author: MOORE, J.

text:
    Bruce Lee ANDERSON, Plaintiff-Appellee v. Claudeidra HOUSTON, Defendant-Appellant.
    No. 44,766-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Keisha Jones-Joseph, for Appellant.
    Kammer & Huckabay, Ltd. by Charles H. Kammer, III, Shreveport, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

_JjThe mother, Claudeidra Houston McNeal, appeals a judgment that, inter alia, dismissed her rule to relocate the parties’ four-year-old son, Justen, to her new home in Birmingham, Alabama, and modified the visitation schedule at the request of the father, Bruce Anderson. We affirm.

Procedural Background

Claudeidra and Bruce were never married, but Justen was born in February 2004. The record does not disclose who exercised primary custody during Justen’s first months, but Bruce filed a petition for custody in August 2005, alleging that he “has had custody and has custody of the child on a regular basis.” The parties entered a stipulated judgment of joint custody that split their time 50-50.

In May 2007, Bruce filed a rule to prevent Claudeidra from moving out of state with Justen. He alleged that she was threatening to move to Alabama to be with a man she met on the Internet, but needed court authorization under La. R.S. 9:355.10 to take the child. After a hearing in June 2007, the court prohibited either parent from relocating Justen out of state or over 150 miles away in state.

Less than three weeks later, Claudeidra filed a motion to amend the custody order and for authorization to move the child out of state. She alleged that she had a July 21 wedding date with a man in Birmingham, a nice job as a teacher there, and it would be in Justen’s best interest to come to Alabama with her. Bruce opposed this. After a hearing in April 2008, the court denied Claudeidra’s motion to relocate Justen; maintained joint |2custody but named Bruce the domiciliary parent; issued a joint custody plan giving Claudei-dra alternating weekends and other specified visitation; ordered Claudeidra to pay $250 a month child support, and to pay past due support of $4,146 within 90 days; and alternated the income tax dependency claim. Claudeidra did not appeal this judgment; the court later stated that it was final.

Apparently because of the six-hour drive from Birmingham to Shreveport, and because of Claudeidra’s school schedule, there were some miscues in visitation. On two occasions, she was late coming to pick up Justen, and once she kept him for an extra day that was a school holiday for her, but not for the child. She was also late with child support, making no monthly payments until August, and no payments at all on the arrears. Bruce filed a rule for contempt and to modify visitation; this was scheduled for hearing on September 3, 2008.

Two weeks before the hearing, Claudei-dra filed the instant rule for contempt and to relocate the child. She alleged that Bruce was interfering with her visitation and refusing to foster a relationship between Justen and her relatives, who still lived in Shreveport. She reiterated that moving Justen to Birmingham would be to his “financial, educational and emotional benefit.” Her rule was also set for September B, 2008. Bruce responded with an exception of res judicata, urging that Clau-deidra had agreed to the relocation rule and could not now contest it.

Is At the hearing on September 3, the district court began by telling Bruce’s counsel, “I assume we are going to have a trial, * * * and we’re only trying your rule, is that correct?” Bruce’s counsel replied, “That is correct,” and Claudeidra’s counsel echoed, “That is correct.”

The parties and several of Claudeidra’s relatives gave detailed accounts of every visitation exchange that had occurred since the April 2008 judgment. Bruce’s counsel ultimately waived contempt for the weekend visitation problems (“I just want it straight for the future”); however, he maintained his claim for contempt with respect to unpaid child support. Claudei-dra’s description of her financial situation was somewhat evasive; the court frequently told her to “quit mumbling.”

Action of the District Court

At the close of evidence, the court orally held Claudeidra in contempt for failing to pay child support as previously ordered; it sentenced her to 45 days in jail, but suspended this for 60 days, giving her additional time to pay. The court found no contempt for the weekend visitation problems, but sternly ordered both parties that exchanges were to occur promptly at 6 pm Friday and Sunday, and that any extended visits must fit Justen’s school calendar, not the parents’. Finally, the court designated three of Claudeidra’s relatives to pick up and return Justen from weekend visits.

The written judgment incorporated all these rulings, adding explicitly that Clau-deidra’s rule for contempt and to relocate was dismissed.

From this judgment Claudeidra has appealed, raising two assignments of error.

| ¿Discussion

By her first assignment of error, Claudeidra urges the court erred in dismissing her rule for contempt and to relocate the minor child. She contends, without elaboration, that her 14th Amendment due process rights were violated when the court dismissed her rule without any motion to dismiss being filed or made in court. She concedes that under La. C.C.P. art. 1672, the court may grant an involuntary dismissal at the close of the plaintiffs case, on the defendant’s motion, but asserts that Bruce made no such motion either in writing or orally. She further contends that the court held no hearing on her motion and gave no reasons for dismissal, thus further undermining its action.

Bruce responds that the parties held an “extensive pretrial conference” before trial on September 3, 2008, in which both attorneys agreed to try only Bruce’s rule. He specifically cites the colloquy at the beginning of the hearing, in which Claudeidra’s counsel agreed to this. He concludes that because of the agreement reached in pretrial conference and corroborated at the hearing, this issue is moot.

A judicial confession is a declaration made by a party in a judicial proceeding. It constitutes full proof against the party who made it, is indivisible, and may be revoked only on the ground of error of law. La. C.C. art. 1853; Cichirillo v. Avondale Indus. Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Cash Point Plantation Equestrian Center Inc. v. Shelton, 40,647 (La.App. 2 Cir. 1/25/06), 920 So.2d 974. A declaration made by a party’s attorney or mandatary has the same effect as one made by the party 15himself. La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine Plaza Inc., 2003-1003 (La.12/3/03), 861 So.2d 156. The attorney’s response -to questioning by the court may also constitute a judicial confession. Cichirillo v. Avondale Indus. Inc., supra.

The instant transcript clearly shows an agreement to try Bruce’s rule only. Apparently referring to a pretrial agreement, the court stated to Bruce’s counsel, “I assume we are going to have a trial, * * * and we’re only trying your rule, is that correct?” Bruce’s counsel agreed; critically, Claudeidra’s counsel confirmed, “That is correct.” This colloquy plainly waived the trial of her rule for contempt and to relocate the child on that date. Cichirillo v. Avondale Indus. Inc., supra. We also note, with Bruce, that the ultimate dismissal of her rule was without prejudice, leaving open the possibility of future action on the same claims. La. C.C.P. art. 1673.

This assignment of error lacks merit.

By her second assignment of error, Claudeidra urges the court erred in modifying the stipulated joint custody plan without hearing evidence under La. C.C. art. 134. She contends that a party seeking to modify a stipulated judgment of custody must prove a material change of circumstances and that the proposed modification is in the child’s best interest. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Poole v. Poole, 41,220 (La.App. 2 Cir. 3/22/06), 926 So.2d 60. She contends that the judgment of September 3, 2008, made “a restrictive modification of visitation” without any evidence establishing a change in circumstances | ^materially affecting Justen’s welfare. She summarizes the evidence, submitting that “all the facts about Appellant” show no change between the stipulated judgment of April 2008 and the hearing on September 3, 2008. She concludes that the judgment should be reversed and the matter remanded for a trial on custody and relocation.

Bruce responds that the court did in fact receive evidence about the problems that arose after the original joint custody plan was implemented, and ordered four modifications; three of these clarified the prior order, and the remaining one assisted her in effectuating visits. He submits that if Claudeidra will adhere to the changes, they will benefit Justen.

As noted above, at the hearing on September 3, 2008, the parties agreed to try only Bruce’s rule for contempt and to modify visitation. Because of this agreement, the district court properly confined the trial to those two issues. Contrary to Claudeidra’s contention, the court committed absolutely no error in failing to analyze the evidence in the light of La. C.C. art. 134 or the jurisprudence regarding change of custody.

A modification of visitation rights is not as substantial as a change of actual physical custody, so a showing that the modification is in the child’s best interest is sufficient. Adams v. Adams, 39,424 (La.App. 2 Cir. 4/6/05), 899 So.2d 726; Bradford v. Bradford, 30,128 (La.App. 2 Cir. 12/23/97), 704 So.2d 440, and citations therein.

The prior joint custody plan expressed Claudeidra’s weekend visitation as follows:

Every other weekend from Friday until Sunday. If there is an extended weekend, in which the mother is off on a Friday 17or Monday, Claudeidra Houston may exercise one of her weekend visitations on such extended weekend. She must give him ten (10) days notice on any extended weekend she intends to exercise.

After hearing extensive testimony about problems with visitation, the court modified the plan to provide:

(a) Claudeidra Houston McNeal shall have visitation every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.
(b) Any holiday or extended weekend shall be determined by the annual calendar published by the school district where the minor child attends school.
(c) Within 24 hours of Claudeidra Houston McNeal’s visitation, she shall notify Bruce Lee Anderson of who is picking up the minor child and where the minor child is staying during the visitation period. The following individuals may pick up the minor child for the transportation during the exchanges: * * *.
(d) If the maternal grandmother, Peggy Houston, exercises visitation during Claudeidra Houston McNeal’s first eligible weekend of the month pursuant to the joint custody plan, then Claudeidra Houston McNeal shall not be entitled to exercise any further visitation that month. If Clau-deidra Houston McNeal exercises visitation during her first eligible weekend of the month, Peggy Houston may exercise Claudeidra Houston McNeal’s next weekend visitation.

These modifications retain the spirit of the original visitation schedule while providing definite times for the exchanges and addressing the problems that had arisen under the original plan. The record fully supports the district court’s finding that changes were warranted and in Justen’s best interest, as well as the specific changes ordered in the judgment. This assignment lacks merit.

| ¡¡Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Claudeidra Houston McNeal.

AFFIRMED.

      . The minutes state that this was by the parties’ agreement, but the judgment recites “by the law and evidence.”

      . The past due amount apparently arose from a separate enforcement action filed by DSS under La. R.S. 46:236.1.2, and not part of the instant record.

      . One day after the hearing, Claudeidra filed another rule for contempt and to change custody of the minor child, implicitly acknowledging that the dismissal was without prejudice.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Dorothy POLLOCK, et al., Plaintiffs-Appellees v. TALCO MIDSTREAM ASSETS, LTD., A subsidiary of Winchester Energy Company, Ltd., Defendant-Appellant.
    No. 44,629-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Kevin W. Hammond, for Appellant.
    Thomas A. Wilson, Jr., Bossier City, for Appellees.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

11 Following a default judgment, defendant moved for a new trial on the ground that its failure to answer the suit resulted from communications with plaintiffs’ counsel. The parties had exchanged communications in an effort to settle the matter after the filing of the petition. Ruling on the motion for new trial, the trial court found it procedurally improper as an attempt to annul the judgment for an “ill practice” under Article 2004 of the Code of Civil Procedure. The court determined that the plaintiffs could only raise their claims to set aside the judgment through the separate action of nullity. Defendant appealed the trial court’s ruling, and for the following reasons, we reverse and remand the matter for a hearing on the motion for new trial.

Facts

An unsettled dispute between landowner, Dorothy B. Pollock (“Pollock”), and Talco Midstream Assets, Ltd. (“Talco”) over a natural gas pipeline precipitated Pollock and her family members to file suit on April 19, 2007. Pollock sought damages for the cost of the removal of the pipeline, restoration of the surface, and other damages arising out of its installation. Upon notice of the suit, Talco’s senior vice-president contacted Pollock’s attorney to request an extension of time to file an answer and facilitate further negotiations and possibly settlement. In response, Tal-co received written assurances, in the form of two letters, dated May 2, 2007, and May 14, 2007, from Pollock’s counsel, that no default judgment would be taken without first giving Talco a 10-day written notice of such action.

12Months later on October 19, 2007, Pollock’s counsel sent Talco’s senior vice-president a letter advising: “This matter has not been resolved. Please file your answer at this time.” Pollock contends that the October 19 letter was meant to be a termination of the previous extension of time afforded Talco. Conversely, Talco asserts that it believed counsel’s letter to simply be an informal request to orchestrate a resolution, not a notice that Pollock was recommencing the previously instituted suit. Talco asserts that two of its representatives met with Pollock’s counsel following the October 19 letter and that additional proposals were made. These allegations are disputed by Pollock. Talco also sent the following letter to Pollock’s attorney on October 26, 2007, which it deemed an “answer” to the October 19 letter:

We do agree to come back and repair the water line one more time and reissue draft or a check for bonus as agreed between the landowner and Right-Of-Way agent. Please advise if this is acceptable.

On December 3, 2007, Pollock caused a preliminary default to be entered. On September 22, 2008, a default judgment was confirmed. On September 30, 2008, the judgment was rendered against Talco in the amount of $201,900.00, plus interest. On October 9, 2008, notice of judgment was served on Talco.

On October 15, 2008, Talco filed a motion for new trial based on the circumstances under which the default judgment was obtained. Talco argues that it never received the 10-day notice promised by Pollock’s counsel and that the October 19, 2007, letter was insufficient to constitute such notice.

|sOn December 28, 2008, the trial court, without hearing any testimony or reviewing the above mentioned letters, denied Talco’s motion for new trial. The court observed that Talco’s motion facially alleged an “ill practice” on the part of Pollock’s counsel in obtaining the default judgment. Nevertheless, after a thorough review of the jurisprudence regarding annulment of judgments, the trial court reluctantly ruled that such an attack must be made in the separate action of nullity and not through a motion for new trial. The trial court stated:

And I have located that other Fourth Circuit Case, it’s Gazebo v. City of New Orleans [97-2769 (La.App. 4th Cir.3/23/98), 710 So.2d 354] by Judge Plotkin with Judges Walser [sic] and Armstrong on the panel, a more recently [sic] 1998 case, and he points out that the Fourth Circuit has come full circle on the issue and while we personally would agree with the Fourth Circuit in the Gazebo case, that’s of no moment.
The Louisiana Supreme Court and the Second Circuit have decided differently and we are bound by those cases so the motion for a new trial will be denied on that basis.

Talco has appealed the trial court’s ruling denying the motion for new trial.

Discussion

Talco’s assertion for nullity of the judgment in this case concerns the issue of its notice to proceed for answering the lawsuit, after the immediacy of the initial citation to appear and answer was dissipated by the subsequent communications and exchanges between the parties. This type of claim for nullity has been recognized in the jurisprudence as falling under the “fraud or ill practices” provision of Article 2004 of the Code of Civil Procedure | ^hereinafter the “Code”). In Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1988), our supreme court addressed a similar default judgment situation involving the exchange of communications between the plaintiffs counsel and the defendant before the defendant had answered the suit or otherwise made an appearance in the case. The issue was raised in an action of nullity after the default judgment had become final. The court observed that Article 2004 “is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Id. at 1070. The court found that the defendant had been deprived of the legal right of notice through the miscommunications of the parties. Even though unintentional acts on the part of plaintiffs counsel had occurred, an “ill practice” concerning the notice to the defendant was recognized, resulting in the annulment of the default judgment.

Here, the substance of Talco’s claim of “ill practice” or lack of notice was never reached by the trial court. Instead, the trial court’s ruling dismissed outright Tal-co’s motion for new trial to address the “ill practice,” finding the motion procedurally improper under the jurisprudence for the assertion of the nullity of the default judgment. The court determined that |flthe asserted grounds for nullity of the judgment must be raised in a separate action. While the trial court’s ruling has support in certain jurisprudential pronouncements stemming from an official comment under Article 2004, as reviewed below, the Code itself contains “no specific provision” regarding the manner for asserting the grounds for nullity set forth in Articles 2001, et seq. Official Comment (d), La. C.C.P. art. 2004.

The articles pertaining to annulment of judgments are in the chapter of the Code entitled the “Action of Nullity” which lists certain peremptory grounds for nullification under Article 2002 and a general category for annulment for “fraud or ill practices” under Article 2004. The Code distinguishes between the two categories concerning the time limits for the assertion of nullity. The peremptory grounds can be asserted at any time, Rwhile the annulment of a judgment obtained by fraud or ill practices must be sought within one year of the discovery of the fraud or ill practices. La. C.C.P. arts. 2002 and 2004.

There is no codal directive expressly requiring that the grounds for annulment of a judgment may only be asserted in the separate ordinary action called the action of nullity. While Articles 2002 and 2004 speak only in terms of bringing “an action to annul,” the jurisprudence recognizes that the peremptory grounds for nullity of a judgment listed in Article 2002(A) may be asserted (i) through the motion for new trial or appeal, directly in the same action in which the flawed judgment was rendered, State, Dep’t of Social Services, Office of Family Support v. Pickins, 42,721 (La.App. 2d Cir.12/5/07), 972 So.2d 1225; Rando v. Rando, 31,366 (La.App. 2d Cir.12/9/98), 722 So.2d 1165, (ii) collaterally or indirectly, in another action, Miles v. Our Lady of the Lake Regional Medical Center, 01-2272 (La.App. 1st Cir.10/2/02), 836 So.2d 136; Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096 (La.App. 3d Cir.3/28/01), 781 So.2d 1282; Key v. Jones, 181 So. 631 (La.App. 2d Cir.1938), or (iii) in the separate action of nullity allowed by Articles 2001, et seq. Thus, for example, since the peremptory ground of the lack of service of citation may be asserted against a judgment at any time and in any stage of a proceeding, the judgment against the defendant in a default judgment setting can undoubtedly be assailed in a motion for new trial to set aside the default judgment for lack of citation.

17The allowance for the assertion of nullity of a judgment for “fraud or ill practices” under Article 2004 is different. The official comment (d) to Article 2004 discusses attempts to assert a fraud or ill practice for nullification of a judgment in a collateral action, as follows:

No specific provision has been made regarding the manner of asserting the grounds of nullity in the above article. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. Bruno v. Oviatt, 48 La. Ann. 471, 19 So. 464 (1896); Caldwell v. Caldwell, 164 La. 458, 114 So. 96 (1927).

The cases cited in the comment involved attacks on the integrity of judgments in subsequent actions in which the prior judgments were asserted. This is the common understanding of a collateral attack on a judgment, in that it occurs in an action other than the action in which the judgment was rendered. Salles v. Salles, 04-1449 (La.App. 1st Cir.12/2/05), 928 So.2d 1; Reeves v. Reeves, 209 So.2d 554 (La.App. 2d Cir.1968); Black’s Law Dictionary 278 (8th ed.2004). Thus, the Fourth Circuit Court of Appeal was correct in its observation concerning the above comment to Article 2004, as noted in Zatzkis v. Zatzkis, 632 So.2d 307, 316 n. 5, (La.App. 4th Cir.1993), writs denied, 94-0157 (La.6/24/94), 640 So.2d 1340 and 94-0993 (La.6/24/94), 640 So.2d 1341:

The limitation envisioned by LSA-C.C.P. art. 2004 Comment (d) was one which prevents the nullity from being asserted in a totally unrelated proceeding, i.e., a collateral proceeding — not a prohibition against raising it in the very same proceeding in which it was rendered, which is arguably the best place to raise it.

Of further significance, the Code itself envisions in the provisions regarding the motion for new trial that a specific “fraud” on the court may 18be proven through such motion so that the judgment just rendered in a jury action may be set aside. Article 1972 provides, in pertinent part, as follows:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

La. C.C.P. art. 1972(3).

Indeed, the best explanation to avoid any misconstruction of the disputed official comment of the redactors is by consideration of the entire framework of the Code. Before a judgment becomes final within the action in which it has arisen, all procedures to reverse, as opposed to nullify, that judgment remain viable to the parties and are not withdrawn by the Code’s inclusion of the separate chapter for the action of nullity. In that sense, it is arguably a misnomer to say that a trial court “nullifies” its judgment by granting a motion for new trial. The judgment was never final; it is held in abeyance pending further action through the new trial procedure; and then it is reconsidered and decided anew by the trial court. Likewise, if the record on appeal of a case reveals on its face a flaw which would otherwise support the “action of nullity,” the appellate court simply reverses the judgment that never became final preventing altogether the need for annulment through the “action of nullity” addressed in Articles 2001, et seq. With the chapter of the Code at issue before us dealing only with the “Action of Nullity,” that action has no application during the pendency of any case before the resolution of that case through rendition of a final judgment. Before the finality of a judgment, the parties may utilize all other modes of procedure |9which the Code affords for an action, including the motion for new trial and appeal, to assert the flaws in the judgment and seek its modification or reversal.

Finally, we additionally find that judicial economy and the possibility of irreparable harm to the defendant require that the alleged grounds for nullification be considered through a motion for new trial. Assuming a judgment is tainted by fraud, or even by an unintentional act depriving the defendant of notice as alleged in this case, that judgment may well become exigible during the pendency of the ordinary delays for the action of nullity, leading to judicial action for the same claim in multiple settings and to the seizure of defendant’s assets for satisfaction of the tainted judgment. If the defendant is alerted to the problem in time to file a motion for new trial and present the evidence of the “fraud or ill practice,” judicial economy is realized and potential harm averted.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed and the case remanded for consideration of appellant’s motion for new trial. Costs of appeal are assessed equally to the parties.

REVERSED AND REMANDED.

      . La. C.C.P. art. 2004. Annulment for vices of substance; peremption of action.
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

      . The trial court's ruling referred to statements made in various cases including Viso v. Favie, 502 So.2d 1130 (La.App. 4th Cir.1987), writ denied, 503 So.2d 465 (La.1987); State v. Minniefield, 467 So.2d 1198 (La.App. 2d Cir.1985); and Nethken v. Nethken, 307 So.2d 563 (La.1975). For example, in Viso, the court stated "[t]o raise the issue of nullity under Article 2004 by a proceeding such as a motion for a new trial is objectionable in view of the Code of Procedure and case law.” Those statements in the cited jurisprudence concerning this disputed procedural issue represent dicta, however, because none of those cases involved the dismissal on procedural grounds of a motion for new trial to set aside a judgment not yet final and just rendered in the action. Our research does not reveal any ruling in the jurisprudence denying the use of a motion for new trial to assert a ground for nullity in the judgment. To the contrary, this court reversed the trial court’s substantive ruling which denied a motion for new trial after a default judgment in Campbell v. Select Car Co., 38,443 (La.App. 2d Cir.5/12/04), 874 So.2d 391. In that case, the trial court heard evidence on the motion for new trial concerning the alleged miscommunications between the parties before the filing of defendant’s answer in city court. Neither party asserted a procedural impropriety with the motion for new trial. The motion for new trial asserting the nullification of the default judgment was denied by the trial court, but ultimately reversed by this court on the basis of an "ill practice” which denied defendant the proper notice to defend. See also, Cashback, Inc. v. Herring, 27,805 (La.App. 2d Cir.2/28/96), 669 So.2d 693.

      . La. C.C.P. art. 2002. Annulment for vices of form; time for action.
      A. A final judgment shall be annulled if it is rendered;
      (1) Against an incompetent person not represented as required by law.
      (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
      (3) By a court which does not have jurisdiction over the subject matter of the suit.
      B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

      . Again, our research does not reveal any decision contesting the use of a motion for new trial to assert one of the peremptory grounds under Article 2002(A) to set aside the judgment which was just rendered in the case.


author: BROWN, Chief Judge. MOORE, J.,

text:
    STATE of Louisiana, Appellee v. Mark Anthony WIGGINS, Appellant.
    No. 44,616-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, R. Bennett Langford, III, F. Stanford Hardee, III, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

| following a jury trial, defendant, Mark Anthony Wiggins, was convicted of second degree robbery, a violation of La. R.S. 14:64.4. Subsequently, he was adjudicated a third-felony offender and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant filed a post verdict judgment of acquittal, which was denied by the trial court. Defendant appealed, arguing that his conviction was based upon insufficient evidence. For the reasons set forth below, we affirm.

Facts

The following facts were introduced through testimony at trial. On Sunday, April 18, 2008, at approximately 12:28 p.m., Don and Sybil Veatch, an elderly couple, were on their way home from church and decided to stop at a Super 1 Foods store to purchase lunch. As they were walking from the parking area toward the store Mr. Veatch, who was a few steps ahead of his wife, heard her scream. Mr. Veatch observed his 81-year-old wife lying on the ground. A woman, later identified as Ashley Rena Smith, was on top of Mrs. Veatch with her knee in Mrs. Veatch’s chest. Smith took Mrs. Veatch’s purse. Mr. Veatch immediately grabbed the purse and struggled with Smith who eventually released her hold on the purse and fled.

Mrs. Veatch recalled walking toward the store and then feeling like she had hit a “concrete telephone pole” or had been hit by a car. Mrs. Veatch did not have any memory of what happened after being hit until she was sitting in her vehicle with ice on her head and was being treated by an |2EMT. According to her testimony and illustrated by photographs entered into evidence by the state, Mrs. Veatch suffered injuries to her face, eye, and leg. She noted, “I was completely swollen all on this side of my face for about six weeks.” Mrs. Veatch further stated that her knee was injured and “I still have water on my knee from this.”

Bob Cunningham arrived at Super 1 and observed the attack on Mrs. Veatch. Cunningham gave chase and tackled the perpetrator. At some point, the woman cried out, “Baby, help me. Help me,” and shortly thereafter, a man, later identified as defendant, began hitting Cunningham, causing him to release the woman. Once released, the woman and man ran to a vehicle and rapidly drove away. Witnesses on the scene were able to get the license plate number and description of the getaway vehicle.

After obtaining the information about the getaway vehicle, an officer drove around the surrounding area and located the vehicle nearby. A woman and a man were seen walking away from the vehicle and entering a nearby house. Soon thereafter, defendant left the house and was called over to a police unit where he was Mirandized and asked about the incident at Super 1. Defendant initially stated he didn’t really know what occurred, but that a man had attacked his girlfriend, Ashley Smith. Defendant and Smith were arrested and charged by bill of information with second degree robbery and possession of stolen things. Codefendant Ashley Smith pled guilty to second degree robbery and testified at defendant’s trial.

| sAlthough Smith had given prior statements to police implicating defendant in the robbery as her “getaway driver,” at defendant’s trial, she testified that there was no planned robbery and that defendant did not know what she would do. Smith was asked and admitted to having made contradicting statements to the police officers who conducted the investigation.

Defendant testified, stating that he drove Smith to the Super 1 store and that he and their daughter stayed in the car while Smith went to get some items from the store. Defendant said that he was preoccupied with quieting his daughter when he heard Smith screaming his name and calling for help. Defendant stated that he saw a big man running after Smith and both falling to the ground. Defendant testified that he did not know the man was a good Samaritan, but only saw Smith being attacked so he went to her aid. Defendant secured the release of Smith, and the two fled the scene. Defendant repeatedly denied knowing anything about Smith’s intention to rob anyone. He further denied speeding away from the scene of the incident.

Defendant was found guilty of second degree robbery. Subsequently, the state filed a habitual offender bill of information, and defendant was adjudicated a third felony offender. Defendant was then sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence, whereupon he moved for judgment of acquittal, which was denied by the trial court. Defendant appealed.

| ¿Discussion

Both at trial and on appeal, defendant’s sole argument is that because no evidence was presented regarding his involvement in the planning of the robbery, his mere presence at the scene was insufficient to infer his participation as a principal.

La. R.S. 14:64.4 provides, in relevant part:

A. (1) Second degree robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.
(2)For purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24

The appropriate standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Further, the appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Thus, a reviewing court accords great deference to a jury’s |5decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.02/25/09), 3 So.3d 685.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act, and may be inferred from the circumstances surrounding the offense and the conduct of defendant. La. R.S. 14:10(1). A jury may consider flight and attempts to avoid apprehension as evidence of a guilty conscience. State v. Fuller, 418 So.2d 591 (La.1982). The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia, supra.

To convict defendant of second degree robbery, it was necessary for the state to prove: (1) the taking of (2) anything of value (3) belonging to another from the person of another or that is in the immediate control of another (4) when the offender intentionally inflicts serious bodily injury.

The testimony established that Ashley Smith attacked Mrs. Veatch in the Super 1 parking lot. Smith hit Mrs. Veatch, knocking her to the ground and grabbed her purse. As Mrs. Veatch hit the ground she injured her knee and was knocked unconscious. Smith repeatedly hit Mrs. Veatch about the face causing swelling and bruising. Mrs. Veatch testified that one side of her face remained swollen for about six weeks and at the time of the trial she still had “water” on her knee because of the injuries she sustained.

The uncontested testimony of Don Veatch was as follows:

... I just wanted to get the purse away from her (Ashley Smith), because I didn’t want her to take it.

|frAshley Smith’s testimony confirmed a taking of something of value from the person of Mrs. Veatch.

Q. And is that because you pled guilty to second degree robbery?
A. Yes, sir.
Q. And did that involve taking the purse from an 80-year-old woman?
A. Yes, sir.

Thus, the state presented sufficient evidence to establish a taking (even if only for a moment) of something of value, in the immediate control of another and the infliction of serious bodily injury.

Witnesses were able to get the license plate number of the vehicle that sped away from the scene with the assailants. The vehicle was quickly located and defendant questioned at that location. Defendant admitted that he had been on the scene waiting in the vehicle for Smith and had hit Mr. Cunningham who was holding Smith, securing her release, before driving away. Thus, the evidence presented at trial, including defendant’s own testimony, established that defendant participated in the robbery as a principal. He drove Smith to the scene, waited to drive her away from the crime, watched her back, and physically extracted her when the crime was interrupted. The jury weighed the credibility of defendant’s self-serving testimony against the obvious implications of the facts.

Ashley Smith’s testimony that the robbery was unplanned, that defendant had no knowledge of her intention, and that he was not the “getaway driver,” was impeached by her prior contradictory statements to the police.

17Conclusions

For the foregoing reasons, defendant’s conviction for second degr'ee robbery is affirmed.

MOORE, J., dissents with written reasons.

MOORE, J.,

dissents.

hi respectfully dissent. On close review of this record, I cannot agree that a completed taking occurred.

Unfortunately, Mrs. Veatch could not recall the incident from the time she was struck in the head until some minutes later, when she was receiving treatment from an EMT. Mr. Veatch first saw his wife on the ground, and the assailant, Ms. Smith, planting her knee on Mrs. Veatch’s chest; the assailant was tugging at the purse, but it was pinned under Mrs. Veatch’s shoulder. Mr. Veatch described joining in the struggle, grabbing the purse and pulling one strap as the assailant pulled the other; finally, the assailant released it and fled. He testified, “I didn’t want her to take it.” The other eyewitness, Mr. Cunningham, also testified that the assailant was trying to take the purse; he helped pull her off Mrs. Veatch.

As reprehensible and sordid as this incident was, from the instant record I simply cannot subscribe to the majority’s finding that “Smith took Mrs. Veatch’s purse.”

After pleading guilty to second degree robbery, Ms. Smith elected to testify against her getaway driver, Wiggins. On direct examination, Ms. Smith agreed that her guilty plea involved “taking the purse from an 80-year-old woman.” While the majority elevates this to decisive proof of a completed taking, I do not consider her eonclusory response to a leading question sufficient to supply the essential element of a taking.

I would therefore amend the judgment to a conviction of attempted second degree robbery.

      . The vehicle defendant was driving had been stolen the day before the robbery on April 12, 2008, from Grand Prairie, Texas. The second count was severed prior to trial, and defendant was only tried on the charge of second degree robbery. At trial, no evidence regarding the vehicle theft was presented to the jury.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Nathan Brent PULLIG, Appellant.
    No. 44,606-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Nathan Brent Pullig, pled guilty to manslaughter, a violation of La. R.S. 14:31, and aggravated battery, a violation of La. R.S. 14:34. Pursuant to the terms of his plea agreement, defendant was sentenced to 30 years at hard labor for the manslaughter conviction and 10 years at hard labor for the aggravated battery conviction. The sentences were ordered to be served concurrently. Defendant now appeals, urging that his sentence is excessive. We affirm defendant’s convictions and sentences.

Facts

Defendant was charged by bill of indictment on July 25, 2001, with the second degree murder of Rodney Jiles and the aggravated battery of Richard Tyler. On May 27, 2001, defendant shot Jiles several times in the back during an argument, and Richard Tyler was shot in the right arm as he was trying to break up the fight.

On September 17, 2003, after a day of testimony at his jury trial, defendant entered a guilty plea to manslaughter (Jiles) and aggravated battery (Tyler). Under the terms of his plea bargain, defendant agreed to serve 30 years at hard labor for the manslaughter conviction and 10 years at hard labor for the aggravated battery conviction, with the sentences to be served concurrently.

Before accepting defendant’s plea, the trial court informed defendant of his rights as required by La. C. Cr. P. art. 556.1. Specifically, the court informed defendant of his right to a jury trial, his right against self-incrimination, and his right to confrontation. The court sentenced defendant pursuant to the terms of the plea agreement. After sentencing, the trial court 12informed defendant of the time limitations in which to file an appeal and to seek post-conviction relief.

Defendant filed a pro se motion for appeal on September 23, 2003. The motion was never ruled upon by the trial court. On January 15, 2009, in No. 44,158-KH, this court reinstated defendant’s right to file an appeal. This appeal ensued.

Discussion

Defendant concedes that under La. C. Cr. P. art. 881.2(A)(2) and applicable jurisprudence, he cannot appeal or seek review of a sentence he made in conformity with a plea agreement. He nonetheless argues that this court should examine whether defendant was aware that by pleading guilty he was waiving his right to appeal the excessiveness of his sentence, consistent with an inquiry this court made in State v. Foster, 42,212 (La.App. 2d Cir.08/15/07), 962 So.2d 1214. Defendant asserts that he was not aware that he was waiving his right to appeal by pleading guilty because the trial court never informed him that he was waiving his right to appeal during the guilty plea colloquy and because the trial court told defendant of the timing delays to file an appeal at the end of the sentencing hearing.

According to the state, defendant is not entitled to appeal his sentence since he pled guilty and was sentenced to an agreed-upon sentence. The state also contends that State v. Foster, supra, is inapplicable to the instant case because State v. Foster involved a sentencing cap and in this case defendant pled guilty to an agreed-upon sentence with a specific term.

La. C. Cr. P. art. 881.2(A)(2) provides:

|sThe defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

This provision applies to both agreed-upon sentences and sentencing ceilings, ranges and caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La.App. 2d Cir.06/29/05), 907 So.2d 873.

In State v. Foster, supra, this court held that a sentence made in conformity with a plea agreement could be reviewed if the record showed that the defendant did not contemplate that by pleading guilty he was waiving his right to appeal his sentence for excessiveness. In that case, the defendant entered into a plea agreement wherein he agreed to a 30-year sentencing cap for the offense of armed robbery. On appeal, this court observed that the trial court informed the defendant that by pleading guilty the defendant was waiving his right to appeal “except as to the amount of his sentence.” Id. at 1218. This court reasoned that the trial court’s statement, which was contrary to La. C. Cr. P. art. 881.2, caused the defendant to have not intelligently waived his right to appeal the excessiveness of his sentence, and thus, the appeal was allowed.

In State v. Fizer, 43,271 (La.App. 2d Cir.06/04/08), 986 So.2d 243, this court addressed the issue of whether a defendant could seek review of his sentence, made within an agreed-upon sentencing cap, when the trial court informed the defendant of the time limitations within which to appeal his sentence immediately after sentencing. In Fizer, we reasoned that because the trial court did not mention any appeal rights during the | defendant’s plea colloquy, the defendant’s plea was not influenced by a belief that he could later seek review of his sentence. Id. at 244-45. See also State v. Scott, 44,509 (La.App. 2d Cir.08/19/09), 17 So.3d 1058; State v. Taylor, 44,205 (La.App. 2d Cir.05/13/09), 12 So.3d 482; State v. Martin, 43,243 (La.App. 2d Cir.06/04/08), 985 So.2d 1253.

In the instant case, the trial court advised defendant after sentencing of the time limitations within which to file an appeal. The court did not inform defendant of a right to appeal or seek review of his sentence during the plea colloquy. The record also shows no evidence of a belief on the part of the court and/or the parties that defendant was reserving his right to seek review of his sentence. Since the trial court’s advisement was made after defendant entered his plea, it had no effect on the voluntariness of defendant’s plea, and defendant is precluded from seeking review of his sentence, which was made in conformity with the plea agreement. See State v. Taylor, supra; State v. Martin, supra; State v. Fizer, supra. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are affirmed.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Anthony ASHLEY, Appellant.
    No. 44,655-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Charles Rex Scott, District Attorney, Laura Wingate Fulco, Jacob Broussard, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

1 ,The defendant, Anthony Ashley, was convicted of aggravated kidnapping, attempted forcible rape, first degree robbery, and aggravated flight from an officer. He was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence on the conviction of aggravated kidnapping, 20 years at hard labor on the conviction of attempted forcible rape, 40 years at hard labor without benefit of probation, parole or suspension of sentence on the conviction of first degree robbery, and two years at hard labor on the conviction of aggravated flight from an officer. The trial court directed that the latter three sentences be served consecutive to each other but concurrent with the life sentence. The defendant now appeals. The defendant’s convictions and sentences are affirmed.

FACTS

Shortly after 9:00 p.m. on March 12, 2007, the 19-year-old victim was abducted after making a withdrawal from an automatic teller machine (ATM) on Greenwood Road in Shreveport, Louisiana. The perpetrator forced the victim into her black Nissan car, bound her hands and feet, threatened her with a gun he claimed to be carrying, and withdrew money from her bank account at a different ATM. He also forced the victim to perform oral sex upon him and repeatedly struck her in the face and head. While holding the victim captive, the defendant stopped at various times to purchase drugs and drug paraphernalia. In addition to using the drugs himself, he tried to force the victim to partake of them as well.

| gEventually, the victim, who untied her feet without the assailant’s knowledge, was able to escape. When the perpetrator stopped the car at the intersection of Cad-do and Common streets, the victim spotted two patrol cars. She jumped out of the vehicle and ran toward the patrol cars as the perpetrator sped off. One of the two patrol cars took off in pursuit of the victim’s vehicle, which it found crashed into a utility pole and abandoned.

After ATM security photos were televised, the police received a tip identifying the defendant as the perpetrator, and a warrant for his arrest was issued. In the early hours of March 16, 2007, the defendant was taken into custody by a canine unit of the Shreveport Police Department (SPD). He was given medical treatment for a dog bite he received during his capture. Because the officers suspected that the defendant might be under the influence of some sort of intoxicant, they waited until late afternoon to speak with him. At that time, he gave a statement to police in which he eventually admitted his role in the offenses.

On April 11, 2007, the defendant was indicted for one count of aggravated rape, one count of aggravated kidnapping, one count of first degree robbery, and one count of aggravated flight from an officer.

Prior to the commencement of the defendant’s trial, a “free and voluntary” hearing was conducted to determine whether the statements made by the defendant to law enforcement officers were admissible. Testimony was given by Corporal Christopher Yarbrough, one of the interviewing officers, and the defendant. The trial court concluded that the ^defendant's statements were made freely and voluntarily and were thus admissible at trial and usable in the opening statements.

At the defendant’s jury trial in October 2008, the state presented the testimony of the victim, who described her kidnapping from the Greenwood Road ATM and her ensuing ordeal. She recounted the defendant accosting her after she finished her transaction. He took her cell phone and keys and then forced her into her car through the driver’s side door. A video from the ATM on Greenwood Road was introduced into evidence and played for the jury during the victim’s testimony; it corroborated the victim’s account of the defendant’s conduct at that ATM. Photos from the second ATM showed the defendant using the victim’s card to withdraw money from her account.

Also testifying for the state were Corporal John Flores and Officer Hy Phan of the SPD. Corporal Flores testified that the “very hysterical” and crying victim jumped from a black Nissan and ran to his patrol car; she had blood on her shirt. She reported her abduction from an ATM on Greenwood Road and described the ensuing offenses committed by the defendant. The exchange was recorded on the patrol car’s audio and video recorders and was played for the jury. The jury was also shown photographs taken by Corporal Flores depicting the victim’s injuries, including the marks around her ankles and wrists where she had been bound. Officer Phan testified as to his pursuit of the Nissan, which ended in his discovery of the car crashed into a pole and abandoned. The dashboard camera recording of Officer Phan’s pursuit was also shown to the jury.

_JjTwo members of the SPD crime scene unit testified about their processing of the victim’s Nissan. Among the items recovered from the car were blood on the dashboard, a receipt showing the withdrawal of $20 from an ATM on Greenwood Road at 9:16 p.m. on the night in question, and a cigarette butt. Testing demonstrated that the DNA profile obtained from the cigarette butt was consistent with the defendant’s DNA. A palm print matching the defendant was found on the rear passenger side door.

The defendant’s recorded statement to the police was played for the jury. Initially, the defendant portrayed himself as receiving a ride from the willing victim, who indicated a desire to do drugs and “party” with him. He claimed that the victim tried to force oral sex on him but he rebuffed her because he is a homosexual. He also asserted that when she wanted to return the car to her father, his refusal to comply prompted an exchange of blows between them, with his being delivered in self-defense. However, during the course of the interview, as the officers confronted him with video and photographic evidence, the defendant’s story changed. He eventually confessed various details which were consistent -with the victim’s version of events. These included the fact that he forced her into the vehicle, that he tied her hands, that he tried to keep her scared, that he instructed her not to move when they made stops, and that he kept reaching in his pocket to give the impression of the existence of a weapon in order to scare her. He also admitted that he forced her to perform oral sex after she refused at least twice.

|sAt trial, the defendant testified and again attempted to portray the victim as a willing participant in drug use who tried to force him into unwanted sexual activity. As to his taped statement, he testified that he only made those admissions because he was hungry, on pain medication, and scared. He claimed that during breaks in the interrogation, the police were telling him that unless he confessed he was going to get the death penalty. He additionally contended that they promised that they would get him treatment for his drug addiction and simply release him. On cross-examination, he asserted that the reason he is only heard asking for food once toward the end of the statement is because the other requests were edited out.

The jury returned verdicts of guilty as charged of aggravated kidnapping, first degree robbery and aggravated flight from an officer and a responsive verdict of attempted forcible rape on the aggravated rape charge. Motions for post-verdict judgment of acquittal and new trial were denied. The defendant was sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence on the conviction of aggravated kidnapping, to 20 years at hard labor on the conviction of attempted forcible rape, 40 years at hard labor without benefit of probation, parole or suspension of sentence on the conviction of first degree robbery, and two years at hard labor on the conviction of aggravated flight from an officer, the latter three sentences to be served consecutive to each other but concurrent with the life sentence. The defendant was also sentenced to concurrent 30-day jail terms on each count in the event of his failure to pay | (¡court costs. The defendant then filed a motion to reconsider the sentences imposed as excessive; the motion was denied.

The defendant appealed. Defense counsel filed two assignments of error pertaining to sufficiency of the evidence and excessive sentences. The defendant filed 17 pro se assignments of error.

SUFFICIENCY OF EVIDENCE AND DOUBLE JEOPARDY

Defense counsel argues that the jury’s verdict of guilty on the crimes of first degree robbery and attempted forcible rape are inconsistent with a finding that he committed an aggravated kidnapping because the first two indicate a finding that he used force or the threat thereof to rob the victim and to attempt to rape her and therefore he could not have obtained them by playing on her hopes of securing release. The defendant complains that to conclude otherwise is to subject him to double jeopardy. The state argues that the convictions are not inconsistent in that the defendant used more than one means of accomplishing his goals.

In a related pro se assignment of error, the defendant argues that the trial court erred in denying his pretrial motion to quash the bill of information raising a plea of double jeopardy.

Law

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if |7a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

La. R.S. 14:44 defines aggravated kidnapping as follows:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure |9a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The Louisiana Supreme Court has held that the crucial question in determining whether an aggravated kidnapping has occurred is not whether the defendant intended to release the victim at either the outset of the crime or indeed at any point during the crime but “whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.” State v. Arnold, 548 So.2d 920 (La.1989).

A person cannot twice be put in jeopardy for the same offense. U.S. Const, amend. V; La. Const, art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Ceasar, 37,770 (La.App. 2d Cir.10/9/03), 856 So.2d 236. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Louisiana also uses the broader “same evidence” test which dictates that:

|10If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988). This test depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Knowles, supra.

Discussion

The defendant’s appellate counsel argues that the jury’s conviction of the defendant on first degree robbery means they concluded that the taking of the victim’s money was accomplished by the use of force or intimidation, a requirement of the crime. Likewise, he argues that the jury’s conviction of attempted forcible rape means the jury concluded that the oral sex, or attempt thereof, was accomplished through the use of force or threats, a requirement of the crime of forcible rape. That being the case, the defendant posits that the taking of the victim’s money and sex could not have been accomplished by playing on her hope of eventual release.

While the state makes a valid argument that the defendant could have used more than one means to accomplish his goals and that the victim’s motivations for abiding by his demands could have been twofold, the court need not reach that question because the defendant’s argument assumes a burden of proof not imposed by the definition of the crimes. To prove aggravated kidnapping, the state merely needed to show that the defendant forcibly seized and carried the victim from one place to another with the intent thereby to force the victim to give up anything of apparent present or [ nprospective value in order to secure a release. Accordingly, to the extent that the evidence showed the defendant abducted the victim with the intent of forcing her to give up something of value by playing on her fears and hope of eventual release, it is irrelevant how the defendant ultimately gained something of value from the victim. How an offender extricates something of value from the victim of an aggravated kidnapping is as irrelevant as whether he extricates something of value, as long as the abduction of the person in the manner described in the statute was done with the intent to obtain something of value in exchange for what the victim perceives is her ultimate release.

A review of the record reveals more than ample evidence supporting the conviction of aggravated kidnapping. The victim was forcibly seized in the parking lot of a bank branch where she had been using an ATM and forced with the use of an apparent weapon to get in her vehicle with the defendant. The defendant then took the victim from one place to another as he drove her around Shreveport making various stops. On the question of whether he had the intent to take something of value, the examples are abundant. The defendant demanded her cell phone and keys at the outset, he took her bank card and demanded her personal identification number (PIN) for its use, he used her car to drive to a drug dealer’s home, he demanded that she perform oral sex on him, he tried to force her to smoke crack cocaine, and so on. The victim testified that at various times during the incident he told her that if she complied with a directive, he would release her in 15 minutes. Additionally, the defendant’s actions implied the | ^victim’s release was a possibility. As both the victim and the defendant testified, he blindfolded her when he went to purchase drugs in an effort to keep the victim from identifying the location to police. Accordingly, the victim could have easily deduced that if he feared her identifying the location to law enforcement, the defendant at least contemplated her potential release.

Nor do the defendant’s conviction for first degree robbery, attempted forcible rape and aggravated kidnapping violate his constitutional right against double jeopardy. To prove the crime of attempted forcible rape, the state was required to establish that the defendant actively desired to commit rape by preventing the victim from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that such resistance would not have prevented the rape and that he did an act in furtherance of his goal. La. R.S. 14:42.1 and La. R.S. 14:27; State v. Hannon, 37,351 (La.App. 2d Cir.8/20/03), 852 So.2d 1141. The crime does not require proof that the victim was seized, imprisoned or secreted. The victim in this instance resisted the defendant’s efforts to force her to perform oral sex on him but was repeatedly struck in the face and head by the defendant who, by the hair on her head, forced the victim’s face onto his exposed penis.

First degree robbery involves the taking of anything of value belonging to another from the person of another by the use of force or intimidation when the person has been induced to a subjective belief that the defendant is armed with a dangerous weapon and the victim’s belief is | ^objectively reasonable. La. R.S. 14:64.1; State v. Thomas, 43,783 (La.App. 2d Cir.1/14/09), 2 So.3d 1181. It too does not require the seizing, imprisoning or secreting of the victim. As the victim’s testimony demonstrated, the defendant in the instant case indicated that he had a gun and repeatedly made reference to blowing her head off with it. He used these threats specifically in forcing her to give him her ATM card and PIN code, which he used to withdraw $40.00 from her account.

As noted above, to prove aggravated kidnapping, the state had to show that the defendant seized, imprisoned or secreted the victim with the intent of forcing the victim or another person to give up something of value in order to secure the victim’s release. It does not require the defendant to induce the victim to believe he has a dangerous weapon, it does not require him to actually take anything of value, and it does not require him to attempt or succeed in having vaginal, oral or anal intercourse with the victim. In the present case, the state showed that the defendant abducted the victim and took her from one place to another with the intent of forcing her to give up the use of her car, money and sex in the hope of being set free. The fact that in some cases he had to resort to additional crimes to actually get those things does not give rise to a double jeopardy claim.

These assignments of error are without merit.

EXCESSIVE SENTENCE

The defendant argues that the trial judge failed to articulate the aggravating and mitigating circumstances warranting the consecutive sentences imposed for the convictions of first degree robbery, attempted |,forcible rape and aggravated flight from an officer, and that the sentences imposed are constitutionally excessive. The state argues that the sentences imposed by the court are justified by the severity of the defendant’s conduct.

Law

La. C. Cr. P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164.

Since the defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, supra, he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness, Mims, supra; State v. Lofton, 41,423 (La.App. 2d Cir.9/27/06), 940 So.2d 702, writ denied, 2006-2952 (La.9/28/07), 964 So.2d 359. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App. 2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. |1Bart. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is 11ficonsidered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, supra; State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App. 2d Cir.8/15/07), 962 So.2d 1126.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Boudreaux, 41,660 (La.App. 2d Cir.12/13/06), 945 So.2d 898, writ denied, 2007-0058 (La.11/2/07), 966 So.2d 591. Among the factors to be considered are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the potential for the defendant’s | ^rehabilitation; and whether the defendant has received a benefit from a plea bargain. State v. Johnson, supra; State v. Boudreaux, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. McKinney, 43,061 (La.App. 2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App. 2d Cir.11/1/06), 942 So.2d 658, writs denied, 2006-2768, 2006-2781 (La.6/22/07), 959 So.2d 494.

Discussion

The defendant received the maximum sentences for the convictions of first degree robbery, attempted forcible rape and aggravated flight from an officer and was ordered to serve them consecutively. The defendant correctly points out that the record contains no discussion of the criminal or social history of the defendant and no discussion of the mitigating factors.

However, the defendant has failed to urge any mitigating factors which the trial court failed to consider other than his reliance on his crack cocaine use. Furthermore, despite the trial court’s failure to identify them as such, the trial court did discuss the aggravating factors during the sentencing hearing. The trial court specifically detailed the heinous facts of the crime, including the threats of death made to the victim, the apparent capacity to carry the threat out, and the sexual violation of the victim, which the court deemed in their totality to constitute “torture” of the victim. A thorough reading of the record makes it abundantly clear that the actions of the defendant in the present case are those of a worst offender justifying both maximum and consecutive sentences. The physical and emotional violence 118done to this teenage victim while being abducted in her own car and viciously abused for a period of time — conduct for which the defendant has failed to take responsibility or show any remorse — precludes a conclusion of manifest abuse of discretion by the trial judge in imposing sentences within the statutory limits. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710. The defendant’s sentences are neither grossly disproportionate to the severity of the offenses nor shocking to the sense of justice.

This assignment is therefore without merit.

COMPLETENESS OF RECORD

In five of his pro se assignments of error, the defendant contends that the record is not complete. Specifically, he asserts the following: on 13 occasions, audio statements were not transcribed; on 13 occasions, bench conferences were not transcribed; on 32 occasions, the court reporter, who was not sworn and qualified as a sign language interpreter, transcribed “sign language,” i.e. head movements by the victim; the redaction of the transcript provided to the defendant for appellate purposes, as authorized under La. R.S. 46:1844, is an unconstitutional deprivation of a full appellate record; and he was not provided with a voir dire transcript for appellate review.

Law

The state constitution provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” La. Const, art. I, |19§ 19. In felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel” is statutorily required. La. C. Cr. P. art. 843.

A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause a reversal of a defendant’s conviction. State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713; State v. Campbell, 2006-0286 (La.5/21/08), 983 So.2d 810, cert. denied, — U.S. —, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). Indeed, an incomplete record may nonetheless be adequate for appellate review. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473. A defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions of the record. State v. Campbell, supra.

Discussion

On the absence from the appellate record of any transcripts of the recordings played for the jury, the defendant argues that appellate counsel cannot determine the presence of any cognizable claims since he was not trial counsel. This assignment lacks merit since the recordings themselves are part of the appellate record and are the best evidence of what is contained therein.

As to the unrecorded bench conferences, the defendant failed to make an objection, and as such failed to preserve the issue for review. La. C. Cr. |2qP. art. 841. Also, the defendant fails to show that the unrecorded conferences prevented him from presenting relevant evidence, or to show what prejudice, if any, resulted from the absence in the record of the substance of the conferences absent which the defendant cannot prevail. State v. Castleberry, 1998-1388 (La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Brumfield, 1996-2667 (La.10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999); State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Lastly, a review of the record for the instances cited by the defendant indicates that almost all the bench conferences of which he complains were held just before a session was to begin or before a session was adjourned, a likely indication that the content of the conference was administrative rather than substantive.

The defendant’s complaint that the court reporter’s transcription of the witnesses’ nonverbal responses of affirmative and negative nods of the head was “impermissible” and deprived him of “due process” is also without merit. The basis of the defendant’s argument is that a court reporter is unsworn and unqualified to interpret sign language. Because the victim’s nonverbal responses constitute a part of the proceedings in the court below, the court reporter did not err in including them in the record. Nor has the defendant cited any authority for the proposition that a certified sign language interpreter is required to interpret the cross-cultural and widely accepted head gestures indicating agreement and disagreement. The [ .¿i defendant has not challenged the accuracy of the parenthetical references concerning the victim’s nonverbal actions, so striking such references from the record is unnecessary.

The defendant also claims that the redacted copy of the appellate record is in violation of his right to a complete record. The record was redacted in accordance with La. R.S. 46:1844(W) so as to remove any information identifying the victim of a sex crime. This redaction, required by law, does not ordinarily prevent comprehension of the record and the defendant cites no specific instances in the present case to that effect. Furthermore, the defendant is well aware of the victim’s name which he used repeatedly during his testimony at trial.

Lastly, the defendant complains of the absence of a transcript of jury voir dire. This matter was also raised in a motion denied by this court on July 16, 2009. It should first be noted that the Louisiana Constitution requirement of a “complete record” is limited to the “evidence upon which the judgment is based.” Jury voir dire is not evidence. Furthermore, the defendant makes no allegations as to any errors which occurred during the jury selection and the minutes do not reflect that any objections were raised during that portion of the trial. Absent a showing of prejudice, Louisiana courts have recognized that a complete appellate review of a defendant’s convictions and sentences can be accomplished even when there are missing portions of the trial record. State v. Thomas, 92-1428 (La.App. 4th Cir. p/26/94), 637 So.2d 1272, writ denied, 94-1725 (La.11/18/94), 646 So.2d 376, cert. denied, 514 U.S. 1054, 115 S.Ct. 1437, 131 L.Ed.2d 317 (1995).

Accordingly, these assignments are without merit.

FREE AND VOLUNTARY CONFESSION

The defendant argues that the trial court erred in denying his motion to suppress the confession because of his unre-futed testimony that he had been threatened and induced by false promises into confessing and because he was under the influence, hungry and in pain during the confession.

Law

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App. 2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, 33,112 (La.App. 2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Franklin, 35,268 (La.App. 2d Cir.12/19/01), 803 So.2d 1057, writ denied, 2002-0352 (La.2/7/03), 836 So.2d 85; State v. Roddy, supra.

The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on. appeal unless not supported by thej^evidence. State v. Thibodeaux, 1998-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Morrison, 43,815 (La.App. 2d Cir.1/14/09), 999 So.2d 1197. Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra.

A mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” does not negate the voluntary nature of the confession. State v. Roddy, supra; State v. Thomas, 30,490 (La.App. 2d Cir.4/8/98), 711 So.2d 808, writ denied, 1999-0331 (La.7/2/99), 747 So.2d 8; State v. Matthews, 26,550 (La.App. 2d Cir.12/21/94), 649 So.2d 1022, writ denied, 95-0435 (La.6/16/95), 655 So.2d 341.

Intoxication may render a confession involuntary if it negates a defendant’s comprehension and renders him unconscious of the consequences of what he is saying; whether intoxication exists and to a degree sufficient to vitiate voluntariness are questions of fact. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Bowers, supra. However, the mere fact of drug or alcohol intoxication is insufficient standing alone to render a confession involuntary. State v. Robertson, 40,626 (La.App. 2d Cir.4/12/06), 927 So.2d 629, writ denied, 2006-1449 (La.12/15/06), 944 So.2d 1272. See State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994), where the confession was voluntary although the defendant had smoked three or four cocaine rocks the night before his 11:00 p.m. statement, as well as consumed several beers the day he confessed.

Discussion

At the free and voluntary hearing, the defendant testified that shortly after his arrest he was taken to the hospital for stitching of a dog bite he received from a police dog during his apprehension. He stated that at the hospital he was given painkillers and a prescription for painkillers which was filled the next day at the jail. He claimed that during his alleged confession he was on those painkillers and still “high” from crack cocaine. No corroborating evidence was given regarding the existence of the prescription, the fact that it was filled by the jail, or what particular painkiller the defendant claimed to be on. He also claimed that he was in pain from the dog bite and hungry. He asserted that he felt threatened because he was told that he would not be allowed to eat until he answered all their questions.

The recording itself indicates that the defendant mentioned eating twice; when the comments were made, no one is heard indicating that food would be withheld until a confession was forthcoming. To the contrary, the officers responded in a positive manner that the defendant would be fed upon his return to the jail. Furthermore, the sound and content of the defendant’s speech during the statement does not bear any of the earmarks [ ^of someone under the influence of an intoxicating substance, such as slurred speech or disorientation. Nor is there any indication that the confession was being made under the influence of fear, duress, intimidation, inducements, or promises.

Contrary to the defendant’s allegations that his statements were unrefuted, the state relied on the testimony of one of the interrogating officers, Corporal Yar-brough. He indicated that at the time of the defendant’s arrest, about 1:00 a.m., the defendant appeared to be under the influence of some intoxicating substance and, therefore, police did not take his statement until approximately 15 hours later. In the interim, the defendant was taken to the hospital where he received stitches for the dog bite and was then transported to the jail. At the scene of the defendant’s arrest, the corporal asked the defendant if he had been advised of his rights to which the defendant replied in the affirmative. Corporal Yarbrough testified that at 4:25 p.m. that same day he conducted an interview with the defendant after re-reading him his Miranda rights and after the defendant signed a card acknowledging being informed of those rights and waiving them. Corporal Yarbrough indicated that the interview took place over approximately two to two and a half hours during which the defendant no longer appeared to be under the influence of any drugs or alcohol, and was not threatened or promised anything to elicit the statement made.

Based upon the above, we concluded that the trial court’s finding that the defendant’s statement was made freely and voluntarily is supported by the evidence.

This assignment of error lacks merit.

I^MENTION OF CONFESSION IN OPENING STATEMENT

In this pro se assignment, the defendant contends that the state violated the provisions of La. C. Cr. P. art. 767 by advertising the defendant’s confession in its opening statement. La. C. Cr. P. art. 767 provides:

The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case.

Because the defendant’s statements to the police had already been ruled as admissible in the pretrial hearing, the state was entitled to refer to them as a “confession” in the opening statement. State v. Taylor, 30,310 (La.App. 2d Cir.2/25/98), 709 So.2d 883. Therefore, this assignment lacks merit.

FAILURE TO READ INDICTMENT TO JURY

The defendant argues that during the clerk’s reading of the grand jury’s indictment, she failed to state whether it was returned a true bill, what date it was returned and whether the jury foreperson signed it. The only provision pertaining to the reading of the indictment at trial is found in La. C. Cr. P. art. 765, which merely requires “the reading of the indictment.” The transcript shows that the date of the indictment, its contents, and the signature of the district attorney were all read into the record.

This assignment lacks merit.

[^PROSECUTORIAL MISCONDUCT

The defendant alleges at least 30 incidents of prosecutorial misconduct. This assignment of error is patently without merit. While the defendant makes numerous references to portions of the record as illustrations of alleged prosecutorial misconduct, our review reveals that the conduct alleged is either not supported by the content of the record or the conduct simply does not constitute misconduct.

USE OF INADMISSIBLE HEARSAY EVIDENCE

The defendant itemizes six instances in which he alleges that hearsay evidence was introduced denying him his constitutional right to confront his accuser. However, some of the cited instances did not even involve hearsay while others involved exceptions to the hearsay rule. We also note some of the statements were advantageous to the defendant. Furthermore, even assuming arguendo that any of these statements were hearsay, they were harmless due to the overwhelming evidence of the defendant’s guilt.

This assignment of error is without merit.

INTRODUCTION OF CRIME LAB REPORT

In this pro se assignment the defendant complains about the introduction of the crime lab report indicating that his DNA was found on a cigarette butt recovered from the victim’s vehicle without the testimony of any witness to identify the report and attest that it is what it purports to be. The state gave proper notice of its intent to introduce the certified crime lab | ^report pursuant to La. R.S. 15:501 and subsequently introduced the report at trial without objection from the defendant. The failure of the defense to contemporaneously object to this evidence waives this court’s review of the issue on appeal. La. C. Cr. P. art. 841; State v. Robbins, 43,129 (La.App. 2d Cir.3/19/08), 979 So.2d 630.

However, to the extent any error might have occurred, it would have been harmless. In his own testimony, the defendant identified himself as the individual who approached the victim at the ATM, who got in her vehicle with her, and who drove around with her until she jumped out of the vehicle and into a nearby patrol unit. The DNA evidence did nothing but place the defendant at the scene of the crime, a fact which the defendant does not deny.

JURY CHARGE

The defendant argues that the trial court erred while charging the jury by stating that reasonable doubt does not mean “proof to an absolute certainty” on two separate occasions.

La. C. Cr. P. art. 804(A) provides, in pertinent part, that the court shall charge the jury that a person accused of a crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt. It also provides that the court may, but is not required to, define “reasonable doubt.”

The actual jury charge on reasonable doubt in this case was:

Proof beyond a reasonable doubt is a phrase that is almost self-explanatory. Reasonable doubt does not mean all possible doubt, but means doubt based upon a reason. If, after you have considered the evidence and the law applicable, there is doubt |2i)in your mind as to the guilt of the accused, which doubt is based upon a reason, or for which doubt you can express a reason, then the defendant is not guilty. However, “proof beyond a reasonable doubt” does not mean proof to an absolute certainty.

In State v. Gaddis, 36,661 (La.App. 2d Cir.3/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.5/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005), this court rejected an argument that the above language was constitutionally infirm.

This assignment is without merit.

INTRODUCTION OF ORAL STATEMENTS

The defendant complains that the state introduced oral statements by him without providing the mandatory notice of their intended use required by La. C. Cr. P. art. 768. The statements to which the defendant is referring are the ones he made to Corporal Yarbrough at the scene of his arrest and at the hospital shortly thereafter.

La. C. Cr. P. art. 768 provides:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

As per the statutory language, written notice is not required when the defendant has been granted pretrial discovery, which the defendant in the present case was. The existence of the two statements to which the defendant is referring was made known to the defendant in police reports supplied as discovery responses more than a year before trial. Accordingly, there is no question that the discovery provided to defendant afforded Insufficient notice of the existence of the oral statements. This assignment of error is without merit.

SENTENCING FACTORS

In this pro se assignment of error, the defendant argues that the sentences imposed by the trial court should be reversed as having been based on the erroneous conclusion that the attack on the victim lasted for more than two hours. As noted above, the defendant’s sentence is subject to the provisions of La. C. Cr. P. art. 881.1 precluding consideration by the court of appeal of sentencing arguments not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, supra; State v. Lofton, supra. Furthermore, the sentence on the defendant’s conviction of aggravated kidnapping was a mandatory life sentence and, therefore, the length of the abduction was irrelevant to the sentence imposed.

This assignment is without merit.

INEFFECTIVE ASSISTANCE

Law

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App. 2d Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866. Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ellis, supra.

Trial Counsel

The record in the instant case is sufficient to resolve the conclusory allegations made by the defendant of ineffective assistance by trial counsel. Review of the record reveals that trial counsel appeared to employ appropriate trial strategy and tactical decisions. In fact, we note that |S2defense counsel’s able trial performance resulted in the defendant being convicted of attempted forcible rape instead of the original charge of aggravated rape.

This assignment of error lacks merit.

Appellate Counsel

The defendant argues that his appellate counsel was ineffective since he failed to raise the pro se assignments of error. The errors “missed” by counsel were raised by the pro se defendant and considered by this court. Finding the pro se complaints to be meritless, we also determine that the defendant’s ineffective assistance of counsel allegation is, likewise, meritless.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Among these allegations were the following: the prosecutor allowed false evidence to go uncorrected at trial, mislead the jury on evidence, appealed to the prejudices of the jury, and took advantage of the incompetency of defense counsel.