author: JUDE G. GRAVOIS, Judge.

text:
    Tina Sudkamp PENN v. Todd Michael PENN, Sr.
    No. 09-CA-213.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellant.
    Julia P. McLellan, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12In this child custody and support matter, Tina Sudkamp Penn appeals a trial court judgment that awarded her shared (50/50) custody of the parties’ minor children with her ex-husband, Todd Penn. On appeal, Mrs. Penn argues that the trial court’s award of shared (50/50) custody was erroneous in various respects, including the trial court’s reliance on an incorrect legal presumption. In consequence, she asks this court for a de novo review of the record, and an award of joint legal custody with her as domiciliary parent.

Mr. Penn counters that the award of shared (50/50) custody was supported by the record and should be affirmed. He also answered the appeal, arguing that the trial court erred in failing to order the production of the parties’ income and financial data, and therefore the trial court’s calculations of child support amounts were in error. He asks for recalculation of the child support amounts, or in the alternative, a remand to the trial court for introduction of additional evidence and re-determination of the child support award.

|sFor the reasons that follow, we reverse the trial court’s judgment of December 10, 2008.

Procedural Background

The briefs and the record show that after approximately seventeen years of marriage, Mrs. Penn filed a Petition for Divorce against Mr. Penn on September 12, 2007. A Consent Judgment was rendered on December 20, 2007 (read and signed on February 13, 2008), that, among other things, awarded shared (50/50) custody on an interim basis to the parties, pending a trial on custody. Another judgment, rendered on February 14, 2008, awarded interim child support to Mrs. Penn in the amount of $617.00 per month, in addition to deciding other specific spousal and child support issues.

On October 1, 2008, Mrs. Penn filed a Motion and Order to set the custody and support matters for trial for a final judgment. Following a hearing on November 21, 2008, wherein the trial court took the matters under advisement, the trial court rendered a judgment on December 10, 2008 that the parties now appeal. Pertinently, that judgment ordered Mr. Penn to pay Mrs. Penn child support in the amount of $1,067.78 per month. Regarding custody, the trial court found that it was in the best interests of the children that the parties have shared (50/50) custody, and gave reasons for that decision.

On appeal, Mrs. Penn argues:

1) The lower court committed manifest error by failing to award legal custody as mandated by Louisiana Civil Code Article 132 and Louisiana R.S. 9:335.
2) The lower court committed manifest error by refusing to interview the minor children in chambers outside the presence of their parents Land by allowing the father to personally cross-examine one of the minor children.
3) The lower court committed manifest error by awarding shared 50/50 physical custody based primarily on two incorrect assumptions as follows:
a) That the law says 50/50 physical custody is favored; and
b) The parties must have felt 50/50 physical custody was in the best interest of the children because they agreed to it on an interim basis pending the trial; and
4) The lower court committed manifest error by finding that shared 50/50 physical custody was in the children’s best interest.

Analysis

First of all, Mrs. Penn argues that she is entitled to a de novo review of this record, citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, asserting that the trial court used the incorrect legal standard in deciding custody. This is not the case, however. The trial court’s reasons for judgment clearly show that he used the “best interest of the child” standard found in LSA-C.C. art. 131 to determine physical custody, which legal standard is currently the prevailing law. Accordingly, Mrs. Penn is not entitled to de novo review of the record on the issue of child custody.

Next, we address Mrs. Penn’s argument that the trial court erred by refusing to interview the minor children in chambers outside the presence of their parents and by allowing the father to personally cross-examine one of the minor children, citing Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.1985), writ denied, 464 So.2d 301 (La.1985). We find no merit to this assignment of error.

| f/Fhe record shows that Mrs. Penn called the children as witnesses in her case. At the time of trial, they were 14, 12, and 11 years old. Her counsel requested that the court interview the children in chambers without either the parents or attorneys present, arguing that such a procedure was customarily done. The court expressed concern about talking to a child without either the parents or the parents’ attorneys being present, and denied Mrs. Penn’s request to interview the children in chambers. Mrs. Penn’s objection was noted for the record.

In Watermeier, this court determined that a proper procedure for the handling of a child’s testimony in this type of case was for the court to interview the child in chambers, with the parents’ attorneys present (but neither parent), with a court reporter present to make a record. The court would first interview the child to establish his competency to testify, and if it so found, would further interview the child in the presence of the parties’ attorneys (but without their participation) on the record regarding the custody issues. The court made it clear that this procedure was not mandated, however, if the parties could agree to another procedure.

It is not totally clear from the transcript, but it appears that what counsel for Mrs. Penn claimed was the “customary” procedure was for the court to conduct an interview with the minor children in chambers without either the parents, the attorneys, or a court reporter present, which procedure was specifically disapproved by Watermeier. Watermeier does not address whether a parent may cross-examine his own child on the witness stand.

In this case, Mrs. Penn objected to the children testifying in open court. She did not raise the issue of the children’s competency to testify, which was a ^significant issue in Watermeier. The children’s ages were 14, 12, and 11, which is significantly older that the child witness in Watermeier. Mrs. Penn was clearly concerned with the children’s ability to express their preferences in her favor rather than their competency to testify.

In Fuge v. Uiterwyk, 94-1815 (La.App. 4 Cir. 8/29/95), 653 So.2d 707, the court discussed the applicability of Watermeier with older child witnesses. The court found that the children, who were in high school and whose competency was not at issue, were not of such tender age as to require protection from the mere presence of their parents. Accordingly, Watermeier does not require that in all custody cases, a child be examined in chambers outside of the parents’ presence. We find that on this basis, the trial court did not err in allowing the children to testify in open court.

The basis for Mrs. Penn’s argument on appeal is that her children’s testimony was not as “strong” as it might have been in chambers without either parent present. Be that as it may, the children’s preferences are only one factor of many that the court considers when determining the best interests of the children. All three children testified that they would like to live primarily with their mother, but wanted also to see their father regularly. The trial court, however, in its written reasons for judgment, appears to have mischaracterized their testimonies, stating: “The children did state that they would prefer more time with Mrs. Penn.” Their testimonies were clear that they would prefer to live primarily with her.

In every child custody determination, the primary consideration is the best interest of the child. La. C.C. art. 131. Thereafter, the court should award custody in accordance with the parents’ agreement, but if they cannot agree, or if the agreement is not in the child’s best interests, the court shall award custody to the parents jointly. LSA-C.C. art. 132. LSA-R.S. 9:335(A)(2)(b) states that if feasible |7and in the best interest of the child, physical custody of the children should be shared equally.

The court is to consider all relevant factors in determining the best interest of the child (LSA-C.C. art. 134) but is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Stroud v. Stroud, 43,003 (La.App. 2 Cir. 12/14/07), 973 So.2d 865. These factors have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. Mire v. Mire, 98-1614, pp. 3-4 (La.App. 4 Cir. 3/24/99), 734 So.2d 751, 753.

The trial court’s custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion. McKenzie v. Cuccia, 04-0112, p. 3-4 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 338 (citing Thompson v. Thompson, 532 So.2d 101 (La.1988)).

When, as here, the parties previously consented to a custodial arrangement, the party seeking modification must prove both that there has been a material change in circumstances since the original custody decree, and that the proposed modification is in the best interest of the child. Stroud, supra.

Mrs. Penn presented evidence that Mr. Penn’s work schedule did not permit him to exercise true shared (50/50) custody, and that in fact he had exercised custody only 29.5% of the time from the consent judgment through trial. She noted that the children testified that they preferred to live primarily with her. She also expressed concern that while the children were with their father during the summer, on several occasions she felt that they were not supervised. She did not like that the fourteen-year-old daughter had to walk a mile home from school to |Rher father’s house on occasion. She complained that Mr. Penn would not buy the children things and that they came to her during his weeks to buy them things. She testified that he did not share responsibility for their extracurricular activities and doctor visits. She also noted several occasions when the children wanted to remain with her or called her from their father’s home asking that she come get them.

The parties’ testimony showed that Mr. Penn did exercise shared (50/50) custody in the first three months after the consent judgment, but did not do so thereafter. Mr. Penn testified that since the Consent Judgment was entered, his work schedule at the Waterford III nuclear plant was affected by two unusual events: a fuel outage, which occurs every eighteen months, and Hurricane Gustav. Mr. Penn stated that he could have evacuated for Gustav, but agreed to work overtime on lockdown at the plant because Mrs. Penn said she could evacuate with the children.

Mr. Penn explained that he worked voluntary overtime in an effort to pay his bills, which included child support. Mr. Penn acknowledged, however, that he worked a significant amount of overtime during the entirety of the parties’ marriage. Mr. Penn explained that he could have gotten help taking care of the children during these work events from his two sisters-in-law and a neighbor, but that Mrs. Penn wanted to care for the children during these times and that he agreed. He felt that he should not have this held against him, nor the fact that he got help occasionally from others, when Mrs. Penn also received help with child care from her parents on a regular basis. Mr. Penn testified that his work schedule sometimes required that he use the before and after care at the children’s schools, |9and that while his daughter did occasionally walk home, other times he was able to have her picked up.

Mrs. Penn presented the testimony of her parents, her brother, and a friend, who all testified that while the parties were married, Mrs. Penn was the primary caretaker of the children, while Mr. Penn was the provider. They agreed he was a hard worker and a good provider, and that both were good parents.

Considering the factors in C.C. art. 134, we find that the record supports the finding that most of them are in balance and that both parents have demonstrated their fitness and desire to be involved with their children. We find that the trial court erred, however, in finding that shared (50/50) custody was feasible and in the children’s best interests. The evidence shows that Mr. Penn is not able to exercise shared (50/50) custody of the children on a regular basis because of his work schedule. Though he characterized the fuel outage and the hurricane as unusual events, the record shows that Mr. Penn worked a significant amount of overtime during the marriage and continued to do so after the divorce. The trial court failed to consider that prior to the divorce, Mrs. Penn was the children’s primary caregiver, in part precisely because of Mr. Penn’s work schedule. Though Mr. Penn did exercise shared (50/50) custody for three months after the Consent Judgment, this is inconsistent with his practice of working significant overtime during the entirety of the parties’ marriage and then again after the first three months following the Consent Judgment. The trial judge further erred when it stated it saw no reason why Mrs. Penn’s family could not help Mr. Penn with the children when they were with Mr. Penn. The trial court did not require such an arrangement, nor could it, but this observation implicitly recognizes that because of his work schedule, shared (50/50) custody is not feasible. Additionally, it is not | infair or reasonable to place Mrs. Penn’s parents in the position of facilitating a custody arrangement to which their daughter objects.

Next, Mrs. Penn argues that the trial court failed to address the issue of legal custody, as opposed to physical custody. Mrs. Penn argues that the court’s failure to designate which parent is the domiciliary parent, and also its failure to allocate the parents’ legal authority and responsibility, as per LSA-R.S. 9:335, has prejudiced her in various ways.

Our reversal of the custody determination, in naming Mrs. Penn as the domiciliary parent, makes this assignment of error partially moot. The trial court nonetheless erred by not rendering a joint custody implementation order. Courts have noted that LSA-R.S. 9:335 requires the trial court to render a joint custody implementation order, except for good cause shown, allocating the legal authority and responsibility of the parents and the time periods during which each parent shall have physical custody of the child. Duvalle v. Duvalle, 27,271 (La.App. 2 Cir. 8/23/95), 660 So.2d 152. Accordingly, on remand, the trial court is hereby ordered to render a joint custody implementation order, including such things as reasonable visitation privileges for Mr. Penn.

Mr. Penn’s Answer to the Appeal

Mr. Penn answered the appeal, contending that the trial court erred in its calculation of his child support obligation. Specifically, he argues that the trial court erred in failing to use the statutorily required financial data, and additionally erred in failing to articulate sufficient reasons for its calculations.

We must reverse the trial court’s judgment regarding child support. Given that we are hereby designating Mrs. Penn as the domiciliary parent, the child support obligation must be re-determined on that basis. Further, LSA-R.S. | n9:315.2(A) is clear in its mandate of essential documentation. That statute in pertinent part provides:

Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings.... Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.

As this court stated in Inzinna v. Acosta, 623 So.2d 1357 (La.App. 5 Cir.1993):

Without the appropriate and required documentation this matter cannot be decided in accordance with law. The matter must be remanded for the collection of the required documentation and evidence and the proper calculation of child support in accordance with R.S. 9:315 et seq. See Mannina v. Mannina, 588 So.2d 176 (La.App. 5 Cir.1991); Phillips v. Phillips, 595 So.2d 732 (La.App. 5 Cir.1992). Without a verified income statement from Mrs. Inzinna, copies of the most recent tax returns of both parties, and other evidence necessary pursuant to LSA-R.S. 9:315.2 the trial court could not properly apply the guidelines of LSA-R.S. 9:315 et seq. and neither can this court.

It appears that the parties’ 2007 federal tax returns were completed, as Mrs. Penn argued that Mr. Penn claimed all three children on his 2007 tax return and she was therefore unable to claim any child on hers. The parties do not explain, however, their failure to produce their most recent federal tax returns. Further, the documentation that is present in the record, particularly regarding Mr. Penn’s income, is confusing. Accordingly, the child support judgment is reversed and the matter remanded for compliance with LSA-R.S. 9:315.2(A) and a hearing.

112Conclusion

The trial court’s judgment of December 10, 2008 is hereby reversed. We hereby grant the parties joint custody of the children with Mrs. Penn being designated as domiciliary parent. Because of this change in custody, the trial court’s award of child support is also hereby reversed. This matter is hereby remanded to the trial court for a hearing to re-determine child support and for formulation and rendering of a joint custody implementation order.

REVERSED AND REMANDED.

      . It also ordered that Mr. Penn was solely responsible for the children's medical insurance costs and private school tuition and registration, and ordered that the parties would share the children’s uncovered medical expenses and school-related expenses, 84% to Mr. Penn and 16% to Mrs. Penn.

      . In Evans v. Lungrin, the trial court determined custody relying on Civil Code articles that had been repealed and reenacted well before the custody proceeding. The old articles used by the court contained different presumptions and burdens of proof that were found to have interdicted the fact-finding process.

      . On appeal, Mrs. Penn argues that the court erred in allowing Mr. Penn, who represented himself at the hearing, to cross-examine his daughter. We note, however, that Mrs. Penn did not object to the cross examination at the hearing. Therefore, this assignment of error is not preserved for appeal.

      . This is a lesser burden of proof than a party seeking modification of a considered permanent decree. See Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986).

      . Mrs. Penn’s parents testified at the hearing that they helped Mrs. Penn occasionally, picking up the children from school from time to time, watching them when she needed it, and that the children ate meals with them several nights a week.

      . The record contains the following exhibits: Mrs. Penn's employer's statement of income, which includes a pay stub from November 14, 2008; costs of some of the children’s extracurricular activities; child support worksheets A and B prepared by counsel for Mrs. Penn; Mrs. Penn's affidavit of income and expenses; Mr. Penn's income summary, which includes several W-2s; Mr. Penn's income record from Entergy from January 8, 2008 through November 8, 2008; Mr. Penn's most recent paycheck (dated November 8, 2008); Mr. Penn's paycheck for 80 hours; Mr. Penn’s monthly expense sheet; Mr. Penn’s 2007 W-2; and a letter from Entergy confirming Mr. Penn’s base pay. Mr. Penn notes that while he submitted W-2s from 2001-2007, he did not submit any tax returns.


source: Caselaw Access Project

author: FREDERICKS HOMBERG WICKER, Judge.

license: Public Domain

text:
    Charalabos “Harris” TSAOUSSIDIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, James Driver and U.S. Auto Insurance Services, Inc.
    No. 09-CA-325.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Steven E. Psarellis, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    E. Gregory Voorhies, Attorney at Law, Lafayette, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKS HOMBERG WICKER, Judge.

| .¿Plaintiff Charalabos “Harris” Tsaoussi-dis (“Tsaoussidis”) appeals a judgment dismissing his claims against defendants James Driver (“Driver”) and U.S. Auto Insurance Services, Inc. (“U.S. Auto”). The trial court rendered judgment granting U.S. Auto’s exception of lack of personal jurisdiction. On appeal, Tsaoussidis contends that the trial court erred in placing the burden of proof to prove jurisdiction upon him. Tsaoussidis additionally contends that the trial court erred in granting the exception. For the reasons that follow, we affirm.

On February 15, 2005, Tsaoussidis was involved in a traffic accident in Houston, Texas. At the time of the accident, Tsaoussidis was a passenger in a vehicle owned and driven by Panagiotis Provolisia-nos. Driver’s vehicle allegedly struck Pro-volisianos’s vehicle on the right front side. U.S. Auto was Driver’s liability insurer. The parties do not dispute that U.S. Auto is not authorized to do business in Louisiana and that it issues insurance policies only to Texas residents. In addition, the parties do not dispute that Driver is domiciled in Harris County, Texas and that Tsaoussidis is domiciled in Jefferson Parish.

|sOn February 14, 2007, Tsaoussidis filed a petition for damages in Jefferson Parish alleging that as a result of the accident, he was diagnosed with cervicalgia, pain in the thoracic spine, lumbago, and a lumbar sprain. Tsaoussidis further alleged that the sole cause of the 2005 accident was Driver’s gross negligence and lack of skill. U.S. Auto was named as a defendant in the petition. U.S. Auto thereafter filed an exception of lack of personal jurisdiction. The exception was heard on February 5, 2009.

At the hearing, counsel for Tsaoussidis argued that U.S. Auto subjected itself to personal jurisdiction in Louisiana because it issued insurance policies to Texas residents who may travel to Louisiana. Counsel for Tsaoussidis contended that Louisiana is neither an inconvenient nor a distant forum for U.S. Auto. Counsel additionally argued that Louisiana has an interest in asserting jurisdiction over U.S. Auto because Tsaoussidis has no health insurance and Louisiana taxpayers will otherwise be forced to pay for his medical expenses.

Counsel for U.S. Auto cited Dumachest v. Allen, 2006-1614 (La.App. 3 Cir. 5/23/07), 957 So.2d 374, for the proposition that a Louisiana court has no personal jurisdiction over a foreign insurance company when the foreign company’s insured injures a Louisiana resident in Texas.

The trial court granted U.S. Auto’s exception, dismissing Tsaoussidis’s claims against Driver and U.S. Auto. This timely appeal followed. Because the appellant’s two specifications of error are intertwined and essentially address the same argument, we will consider them together in the interests of judicial economy.

La. R.S. 13:3201, the Louisiana long-arm statute, provides circumstances under which a Louisiana court may exercise personal jurisdiction over a nonresident defendant. La. R.S. 13:3201(A) provides, in pertinent part:

14A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
La. R.S. 13:3201(B) provides:
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

La. R.S. 13:3201(B) was designed to insure that the long-arm jurisdiction of a Louisiana court extends to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 792 (La.1987); U.S. Const. amend. XIV, § 1. Under “the express terms of [La. R.S. 13:3201(B)], the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitu tional due process requirements.” Id. If the assertion of jurisdiction meets the constitutional requirements of due process, jurisdiction is authorized under La. R.S. 13:3201. Id. (citing Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La.1987)).

In order to subject a nonresident defendant to a personal judgment under the constitutional requirements of due process, the defendant must have certain “minimum contacts” with the forum state such that the maintenance of the lawsuit does not offend “traditional notions of fair play and substantial justice.” See de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 105 (La.1991); see also International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Thus, there are two prongs to the due process test: the “minimum contacts” prong and the “traditional notions of fair play and substantial justice” prong. A & L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/29/01), 791 So.2d 1266, 1270-71, cert. denied, Pegasus Group v. A & L Energy, Inc., 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001).

The “minimum contacts” test is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). The defendant’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Ruckstuhl v. Owens Corning Fiberglas Corporation, 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). “Purposeful avail ment” ensures that the moving party will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person. Rudzewicz, 471 U.S. at 474-75, 105 S.Ct. at 2183-84.

Even if “minimum contacts” exist between a nonresident defendant and the forum state, the exercise of personal jurisdiction over the defendant will fail to satisfy due process requirements if the assertion of jurisdiction offends “traditional notions of fair play and substantial justice.” A & L Energy, 791 So.2d at 1271, (citing International Shoe, 326 U.S. at 316, 66 S.Ct. at 158). If the plaintiff meets his burden of proving minimum contacts, the burden shifts to the defendant to prove that the jurisdiction would be so unreasonable in light of traditional notions |tiof fair play and substantial justice to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum. Id. at 1274. The second part of the test thus imposes on the defendant the burden of establishing the unfairness of the assertion of jurisdiction.

In determining whether the assertion of jurisdiction would offend traditional notions of fair play and substantial justice, a court must examine (1) the defendant’s burden; (2) the forum state’s interest in the dispute; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Id. The fairness component is comprised mainly of the burden on the defendant to defend a suit in the forum minus the interests of the plaintiff and the state to have the suit litigated in the forum. Id.

In reviewing a judgment on an exception of lack of personal jurisdiction, the factual findings underlying the judgment are reviewed for manifest error. See, e.g., Martin-Creech v. Armstrong, 42,-649 (La.App. 2 Cir. 9/12/07), 965 So.2d 624. The application of the facts to established rules of law is a legal question, and thus, the legal issue of personal jurisdiction over a non-resident by a Louisiana court is subject to de novo review.

In the instant case, the parties do not dispute Tsaoussidis’s residency is Louisiana’s only connection with the instant suit. Driver is a Texas resident. The accident took place in Texas. U.S. Auto is not licensed to do business in Louisiana. There is no evidence that U.S. Auto has ever defended a lawsuit in Louisiana. There is no evidence that U.S. Auto conducted business in Louisiana or that it entered into any contractual relationships with Louisiana domieiliaries.

Several Louisiana cases are factually similar to this case. In Cohen v. Cohen, 94-0381 (La.App. 4 Cir. 4/14/94), 635 So.2d 1293, the plaintiff was injured |7in a car accident that occurred in Vermont. At the time, he was a passenger in a vehicle owned and operated by his daughter Sha-roan. Sharoan’s vehicle was insured by Zurich Canada Insurance Company (“Zurich Canada”). The plaintiff filed suit in Orleans Parish for injuries he allegedly sustained in the accident. The plaintiff named Zurich Canada as a defendant. Zurich Canada thereafter filed an exception of lack of personal jurisdiction. Id. at 1295. Zurich Canada was not licensed to do business in Louisiana, had no contact with Louisiana, and had never provided an agent for service of process in Louisiana. Id. The trial court denied the exception of lack of personal jurisdiction. However, the Fourth Circuit granted writs and reversed the judgment of the trial court. The court reasoned:

The only apparent connection this suit has to Louisiana is that the plaintiff and his daughter, defendant Sharoan Cohen, are Louisiana residents. Additionally, [the plaintiffs’ insurer], Continental, does business in Louisiana and has been named as a defendant. Standing alone, these factors are not sufficient to withstand due process challenges.
To compel the relators to defend a lawsuit in a state in which neither relator has ever had one single contact offends due process. Since the relator clearly established that no minimum contacts exist with the state of Louisiana, the trial court erred when it overruled relator’s exception of lack of personal jurisdiction.

Id. at 1295-96.

Similarly, in Dumachest v. Allen, 2006-1614 (La.App. 3 Cir. 5/23/07), 957 So.2d 374, the plaintiffs’ mother was a guest passenger in an 18-wheel truck and trailer owned by Celadon Trucking Services, Inc. While the plaintiffs’ mother was in the truck, the truck’s driver abruptly swerved and applied his brakes to avoid a collision with another vehicle. The plaintiffs’ mother allegedly injured her left leg and ankle when she fell from the bed of the truck’s cab onto the floor of the cab. Id. at 376. She eventually died after her wounds became infected. Id. The accident took place near Texarkana, Texas, but the plaintiffs filed a wrongful death |8suit in Lafayette Parish. Id. at 375-76. The plaintiffs named Celadon as a defendant.

Celadon filed an exception of lack of personal jurisdiction, asserting that it was incorporated in New Jersey, that its principal place of business was in Indiana, and that the alleged accident at issue occurred in Texas. Id. at 376. The trial court sustained the exception. The court of appeal affirmed, noting:

After a careful de novo review of the record, facts, and circumstances in this case, we find that Celadon’s contacts with the State of Louisiana are insufficient for the State of Louisiana to exercise jurisdiction over it.
To subject Celadon to personal jurisdiction in the State of Louisiana would offend traditional notions of fair play and substantial justice. Therefore, under the minimum contacts analysis, and considering the facts in this case and applicable law, we agree with the trial court’s finding that a sufficient basis does not exist to subject Celadon to personal jurisdiction in the State of Louisiana.

Id. at 379-80.

As in Dumachest and Cohen, the instant defendant’s only connection -with Louisiana is the plaintiff’s residency. We find that U.S. Auto established that it has no minimum contacts with the state of Louisiana. We need not consider whether an assertion of jurisdiction would offend traditional notions of fair play and substantial justice. Accordingly, we find that the trial court correctly granted U.S. Auto’s exception of lack of personal jurisdiction.

CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Tsaoussidis.

AFFIRMED.


text:
    STATE of Louisiana v. Jeffery J. BUTLER.
    No. 09-KA-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Michael D. Smith, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12Pefendant Jeffery J. Butler appeals his conviction by a jury of possession of cocaine, a violation of LSA-R.S. 40:967 C. Defendant received a sentence of five years at hard labor. On appeal, he argues that the trial court erred in denying his motion to suppress evidence. Finding no error, we affirm defendant’s conviction.

Factual Background and Procedural History

Deputy Louis Adams of the Jefferson Parish Sheriffs Office testified at trial that on April 1, 2005, he responded to a report of suspicious persons and narcotics activity at the Zephyr Car Wash located at 5803 Airline Drive in Jefferson Parish. He was told to look for a black Mercury Cougar automobile with a particular license plate number.

13When Deputy Adams arrived at the car wash, he saw two black men standing near a vehicle that met the description he had received. The deputy identified defendant as one of the men. Deputy Adams approached defendant on the passenger side of the car, while a backup officer, Deputy Steven Caravella, approached the second subject. Adams asked defendant if he had identification. Defendant replied that it was inside the car on the driver’s side. Adams followed defendant as he walked around the back of the car towards the driver’s side. He saw defendant hold out his hand and drop a rock of what appeared to be crack cocaine onto the car’s closed trunk.

Deputy Adams testified that he picked up the rock and put it in his pocket. The officer then arrested defendant and handcuffed him. While handcuffing defendant, Deputy Adams found two additional rocks of what appeared to be crack cocaine in defendant’s clenched hand. Deputy Adams advised defendant of his rights and asked him if he would answer some questions. Defendant responded that he did not want to talk. After conducting a field interview with defendant’s companion, Adams released the companion. Adams then transported defendant to the Jefferson Parish Correctional Center.

Deputy Adams identified State’s Exhibit 1 as the three off-white rocks he recovered. He testified that after he arrived at the Metairie lock-up with the defendant, he turned the evidence over to narcotics detective Wally Davis, who field tested the rocks. Davis testified that they tested positive for cocaine.

Thomas Angelica, an expert in the identification of narcotics and a forensic scientist with the Jefferson Parish Crime Lab, testified that he tested the off-white material in State’s Exhibit 1, and the result was positive for cocaine. He identified LState’s Exhibit 2 as his lab report on the matter. The report showed the net weight of the three rocks was .89 grams.

Assignment of error

Defendant’s only assignment of error is that the trial court erred by failing to suppress physical evidence (cocaine) gathered as the result of an illegal seizure. He contends Deputy Adams performed an illegal investigatory stop based on an uncorroborated tip. Defendant further argues he was illegally “seized,” and that the cocaine evidence obtained as a result of that seizure was tainted and therefore inadmissible.

The State responds that defendant failed to preserve the suppression issue for appeal, since he did not file a written motion to suppress evidence prior to trial. The State argues that even assuming defendant is entitled to review on this issue, his arguments fail. The State maintains that the officers were free to approach defendant and question him, and that this initial contact did not rise to the level of an investigatory stop. The State further contends that defendant abandoned the first rock of crack cocaine without any prior unlawful intrusion by the officers, and Deputy Adams’s seizure of the rock was, therefore, lawful.

Contrary to the State’s claim, defendant is not procedurally barred from challenging the trial court’s denial of his motion to suppress evidence. The record does not contain a written motion to suppress the evidence; however, the State did not make a timely objection below to the sufficiency of defendant’s motion. There was a suppression hearing on August 21, 2008, and the trial court issued a ruling. [sThe Code of Criminal Procedure does not contain a procedural bar to defendant’s challenge of the trial court’s denial of his motion to suppress evidence.

Deputy Adams was the State’s only witness at the hearing on the motion to suppress evidence. He testified that on April 1, 2005, he received information that there were two black men and two white men engaged in drug activity at the Zephyr Car Wash. Deputy Adams was given the license plate number of the suspects’ vehicle.

It only took Deputy Adams a couple of minutes to get to the car wash. When he arrived, he did not see any white men. He did see two black men, along with a car that met the description he had been given. He identified defendant as one of the men at the scene. The deputy approached defendant and questioned him about what was happening. He asked defendant if he had seen anyone in the neighborhood, and asked him for identification. According to Adams, defendant was not under arrest at that point.

Defendant said his identification was on the driver’s side of the car. Deputy Adams testified that defendant was on the passenger side of the car when he first made contact with him. He told defendant to get the identification. Defendant then walked around the back of the car and the officer followed behind him. While they were walking, Deputy Adams saw a white rock fall out of defendant’s hand. Deputy Adams immediately picked up the rock and took custody of it. He secured defendant and told him he was under arrest. While handcuffing defendant, Deputy Adams found two more white rocks in defendant’s hand. The officer testified that defendant was booked on the cocaine charge, and that he also had three outstanding traffic attachments from the Ken-ner Police Department.

| f)Analysis

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Warmack, 07-311, p. 4 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 107.

In State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1182-83, citing United States v. Watson, 953 F.2d 895, 897 n. 1 (5th Cir.1992), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992), the Louisiana Supreme Court discussed a three-tiered analysis of interaction between citizens and police occurring under the Fourth Amendment:

At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.
At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts.
At the third tier, a custodial “arrest,” the officer must have “probable cause” to believe that the person has committed a crime.

(Citations and footnote omitted).

Law enforcement officers are authorized to stop and interrogate persons reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes a police officer “to stop a person in a public place whom he reasonably suspects is committing, has |7committed, or is about to commit an offense and to demand that the person identify himself and explain his actions.” See State v. Young, 05-702, pp. 7-8 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 96. The “reasonable suspicion” needed for an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Warmack, 07-311 at 4-5, 973 So.2d at 107.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Warmack, supra. To determine whether the trial court’s denial of the motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Young, 05-702 at 8, 938 So.2d at 96-97.

Contrary to defendant’s arguments, Deputy Adams did not require reasonable suspicion to approach defendant, speak with him, and ask him for identification. It is well settled that:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). See also Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). In State v. Lewis, 00-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820, cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002), the Louisiana Supreme Court commented that “[a]n officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.”

There is no indication in the record that defendant was not free to disregard Deputy Adams when he spoke to him. In fact, Adams’s uncontested testimony shows that defendant was not in custody or detained before he dropped or threw down the first white rock. According to Adams, defendant could have gotten into the car and left the scene after he was asked for his identification. The verbal contact, by itself, involved the first tier of Fisher, and did not implicate Fourth Amendment concerns of detention or coercion.

According to Deputy Adams, defendant either dropped or threw down the first white rock. Because defendant was not seized within the meaning of the Fourth Amendment when he abandoned the evidence, the officer did not violate defendant’s rights by retrieving it. State v. Tucker, 626 So.2d 707, 710 (La.1993). Once Deputy Adams saw the first white rock and tentatively identified it as crack cocaine, he had probable cause to arrest defendant. The two rocks Deputy Adams recovered from defendant while handcuffing him were seized in a valid search incident to arrest, one of the recognized exceptions to the Fourth Amendment’s warrant requirement. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Andrishok, 434 So.2d 389, 391 (La. 1983).

The preponderance of the evidence at the suppression hearing and at trial did not favor suppression of the cocaine evidence in this case. The trial court did not err in denying defendant’s motion to suppress.

| ¡¡Error Patent Discussion

The record reveals that the trial court failed to observe the 24-hour delay between denial of defendant’s motion for new trial and sentencing required under LSA-C.Cr.P. art. 873. Defendant did not waive the statutory delay.

Generally, when a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for re-sentencing. State v. Jones, 07-271, p. 10 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149.

This Court has found, however, that when a defendant does not waive the 24-hour delay afforded by Article 873, but does not challenge the sentence imposed, the error may be harmless. State v. Williams, 08-272, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 532; citing State v. White, 404 So.2d 1202, 1204 (La.1981); State v. Alexander, 98-993 (La.App. 5 Cir. 3/10/99), 734 So.2d 43, 48, writ denied, 99-2138 (La.12/10/99), 751 So.2d 250. While defendant did not waive the delay for sentencing, he did not object to the sentence in the trial court or raise any issue regarding his sentence on appeal. Accordingly, no corrective action is necessary.

The commitment reflects that the trial court advised defendant of the two-year prescriptive period for filing an application for post-conviction relief under LSA-C.Cr.P. art. 930.8, but the sentencing transcript does not show that the court so instructed defendant. Where there is a discrepancy between the transcript and a minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand this matter to the district court with an order to inform defendant of the Article 930.8 prescriptive period by sending written notice to defendant within ten days of the rendering of this opinion and to file written proof in the record that defendant received such notice.

Conclusion

Defendant’s conviction is affirmed. This matter is remanded to the district court with instructions to inform defendant of the Article 930.8 prescriptive period by sending written notice to defendant within ten days of the rendering of this opinion and to file written proof in the record that defendant received such notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . On the day defendant was sentenced, the state filed a habitual offender bill of information, alleging defendant to be a fourth felony offender. The habitual offender disposition is not included in the appeal record, and is not a part of this appeal.

      . Mr. Angelica stated that he randomly selected one of the three rocks to test, and that he did not test the other two rocks.

      . A motion to suppress should be in writing. State v. Royal, 255 La. 617, 232 So.2d 292, 621-22 (1970).

      . See LSA-C.Cr.P. arts. 521 and 703; State v. Simmons, 08-269, p. 9 (La.App. 5 Cir. 10/28/08), 996 So.2d 1177, 1182, n. 1; State v. Davis, 02-1008, p. 4 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, 958, writ denied, 03-0948 (La. 11/7/03), 857 So.2d 516.

      . At trial, Deputy Adams testified that he has seen crack cocaine thousands of times during his law enforcement career, and his experience told him the white rock was consistent with crack cocaine.

      . The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).

      .According to this Court’s records, the defendant in Williams has filed two writ applications in the Louisiana Supreme Court, Writs No. 09-KO-143 and 09-KO-149. As of the date of this opinion, the Supreme Court has taken no action on these writs.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Corey Dewayne ANDERSON.
    No. 09-KA-105.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Thomas F. Daley, District Attorney, Rodney A. Brignac, Assistant District Attorney, Laplace, LA, for Plaintiff'Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding, defendant/appellant Corey Dewayne Anderson appeals his armed robbery conviction and sentence. He assigns as error the trial judge’s denial of his challenges for cause as to two prospective jurors — Robin Robert and Michael Torres — and the exces-siveness of the sentence. For the reasons that follow, we affirm the conviction; amend the sentence to delete the illegal portion, and as amended, affirm the sentence.

Procedural History

The state charged the defendant by bill of information with armed robbery with a firearm under La. R.S. 14:64 and La. R.S. 14:64.3, allegedly occurring on December 2, 2005. A jury found the defendant guilty as charged, and he was sentenced to serve 25 years at hard labor without benefit of parole, probation, or suspension of sentence. As provided by La. R.S. 14:64.3, an additional consecutive five years without benefit of parole, probation, or suspension for the |3use of a firearm in the robbery was added. The trial judge granted the defendant’s application for post-conviction relief requesting an out-of-time appeal and this appeal followed.

Trial

Facts

On the night of December 2, 2005, Travis Klibert was the victim of an armed robbery that occurred near a LaPlace bar in St. John the Baptist Parish. The robber took, among other things, Mr. Kli-bert’s Nextel cell phone, wallet, $95, and bank card. A few days later, the defendant, who was 18 at the time and who had obtained his GED, gave a statement to the police confessing to the crime after being advised of his Miranda rights and waiving them. Mr. Klibert later identified the defendant in a photographic lineup within seconds of viewing the photographs.

Mr. Klibert testified that as he walked toward the bar, a short black male wearing black clothing approached him. In court, Mr. Klibert identified the defendant as the robber. Mr. Klibert testified that he saw the end of the barrel of a small gun positioned inside the defendant’s sleeve. Using his right hand, the defendant pointed the gun at him and told him to empty his pockets. Mr. Klibert said that the defendant asked Mr. Klibert to turn around and walk toward Mr. Klibert’s truck. He stated that the defendant threatened to shoot him if he turned around. When Mr. Kli-bert arrived at his truck, he turned and spotted the defendant driving away in an older model dark-colored car.

The testimony at trial from Mr. Klibert and St. John the Baptist Parish Sheriff officers Major Robert Hay, Detective Thomas Young, Jr. and Detective Jerry Fountain established that Mr. Klibert’s Nextel cell phone had a GPS tracking pdevice. In a statement to the police, the defendant said that he broke the victim’s cell phone and placed its “SIM Card” into another phone.

Detectives Young and Fountain located the “SIM Card’s” GPS position in Baton Rouge. The detectives also obtained telephone call logs. The logs indicated that one Baton Rouge telephone number was frequently called. Locating the recipient caller’s address, with the aid of the Baton Rouge police, the detectives proceeded to that location. They were informed by a woman at the address that her daughter had been receiving calls from a boy. Meanwhile, a vehicle matching the victim’s description of the car drove up to that location while the officers were speaking to the woman. The defendant and the recipient of the calls exited the vehicle. Detective Young stated that he placed a call to the victim’s phone. The phone in the defendant’s pocket began to ring. Detective Fountain stated that after being advised of his rights, the defendant agreed to allow the detectives to examine his phone. Detective Young testified that the detective’s number was the last number on the cell phone that the defendant possessed. Detective Young stated that Detective Fountain advised the defendant of his rights once again.

Detective Young said that the defendant was again advised of his rights at the station. After waiving his rights, the defendant admitted he pointed a gun at a man and robbed that person in St. John the Baptist Parish, taking the person’s money and phone. The defendant told the detectives that the gun present in the car at the time of his arrest was the same gun that was used in the robbery. According to Detective Young, the Baton Rouge police took the weapon into custody because it was a stolen weapon. Also, the defendant was driving a stolen vehicle at the time of the police encounter and the defendant had outstanding warrants for his arrest.

|fiIn his statement to the police that was introduced into evidence, the defendant stated that he understood his rights and was willing to answer questions. He acknowledged that no promises or threats had been made to him and no pressure of any kind had been used against him. He also acknowledged that he had possession of the “SIM card” that was the subject of the robbery. He said that he walked up to the victim, pointed a gun at the victim, and asked the victim to empty his pockets and to give the defendant his money. He stated that he needed money at the time because he was broke, was living on the streets, and he had no job. He said that he had never been convicted of anything and had nothing pending in state court at the time of his arrest. Although he denied smoking any marijuana on the day he gave the statement, he admitted to smoking marijuana probably three times a week. He also said that he had given a crack smoker a couple of dollars for the car and he did not ask that person if the car was stolen. He stated that the gun that he used in the robbery was the same gun that the officers found in the car in which the defendant was driving.

At trial, the defendant denied knowing anything about the robbery or ever being in Laplace. He said that although he gave a statement to the police, he was pressured by the officers to give those answers to the questions. He testified that on the date of the incident he was smoking a great deal of marijuana and doing a lot of cocaine so he could not pinpoint his exact location. He also stated that he used drugs to purchase the phone on the street.

Voir Dire

The voir dire consisted of the examination of two jury panels, of 30 and 24 prospective jurors, respectively. Defense counsel exhausted all of his peremptory challenges.

|fiAt the outset, before the two panels had been selected, the trial judge initially introduced persons who would be involved in the case. This introduction included Mr. William 0. Regan from the District Attorney’s Office who was representing the state. The trial judge informed the prospective jurors that if the question posed was too personal and the perspective juror did not want to answer in open court, that person was directed to call it to the trial judge’s attention. Then, the trial judge would conduct a side-bar outside the presence of the panel. The trial judge instructed the prospective jurors to truthfully answer the questions.

After selecting prospective jurors for the particular panel, the voir dire exploring areas of possible impartiality and bias proceeded in a similar fashion for both panels. First, the trial judge asked individual panel members general biographical information. Second, the trial judge asked questions concerning possible impartiality or bias directed to the entire panel. She asked the members to raise their hand in response as she proceeded row by row. Fourth, when she received responses to her questions, the trial judge elicited from the prospective jurors the particular nature of their responses. At times, she questioned prospective jurors individually at a side-bar out of the presence of the other prospective jurors. At other times, she engaged in “block group” questioning of those prospective jurors who had responded to her questions exploring potential impartiality and bias. When engaged in “block group” questioning concerning potential impartiality and bias, the trial judge acknowledged those individual members who responded to the question. She repeatedly asked if there was anyone else who would respond. If there was no response, the court reporter indicated there was none. In the first panel, the trial judge always acknowledged the lack of a response by stating “okay” or “all right.” After making the acknowledgment for the record, the trial judge moved on to the next question.

|7The defendant argues that the trial judge erroneously denied his challenges for cause as to Mr. Robin Robert and Mr. Michael Torres, who were members of the first panel. The following occurred during the voir dire of the first panel.

After obtaining biographical information, the trial judge posed her first question directed to all panel members. She asked whether any members knew any of the people she had introduced to them at the outset. Mr. Robert was among those prospective jurors that the court recognized as responding to its question. Mr. Torres stated that the prosecutor was his lawyer. The trial judge directed the following question to the “block group”:

All of you who answered that you know somebody up here, is your acquaintance with these people or this person, or your knowledge of them, or your relationship with them, such that you can’t be fair and impartial in this case and put aside their personal acquaintance? Anybody has a problem doing that? Anybody could not do that?

The trial judge recognized Miss Mitchell as responding to the question. Miss Mitchell stated that: “Yeah. My daughter’s got criminal charges that are still pending.”

Next, the trial judge stated:
Okay. Anybody else? Would that interfere with anybody else’s ability to be fair and impartial?

The court reporter noted: “(No response).”

The trial judge responded “okay” and proceeded to the next question.

Thus, the trial judge indicated that there was no one else who responded that they could not be fair and impartial. Mr. Torres unlike Miss Mitchell did not indicate that he could not be fair and impartial although he, like other members of the “block group” was giving the ample opportunity to do so.

Later, the trial judge questioned the panel members regarding whether the individual himself or members of their immediate family had been arrested for or 18convicted of felonies or misdemeanors as opposed to traffic tickets. Mr. Robert was one of the members who responded. He said that he had a brother and would like to speak at the side-bar.

At the side-bar, Mr. Robert stated that he had a brother who was arrested for armed robbery but the charges were dropped after 12 months. The trial judge asked whether the charges were completely dropped or whether they had been reduced to a lesser charge. Mr. Robert replied: “No, he didn’t serve any time at all, he had probation for two years after that.” The trial judge stated that if he had probation he must have been convicted. Mr. Robert replied that this occurred approximately 20 years ago and he could not recall exactly what happened. The trial judge asked Mr. Robert whether he thought his brother pled to a lesser offense than armed robbery. Mr. Robert replied that it was possible he did so. The trial judge asked Mr. Robert whether this occurrence in his family would be such that he could not be fair in this case. Mr. Robert replied: “No, I don’t have a problem with that.” The trial judge asked whether the prosecutor or the defense counsel had any questions and they did not.

In conclusion, the trial judge asked the entire panel, whether any of them had any reasons whatsoever why they could not sit on this jury as a fair and impartial juror. Mr. Matherne responded affirmatively and gave his reason. The trial judge asked if there was anyone else. The court reporter noted there was no response. The trial judge acknowledged there was no response by stating “all right.” She then turned the questioning over to the prosecutor and the defendant.

After the prosecutor completed his questioning, defense counsel questioned the panel members. Defense counsel asked the prospective jurors if there was anyone who was a member or a volunteer of such organizations as crime stoppers, and an anti-crime organization, like MADD. Mr. Poindexter responded that his ^neighborhood had a neighborhood crime watch. Defense counsel then asked the following question: “Does anyone here believe that crime has run rampant, it’s out of control?” The court reporter noted that Mr. Johnson raised his hand. Defense counsel asked Mr. Johnson for an explanation. Mr. Johnson replied, “Turn on the news and read the newspaper.” He also stated: “Every day somebody is getting robbed, shot.” Defense counsel asked whether based on Mr. Johnson’s perception would he take that out on the defendant just because he believed that crime was out of control. Defense counsel also asked that if the defendant was found to be guilty would Mr. Johnson take that out on him. Mr. Johnson replied, “Probably.” The trial judge stated that she did not understand the question. Defense counsel then stated “If he was to ll:21:00[sic] with the evidence would he take that out against Mr. Anderson.” Then, defense counsel asked whether anyone else thought crime was out of control.

The court reporter noted that Mr. Robert raised his hand. Defense counsel asked Mr. Robert whether that would bias his opinion toward the evidence. Defense counsel also directed a question to be other panel members. Mr. Robert responded, “No.” Defense counsel asked whether there was anyone else. Ms. Johnson replied that she believed that crime was out of control. She said that she understood that people have to be judged. Defense counsel then directed his attention to Mr. Lott. Mr. Lott stated that he thought it was out of control.

Defense counsel then asked whether there were any crimes that particularly upset anyone such as murder or rape. Mr. Lott responded that this was anything to do with children.

Mr. Torres responded that this concerned crimes involving children and “old folks.” Ms. Smith added that this included handicapped people.

|inMr. Robert asked whether defense counsel was asking about any crimes that were upsetting. Defense counsel stated: “That upset you, any type of crime that particularly upsets you like murder, rape.” Mr. Robert responded: “Pretty much all of them.”

Defense counsel then asked: “But is there any crime that okay, if he’s charged with rape, that would skew your view of the evidence?” Mr. Robert responded: “I think crimes with a weapon against an unarmed person is more or less despicable that somebody would do that. Especially to steal property or, you know, a car or whatever.”

Ms. Pleasant stated this was a crime having to do with rape or domestic abuse of children. Defense counsel asked if there was anyone else and the court reporter noted: “(No response).”

The state challenged Ms. Mitchell for cause. Defense counsel argued that Ms. Mitchell was not biased simply because defense counsel represented her daughter. The prosecutor responded that if defense counsel was the attorney representing the daughter in a criminal charge, the prosecutor thought there was a serious issue about her impartiality. The trial judge stated that she thought that she asked Ms. Mitchell whether her relationship with that person would be such that she could not be fair and impartial. The trial judge said that she thought Ms. Mitchell said it would affect her because defense counsel represented her daughter. The trial judge said that although Ms. Mitchell said she could be fair regarding every other answer, she specifically said that because defense counsel was representing her daughter, the trial judge thought she said she could not be fair. Thus, the trial judge stated she was going to grant that challenge for cause.

Defense counsel stated that Mr. Torres said that the prosecutor represented him in a civil matter. The prosecutor pointed out that in answer to the court’s ^question he said it would not affect him. The trial judge then asked the prosecutor what these matters concerned and whether the prosecutor was still Mr. Torres’ lawyer. She stated that she thought Mr. Torres stated that the prosecutor was his lawyer at this time. The prosecutor responded that he was not doing anything for Mr. Torres currently. He was not on a retainer. The prosecutor said that he had prepared wills for Mr. Torres and his wife “a while back.” He also did some property transfers “a few years ago.” Then, he set up an inter vivos trust about 10 years ago. The trial judge denied defense counsel’s challenge for cause.

When defense counsel challenged Mr. Robert for cause, the prosecutor objected. The trial judge asked the basis for the challenge. Defense counsel responded: “Basically he said anything with Armed Robbery is despicable and he went on, you know, about how terrible it was, anybody takes anything for money, you know, and he basically said it would skew his view when I asked him about the crimes that he thought upset him particularly.”

The prosecutor stated that he did not think there was anything prejudicial about being upset about the crime. The prosecutor said that it still required proof beyond a reasonable doubt as to whether this defendant committed that crime. The trial judge agreed. She stated: “And he’s the one who had a brother that actually committed an Armed Robbery also.” Defense counsel replied, “He had one brother and he also had also some victims in his family as well. He is on both sides of it.” The trial judge stated that she did not know about the victims but she knew about the brother. She said: “No, I, I think you kind of, you, when you, the way you asked that question, any crimes that upset you, and the jury really got into that, but I don’t think he said it would interfere with his ability to be fair and impartial. So I’m going to deny that one.” The defendant used his peremptory challenges for prospective jurors Mr. Robert and Mr. Torres.

| iaThe trial judge in this instance was very conscientious, attentive and fully aware of the prospective jurors’ responses to questions. She was cognizant of all jurors whose impartiality was questionable.

Discussion

The defendant argues that the trial court improperly denied the defense’s challenges for cause of prospective jurors Mr. Robert and Mr. Torres. The state argues that the trial court did not abuse its wide discretion in denying the challenges but notes that there was no contemporaneous objection to those denials.

In the present case, the defense counsel gave reasons for the challenges but when the trial judge denied them, he did not formally object. The state claims that in the absence of an objection, the assignment is not preserved for review.

Two Louisiana Code of Criminal Procedure articles address the contemporaneous objection rule: La. C. Cr. P. arts. 800(A) and 841(A). La. C. Cr. P. art. 800 provides:

A. A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.

La. C. Cr. P. art. 841(A) states (emphasis added):

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

In State v. Pinion, 06-2346, p. 10 (La.10/26/07), 968 So.2d 131, 136 (per curiam), the Court relied on the above-emphasized portion of La. C. Cr. P. art. 841(A) in holding that in jury selection, counsel satisfies the requirements of Louisiana’s contemporaneous objection rule by stating his grounds for a cause | ^challenge and then by removing the juror with one of his remaining peremptory challenges when the court declines to excuse the juror for cause.

In State v. Vanderpool, 493 So.2d 574, 575 (La.1986) (citations omitted), the Louisiana Supreme Court interpreted the above articles. It held that it is settled that an objection need not be raised by incantation. Rather, “[I]t is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.” The Court explained that the requirement of a contemporaneous objection is not meant to be inflexible but is designed to “to promote judicial efficiency and to ensure fair play.” The Court cautioned that Article 800 should not be read to differ in this respect from Article 841.

Here, it is clear that the defendant made known the reasons for the challenges and that he removed each juror with one of his remaining peremptory challenges when the court declined to excuse the jurors for cause. Therefore, he preserved the issues for appeal.

The Sixth Amendment of the United States Constitution guarantees the accused the right to a trial by an impartial jury. State v. Anderson, 06-2987, p. 27 (La.9/9/08), 996 So.2d 973, 995, cert. denied, Anderson v. Louisiana, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009). La. Const. art. I, § 17 guarantees the right to full voir dire examination of prospective jurors and to challenge those jurors peremptorily. Id. The number of challenges is fixed by law. Id. Thus, when a defendant uses all of his peremptory challenges, a trial judge’s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. Id. 06-2987 at 27-28, 996 So.2d at 996 (Citations 114omitted). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been reversible error warranting reversal of the conviction, defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281 (Citations omitted).

The defendant in this case exhausted all of his peremptory challenges. Therefore, we must determine whether the trial court erred in denying the defendant’s challenges for cause as to potential jurors Mr. Robin and Mr. Torres. If so, then the defendant’s constitutional and statutory right to 12 peremptory challenges has been violated, prejudice is presumed, and there is reversible error requiring reversal of the conviction and sentence. Id.

La. C. Cr. P. art. 797 provides grounds for challenges for cause, which include the following pertinent provisions:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court [.]

A trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281 (Citation omitted). A refusal by a trial judge to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the 115potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Id. “[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” Id., quoting State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990). The trial judge must look at the juror’s responses during his entire testimony, not just “correct”, isolated answers, or, for that matter, “incorrect”, isolated answers. Id., citing State v. Lee, 559 So.2d 1310, 1318 (La.1990), cert. denied, Lee v. Louisiana, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).

Robin Robert

The defendant argues that Mr. Robert was called to the bench and explained that the circumstances regarding his brother. Defense counsel acknowledged that Mr. Robert stated that he could be fair. Defense counsel, however, states that later in the voir dire, Mr. Robert told defense counsel that he thought crime with a weapon against an unarmed man in order to steal property was despicable. The defendant asserts that there was no rehabilitation by the state, defense, or the court from this comment. Based on the lack of rehabilitation after making that comment, the defendant argues that Mr. Robert could not be fair and impartial. The defendant also contends that since Mr. Robert’s brother, unlike the defendant, never served time in jail, Mr. Robert could have assumed there was something unique about the defendant’s background. In support of this observation, defense counsel notes that at trial it was determined that the defendant had been in jail. Moreover, defense counsel argues that Mr. Robert seemed to harbor a passion against armed robbery and never reacted to any other crimes discussed throughout the voir dire.

| TfiDefense counsel argues that the trial judge never considered that Mr. Robert’s brother’s history could be a strike against the defendant.

For the most part the defendant argues that somehow the fact that Mr. Robert’s brother was never in jail has affected Mr. Robert’s perception of the defendant. Yet, defense counsel admits that Mr. Robert stated that he did not think he had a problem being fair given his brother’s experience. With regard to the specific grounds for the challenge — Mr. Robert’s expressing that the crime of armed robbery was despicable, we find no basis for finding an abuse of the trial judge’s discretion in denying the challenge for cause.

At first, Mr. Robert responded that most crimes upset him. When pressed by defense counsel whether there was any crime “if he’s charged with rape” that would skew his view of the evidence, Mr. Robert responded that he thought crimes with a weapon to steal property were despicable. Mr. Robert never said that his perception of the evidence was skewed as a result of his feelings about armed robbery crimes. In fact, defense counsel only referred to skewed evidence as it applied to rape. Also, in concluding her questioning of the panel, the trial judge asked the entire panel, whether any of them had any reasons whatsoever why they could not sit on this jury as a fair and impartial juror. The trial judge only acknowledged one response from another prospective juror. Thus, Mr. Robert did not indicate to the trial judge that he had a problem being a fair and impartial juror for any reason.

|17In the present case, there was no indication that Mr. Robert had any problems listening to the evidence given his feelings about armed robbery. Thus, there was no need to rehabilitate him because all he expressed was a strong feeling about that crime.

As in State v. Ellis, 28,282, pp. 9-10 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, 625, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521, the trial judge was present throughout the voir dire and could assess Mr. Robert’s silent responses to the group questions. By failing to assert, when questioned, that he had a problem being a fair and impartial juror for any reason he obviously convinced the trial judge that he was rehabilitated in the event his feelings somehow suggested bias against the defendant. The trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the entire voir dire reveals an abuse of discretion. State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v. Louisiana, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006) (Citations omitted). Given the trial judge’s broad discretion in the matter, we cannot say it was error to deny the challenge for cause.

Accordingly, this assignment lacks merit.

Michael Toms

The defendant argues that Mr. Torres stated that the prosecutor was his current attorney. The prosecutor explained at the bench that he did family wills, some property transfers, and the trust but he was not receiving a retainer at the time of trial. Defense counsel argues that all of that legal work, especially a couple’s will preparation, is a very personal matter and engenders a relationship between individual and their lawyer. Even though this occurred “a while back” there was 118still a familiarity between the prospective juror and the prosecutor that was unfair to the defendant.

In Juniors, supra, the Louisiana Supreme Court explained that the purpose of allowing a challenge for cause is to secure a fair and impartial trial. 03-2455 at 12, 915 So.2d at 307. The key to securing this right is to ascertain whether there is anything in the disclosed relationship between a potential juror and the district attorney (whatever form that relationship takes) that would influence the juror’s judgment or that would persuade him or her to decide the case on any basis other than fairness and the evidence presented in court. Id. (Citations omitted). The Court noted that in State v. Lee, 559 So.2d 1310, 1317 (La.1990), it held that the fact that a prospective juror had previously retained the district attorney in an unrelated legal matter and may do so again in the future was insufficient to warrant a challenge for cause absent a further showing a bias. 03-2425 at 13, 915 So.2d at 291.

In the present case, the trial judge through questioning of the “block group” which included Mr. Torres ascertained that no one other than Miss Mitchell could be unfair and impartial because of their relationship with people involved in the case.

As in State v. Ellis, supra, the trial judge was present throughout the voir dire and could assess Mr. Torres’ silent responses to the group questions. By failing to assert, when questioned, his acquaintance or relationship with the parties mentioned, including the prosecutor, was such that he could not be fair and impartial in this case and put aside his personal acquaintance, he obviously convinced the trial judge that he was not biased. Given the trial judge’s broad discretion in the matter, we cannot say it was error to deny the challenge for cause.

Accordingly, this assignment lacks merit.

119Excessive Sentence

The trial judge ordered a presen-tence investigation. At the sentencing hearing, the trial judge stated that she had reviewed the presentence investigation before sentencing the defendant. Defense counsel asked the court to take into account the fact that at the time of sentencing the defendant was 20 years old. Defense counsel asked the court for leniency in order that the defendant is given the opportunity to start his life anew.

The trial judge stated that she considered the entire situation. The defendant was convicted of the serious charge of armed robbery with a firearm. In reviewing the presentence investigation, the probation officer attempted to speak to the defendant who said that he had nothing to say or that he did not feel like talking about it. Thus, the trial judge stated that she had no record of any remorse or regret on the part of the defendant. She further stated that the offense could have easily resulted in the killing or serious bodily injury of a human being since a firearm was used. The trial judge stated that she considered the defendant’s youth but she also considered the serious nature of the sentence and the lack of remorse or regret on the part of the defendant. The trial judge then sentenced the defendant to a total of 25 years, which included the additional five years required by the enhancement statute. The sentence was imposed without benefit of parole, probation, or suspension of sentence.

The defendant argues on appeal that he had just turned 18 in December 2005 when the offense occurred. He testified that he was on drugs and homeless. He purchased a cell phone with a stolen “Stem card” on the street because it was already set up and working. Furthermore, the defendant argues that the facts presented at trial did not warrant a 25-year sentence. The defendant explains that Mr. Klibert testified that the defendant approached him with a small gun in his 12osleeve and told him to empty his pockets and walk away. The defendant asserts that there was nothing heinous or violent about this particular armed robbery. The defendant contends that since the defendant was very young and the case presented the barest elements for the crime, the minimum sentence was warranted in this case.

He asserts that the trial judge’s only justification for the sentence was that the defendant did not speak with the person conducting the presentence investigation. The trial judge believed that showed a lack of remorse. However, he maintains that belligerence and fear could have been just as likely the reason. Also, the trial judge considered what could have happened. The defendant states that while it is true that serious injury or death can result, the enhancement penalty accounts for the use of a firearm. And, a hypothetical scenario should not be used to punish the defendant a third time for the use of a gun. He maintains that the trial judge offered no other reasons as to why the minimum sentence was not imposed in this case. He asserts that the sentence is disproportionate to the crime and the defendant’s history. He contends that the trial judge failed to consider any mitigating circumstances and therefore the sentence should be reversed and the case remanded for resen-tencing in conformity with La. C. Cr. P. art. 894.1 because the sentence is constitutionally excessive.

The state responds that the mandatory minimum sentence defendant could have received because the offense was committed using a firearm was 15 years. The state maintains that the trial court considered the youth of the offender, the defendant’s apparent lack of remorse, and other factors. The state notes that given the fact that the trial judge presided over the trial and was aware of all facts and circumstances that were relevant to sentencing, the state submits that the trial court did not abuse its discretion. It asserts that an appellate court should not determine 12Iwhether another sentence may be more appropriate but rather whether the trial court abused its discretion.

The penalty for an armed robbery conviction is imprisonment at hard labor for ten to 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). At the time the instant offense was committed, the penalty for the use of a firearm during an armed robbery was imprisonment for an additional period of five years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64.3(B). The tidal judge sentenced the defendant to imprisonment at hard labor for 25 years, five of which were for use of a firearm during the armed robbery. The defendant’s sentencing exposure, including the enhancement, was 15 to 104 years. His 25-year sentence was within the lower limits of the sentencing range.

The defendant did not file a motion to reconsider his sentence. However, this court will review a sentence for bare excessiveness even where no motion for reconsideration is filed. State v. Stevenson, 05-52, p. 11 (La.App. 5 Cir. 6/28/05), 908 So.2d 48, 55, writ denied, 05-2592 (La.6/2/06), 929 So.2d 1247 (Citation omitted).

A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La. 1/14/08), 839 So.2d 1, 4 (Citation omitted). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Id. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. Id., 01-2574 at 6-7, 839 So.2d at 4 (Citations omitted). A trial judge is in the best 122Position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Williams, 03-3514, p. 7 (La.12/13/04), 893 So.2d 7, 16, citing State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957.

In considering whether the sentencing court abused its discretion, the reviewing court should consider, “1) the nature of the crime, 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts.” State v. Pearson, 07-332, p. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656 (Citation omitted).

The trial judge gave ample reasons for sentencing. As such, she demonstrated that she considered the nature of the offense and the nature and type of offender in determining the length of the penalty imposed.

Although unclear from the record, it appears from the defendant’s statement that this was his first conviction. The Louisiana Supreme Court has held that a longer sentence, which is within the 35 to 50-year range, is acceptable for first offenders convicted of armed robbery. State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4 (Citation omitted). In State v. Augustine, 555 So.2d 1331, 1332 (La.1990), the Louisiana Supreme Court concluded that a 40-year prison term for an 18-year-old first offender convicted of armed robbery was not constitutionally excessive.

In the present case, the crime committed by the defendant was more serious than an armed robbery. Armed 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, by use of force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64(A). Armed robbery with a firearm, La. R.S. 14:64.3, is a more serious form of armed robbery for which the penalty range is effectively 15 to 104 years. State v. Hall, 43,125, p. 6 (La.App. 2 Cir. 6/4/08), 986 So.2d 863, 868, writ denied, 08-1511 (La.3/13/09), 5 So.3d 116, citing State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

In the present case, the trial judge considered the evidence presented at trial, which included' testimony from Detective Young that the defendant was driving in a stolen vehicle with a stolen gun in that vehicle. The defendant’s statement indicates that although the defendant had obtained his GED, the defendant was unemployed at the time and he was looking for someone to rob because he had no money. The trial judge concluded that the defendant showed no remorse because he refused to talk to the probation officer conducting the presentence investigation regarding the incident. The trial judge also had the opportunity to observe the defendant’s demeanor when he testified in court. The trial judge evidently considered that although youthful, the defendant did not indicate that he was a good candidate for rehabilitation.

Given the record in these proceedings and the trial judge’s ample reasons for sentencing, we find no abuse of the trial judge’s best discretion in sentencing defendant. Therefore, we find no merit to this assignment of error.

Error Patent

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request.

The review reveals a sentencing error patent in this case. The trial judge sentenced the defendant to imprisonment at hard labor for 25 years without benefit of parole, probation, or suspension of sentence, which included the five additional years under La. R.S. 14:64.3 for the use of a firearm during the armed | ^robbery. On error patent review, we note that at the time of the offense La. R.S.14:64.3 did not include, as it does now, the additional provision that the sentence be served at hard labor. Effective August 15, 2006, La. R.S. 14:64.3 was amended by 2006 La. Acts, No. 208, § 1 to add that the sentence be served at hard labor. Hard labor is not authorized for the present five-year enhancement. State v. King, 06-1903, pp. 8-9 (La.10/16/07), 969 So.2d 1228, 1232-33; State v. Otero, 08-188, pp. 5-6 (La.App. 5 Cir. 12/16/08), 3 So.3d 34, 40. As in King, supra, we therefore amend this portion of the sentence to delete the order of hard labor. The sentence is otherwise affirmed.

Decree

For the reasons expressed, we affirm Corey Dewayne Anderson’s conviction of armed robbery with a firearm. We amend the sentence to delete the order of hard labor for the five-year enhancement under La. R.S. 14:64.3. In all other respects, the sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED.

      . The jury returned a verdict of “Guilty.” There is no ambiguity in the jury verdict in this case because the trial judge gave clear instructions to the jury. She instructed the jury that a vote of "Guilty" meant that the jury found the defendant was guilty of the offense charged — armed robbery with a firearm. Only one of lire listed verdicts carried this one-word designation.

      . Because the defendant was charged with armed robbery with a firearm under both La. R.S. 14:64 and La. R.S. 14:64.3, he faced the mandatory additional five years for using a firearm. R.S. 14:64.3.

      . At one point, the person was identified as the granddaughter.

      . Compare State v. Tyler, 619 So.2d 807, 813 (La.App. 1 Cir.1993), writ denied, 624 So.2d 1225 (La.1993), the court found no abuse of discretion in the trial judge’s denial of a challenge for cause when the prospective juror expressed emotional feelings about the type of crime at issue and stated that she did not know if she would have problems listening to the evidence. The court held that "[djespite indicating she might have problems listening to the evidence, none of [the prospective juror's] responses implied that her personal experiences would affect her verdict or that she would be unable to render judgment based on the evidence.” Id. The court also noted that the prospective juror did not respond to earlier repeated questions by both the prosecutor and defense counsel concerning whether or not any of the jurors had any problems serving as a juror in this case because of the nature of the offense. Id.