text:
    STATE of Louisiana v. Mark REYER.
    No. 2013-KA-0135.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Richard B. Ehret, Boykin Ehret & Ut-ley, New Orleans, LA, for Defendant/Ap-pellee.
    Court composed of Chief Judge James F. McKay, III, Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu.
   MAX N. TOBIAS, JR., Judge.

hThe state seeks review of the trial court’s ruling granting the defendant’s motion to quash the state’s bill of information, arguing that the trial court erred in ruling that the state’s bill of information was not filed timely.

I.

The defendant, Mark Reyer, an employee of Thunder Restoration Inc. (“Thunder”), a Minnesota company doing business in Louisiana following Hurricane Katrina, was charged by bill of information dated 18 July 2011 with committing one count of theft in the amount of $1,500.00 or more on 7 August 2007 in New Orleans, Louisiana. He was arraigned on 30 November 2011 in Orleans Parish Criminal District Court, entering a plea of not guilty, and was released on a $5,000.00 recognizance bond. The court set a hearing date for motions for 6 January 2013. On 3 January 2012, the defendant filed a motion to quash the bill of information, an application for a bill of particulars, discovery and inspection, and a motion to waive the defendant’s presence. The motion to quash asserts, inter alia, that neither Mr. Reyer nor anyone connected with Thunder did |2any work for Ms. Ryan after 10 July 2007 because all work was completed as contracted for by that date and that the time limit of four years, La.C.Cr.P. art. 572 A(2), for commencing prosecution had lapsed. The record on appeal reflects that no evidence was received, nor any offered, on 6 January 2012; the trial court set the date of 23 January 2012 as the date for ruling upon the motion. The state filed no written opposition prior to the hearing on 23 January 2012 and offered no evidence on that date (or any other).

On 23 January 2012, the trial court ruled on the motion to quash as follows:

The Court is ruling on the defendant’s motion to quash the bill of information. This Court is granting the motion to quash the bill of information on the theft over $500.
The state has four years from the date of the offense to institute prosecution for a felony, not necessarily punishable by imprisonment at hard labor.
They filed the bill of information in this case on July 15[sic], 2011. The application for arrest warrant was June 2, 2006. And the bill of information was filed on July 15 [sic], 2011.
So, more than four years have elapsed. The Court has signed the ruling on defense motion. [Emphasis added].

In response to prompting by the trial court, the state entered an objection to the trial court’s ruling and noticed its intent to appeal. This timely appeal followed.

II.

The state contends that the underlying facts of this case are not relevant for the purposes of the state’s appeal. It presents the following version of the facts:

Mr. Reyer, an employee of Thunder, a construction company licensed in Louisiana, contracted with Grace Ryan of New Orleans to repair her home that | shad been damaged by Hurricane Katrina. Ms. Ryan paid Thunder $313,000, and work was commenced on or about 2 June 2006.

Although not appearing in the appellate record except in allegations in the defendant’s motion to quash, the state asserts that a dispute arose between Thunder and Mr. Reyer on the one hand and Ms. Ryan on the other hand, which resulted in Ms. Ryan filing suit in Orleans Parish civil court in 2009 against Thunder and its insurer. The case was removed to the United States District Court for the Eastern District of Louisiana where all of Ms. Ryan’s claims were ultimately dismissed in June 2011.

The district attorney filed a bill of information against Mr. Reyer on 18 July 2011, charging him with a violation of La. R.S. 14:67 A, theft of more than $1,500, alleging that the theft occurred on 7 August 2007. The district attorney refused to nolle prosequi the charge after being advised by Mr. Reyer’s attorneys of the dismissal of the federal court civil action.

III.

The application for an arrest warrant of Mr. Reyer asserts the theft occurred on 2 June 2006 and/or 10 July 2007. Specifically, the warrant states:

Before me, the undersigned Judge of Magistrate Court, Parish of Orleans, State of Louisiana, personally came and appeared: Detective Mike Kitchens, employed by the New Orleans Police Department, 715 S. Broad Street, New Orleans, Louisiana who, after first being duly sworn by me, deposed and stated that a warrant of arrest should be issued ordering the arrest of Mark Leonard Reyer W/M DOB: 02/26/1955, SS No. [ XXX-XX-XXXX ] who, on the 2nd day of June, 2006, in the Parish of Orleans, State of Louisiana, did commit the crime of |4theft, as defined in Louisiana Revised Statute, R.S. Ik:67. The facts and circumstances given to support the issuance of this warrant is:
Mark Reyer of Thunder Restoration signed a contract with the victim, Grace Ryan; the contract stated that Thunder Restoration would perform restoration and repairs to the inside and the outside of the residence. Thunder Restoration has been paid a total of Three Hundred Thirteen Thousand Three Hundred Five Dollars and Seventy Three Cents ($313,-305.73). On or around July 10, 2007 Mark Reyer notified Ms. Ryan that they had stopped working on the residence and the company would not be coming back to finish the work they were contracted to do. [Boldface emphasis supplied; underlining in original.]

Contrariwise, Mr. Reyer notes in his brief that “the Bill of Information ... picks a random date for the theft’ of August 7, 2007 which conveniently fits, by several weeks, the four (4) year prescriptive period for the crime charged.”

IV.

In its sole assignment of error, the state asserts that the trial court abused its discretion when it granted Mr. Reyer’s motion to quash because it timely filed the bill of information within the four-year prescriptive period of La. C. Cr. P. art. 572 A.

An appellate court reviews a trial court’s ruling on a motion to quash utilizing an abuse of discretion standard. The discretion of the trial court is not disturbed absent a clear abuse because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision. An appellate court is allowed to reverse a trial court judgment on a 15motion to quash only if that finding represents an abuse of the trial court’s discretion. State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673; State v. Williams, 12-0110, p. 2 (La.App. 4 Cir. 10/10/12), 101 So.3d 533, 534; State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206.

The state suggests that a motion to quash “an indictment” should be treated like an exception of no cause of action in a civil action, i.e., a court must accept as true the facts contained in the bill of information and the bill of particulars and decide whether or not a crime has been charged. See State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103. The state further cites to La.C. Cr. P. art 532, and the holding in State v. Byrd, 96-2302, pp. 18-19 (La.3/13/98), 708 So.2d 401, 411, where the Court stated:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La. C. Cr. P. art. 531 et. [sic] seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).
As this Court held in State v. Legendre, 362 So.2d 570, 571 (La.1978), “[t]he question, then, is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash | fimay be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute.” Legendre goes on to note that “[i]t will not do to base an indictment for a serious offense ... upon an allegation of fact which cannot conceivably satisfy an essential element of the crime.... ” Legendre, 362 So.2d 570, 571.

The state argues that under La.C.Cr.P. art 572 A, it is granted four years from the date the crime is committed to commence prosecution, and that the time does not commence under La.C.Cr.P. art. 573 until the relationship or status involved between the victim and the perpetrator has ended.

The state asserts that in the instant case it had four years to bring a bill of information against the defendant, who was charged with La. R.S. 14:67 A; since the bill was filed on 18 July 2011 and alleges that the theft took place on 7 August 2007, it was timely filed. It urges that in light of the rulings in Lagarde, supra, and State v. Bremer, 97-0456, p. 3 (La.App. 4 Cir. 12/10/97), 704 So.2d 917, 919, the [7trial court had no choice but to accept as true the information found on the face of the bill of information. Finally, the state argues that under Lagarde and Bremer, the date which appears on the application for an arrest warrant is rendered moot.

Mr. Reyer argues that the filing of the state’s bill of information was untimely. In his motion to quash filed on 3 January 2012, he asserted that all repair work ended on 10 July 2007. He further asserted that he and Thunder had a contract with Ms. Ryan which ran from 2 June 2006 through 10 July 2007, the date cited in Mr. Reyer’s arrest warrant affidavit and application prepared by the state. Nothing in the record supports the 7 August 2007 date chosen by the state.

At the trial of the motion to quash, the state offered no arguments or evidence to support that the crime or any element thereof occurred on a date after 18 July 2007. Mr. Reyer avers that, while under La.C.Cr.P. art. 577 he bears the burden of raising the issue of untimely institution of prosecution, the state must then meet its burden of proving that the prosecution was timely and covered by the exception once the issue has been raised.

In State v. Brumfield, 11-1599 (La.App. 4 Cir. 11/29/12), 104 So.3d 701, writ denied, 12-2764 (La.5/31/13), 118 So.3d 389, the defendant was charged with theft arising out of his agreement to perform renovation work on the Hurricane Katrina damaged house of the complainants. The state initially charged him with theft by bill of information filed on 27 May 2010, alleging that the crime occurred on 17 February 2006. The trial court granted Mr. Brumfield’s motion to quash, finding that it was prescribed, having been filed more than four years after the date of the alleged criminal act. On 24 August 2010, the state filed a new bill of information for the same theft, this time alleging that the crime occurred on 26 |8October 2006. At the trial of Mr. Brumfield’s motion to quash the second bill of information, the state offered no evidence. We noted Byrd, supra, as follows:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. [sic] seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).

When a defendant has brought a motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit has occurred. Brumfield, pp. 7-8, 104 So.3d at 706, citing State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286. The state is not required to allege facts showing that the time limitation has not expired, “but when the issue is raised, the state has the burden of proving the facts necessary to show that the prosecution was timely instituted.” Id., p. 13, 104 So.3d at 709 [boldface emphasis in original; emphasis supplied].

In Brumfield, the state argued that La. C.Cr.P. art. 573(1), which provides an exception to the four-year prescriptive period, governed the case. Quoting La. C.Cr.P. art. 573, we reasoned that the article did not apply under the facts of the case, to-wit:

lflBrumfield is a contractor who entered into an agreement with the complainants to repair the premises after Hurricane Katrina, but did not complete the work. First, this relationship between the defendant and the complainants is not a fiduciary relationship, which terminated when Brumfield no longer worked for [the complainants] as a contractor. We understand, in context, that a fiduciary relationship exists when a person, an individual, exercises any discretionary authority or discretionary control with respect to the management of funds or assets. See, e.g., La. R.S. 11:264. Further, under article 573, the date that the statutory period starts to run is not the date that the money is tendered, but rather the date that a fiduciary relationship terminated. See State v. Comadore, 07-0976, pp. 4-5 (La.App. 4 Cir. 5/14/08), 984 So.2d 203, 205-06 (where the time limitation ran from the date that the defendant employee no longer worked for Greyhound, the company she allegedly defrauded by creating bogus tickets); Turner v. Department of Transp. and Development, 01-2426 (La.App. 1 Cir. 6/21/02), 822 So.2d 786 (where the time limitation for the theft statute began to run when the defendant employee, who made personal calls on her work phone, was terminated). See also State v. Aucoin, 457 So.2d 885, 886 (La.App. 3rd Cir.1984) (where the state did not prove that the defendant, who was a maintenance clerk in a school district charged with theft, used his position to requisition light fixtures for his own use or that the exception in La. C.Cr.P. art. 573(1) applied in that case where the bill of information was filed seven years later). The relationships in these three cases are distinguishable from the relationship in the case before us.

Brumfield, pp. 13-14, 104 So.3d at 709-710 (footnote omitted).

We concluded that the state failed to carry its burden of proof at the hearing on the motion to quash, noting that no evidence was presented to show when the complainants knew or should have reasonably known that a theft had occurred. The state had the burden to show, once the issue was properly raised by the defendant, that the victims knew or should have known a theft had occurred within the prescriptive period, which is determined by counting backwards from the date that the bill of information was filed.

|1((As we said,

We note the slippery slope this case creates should we embrace the 26 September 2006 letter as the starting point of the four-year prescriptive period. That is, if Brumfield received and did not respond to the September 2006 letter, could [the complainants] have written another letter in 2008 demanding reimbursement, thereby allowing the state to say that the four years commenced in 2008, not on the earlier date’ On the motion to quash, the state had the burden of proof, yet failed to call [either complainant] for they were essential witnesses to testify as to the date they believed that they were theft victims, especially given the long delay between the September 2006 letter and the date that the state first filed a bill of information.

Id., p. 21, 104 So.3d at 714.

In State v. Severin, 12-0205, unpub. (La.App. 4 Cir. 10/17/12), 103 So.3d 746 (Table), 2012 WL 6652944, on 2 October 2010, the defendant was charged with a violation of La.R.S.14:67 by bill of information in which the state alleged that the theft occurred between 1 June 2006 and 31 December 2007. The victim reported that by 7 June 2006 he had paid Mr. Severin a total of $12,000. The state alleged that the victim became aware of faulty work, and in July 2006 was assured by Mr. Severin that repairs would be made. The state asserted that in November 2006 the victim once more contacted Mr. Severin, but he failed to return to complete the work. Mr. Seve-rin argued that the four-year period to commence prosecution began to run on 7 June 2006, and that by the time the state filed its bill of information on 7 October 2010, the four-year time limitation for filing had expired.

InThis court found that the state bears the burden of proving that an exception, embodied in La.C.Cr.P. art. 573, is applicable, noting that La.C.Cr.P. art. 573 provides that the time limitations of La. C.Cr.P. art. 572 do not begin to run “until the relationship or status of the involved has ceased to exist when: [t]he offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith or has control thereof.” However, “while the state is not required to allege facts showing that prescription has not run, once the issue is raised, the burden is on the state to prove the facts necessary to show timely institution of prosecution.” Severin, p. 5, citing State v. Campbell, 404 So.2d 956, 959 (La.1981). The Severin court went on to find that the bill of information suggested that the employment relationship between the victim and Mr. Severin may not have ended until the date of the last communication between the two parties, ie., November of 2006, as the state alleged. We reversed the ruling of the trial court and remanded to allow the state the opportunity to present evidence on rebuttal, thus obtaining the opportunity to meet its burden of proof.

V.

We find that the state failed to meet its burden of proof at either the 6 or 23 January 2012 hearings on the motion to quash, offering no evidence whatsoever as to the last date that either Thunder or Mr. Reyer worked for Ms. Ryan or when she knew or should have known that a crime had been committed. That is, no evidence has been presented in this case when it had to be presented (the hearing on the accused’s motion to quash) that the crime of theft or any element thereof was 112committed on or after 18 July 2007. The assignment of error has no merit, and accordingly, we find the trial court did not abuse its discretion nor commit legal error in granting Mr. Reyer’s motion to quash..

AFFIRMED.

      . The actual bill of information is dated as filed on 18 July 2011; the docket master reflects that the date of filing is 15 July 2011. The actual bill controls. In this case, however, the three-day difference is immaterial.

      . At the time of the commission of the alleged offense, La. R.S. 14:67 provided that theft in the amount of $500 or more was the highest grade of the offense of theft.

      . See footnote 2 above.

      . Nowhere in its brief or otherwise does the state request that this matter be remanded to the trial court for the purpose of making a better record to establish any date.

      . A close examination of the district attorney’s "Screening Action Form” can reasonably be read (and we think should be read) to support this statement. The matter was screened on 13 July 2011 with the date of the offense being shown as "08-07-07.” No evidence in the record on appeal supports where the 7 August 2007 date came from except that it appears arbitrarily selected for the purpose of avoiding La.C.Cr.P. art. 572 A(2).

        . La.C.Cr.P. art. 532(7) states that a motion to quash may be based upon the ground that "[t]he time limitation for institution of prosecution of for the commencement for trial has expired.”

      . La.C.Cr.P. art. 573 states in pertinent part:
      The time limitations established by Article 572 shall not commence to run as to the following offenses until the relationship or status involved has ceased to exist when: (1) The offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith or has control thereof....

      . In Bremer, this court found:
      In State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103, writ denied, 96-1111 (La.10/4/96), 679 So.2d 1378, we recognized that "[a] motion to quash an indictment is treated much like an exception of no cause of action in a civil suit; the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” Code of Criminal Procedure article 532(5) provides that a motion to quash may be granted when the bill of particulars has shown a ground for quashing the indictment under article 485. That article, in pertinent part, says:
      If it appears from the bill of particulars ... that the offense charged in the indictment was not committed, or that the defendant did not commit it ... the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured.

      . Unlike Severin, in the matter sub judice, before the state could present its case, the trial court granted the motion reasoning that “[T]his belongs in the Civil District Court for the Parish of Orleans ... that's where it used to always belong (sic) until this new D.A. I am granting the motion to quash on that basis.”

      . As an aside, the ruling against Ms. Ryan in federal court on her civil claims against Thunder and/or Mr. Reyer, where the burden of proof was preponderance of the evidence, establishes reasonable doubt that the crime of theft was not committed.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John LINDSEY.
    No. 2012-KA-1195.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   TERRI F. LOVE, Judge.

[ t John Lindsey (“Mr. Lindsey”) appeals his conviction for aggravated assault and possession of a firearm by a convicted felon arising from events in November of 2008. On appeal, Mr. Lindsey claims that the trial court erred when it allowed the State to introduce evidence of the 2007 aggravated assault at trial and when it denied his motion for new trial based on newly discovered evidence. We find that Mr. Lindsey failed to lodge a contemporaneous objection as required by La.C.Cr.P. art. 841; and thus, he is precluded from raising the issue of the admissibility of the 2007 aggravated assault incident on appeal. We also find that the trial court did not err in denying his motion for new trial as the newly discovered evidence is not of such a nature that “it would probably have changed the verdict or judgment of guilty.” La.C.Cr.P. art. 851. Moreover, the record reveals an error patent in Mr. Lindsey’s original vacated sentence wherein the trial court failed to impose a mandatory fine, and we remand the matter for resentencing. Therefore, Mr. Lindsey’s conviction is affirmed and the matter is remanded for resentencing in accordance with this opinion.

\ .PROCEDURAL HISTORY

Mr. Lindsey was charged by bill of information for offenses occurring in November of 2008 including attempted murder of Richard Ricks (“Mr. Ricks”), aggravated assault of a peace officer with a firearm, and two counts of possession of a firearm by a convicted felon. Mr. Lindsey filed several motions to quash and to sever the counts; however, the trial court denied his motions.

The State then filed a motion pursuant to State v. Prieur, 277 So.2d 126 (La.1973), to introduce evidence of Mr. Lindsey’s arrest for two counts of aggravated assault with a firearm arising from a 2007 drive-by shooting at Mr. Ricks’ residence. In support of its Prieur notice, the State submitted several police reports and accompanying documents that were generated during the police investigation of the incident. The trial court granted the State’s motion and issued a written ruling. The trial court concluded that given the similarities of the two incidents, notably that both drive-by shootings targeted two of the three victims in the subject prosecution and that the evidence was more probative than prejudicial, the evidence could be admitted at Mr. Lindsey’s trial.

Following a jury trial in the present matter, Mr. Lindsey was found not guilty as to the attempted second degree murder of Mr. Ricks and possession of a firearm by a convicted felon occurring on November 28, 2008. The jury, however, found Mr. Lindsey guilty of the lesser included offense of aggravated assault as to |3count three and found Mr. Lindsey guilty as charged of possession of a firearm by a convicted felon on November 25, 2008.

Mr. Lindsey subsequently filed motions for new trial and post judgment acquittal, which the trial court denied. Thereafter, the trial court sentenced Mr. Lindsey to six months in Orleans Parish prison relative to his aggravated assault conviction and to fifteen years at hard labor' for possession of a firearm by a convicted felon. The State then filed a multiple offender bill of information alleging Mr. Lindsey to be a second felony offender. At the multiple bill hearing, Mr. Lindsey pled guilty to the multiple bill pursuant to a plea agreement. The trial court vacated the previously imposed sentence and sentenced the defendant according to the plea agreement to twenty-two years at hard labor to run concurrent with his six month sentence in Orleans Parish prison for aggravated assault.

Mr. Lindsey filed a motion for appeal, which the trial court granted. The appeal record was lodged with this Court, and thereafter, Mr. Lindsey filed in the trial court a motion for new trial based on newly discovered evidence. Mr. Lindsey then filed with this Court a motion to remand. This Court granted the motion and remanded the case for the sole purpose of allowing the trial court to rule on the motion for new trial.

A hearing on Mr. Lindsey’s motion for new trial was held, and the trial court denied the motion concluding that the newly discovered evidence would not have changed the verdict. The record on appeal was supplemented with a transcript of Lthe hearing, and Mr. Lindsey filed a supplemental assignment of error based on the trial court’s ruling on the motion for new trial.

FACTUAL BACKGROUND

The facts leading to Mr. Lindsey’s arrest and prosecution in the present matter took place over the course of two days in November of 2008. Additionally, the State introduced Prieur evidence from June of 2007 that the trial court found to be admissible in the present matter.

Events of June 2007

Detective Timothy Sisón

Because the trial court allowed the State to introduce evidence of the June 2007 incident, the facts surrounding the Prieur evidence are discussed first.

Detective Timothy Sisón (“Detective Si-son”) testified that in June of 2007, he investigated a drive-by shooting that took place at 1145 Terry Street. He testified that he proceeded to the location and spoke to victims Mr. Ricks and Mr. Kevin Roy (“Mr. Roy”). While at the scene, Detective Sisón learned that officers had stopped a vehicle in connection with the shooting, and two individuals had been apprehended. The two victims were then relocated to the site of the apprehension where the victims were able to identify the two suspects.

Detective Sisón testified that he was able to develop Mr. Lindsey as an additional suspect in the shooting and obtained a photograph of Mr. Lindsey which he then presented to Mr. Ricks and Mr. Roy for identification. Both men identified Mr. Lindsey as the third participant in the shooting. Detective Sisón then obtained |5a warrant for Mr. Lindsey’s arrest. Detective Sisón testified that following Mr. Lindsey’s arrest he provided Detective Si-son with a statement; however, the State failed to establish a predicate for the statement, and it was not introduced at trial in this matter.

Sergeant Henry Laurent

Sergeant Henry Laurent (“Sergeant Laurent”) testified that in June of 2007 following the report of a drive-by shooting, he was en route to 1145 Terry Street when he observed a white 2006 Mazda Millennium with temporary tags turn north from Terry Street onto De Alma Street at a high rate of speed. Suspecting the vehicle was involved in the incident Sergeant Laurent activated his lights and siren and pursued the vehicle. Sergeant Laurent testified that the chase ensued for several blocks and the Mazda entered the Gilmore Park apartment complex. Sergeant Laurent testified that the vehicle was occupied by three people and that Mr. Lindsey was the driver. He also testified that as the vehicle neared the rear of the complex, it performed a quick turn between two buildings and struck a tree.

All three occupants then exited the vehicle and began to run together in the direction of another patrol car. Sergeant Laurent testified that rather than follow the subjects, he traveled around to the opposite end of the building and encountered Mr. Lindsey. Sergeant Laurent stated that Mr. Lindsey was holding a black semi-automatic pistol in his right hand and aimed the weapon at him. Sergeant Laurent testified that he fired two shots at Mr. Lindsey who then ran to the back fence of the complex, dropped his pistol, and escaped.

|fiA week after the incident at 1145 Terry Street, Mr. Lindsey was arrested pursuant to an arrest warrant. Mr. Lindsey was later charged with aggravated assault upon a police officer and pled to the offense.

Events of November 2008

Sergeant Aaron Cronk

Sergeant Aaron Cronk (“Sergeant Cronk”) testified that in November 2008 he investigated a shooting that occurred at the intersection of Holiday Drive and General Meyer Avenue. He met with the victims, Mr. Ricks, Mr. Roy, and Ms. Antoinette Davis (“Ms. Davis”), at the Fourth District police station on the night of the shooting. During the interview, Mr. Ricks identified “Lil’ Red” as the shooter. Sergeant Cronk ran the name “Lil’ Red” through the police database and learned that the name was associated with Mr. Lindsey. Subsequently, Sergeant Cronk presented a photographic lineup to Mr. Ricks who positively identified Mr. Lindsey’s photograph and described Mr. Lindsey’s vehicle as a white Dodge Ram pickup truck. Sergeant Cronk then prepared a warrant for Mr. Lindsey’s arrest and released an arrest bulletin with a description of Mr. Lindsey and the pickup truck.

Richard Ricks’ Testimony

At trial, Mr. Ricks identified Mr. Lindsey in the courtroom and informed the trial court that he wished to invoke his Fifth Amendment privilege against self-incrimination. Mr. Ricks testified that he felt he was being forced to testify against Mr. Lindsey and that he did not wish to. After the trial court appointed counsel to represent Mr. Ricks, he admitted being at home in June of 2007, when the first |7shooting occurred. Mr. Ricks testified that he did not see Mr. Lindsey in the car the day of the incident. He explained that he identified Mr. Lindsey to Detective Si-son only because Mr. Roy told him he saw Mr. Lindsey in the car, and Mr. Roy had previously shown him a photograph of Mr. Lindsey. Mr. Ricks also suggested that there was no animosity between himself and Mr. Lindsey. The State then played the 911 tape from incident, and Mr. Ricks identified several voices on the tape.

As to the November 2008 drive-by shooting, Mr. Ricks stated that he was in the driver’s seat waiting at a red light when the shooting occurred. At trial, he testified that Mr. Roy told him to “take off,” but shots rang out before he was able to drive away. Mr. Ricks stated that he did not see who was responsible for the shooting and that he could only see that the vehicle was white. Mr. Ricks also admitted identifying Mr. Lindsey in a photographic lineup, but stated that the officer pointed to Mr. Lindsey’s picture.

Officer Kevin Wheeler

Officer Kevin Wheeler (“Officer Wheeler”) testified at trial that in November of 2008, during roll call, a bulletin and photograph of Mr. Lindsey was distributed, indicating that Mr. Lindsey was wanted for aggravated assault in relation to a drive-by shooting that occurred two days earlier. Later that day, while on patrol, Officer Wheeler observed a Dodge pickup truck that fit the description of the vehicle involved in the shooting. Officer Wheeler was traveling on Pace Street when the truck crossed his path. Because of his proximity to the location of |sthe shooting and to Mr. Lindsey’s home address provided in the bulletin, Officer Wheeler testified that he suspected the truck’s involvement in the shooting.

Officer Wheeler stated that he followed the truck and upon approaching it, he activated his lights and siren, at which time the truck accelerated at a high rate of speed. The driver then lost control of the vehicle and side-swiped several parked cars. Officer Wheeler testified that the left rear wheel of the truck fell off, causing the truck to spin and slide down the street backwards. From his vantage point, Officer Wheeler was able to see the driver, Mr. Lindsey, and another person, in the front seat of the truck as it slid down the street.

Once the truck came to a stop, Officer Wheeler exited his patrol car. Both occupants of the truck fled on foot. Mr. Lindsey fled into an abandoned housing complex, and Officer Wheeler followed. The officer testified that he lost sight of Mr. Lindsey after he turned into a courtyard, but as Officer Wheeler came around a corner, he observed Mr. Lindsey was looking back at him. Officer Wheeler then yelled for Mr. Lindsey to stop.

Officer Wfheeler testified that Mr. Lindsey then made a move described as a “button hook,” in which he ran straight and then out at an angle. As Mr. Lindsey did so, he raised his shirt and pulled out a firearm from his waistband. Believing Mr. Lindsey was going to shoot him, Officer Wheeler drew his service weapon and fired two shots in Mr. Lindsey’s direction; however, the shots missed Mr. Lindsey, who was able to elude the officer.

| flOfficer Wheeler further testified that he returned to the truck and observed a spent shell casing. He also stated that he ran the license plate number and learned that it was stolen two days earlier. Subsequently, Detective Ryan Aucoin (“Detective Aucoin”) compiled a six person photographic lineup which included a photograph of Mr. Lindsey. Detective Aucoin showed the lineup to Officer Wheeler, who positively identified Mr. Lindsey as the subject who fled from the white truck.

ERRORS PATENT

A review for errors patent reveals errors in the defendant’s sentence for possession of a firearm by a convicted felon. La. R.S. 14:95(B) provides that a person convicted of the offense “shall be imprisoned at hard labor not less than ten nor more than fifteen years, without benefit of parole, probation or suspension of sentence and pay a fine not less than one thousand dollars nor more than five thousand dollars.”

In this case, the district court failed to deny Mr. Lindsey benefits and did not impose the mandatory fine in his original sentence for violation of La. R.S. 14:95(B). With respect to the failure to deny benefits, statutory restrictions are contained in a sentence whether or not verbally imposed by the sentencing court. See La.

STATE v. LINDSEY Cite as 129 So.3d 759 (La.App. 4 Cir. 2013) La. 765 R.S. 15:301.1(A); State v. Hall 02-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. [2] With respect to the failure to impose a fíne, generally the failure to impose a mandatory fíne requires a remand of the ease for the imposition of the fine. See _|^State v. Jefferson, 04-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577; State v. Brown, 03-2155 (La.App. 4 Cir. 4/14/04), 895 So.2d 542. In State v. Wilson 10-1604 (La.App. 4 Cir. 7/6/11), 68 So.3d 1232, the trial court failed to impose the mandatory fine in the original vacated sentence. On appeal, this Court remanded the matter to rectify the omission in the defendant’s original sentence, even though the trial court had already vacated the original sentence and properly sentenced the defendant as a multiple offender. This Court stated, “we vacate the sentence and remand the case to the trial court to impose a legal sentence in accordance with La. R.S. 14:95.1(B).” Id., p. 7, 68 So.3d at 1236. In State v. Dickerson, 584 So.2d 1140 (La.1991), the trial court imposed a fine in addition to sentencing the defendant under La. R.S. 15:529.1. The Supreme Court concluded that the habitual offender statute does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. Thus, the Supreme Court deleted the fine and default provisions of the defendant’s sentence. [3] Unlike Dickerson, Mr. Lindsey’s sentence under La. R.S. 15:529.1 did not result in the illegal sentence. Rather, the trial court’s failure to impose the mandatory fine in Mr. Lindsey’s original vacated sentence, like in Wilson, results in the error patent. Thus, this Court remands this matter to the trial court for resentenc-ing in accordance with this opinion. U,PRIEUR EVIDENCE [4]In his first assignment of error, Mr. Lindsey contends that the trial court erred when it allowed the State to introduce detailed testimony concerning the 2007 aggravated assault of Officer Laurent. Although evidence of other crimes committed by the defendant are generally inadmissible because of the substantial risk of prejudice to the defendant, pursuant to La. C.E. art. 404(B)(1), the State may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason such as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See also State v. Prieur, 277 So.2d 126, 128 (La.1973). The State must provide the defendant with notice and a hearing before it intends to offer such evidence. Prieur, 277 So.2d at 130. The State also bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Galliano, 02-2849, p. 2 (La.1/10/03), 839 So.2d 932, 933. Although a defendant’s prior bad acts may be relevant and otherwise admissible, pursuant to La. C.E. art. 404(B), the trial court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. See La. C.E. art. 403; See also State v. Rose, 06-0402, p. 12-13 (La.2/22/07), 949 So.2d 1236,1243-44. Mr. Lindsey claims the introduction of the evidence relating to the 2007 aggravated assault was not so distinctive to be admissible to prove identity. He 112also claims that the admission was not harmless error and that his conviction should be reversed. We pretermit discussion of whether the trial court erred by allowing the introduction of the 2007 aggravated assault as we find Mr. Lindsey failed to make a contem-

poraneous objection to preserve the issue on appeal.

The record in this case reflects that Mr. Lindsey failed to preserve the assignment of error by objecting to the introduction of the Prieur evidence as required by La. C.Cr.P. art. 841, which provides in pertinent part that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” A review of the record demonstrates that although the State filed the requisite Pri-eur notice, it did not indicate that it intended to offer evidence of the 2007 aggravated assault at Mr. Lindsey’s trial. The State limited its notice to evidence of the 2007 drive-by shooting at Mr. Ricks’ residence. Additionally, the trial court’s ruling was limited to a determination of the admissibility of the other crimes evidence identified in the notice. Because the admissibility of the evidence at issue was not the subject of a written ruling, an objection was required.

Accordingly, when the State began to introduce evidence of the aggravated assault of Offlcer Laurent at trial, it was incumbent upon Mr. Lindsey to object on the basis of lack of notice and/or on the basis that the evidence was not admissible. Since Mr. Lindsey failed to lodge a contemporaneous objection as required by La. C.Cr.P. art. 841, Mr. Lindsey is precluded from raising the issue on appeal. State v. Welch, 615 So.2d 300, 303 (La.1993) (defendant waived complaint that State failed to provide Prieur notice); State v. Lacoste, 04-1625 (La.App. 4 Cir. 2/16/05), 896 So.2d 1180 (failure to lodge a contemporaneous objection to introduction of other crimes precluded defendant from raising issue on appeal).

MOTION FOR NEW TRIAL

Mr. Lindsey also alleges that the trial court erred when it denied the motion for new trial based on newly discovered evidence.

La.C.Cr.P. art. 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty ...

To obtain a new trial based on newly discovered evidence, the defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. La.C.Cr.P. art. 851(3); State v. Brisban, 00-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict. State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 821; State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321 (a trial court has much discretion in ruling on a motion for new trial). Moreover, review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907.

Mr. Lindsey asserts that he is entitled to a new trial after it was reported in the Times-Picayune that Officer Wheeler was dismissed from the New Orleans Police Department for lying in -violation of the department’s “truthfulness policy.” According to the November 2012 article, in October of 2011 Officer Wheeler and his partner responded to a report of a man holding a machete. The officers reported using their stun guns to subdue the subject because he was armed, but a video of the incident showed the man was not armed at the moment the officers discharged their weapons.

Mr. Lindsey argued in his motion that the facts surrounding Officer Wheeler’s dismissal were admissible to show his “corruption” pursuant to La. C.E. art. 607(D)(1). The trial court found that the only admissible evidence at a new trial would be that Officer Wheeler was dismissed from the police force and that he was dismissed for lying. Any questions regarding the particular facts that led to his dismissal would not be admitted at a new trial. Accordingly, the trial court denied the motion on the basis that the information regarding Officer Wheeler’s termination would not have changed the verdict.

La. C.E. art. 607(D)(1) provides that, “[ejxtrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.” Mr. Lindsey alleges the trial court erred in rejecting his argument that the facts surrounding Officer Wheeler’s termination were admissible |1Bto show his “corruption” and that if a fact finder were allowed to hear evidence relative to Officer Wheeler’s dismissal, specifically his history of making false accusations, it would have changed the verdict. Accordingly, Mr. Lindsey alleges that the trial court erred when it denied his motion for new trial.

In support of his claim, Mr. Lindsey cites State v. Cappo, 345 So.2d 443, 445 (La.1977), wherein the Louisiana Supreme Court stated that a “witness’ corruption may be evidenced by conduct indicating a general scheme to make false charges or claims.” In Cappo, the defendant was prevented from introducing evidence to show a key witness for the State had wrongly accused individuals of participation in other crimes for the purpose of placing himself in stronger bargaining position as a potential prosecution witness. The Louisiana Supreme Court ruled that the trial court erred by preventing introduction of such evidence. The Supreme Court drew a distinction regarding the type of evidence that is admissible. The Supreme Court found that the trial court had properly excluded witnesses who would testify that the State’s key witness had “erroneously related details of other crimes in which he was involved.” Id. However, the Court found that the trial court improperly excluded witnesses who would demonstrate that the State’s key witness had falsely implicated innocent citizens in other crimes. Id.

The Supreme Court concluded that the first category of testimony was properly excluded because “its impeachment value was substantially reduced by the other possible explanations for such errors, [including poor memory, inability to observe accurately]” and “[b]ecause it could not be inferred from a contradiction of [the key witness’ recital of the details of the crimes that he was corrupt].” Id. By contrast, the Supreme Court concluded “defendant’s second line of attack, to show that [the State’s key witness] had previously brought false accusations in 11ficonnection with other crimes, bore directly on the witness’ corrupt intention for the case in hand.” Id. Accordingly, the Court concluded that the trial court erred in prohibiting the testimony.

Mr. Lindsey alleges that the evidence of the stun gun incident would establish that Officer Wheeler has a history of making false accusations in order to justify his use of force, and was “corrupt” in the same sense as the key witness in Cappo. Mr. Lindsey also contends that Officer Wheeler gained an advantage by falsely accusing the subject. Thus, Mr. Lindsey claims the jury would have reached a different verdict had they learned that Officer Wheeler previously made a false accusation that someone threatened him with a weapon.

At the hearing on the motion for new trial, the only evidence Mr. Lindsey offered in support of his contention was the November 2012 newspaper article. Notably, the evidence failed to establish whether Officer Wheeler’s alleged false statement was inaccurate or whether he purposely misrepresented the facts in order to gain some advantage for himself. Further, it is not clear whether the false statement led to the subject being charged with an offense or whether Officer Wheeler obtained an advantage in making the statement.

Nevertheless, Mr. Lindsey provided nothing more than the newspaper article to support his motion for new trial and failed to present a compelling case for allowing the evidence. Because it is well-established that extrinsic evidence is generally inadmissible for purposes of impeachment, Mr. Lindsey carried a heavy burden. Thus, considering the vast latitude the trial court has to evaluate the reliability of evidence and its impact on the verdict, we find that the trial court did not abuse its discretion in denying the motion.

Jj¿DECREE

For the foregoing reasons, Mr. Lindsey’s conviction is affirmed and the matter is remanded for resentencing in accordance with this opinion.

AFFIRMED AND REMANDED FOR RESENTENCING.

      . The record indicates that Mr. Lindsey was never prosecuted for the alleged 2007 aggravated assault.

      . Officer Wheeler identified the driver as the same Mr. Lindsey pictured in the police bulletin distributed during roll call.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Gerald BIDDY Jr.
    No. 2013-KA-0356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, Parish of Orleans, Donna Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA for Ap-pellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defen-danVAppellant.
    Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET.
   ROSEMARY LEDET, Judge.

hln this criminal case, the defendant, Gerald Biddy, Jr., appeals his conviction and sentence. For the reasons that follow, we affirm his conviction, but we remand to the district court for it to rule on Mr. Biddy’s outstanding motion to reconsider sentence.

STATEMENT OF THE CASE

On July 18, 2011, Gerald Biddy was charged by bill of information with one count of theft of over $1,500.00 in violation of La. R.S. UfflCBM)- On July 25, 2011, Mr. Biddy was arraigned and entered a plea of not guilty. At this time, the trial judge informed Mr. Biddy of his right to select either a jury trial or a bench trial. On September 14, 2011, the district court found probable cause to substantiate the charges and set the matter for trial. On October 18, 2011, Mr. Biddy filed a written notice of election of a bench trial. On March 19, 2012, the 1 gtrial was held. The minute entry states that after the trial court advised Mr. Biddy of his right to select a jury or a bench trial, Mr. Biddy selected a bench trial. The trial judge found Mr. Biddy guilty as charged and set the matter for sentencing.

On April 25, 2012, the trial judge sentenced Mr. Biddy to serve five years at hard labor with credit for time served. On that same date, Mr. Biddy filed an oral motion to reconsider the sentence. This appeal followed. The record on appeal reflects that Mr. Biddy’s motion to reconsider sentence remains outstanding.

STATEMENT OF THE FACTS

The theft charge arises from a construction contract, dated July 3, 2007, between Mr. Biddy and the victim, Rosemary Cold-man (the “Contract”). The Contract provided for Mr. Biddy to perform work on Ms. Coldman’s Hurricane Katrina-damaged home. Before entering into the Contract, Ms. Coldman met with Mr. Biddy to discuss the details and the prices that he would charge for performing the work. At the meeting, Mr. Biddy brought an illustration of the proposed construction for the property and a draw schedule. The draw schedule outlined the work to be performed and estimated the amount Mr. Biddy would be paid at various phases in construction. Shortly thereafter, on June 15, 2007, Ms. Coldman wrote Mr. Biddy a check for $500.00 as a retainer fee and for design and paperwork for the layout of the house.

On July 3, 2007, Ms. Coldman and Mr. Biddy entered into the Contract. Under the Contract, Mr. Biddy agreed to provide architectural and engineering plans, complete the foundation, build the shell (exterior) of the house, install plumbing, and paint the exterior of the house. The total price for the work was $83,880.00. The Contract provided that the work would begin on July 16, 2007, and be completed by October 16, 2007. On the day the Contract was executed, |sMs. Coldman wrote a second check to Mr. Biddy for $10,065.60 — for eighty percent of the work that was to be performed on the foundation.

On July 6, 2007, Ms. Coldman wrote two more checks to Mr. Biddy in the amounts of $2,400.00 (for the installation of ground plumbing) and $3,100.00 (for the balance owed for the architectural and engineering design plans). The total payments that Ms. Coldman made to Mr. Biddy, by the four checks, was $16,065.60.

On August 7, 2007, Ms. Coldman executed a document authorizing Mr. Biddy to act as her agent to obtain the necessary permits to construct her home while she was away on vacation. She testified that, to her knowledge, Mr. Biddy never obtained the requisite paperwork or permits. When Ms. Coldman returned from her vacation in mid-September 2007, she drove by her property and discovered that no work had been performed. Ms. Coldman took photographs of the condition of her property, which showed that the foundation slab remained on her property. Cin-derblocks were set out on her lot near the existing foundation. Ms. Coldman stated that she was expecting when she came back from vacation to find more than just cinderblocks on her property; indeed, she was expecting to see her house substantially completed.

Thereafter, Ms. Coldman attempted to contact Mr. Biddy by phone; however, he never answered her calls. Despite leaving several messages, Mr. Biddy never returned her calls. On October 16, 2007, after approximately three weeks of unre-turned messages, Ms. Coldman emailed Mr. Biddy. In her email, she requested that he return her money and any paperwork he obtained in her name from City Hall. She threatened to go to the district attorney’s office and to sue him for breach of contract. Two days later, Mr. Biddy responded to the email. In his l4response, he indicated that the delay in construction was due to ongoing negotiations with plumbers, a change order, and his knee surgery.

According to Ms. Coldman, a mutual acquaintance, “Mr. Landry”, ran into Mr. Biddy at a local restaurant, a Church’s Chicken. Mr. Landry arranged for a meeting at his house between Ms. Coleman and Mr. Biddy. Ms. Coldman testified that Mr. Biddy never showed up for the meeting.

On November 19, 2007, Ms. Coldman sent Mr. Biddy a registered letter, which stated:

Mr. Biddy Jr. I have been calling you since October 19, 2007 concerning my property. The last time we talked you needed a plumber to go cap off the water, I got one for you. He faxed you a price you never got back to him about doing the work. I have a copy of the fax he sent to you with a price, so I know he got back with you. Gerald at this point I just want my money back and receipt. I am trying not to take you to court, but if I have to I will. So would you please get in touch with me.? [sic] I waited two hours for you on 11-15, 2007 by Albert/s house. You didn’t show up like you promise.

Ms. Coldman testified that she did not receive a response to her registered letter. The letter apparently went to the wrong address and was returned. Ms. Coldman testified that she sent the letter to the New Orleans address where she first met Mr. Biddy because she believed that was where Mr. Biddy was staying. She acknowledged that Mr. Biddy provided her with a Georgia address.

On cross-examination, Ms. Coldman stated that before she executed the Contract, she met with Mr. Biddy and discussed the removal of the foundation on her property. She testified that Mr. Biddy had indicated that he wanted to put [scinderblocks on the existing foundation, but she wanted the foundation removed because it was already sinking. Ms. Cold-man admitted that the draw schedule she was shown in June 2007 did not have a line on it for foundation removal. She also admitted that the Contract did not provide for removal of the slab. Nonetheless, she testified that she believed the phrase “foundation completed” entailed its removal. Ms. Coldman stated that Mr. Biddy knew he had to remove the foundation to build her home and agreed to do so; otherwise, she would not have executed the contract. She admitted, however, that the contract did not specifically provide in writing that Mr. Biddy had to remove the slab. Ms. Coldman testified that at no point did she order Mr. Biddy to stop working. Ms. Coldman stated that she has since had the slab removed and entered into a contract with another contractor to rebuild her house for $106,000.00.

Ms. Coldman admitted that the Contract did not state that Mr. Biddy was to rebuild her house from the ground up; rather, it only provided for Mr. Biddy to complete the plans, the foundation, the frame, the plumbing, and the exterior. Ms. Coldman, however, explained that Mr. Biddy verbally agreed to rebuild her entire house. Ms. Coldman admitted that this agreement was not put into writing. She further explained that initially a man named Mr. Abbott was going to do the inside, but Mr. Biddy advised her that Mr. Abbott was too slow, “pushed him out of the |fideal[,] ... and said that he [Mr. Biddy] was going to do the whole thing, everything, inside and out.”

The parties stipulated that Matthew Mitchell, a defense witness who was subpoenaed but failed to appear at trial, would have testified to the following: that he worked for Mr. Biddy in 2007 and was hired to work on Ms. Coldman’s home; that he and Mr. Biddy cleared the lot of overgrown grass and cut down a tree on her property; that the plan was to use the foundation that was already on the property for the new construction; that Mr. Biddy purchased bricks/bloeks and had hired a man to work on the foundation; that the job was stopped after he and Mr. Biddy laid the blocks out for the foundation because of disagreement about the foundation; and that they then restacked the blocks on the property. Although the State agreed Mr. Mitchell would testify as to these facts, it did not stipulate as to the veracity of those statements.

Mr. Biddy testified that he was living in Atlanta, Georgia. He listed his prior employment as including: working for the United States Air Force in the civil engineering squad, working for the City of Houston dealing with code compliance and public utilities, working as a public building inspector for another city in Texas, and owning his own construction and trucking company. He stated that in 2006 he had worked construction in Louisiana for an affiliate of a Houston based company. Mr. Biddy testified that he was licensed as a contractor in Texas, but not in Louisiana.

Mr. Biddy testified that he obtained Ms. Coldman’s name through a referral. He subsequently met with her to see if he could help her rebuild her Hurricane Katrina-damaged home. He discovered that if her home was rebuilt on the existing foundation, it could be grandfathered in, and she would not be subject to the [ 7stricter post-Katrina building code requirements. During the course of these discussions Ms. Coldman paid him a $500.00 retainer fee. He denied agreeing to remove the slab on her property. He explained that it would have required adhering to the stricter building code requirements; thus, it would have caused the contract price to increase “two-fold.” Mr. Biddy noted that neither the draw schedule, nor the Contract provided for removal of the foundation.

Mr. Biddy also denied ever agreeing to rebuild Ms. Coldman’s entire home. Rather, he testified that he only agreed to do the five items listed in the Contract— prepare the architectural engineering plans, complete the foundation, do “top-out” plumbing, build the frame, and paint the exterior of the home. Mr. Biddy testified that he and Mr. Mitchell began working on the project by clearing the lot on two occasions. During that time, a change order was being negotiated. They subsequently put the cinderblocks out on the foundation in order to raise it to the three feet required with the intention of putting one foot of deck board on top. After they put the cinderblocks on the slab, Ms. Coldman informed him that she wanted the slab removed. Mr. Biddy stated this “add on” by Ms. Coldman caused them to stop working.

Mr. Biddy stated that the reason he did not complete the foundation was because he and Ms. Coldman had a dispute. Mr. Biddy testified that he met with Ms. Cold-man numerous times attempting to explain that pouring a new foundation would double the cost to build. He further testified that eventually she just “kind |sof fell off the radar.” Mr. Biddy said that Ms. Cold-man wanted him to “absorb almost twenty to forty thousand dollars’ worth of material and labor,” and he refused. As a result, he decided to “exercise” the “material breach of the contract” clause set forth in the Contract.

Mr. Biddy stated that he had given Ms. Coldman his Atlanta address and that he never received the November 2007 letter from Ms. Coldman because it was sent to a UPS store box in Atlanta. He testified that he was prepared to go forward with the construction until Ms. Coldman ordered him to stop. He further testified that he had hired several other individuals, in addition to Mr. Mitchell, to work on the project.

On cross-examination, Mr. Biddy admitted that by July 16, 2007, the date Mr. Biddy was supposed to begin work, he had obtained approximately $16,000.00 of Ms. Coldman’s money. He agreed that the photograph depicting the slab and cinder-blocks on Ms. Coldman’s property did not represent $16,000.00 worth of work. Mr. Biddy also agreed that he was supposed to complete the job by October 16, 2007, but had not done so.

Mr. Biddy admitted he was not a licensed contractor in Louisiana. He explained that he did not need a license if the job was below $75,000.00. Although the Contract with Ms. Coldman exceeded that amount, he explained that the Contract for him and his organization did not go above $75,000.00. He stated that he did not have the alleged change order with him in writing and did not bring the medical documents showing that his knee was injured during the Contract period. |9Mr. Biddy testified that he hired his own plumber for the project, but he admitted that no plumbing work had been done on her property despite receiving $2,400.00 for it.

According to Mr. Biddy, he attempted to resolve the dispute with Ms. Coldman over the project several times. Contrary to Ms. Coldman’s testimony, Mr. Biddy said that he did in fact meet with Ms. Coldman at Mr. Landry’s house. He testified that if Ms. Coldman wanted to dispute the issue, she should have exercised the arbitration clause provided in the Contract. Mr. Biddy stated that he would have participated in arbitration proceedings if they were initiated by Ms. Coldman, and he would have paid her money back if the arbitrator awarded it to her.

ERRORS PATENT

A review of the record for errors patent reveals that the district court failed to rule on Mr. Biddy’s motion to reconsider sentence. State v. James, 05-1468, p. 3 (La.App. 4 Cir. 10/4/06), 942 So.2d 569, 570. After the district court imposed a five year sentence, Mr. Biddy orally moved to reconsider the sentence. Defense counsel stated: “[f|or the record, Judge, I would ask that a Motion to Reconsider the Sentence be filed in the record.” The district court responded: “Okay. A Motion to Reconsider the Sentence is in the record.” The district court, however, did not rule on Mr. Biddy’s oral motion to reconsider; no written motion | inwas ever filed. See La. C.Cr.P. art. 881.1(B) (motion to reconsider shall be oral at the time of sentence or shall be in writing thereafter).

Appellate courts are authorized, by statute, to remand to the district court, when appropriate, for a ruling on an outstanding motion to reconsider sentence. See La.C.Cr.P. art. 881.4(C) (providing that “[i]f necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the district court with instructions to supplement the record or to hold an evidentiary hearing.”) Moreover, this court consistently has refused to consider sentencing issues on appeal when there is an outstanding motion to reconsider sentence. Accordingly, we are required to remand this case to the district court for it to rule on Mr. Biddy’s outstanding motion to reconsider sentence. This determination renders Mr. Biddy’s third assignment of error, challenging the excessiveness of his sentence, premature. See State v. Allen, 99-2579, p. 11 (La.App. 4 Cir. 1/24/01), 781 So.2d 88, 94. A trial court’s failure to determine a motion to reconsider sentence, however, does not preclude review of the conviction. State v. Foster, 02-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74.

U,DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

Mr. Biddy’s first assignment of error is that the evidence is insufficient to support his conviction. This Court in State v. Brown, 12-0626, pp. 6-8 (La.App. 4 Cir. 4/10/13), 115 So.3d 564, 570-71, set forth the standard for evaluating a sufficiency of the evidence claim as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from the Jackson reasonable doubt standard; rather, it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Id.

In the instant case, Mr. Biddy was charged and convicted of theft in violation of La. R.S. 14:67, which at the time of the offense provided:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

The State was required to prove the following essential elements beyond a reasonable doubt: (1) that the defendant misappropriated or took by means of fraudulent conduct, practices, or representations; (2) a thing of value; (3) that belonged to another; and (4) that the defendant had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Brown, 08-1434, p. 5 (La.App. 4 Cir. 3/18/09), 7 So.3d 1238, 1241 (citing State v. Pittman, 368 So.2d 708, 710 (La.1979)); La. R.S. 14:67(A). The State also was required to prove the value of the stolen property, which determines the severity of the theft and the punishment for a convicted offender. Brown, 08-1434 at pp. 5-6, 7 So.3d at 1241 (citing State v. Monterroso, 96-376, p. 5 (La.App. 5 Cir. 11/14/96), 685 So.2d 249, 251); La. R.S. 14:67(B).

113Theft is a crime of specific intent. Specific 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 may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact finder. State v. Graham, 420 So.2d 1126, 1128 (La.1982) (citation omitted).

On appeal, Mr. Biddy claims that the evidence is insufficient to support his conviction because the State failed to prove that he took money from Ms. Cold-man without her consent or by fraudulent conduct and that he intended to permanently deprive her of the funds Ms. Cold-man paid him. Mr. Biddy points out that he never misrepresented to Ms. Coldman that he was a licensed Louisiana contractor because his Texas license number was listed on the Contract. He further notes that the State did not present evidence to refute his testimony that “because the price for the actual residence, as opposed to the prep work, fees, did not exceed a designated amount, a contractor’s license was not required at the time.” To support this contention, Mr. Biddy cites State v. Greene, 09-2723 (La.1/19/11), 55 So.3d 775, which looked to evidence of the contractor’s fraudulent representation of his status as a licensed contractor as proof of his intent to defraud under La. R.S. 14:68, the lesser included offense of unauthorized use of a movable. Mr. Biddy contends that his testimony that he would have participated in arbitration and paid any judgment awarded shows that he did not intend to permanently deprive Ms. Coldman of the amount owed.

Theft under La. R.S. 14:67 is not limited to situations in which a defendant has the intent to defraud at the time he takes possession; it also includes a | ^defendant’s “misappropriation” by fraudulent conduct of what is already in his possession. State v. Frost, 11-1658, p. 8 (La.App. 4 Cir. 9/5/12), 99 So.3d 1075, 1079-80. “[A] defendant can form an intent to steal after taking possession of property through honest means.” Frost, 11-1658 at p. 9, 99 So.3d at 1080 (citing State v. Hayes, 01-3193, p. 7 (La.1/28/03), 837 So.2d 1195, 1199). “[T]he timing of a defendant’s intent to deprive permanently is inconsequential, and the inquiry into that intent should focus only on whether such an intent was actually formed.” Frost, 11-1658 at p. 10, 99 So.3d at 1081 (citing State v. Pellerin, 118 La. 547, 43 So. 159, 161 (1907)).

Thus, the fact that Mr. Biddy did not initially make misrepresentations to Ms. Coldman — as to his contractor status or otherwise — does not mean that he did not subsequently form an intent to misappropriate the money that she paid him. Moreover, Mr. Biddy’s suggestion that he “would have” attempted to fulfill the contract or to repay Ms. Coldman if she had initiated arbitration does not necessarily negate a finding of criminal intent because whether or not Mr. Biddy had the requisite intent is a question of fact that may be inferred from the circumstances. See Frost, 11-1658 at p. 9, 99 So.3d at 1080-81 (upholding theft conviction of a contractor despite that no misrepresentations were made by the contractor at the outset where his subsequent conduct, which included avoiding the victim, stopping work on the construction project, and failing to repay the victim, evidenced an intent to misappropriate the money he was paid).

In the present case, viewing all of the evidence in a light most favorable to the prosecution, a rational trier of fact could conclude that Mr. Biddy intended to permanently deprive Ms. Coldman of money in excess of $500.00 without her consent or by fraudulent means.

11sMs. Coldman’s testimony provides that she paid a total of $16,065.60 for Mr. Biddy to rebuild her home and that other than placing cinderblocks on top of her existing foundation, which she alleged was not part of their agreement, no work was performed on her property. Ms. Coldman also stated that she attempted to contact Mr. Biddy on several occasions regarding the lack of work being performed on her lot but had trouble getting in touch with Mr. Biddy. Ms. Coldman further testified that she did not tell Mr. Biddy to stop working on her home and that Mr. Biddy has made no attempt to reimburse her for the monies owed.

Mr. Biddy did not dispute at trial that he was paid over $16,000.00 to work on Ms. Coldman’s home. He admitted that he did not perform $16,000.00 worth of work on Ms. Coldman’s property; however, he claimed that in addition to placing the cinderblocks on the foundation, he removed debris and a tree from the lot. Ms. Coldman, on the other hand, stated that the tree remained on her property until 2010. The photograph of her property that the State introduced into evidence also reflected that Mr. Biddy did not clear the tree as it was visible in the photograph taken in September 2007.

Nonetheless, even assuming Mr. Biddy did perform some work on Ms. Coldman’s property, a trier of fact is not precluded from concluding that a defendant intended to permanently deprive the homeowner of her money because, as noted earlier, intent can be inferred from the circumstances. See State v. McMillian, 10-0812, pp. 7-8 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805-06 (upholding conviction of contractor for theft when the contractor, after receiving money from victim, completed only three substandard tasks and did not return to the job site to complete the work). The record reflects that Mr. Biddy was paid 11fi$10,065.60 for eighty percent of the work that was to be performed on the foundation, $2,400.00 for plumbing, and $3,600.00 (the initial $500.00 retainer plus the $3,100.00 balance) for the architectural and engineering design plans, and that none of these tasks were completed. Thus, despite the testimony indicating that Mr. Biddy may have performed some work, which is contested by Ms. Coldman, Mr. Biddy failed to complete the work for which he was compensated.

Moreover, the fact that Mr. Biddy demanded and accepted payment from Ms. Coldman for the construction of her home and that Mr. Biddy did not use the money for that purpose also supports a finding that Mr. Biddy misappropriated the money without Ms. Coldman’s consent, by fraudulent representations, or both. See Frost, 11-1658 at p. 9, 99 So.3d at 1080-81; State v. Johnson, 11-1513, p. 6 (La.App. 4 Cir. 9/5/12), 99 So.3d 1057, 1061 (evidence was sufficient to convict a contractor of theft where the contractor accepted a large sum of money, only laid the foundation of the property, used a portion of the funds to keep his business operational, and failed to repay the victim the funds she paid him).

Mr. Biddy, however, insisted in his testimony that the reason he did not complete the construction project was because he and Ms. Coldman had a dispute concerning the removal of the slab and because she ordered him to stop working. He stated that he attempted to resolve this issue. To do so, he met with Ms. Coldman several times and tried to explain to her that more funds were necessary to pour a new foundation on her property. Mr. Biddy further testified that if Ms. Coldman would have availed herself of the arbitration clause in the Contract, he 117would have participated and paid any judgment awarded to her. Mr. Biddy’s testimony thus conflicts with Ms. Coldman’s testimony regarding what transpired between them.

Conflicting statements as to factual matters relate to the weight, not the sufficiency, of the evidence. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th Cir.1989). Such factual determinations rest solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984) (citations omitted); State v. James, 09-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996 (citation omitted).

In this case, the Contract provided for Mr. Biddy to complete the foundation, but it did not specifically state what completion of the foundation meant. Thus, whether the parties agreed for Mr. Biddy to simply build on top of the existing foundation or to pour a new slab was a question of fact based on the credibility of the witnesses. Ms. Coldman testified that she had discussed with Mr. Biddy that she wanted her old foundation removed because it was sinking and that Mr. Biddy had agreed to do so. She also testified that she would not have executed the Contract otherwise. Mr. Biddy, however, stated that the plan was to use the existing foundation to avoid having to comply with the stricter building code requirements and to keep the price of the Contract down. The district court apparently believed Ms. Coldman’s testimony over that of Mr. Biddy.

11sThe district court also heard Ms. Cold-man’s and Mr. Biddy’s testimony concerning their communication during the contractual period and their efforts to work out the payment and slab issues. As noted earlier, Ms. Coldman testified that she made repeated requests for a refund and that Mr. Biddy never attempted to reimburse her. She also stated that Mr. Biddy refused to return her phone calls. Other than an email dated October 18, 2007, Mr. Biddy avoided contact with Ms. Coldman. On the other hand, Mr. Biddy testified that he met with Ms. Coldman at the home of a mutual acquaintance, Mr. Landry. Mr. Biddy also stated that he had attempted to resolve the slab dispute on numerous occasions and would have repaid Ms. Cold-man had she successfully pursued arbitration. The district court, again, as it is entitled to do as the trier of fact, chose to accept Ms. Coldman’s testimony and to reject Mr. Biddy’s hypothesis of innocence.

A review of the evidence and testimony does not suggest that the district judge’s decision to convict Mr. Biddy was contrary to the evidence. The record establishes that Ms. Coldman paid Mr. Biddy $16,065.60 to perform work on her home that was never completed. There is also evidence in the record that Mr. Biddy avoided contact with Ms. Coldman, ceased working on her house, and made no attempt to reimburse Ms. Coldman the funds she paid him. A rational trier of fact could infer — based on Mr. Biddy’s actions and the surrounding circumstances— that Mr. Biddy intended to permanently deprive Ms. Coldman of the money owed to her in excess of $500.00. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Mr. Biddy claims in his second assignment of error that the record does not reflect that he made a knowing and intelligent waiver of his right to trial by jury.

119Both the United States Constitution and the Louisiana Constitution guarantee an accused the right to a jury trial. U.S. Const, amend. VI; La. Const, art. I, § 17. If the punishment that may be imposed on a defendant exceeds six months confinement, the Louisiana Constitution provides that the defendant shall be tried by a jury; however, in non-capital cases “a defendant may knowingly and intelligently waive his right to a trial by jury.” La. Const, art. I, § 17. The method for making the selection is set forth in La.C.Cr.P. art. 780, which provides:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to commencement of trial.

| ?,nThe waiver of the right to a jury trial cannot be presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976); State v. Santee, 02-0693, p. 3 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, 534 (citation omitted). A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La.1983); Santee, 02-0693 at p. 3, 834 So.2d at 534. Although the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, the determination does not require a Boykin-like colloquy. Santee, 02-0693 at p. 3, 834 So.2d at 535 (citation omitted).

The Louisiana Supreme Court and this court have recognized that while the preferred method is for the district court to advise a defendant of his right to trial by jury in open court before obtaining a waiver, that preferred practice is not statutorily required. State v. Pierre, 02-2665, p. 1 (La.3/28/03), 842 So.2d 321, 322; State v. Richardson, 575 So.2d 421, 424 (La.App. 4th Cir.1991). Likewise, it is preferred, but not necessary, for the defendant to waive his or her right to jury trial personally. Pierre, 02-2665 at p. 1, 842 So.2d at 322; State v. Wolfe, 98-0345, pp. 6-7 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, 1097. The jurisprudence has recognized that a knowing and intelligent waiver of a defendant’s right to a jury trial can be made even if the preferred practice of obtaining such a waiver is not followed.

The Louisiana Supreme Court in State v. Phillips, 365 So.2d 1304, 1309 (La.1978), upheld a waiver by defense counsel when the defendant was present in |g1 court and failed to object when defense counsel made the waiver. Similarly, this Court in both Santee, 02-0693 at p. 4, 834 So.2d at 534-35, and Wolfe, 98-0345 at pp. 6-7, 738 So.2d at 1097-98, held that a defendant’s failure to object when his counsel informed the court that a bench trial had been chosen is to be construed against the defendant in determining the validity of the waiver made while he was present in court. See State v. Peters, 10-0326, p. 9 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, 678, writ denied, 11-0494 (La.9/30/11), 71 So.3d 279.

In the instant case, the record reflects that Mr. Biddy was represented by counsel and that he was advised of the right to jury or bench trial at his arraignment. Mr. Biddy was also informed at the preliminary hearing that he had “the right to select his method of trial” and that he should “select a Judge or Jury Trial” forty-five days prior to the trial date. The transcript of the hearing reflects that defense counsel conferred with Mr. Biddy, and defense counsel then advised the district court that .the selection would be made at a later date. Subsequently, on October 13, 2011, defense counsel filed a “Notice of Election of Bench Trial,” which specifically stated that Mr. Biddy “waive[d] his right to trial by jury in this matter and elect[ed] to proceed to trial before the Court alone.” The discussion noted in the preliminary hearing transcript and the subsequently filed notice suggests that defense counsel had conferred with Mr. Biddy at length about the waiver before electing a bench trial. Additionally, on the morning of trial, the trial judge asked defense counsel “[n]ow, this gentleman has chosen a Judge Trial, is that right?” Defense counsel replied: ‘Tes, sir.” Mr. Biddy was present when defense counsel confirmed that Mr. Biddy had selected a bench trial, and Mr. Biddy made no objection to his counsel’s statement. As in the Wolfe and San tee cases, Mr. Biddy’s failure to object to defense counsel’s waiver is construed |22against him. The trial transcript also reveals that Mr. Biddy testified in his own defense, was alert, and was able to answer the attorneys’ questions. The record thus reflects that Mr. Biddy understood the proceedings and the issue of waiving his rights.

Although Mr. Biddy did not personally waive his right to jury trial in open court, which is the preferred practice under the Louisiana jurisprudence, the record establishes that he knowingly and intelligently waived his right to a jury trial. As discussed above, our finding that Mr. Biddy made a knowing and intelligent waiver is established by the following facts: the written notice waiving the jury that was filed by defense counsel after conferring with Mr. Biddy, defense counsel’s confirmation of Mr. Biddy’s request for judge trial, Mr. Biddy’s silence after defense counsel’s statement, and Mr. Biddy’s understanding and awareness of the proceedings. See Denson, 11-0517 at p. 8, 83 So.3d at 1189 (finding that the defendant knowingly and intelligently waived his right to trial by jury where the defendant’s counsel affirmed that defendant had chosen a judge trial, and the defendant did not object at that time or on the day of trial). Accordingly, Mr. Biddy’s second assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

In his final assignment of error, Mr. Biddy argues that the district court imposed an excessive sentence and failed to provide adequate reasons for imposing the sentence. As noted, given the record indicates that the district court failed to rule on Mr. Biddy’s motion to reconsider sentence, a review of this issue is premature. See Allen, 99-2579 at p. 1011, 781 So.2d at 94.

DECREE

| güFor the foregoing reasons, the defendant’s conviction is affirmed. This case, is remanded to the district court for a ruling on the defendant’s outstanding motion to reconsider sentence. The defendant’s right to appeal the district court’s ruling on his motion to reconsider sentence and his sentence are reserved.

CONVICTION AFFIRMED, REMANDED WITH INSTRUCTIONS.

      . The bill of information originally stated that August 7, 2007, was the date of the theft. On March 19, 2012, the bill was amended to state that the theft occurred during the period of June 5, 2007, through November 15, 2007. Although the bill charged Mr. Biddy with theft of over $1,500.00, at the time that Mr. Biddy committed the alleged theft, La. R.S. 14:67(B)(1) provided for theft of property valued over $500.00, and there was no separate category for theft over $1,500.00. Nonetheless, we find this error harmless given the charged amount exceeds $500.00 and given the trial court sentenced Mr. Biddy within the sentencing guidelines required by the statute at the time of the offense (the maximum sentence for both theft of $1,500.00 under the current statute and for theft of $500.00 under the 2007 statute is ten years).

      . According to Ms. Coldman, the "change order” mentioned in Mr. Biddy's email was in reference to the fact that her water had to be cut off from the city’s water by a plumber before Mr. Biddy could install any plumbing. She testified that Mr. Biddy never contacted the plumber that she hired for the job.

      . Albert Landry is the individual who apparently introduced Mr. Biddy and Ms. Coldman.

      . The State introduced the following exhibits into evidence: the Contract; the June 2007 draw schedule; the four checks Ms. Coldman wrote to Mr. Biddy; the document authorizing Mr. Biddy to act as Ms. Coldman’s agent; two photographs Ms. Coldman took of the property in September of 2007; the October 2007 emails; the November 19, 2007 letter; and Ms. Coldman's receipt for $1,600.00 for slab removal.

      . Ms. Coldman testified that she only had one tree on her lot, which remained on her lot until approximately 2010, and that Mr. Biddy never removed the tree.

      . Mr. Biddy stated that the photographs, which the State introduced into evidence, were taken after he removed the blocks off the slab so he could do the change order.

      .Mr. Biddy stated that he also hired James Jefferson, a masonry contractor; Darryl Coleman, a commercial landscaper; Jeffery Matthews, who assisted with the design and engineering aspect; and others he brought in from Alabama to help him work on Ms. Cold-man’s home.

      . The defense introduced into evidence the construction contract that Ms. Coldman entered into in 2009 for $106,000; the October 2007 email exchange between Ms. Coldman and Mr. Biddy; and the stipulation.

      . The State claims in its brief that the trial court denied Mr. Biddy’s oral motion to reconsider; however, neither the transcript nor the minute entries reflect that such a ruling was made.

      . See State v. Davis, 00-0275, pp. 10-11 (La.App. 4 Cir. 2/14/01), 781 So.2d 633, 640 (issue of excessive sentence not properly before the court of appeal where district court did not rule on the defendant’s motion to reconsider sentence); State v. Foster, 02-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74 (it is procedurally incorrect to review a defendant’s sentence prior to the district court's ruling on a motion to reconsider sentence); State v. Allen, 99-2579, p. 12 (La.App. 4 Cir. 1/24/01), 781 So.2d 88, 95 (issue of excessive sentence not considered or addressed where district court did not rule on the defendant’s motion to reconsider sentence); State v. Ferrand, 03-1746, p. 3 (La.App. 4 Cir. 1/14/04), 866 So.2d 322, 324; State v. Hailey, 02-1738, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, 566; see also State v. Bolden, 03-266, p. 22 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050, 1064-65; State v. Sanders, 618 So.2d 904, 905 (La.App. 1st Cir.1993).

      . See State v. Sparkman, 08-0472, pp. 6-7 (La.App. 4 Cir. 1/28/09), 5 So.3d 891, 895 (noting that the Jackson standard is legislatively embodied in La.C.Cr.P. art. 821(B), which provides that a "post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.”)

      . Mr. Biddy states in his brief that he had no notice that the dispute with Ms. Coldman could result in a criminal action; however, the record reflects that Ms. Coldman notified Mr. Biddy of her intention to bring the matter to the district attorney’s office.

      . The Louisiana Legislature in 2013, subsequent to the trial in this case, amended La. C.Cr.P. art. 780; as amended, Article 780 provides:
      A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
      B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel.
      C. The defendant may withdraw a waiver of trial by jury unless the court finds that withdrawal of the waiver would result in interference with the administration of justice, unnecessary delay, unnecessary inconvenience to witnesses, or prejudice to the state. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
      D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.

      . See State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Denson, 11-0517, p. 7 (La.App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-89, writ denied, 12-0391 (La.6/22/12), 91 So.3d 967; State v. Bryant, 06-1154, p. 7 (La.App. 4 Cir. 1/10/07), 950 So.2d 37, 41 (noting that both the Supreme Court and this Court have rejected an absolute rule that would require the trial judge to personally inform a defendant of his right to a jury trial).