author: DREW, J.

text:
    SUCCESSION OF Martin Paul EIKERT Laura Eikert Bailey, Tracy Eikert O’quin, and Paul J. Eikert, Plaintiff-Appellant v. Ann Eikert, Defendant-Appellee
    No. 50,853-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered December 7, 2016.
    Rehearing Denied 01/05/2017

      ANTHONY J. BRUSCATO, Counsel for Appellant
    RANKIN, YELDELL & KATZ, By: Stephen J. Katz, Counsel for Appellee
    Before DREW, PITMAN and GARRETT, JJ.
   DREW, J.

| í Laura Eikert Bailey, Tracy Eikert O’Quin, and Paul J. Eikert (“the Eikert children”) appeal from two judgments denying their motions to traverse the descriptive list for the estate of their father, Martin Paul Eikert. For the following reasons, we affirm.

The issue in this case is whether the trial court erred in finding that two transfers of funds from the separate property of Martin Eikert to the separate property of Eikert’s third wife, Ann Kelly Eikert, were valid donations.

Martin Eikert was a resident of Bastrop, Louisiana; his working career was spent doing forestry with International Paper (“IP”). He was married three times. During his first marriage, to Rae Eikert, he had three children: Laura, Tracy, and Paul. Martin was married to his third wife, Ann Kelly Eikert, for approximately 17 years prior to his death in 2013. At the time of Martin’s death, Ann was employed as a registered nurse; Martin was retired.

Martin and Ann had a separate property regime, although they kept a joint checking account at Kaufman Credit Union (“Kaufman”) to pay household expenses. Martin had a substantial separate property estate that included the house in Bastrop where he and Ann lived, almost half a million dollars in a tax-deferred retirement account held at JP Morgan Chase, and about $250,000 in cash that he kept at Kaufman in a savings account. In March 2003, Martin executed a will leaving his home to Ann and “the balance of my estate” to his three children.

|2For at least the last year of his life, Martin suffered from severe COPD. According to Paul, Martin required oxygen 24 hours a day, had great difficulty in speaking, was unable to drive and was only able to walk short distances. On January 12, 2013, Martin was admitted to the intensive care unit at Glenwood Regional Medical Center because of complications from his condition.

On January 18, 2013, while Martin was in the hospital, there were several transactions in the Eikerts’ accounts at Kaufman. First, $26,208.89 was moved from Martin’s separate account into Martin and Ann’s joint account, leaving a balance of $225,005 in Martin’s separate account. The Kaufman employee who performed the transfer, Barbara Andrews, did not know Martin and did not know that Martin was in the hospital at the time. Kaufman had no written record concerning who requested the transfer. However, Ms. Andrews explained that transfers of money between Kaufman accounts were commonly done by phone. Ms. Andrews had no independent memory of the transaction but believed that the request must have been made by telephone, Although some of the Kaufman tellers had “signature pads” that allowed them to write “phone” for telephone transfers, Ms, Andrews’ computer was not so equipped.

The cell phone records from Martin and Ann’s phones do not show any call to the bank around the time of this transaction. Paul testified that there was no phone in the intensive care unit where Martin was hospitalized, but Ann said “as well as I can recall, yes, there was a phone there.”

|sMs. Andrews said that even though she did not remember the call, she would not have performed the transfer from Mr. Ei-kert’s account unless she had satisfied herself that the person on the phone was indeed Martin Eikert. She also said that if someone other than Martin had physically come into the bank and requested the transfer, she would not have done the transaction. Paul Eikert testified that had Martin been able to use the phone, he would have been gasping for breath because of his condition on this date, and the Eikert children offered a physician’s impression of what Martin would have sounded like had he used the phone.

Four hours later on January 18, 2013, $26,208.89 was moved from the Eikerts’ joint account into Ann Eikert’s separate Kaufman account. The bank had no written record of who requested this transfer, and Cynthia Bowe, the Kaufman employee who performed the transfer, said that she had no independent memory of who requested the transfer; she did not remember speaking with either Martin or Ann, Ms. Bowe said that either Martin or Ann Eikert had the authority to request the transfer as this was a joint account.

Finally, also on January 18, 2013, a certificate of deposit was created at Kaufman in the amount of $225,000. That CD, in Martin’s name, specified that upon Martin’s death, the money would go to the Eikert children, not to Ann Eikert. Ms. Andrews explained that only Martin could have authorized the creation of the CD and the transfer of money out of his account. The creation of the CD left $5 in Martin’s separate account.

Ann Eikert testified that she did not see Martin make a call to Kaufman related to the January 18 transfer, but she said that Martin “would have had to make a phone call” because “I couldn’t have done it.” She also | ,(Said that she understood that Martin called Kaufman “several times that day.”

Ann had no memory of making contact with Kaufman employees regarding the January 18 transfers. Ann explained that Martin told her that “he did want me to have a portion of ... part of the money” and that Martin told her that he was giving her the funds “because he wanted me to have it.” Ann said that Martin told her “I talked to the credit union and told them my wishes.” She testified:

Q: So your position is that you had no participation whatsoever prior to learning of the call—your position of Mr. Eikert making a phone call to the credit union, you had no participation with the credit union employees with regard to the transfer—
A: In January.
Q:—on January 18th that those funds, how they got in your separate savings account?
A: No.

Martin was discharged from the ICU on January 21, 2013, and moved into a skilled care unit. Beginning on February 4, 2013, Martin and Ann had several discussions with JP Morgan Chase about how to handle Martin’s 401(k). There are notes and recordings from these calls. During the first call, initiated by Ann, the bank representative confirmed with Martin that Ann had permission to speak with the bank, and Ann told JP Morgan Chase that Martin wanted to roll his IRA over to a local credit union. On February 5, 2013, Ann called JP Morgan Chase again, and Martin also spoke with the representative, saying that he wanted to roll the money into an IRA and start taking money out. The notes from this call state:

Mr. Eikert said what he is trying to do is leave that money to the children[.]

|sThe notes also indicate that Martin was speaking with difficulty. The bank employee informed the Eikerts that Martin had to make a required minimum distribution of $18,207.17, and Martin decided to have 10% of that withheld for federal taxes. On February 6, 2013, Ann called back again, and after confirming with Martin that Ann had the right to speak with the bank employee, Ann went ahead with the rollover, instructing JP Morgan Chase to perform the transfer. JP Morgan Chase sent three checks to the Eikerts by postal mail.

Martin Eikert was discharged from the skilled care unit on February 11, 2013, and went back to live at his home with Ann. Ann testified that while Martin was home, he reviewed his credit union statement dated January 31, 2013. None of the witnesses reported that Martin made any complaint about the handling of the January 2013 Kaufman transactions.

After the JP Morgan Chase checks arrived, Martin endorsed all three in blank and Ann delivered them to Kaufman on February 15, 2013. Kauftnan employee Cynthia Bowe testified about how the checks were handled. Ms. Bowe said that she had been employed with Kaufman for 30 years, and had dealt with Martin Eikert as a customer for 18 years. She was familiar with his voice and “waited on him over the phone many times.” Ms. Bowe said that she spoke with Martin Eikert on the telephone on either February 14 or February 15, 2013, for a few minutes and wrote down his instructions about what to do with the JP Morgan Chase checks. Bowe said Ifithat Martin told her the amounts of the checks, told her to put the large check into an IRA and, for the two smaller checks:

He instructed me to deposit that into checking and then transfer—deposit a certain amount and then transfer the rest to Mr. [sic] Eikert’s checking.

Although the transcript says that the witness testified that Martin said to put the money into “Mr. Eikert’s checking,” the remainder of the witness’ extensive testimony shows that Bowe meant that Martin instructed her to put the money into Ann Eikert’s separate account, not Martin’s separate account. As Bowe later explained:

Q: Who told you how much to transfer to her [Ann Eikert’s] separate account?
A: Mr. Eikert.

Bowe said that Martin sounded “sick,” and she responded “possibly” when asked if he appeared to be gasping for air. Ms. Bowe followed Mr. Eikert’s instructions, depositing the two smaller checks into the couple’s joint checking account and then transferring $27,148.99 into Ann’s separate account, leaving an even $1,500 in the joint checking account. Bowe explained that, although she wrote down Mr. Eikert’s instructions when he gave them to her, she shredded the note containing the instructions at the end of the day per her usual practice. Bowe said that Ann did not give her any instructions about what to do with the funds; the only instructions came from Martin Eikert, and Ann likewise testified that she did not direct how the funds were deposited.

Bowe testified that once the checks were in the joint account, Ann would have had the authority to move the money into her separate account, but she did not do so; the money was moved at Mr. Eikert’s instruction. |7Notably, the form associated with the- creation of the IRA listed the beneficiaries of that money as the Eikert children, not Ann Eikert, and Bowe explained that Ann could have added her name as a beneficiary but did not do so. Bowe further explained that although the smaller checks were endorsed in blank, it was Kaufman’s policy not to allow the deposit of such cheeks into the separate account of a person who is not listed as the payee on the check, so Ann could not have deposited the checks into her own account directly.

Martin returned to the hospital on February 18, 2013, and he passed away there on March 3, 2013. Friction between the Eikert children and Ann led to two motions to traverse the descriptive list furnished to the court by Ann, as that descriptive list did not include either of the cash transfers from the joint checking account into Anris separate account. The Eikert children argued that neither of these transfers was a valid donation from Martin to Ann. The trial court heard these motions in two hearings, with the February transfer heard first, and decided them in two judgments. The trial court proceedings were concluded when the court decided the second motion with a final judgment signed on November 30, 2015. The trial court supplied extensive reasons for the second judgment regarding the January transfers, some of which we reproduce here:

The children dispute that in January, these actions could have taken place in the manner advanced by Mrs. Eikert. They contend that Mr. Eikert could not have called and instructed the credit union in January from his ICU hospital room because he was physically unable to talk without difficulty. Inasmuch as the credit union employees could not specifically recall talking to Mr. Eikert in January, the children suggest that a man gasping for air, as Mr. Eikert’s physician suggested he would have been, would have left a rather indelible memory impression on the bank personnel. They also point out that an examination of the telephone records for those accounts which belong to Mr. and Mrs. Eikert disclosed no evidence that any calls are made | ¿to the credit union from those phones. Mr. Eikert’s son testified that there were no phones in the ICU. The Eikert children suggest that the credit union employees simply followed the instructions of Mrs. Eikert and suggest that no such call from Mr. Eikert to the credit union ever took place.
The children also suggest that there is every reason to believe that Mr. Eikert had no intention to donate separate funds to Mrs. Eikert. His last will and testament gave the family home to Mrs. Eikert and she was to receive his pension benefits. The remainder of his property, he had made clear, was to go to his children. Mr. Eikert’s actions in “donating” these funds to his wife, by transfer of separate funds to her separate accounts, his children contend, are inconsistent with his oft-stated intentions, casting considerable doubt on whether or not a donation actually occurred.
The evidence adduced at the several hearings in this case does not create considerable doubt in the court’s mind. Indeed, it appears that the ailing Mr. Eikert was preparing his affairs for the worst. The January 18, 2013, transactions show that he invested the overwhelming amount of his separate savings on deposit in the credit union by placing a dollar amount, in even round dollar numbers ($225,000.00), into another interest bearing savings vehicle which ensured that his children would receive the benefit upon his death. A token amount ($5.00) was left in the savings account and the remainder ($26,208.89) was ultimately transferred to ... Mrs. Eikert’s separate account.
The children suggest that Mrs. Eikert bears the burden of proving that the separate funds of Mr. Eikert that were ultimately deposited into her account were donated to her by Mr. Eikert by “strong and convincing” evidence, a burden presumably significantly higher than that of “more probable than not.” This Court is of the opinion that the “more probable than not” burden has been easily carried. And, after the Court considers the consistency of Mr. Eikert’s alleged actions; the fact that he converted the overwhelming bulk of his liquid assets into safe vehicles for his children; the fact he had the opportunity to review his credit union statements before he ultimately died to verify any instructions that he had given; the fact that the credit union employees testified that their practices and procedures were to not act unless they were sure that they had received their instructions from the authorized account holder; the fact that Mr. Eikert, in connection with the February IRA transfer, reviewed and signed the IRA beneficiary designation that the credit union had returned to his home, convinces this court that the evidence ... supports a finding that Mr. Eikert donated the disputed sums to Mrs. Ei-kert is established by strong and convincing evidence. The fact that phone records cannot be located to support the fact of the alleged telephone calls from Mr. Eikert to the credit union is a detail which does not significantly detract from the considerable body of evidence in support of the donation.
I ¡/Therefore this court makes the factual finding that the complained of transactions, i.e., the disputed transfers of Mr. Eikert’s separate funds into the separate account of Mrs. Eikert, do constitute manual gifts or donations to Mrs. Eikert before Mr. Eikert’s death.

The Eikert children now appeal from the denials of their motions to traverse.

DISCUSSION

On appeal, the Eikert children’s two assignments of error are:

1. Did the trial court commit legal error and/or manifest error in concluding that the January 18, 2013, transfer of $26,208.89 was a donation to Mrs. Ei-kert?
2. Did the trial court commit legal error and/or manifest error in concluding that the February 15, 2013, transfer of $27,148.99 was a donation to Mrs. Eikert?

Appellants point out on appeal that there was confusion at trial regarding who had the burden of proof. Although the record reflects that the court discussed that issue with the parties during the proceeding, the record also shows that the court ultimately applied the correct burden.

This matter was instituted as a traversal by appellants of the descriptive list filed by Ann Eikert. La. C.C.P. art. 3137 provides:

The descriptive list of succession property authorized by Article 3136 shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully.
The court may amend the descriptive list at any time to correct errors therein, on ex parte motion of the person filing it. Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it. If a descriptive list is amended, or successfully traversed a copy of the amended or traversed descriptive list shall be filed with the Department of Revenue. The court may order the reduction or increase of the security required of a succession representative to conform to the corrected total value of the property of the succession.

Appellants argue, and we agree, that to the extent they had any burden of proof in this case, they met that burden by proving that Ann’s descriptive list |inwas inaccurate. Appellants showed that Ann did not include on the list, among other things, the couple’s joint Kaufman account.

A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it. La. C.C. art. 1468.

The primary question here was whether the transfers from Martin’s separate savings and retirement accounts were valid donations, and the burden of proving that the donations were valid fell to Ann. Proof of Martin’s intent to donate is the heart of this issue, but we also discuss whether the donations were valid in form.

Donative intent is a factual issue and is reviewed on appeal under the manifest error standard of review. Thomson v. Thomson, 34,353 (La.App. 2 Cir. 1/24/01), 778 So.2d 736. If a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse even if it is convinced that had it been sitting as trier of fact it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La. 1991). As the supreme court explained in the context of a manual gift in Succession of Woolfolk, 225 La. 1, 71 So.2d 861 (1954):

By the terms of Article 1539 of the LSA-C.C., “The manual gift, that is, the giving of corporal movable effects, accompanied by real delivery, is not subject to any formality.” This article does not dispense, however, with the necessity of proof of intention on the part of the donor to give. There is an old Latin maxim in law which reads: “Nemo pre-sumitur donare”, i.e., “No one is presumed to give.” This is but another way of stating that the burden of proving the donation is on the donee, and under the decisions of this Court, the proof to support the donation must be strong and convincing.

We conclude that the January 2013 transfer of funds from Martin’s separate account into the couple’s joint account is best categorized as a Indonation of an account on deposit. Such accounts are incorporeal movables. La. C.C. art. 473. The characterization of the two JP Morgan Chase distribution checks is murkier, but because of the way the checks were actually handled by Ann and by Kaufman, we will treat those funds the same way for purposes of this discussion under these particular facts.

Donation of corporeal movables may be accomplished by manual delivery, La. C.C. art. 1543, but the donation of an incorporeal movable is governed by La. C.C. art. 1541, which provides:

A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.

The authentic act requirement is subject to several exceptions. See Comment (b) to La. C.C. art. 1541. La. C.C. art. 1550 provides:

The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate, document, instrument, or other writing, and that is transferable by endorsement or delivery, may be made by authentic act or by compliance with the requirements otherwise applicable to the transfer of that particular kind of incorporeal movable.
In addition, an incoiporeal movable that is investment property, as that term is defined in Chapter 9 of the Louisiana Commercial Laws, may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation.

This article has been applied several times in recent jurisprudence to cases involving donations of bank accounts. The Third Circuit, in In re Succession of Gassiott, 2014-1019 (La.App. 3 Cir. 2/4/15), 159 So.3d 521, writ denied, 2015-0493 (La. 5/15/15), 170 So.3d 968, found a donation 112of funds to a surviving wife to be in proper form and complete where the husband had (1) placed separate funds into a joint checking account coupled with (2) donative intent. See this Court’s discussion of that case in In re Succession of Harrison, 50,258 (La.App. 2 Cir. 11/18/15), 183 So.3d 579; see also In re Succession of Love, 16-245 (La.App. 3 Cir. 9/28/16), 201 So.3d 1027. We conclude in this case that, if strong and convincing evidence of donative intent is proven, there are no formal impediments to recognizing these transfers as donations.

The trial court’s finding of donative intent for both transactions was informed by the reverse chronological order in which these motions to traverse were tried. For the February 2013 transfer, the court had an abundance of evidence from which it could infer that Martin intended to donate the IRA distribution proceeds to Ann. Specifically, the testimony of Cynthia Bowe was that:

• Martin called her before Ann delivered the JP Morgan Chase checks to the bank;
• Martin told her to create an IRA with the largest check for the benefit of the Eikert children;
• Martin instructed her to deposit the two smaller checks into the couple’s joint checking account;
• Martin specifically told Bowe to move all but $1,500 from the joint account into Ann’s separate account; and
• Ann did not tell Bowe what to do with the checks, and Kaufman’s policy would not have allowed Ann to deposit these checks directly into Ann’s separate account.

We are mindful that the record also contains evidence that tends to undermine the trial court’s reliance upon this testimony, including:

• Martin’s will leaving the bulk of his estate to the Eikert children, not to Ann;
| ia* Martin’s statement to the JP Morgan Chase rep that what he was “trying to do is leave that money to the children”; and
• The absence of written proof of Martin’s wishes, even in the form of the contemporaneous notes Ms. Bowe made for herself.

Nevertheless, the trial judge, who had the benefit of hearing Ms. Bowe testify live, concluded that Martin’s donative intent was plain from his actions. Bowe’s testimony, if believed, was ample evidence to satisfy Ann Eikert’s burden of proving Martin’s donative intent for the February transfer.

Because the motions to traverse were tried in reverse chronological order, the trial court had the benefit of considering the testimony about the February transfer when deciding the proof of intent for the January transfer. Characterizing that transfer as a donation is more problematic due to the complete absence of either contemporaneous records or even the memory of any Kaufman employee about these events. We know:

• Martin had slightly over $250,000 in cash in a separate savings account at Kaufman;
• On January 18, 2013, Martin was in intensive care in very poor health with limited ability to speak and, possibly, limited access to a telephone;
• Cell phone records do not show calls to the bank from Martin or Ann;
• That day, Kaufman employees created a certificate of deposit for $225,000 with the Eikert children named as beneficiaries;
• Martin signed paperwork accompanying the creation of this CD;
• Also that same day, almost all the rest of Martin’s separate money was moved into the joint checking account he shared with Ann;
• Several hours later, that money was moved into Ann’s separate account;
• These transactions were reflected on Martin’s January 31, 2013, credit union statement;
114* Martin had the opportunity to review this credit union statement before his death, and Ann said that he did look at it, and Martin did not complain about the handling of the transactions;
• Credit union employees emphatically stated that they would not have moved money out of Marvin’s separate account via a phone conversation unless they were convinced that they were speaking with Martin; and
• Ann testified that she did not participate in moving the money into her separate account, but said that Martin called the credit union outside of her presence and then told her what he had done.

Although a fact-finder should always closely scrutinize the self-serving testimony of a putative donee, the record as a whole here does not show that the trial court’s choice to credit Ann Eikert’s testimony was manifestly erroneous or clearly wrong. The informal way that the Eikerts’ credit union handled phone transfers for longtime customers meant that there were essentially no contemporaneous records that might prove or disprove Martin’s intent to donate the money to Ann in January. However, as the trial court recognized, Martin was clearly “preparing his affairs for the worst.” The judge was reasonable to accept the testimony of the credit union employee who testified that she would not have moved the money out of 11BMartin’s separate account unless she was convinced she was dealing with Martin himself. Further, the overall character of this transaction is not suspicious; Martin transferred 9/10 of his cash savings into a CD for his children and, according to Ann, his wife of 17 years, Martin decided to give the remaining 1/10 to her. The evidence proving that the Februaiy transactions were donations supports the trial court’s conclusion that the January transaction was also a donation.

Further, we believe that the key in this series of events is the essential impossibility that Ann could have, by herself, moved the money out of Martin’s separate account. That act, by Martin, placed the money within Ann’s control, and thus was a donation to her, so we do not believe that the subsequent movement of the money into Ann’s separate account is a separate act where donative intent must be proven a second time. However, the trial court chose to believe the testimony of Ann that Martin, not herself, performed this second transfer, so the record supports the conclusion that the second transfer was also a donation. The movement of the money into Ann’s separate account was certainly evidence that the donation was completed; again, see Succession of Gassiott, supra. Thus Ann satisfied her burden of proof that the January transaction was a donation.

Because there was no manifest error in the trial court’s decision to accept the testimony of Ann Eikert and the credit union employees, and because cumulatively this evidence met Ann Eikert’s burden of proving donative intent by strong and convincing evidence, we affirm the decision of the trial court at appellants’ cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before DREW, MOORE, LOLLEY, PITMAN and GARRETT, JJ.

Rehearing denied.

      , When Martin and Ann married, Ann signed a form waiving any interest in this account in favor of the Eikert children.

      . Martin had made other transfers by telephone in the past, and at least some of them had the “phone” notation in the Kaufman records.

      . Nothing in the record explains why JP Morgan Chase sent three checks to the Eikerts. The largest check, about $470,000, was made payable to Kaufman for the rollover, but the other two checks for $17,749.60 and $11,169.39 were made payable to Martin. The sum of the two smaller checks exceeds the amount of the required minimum distribution discussed during the phone calls. Because the smaller checks were payable to Martin and not rolled over into the new IRA, they are effectively distributions.

      . He endorsed the checks in blank and gave them to Ann. See, e,g„ La. R.S. 10:3-203(e).

      . Ann was the only other signatory on the joint account, see Succession of Gassiott, supra.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Mildred Ware SCOTT, Administratrix of the Succession of Jamie Lee Marshall, Plaintiff-Respondent v. Alice Murray SNEED, Defendant-Applicant
    No. 50,954-CW
    Court of Appeal of Louisiana, Second Circuit.
    December 14, 2016

      Rita Kay Bacot, Counsel for Applicant
    Harper Law Firm By: Jerald R. Harper, Counsel for Respondent
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

], After an alleged act of donation and following the death of the donor, the donee executed an affidavit stating that her acceptance of the donation was for the purpose of conveying the property to another relative of the donor following the donor’s death. In a suit to set aside the act of donation by the administratrix of the donor’s succession, the trial court denied the donee’s exception of prescription. We granted a supervisory writ to review the trial court’s ruling and now affirm.

Facts

On July 11, 2008, a donation deed (“Donation”) which purported to donate all right, title, and interest in a 13.5-acre tract of land was executed by Jamie Lee Marshall in favor of Alice M. Sneed. The Donation was executed as an authentic act. The specific wording of the Donation states:

PERSONALLY came and appeared, Jamie Lee Marshall... Who by this formal Act of Donation, irrevocably gives and donates inter vivos; Donor who declared that in consideration of the natural love and affection which she has for Alice M. Sneed...
SAID donor did and by these presents, does given [sic], grant, convey, donate, assign, set over and deliver unto Alice M. Sneed, who is here present and accepting with gratitude, for herself, her successors and assigns, the following described property, to wit....

On May 30, 2009, Marshall died intestate and was survived by her two siblings, David Lee Marshall and Luella Marshall Dyise. On June 8, 2009, one day prior to recording the Donation, Sneed executed an affidavit (“Sneed Affidavit”) which declared that she was the listed donee in the Donation. The Sneed Affidavit then states the following:

That in accepting said donation, she intended to hold the said immovable property for GENNETTE ^MARSHALL, the niece of JAMIE LEE MARSHALL, under certain terms and conditions.
Affiant hereby declares that she is holding said immovable property for GENNETTE MARSHALL, and that in the event GENNETTE MARSHALL, is released from her current term of incarceration on or before June 9, 2014, affi-ant will convey said immovable property to GENNETTE MARSHALL. Affiant further declares that in the event GEN-NETTE MARSHALL is not released from her current term of incarceration on or before June 8, 2014, affiant will convey said property to HENRY L. MARSHALL.

Sneed later recorded the Donation and the Sneed Affidavit in the conveyance records on June 9, 2009, ten days after Marshall’s death. To date Sneed has not conveyed the tract at issue to either Gennette Marshall (“Gennette”) or Henry Marshall (“Henry”).

On December 17, 2014, Mildred Ware Scott, the administratrix of Jamie Lee Marshall’s estate (“the Succession”), filed a petition seeking to set aside the Donation and recover damages from Sneed. The petition asserted the invalidity of the Donation on the grounds of fraud, duress, undue influence, and improper form. Nevertheless, the Sneed Affidavit was also alleged and a copy attached to the petition.

Sneed filed an answer and eventually asserted an exception of prescription. Sneed’s articulated basis for the exception of prescription was that any fraud associated with the Donation or any deficiency in the authentic act would have produced a relative nullity which prescribes in five years under La. C.C. art. 2032. On October 13, 2015, the Succession responded by filing an opposition to the exception, asserting that the Donation is an absolute nullity and imprescriptible.

la At the hearing on the exception, the entire record was offered and received into evidence without objection. This included the deposition of Sneed. Following arguments from both sides, the trial court denied the exception of prescription. Sneed subsequently filed an application for a supervisory writ which was granted by this Court.

Discussion

We first note Sneed’s objection raised during oral argument that the petition lacked a specific assertion regarding the simulation of the Donation. Fraud, duress, undue influence, and improper form were specifically raised in the petition. Nevertheless, those legal conclusions do not govern under Louisiana’s fact-pleading system. Louisiana’s Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. Miller v. Thibeaux, 14-1107 (La. 1/28/15), 159 So.3d 426, 431. A final judgment must grant the relief which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and there has been no prayer for general and equitable relief. Id. at 431-432, citing La. C.C.P. art. 862.

The key fact asserted in the petition was the Sneed Affidavit, which, on its face, indicates that the Donation, by mutual agreement, did not express the true intent of the parties. This fact assertion raises the legal issue of a simulation. La. C.C. art. 2025. Moreover, Sneed offered the entire record at the hearing on the exception. This included Sneed’s deposition testimony concerning the parties’ intent for the Donation and Marshall’s continued possession of the property.

|/The Succession’s assertion that the Donation was a simulation was therefore properly at issue before the trial court. Sneed’s defense of 5-year prescription for the relative nullity of the Donation must be tested under our law regarding simulation.

The main challenge Sneed presents to the trial court’s ruling is that the use of parol or extrinsic evidence to negate the contents of Marshall’s authentic act of donation was improper. From this perspective, the court is not allowed to reach this issue of simulation by going outside the four corners of the Donation. The extrinsic evidence consists of the Affidavit, in which Sneed states that in accepting the donated property, she intended only to hold it for others. Likewise, in Sneed’s deposition testimony she confirmed that she did not want the property and that Marshall remained in possession of it. When specifically asked whether she intended “to take ownership of [Marshall’s] house,” Sneed responded, “No.” All of this evidence is claimed by Sneed to be inadmissible.

Under La. C.C. art. 2025, a contract is deemed to be a simulation when, by mutual agreement, it does not express the true intent of the parties. Further, a counterlet-ter is defined as a separate writing in which the true intent of the parties is expressed. Building on those concepts, the code further distinguishes between absolute simulations and relative simulations. La. C.C. art. 2026 states that “a simulation is absolute when the parties intend that their contract shall produce no effects between them.” (Emphasis added). The intent that there be no effects is later enforced when, for example, an apparent transferee confirms by counterletter that the subject property is still owned by the transferor. In contrast, La. C.C. art. 2027 | ¿provides that “a simulation is relative when the parties intend that their contract shall produce effects between them though different from those recited in their contract.” (Emphasis added). This type of simulation takes place where, for example, the parties make an apparent sale while actually intending a donation.

In Sonnier v. Conner, 43,811 (La.App. 2 Cir. 12/3/08), 998 So.2d 344, writ denied, 09-0309 (La. 4/3/09), 6 So.3d 773, this court considered certain purported sales of land to determine whether they were, in fact, simulations. There, a party sought to introduce as a counterletter a signed and notarized deed by the transferee of the simulated sale. The deed contained a blank purchaser line and was offered in an effort to demonstrate that the prior sale had been a simulation. In addition, the party sought to introduce evidence of continued possession of a property by the vendor to support a presumption of an absolute simulation. This court looked to Civil Code Article 1848 which provides that, in the interest of justice, parol or extrinsic evidence may be introduced to show that a written act was an absolute simulation without the need for a written counterlet-ter.

Importantly, in Sonnier, we noted that some of the revision comments to the Civil Code articles drew a distinction between absolute and relative simulations, concerning the necessity of a written counterletter for proof of an absolute simulation. Finding that evidence of the vendor’s continued possession of the property and nonpayment of the price would be admissible to negate the written act of sale under Articles 1848 and 2480, this court determined that a written counterletter was not essential for proof of the alleged absolute simulation.

| (¡Following the Sonnier decision, the Louisiana legislature enacted La. C.C. art. 1849 which, in its first sentence, reiterates that testimonial or other evidence is admissible to prove a simulation or create or disprove a presumption of a simulation. Nevertheless, in its second sentence, Article 1849 now provides that a counterletter is required to prove an absolute simulation as between the parties in the case of an act purporting to transfer immovable property. The counterletter requirement is not applicable when a simulation is presumed. Comment (c) to Article 1849 further elaborates that testimonial evidence to prove a relative simulation is admissible. Revision Comment (c), La. C.C. art. 1849.

The first task in this case in determining the admissibility of testimonial or other extrinsic evidence to attack this Donation as an alleged simulation is to determine whether Article 1849’s requirement for a counterletter applies so as to make the Sneed Affidavit inadmissible. First, we note that the present simulation arguably may not be said to be “presumed” in law since the presumptive effect of the trans-feror’s continued possession is addressed in the Civil Code only in the case of a simulated sale under La. C.C. art. 2480. Thus, the “presumed” simulation exception to Article 1849’s counterletter rule may not apply in this donation setting. Second, the counterletter rule of Article 1849 only applies “between the parties.” From the context of the second sentence of Article 1849, “parties” apparently includes the actual parties to the simulated transaction and their heirs, except to the extent that a forced heir is seeking to prove an absolute ^simulation without a counterletter. Thus, in this case, since the Succession does not involve forced heirs, the counterletter rule may have application depending upon whether an absolute or relative simulation is claimed.

The two types of simulations, whether relative or absolute, depend on the parties’ mutual intent. La. C.C. arts. 2025, 2026 and 2027. In the absolute simulation, the grantor party intends for the parties’ written contract to produce no effects so that, in the case of a simulated conveyance of immovable property, written title is intended by the grantee to be restored to the grantor. The relative simulation occurs “when the parties intend that their contract shall produce effects between them though different from those recited in their contract.” La. C.C. art. 2027.

The Succession’s offering of the parol/extrinsic evidence can be considered to demonstrate a relative simulation. The parties’ motive or cause of the Donation was to (1) allow Marshall to remain as owner during her lifetime, and (2) eventually allow for the transfer by Sneed of Marshall’s property to one of Marshall’s family members after her death. The offered evidence shows that Marshall remained the apparent owner, "with the Donation unrecorded and with Marshall in possession until her death. Arguably, the parties’ overall motive to place ownership of Marshall’s property into either Gennette or Henry after Marshall’s death would result in a prohibited substitution. Cf La. C.C. arts. 1519, 1520, and 1572. Yet, the lack of a proper testamentary disposition for the transaction does not change the parties’ mutual intent to simulate the conveyance to Sneed to facilitate her later transfer of the property.

| «Moreover, Sneed’s Affidavit and deposition testimony address her intent for her acceptance of the Donation, an essential and somewhat separate component of a donation inter vivos. Louisiana Civil Code Article 1544 provides as follows:

A donation inter vivos is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor.
The acceptance of a donation may be made in the act of donation or subsequently in writing.

Sneed’s expressions in the Affidavit and deposition indicate that her written acceptance of Marshall’s transfer of ownership of the property in the 2008 Donation was a sham. Her statements indicate that her acceptance of the ownership was to take place upon Marshall’s death, at which time she was to hold the property for the ultimate benefit and ownership of either Gen-nette or Henry. The admissibility of this extrinsic evidence to show Sneed’s acceptance after Marshall’s death is, in our opinion, within Article 1849’s allowance of proof of a simulation. Such postmortem acceptance raises a claim by the Succession for absolute nullity.

With this unique relative simulation intended by the Donation, we find that the trial court was permitted under Civil Code Article 1849 to consider all of the above-described extrinsic evidence in holding that the Succession’s claim relates to a simulated contract. At this stage of the proceedings, before trial on the merits, we will consider that a claim for a simulated contract was sufficiently established by the pleadings and the evidentiary hearing on the exception. We will next consider the applicable prescriptive period.

laSneed asserts the 5-year prescription for a relatively null contract. La. C.C. art. 2032. “A contract is relatively null when it violates a rule intended for protection of private parties, as when a party ... did not give free consent at the time the contract was made.” La. C.C. art. 2031. A claim for a simulation contract rests upon the parties’ mutual agreement or the common consent and therefore is not a claim that no meeting of the minds occurred by the failure of one party to give free consent. “A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties.” La. C.C. art. 2025. A simulation, when proven, is a contract. The Succession’s claim is that a meeting of the minds occurred for a simulated act of donation. That is not the same as a claim that Marshall did not give free consent to any contract whatsoever. Accordingly, we do not find that the Succession seeks a remedy for nullity of a relatively null contract.

The jurisprudence discussing prescription for claims of simulations has indicated that an action to establish the contract as a simulation does not prescribe. Mills v. International Mgmt. Consultants, Inc., 425 So.2d 825 (La. App. 5th Cir. 1983); Kinney v. Kinney, 150 So.2d 671 (La. App. 3d Cir. 1963). If, upon trial, the Succession proves that the parties’ mutual agreement for the alleged simulated Donation was for an improper donation mortis causa or resulted in an improper acceptance by Sneed, an absolute nullity may be established. An action for the annulment of an absolutely null contract does not prescribe. La. C.C. art. 2030.

Conclusion

In summary, the Succession’s action seeks recognition of a simulation. The Donation is the alleged simulation and the extrinsic 1 inevidence considered by the trial court in its ruling on prescription is admissible evidence. The prescription of five years asserted by Sneed in her exception is inapplicable, and the trial court’s ruling is affirmed. Costs of appeal are assessed to defendant.

AFFIRMED.

      . La. C.C. art. 2480 provides: When the thing sold remains in the corporeal possession of the seller the sale is presumed to be a simulation, and, where the interest of heirs and creditors of the seller is concerned, the parties must show that their contract is not a simulation.


text:
    STATE of Louisiana, Appellee v. Robert Calvin FARRIS, Appellant
    No. 51,094-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered December 14, 2016

      JASON ROBERTS WILLIAMS & ASSOC., By: Jason Rogers Williams, Nicole Burdett, Brad Scott, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney Counsel for Appellee
    HOLLY Y. McGINNESS, TOMMY J. JOHNSON, Assistant District Attorneys
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|¶ Following a bench trial, Robert Calvin Farris was convicted of two counts of second degree murder and sentenced to life imprisonment at hard labor without benefits on each count, to be served consecutively. Farris now appeals. We affirm the defendant’s convictions and sentences.

Facts

On January 3, 2013, Madonna Wachter and Stephen Bryant were found dead in their home, located at 243 Columbia Street, in Shreveport, Louisiana. Both victims sustained fatal gunshot wounds. Officers discovered numerous threatening text messages in Madonna’s cellphone which referenced a $600 debt that she owed to “Robert” and that she was supposed to pay on January 2, 2013. The messages indicated that the sender wanted his money or “he was going to get it in blood.” Madonna had $326 in her hand when she died. Based on references in the various text messages and the owners/users of the cellphones, officers determined that Robert Farris had sent the threatening text messages and was fronting Madonna drugs for sale. Further, during a search of Farris’s house, officers located two shell casings which matched the two shell casings found at the crime scene.

On March 13, 2013, Farris was charged by bill of indictment with two counts of second degree murder. He waived his right to a jury trial, and the bench trial began on August 25,2016.

Following the bench trial, the judge found Farris guilty of both counts of second degree murder. Thereafter, Farris filed motions for a new trial and post-verdict judgment of acquittal, arguing that the state did not exclude Uevery reasonable hypothesis of innocence, specifically, his alibi. Farris also claimed that in its oral reasons for judgment, the court incorrectly stated that he was identified at the crime scene by a passerby on the evening of the homicides, noting that the witness only stated that she saw a black male. The trial court denied both motions based on the evidence presented at trial.

On September 23, 2015, the trial court sentenced Farris to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, on each count to be served consecutively. Thereafter, Farris timely filed a motion to reconsider sentence, claiming that the sentences were excessive. This appeal followed.

Discussion

First, challenging the sufficiency of the evidence, Farris argues that this case was purely circumstantial and that no rational factfinder could have excluded his reasonable hypotheses of innocence that there was no evidence connecting him to the crime scene and that he provided an un-contradicted alibi. Farris urges that the police failed to investigate Dalando Garner who had access to all of the phones from which the threatening text messages were sent, and lied to the police about his alibi. Farris argues that text messages can be sent by anyone and that a name reference in a text does not rise to proof beyond a reasonable doubt.

In a pro se brief, Farris additionally argues that he established that he was in Texas with his sister at the time of the murders.

At trial, Dalynda Gilcrease, Madonna’s sister, testified that she went to her sister’s house on January 3, 2013, and discovered Stephen. Gilcrease 1 ^called 911. After the homicides, Gilcrease found a piece of paper in Madonna’s lunch bag, with the name “Farris, Ferriss” along with two phone numbers, 638-9269 and 573-3637, written in Madonna’s handwriting, which she turned over to police.

Gilcrease testified that she had suspicions that Madonna was involved with drugs as she had seen her with packets containing white powdery substances and rolls of money. Gilcrease recalled that in May 2012 Robert Farris came to Madonna’s home.

LaRonda Renee Carter stated that she purchased a cellphone for Madonna, with the number 470-0639. After the homicides, she found a piece of paper in Madonna’s purse, on which Madonna had budgeted payment of her bills, including a payment to “Rob” for $100, which she turned over to police.

John Farris, Farris’s father, testified that from December 2012 to January 2013 defendant lived with him at a home on West 71st Street. John claimed that around that time he had a cellphone with the number 200-5074 (one of the phone numbers that sent threatening text messages to the victim) that his daughter got for him. John testified that “a lot of people” used his cellphone, including Farris and Dalando Garner. John stated that he did not know Madonna Wachter or text her as he does not know how to text.

Phyllis Lane testified that her daughter, Angelia Carter, is Farris’s girlfriend. Lane stated that Angelia Carter’s cellphone number was 828-3399 (the other phone number that sent threatening text messages to the | ¿victim). Lane stated that when she would call that number, Farris would answer the phone most of the time.

Dianna Ross, Farris’s sister, testified that she sent the threatening text messages to Madonna from phone number 200-5074, not Farris. Ross stated that phone was in her father’s name, and that Farris never used it: Ross claimed she sent the text messages because Madonna was calling 200-5074, all the time asking for Farris. Nevertheless, Ross admitted that she originally told the police that Far-ris sent the text messages because she was angry with her entire family.

Corporal Sherry Stump of the Shreveport Police Department, crime scene unit, testified that on January 3, 2013, around 10:15 a.m., she responded to the crime scene and observed the two victims. Corporal Stump noted that Madonna had $325 in her right hand and her cellphone was on the floor by her feet.

Corporal Stump testified that at the crime scene three projectiles were found in the sunroom, and two .40 caliber shell casings were found, one on the floor and one on the couch next to Stephen. Drugs and drug paraphernalia were also found in the victims’ bedroom. Additional money was found in Madonna’s purse in the bedroom. No fingerprints in the house were matched to Farris.

On January 4, 2013, Corporal Stump processed Farris’s father’s house, where officers, executing a search warrant, located two .40 caliber shell casings in the yard near the front door. A broken Motorola flip phone was also found in the front yard of the house.

| (¡Carla White, an expert in firearms identification from the North Louisiana Crime Lab, examined the two .40 caliber shell casings found at the crime scene, the two .40 caliber shell casings removed from John Farris’s house, and the three bullets recovered from the crime scene, White determined that all four of the shell casings, recovered from both locations, were fired from the same weapon and were the same brand of ammunition. White concluded that the three bullets were .40 caliber, with the same rifling characteristics. Because of damage to the bullets, White was not able to determine whether the bullets were fired from the same weapon.

Sergeant Patrick McConnell of the Shreveport Police Department testified regarding a traffic stop he conducted of Far-ris on May 23, 2012. A video of the traffic stop showed Farris give his address and state that the vehicle he drove belonged to a woman named Madonna. A license check determined that the vehicle belonged to Madonna Wachter.

Investigator David W. Hensley, of the homicide screening division of the Caddo Parish District Attorney’s Office, stated that through his investigation, he learned that cellphone numbers found in Madonna’s lunch bag, 638-9269 and 828-3399, were registered to Roy Sullivan who gave the phones to his daughter, Kathy Sullivan, Dalando. Garner’s girlfriend. Sullivan gave the phones to Dalando Garner and Angelia Carter. Dalando Garner and Far-ris regularly used both phones. Dalando Garner and Sullivan claimed that they were at the Super 8 Motel on January 2, 2013, but there were no records that they were actually there.

Detective Michael Escude, of the Caddo Parish Sheriffs Office, monitors and oversees the inmate telephone systems at Cad-do Correctional ^Center. Detective Escude testified that he reviewed the calls made by Farris to his mother while he was in jail. In the first call, on January 18, 2013, Farris stated that his lawyer told him he was in jail because of the text messages that he sent “before Christmas.” Also, referencing the text message saying that he would “get it in blood if you don’t pay me,” Farris explained that he was joking and even uses that phrase with his mother. In the second call, on March 13, 2013, Farris stated “I went over there and left and I didn’t do nothing.” In the third call, on May 2, 2013, Farris and his mother were talking about how the police put his photo on the news. Farris explained that they did that so somebody could come forwárd and say they saw him there, and he stated of course they saw me, “I was over there getting my money ... so don’t be stupid.”

Detective Joshua Mayfield, of the Shreveport Police Department, violent crimes unit, testified regarding the text messages he located on Madonna’s cellphone. On December 17, 2012, at 4:00 p.m., Madonna (0639) texted John’s phone (5074) and made the following statements:

“Robert.. .1 let you know.. .1 have half of balance by 5- after I pay to have car fix... trying to come up with rest so we be straight. Doing my best.. .will call you after 530 when get home...”

At 6:20 p.m. John’s number texted Madonna back and stated, “Naw man thats wrong i need my money u playin wit me now.” At 6:22 p.m. Madonna texted John’s number and stated, “No robert.. .im doing my best.. .and trying to work things out. I dont play like that.”

The following day, December 19, 2012, a series of texts from Angelia Carter’s phone (3399) to Madonna occurred before 9:00 a.m. Madonna did not respond and four texts followed from Angelia’s phone. The first |7referenced “U” making me wait for my money. The final three texts included the following statements:

But u kno wat i want never make that mistake again and front yall nuttin after dis. Im waiting till the first the juice imma add like steve said i need 500 on tha first if u aint willing to pay that tell me soon as you read dis message so i know wat i need to do.
But on tha first like i said imma want 500 r yall gone wish yall neva meet me take it as a threat. All yall want so the police dis and all i wouldnt give a fuck cuz dont nobody tell me when they gone pay me. Like i said i need 500 on that first r i want blood for either one of yall and u can go to the cops i wouldnt give a fuck.
I keep a gun for whoever jus did a year for murder behind this same shit look it up on chanel 12 my last name farris.

On December 30,2012 (Sunday), a series of texts between John’s phone and Madonna’s phone occurred between 11:00 a.m. and noon. The text from John’s stated that, “U giving me mine 2 morrow 5 bills for waiting a mounth and fucking up my Christmas huh text me when u see dis cuz its bout dat time.” A text from John’s phone then stated, “im getn paid dis time r getn it in blood believe dat like u do in jesús.” Two texts from Madonna to John’s phone followed. Madonna stated:

I am not giving you any sort of attitude. .. .unlike the many text I am getting. . .and tomorrow is 31st.. .pay day for me is 530pm on Wednesday the 2nd-as the 1st is not work day.. .my comment was that I have your phone number in which to call you.. .Wednesday after 530... as we have discussed already”
“I see no reason for you to continue to contact me in any way shape or form. I will call you Wednesday (January 2, 2013) after 530pm ... that is not a threat nor a thanks. I will call you”

Detective Mayfield testified that he determined that the last call Madonna made was to John’s number 200-5074 on 5:14 p.m. on (Wednesday), January 2, 2013. The last call Madonna received was from Angelia’s number 828-3899 at 6:12 p.m. that same date.

| ^Regarding the December text message which stated “jus did a year for murder behind this same shit look it up on chanel 12 my last name farris,” Detective May-field found a news article from April 7, 2011, on the KSLA (TV Channel 12) website, referencing a drive-by shooting for which Farris and Dalando Garner were arrested and charged with attempted murder.

Detective Mayfield obtained a search warrant for John Farris’s address. When he was arrested, John Farris confirmed that his cellphone number was 200-5074. When Detective Mayfield advised John that he was investigating a double homicide and that threatening text messages were sent from John’s phone to the victim, John stated “That must’ve been my son Robert. He’s the one that uses that phone.”

Detective Mayfield then went to Angelia Carter’s house, where he came into contact with Farris and Dalando Garner. Dalando stated that his phone number was 676-3361, and that he did not know anything about Farris selling drugs to the victims or the homicides. Angelia Carter stated that her phone number was 828-3399, and that Farris would use her phone to call and text message people.

Detective Mayfield testified that Dianna Ross contacted him and stated that she believed that Farris was responsible for the homicides. Ross told Detective May-field that Farris supplied narcotics to Madonna and that he was upset with Madonna because she owed him money. Ross stated that around New Year’s, she saw threatening messages on her father’s phone and brought them to his attention, but she was told to delete the messages. Ross stated that Farris called Madonna from different phone numbers because Madonna was avoiding his calls. Ross stated that Farris had cut his hair off |flafter the homicides, and that she thought it was suspicious because he had done the same thing before when he was involved in a different shooting.

Detective Mayfield admitted that he did not know who was in possession of the subject phones at the time of the murders. Regarding Farris’s alibi that he was in Texas with his sister, Prince Ann Farris, Detective Mayfield noted that in her statement Dianna Ross stated that Farris went to Texas to apply for an apartment before New Year’s.

The defense called Prince Ann Farris to testify that Farris was with her in Texas at the time of the homicides, although she admitted that she did not tell Farris’s attorney this her until a year and a half later.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 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, 01-1658 (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. Crossley, 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied, 13-1798 (La. 2/14/14), 132 So.3d 410. 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, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297. 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. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra; State v. Robinson, 47,437 (La.App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied, 12-2658 (La. 5/17/13), 117 So.3d 918.

The trier of fact is charged with weighing the credibility of this evidence, and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder’s conclusions. State v. Hill, 47,568 (La.App. 2 Cir. 9/26/12), 106 So.3d 617. When the fact finder at trial reasonably rejects the hypothesis of innocence advanced by the defendant, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. A reasonable 111 alternative hypothesis is not one which could explain the events in an exculpatory fashion, but one that is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mack, 13-1311 (La. 5/7/14), 144 So.3d 983; State v. Captville, 448 So.2d 676 (La. 1984).

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. Glover, 47,311 (La.App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied, 12-2667 (La. 5/24/13), 116 So.3d 659. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1.

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Smith, 49,839 (La.App. 2 Cir. 5/20/15), 166 So.3d 416, writ denied, 15-1244 (La. 6/3/16), 192 So.3d 753. |18The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd, 48,914 (La.App. 2 Cir. 1/14/15), 161 So.3d 879, writ denied, 15-0307 (La. 11/30/15), 184 So.3d 33. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La. 1982); State v. Lloyd, supra.

The evidence presented at trial was sufficient to support the defendant’s convictions for second degree murder. The expert testimony establishing the manner of Madonna and Stephen’s deaths was sufficient to establish the perpetrator’s specific intent to kill. The remaining evidence, although circumstantial, was sufficient to establish the defendant as that perpetrator.

The defendant and Madonna had a long-term relationship, likely based on drugs. In the weeks before her death, Madonna received numerous text messages referencing a $500 debt that she owed and was struggling to pay. The messages contained threats of what would happen if she did not pay, including “yall gone wish yall neva meet me,” “i need 500 on that first r i want blood,” “I keep a gun for whoever jus did a year for murder behind this same shit,” and “im getn paid dis time r getn it in blood.” The trial judge reasonably concluded that the defendant sent the messages. The messages were sent from numbers 200-5074 and 828-3399, both of which the defendant had access to and used regularly, as those phones belonged to his father and his girlfriend. In the message exchanges, Madonna identified the sender as “Robert,” and the number 200-5074 was saved in her phone as “DeRoss-200 Robert” and “Dad’s phone.” Although the defendant’s sister | ^claimed she sent the threatening text messages, she originally told police that the defendant sent the messages. Also, in the jail phone call to his mother, the defendant admitted that he sent at least some of the messages.

On January 2, 2013, Madonna was supposed to pay the defendant the money she owed him, as she stated in the text messages. Near the time of her death, the last call Madonna made was to 200-5074, the defendant’s father’s number, at 5:14 p.m., and the last call she received was from 828-3399, the defendant’s girlfriend’s number, at 6:12 p.m. An eyewitness testified that she saw a black male on the front porch of the victims’ house yelling on that date around 6:00 p.m. In a jail phone call to his mother, the defendant admitted that he was at the victims’ house that night to get his money.

Further, the .40 caliber shell casings found at the crime scene and the .40 caliber shell casings found at the defendant’s father’s house, where the defendant lived, were fired from the same weapon.

The defense relied on the alibi testimony provided by the defendant’s sister and tried to establish that the police did not fully investigate other suspects such as Dalando Garner. However, the trial court reasonably rejected such testimony. The defendant admitted that he was at the victims’ house on the night of the homicides, and there was no evidence linking Dalando to the homicides.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the trial judge to conclude beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis of innocence, that the defendant was guilty of the second degree murders of 1 MMadonna Wachter and Stephen Bryant. This assignment of error is without merit.

Next, Farris claims that the trial court erred in denying his motion to suppress. Prior to trial, the defense filed a motion to suppress the evidence obtained from the warrantless search of the victim, Madonna’s, cellphone. The defense relied on Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), Thompson v. Louisiana, 469 U.S. 17, 21, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984), and Flippo v. West Virginia, 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999), for the proposi tion that there is no “crime scene exception” to the warrant requirement. Farris argues on appeal that the defendant has standing to challenge the warrantless search of the victim’s cellphone because he was “adversely affected” by the search under La. Const. Art. I, § 5. The defense claims that because there is no “crime scene exception” to the warrant requirement, the police were required to obtain a search warrant prior to opening the victim’s cellphone and examining its contents. There were no exigent circumstances, and Farris asserts the necessity of a search warrant.

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La. 4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La. 1985); State v. Ledford, 40,318 (La.App. 2 Cir. 10/28/05), 914 So.2d 1168.

When the legality of a search or seizure is placed at issue by a motion to suppress evidence, the state bears the burden of proving the admissibility of any evidence seized without a warrant. La. C.Cr.P. art. 703(D). Trial courts are vested with great discretion when ruling on a motion to suppress, and the ruling of a trial judge on the motion to suppress will not be disturbed absent an abuse of that discretion. State v. Coleman, 14-0402 (La. 2/26/16), 188 So.3d 174.

In Louisiana, “[a]ny person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” La. Const. Art. I, § 5. Thus, “[tjhere is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person’s constitutional rights.” State v. Jackson, 09-1983 (La. 7/6/10), 42 So.3d 368, citing State v. Owen, 453 So.2d 1202 (La. 1984). However, La. Const. Art. I, § 5, presupposes that “there must be an invasion of someone’s rights to privacy before there can be an unreasonable search,” State v. Perry, 502 So.2d 543 (La. 1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). The test of when that intrusion occurs as a matter of the Louisiana Constitution is identical to the Fourth Amendment standard, i.e., the person must possess an objectively reasonable expectation of privacy in the area. Id. The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared 116to recognize as being reasonable. State v. Jackson, supra; State v. Freeman, 50,282 (La.App. 2 Cir. 4/13/16), 194 So.3d 1.

In Mincey v. Arizona, supra, the United States Supreme Court held a warrantless search is not permissible simply because a homicide has recently occurred on the premises. In rejecting a “murder scene exception,” the Court held that the defendant did not forfeit his expectation of privacy in his home where the shooting occurred, nor did his arrest lessen his right of privacy to justify the search of his home. See also, Thompson v. Louisiana, supra (warrantless search of the defendant’s home following murder and attempted suicide when police were summoned to the scene by the defendant’s daughter); Flippo v. West Virginia, supra (warrantless search of cabin where the defendant and his wife were vacationing).

In State v. Hudson, 15-0158 (La.App. 1 Cir. 9/18/15), 2015 WL 5516100, the court found that the defendant had no reasonable expectation of privacy in the deceased victims’ home. In addressing the defendant’s potential standing under La. Const. Art. I, § 5, the court found that there was no living person who had a privacy interest in the home, noting that there must be an invasion of someone’s rights to privacy before there can be an unreasonable search. Further, the court distinguished the Min-cey line of cases, noting that in those cases, the defendant’s home was searched. The court stated that the entry of the victims’ home was not in violation of any living person’s privacy interest, that exigent circumstances created the need to preserve evidence from destruction, and that the officers could seize evidence in plain view. See also, State v. Perry, supra (finding that the defendant had no standing to object to the warrantless search of his parents’ 117home, in which the murders occurred, noting that there was no living person who had a privacy interest in the home); State v. Revere, 572 So.2d 117 (La. App. 1st Cir. 1990), writ denied, 581 So.2d 703 (La. 1991).

At trial, Detective Mayfield testified that when he arrived at the crime scene, Madonna’s cellphone was located on the floor at her feet. He accessed the cellphone and determined the last calls Madonna made and received, and reviewed her contacts and text messages which he found to be threatening. This information led him to the defendant. Detective Mayfield admitted that he did not obtain a search warrant for Madonna’s cellphone.

The trial court did not abuse its discretion in denying the defendant’s motion to suppress the evidence obtained from Madonna’s cellphone. The cellphone was the personal property of Madonna. The defendant had no possessory interest or reasonable expectation of privacy in the cellphone. Although the defendant relies on Mincey v. Arizona, supra, Thompson v. Louisiana, supra, and Flippo v. West Virginia, supra, those cases are distinguishable from the instant case. In those cases, the defendant’s home was searched. However, in the instant case, there was no living person who had a privacy interest in the cellphone.

Regarding the defendant’s standing under La. Const. Art. I, § 5, although the defendant was “adversely affected” by the search of Madonna’s cellphone, La. Const. Art. I, § 5 requires that there be an invasion of someone’s rights to privacy before there can be an unreasonable search. Because Madonna’s rights were not violated by the search of her cellphone, |isthe defendant does not have standing to challenge the search of the cellphone,

The defense next argues that the defendant’s consecutive life sentences are excessive and that the trial court failed to provide sufficient justification for consecutive sentences. The defense claims that the reasons given by the court—the heinous nature of the crime, evidence of the victim attempting to tender money, and the disregard for human life—do not justify such extreme consecutive maximum sentences. The defense argues that the circumstances described by the court are characteristic of many murders and the court failed to address each offense.

As noted above, there is no indication that the trial court ever ruled on the defendant’s motion to reconsider sentence. However, the absence of a ruling on a motion to reconsider sentence does not affect this Court’s ability to consider the constitutional excessiveness of a defendant’s sentence on appeal, nor does it require a remand. The trial court retains jurisdiction to rule on the motion to reconsider sentence and the defendant is within his rights to provoke same. See La. C.Cr.P. Arts. 881.1(C) and 916(8). Should the trial court later rule upon the defendant’s motion to reconsider sentence, the defendant may seek appellate review of that decision pursuant to La. C.Cr.P. Art. 914(B)(2). State v. Jackson, 46,963 (La.App. 2 Cir. 2/29/12), 87 So.3d 174; State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 07-0805 (La. 3/28/08), 978 So.2d 297. See, State v. Weathersby, 13-0258 (La. App. 4th Cir. 4/16/14), 140 So.3d 260 (finding that the failure of a trial court to rule on a motion to reconsider sentence requires that the case be remanded for a ruling, and that appellate review of | i9the defendant’s sentence be deferred); State v. Thomas, 43,783 (La.App. 2 Cir. 1/14/09), 2 So.3d 1181, writ denied, 10-0130 (La. 12/17/10), 51 So.3d 22; State v. Rose, 50,861 (La.App. 2 Cir. 9/28/16), 206 So.3d 1102, 2016 WL 5400446.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. Art. 894.1. Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. I, § 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. Dorthey, 623 So.2d 1276 (La. 1993); State v. Smith, 49,839 (La.App. 2 Cir. 5/20/15), 166 So.3d 416, writ denied, 15-1244 (La. 6/3/16), 192 So.3d 753.

The mandatory sentence for second degree murder is punishment by life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). The argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La. 1982); State v. Smith, supra.

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, and consecutive |2nsentences under those circumstances are not necessarily excessive. State v. Hebert, 50,163 (La.App. 2 Cir. 11/18/15), 181 So.3d 795. It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Robinson, 49,677 (La.App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied, 16-0924 (La. 4/15/16), 191 So.3d 1034.

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. Among the factors to be considered are: (1) the defendant’s criminal history; (2) the gravity or dangerousness of the offense; (3) the viciousness of the crimes; (4) the harm done to the victims; (5) whether the defendant constitutes an unusual risk of danger to the public; and (6) the potential for the defendant’s rehabilitation. However, the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Robinson, supra.

Although the trial court has not yet ruled on the defendant’s motion to reconsider sentence, this Court may review the defendant’s sentences for constitutional ex-cessiveness. The trial court did not abuse its discretion in sentencing the defendant to two consecutive life sentences. At sentencing, the trial court stated that it considered the totality of the circumstances, the aggravating and mitigating factors in La. C.Cr.P. Art. 894.1, the heinous nature of the murders, the fact that there was evidence that the victim attempted to tender money to the person committing the crime, and the |¾1 disregard for human life. These were extremely violent crimes which resulted in the deaths of two people. The record adequately supports the imposition of consecutive sentences in this case.

Moreover, even if the trial court erred in imposing consecutive rather than concurrent sentences, the error was harmless in light of the fact that each life sentence was imposed without the benefit of parole, probation, or suspension of sentence. See State v. Wood, 08-1511 (La.App. 3 Cir. 6/3/09), 11 So.3d 701; State v. Petty, 12-278 (La. App. 5th Cir. 10/30/12), 103 So.3d 616.

The defendant’s consecutive life sentences are not excessive. When compared to the severity of the offenses, the defendant’s sentences are neither grossly disproportionate, nor shocking to the sense of justice. This assignment of error is without merit.

Next, in three pro se assignments of error, Farris raises various claims relating to the bill of indictment, including the trial court’s denial of a motion to quash.

In response, the state argues that the defendant was properly charged with two counts of second degree murder by a short form indictment, that the record indicates that the foreman signed the indictment, and that the indictment was filed on March 13, 2013. The state claims that its responses to discovery and the bill of particulars were sufficient to give the defendant notice of the charges against him. Also, the state notes that there is no indication that the trial court ruled on the pro se motions to quash, and therefore, the defendant has waived his right to object.

| ^Motions pending at the commencement of trial are waived when the defendant proceeds to trial without raising the issue that the motions were not ruled upon. State v. Holmes, 06-2988 (La. 12/2/08), 5 So.3d 42, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009); State v. Winzer, 49,316 (La.App. 2 Cir. 10/8/14), 151 So.3d 135, writ denied, 14-2373 (La. 4/22/16), 191 So.3d 1044.

The bill of indictment was in proper form and the defendant was adequately informed of the nature of the charges against him. Contrary to the defendant’s allegations, the indictment endorsed “a true bill” and signed by the foreman of the grand jury, and the minutes indicate that the “true bill was filed” on March 13, 2013. The indictment provides, in pertinent part:

on or about the 2nd day of January 2013, ... ROBERT CALVIN FARRIS committed the offense of SECOND DEGREE MURDER (2 counts) as defined by R.S. 14:30.1 in that he: COUNT 1: committed second degree murder of MADONNA DEAN WACHTER [and] COUNT 2: committed second degree murder of STEPHEN BRYANT.

The indictment complied with the short form provided in La. C.Cr.P. Art. 465(A)(32), and the state provided the defendant with ample discovery and adequately responded to the defendant’s request for a bill of particulars. Further, there is no indication that the trial court ever ruled on the defendant’s motions to quash. Because the defendant failed to object to the trial court’s failure to rule on his motions, the defendant has waived this claim. This assignment of error is without merit.

The defendant next claims in a pro se assignment of error that the trial judge’s finding of guilt establishes that the judge was biased. The judge incorrectly stated that an eyewitness identified the defendant at the crime scene outside the house and rejected the testimony regarding the defendant’s |2Salibi. These rulings indicate no bias, and the trial court’s misstatement was harmless error.

A trial judge is presumed to be impartial, and the burden is on the defendant to prove otherwise. In order to obtain a recusation based on bias, prejudice, and personal interest, the party seeking the recusation must establish grounds of a substantial nature based on more than conclusory allegations. State v. Brown, 46,669 (La.App. 2 Cir. 2/29/12), 86 So.3d 726, writ denied, 12-0724 (La. 9/14/12), 97 So.3d 1016. See also La. C.Cr.P. Art. 671; State v. Rollins, 32,686 (La.App. 2 Cir. 12/22/99), 749 So.2d 890, writ denied, 00-0549 (La. 9/15/00), 768 So.2d 1278 (defendant’s assertions that several evidentiary rulings showed the trial judge’s inability to conduct a fair and impartial trial did not set forth valid grounds for recusal, where defendant failed to point to specific facts as to why rulings were grounds for recusal and presented no evidence that rulings were anything other than ordinary eviden-tiary rulings); Brown v. Brown, 39,060 (La.App. 2 Cir. 7/21/04), 877 So.2d 1228 (“adverse rulings, alone, do not show bias or prejudice requiring recusal”).

As discussed above, the evidence was sufficient to support the defendant’s convictions for second degree murder. The defendant failed to prove that the trial judge was biased, and this assignment of error is without merit.

In his next pro se assignment of error, Farris challenges the state’s expert witness testimony regarding the gun casings. Carla White was offered by the state as an expert in firearms identification. Defense counsel objected to White’s qualifications, claiming that she had never been [^qualified as an expert in the specific area of tool mark identification. Considering White’s testimony that firearms identification is a subdivision of tool mark identification, along with her knowledge, experience and education, the trial court accepted White as an expert in firearms identification.

The defendant now argues again that the trial court erred in allowing White to testify because she was not a tool mark expert. He claims that White did not “show any of her findings” and that she would have needed the gun to analyze the bullets and casings. In response, the state contends that White was properly allowed to testify as a firearms expert as she stated that firearm analysis is a part of tool mark analysis, and that the defendant’s argument relates to the weight and credibility of White’s testimony.

Under La. C.E. Art. 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case.

Trial courts are vested with great discretion in determining the competence of an expert witness, and rulings on the qualification of a witness as an expert will not be disturbed unless there was a clear abuse of that discretion. State v. Tucker, 49,950 (La.App. 2 Cir. 7/8/15), 170 So.3d 394; State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

The trial court did not abuse its discretion in accepting White as an expert in firearms identification. White testified about her education and experience and stated that she has qualified as an expert in firearms identification in Caddo, Bossier and Sabine Parishes and in federal court. Although she has never qualified as an expert in tool mark identification, she testified that firearms identification is a subset of tool mark identification. Further, White’s certified report was introduced into evidence at trial. White explained how she compared the shell casings and the bullets and testified that she did not need the gun in order to determine that all four casings were fired from the same gun. This assignment of error is without merit.

Finally, the defendant claims that the court reporter failed to record the entire trial proceedings. This argument is based on the fact that in providing reasons for the verdict, the trial judge stated that the defendant was identified by an eyewitness who saw him yelling outside the victims’ home, when no such testimony is included in the record. An eyewitness did testify to seeing an unidentified black man outside the home on the evening of January 2.

La. Const. Art. I, § 19 guarantees defendants a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” In felony cases, the clerk of court or court stenographer shall record all proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, |2fiand objections, questions, statements and arguments of counsel. La. C.Cr.P. Art. 843.

The defendant failed to show that portions of the trial were not transcribed by the court reporter. The fact that the trial judge incorrectly noted that an eyewitness identified the defendant is not proof of missing trial testimony. This assignment of error is without merit.

Conclusion

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . There is no indication that the trial court ruled on the motion.

      . Diane Stokes Farris, Farris’s mother, confirmed that Farris and Dalando Garner both used John Farris’s cellphone.

      . Although the cellphone was subscribed to LaRonda Carter, Madonna's sister, LaRonda gave the cellphone to Madonna for her use, and therefore, it appears that LaRonda did not have any privacy interest in the cellphone.