author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Donte J. WILLIAMS.
    No. 13-KA-732.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Terry M. Boudreaux, Matthew Caplan, Vincent J. Paciera, Jr., David B. Wheeler, Gretna, Louisiana, for Appellee, the State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Appellant, Donte J. Williams.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

[aOn appeal, defendant challenges the denial of his motion to quash and denial of his motion to suppress evidence. For the following reasons, we affirm his conviction and sentence.

Procedural history

On August 2, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Donte J. Williams, with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. On August 10, 2012, defendant filed omnibus pre-trial motions, including, inter alia, motions to suppress his statement and evidence, which were later denied.

On April 8, 2013, defendant filed a motion quash the bill of information on the basis that La. R.S. 14:95.1 was unconstitutional in light of the 2012 amendment to the Louisiana Constitution. The trial court heard and denied defendant’s motion to quash on May 20, 2013.

On July 9, 2013, before trial commenced, defendant reurged his motion to suppress evidence, which the court again denied. Trial commenced before a 12-person jury, which found defendant guilty as charged.

|sOn August 5, 2013, defendant filed a motion for post-verdict judgment of acquittal and motion for new trial, which the trial court denied. After defendant waived statutory sentencing delays, the trial court immediately sentenced defendant to 10 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served. That day, defendant filed a written motion for appeal, which was granted.

Facts

At trial, Deputy Brandon Veal of the Jefferson Parish Sheriffs Office testified that, he was on patrol shortly after midnight on July 10, 2012, when he observed the driver of a green Ford Explorer commit a traffic violation by changing lanes without signaling. Deputy Veal initiated a stop of the vehicle.

As Deputy Veal observed the vehicle, he noticed that its windows were tinted so he was unable to see how many occupants were in the vehicle. Further, Deputy Veal testified that the stop occurred after midnight so it was dark. Deputy Veal also stated that the area of the stop was known for high crime and narcotics activity. After the driver stopped the vehicle, Deputy Veal, using his vehicle’s “P.A.” system, ordered the occupants to exit the vehicle.

The driver exited from his door and a rear passenger exited from the driver’s side of the vehicle; they left both driver’s side doors open after exiting the vehicle. As the occupants moved away, Deputy Veal walked toward the vehicle and shined his flashlight into the vehicle. When he shined his flashlight on the floor of the backseat area, Deputy Veal observed a semi-automatic, .40-caliber handgun on the rear floorboard. He stated that there was a “hump” in the middle of the floorboard and that the gun was on the far side, or passenger side, of that “hump.”

Once Deputy Veal observed a handgun on the floorboard of the backseat, he instructed the occupants to walk toward his police unit to put distance between |4them and the weapon. At that point, additional deputies arrived at the scene so the driver, later identified as defendant-herein, and the passenger were handcuffed and seated in Deputy Veal’s police unit.

Deputy Veal advised defendant of his constitutional rights. According to Deputy Veal, defendant indicated that he understood those rights and waived them. While they were in Deputy Veal’s police unit, Deputy Veal printed out a waiver of constitutional rights form, which defendant initialed and signed.

Deputy Veal then questioned defendant about the firearm, which defendant admitted that he had purchased “off the street.” Defendant also admitted that he had a prior felony conviction. Deputy Veal stated that defendant was cooperative. Further, Deputy Veal testified that he did not force or coerce defendant to make a statement at any time. Deputy Veal did not question the passenger, Mr. Wilson.

While Deputy Veal was questioning defendant, crime scene personnel collected the gun, which contained “live rounds.” Crime scene personnel also took photographs of the vehicle, including the location of the weapon on the floorboard of the backseat, which were introduced at the suppression hearing immediately before trial.

At trial, Claudette Williams, defendant’s mother, testified that she was familiar with defendant’s vehicle and had been a passenger of the vehicle at night. She explained that the backseat floorboard of the vehicle was dark and not visible during the day, and definitely not visible at night. Mrs. Williams also explained that the vehicle’s doors did not fully open, so, even with the doors open and a flashlight, a person would have to be inside the vehicle to observe an object on the floor of the backseat because it was narrow and dark.

1 ^Defendant testified on his own behalf that, after his prior convictions, he knew that he was not supposed to possess a firearm so he had never knowingly or intentionally possessed a firearm. He also admitted that he was still “on parole” for his most recent convictions on the date of the offense.

Defendant testified that, on the night of the traffic stop, he was bringing his friend, Mr. Wilson, home when the officer pulled him over. Defendant was driving and Mr. Wilson was riding in the backseat. Defendant stated that, after the officer arrested the two men, Mr. Wilson admitted to defendant that he had left a gun in defendant’s vehicle and asked defendant to “take the charge.” Defendant testified that, if he had known, he would not have allowed Mr. Wilson into his vehicle because he knew that he was not supposed to be around firearms. Defendant stated that he “took the charge” for Mr. Wilson since Mr. Wilson was afraid to go to jail.

After hearing the testimony and viewing the evidence, the twelve-person jury found defendant guilty as charged. This appeal follows.

Law and Argument

On appeal, defendant challenges his conviction, raising two assignments of error: first, the trial court erred by failing to quash the indictment because the recent amendment to the Louisiana Constitution rendered this crime unconstitutional; and second, the motion to suppress evidence should have been granted because defendant’s arrest and the search of his car were illegal.

In his first assignment of error, defendant argues that the 2012 amendment to the La. Const. Art. 1, § 11 rendered La. R.S. 14:95.1 unconstitutional because La. R.S. 14:95.1 criminalizes behavior that is now protected. Specifically, defendant asserts that the amendment barred the legislature from enacting laws that infringe upon a citizen’s right to keep and bear arms. Defendant notes that any restriction |fiof this right is subject to strict scrutiny, which requires the State to show that the restriction serves a compelling state interest. Finally, defendant contends that La. R.S. 14:95.1 deprives defendant of equal protection under the law as guaranteed under the Fourteenth Amendment.

The State, relying on the Louisiana Supreme Court’s recent pronouncement in State v. Draughter, 13-0914 (La.12/10/13), 130 So.3d 855, responds that the trial court properly denied defendant’s motion to quash as La. R.S. 14:95.1 does not violate La. Const. Art. 1, § 11 as amended.

Before its recent amendment, Article 1, § 11 of the Louisiana Constitution provided: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” After the 2012 amendment, Article 1, § 11 provides that: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.” The effective date of this new amendment was December 10, 2012. Id. at 862.

Generally, legislation has prospective effect from its effective date. The Draughter court, following State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296 (La.1992), found, however, that the amendment to Article 1, § 11 of the Louisiana Constitution has retroactive effect to cases pending on direct review or not yet final, on the date that the amendment became effective. Id. at 863-864.

In this case, defendant violated La. R.S. 14:95.1 on July 10, 2012, prior to the effective date of the constitutional amendment. Further, defendant’s case was still pending on direct review at the time the amendment became effective. Thus, under Draughter, the amendment has retroactive effect in this case.

|7In another factual similarity, defendant, like Draughter, was on parole at the time of his offense, so he was under state supervision at the time of his arrest for La. R.S. 14:95.1. Id. at 865. In Draughter, the Louisiana Supreme Court held the State must exercise continuing supervision and control over convicted felons on probation or parole as they complete the punishments because, similar to inmates in a custodial setting, convicted felons serving sentences of probation or parole are equally categorized as having:

necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.

Id. at 867 (citation omitted).

The court further found that, because these persons are still serving a portion of a criminal sentence under state supervision, the State has a compelling interest for limited infringement of fundamental constitutional rights, including the right to bear arms. After reviewing the statute with strict scrutiny, the Louisiana Supreme Court held that La. R.S. 14:95.1, as applied to a convicted felon still under state supervision, did not unconstitutionally infringe upon the right to bear arms secured by Article 1, § 11 of the Louisiana Constitution. Id. at 868. Accordingly, relying on Draughter, we find that the trial court did not err in denying defendant’s motion to quash the indictment.

Finally, defendant contends that La. R.S. 14:95.1 deprives defendant of equal protection under the law as guaranteed under the Fourteenth Amendment. A defendant is limited on appeal to those grounds articulated at trial, and a new basis for the objection may not be raised for the first time on appeal. State v. Jackson, 450 So.2d 621 (La.1984); State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085. This issue was not raised in the trial court and is not properly before this Court on appeal. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the motion to suppress evidence should have been granted because defendant’s arrest and the search of his car were illegal. Defendant specifically contends that the traffic stop was not justified and, thus, all evidence obtained from the stop was “fruit of the poisonous tree.”

At the suppression hearing, the trial court found that there was probable cause for the stop. The court further found that, after the valid stop, defendant exited the vehicle at the officer’s instruction and the officer observed a handgun on the floorboard in the backseat. The court noted that the officer did not enter or search the vehicle. The court found that the evidence was “in plain view” and, thus, seized under an exception to the warrant requirement.

On the morning of trial, defendant re-urged his motion to suppress on the basis that crime scene photographs of the interi- or of the vehicle demonstrate that the officer could not have seen the gun without searching the vehicle. After reviewing the photographs, the trial judge again refused to suppress the evidence because “if you’re standing up and ... looking down, ... that would be in plain sight from the [rear] passenger’s door because ... it’s a rather large gun; the hump in the middle was not more than four inches high. It’s ... actually ... easier to see the gun.”

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765. The exclusionary rule bars, as illegal fruit, evidence obtained either during or as a direct result of an unlawful invasion. State v. Nicholas, 06-903 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 687. Warrantless searches and seizures are per se unreasonable, unless justified by one of the exceptions to the warrant requirement. Leonard, 945 So.2d at 765.

The first issue is whether the officers had reasonable suspicion to conduct a traffic stop. The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. Leonard, 945 So.2d at 766. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. A violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Davis, 09-452 (La.App. 5 Cir. 1/26/10), 31 So.3d 513, 516, writ denied, 10-2201 (La.10/21/11), 73 So.3d 373. Police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Id. at 517. The fact that an officer does not issue a traffic citation is irrelevant to the constitutionality of the stop. State v. Martin, 11-160 (La.App. 5 Cir. 12/28/11), 83 So.3d 230, 238.

In the instant case, Deputy Veal observed defendant change lanes without signaling, which is a traffic violation. See, La. R.S. 32:104(D) (signals ... shall be used to indicate an intention to ... change lanes ... ). The trial judge found that the | ¡¡¡officer was justified in stopping defendant for the traffic violation. We find no error in that ruling.

The final inquiry is whether the evidence was lawfully seized without a warrant. Under the “plain view” doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990); State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Here, the officer observed, in plain view, a large firearm on the floorboard of the backseat. Because the officer had prior justification to look into the vehicle, and it was immediately apparent to the officer without close inspection that the firearm was contraband, the “plain view” exception to the warrant requirement applies, and the seizure of the firearm was permissible. See Horton v. California, supra; State v. Leger, supra.

At the hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128, 134. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Lems, supra. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id. Thus, we find no error in the trial court’s ruling denying defendant’s motion to suppress evidence.

| uError patent discussion

Finally, pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and found none requiring corrective action.

Conclusion

In sum, after finding no merit in defendant’s assignments of error, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At trial, defendant and the State stipulated to defendant’s prior convictions of possession with intent to distribute marijuana and five counts of distribution of marijuana. The documents regarding defendant’s previous convictions were admitted into evidence at trial.

      . The gun was a .40 caliber Smith & Wesson.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kristin H. CURRY.
    No. 13-KA-817.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

^Defendant appeals her conviction and sentence for attempted possession of marijuana with the intent to distribute. For the following reasons, we affirm defendant’s conviction and sentence, and we remand the case for correction of the Uniform Commitment Order.

PROCEDURAL HISTORY

In October of 2012, defendant, Kristin H. Curry, was charged by bill of information with possession of marijuana with the intent to distribute, in violation of LSA-R.S. 40:966(A) (count one), and possession of counterfeit currency, in violation of LSA-R.S. 14:72.2 (count two). Defendant was arraigned and entered a plea of not guilty to the charges.

The matter proceeded to trial on June 27, 2013. On June 28, 2013, a 12-person jury found defendant guilty on count one of the lesser offense of attempted possession of marijuana with the intent to distribute and not guilty on count two.

|sOn July 3, 2013, defendant filed a motion for new trial, which the trial court heard and denied on July 8, 2013. After the denial of her motion, defendant waived sentencing delays, and the court sentenced her to three years imprisonment at hard labor, suspended two years, and placed her on active probation for those two years. As a condition of her probation, defendant was ordered to serve one year of home incarceration following her release from prison. Defendant appeals.

FACTS

At trial, defendant testified that on the afternoon of August 31, 2012, she received a telephone call from her estranged husband, Kevin Curry, who said he would be able to provide her with some money for child support. At this time, defendant and Mr. Curry were going through a divorce and child custody proceedings, which were still ongoing at the time of trial. According to defendant, she was to meet Mr. Curry at The Discount Depot, a convenience store in Gretna, Louisiana, for him to give her the child support money. However, at the last minute, Mr. Curry informed her that he would be unable to make it but somebody would be there in his place.

When defendant arrived at the convenience store, she recognized an associate of Mr. Curry, who approached her vehicle. She allowed him to get into her vehicle, where he gave her money and a bag of marijuana. According to defendant, she accepted the money, but she gave him back the marijuana and told him that she did not want it. Then, at this individual’s direction, defendant entered the store to purchase a scale.

Jatinder Singh was working at The Discount Depot on the night of August 31, 2012. He testified that defendant tried to purchase a postal scale from him, but he called the police when he suspected the money she was using was counterfeit. At approximately 7:00 p.m., Detective Dominick Sciortino of the Gretna Police ^Department proceeded to the store in response to Mr. Singh’s complaint. When the detective arrived, Mr. Singh flagged him down and indicated that the woman who had tried to buy merchandise using the counterfeit bills was in a van attempting to leave the parking lot. Detective Sciortino and another officer approached the van on foot and saw through the open driver’s window that defendant was seated in the driver’s seat with the vehicle in “drive,” intending to pull out of a parking spot. The officers ordered her to exit the vehicle. As she did, Detective Sciortino detected an “overwhelming” odor of unburned marijuana. In response, the officers detained defendant and advised her of her rights.

Soon thereafter, a K-9 unit arrived on the scene, and the dog alerted to a diaper bag on the floorboard behind the driver’s seat. Detective Sciortino seized the diaper bag in which he found two clear plastic bags of green vegetable matter, which was subsequently determined to be marijuana. One bag contained 455 grams, and the other bag had 32 grams. Next to the diaper bag on the floorboard, the detective also located a small metal scale.

Detective Sciortino questioned defendant regarding the counterfeit currency and marijuana. In response, defendant handed over six $20.00 bills and explained that she had obtained the currency from her marijuana supplier. According to Detective Sciortino, defendant further stated that she was unemployed at the time, had a newborn child, and was selling the marijuana to make money. However, at trial, defendant denied that she ever said these things. Suspecting the bills were indeed counterfeit, Detective Sciortino contacted the U.S. Secret Service office, and Special Agent Brian Rossitto responded to the scene. Agent Rossitto confirmed that the bills were counterfeit based on his assessment of the serial numbers as well as the texture and quality of the paper. Defendant was placed under arrest.

Is At trial, the basis of defendant’s defense was that she was set-up by her ex-husband. Defendant testified that she has a temporary restraining order against Mr. Curry and that he has tried to “set her up” by planting drugs in her vehicle on more than one Occasion. The defense called Officer Marcus Dubuclet of the Gretna Police Department, who testified that in October of 2012, Mr. Curry lodged a complaint that defendant was selling narcotics. Officer Dubuclet confronted defendant with this information and obtained her consent to search her vehicle. Pursuant to a tip that drugs would be located in the trailer hitch of her vehicle, the officers searched there and recovered narcotics. During the search, the officers observed Mr. Curry circling the block several times. According to Officer Dubuclet, this roused their suspicions and prompted them to stop Mr. Curry’s vehicle, at which point a computer search revealed a restraining order prohibiting him from contacting or coming within a certain distance of defendant. Consequently, Mr. Curry was arrested for violating the restraining order.

LAW AND DISCUSSION

In defendant’s first assignment of error, she argues that the trial court erred in failing to find that the State violated the rules of discovery when it failed to provide the defense with certain details of a statement defendant allegedly gave to Detective Sciortini at the time of her arrest. These details were that defendant’s marijuana supplier was located in the Magnolia Projects in New Orleans.

In response, the State maintains that this issue has not been preserved for appellate review since the defense did not lodge a contemporaneous objection to the “Magnolia Projects” reference. In any event, the State contends there was no discovery violation where the defense had been informed of the contents of defendant’s statement at a pre-trial motion hearing.

|fiAt trial, during the direct examination of Detective Sciortini, when the detective stated that he had obtained a statement from defendant regarding the counterfeit currency, defense counsel objected on the ground that this topic was not included in any statements previously provided to the defense. Defense counsel maintained that the only statement by defendant which was contained in the detective’s incident report and which was raised in pretrial motions was that she was the mother of a newborn child and was selling to provide for her children. The court overruled the defense’s objection.

Then, on cross-examination, Detective Sciortini testified that defendant told him her marijuana supplier was from the Magnolia Projects in New Orleans. The detective acknowledged that he did not include this in his incident report because it regarded territory, i.e., New Orleans, outside of his jurisdiction. The detective added that he forwarded this information to the appropriate authorities. Defense counsel did not object to Detective Sciortini’s testimony regarding defendant’s marijuana supplier.

LSA-C.Cr.P. art. 841(A) requires that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.... ” This Court has held that to preserve the right to seek appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. State v. Madrid, 12-410, pp. 9-10 (La.App. 5 Cir. 12/11/12), 104 So.3d 777, 783.

On appeal, defendant alleges that the trial court erred in admitting the portion of defendant’s statement that her marijuana supplier was from the Magnolia Projects because this had not been previously provided in discovery. However, the defense did not contemporaneously object to this testimony, and the record shows that defense counsel actually elicited this information. Furthermore, 17the record reflects that other references to defendant’s marijuana supplier were elicited by defense counsel and were not met with an objection from the defense.

In consideration of the foregoing, this issue has not been preserved for appellate review. Accordingly, we decline to address the merits of defendant’s first assignment of error.

In defendant’s second assignment of error, she argues that the trial court erred in denying her motion for new trial on the ground that she was not permitted to present a defense. She asserts that her defense was based on her assertion that her ex-husband, Kevin Curry, set her up in order to gain an advantage in their child custody proceedings, but the trial court did not allow her to present effective evidence in support of this position. Specifically, defendant complains that she should have been allowed to introduce evidence of the fact that Mr. Curry’s civil attorney was present in the courtroom for the entire duration of defendant’s trial and/or to call Mr. Curry’s civil attorney to the stand.

In response, the State contends that the trial court did not err in refusing to allow Mr. Curry’s civil attorney to testify at defendant’s trial because such testimony would have violated LSA-C.E. art. 507 and because evidence of the attorney’s presence was not relevant to the instant criminal prosecution.

Near the end of trial, defense counsel requested that the court take judicial notice of the fact that Mr. Curry’s civil attorney had been present in the courtroom Rfor the duration of the trial. The trial court agreed to take judicial notice of this fact. Yet, when defense counsel indicated that he wished to call the attorney as a witness to identify herself and her presence in the courtroom, as well as reference the attorney’s presence in closing arguments, the State objected on the grounds of relevance. The court agreed and refused to allow the defense to call the attorney to testify. The defense objected.

After the trial, defendant filed a motion for new trial in which she raised the exclusion of this evidence as a basis for the motion. Defendant based her argument on LSA-C.Cr.P. art. 851(2), which provides that a new trial shall be granted when “[t]he court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error[.]” She argued that the exclusion of this evidence was prejudicial because it “would have further established Kevin Curry’s obsession and attempts to stalk and control defendant such that it would have made defendant’s claim that he set her up more probable than without said evidence.”

At the motion hearing on July 8, 2013, the trial court denied defendant’s motion for new trial, reasoning as follow: “[Wjhether or not the Court would have allowed the attorney to take the stand would have been — would have been confusing to the jury. So that’s the basis for the ... denial [of] the motion for new trial.”

On appeal, defendant argues that the exclusion of this evidence violated her right to present a defense since “[i]t would have been a very effective example to the jury of the defense’s argument that [Mr. Curry] went to extreme lengths to harass and stalk [defendant].”

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right |flto present a defense. State v. Lirette, 11-1167, p. 19 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763. However, this right does not require a trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible, except as limited by the Code of Evidence and other laws, and all irrelevant evidence is inadmissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

A trial court, in deciding the issue of relevancy, must determine whether the evidence bears a rational connection to the facts at issue in the case. Lirette, 11-1167 at 20, 102 So.3d at 813-14. The court’s determination regarding the relevancy and admissibility of evidence should not be overturned on appeal absent a clear abuse of discretion. Id.

In the instant case, the evidence was excluded because the trial court found it to be irrelevant. In making this determination, the court rejected defense counsel’s contention that Mr. Curry’s attorney was present only for the purpose of harassing defendant. The court reasoned that Mr. Curry’s attorney may have been present for a legitimate purpose relating to her representation of Mr. Curry in the ongoing child custody proceedings.

|]ftAlthough the presence of Mr. Curry’s attorney may have been relevant to child custody proceedings, the issue in this case is whether evidence of the attorney’s presence was relevant to defendant’s criminal prosecution such that its exclusion was erroneous. Thus, this Court must determine whether this evidence bore a rational connection to the facts at issue in the instant case.

Defendant was charged with possession of marijuana with the intent to distribute and possession of counterfeit currency. The defense argued that she was not guilty of these crimes because Mr. Curry set her up, planting the marijuana and counterfeit currency on her. To support this theory, the defense sought to portray Mr. Curry as relentlessly harassing defendant. For instance, the defense introduced evidence of another alleged set-up by Mr, Curry in which he allegedly stashed narcotics in defendant’s vehicle and then contacted the police. Another instance of Mr. Curry’s harassment, the defense sought to argue, was the presence of his attorney at defendant’s trial.

Based on our review of the record, we find that the trial court properly excluded evidence of the presence of Mr. Curry’s attorney during defendant’s trial. Defendant has not demonstrated, nor is it evident, how the presence of Mr. Curry’s civil attorney during defendant’s trial was part of a broader pattern of harassment. Defendant accused Mr. Curry, not his attorney, of harassing her. There is no evidence that Mr. Curry instructed his attorney to attend defendant’s trial to harass her. Nor is there any indication that the attorney displayed behavior that could be considered harassment; rather, the record reflects that she was nothing more than a quiet observer. This is consistent with the trial court’s observation that she had an alternative legitimate purpose to be there: her representation of Mr. Curry in ongoing child custody proceedings.

[ t , Furthermore, the attorney’s presence bears no rational connection to the determination of defendant’s guilt on the charged offenses. In determining whether defendant possessed marijuana and counterfeit currency on August 31, 2012, the presence of Mr. Curry’s attorney in the courtroom during defendant’s trial had no tendency to make the existence of any element of the charged offenses more probable or less probable. See LSA-C.E. art. 401. As such, this evidence was not relevant.

Accordingly, because the presence of Mr. Curry’s attorney was irrelevant and the evidence thereof was properly excluded, the trial court did not abuse its discretion in denying defendant’s motion for a new trial on this basis. This assignment of error is without merit.

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 387 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. One error requiring corrective action was noted.

The “State of Louisiana Uniform Commitment Order” indicates that the adjudication date was July 8, 2013. However, the record indicates that the jury returned its verdict on June 28, 2013. In order to ensure an accurate record, we remand this matter and order the Uniform Commitment Order be corrected to reflect the correct adjudication date. See State v. Long, 12-184, p. 10 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Further, we order the Clerk of Court for the | ^district court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed. However, we remand the case for correction of the Uniform Commitment Order. Further, we order the Clerk of Court for the district court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.

      . LSA-C.E. art. 507 provides in pertinent part:
      A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any criminal investigation or proceeding where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless the court after a contradictory hearing has determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:
      (1) The information sought is essential to the successful completion of an ongoing investigation, prosecution, or defense.
      (2) The purpose of seeking the information is not to harass the attorney or his client.
      (3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.
      (4) There is no practicable alternative means of obtaining the information.

      . We further note that the defense’s theory of a set-up seems internally flawed. It can be presumed that the goal of Mr. Curry’s alleged set-up was for defendant to be caught with drugs. However, there was no evidence that Mr. Curry’s plan provided for defendant to be caught. There was no evidence that Mr. Curry contacted the police after he planted the marijuana and currency on defendant. Rather, the evidence indicates that the police were contacted by Mr. Singh when defendant presented him with the counterfeit currency, and there was no evidence connecting Mr. Curry to Mr. Singh. Thus, if this was in fact a setup, its success wholly depended on factors outside of Mr. Curry’s control, i.e., Mr. Singh recognizing the currency as counterfeit and calling the police. Such a plan is notably dissimilar from Mr. Curry's other alleged setup, in which he contacted the police after stashing narcotics in defendant's vehicle.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Darnell TURNER.
    No. 13-KA-836.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Edward C. Milner, III, Michael G. Morales, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Brent A. Hawkins, Attorney at Law, Lake Charles, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

| ^Defendant, Darnell Turner, was convicted of the second degree murder of Donald Bates in violation of La. R.S. 14:30.1. After the denial of his motion for new trial, the trial court sentenced Defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant’s timely appeal followed. For the reasons that follow, we affirm Defendant’s conviction and sentence and remand the matter to the trial court for correction of an error patent as noted herein.

FACTS AND PROCEDURAL HISTORY

On January 28, 2010, Donald Bates cashed a $12,000.00 check at Ace Check Cashing that he received for the sale of his vehicle. Rhonda Skinner was with Bates at the time he cashed the check. Before bringing Skinner to her home, Bates purchased marijuana and crack and gave her money to purchase a phone. Bates also offered Skinner money in exchange for sexual relations, which she refused but ultimately agreed to think about it. That night, Mr. Bates was counting the money with his wife, Caroline Bates, at their home at 2217 Eastmere Street, which is located in the Woodmere neighborhood. He told his wife that he wanted to use the money to pay traffic tickets, insure their truck, and obtain groceries. He placed $2,000.00 in an envelope for past-due rent, which was left on the kitchen | stable before Mrs. Bates left for work the next morning. Bates also gave his wife an additional $2,000.00 for the next two months’ rent, which she hid in a guestroom within their residence.

On the following morning of January 29, 2010, Mrs. Bates left their residence at approximately 6:00 a.m. to go to work. Bates was still in bed sleeping when she left. When she returned home from work that day at approximately 3:00 p.m., she noticed that her husband’s van was not at their home. When she attempted to unlock the door to her residence, she noticed that the door was unlocked. Knowing her husband usually did not leave the door unlocked, she called a friend to come over to her house. She and a friend opened the glass door and noticed spots of blood on the floor, at which point they chose not to go inside and called the police.

Deputy Jeffrey Easterby of the Jefferson Parish Sheriffs Office responded to Mrs. Bates’ call at her residence. Once inside, Deputy Easterby noticed that the home had been ransacked, with the furniture disturbed, drawers pulled out with property removed, and mattresses flipped up. He discovered the victim, Bates, who did not appear to be alive, on the bathroom floor of the master bedroom. The victim was dead and had sustained multiple different types of traumatic injuries, including four gunshot wounds, blunt force trauma wounds, and superficial incised wounds.

Detective Gary Barteet of the Jefferson Parish Sheriffs Office testified regarding the scene and the evidence seized from the residence. Based on the presence of blood in multiple areas of the residence, the scene indicated that there had been a struggle in the foyer/hallway area, just past the front door, and that portions of the residence had been searched and left in disarray. The mattress had been pulled off of the bed, and a baseball bat was found on the box springs. |4Petective Bar-teet believed that there were at least two people involved due to the violence, which seemed to indicate that the victim was “striking back.” He did not find any evidence that indicated there was forced entry. The police recovered four 9 mm fired cartridge cases, two of which were discovered in the hallway and the remaining two were discovered in the bathroom. A pillow was also found in the bathroom on the victim that had been penetrated by a passing bullet.

Once Mrs. Bates was allowed to return to her home, she noticed that a World War II plaque from her father was missing, as well as the $2,000 which had been left inside an envelope on the kitchen table. She also found a blood-covered knife inside a drawer of her home.

Dr. Susan Garcia, an expert in the field of forensic pathology, performed the autopsy on the victim and determined that one of the gunshots punctured his heart and went through his right lung, which she believed was a lethal wound. The victim had other gunshot wounds, including one to his leg. Dr. Garcia believed that the incised wounds to the victim’s scalp, neck, and fingers were caused by a sharp object, possibly a knife. She further believed that the blunt force trauma to the victim’s head was consistent with him being struck by a hard object, possibly a baseball bat.

Detective Solomon Burke of the Jefferson Parish Sheriffs Office testified that the victim’s van was recovered on the night of the murder on a dead-end road near the intersection of Jordan Street and Ray Street, within the Haydel area. Someone had made an attempt to set the van on fire, but the fire was unsuccessful due to the fact that it was set inside of a sealed van. A baseball cap was found on the ground a few feet away from the driver’s side door of the van. Detective Burke testified that he obtained an exigent circumstance request for the victim’s cell phone. It was discovered that the last phone call received by the victim was from | ¡¡Rhonda Skinner. The phone traced Skinner’s phone to a hotel, where she was found. The police recovered Skinner’s phone, but the SIM card had been removed. Skinner was brought to the Detective Bureau as a person of interest where she gave seven taped statements over the course of approximately twenty-four hours, all of which were played for the jury at trial.

In Skinner’s first statement, taken at 2:15 a.m. on January 31, 2010, she admitted that she knew the victim, and that she was with him on January 28, 2010 when he cashed his $12,000.00 check at Ace Check Cashing. She further admitted that she called him from her home in the Bee-chgrove area at approximately 8:00 a.m. on January 29, 2010 to discuss his previous offer of money in exchange for sex.

In her third statement at 2:11 p.m., Skinner admitted that her call to the victim on the morning of January 29, 2010 took place while she was in the same area where the victim’s residence is located— the Woodmere area. She stated that she was in the Woodmere area to inspect an apartment for rent. While walking, a car stopped beside her with two males inside. She described the driver, and said that a man she knew as “Nasty” was in the passenger seat. She stated that Nasty advised her that he was about to “hit a lick,” (meaning “to steal”), and that he was going to “get it” from the victim, whom he referred to as “Mr. Don.” In her fourth statement, taken at 3:55 p.m., Skinner added that Nasty already knew that the victim had recently received a large sum of money for the sale of his ear, and that he intended to knock on the victim’s door and impersonate a lawn service worker. Once the victim opened the door, she stated that Nasty told her that he planned to force his way in.

In her fifth statement, given at 6:15 p.m., Skinner admitted that she had withheld some information from her prior statements. Specifically, she admitted | ¡¡that she had received a phone call from Nasty on the morning of January 29, 2010, wherein he asked her to meet him in the Woodmere area. She said that she called Mr. Don when she got to the Woodmere area, at around 8:00 a.m. She then said that Nasty called her a second time, and came to meet her in a vehicle. He was on the passenger’s side and she said that the driver was someone she had never seen before. At Nasty’s request, Skinner called the victim again at 8:53 a.m. to see if he was at his home. After her conversation with the victim, she again confirmed that Nasty told her he was going to “get a lick off of Mr. Don,” which she understood to mean that he was going to take the money the victim had received the previous day, and that Nasty planned to get inside the house by pretending to be a lawn service worker. Skinner admitted that she confirmed to Nasty that the victim had the money, but she denied any involvement in the victim’s murder. Although she did not know Nasty’s real name, she did have information about his mother and his sister, from which the police were able to identify Nasty’s real name as Terrol Cole. Thereafter, Skinner identified Terrol Cole as Nasty in a photographic lineup.

In another statement, which was given on January 31, 2010, at 9:33 p.m., Skinner admitted that she had held back information because she was scared of those involved and of going to jail. She stated that after she agreed to meet Cole in the Woodmere area on the morning of January 29, 2010, she met him at a house located within that area on Destrehan Avenue. She then went for a ride with Cole in a car driven by a female later identified as Ka-trice Batiste, and a man she knew as “Darnell.” During the car ride, Cole told her about his plan to rob the victim. She said they passed Mr. Don’s house on Eastmere Street, and that she saw Mr. Don’s van at his home. Skinner further stated that the driver was told to stop at a stop sign near Eastmere Street, at which point Cole and “Darnell” exited the car. She eventually saw the two men walk back towards the victim’s house. She then 17returned to the house on Destrehan Avenue. Shortly thereafter, Skinner stated that she left the Destrehan Avenue house with Batiste and one other female later identified as Tanis-hia Stamps, and went to another house located on Marine Street in the Haydel area.

Once Skinner arrived at the Marine Street house, she stated that she observed Cole in the back of the residence, changing his clothes and sweating. She said that Cole told her that the victim opened the door, but stated that he only admitted to having $2,800.00. Cole told her that the victim and “Darnell” were struggling over the gun, and that he had to help Darnell by hitting the victim. She stated that “Darnell” told her that he shot the victim in the foot and that he “poked” him with a knife because he wouldn’t cooperate. She said that Cole told her that they took the victim’s van, which they intended to burn. Skinner’s final statement was made in reference to a photographic lineup, in which she identified Defendant, Darnell Turner, as the other person involved in the murder named “Darnell.”

Detective Burke testified that Skinner was arrested after her statements, which led to arrest warrants for Defendant and Cole. The investigation revealed that Defendant’s residence was located at 3000 Destrehan Avenue and his father’s residence was located at 1624 Marine Street. At trial, Skinner testified that she had entered into a plea agreement, wherein her second degree murder charge was reduced to conspiracy to commit armed robbery in exchange for her testimony in this case.

As previously provided in her recorded statements, she admitted that on January 29, 2010, she went to the Woodmere area with Katrice Batiste, Tanishia Stamps, Defendant, and Cole. She admitted that she and Cole had a conversation wherein she confirmed to him that the victim did have the money. While in the car, she testified that Cole talked to her about “hitting a lick” on the victim, and that |sDefendant was in the car at the time of this conversation. Skinner further testified that at some point Cole agreed to give her a $2000.00 cut from the victim’s money.

She testified that after Cole instructed Batiste to stop the vehicle at a stop sign near the victim’s house, Cole and Defendant exited the vehicle. Skinner and Batiste drove off and eventually returned to the house on Destrehan Avenue. After receiving a call from Cole, Skinner went to the house on Marine Street with Batiste and Tanishia Stamps. Skinner testified that she went to look for Cole and found him and Defendant in a room in the back of the house. Skinner testified that Cole told her that he “popped Mr. Bates cause he was struggling with Darnell” over a gun. She said she witnessed Cole put a plastic bag into the trunk of the car before they left the Marine Street house in Batiste’s vehicle. Skinner testified that she identified Defendant in a photographic lineup at the Detective Bureau, and she also identified Defendant in court.

Detective Burke testified that he interviewed Batiste and Stamps, both of whom corroborated what was learned from Skinner. At trial, Batiste testified that at the time of the incident, she had known Cole and Defendant for about a month. On the night before the victim’s murder, Batiste testified that she and Stamps spent the night at the Marine Street house with Cole and Defendant. When they woke up on January 29, 2010, they picked up Skinner and went to Defendant’s house at 3000 Destrehan. Later that morning, Batiste, Skinner, Defendant, and Cole left Defendant’s house in her car, and she and Skinner dropped off Defendant and Cole on Post Street in the Woodmere area.

Batiste testified that she, Skinner, and Stamps went to the Marine Street house to meet Cole and Defendant later that same day. She noticed that both Defendant and Cole had changed their clothes. When Batiste sat on the sofa, she testified that she almost burned her arm on a pistol, which was hot to the touch.

|sA few days later, Batiste and Stamps picked up Defendant and drove to Baton Rouge to meet up with Cole. Defendant stayed in Baton Rouge with Cole, but Ka-trice and Tanishia went home. Batiste and Stamps eventually drove Cole and Defendant to Little Rock, Arkansas, and stayed there for a few days. She explained that Stamps reserved the hotel rooms because Defendant and Cole did not want to use their identifications. While in Little Rock, Batiste asked Cole about the “hot gun” that she found on the sofa at the Marine Street house. He told her that it was hot because he put a pillow over the victim’s face and “hit it” five times.

Batiste and Stamps were arrested in Batesfield, Mississippi on their way home. Batiste gave the police information regarding Defendant and Cole, which Detective Burke explained included specific details that matched the crime scene and had not been provided to anyone. As a result, Defendant and Cole were later captured in Arkansas with the assistance of the U.S. Marshals Fugitive Recovery Task Force.

Adriana Perez testified as an expert in the field of forensic DNA analysis and prepared a report regarding the items she tested that were recovered during the homicide investigation. She testified that she obtained a mixed DNA sample from the baseball cap recovered near the victim’s van, which could be explained by multiple people wearing the cap. She determined that approximately 99.9% of the entire population could be excluded as a possible donor of the DNA found on the baseball cap, but that Defendant could not be excluded as a donor.

Susan Johnson, custodian of records for T-Mobile, testified regarding subscriber information, call detail records, and cell site information. She also testified regarding a map with cell towers and their locations. Ms. Johnson 110testified that between January 29, 2010 and January 30, 2010, multiple calls were made between Defendant, Cole and Skinner.

Defendant testified at trial and admitted his prior convictions. He testified that his mother owned the house located at 3000 Destrehan Avenue, which was where he was living at the time of the incident, and that his father rented the house located at 1624 Marine Street. Defendant testified that on January 28, 2010, he, Cole, Batiste and Stamps spent the night at his father’s house at Marine Street. Defendant testified that on January 29, 2010, they left the Marine Street house after 8:00 a.m., went to pick up Skinner in Batiste’s car, and then went to his house at 3000 Destrehan Avenue. After about thirty minutes, he testified that Cole, Batiste, Stamps and Skinner left his house on Destrehan Street, while Defendant remained there until 4:45 p.m. He testified that he did not hear from them again until approximately 6:00 p.m., at which time Defendant was at his father’s house on Marine Street. Defendant then took his father’s vehicle and picked up Cole at Cole’s mother’s house. Defendant and Cole spent the night at the Marine Street house with Tanishia and Katrice, who later joined them.

Defendant denied ownership of the baseball cap found near the victim’s van, but admitted that it was shown that his DNA was on the hat. He testified that he could have come into contact with the cap, but he claimed he was not the only person who used his clothing. Defendant denied ever seeing the victim or being inside the victim’s residence. He denied any knowledge that Cole was planning to rob Bates, or that he and Cole were dropped off at an intersection near the victim’s house on the day of the incident.

On cross-examination, Defendant was confronted with evidence that his cell phone records showed that he was in the Haydel area at around noon on January 29, 2010, which was the same time that he claimed to be at his Destrehan home, |,,which is located in the Woodmere area. Defendant testified that he could have dropped his phone in Batiste’s car earlier that day, and that he in fact got his phone back when Batiste and Stamps returned to the Marine Street house later that day.

LAW AND DISCUSSION

In his sole assignment of error, Defendant contends that the evidence presented at trial was insufficient to convict him of second-degree murder. He raises this argument on two grounds: (1) that the State failed to prove beyond a reasonable doubt that he was the person who killed the victim; and (2) that the State failed to prove beyond a reasonable doubt that the victim was killed while Defendant was engaged in a felony or attempting to engage in a felony enumerated in La. R.S. 14:S0.1(A)(2). Additionally, Defendant contends. that Skinner’s trial testimony consisted of double-hearsay testimony, and that it only showed that Cole shot the victim and discussed setting up the robbery of the victim — not that Defendant acted as a principal to the offense of second degree murder. Defendant further contends that the State failed to negate a reasonable probability of misidentification.

The State first responds that the evidence, viewed in the light most favorable to the State, was sufficient to convince a rational trier of fact that Defendant was guilty of second degree murder. Specifically, the State contends that the evidence showed that Defendant, who fled Louisiana, could not be excluded as a donor of DNA found inside of the baseball cap found at the scene of the victim’s partially burned van. The State also contends that Skinner’s testimony did not constitute hearsay, but nevertheless, that claim is not properly before this Court because hearsay evidence not objected to constitutes substantive evidence.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct; 2352, 141 L.Ed.2d 722 (1998). A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found the State proved the essential elements of the crime beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. On appeal, the reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant could afford an exculpatory explanation of the events. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83 (quotation omitted). Rather, the reviewing court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La. R.S. 14:24. Mere presence at the scene of the crime does not make one a principal to the crime. State v. Massey, 11-357 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, 463, writ denied, 12-0991 (La.9/21/12), 98 So.3d 332 (quotation omitted). Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. Id. Whether a defendant actually fires the bullet that kills a victim is of no consequence, and the defendant may be convicted as a principal to the crime. Id. at 463-64. However, a principal may be connected to only those crimes for which he has the requisite mental state. Id. at 464.

Here, Defendant was convicted of second degree murder. Under La. R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including but not limited to aggravated burglary, armed robbery, first degree robbery, second degree robbery and simple robbery, even though he has no intent to kill or to inflict great bodily harm. See State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277. In this case, the jury was instructed as to the felony murder theory of second degree murder under La. R.S. 14:30.1(A)(2); specifically, that Defendant was engaged in the perpetration or attempted perpetration of an armed robbery, first degree robbery, simple robbery, or aggravated burglary at the time of the incident. One need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. State v. Cerda-Anima, 12-682 (La.App. 5 Cir. 5/30/13), 119 So.3d 751, 758, writ denied, 13-1487 (La.1/10/14), 130 So.3d 321. Rather, under the felony murder doctrine, the State need only prove the commission of the underlying felony or the attempt thereof. Id.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant’s identity as the perpetrator. State v. \uPage, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 447, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. Positive identification by one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

At trial, the jury heard witnesses testify for the State and for Defendant, as we have set forth above. We find that the evidence against Defendant is sufficient to support his conviction for felony second degree murder. The State presented evidence that the victim was killed during the perpetration of an armed robbery or an aggravated burglary. Specifically, the evidence established that the victim’s home was left in disarray, with several rooms ransacked and rummaged through, and that a gun, knife, and baseball bat were used in the perpetration of a robbery or burglary. Testimony was presented indicating that two perpetrators entered the victim’s house while they struggled with him and searched his home. There were no signs of forced entry, which corroborated Skinner’s testimony that that Cole intended to enter the victim’s home under a lawn service ruse. Skinner testified that Defendant was in the car during this conversation. Mrs. Bates testified that several items, including money, were missing from her residence after the murder.

Furthermore, we find that the evidence was sufficient to identify Defendant as a principal to the crime. The jury heard evidence regarding phone calls between Defendant, Skinner, and Cole on the day of the murder. Testimony from Skinner and Batiste established that Defendant was with Cole prior to the murder, that he was dropped off with Cole near the victim’s residence on the day of the murder, and that he and Cole had changed their clothing later that day. Skinner testified that Cole told her that the victim was shot because he was struggling with | lsDefendant over a gun. Skinner also provided in a statement that Defendant admitted to striking the victim with a knife. One of the statements also suggested that Defendant had possibly shot the victim. Phone records placed Defendant at a location after the murder that was contrary to his testimony, although he testified that he had dropped his phone in Batiste’s car. Additionally, the DNA testing showed that Defendant could not be excluded as a donor of DNA inside of the baseball cap found several feet away from the victim’s partially burned van.

Although Defendant took the stand at trial and denied that he was dropped off with Cole near the victim’s home on the date of the murder, or that he had any involvement in the crime, the jury chose to give more credibility to the evidence establishing Defendant’s involvement. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. Because it is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law, we find no abuse of discretion in the jury’s credibility findings.

We also find no merit to Defendant’s argument regarding the alleged double hearsay nature of Skinner’s testimony. First, our review of the record establishes that Defendant requested that Skinner’s taped statements be played for the jury, and waived any objections as to foundation or hearsay therein. Moreover, we find that Defendant made no objections to Skinner’s testimony at trial on the basis of hearsay. In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously | lfiwith the occurrence of the alleged error, as well as the grounds for that objection. State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La.4/22/05), 899 So.2d 559. Because Defendant failed to contemporaneously object to Skinner’s testimony at trial as hearsay, this issue has not been preserved for appellate review.

After viewing the evidence in a light most favorable to the prosecution, we find that the State sufficiently negated any reasonable probability of misidentification, and a rational trier of fact could have found, beyond a reasonable doubt, that Defendant was guilty of felony second degree murder. Accordingly, we find Defendant’s assignment of error to be without merit.

Error Patent Discussion

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals an error in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order reflects the incorrect date, February 23, 2010, as the date of the offense. Accordingly, to ensure an accurate record, we remand this case and order the Uniform Commitment Order to be corrected to reflect the correct date of the offense, January 29, 2010. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which Defendant has been sentenced and to the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142, citing La.C.Cr.P. art. 892(B)(2).

^CONCLUSION

Accordingly, for the foregoing reasons, we affirm Defendant’s conviction and sentence for one count of second degree murder, in violation of La. R.S. 14:30.1. The matter is remanded to the trial court for correction of an error patent as noted herein, and the Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which Defendant has been sentenced and to the Department of Corrections’ Legal Department.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.