but it actually kind of hurt. Q: Were you in fear for your safety based on the threat Dekalin make to you?
A: Yes, sir.
Q: And why is that?
A: Because he had his friends with him when he gave it to me; and he was like, don’t dump it. And I was scared. I didn’t know what to do. That was in the morning. And I was thinking about dumping it, and I was going to dump it. And then I seen him again, and he was like, don’t dump it, don’t tell anybody. And I was like — I just held it. Stupid idea. I made a mistake. And I was scared, I didn’t want to—
Q: You were scared that if you did dump it or you did tell somebody that he was going to harm you?
A: Yes, sir.
Q: And what kind of harm did you think he was going to— A: He was going to beat me until I was like—

After the final question and answer, the State objected based on speculation. The Juvenile’s counsel responded that the question and answer were relative to his justification defense. The trial court sustained the objection, stating that the Juvenile had already testified that he was fearful and that the Juvenile’s belief that he would be beaten was speculation. The Juvenile’s counsel objected to not being able to ask reasonable questions, which prompted a threat by the trial court to find the Juvenile’s counsel in contempt of court.

On cross-examination, the State asked the Juvenile why he did not alert a teacher, the principal, or some other person as to the marijuana. The Juvenile responded, “Because I was scared that they wouldn’t believe me, and I would get arrested for it, and I would get into trouble for it and not him.”

| iaAfter hearing the above testimony, the trial court rejected the Juvenile’s justification defense and found him delinquent for possessing:

Everybody, whoever had possession of whatever could then have that story. I’m not suggesting your client’s story is not true, but has he proven it to me to overcome the burden that I think has been set forth "with possession of marijuana? I don’t think he has. And with that, the Court would find him guilty of possession of marijuana.

In brief, the Juvenile’s counsel contends that he was prevented from eliciting testimony from the Juvenile and other witnesses regarding his justification defense. However, the Juvenile’s counsel was able to elicit testimony from the Juvenile as to his fear of Dekalin, Dekalin’s previous attempt to fight him, and his belief that Dekalin was capable of seriously hurting him. The only information the Juvenile’s counsel was prevented from eliciting from the Juvenile was his speculative belief as to the type of harm Dekalin would do to him.

Also in brief, the Juvenile’s counsel contends that the trial court erred in disallowing questions regarding Dekalin’s disciplinary history. Although the Juvenile’s counsel was able to ask questions about the specific history between the Juvenile and Dekalin, the trial court prevented the Juvenile’s counsel from asking questions regarding Dekalin’s general disciplinary history in order to protect Dekalin’s privacy. In brief, the State argues that La. Code Evid. Art. 404 would have prevented the admissibility of Dekalin’s disciplinary history had Dekalin testified at trial. Thus, the State argues, the evidence is certainly inadmissible since Dekalin did not testify.

First, we note that the Juvenile has waived his right to challenge the exclusion of evidence by failing to proffer the evidence. In State v. Magee, 11-574, pp. 60-61 (La.9/28/12), 108 So.Bd 285, 326, cert. denied, — U.S. -, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013) (citation omitted) (alteration in original), the supreme court stated the following regarding the failure to proffer evidence:

Louisiana’s Code of Evidence provides: “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.” La. C.E. art. 103(A)(2). Thus, in order to preserve for review an alleged error in a ruling excluding evidence, counsel must make known to the court the substance of the excluded testimony. This can be effected by proffer, either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence.

The Juvenile’s counsel never gave a statement describing what he expected to establish by the evidence he claims was excluded; thus, he is now precluded from raising this issue on appeal.

Additionally, there is no indication that the trial court abused its discretion in denying the Juvenile’s request to ask the questions at issue.

It is the responsibility of the court to exercise reasonable control over the presentation of the evidence. The trial judge is left with wide discretion as to the admissibility of evidence under pertinent evidence rules. The decision of the trial judge will not be overturned absent a clear abuse of discretion by the trial judge.

State v. Clay, 576 So.2d 1099, 1101 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991). When evidence is both probative and prejudicial, “it is the trial court’s duty to balance those two competing concepts and make the call regarding admissibility.” State v. Arnold, 13-218, p. 14 (La.App. 3 Cir. 11/6/13), 124 So.3d 592, 601. Here, the trial court balanced the probative and prejudicial value of the questions asked by the Juvenile’s counsel and did not abuse its discretion in deciding what questions to allow and what questions to reject.

Furthermore, even if the excluded evidence should have been admitted, the Juvenile fails to show that there is a reasonable possibility that the exclusion of | iasuch evidence contributed to the his adjudication. As the supreme court stated in State v. Martin, 458 So.2d 454, 459 (La.1984), “[c]onsidering the nature of the evidence which was excluded and the evidence which was received in this case, it is clear that the impact of the excluded evidence would have been minimal and that exclusion of the evidence was harmless beyond a reasonable doubt.” Likewise, considering the evidence that was excluded in the present case (the Juvenile’s speculative belief as to the type of harm Dekalin would cause him and Dekalin’s general disciplinary history) and the evidence that was received (the Juvenile’s fear of Dekalin, Dekalin’s previous attempt to fight the Juvenile, the Juvenile’s belief that Dekalin was capable of seriously hurting him, and Dekalin’s previous history with the Juvenile), it is clear that the impact of the excluded evidence would have been minimal. Thus, even if error exists, it is harmless.

Additionally, we find that the evidence against the Juvenile was sufficient to warrant the adjudication he received. In State ex rel. C.P., 12-192, p. 4 (La.App. 3 Cir. 6/6/12), 91 So.3d 1273, 1276-77, this court stated the following regarding the standard for reviewing adjudications of delinquency:

The supreme court discussed sufficiency of the evidence claims in juvenile delinquency proceedings in State in the Interest of D.P.B., 02-1742, pp. 4-6 (La.5/20/03), 846 So.2d 753, 756-57 (footnote omitted) (first alteration in original), stating:
In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult— to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, |1fiwas sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).
Further, the trial court’s findings of fact in a juvenile case are subject to the manifest error standard of review. State in the Interest of J.M., 99-186 (La.App. 3 Cir. 6/2/99), 742 So.2d 6 (citing State in the Interest of Wilkerson, 542 So.2d 577 (La.App. 1 Cir.1989)). Accordingly, the appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact absent manifest error. Id.

In the present case, the Juvenile admitted that he possessed the marijuana. As stated above, the Juvenile claims that he was justified in possessing the marijuana because he was compelled to do so by threat of physical harm. The trial court, however, found the Juvenile did not satisfy his burden of proving this defense. As cited by the State in its brief, the first circuit affirmed a finding of delinquency in State ex rel. M.P., 12-1535 (La.App. 1 Cir. 2/22/13), 2013 WL 674707 (an unpublished opinion), where the juvenile offered only self-serving testimony to prove that his crime was justified. In M.P., the court stated:

We agree with the finding of the juvenile court that M.P. did not prove his defense by a preponderance of the evidence. Based on our careful review of the record, the juvenile court’s finding that there was proof beyond a reasonable doubt that M.P. had committed the offense of armed robbery was not manifestly erroneous or clearly wrong.

M.P., 12-1535, p. 3.

Likewise, after a careful review of the record in the present case, the trial court’s finding of delinquency was not manifestly erroneous or clearly wrong. The only evidence the Juvenile offered in support of his defense was his own self-_j3erving17 testimony that he was compelled to hold the marijuana for Dekalin. However, neither the Juvenile, Officer Bachelor, nor Principal Clay could point to any significant previous interactions between the Juvenile and Dekalin. Although the Juvenile’s counsel contends that Dekalin was subpoenaed and did not appear, the Juvenile’s counsel did not request a continuance based upon Dekalin’s failure to appear. Further, the trial court heard the Juvenile’s testimony that he was scared of Dekalin and believed that Deka-lin could seriously hurt him. Even considering this testimony, the trial court did not believe the Juvenile carried his burden of proof and rejected the Juvenile’s justification defense. “A reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury.” State v. Jeanfreau, 11-1237 (La.App. 1 Cir. 2/10/12), 90 So.3d 554 (an unpublished opinion) (citing State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418). The trial court’s rejection of the Juvenile’s defense was rational, and we will not overturn it.

DECREE

C.V.’s adjudication is affirmed. However, we order the trial court to:

1. File a written disposition into the record in accordance with La.Ch. Code art. 903;
2. Amend C.V.’s disposition to give him credit for time served in a secure detention facility before the imposition of disposition, if any;
3. Note the amendment in the written disposition and in the minute entry; and
4. Inform C.V. of the provisions of Article 930.8 by sending appropriate written notice to him within ten (10) days of the rendition of this opinion and to file written proof that C.V. received the notice in the record of the proceedings.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


author: GENOVESE, Judge.

text:
    Mack I. FRANK v. CITY OF EUNICE, Louisiana Municipal Association Insurance Group, Hilma Potier Dupre, and Kenneth Dupre.
    No. 13-1118.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Pride J. Doran, Quincy L. Cawthorne, Chris B. Lear, Doran & Cawthorne Law Firm, PLLC, Opelousas, Louisiana, for Plaintiff/Appellant, Mack I. Frank.
    Karen Day White, Baton Rouge, Louisiana, for Defendant/Appellee, The City of Eunice.
    Donald R. Richard, Jr., Eunice, Louisiana, for Defendants/Appellees, Kenneth Dupre and Hilma Dupre.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Iiln this suit to annul tax sales and to rescind public sales of immovable properties, the trial court rendered a judgment: (1) in favor of Plaintiff, Mack I. Frank, annulling and rescinding the tax sales on the properties; (2) in favor of Defendants/Plaintiffs in Reconvention, Kenneth and Hilma Dupre, for the return of the purchase prices paid to Defendant, the City of Eunice; and, (3) in favor of the Dupres against Mr. Frank for recoupment of expenses incurred by them relative to the properties. Mr. Frank has appealed this judgment. For the following reasons, we dismiss the appeal and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mack I. Frank was the owner of three properties located in Eunice, Louisiana. Mr. Frank failed to pay outstanding ad valorem taxes and demolition hens on the properties. Accordingly, tax sales were held, and the three properties were adjudicated to the City of Eunice.

The City of Eunice later conducted public sales of the properties, all of which were purchased by Kenneth Dupre and Hilma Dupre. The Dupres took possession of the properties and began construction and repairs. They also began incurring expenses relative to the properties.

Mr. Frank filed suit seeking to have the tax sales of the properties annulled as well as the public sales of the properties from the City of Eunice to the Dupres. The Dupres filed a reconventional demand against Mr. Frank and asserted claims against the City of Eunice, asserting that in the event that either the tax sales or the public sales of the properties to them by the City of Eunice were found to be null, li>then they were entitled to recoup the expenditures made by them either from Mr. Frank and/or the City of Eunice.

Following trial, the trial court rendered judgment which read, in pertinent part, as follows:

This cause came before this Court on the 30th day of January, 2013.
When, after considering all of the arguments and the evidence submitted,
the Court considering the facts and law to be in favor of Plaintiff, Mack Frank, and in favor of Plaintiffs-in-Reconvention, Hilma[ ] Potier Dupre and Kenneth Dupre, for reasons detailed within its Reasons for Judgment of March 14, 2013.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be Judgment in favor of the Plaintiff, Mack Frank, and against the Defendant, [the] City of Eunice, invalidating the tax sale and auction of 611 Lewis St., and the tax sale and auction of 311 and 315 Roosevelt St., as the Court finds there was no notice to [P]laintiff of the delinquency or of the subsequent proceedings purporting to divest him of his interest in those properties;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in accordance with La. Const. Art. VII § 25, in order for Plaintiff, Mack Frank, to regain ownership and possession of his property, he must pay to the City of Eunice all due taxes and liens on the Lewis St. property ($6,974.83) plus ten percent per annum (calculated to be $3,049.82 as of March 14, 2013), as well as all due taxes and liens on the Roosevelt St. properties] ($6,958.11) plus ten percent per annum (calculated to be $3,042.51 as of March 14, 2013);
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Hilmer [sic] Potier Dupre and Kenneth Dupre, against Mack Frank, for the total expenditures on the properties, which the Court finds were in good faith. These include FOURTEEN HUNDRED ($1,400.00) DOLLARS AND NO/100 CENTS for “good faith constructions”; NINE THOUSAND THREE HUNDRED AND SEVENTY ($9,370.00) DOLLARS AND NO/100 CENTS for “necessary expenses”; and EIGHT THOUSNAD [sic] THREE HUNDRED AND TWENTY ($8,320.00) DOLLARS AND NO/100 CENTS for “useful expenses,[”] totaling NINETEEN THOUSAND NINETY DOLLARS ($19,-090.00) AND NO/100 CENTS.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Hilmer [sic] Potier Dupre and Kenneth Dupre, against the City of Eunice, in the amount of TWENTY-EIGHT THOUSAND FIVE HUNDRED FIFTY THREE | .¡DOLLARS ($28,553.00) AND NO/100 CENTS, representing the total of the purchase prices they paid the City of Eunice for the Roosevelt St. and Lewis St[.] properties;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, Mack Frank, will only regain possession of the properties once: 1) [P]laintiff has paid all delinquent taxes, liens and interest due on the properties as [sic] issue in accordance with La. Const. Art. VII § 25; 2) [P]laintiff has paid the Dupres for their expenditures on the properties they possessed in good faith ($19,090.00); AND 3) the City of Eunice returns to the Dupres the price paid for the properties along with the other costs incurred ($28,553.00). Unless and until the Dupres are compensated by both Defendants-in-Reconvention, AND Mack Frank pays to the City of Eunice the delinquent taxes, liens and interest, the properties are to remain [in] the possession of Hilma[] Potier Dupre and Kenneth Dupre.

For the reasons that follow, we dismiss Mr. Frank’s appeal on our own motion and remand for further proceedings.

LAW AND DISCUSSION

Appellate courts have the duty to determine sua sponte whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-1351 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 725. Under Louisiana law, a final judgment is one that determines the merits of a controversy in whole or in part. La.Code Civ. Proc. Ann. art. 1841. A final judgment must be identified as such by appropriate language. La.Code Civ. Proc. Ann. art. 1918. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 01-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of a judgment without reference to other documents in the record. Laird, 836 So.2d at 366.

Brooks v. Sibille, 12-1093, pp. 2-3 (La.App. 3 Cir. 1/30/13), 107 So.3d 826, 828 (emphasis added) (quoting Gaten v. Tangipahoa Parish Sch. Sys., 11-1133, pp. 3-4 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073, 1074).

In the instant matter, we find that the judgment of the trial court is not a valid, final judgment. Although the judgment declares the tax sales and auctions of the properties at issue to be invalid, subsequent provisions within the judgment are contradictory, and the provisions of the judgment lack precision, definiteness, and certainty.

The initial decree of the judgment in favor of Mr. Frank declares the tax sales and auctions to be invalid due to lack of notice. However, the trial court’s finding that the “proceedings purporting to divest him of his interest in those properties” were without legal effect is wholly inconsistent with the subsequent provisions of the judgment decreeing that “in order for [Mr. Frank], to regain ownership and possession of his property, he must pay to the City of Eunice all due taxes and liens.” If Mr. Frank was never divested of his ownership in the properties, it is axiomatic that he need not take affirmative action to regain that which he never lost.

Additionally, the relief granted by the trial court’s judgment is not “precise, definite, and certain.” Gaten, 91 So.3d at 1074. Rather, the ultimate resolution of the dispute between the parties remains contingent upon the occurrence of future events. Specifically, the final paragraph quoted above conditions Mr. Frank regaining possession of the properties, despite his ownership thereof, upon three occurrences: namely, (1) Mr. Frank must pay the City of Eunice the unpaid taxes and liens; (2) he must pay the Dupres for the costs and expenses they incurred; and, (3) the City of Eunice must return the purchase price of the properties to the Dupres — a contingency over which Mr. Frank has no control. Again, despite | sMr. Frank’s ownership, in order to regain possession of that which he owns, “[u]nless and until” these express conditions are fulfilled, “the properties are to remain [in] the possession of Hilma[] Potier Dupre and Kenneth Dupre.” The judgment of the trial court creates the conundrum that Mr. Frank may own the properties at issue, yet he may not possess the properties; the Dupres, although not owners of the properties, may retain possession thereof; the Dupres and/or the City of Eunice may not be reimbursed the amounts owed to them; and, for all practical purposes, the properties will have unmerchantable title.

For the foregoing reasons, we find that the judgment of the trial court is indeterminate and not a valid, final, appealable judgment which legally permits appellate jurisdiction. As this court lacks subject matter jurisdiction, we must dismiss the present appeal and remand for further proceedings. See Brooks, 107 So.3d 826.

DECREE

For the reasons assigned, we dismiss the present appeal and remand the matter to the trial court for further proceedings. Costs of this appeal are assessed to Mack

I.Frank.

APPEAL DISMISSED;

REMANDED.

      . Although the caption of the original petition names Mrs. Dupre as "Hilma Potier Dupre,” the answer filed on her behalf and other documents in the record identify her as "Hilmar Portier Dupre.” The trial court judgment refers to Mrs. Dupre and "Hilmar” and "Hil-mer.” For clarity, we shall refer to her as "Hilma” in this opinion.

      . An appellate court may dismiss an appeal on its motion where there is no right to appeal. La.Code Civ.P. art. 2162.