author: THERIOT, J. KUHN, J.,

text:
    STATE of Louisiana v. Gerald W. DAHLEM.
    No. 2013 KA 0577.
    Court of Appeal of Louisiana, First Circuit.
    June 18, 2014.
    Rehearing Denied July 22, 2014.

      Mary E. Roper, Baton Rouge, Louisiana, for Defendant/Appellant, Gerald W. Dahlem.
    Gerald W. Dahlem, Cottonport, Louisiana, Defendant/Appellant, Pro Se.
    Walter P. Reed, District Attorney, Cov-ington, Louisiana, Kathryn Landry, Baton Rouge, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

li-The defendant, Gerald W. Dahlem, was found guilty by a jury of fourth-offense driving while intoxicated. The trial court adjudged him a third-felony habitual offender and sentenced defendant to twenty-five years at hard labor, without benefit of probation or suspension of sentence. For the following reasons, we affirm the conviction, habitual offender adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

On November 10, 2011, at approximately 4:00 a.m., Louisiana State Police Trooper Steven Dan Manning was patrolling on Marshall Richardson Road in Bogalusa. He observed a pickup truck being driven by the defendant cross the centerline to the left, veer back to the right, and then run off the road. When Trooper Manning initiated a traffic stop, he observed that the defendant swayed as he stood; he had an odor of alcohol on his breath; his speech was slurred; and his eyes were glassy and bloodshot. He conceded he had drunk “several” beers and had been “drinking driving.” Thereafter, he submitted to a chemical test of his breath, and a sample he provided at 4:05 a.m. indicated his blood-alcohol level was 0.180. He also performed poorly on the field sobriety tests. Furthermore, the defendant did not have a valid driver’s license.

The defendant was charged by bill of information with one count of fourth-offense driving while intoxicated (DWI) (count I), a violation of La. R.S. 14:98; one count of improper lane usage (count II), a violation of La. R.S. 32:79; one count of license plate light required (count III), a violation |sof La. R.S. 82:304(C); and one count of driving under suspension (count IV), a violation of La. R.S. 32:415(A); and pled not guilty on all counts. The State severed counts II-IV prior to the presentation of evidence. Following a jury trial on count I, the defendant was found guilty as charged and was sentenced to twenty-five years at hard labor, with three years without benefit of parole, probation, or suspension of sentence, pursuant to La. R.S. 14:98(E)(4)(a). The defendant moved for reconsideration of sentence, and the motion was denied.

Thereafter, the State filed a habitual offender bill of information against the defendant, alleging he was a third-felony habitual offender. The defendant agreed with the allegations of the habitual offender bill, and the trial court adjudged him a third-felony habitual offender, vacated the previously imposed sentence, and sentenced him to twenty-five years at hard labor, without benefit of probation or suspension of sentence. The defendant timely filed an appeal.

ASSIGNMENTS OF ERROR

The defendant has filed a counseled brief and a pro se brief asserting:

1) The trial court imposed an unconstitutionally excessive sentence.
2) He was denied a fair trial and due process of law by being tried by a six-person petit jury.
3) He was denied a fair trial and due process of law because the predicate DWI evidence was insufficient due to an invalid first-offense DWI predicate.
1⅜4) He was denied a fair trial and due process of law due to prosecutorial misconduct.
5) He was denied a fair trial and due process of law because an invalid predicate, based on a juvenile adjudication for theft, was used to obtain the habitual offender adjudication.

EXCESSIVE SENTENCE

In his sole counseled assignment of error, the defendant argues the trial court imposed a constitutionally excessive sentence in this matter because his “criminal history has demonstrated that he has a severe problem with alcohol.”

The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La.Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Harper, 2007-0299 (La.App. 1st Cir.9/5/07), 970 So.2d 592, 602, writ denied, 2007-1921 (La.2/15/08), 976 So.2d 173.

Louisiana Constitution Article I, Section 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is | .^considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 797 So.2d at 83.

Pursuant to La. R.S. 14:98, the defendant’s sentencing exposure was imprisonment at hard labor for not less than ten nor more than thirty years, with at least three years of the sentence without benefit of suspension of sentence, probation, or parole. See La. R.S. 14:98(E)(4)(a). As a third-felony habitual offender, his sentencing exposure increased to imprisonment at hard labor for not less than twenty nor more than sixty years, with at least three years of the sentence without benefit of suspension of sentence, probation, or parole. See La. R.S. 15:529.1(A)(3)(a); State v. Bruins, 407 So.2d 685, 687 (La.1981) (“It is not a crime to be an habitual offender. The statute increases the sentence for a recidivist. The penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.”). The defendant was sentenced as a third-felony habitual offender to twenty-five years at hard labor, without benefit of probation or suspension of sentence.

At the habitual offender hearing, the trial court stated, under La.Code Crim. P. art. 894.1, it had considered the aggravating and mitigating factors and found that during the period of a suspended sentence, there was an undue risk the defendant would commit another crime. The court also found |f;the defendant was in need of correctional treatment or a custodial environment and any lesser sentence would deprecate the seriousness of his crime.

A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La.Code Crim. P. art. 894.1(A)(1), (A)(2) & (A)(3). Additionally, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

This assignment of error is without merit.

INCORRECT NUMBER OF JURORS

In pro se assignment of error number 1, the defendant argues he was improperly tried before a six-member petit jury for a felony requiring hard labor.

A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor shall be tried before a jury of six persons, all of whom must concur to render a verdict. La. Const, art. I, § 17(A); La.Code Crim. P. art. 782(A). The instant case was tried before a six-person jury.

In connection with predicate # 3, the State introduced into evidence a bill of information, commitment, minutes of guilty plea and sentencing, and transcript of guilty plea and sentencing. The documents indicated the defendant pled guilty to third-offense DWI and was sentenced to three years at hard labor, with all but eighty days of the sentence suspended, and three years of supervised probation. Special conditions of probation included that the defendant submit to an evaluation by the Department of Health and Hospitals, |7Office of Addictive Disorders, to determine the nature and extent of his substance abuse, and that he participate in any treatment plan recommended by that office, including inpatient treatment for at least four weeks. Additionally, the court ordered the defendant would be subject to home incarceration during the entire period of probation.

Louisiana Revised Statutes 14:98(E)(4)(a) provides:

If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole. (Emphasis added).

Until recently, longstanding jurisprudence of the Louisiana Supreme Court considered errors involving trials conducted in the wrong jury forum, whether the selected panel included a greater or lesser number of jurors than required by law, nonwaivable jurisdictional defects which rendered any verdict returned absolutely null. State v. Brown, 2011-1044 (La.3/13/12), 85 So.3d 52, 53 (per curiam).

In Brown, 85 So.3d at 54, however, the court noted that in State v. Jones, 2005-0226 (La.2/22/06), 922 So.2d 508, 511, it had found the error of trying a six-person jury offense before a twelve-person jury to be a trial error subject to harmless error analysis, rather than a structural or jurisdictional defect in the proceedings. The court in Brown held a necessary corollary of |s/ones was that a wrong jury forum error was subject to Louisiana’s procedural default rules which generally require a defendant to timely preserve trial errors in the trial court for subsequent appellate review. See La.Code Crim. P. art. 841(A). The Brown court further held grounds for arresting judgment as a matter of La.Code Crim. P. art. 859, including jury composition errors under La.Code Crim. P. art. 782, might provide narrow exceptions to the contemporaneous objection rule, but, under La.Code Crim. P. art. 861, a motion in arrest of judgment was required to be “filed and disposed of before sentence.” Brown, 85 So.3d at 54-55. In Brown, the court found the defendant “acquiesced in the error of trying a six-person jury offense in a twelve-person jury forum by actively participating in the selection of a twelve-person jury without objection at any stage of the proceedings and thereby waived any relief on appeal on grounds that the panel selected was composed of a greater number of jurors than required by law”. Brown, 85 So.3d at 53.

In the instant case, the defendant acquiesced in the error of trying a twelve-person jury offense in a six-person jury forum. He raised no objection at voir dire when the trial court announced, “[t]he purpose of this process is for us to select six people who can fairly and impartially hear the evidence in this case and decide the case.” Thereafter, he participated in the selection of the six-person jury. Additionally, he failed to file a motion in arrest of judgment. Accordingly, the wrong jury forum error was waived.

PREDICATE DWI EVIDENCE

In pro se assignment of error number 2, the defendant argues the State presented insufficient evidence concerning identification in regard to predicate DWI offense # 1.

|9In Louisiana, proof that a person of the same name has been previously convicted does not constitute prima facie evidence that the two persons are the same. The state must additionally offer proof that the accused is the same person as the defendant previously convicted. Various methods may be used to prove that the defendant on trial is the same person whose name is shown as the defendant in the evidence of a prior conviction, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver’s license number, sex, race and date of birth. The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. See State v. Westbrook, 392 So.2d 1043, 1045 (La.1980) (on rehearing); State v. Pitre, 532 So.2d 424, 426 (La.App. 1st Cir.1988), writ denied, 538 So.2d 590 (La.1989).

The bill of information charging the instant offense identified the defendant as “Gerald W. Dahlem,” “DOB: 05/04/1971[,]” and listed his address as 11231 Hwy 21S, Bogalusa, Louisiana, 70427. The defendant did not challenge the accuracy of the identifying information on the bill.

At trial, the State presented testimony from Louisiana Department of Probation and Parole Officer Aaron Moran. Officer Moran identified the defendant in court and testified he supervised the defendant during his probation in connection with DWI Predicate #3. Officer Moran indicated the first predicate offense for DWI predicate # 3 was DWT predicate #1.

Thereafter, in connection with DWI predicate # 1, the State introduced into evidence State Exhibit # 9, certified true copies of: the bill of information charging “DAHLEM, GERALD W.,” white male, date of birth May 4, 1971, driver’s license #5515517, address 11231 Highway 21, | inBogalusa, Louisiana, with DWI committed on December 24, 2000; extracts of minutes indicating “DAHLEM, GERALD W.,” date of birth May 4, 1971, driver’s license #5515517, on May 15, 2002 pled guilty as charged “under Art. 894,” and a waiver of constitutional rights form for DWI, executed by Gerald Dahlem, date of birth May 4, 1971, on May 15, 2002, with benefit of counsel. The defense objected that the defendant had not been identified as the person that was the subject of the paperwork. The trial court overruled the objection, and the defense objected to the court’s ruling.

There was no abuse of discretion. The State sufficiently established the defendant was the same person convicted in predicate # 1.

This assignment of error is without merit.

PROSECUTORIAL MISCONDUCT

In pro se assignment of error number 3, the defendant argues the State was guilty of prosecutorial misconduct because it presented false testimony from Officer Moran that he “personally supervised” the defendant, and that the first-offense DWI listed on the bill of information concerning DWI predicate # 3 had the same docket number as DWT predicate #1.

Initially, we note the defendant failed to contemporaneously object to the accuracy of the challenged testimony from Officer Moran, and thus, the instant claim was not preserved for review. See La.Code Evid. art. 103(A)(1) (“Error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection ... appears of record, stating the specific ground of objection”); La.Code Crim. P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”); State v. Trahan, 93-1116 (La.App. 1st Cir.5/20/94), 637 So.2d 694, 704 (“The grounds for objection must be sufficiently brought to the court’s attention to |nallow it the opportunity to make the proper ruling and prevent or cure any error.”).

Moreover, although the bill of information concerning DWI predicate #3 identified the first-offense DWI listed thereon as the defendant’s May 15, 2002 conviction, under Jefferson Parish Docket number “F1360-18,” rather than the defendant’s May 15, 2002 conviction, under Jefferson Parish Docket number “F13560-18,” considering the other identifying information presented by the State, no substantial rights of the accused were affected by the typographical error. See La.Code Crim. P. art. 921.

This assignment of error is without merit.

HABITUAL OFFENDER PREDICATE #1

In pro se assignment of error number 4, the defendant argues habitual offender predicate # 1 was unavailable for use as a predicate to enhance his sentencing exposure because it was a third-offense conviction for theft, and his first-offense conviction for theft occurred when he was a juvenile.

In order to challenge the validity of a predicate offense listed in a habitual offender bill of information, the defendant must file a written response to the habitual offender bill, setting forth his claim, and the factual basis therefor, with particularity. The defendant has the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence. See La. R.S. 15:529.1(D)(l)(b).

In the instant case, the defendant failed to file a written response to the habitual offender bill. At the habitual offender hearing, defense counsel “preserve[d]” his previously filed motions for appeal and to reconsider sentence. Thereafter, he specifically admitted that “those two prior 112convictions are, in fact, [the defendant’s],” but preserved his right to challenge whether or not a fourth-offense DWI was subject to enhancement under the habitual offender law.

The instant claim was not preserved for review. See La. R.S. 15:529.1(D)(l)(b); La.Code Crim. P. art. 841(A); Trahan, 637 So.2d at 704.

This assignment of error is without mer-

REVIEW FOR ERROR

Initially, we note that our review for error is pursuant to La.Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim. P. art. 920(2).

The defendant was sentenced as a third-felony habitual offender to twenty-five years at hard labor, without benefit of probation or suspension of sentence. However, at least three years of the sentence should have been imposed without benefit of parole. See La. R.S. 14:98(E)(4)(a), La. R.S. 15:529.1(A)(3)(a), & Bruins, 407 So.2d at 687. Although the failure to deny parole is error under La. Code Crim. P. art. 920(2), it is certainly harmless error. The defendant is not prejudiced in any way by the court’s failure to deny him parole. Because the trial court’s failure to deny parole was not raised by the State in either the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0180 (La.2/22/08), 976 So.2d 1277.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

HIGGINBOTHAM, J., concurs.

KUHN, J., concurs and assigns reasons.

KUHN, J.,

concurs and assigns reasons.

|,I concur in the result reached by the majority affirming the defendant’s conviction, habitual offender adjudication, and sentence. I emphatically disagree, however, with the language in the majority opinion indicating a jury composition error occurred in this case. The defendant was correctly tried by a six-person jury.

First, the hard-time requirement of La. R.S. 14:98(E)(4)(a) does not create a new crime entitling a defendant to a trial by a twelve-person jury, but merely provides for enhancement of the sentence for a fourth-offense DWI sentence if the offender previously has been required to participate in substance abuse treatment and home incarceration as the result of a third-offense DWI conviction. See La. R.S. 14:98(E)(4)(a). In considering' another sentence enhancement provision, La. R.S. 14:98(E)(4)(b), this Court, in State v. Hardeman, 04-0760 (La.App. 1st Cir.2/18/05), 906 So.2d 616, 626, concluded that the provision did not create a new crime, but merely sets forth an additional penalty for fourth-offense DWI under delineated circumstances. The rationale employed in Hardeman to the effect that La. R.S. 14:98(E)(4)(b) punishes recidivism rather than creating a new crime is equally applicable to the sentencing provision at issue in this case. The hard-time requirement of La. R.S. 14:98(E)(4)(a) is simply an enhancement provision that does not implicate a defendant’s right to trial by a twelve-person jury.

| ^Second, trial of the defendant by a six-person jury was dictated by law in this case. The district attorney, in the exercise of his discretion, elected to charge the defendant pursuant to La. R.S. 14:98 with a fourth-offense DWI. Under La. R.S. 14:98(E)(l)(a), the punishment for fourth-offense DWI is imprisonment with or without hard labor for not less than ten years and not more than thirty years and a $5,000.00 fine. In accordance with La. Const, art. I, sec. 17(A), such a case “shall be tried before a jury or six persons, all of whom must concur to render a verdict.” See also La.C.Cr.P. art. 782(A).

In reliance on these constitutional and statutory provisions, the State, the defense, and the trial court worked together to select a six-person jury to try this case. Although, the State later presented evidence at trial in connection with predicate # 3 which, if accepted, allowed for a sentence at hard labor under La. R.S. 14:98(E)(4)(a), sentencing of the defendant under this sentencing enhancement provision was only a possibility, but never a certainty. Thus, as a practical matter, this case was required to be tried in a six-person jury forum since there was only a possibility that the defendant could receive a sentence at hard labor. In Louisiana, a twelve-person jury is required only when the potential sentence is necessarily confinement at hard labor. La. Const, art. I, sec. 17(A); La.C.Cr.P. art. 782(A). Thus, the defendant’s trial was conducted in accordance with the jury composition rules applicable to La. R.S. 14:98(E)(l)(a), wherein the actual conduct prescribed is a fourth-offense DWI, and the sentence to be imposed may be with or without hard labor.

Finally, even assuming arguendo that a jury composition error occurred in trying the defendant by a six-person jury, such error would be subject to a harmless error analysis. In State v. Brown, 11-1044 (La.3/13/12), 85 So.3d 52, 53 {per curiam), the Supreme Court made it clear that there is no longer a “supposition that terrors in jury composition are invariably jurisdictional or structural in nature.” The Supreme Court further indicated that an error in jury composition “no longer constitute[d] a non-waivable structural defect in the proceeding” and “warrant[ed] reversal only where the defendant is actually prejudiced.” Brown, 85 So.3d at 53.

In the instant case, the defendant waived any error in the jury’s composition by actively participating in the selection of the six-person jury without objection. Even if the defendant had not done so, such error clearly would have been harmless in light of the overwhelming evidence of his guilt presented at trial. After the arresting officer observed the defendant’s vehicle moving erratically on the roadway and stopped him, the officer noticed telltale signs of drunkenness, such as swaying, an alcoholic odor, slurred speech, and glassy and bloodshot eyes. The defendant conceded that he had consumed alcohol and had driven his vehicle. He also performed poorly on field sobriety tests, and a chemical breath test indicated that his BAC was 0.180 grams percent. Given the evidence of the defendant’s guilt, as well as his acquiescence in the selection of a six-person jury, any error in the size of the jury — of which there was none — did not prejudice the defendant and was harmless beyond a reasonable doubt. See La. C.Cr.P. art. 921.

For these reasons, I concur.

      . Predicate # 1 was set forth as the defendant's May 15, 2002 conviction, under Parish of Jefferson Docket #F13560-18, for first-offense DWI. Predicate # 2 was set forth as the defendant's February 19, 2004 conviction, under Parish of Washington Docket # 03-CR-89114, for first-offense DWI. Predicate #3 was set forth as the defendant’s July 9, 2010 conviction, under Parish of Washington Docket # 10-CR1-108537, for third-offense DWI.

        . Predicate # 1 was set forth as the defendant's May 22, 2007 conviction, under Twenty-second Judicial Court Docket # 424062, for theft between $300 and $500. Predicate # 2 was set forth as the defendant's June 26, 1997 conviction, under Fifteenth Judicial Court Docket # 75466, for distribution of marijuana.

      . La. R.S. 14:98(D) sets forth the penalty for third-offense DWI.

      . A structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Structural errors infect the entire trial process and necessarily render a trial fundamentally unfair; they deprive a defendant of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence. The United States Supreme Court has found structural errors in "only a very limited class of cases.” Structural defects have been restrictively defined to include the total deprivation of the right to counsel, a biased trial judge, unlawful exclusion of grand jurors of defendant's race, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. State v. Ruiz, 2006-1755 (La.4/11/07), 955 So.2d 81, 85-86. (Citations omitted).

      . In State v. Langley, 2006-1041 (La.5/22/07), 958 So.2d 1160, 1169 n. 7, cert. denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007), the Louisiana Supreme Court rejected the position that structural errors or defects necessarily constitute the functional equivalent of jurisdictional defects which render the proceedings not merely voidable but absolutely null. (Emphasis in original).

      . La. R.S. 15:301.1 (A) cannot remedy the sentencing error because "at least" three years of the sentence imposed was required to be without benefit of suspension of sentence, probation, or parole.

      . Louisiana Revised Statutes 14:98(E)(4)(b) provides that:
      If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, after serving the mandatory sentence required by Subparagraph (E)(1)(a), no part of the remainder of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

      . The defendant could have filed a motion for a bill of particulars to further clarify the nature of the charge against him, but did not do so. See La.C.Cr.P. arts. 484 & 521.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. William J. GRAHAM.
    No. 2013 KA 1806.
    Court of Appeal of Louisiana, First Circuit.
    July 3, 2014.
    Rehearing Denied July 24, 2014.

      Walter P. Reed, District Attorney, Cov-ington, LA, for PlaintifRAppellee State of Louisiana.
    Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, LA, Teresa Cul-pepper Carroll, Jonesboro, LA, for Defendant/Appellant William J. Graham.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   GUIDRY, J.

li>The defendant, William J. Graham, was charged by amended grand jury indictment with one count of aggravated incest of a victim under thirteen years of age, a violation of La. R.S. 14:78.1, and pled not guilty. Following a jury trial, he was found guilty by unanimous verdict of the responsive offense of molestation of a juvenile, a violation of La. R.S. 14:81.2. He was sentenced to fifty years at hard labor, with twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. He now appeals, challenging: the sufficiency of the evidence; the admission of the recorded statement of the victim into evidence; the responsiveness of the verdict to the charge; and the sentence as excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

In October of 2007, the victim, R.B., her twin sister, J.B., and their mother, K.G., moved into the home of W.G., the father of the defendant, in Mandeville. The defendant also lived in the home. On October 12, 2008, K.G. and W.G. married each other.

On January 17, 2009, R.B. was four years old, and the defendant was nineteen years old. On that date, while bathing the victim, KG. reminded her, “[r]emember we don’t ever let anybody touch us down there. It’s our private places.” The victim replied, “[w]ell, Justin does.” She further stated, “[w]ell, [the defendant] tells me to take my pants and my underwear down and he checks me for tee-teeing. He sticks his hands way back here and it hurts.” The next day, W.G. asked the defendant’s mother and her husband to come to his home, where they, |Ralong with K.G. and W.G., confronted the defendant concerning the victim’s allegations. The defendant initially claimed he had done “nothing.” He then stated, “had he done it, he would have pushed it so far back in his memory that he wouldn’t have tried to remember.” Thereafter, he stated, “[w]ell, maybe I did do it, but I just touched her on the outside, that’s all that I did.”

On February 2, 2009, the victim made a recorded statement concerning the offense. Referencing the defendant, the victim asked the interviewer, “[d]o you know where he sticks his finger at?” The victim then gestured to the area between her legs, stating, “[i]n me. It didn’t go inside my blood.” Thereafter, the victim identified the vagina on a sketch of a girl as the “pee pee” and stated the defendant had put his finger on her “pee pee.” She indicated the defendant had put his finger on her skin and it was “not okay.” She stated the incident happened on just one occasion in the defendant’s bedroom. Preceding the incident, she indicated the defendant pulled her clothes down. When asked if the defendant touched the inside or the outside of her skin, she stated, “outside.” However, when asked to demonstrate what had occurred with anatomically correct dolls, the victim indicated the defendant had put his finger inside her vagina. She stated “[i]t hurt a little.” When asked if the defendant had done this to anyone else, the victim indicated the defendant had “stuck his finger” on her stepbrother and the defendant’s half-brother’s “pee pee,” “right inside his blood,” to which her stepbrother said, “Stop.”

On March 12, 2018, the victim was called to the stand at trial. At that time, she was nine years old. She had no idea why she was in court and did not recognize the defendant in court. She also did not remember what had occurred when she was four years old and did not remember giving a recorded statement.

^SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant argues the evidence was insufficient on the elements of whether a lewd or lascivious act occurred, whether he had a specific intent to arouse or gratify the sexual desires of himself or the victim, and whether he had control or supervision over the victim.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 and 00-0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the [¡¡sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age is not a defense. La. R.S. 14:81.2(A) (prior to renumbering by 2011 La. Acts, No. 67, § 1).

Thus, in order to commit molestation of a juvenile, the offender must possess the specific intent of arousing or gratifying the sexual desires of himself or the child upon whose person he committed a lewd or lascivious act or in whose presence he committed such an act. However, specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93-1361, p. 4 (La.App. 1st Cir.5/20/94), 637 So.2d 814, 817-18, writ denied, 94-1563 (La.10/28/94), 644 So.2d 649, abrogated on other grounds, State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99-1945, p. 3 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235.

A lewd and lascivious act is an act that is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner. See State v. Jones, 10-0762, p. 4 n. 1 (La.9/7/11), 74 So.3d 197, 200 n. 1.

The defendant argues the evidence proved no more than he “possibly touched [the victim’s] private area on one occasion when checking to see if she Rhad urinated.” However, the verdict rendered against the defendant indicates the jury rejected the defense theory that the defendant touched the victim’s vagina only to see if she had urinated on herself and credited the evidence indicating that the touching of the victim’s vagina (in a manner that caused her pain) was a lewd and lascivious act committed with the specific intent to arouse or gratify the sexual desires of the defendant or the victim.

When a case involves circumstantial evidence, and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant case. Further, as the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. John son, 99-0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 00-0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. Additionally, in reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07-2306, pp. 1-2 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

We also reject the defendant’s argument that the evidence was insufficient to 17prove he was in a position of control or supervision over the alleged victim. The evidence at trial indicated the incident occurred when the defendant was alone with the victim, his stepsister, in his bedroom. The defendant’s theory that he touched the victim’s vagina to see if she had urinated on herself indicates he was supervising his younger sibling at the time of the offense. See State v. A.B.M., Jr., 10-648, pp. 7-8 (La.App. 3d Cir.12/8/10), 52 So.3d 1021, 1026 (defendant had control or supervision over the victim, his biological daughter who did not live with him, when he had been asked to care for her and no other adult was present, so he was required to supervise the victim).

The defendant’s reliance on State v. Forbes, 97-1839 (La.App. 1st Cir.6/29/98), 716 So.2d 424, is misplaced. In that case, the defendant gained access to the victim in her grandmother’s home because he was a friend of a man who resided in the home. Forbes, 97-1839 at p. 2, 716 So.2d at 426. Additionally, in Forbes, the victim, who was seven years old at the time of the incident, testified that, at her grandmother’s home, her grandmother was the boss, and the defendant did not babysit her and could not tell her what to do. Forbes, 97-1839 at pp. 2, 7, 716 So.2d at 426, 428.

This assignment of error is without merit.

RECORDED STATEMENT OF VICTIM

The defendant combines assignments of error numbers 2 and 3 to argue the recorded statement of the victim should not have been admitted into evidence because the victim had no memory of the incident.

Louisiana Revised Statute 15:440.5, in pertinent part, provides:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
|s(8) The protected person is available to testify,

During a recess following the victim’s testimony, the defense moved to exclude the victim’s recorded statement, arguing she was unavailable to testify due to her lack of memory of the incident. The State disagreed, arguing the victim was available because she was present in court, and the jury would decide whether she was competent when she made her recorded statement. The trial court overruled the defense objection, noting that under State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, rev’d on other grounds, 554 U.S. 407, 128 S.Ct. 2641,171 L.Ed.2d 525 (2008), and California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), there was no confrontation clause violation in admitting a prior recorded statement of a witness, where the witness was produced at trial, even when the witness had a complete lack of memory of the prior events.

There was no error. Green involved review of the ruling of the California Supreme Court that substantive use of prior inconsistent statements of a witness violated the confrontation clause, even though the statements were subject to cross-examination at a prior hearing. Green, 399 U.S. at 151-53, 90 S.Ct. at 1931-32. The court in Green declined to address the issue of whether a lapse in a witness’s memory could so affect a defendant’s right to cross-examination as to violate the confrontation clause, but did note:

But as a constitutional matter, it is untenable to construe the Confrontation Clause to permit the use of prior testimony to prove the State’s case where the declarant never appears, but to bar that testimony where the declarant is present at the trial, exposed to the defendant and the trier of fact, and subject to cross-examination. As in the case where the witness is physically unprodu-cible, the State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused | ato answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green.

Green, 399 U.S. at 166-68, 90 S.Ct. at 1939-40 (emphasis added).

In Kennedy, 05-1981 at pp. 24-28, 957 So.2d at 775-78, the defendant argued the admission into evidence of a videotaped statement of the victim violated the Confrontation Clause because she was unavailable for cross-examination due to lack of memory. The court in Kennedy, initially noted that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Green, when the declarant appears at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Kennedy, 05-1981 at p. 26, 957 So.2d at 777. The Kennedy court rejected the argument that the victim’s poor memory rendered her unavailable for cross-examination despite her physical presence on the stand, noting the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. Kennedy, 05-1981 at pp. 27-28, 957 So.2d at 777; see also United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988) (“[an opportunity for effective cross-examination] is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, ... ) the very fact that he has a bad memory.”), and Green, 399 U.S. at 157-58, 90 S.Ct. at 1935 (wherein the Court reiterated that the primary object of the Confrontation Clause is to allow “personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the | mwitness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of be-/ie/'.”)(emphasis added).

Moreover, the forensic interviewer, Jo-Beth Rickets, and the victim’s mother, K.G., also testified concerning the victim’s allegations against the defendant, and the defense fully cross-examined both of these witnesses concerning the allegations.

These assignments of error are without merit.

NONRESPONSIYE VERDICT

The defendant combines assignments of error numbers 2 and 4 to argue that molestation of a juvenile was not a lesser and included offense of aggravated incest in this case, because in order to be guilty of molestation of a juvenile, the offender has to commit the offense by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by use of influence by virtue of a position of control or supervision over the juvenile, whereas aggravated incest has no requirement of a position of control or supervision.

Louisiana Code of Criminal Procedure article 815, in pertinent part, provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.
At the time of the offense, La. R.S. 14:78.1, in pertinent part, provided:
|nA. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desirés • of either the child, the offender, or both.
C. Consent is not a defense under this Section. [Emphasis added.]

A lesser included offense is one composed of some, but not all, of the elements of the greater crime and which does not have any element not included in the greater offense. State in Interest of Pigott, 413 So.2d 659, 664 (La.App. 1st Cir.1982). Molestation of a juvenile is listed as one of the prohibited acts in the definition of aggravated incest. Consequently, by virtue of the offense being included as a prohibited act, aggravated incest thereby includes all of the elements of the offense of molestation of a juvenile; thus, molestation of a juvenile does not have any element not included in aggravated incest. See State v. Ardoin, 08-1504, p. 5 (La.App. 1st Cir.2/13/09), 6 So.3d 237, 241, rev’d on other grounds, 09-0578 (La.5/11/10), 35 So.3d 1065.

These assignments of error are without merit.

EXCESSIVE SENTENCE

In assignment of error number 5, the defendant argues that the sentence the trial court imposed is unconstitutionally excessive because the record does not establish his sentence was individualized.

ligThe Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La. C. Cr. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown in the record. State v. Harper, 07-0299, p. 15 (La.App. 1st Cir.9/5/07), 970 So.2d 592, 602, writ denied, 07-1921 (La.2/15/08), 976 So.2d 173.

Louisiana Constitution Article I, Section 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at pp. 10-11, 797 So.2d at 83.

Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of 113the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence. La. R.S. 14:81.2(E)(1) (prior to renumbering by 2011 La. Acts, No. 67, § 1). The defendant was sentenced to fifty years at hard labor, with twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence.

At sentencing, the trial court noted, under La. C. Cr. P. art. 894.1, it had to consider the risk of recidivism, the nature of the charge, the fact that the defendant may be in need of correctional treatment, or need to be placed in an environment that can provide the most effective method for treatment and protection of the public, and that a lesser sentence would deprecate the seriousness of the offense. The court set forth it considered the age of the victim and the age of the defendant in determining an appropriate sentence. The court found neither the maximum sentence of ninety-nine years nor the minimum sentence of twenty-five years, effectively served justice in the case.

A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La. C. Cr. P. art. 894.1(A)(1), (A)(2), (A)(3), (B)(2), (B)(21), and (B)(33). Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The victim and her family are referenced herein only by their initials. See La. R.S. 46:1844(W).


author: ELLEN SHIRER KOVACH, Judge Pro Tempore.

text:
    Mark B. BECKER, Sr. and Kim Becker v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 2 d/b/a East Jefferson General Hospital.
    No. 14-CA-88.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2014.
    Harry T. Widmann, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Jacqueline G. Griffith, Charles 0. Taylor, Chehardy Sherman, L.L.P, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG, and ELLEN SHIRER KOVACH, Pro Tempore.
   ELLEN SHIRER KOVACH, Judge Pro Tempore.

^Plaintiffs, Mark B. Becker, Sr. and Kim Becker, appeal the granting of summary judgment in favor of defendant, Jefferson Parish Hospital District No. 2, d/b/a East Jefferson General Hospital. For the reasons that follow, we affirm.

FACTS

On June 1, 2006, Mark B. Becker, Sr. slipped and fell on the floor at East Jefferson General Hospital where he was a patient following a motor vehicle accident. Mr. Becker and his wife, Kim Becker, thereafter filed a Petition for Damages on May 81, 2007, alleging that the hospital was liable for damages caused by its employees’ negligence in connection with the June 2006 accident. On February 11, 2008, the hospital filed an Answer generally denying the allegations and averring that the fall was caused by plaintiffs negligence. The hospital further averred that it did not have notice of any dangerous condition on the premises at the time of plaintiffs accident.

Following discovery, defendant filed a Motion for Summary Judgment on June 6, 2013, contending that plaintiff failed to show that the hospital had actual or | ..¡constructive notice of any unsafe condition on the floor and that the hospital acted unreasonably to find, discover, and correct the condition. The hospital did not dispute that plaintiff slipped and fell on a foreign substance while walking to the x-ray department. Defendant attached numerous exhibits to its motion, including plaintiffs medical records and plaintiffs answers to interrogatories.

On June 26, 2018, plaintiffs filed a Memorandum in Opposition to the Motion for Summary Judgment asserting that it is axiomatic that a party have both actual and constructive knowledge of a hazard caused by its own employees. Plaintiffs argued that based upon the uncontrovert-ed evidence, defendant, through one of its employees, “to a high degree of certainty” created the hazard which caused Mr. Becker’s fall. Plaintiffs contended that the fall occurred within the treatment area of the emergency department on the way to radiology, that hospital employees commonly used ultrasound gel or KY jelly in both of those locations, and that it would be extremely unlikely that a patient or family member would bring such substances into those areas. Plaintiffs asserted that those substances would not end up on the floor in the absence of negligence by hospital personnel, that clear slippery gel creates an obvious hazard especially since a pedestrian would not likely notice it, and that this case essentially amounted to res ipsa loquitur.

Plaintiffs attached several exhibits to its Memorandum in Opposition, including the depositions of plaintiff, Mr. Becker, and Addison Petitpan. In his deposition, plaintiff explained that he was in a motor vehicle accident, after which he went to East Jefferson General Hospital for treatment. While there, the doctor ordered x-rays. A woman came to get plaintiff, and he followed her out of the room. Plaintiff recalled that after they walked approximately twenty feet, he took a step with his right foot, which went forward, and then he fell to the ground. He |4said that he asked the woman what had happened, and she said, “Oh, there is ultrasound gel on the ground. That happens sometimes.” Plaintiff stated that the woman then said that she needed to get a towel to put over the gel and would call housekeeping to clean it up. He testified that the gel was a little bit to the left of the center of the hallway, and that he did not see the substance until after he slipped. Plaintiff explained that he did not know what he had slipped on until the woman told him. He further explained that the glob of gel was clear and approximately three inches in diameter. Plaintiff asserted that after he fell, the gel smeared and got on his right heel. The woman subsequently came with a towel, wiped the bottom of his foot, and put the towel over the gel. Afterward, the woman assisted him up, and they walked into the x-ray department.

Mr. Petitpan testified in his deposition that he was responsible for overseeing the general operations of the hospital, but that on June 1, 2006, he was the supervisory nurse in the emergency department. Mr. Petitpan stated that he filled out a risk management report for the hospital in connection with the accident. He recalled that the event occurred at 7:00 p.m. when he was coming on duty. Mr. Petitpan also recalled that the x-ray technician on duty reported the incident to him; however, he was unsure of the identity of that individual and her name was not listed in the report. It was reported to him that a patient slipped and fell in the hallway leading from the emergency department to the x-ray department.

Mr. Petitpan testified that at the time of the accident, the area in question was not restricted and that visitors would have had access to that area. He stated that he went to the area where the fall occurred, assessed for anything slippery on the floor, and recorded, “surface wet, oil/food/ grease,” a choice provided by the drop down menu on the report. Mr. Petitpan recorded it in that fashion because the person who spoke to him was not certain what was on the floor. Additionally, Mr. | ¡¡Petitpan did not recall what he saw when he went to the scene of the fall. He testified that there was no cafeteria near that hallway and no source of oil or grease near that hallway. Mr. Petitpan further testified that ultrasound gel and KY jelly were used in the radiology and emergency departments. He did not recall whether the x-ray technician said it was her impression that the substance on the floor was ultrasound gel.

Additionally, Mr. Petitpan did not recall whether he spoke to the patient about this incident, but it would have been his practice to do so. However, he would have recorded the patient’s statement in his report, but the report did not contain such a statement. Mr. Petitpan explained that in 2006, if there was a slippery substance on the floor, the practice would have been to clean up the substance, and if housekeeping was needed, to call them so they could finish cleaning it up and put out a floor sign. He stated on the form that the patient denied any injury. Lastly, Mr. Petitpan asserted that no photographs were taken of the scene to his knowledge.

A hearing was held on July 3, 2013, after which the trial judge granted the Motion for Summary Judgment and dismissed plaintiffs’ lawsuit with prejudice. The trial judge found that plaintiffs had not established that the hospital had either actual or constructive notice of the substance that plaintiffs complained of as causing the fall. He also found that the instant case was very similar to Blount v. East Jefferson General Hospital, 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535. It is noted that on July 12, 2013, the trial judge ordered that the record of the hearing on defendant’s motion be supplemented with the exhibits submitted by both plaintiffs and defendants with their memoranda on said motion. Plaintiffs thereafter filed a timely motion for appeal.

| rJLAW AND DISCUSSION

On appeal, plaintiffs argue that the trial judge erred in granting summary judgment in favor of defendant.

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for trial on that issue. Id. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24, p. 6 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110, writ denied, 10-1486 (La.10/1/10), 45 So.3d 1102.

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the |7nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469, p. 5 (La.App. 5 Cir. 12/8/09), 30 So.3d 45, 48.

Plaintiffs’ tort claim against the hospital, a public entity, may be pursued under La. C.C. art. 2317 and La. R.S. 9:2800 strict liability, as well as in negligence pursuant to La. C.C. art. 2315. When addressing an action under either theory, the legal analysis is the same. The plaintiff bears the burden of showing that: (1) the public entity had custody of the thing that caused the plaintiff’s injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiff’s injuries. To recover, a plaintiff bears the burden of proving all of these inquiries in the affirmative and failure on any one is fatal to the case. Graff v. Jefferson Parish Hosp. Serv. Dist. No. 2, 09-598, p. 10 (La.App. 5 Cir. 3/23/10), 39 So.3d 685, 690-91, writ denied, 10-907 (La.6/18/10), 38 So.3d 331 (citing Fontenot v. Patterson Ins., 09-669 (La.10/20/09), 23 So.3d 259).

In Blount, supra, a case similar to the instant one, the plaintiff filed a Petition for Damages alleging that she slipped and fell in a slippery substance on the floor of the East Jefferson General Hospital cafeteria. The hospital filed a Motion for Summary Judgment that was granted.. On appeal, this Court found that the plaintiff did not produce any competent evidence showing that the hospital staff knew or should have known of the presence of the liquid yet failed to remove |sit from the floor with the exercise of reasonable care. As such, this Court affirmed the judgment of the trial court.

In the instant case, it is unclear what plaintiff slipped and fell on or who placed it there. Plaintiff testified that the hospital employee told him he slipped on ultrasound gel. However, Mr. Petitpan testified that he went to the area where the fall occurred and recorded, “surface wet, oil/ food/grease,” a choice provided by the drop down menu on the report. He explained that he recorded it in that fashion because the individual who spoke to him was not certain what was on the floor. Mr. Petitpan did not recall whether the x-ray technician said that it was her impression that the substance on the floor was ultrasound gel. He also testified that he was unsure of the identity of the individual who escorted plaintiff at the time of the fall. Lastly, Mr. Petitpan explained that the area where the slip and fall occurred was not restricted at that time to hospital employees, and that an unlimited number of visitors could have gained access to that area while visiting patients.

Nevertheless, regardless of what the substance was, there is no evidence to show that the hospital had actual knowledge of it on the floor, so the inquiry is whether the hospital had constructive knowledge of the condition. Constructive notice as it relates to actions against a public entity is defined as the existence of facts which infer actual knowledge. Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Graff v. Jefferson Parish Hosp. Serv. Dist. No. 2, 09-598 at 11, 39 So.3d at 691. Here, there is no evidence to show that the substance was on the floor for such a period |flof time that the hospital, by the exercise of ordinary care and diligence, must have known of its existence in general and could have guarded the public from injury.

After a review of the record, we find that the trial court did not err in granting summary judgment in favor of defendant in this case. Plaintiffs failed to carry their burden of proving that they will meet their evidentiary burden at trial of showing that the hospital employees had actual or constructive knowledge of the foreign substance on the floor. Accordingly, the judgment of the trial court in favor of the hospital dismissing plaintiffs’ claims against it is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Bryan HAGER.
    No. 14-KA-99.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2014.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Shannon K. Swaim, Emilia L. Salas, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG, and ELLEN SHIRER KOVACH, Pro Tempore.
   ELLEN SHIRER KOVACH, Judge Pro Tempore.

| ¡¿Defendant, Bryan Hager, appeals his adjudication and sentence as a third felony offender. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On May 17, 2011, the Jefferson Parish District Attorney filed a bill of information charging Bryan Hager, defendant herein, with second degree battery, in violation of La. R.S. 14:34.1. On November 27, 2012, defendant waived his right to trial by jury and proceeded to trial before the bench. After hearing the evidence, the judge found defendant guilty as charged. On April 22, 2013, the trial judge sentenced defendant to three years at hard labor. On April 25, 2013, defendant filed his motion for appeal, which the trial judge granted. State v. Hager, 13-546, p. 2 (La.App. 5 Cir. 12/27/13), 131 So.3d 1090, 1091. On appeal, defendant challenged the sufficiency of the evidence. This Court affirmed, finding | sthat the evidence was sufficient to support the conviction. Hager, 13-546 at 6-7,131 So.3d at 1093.

On June 25, 2013, the State filed a multiple bill alleging defendant to be a second felony offender,' and defendant denied those allegations. On September 12, 2013, the State dismissed that multiple bill and filed a superseding multiple bill alleging defendant to be a third felony offender. Defendant denied the allegations of the superseding multiple bill on November 4, 2013. On December 12, 2013, a multiple bill hearing was held, after which the trial judge found defendant to be a third felony offender. The trial judge then vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for four years without benefit of probation or suspension of sentence. On December 17, 2013, defendant filed a timely motion for appeal that was granted.

FACTS

The underlying facts were set forth in this Court’s previous opinion in State v. Hager, 13-546 at 2-4, 131 So.3d at 1091-92; however, they are not repeated herein because they are not relevant to the issues raised in this appeal.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial judge erred in finding him to be a third felony offender. He contends that the evidence of the two prior convictions from Pennsylvania was insufficient, as the State only presented the trial court with Boykin forms but no transcripts, minute entries, or links to the fingerprint cards. The State responds that the evidence was sufficient to prove the existence of the prior felony convictions and that defendant was the same person who was convicted of them. The State further responds that this satisfied its burden as to an out-of-state conviction, noting that defendant had not presented evidence that the |4guilty pleas did not represent a knowing and voluntary choice among available alternatives.

The State alleged in the multiple offender bill of information that defendant had twice before pled guilty: (1) on November 13, 2002, to a violation of 18-3502(a), a felony [burglary] under both Pennsylvania and Louisiana law, in case number CP-15CR-0003395-2002 of the Commonwealth of Pennsylvania Court of Common Pleas of Chester County; and (2) on December 21, 2007, to a violation of 18^4101(a)(l), a felony [forgery] under both Pennsylvania and Louisiana law, in case number CP-15-CR-0004774r-2007 of the Commonwealth of Pennsylvania Court of Common Pleas of Chester County. Defendant did not file a written response to the multiple bill.

At the multiple bill hearing, Nikki Pas-salaqua, an expert latent fingerprint examiner, testified that she took defendant’s fingerprints in court that day (State’s Exhibit 2) and compared them to a fingerprint card relating to an arrest for the underlying second degree battery charge (State’s Exhibit 3) and found that they matched. She also compared the fingerprints contained in State’s Exhibit 2 to a fingerprint card from the Coatesville Police Department in Pennsylvania (State’s Exhibit 4) and found that they matched as well. Next, Passalaqua compared the fingerprints contained in State’s Exhibit 2 to a fingerprint card from the Cain TWP Police Department in Pennsylvania (State’s Exhibit 5), and it was her opinion that they matched.

Following Passalaqua’s testimony, the State introduced into evidence the above exhibits, as well as State’s Exhibits 6 and 7. State’s Exhibit 6 contained a bill of information and a form entitled “Guilty Plea Colloquy” which was dated December 21, 2007, and pertained to a forgery conviction from Pennsylvania. State’s Exhibit 7 contained a bill of information and a form entitled “Guilty Plea 15Colloquy” which was dated December 13, 2002, and pertained to a burglary conviction from Pennsylvania.

The State then argued that it had proven that defendant had two prior felony convictions and, therefore, he should be adjudicated as a third felony offender. Defense counsel responded that State’s Exhibit 5 had a case number on the back that corresponded with one of defendant’s alleged prior convictions but that State’s Exhibit 4 did not contain a case number. He argued that the State had attempted to create a correlation between the fingerprints on State’s Exhibit 4 and the conviction [State’s Exhibit 7] through an “O.T.N.” number but that there had been no testimony as to what an “O.T.N.” number was in Pennsylvania and whether it was unique to a case. As such, defense counsel contended that the State had not established beyond a reasonable doubt that the fingerprints on State’s Exhibit 4 linked defendant to the conviction.

The trial judge responded that State’s Exhibit 4 contained a date of offense of June 30, 2002, and an “O.T.N.” number that matched the conviction. Defense counsel noted that those fingerprints might be associated with, a misdemeanor conviction and not a felony conviction which was required for this proceeding. Defense counsel further argued that the State had not established under Shelton that defendant knowingly, freely, and voluntarily waived his rights because the State only produced a Boykin form when it needed to produce two of three in any combination of a minute entry, a transcript, or a Boykin form.

The State replied that State’s Exhibits 4 and 5 corresponded with State’s Exhibits 7 and 6, respectively, by the offenses, the dates of the offenses, and the “O.T.N.” numbers. The State further replied that based on Balsano, all that was required for the initial burden was that the State prove the existence of the prior Rguilty pleas and that defendant was represented by counsel when the pleas were taken, which it had done. It argued that defendant had not produced affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.

After hearing arguments of counsel, the trial judge found defendant to be a third felony offender. He explained that he reviewed the Boykin forms wherein defendant indicated he was represented by counsel and that he committed the crimes to which he was pleading guilty. The trial judge noted that the Pennsylvania Boykin forms were more detailed than those in Louisiana and that they showed defendant was advised of his rights and initialed them. He also stated that he found that defendant was aware of all of his rights at the time he entered the pleas. Additionally, the trial judge indicated that the names and dates of the offenses linked the fingerprint cards to the Boykin forms, and that he did not consider the “O.T.N.” numbers in reaching his decision.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Thomas, 06-654, p. 7 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-464 (La.11/21/07), 967 So.2d 1153. The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S. 15:529.1(C). State v. Guillard, 04-899, p. 13 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.

When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status and the defendant denies the habitual offender bill, the State’s burden of proof is governed by Shelton, supra. Under]¡¡Shelton, it is initially the State’s burden to prove: 1) the existence of the prior guilty pleas and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived, his right to trial by jury, his privilege against self-incrimination, and his right of confrontation. Shelton, 621 So.2d at 779-80.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780.

The State is not required to use a specific type of evidence in order to carry its burden of proof under the Habitual Offender Law, La. R.S. 15:529.1. State v. Payton, 00-2899, p. 2 (La.3/15/02), 810 So.2d 1127; State v. Jones, 08-466, p. 7 (La.App. 5 Cir. 10/28/08), 998 So.2d 178, 183. Rather, any competent evidence may be used to prove a defendant’s prior convictions. Jones, 08-466 at 7, 998 So.2d at 183. This Court has held that testimony comparing a defendant’s current fingerprints with fingerprints found on prior arrest records is sufficient to prove that the defendant is the person convicted of a prior felony. State v. Bell, 97-1134, p. 12 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 926, writ denied, 98-792 (La.9/16/98), 721 So.2d 477. This Court has also found sufficient linkage to a | ¡¡defendant where the State connects the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers. State v. Muhammad, 03-419, p. 6 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 33, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669.

On appeal, defendant contends that the evidence of the two prior convictions from Pennsylvania was insufficient, as the State failed to properly link both fingerprint cards to the two prior convictions. However, at the multiple bill hearing, defendant indicated that the State properly linked the fingerprint card pertaining to the forgery conviction (State’s Exhibit 5) to the prior felony conviction (State’s Exhibit 6), but that it did not properly link the fingerprint card pertaining to the burglary conviction (State’s Exhibit 4) to the prior felony conviction (State’s Exhibit 7).

Defendant did not file a written response challenging the validity of the prior guilty pleas as provided by La. R.S. 15:529.1(D)(b). Further, he did not make any objections to the validity of the prior forgery conviction at the habitual offender hearing. Therefore, we find that defendant has not preserved that issue for review and is precluded from presenting it to this Court on appeal. See State v. Stevenson, 03-1146, p. 3 (La.App. 5 Cir. 2/10/04), 868 So.2d 811, 812, writs denied, 04-721 (La.9/24/04), 882 So.2d 1166 and 04-863 (La.10/1/04), 883 So.2d 1004. Nevertheless, even if this issue had been preserved for review, we find that both fingerprint cards were properly linked to the prior convictions.

The record shows that the State proved the existence of the two prior guilty pleas and that defendant was represented by counsel when the pleas were taken. State’s Exhibit 6 indicates that defendant pled guilty to forgery in Pennsylvania on December 21, 2007, and that he was represented by counsel when that plea was |9taken. State’s Exhibit 7 indicates that defendant pled guilty to burglary in Pennsylvania on December 13, 2002, and that he was represented by counsel when that plea was taken. Both guilty plea colloquy forms show that defendant was advised of his Boykin rights and that he waived them, and both forms were signed by defendant and his attorney. Further, the record reflects that the trial judge signed the last pages of the Boykin forms entitled “Court Action.”

The record also shows that the State proved defendant was the same person who was convicted of the prior felonies. With respect to the forgery conviction, defendant’s fingerprints taken by the fingerprint expert (State’s Exhibit 2) link him to the fingerprints contained on the fingerprint card pertaining to the November 14, 2007 forgery arrest (State’s Exhibit 5). State’s Exhibit 5, in turn, links defendant to the Pennsylvania forgery conviction (State’s Exhibit 6), in that they both contain the same name (Bryan Hager), case number (47742007), offense (forgery), and statute (4101). Also, the date of arrest on the fingerprint card matches the starting date for credit for time served on the Boykin form (November 14, 2007), thereby indicating that the dates of arrest were the same. Although the age listed on the fingerprint card (Bl) differs slightly from the age listed on the Boykin form (29), that discrepancy is minor. (Compare State v. Pollard, 12-346, p. 13 (La.App. 5 Cir. 12/18/12), 106 So.3d 1194, 1202, writ denied, 13-140 (La.6/21/13), 118 So.3d 408, where this Court found that despite minor differences between two exhibits in height, hair color, and the spelling of the defendant’s name, the evidence sufficiently linked the defendant to the predicate conviction).

With respect to the burglary conviction, defendant’s fingerprints taken by the fingerprint expert (State’s Exhibit 2) link him to the fingerprints contained on the fingerprint card pertaining to the Pennsylvania burglary conviction (State’s Exhibit 4). State’s Exhibit 4, in turn, links defendant to the Pennsylvania burglary [ inconviction (State’s Exhibit 7), in that they both contain the same name (Bryan Grady Hager), date of offense (June 30, 2002), offense (burglary), and “O.T.N.” number (H565022-3). Also, defendant lists his age on the Boykin form as 24 years old, which matches the age listed on the fingerprint card. The date of birth listed on the fingerprint card, January 3, 1978, confirms that defendant was 24 years old at the time of the offense on June 30, 2002.

We find that this evidence satisfied the State’s initial burden under Shelton, since the evidence showed the existence of the predicate guilty pleas and that defendant was represented by counsel. The burden then shifted to defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. To that end, defendant argued at the multiple bill hearing that evidence of the two prior convictions from Pennsylvania was insufficient, as the State only presented the trial court with Boykin forms but no transcripts or minute entries. However, the jurisprudence indicates that for out-of-state convictions, the State is not required to produce a minute entry or a transcript in addition to a Boy-kin form.

In State v. Morgan, 13-1495 (La.2/28/14), 134 So.3d 1160 (per curiam), the Louisiana Supreme Court found that the State could use a prior non-Louisiana guilty plea for enhancement purposes even though the State introduced a waiver of rights form that did not contain the judge’s signature, and there was no transcript of the plea proceedings or a minute entry showing a guilty plea colloquy during which the defendant was informed of his rights. The supreme court noted that the defendant and his attorney signed the waiver of rights form which enumerated the trial rights waived by a guilty plea. The supreme court further noted that the defendant did not claim below that he was not informed of his I,,Boykin rights by the court or that he did not understand them, only that no proof existed in those respects. Citing State v. Balsano, 09-735 (La.6/19/09), 11 So.3d 475, the supreme court stated that the defendant “failed to produce any affirmative evidence that the contemporaneous statements of counsel on the waiver form did not reliably establish the knowing and voluntary [sic] of the guilty plea as a waiver of the enumerated trial rights both he and counsel acknowledged by signing the form.” Morgan, 13-1495 at 1-4,134 So.3d at 1161-62.

In Balsano, supra, the Louisiana Supreme Court found that out-of-state guilty pleas used for enhancement purposes were voluntary even though the trial court failed to advise the defendant of his right against self-incrimination. The supreme court reasoned that the extensive colloquy conducted by the out-of-state judge fully discharged the State’s burden. In reaching its decision, the Louisiana Supreme Court found that “for all non-Louisiana guilty pleas used to enhance sentence following a subsequent conviction, a defendant does not satisfy his burden of proof on collateral attack merely by presenting contemporaneous records revealing a violation of Jackson’s three-right rule; rather, he must show, as he must now show under Harris in a collateral attack mounted in post-conviction proceedings initiated to set aside the prior conviction and sentence, that his guilty plea was not voluntary as a constitutional matter, i.e., that it did not represent a knowing and voluntary choice among available alternatives.” Balsano, 09-735 at 13-14,11 So.3d at 482.

Based on Balsano, supra, and Morgan, supra, we find that the trial judge did not err by finding defendant to be a third felony offender even though the State 112only produced Boykin forms for the pri- or convictions and not transcripts or minute entries. The Boykin forms, which were signed by both defendant and his counsel, show that defendant was thoroughly advised of his rights and waived them. Because defendant did not meet his burden of producing affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, the burden of proving the constitutionality of the plea did not shift back to the State. Additionally, we find that because defendant did not present evidence that his guilty pleas were not voluntary as a constitutional matter, ie., that they did not represent knowing and voluntary choices among available alternatives, the trial judge did not err by finding defendant to be a third felony offender. See Boykin, supra; Morgan, supra.

This assignment is without merit.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, in State v. Moore, 12-102 (La.5/25/12), 90 So.3d 384 (per curiam), the Louisiana Supreme Court found that a habitual offender hearing should not be considered part of the record for purposes of error patent review, and that a defendant must assign as error any perceived defect in the proceedings to preserve appellate review of the claimed error. Therefore, in light of Moore, supra, we have not conducted an error patent review of the habitual offender hearing.

Nevertheless, to ensure an accurate record, we remand this case to the district court and order that the State of Louisiana Uniform Commitment Order be corrected to reflect the correct date of the offense, July 12, 2010. We also 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, pp. 10-11 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La.C.Cr.P. art. 892(B)(2)).

DECREE

For the foregoing reasons, the multiple offender adjudication and sentence are affirmed.

MULTIPLE OFFENDER ADJUDICATION AND SENTENCE AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . State v. Shelton, 621 So.2d 769, 779-80 (La.1993).

      . State v. Balsano, 09-735 (La.6/19/09), 11 So.3d 475.

      . It is noted that defendant does not contend that the prior convictions did not fall within the ten-year cleansing period, and therefore, that issue is not addressed herein.

      . It is noted that the date of birth on State’s Exhibit 4 (January 3, 1978) differs slightly from the dates of birth on State’s Exhibits 3 and 5 (January 10, 1978). It is also noted that the social security number on State’s Exhibit 4 differs slightly from the social security numbers on State’s Exhibits 4 and 5. However, it is reiterated that the fingerprint expert testified that defendant's fingerprints were contained on State’s Exhibit 3, 4, and 5.

      . State v. Harris, 97-1352 (La. 10/31/97), 702 So.2d 678, writ denied, 98-1949 (La. 12/11/98),

      . State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).