author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Allen D. DAVENPORT.
    No. 09-KA-261.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Shannon Swaim, Anne Wallis, Assistant District Attorneys, Gretna, Louisiana, for Plain-tifl/Appellee.
    Bertha M. Hillman, Hillman Law Firm, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

|2This is defendant’s second appeal. Defendant’s conviction for simple burglary of an inhabited dwelling and his 12-year sentence were affirmed by this Court in defendant’s first appeal. State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445. At the time defendant’s first appeal was filed, multiple offender proceedings were pending in the district court. Davenport, 08-463 at 2, 2 So.3d at 446, n. 1.

The State filed a multiple offender bill of information on March 28, 2008, and then a new multiple bill on June 27, 2008. On November 10, 2008, the trial court granted defendant’s motion to quash the multiple offender bill of information as to one of the prior convictions. The State filed a multiple offender bill of information on January 23, 2009, amending the previous multiple bill to allege that defendant was a second felony offender. On this same date, defendant admitted the allegations in the multiple bill.

After defendant was advised of his multiple offender rights, the trial court accepted his admission and vacated his original sentence. Defendant was sentenced as a second felony offender to 15 years imprisonment with the Department of Corrections. Defendant now files this appeal.

Jc.FACTS

The facts of the underlying conviction were set forth in Davenport, 08-463, at 2-3, 2 So.3d at 446-47 as follows:

On the afternoon of November 29, 2007, Nicole Frickey returned to her home in Marrero and found defendant asleep on her sofa. She immediately left and went to her neighbor’s house to call the police to report that a man she did not know was in her house.
Deputy Wade Hotard of the Jefferson Parish Sheriffs Office responded to the call. Upon entering Ms. Frickey’s house, Officer Hotard found defendant still sleeping on the sofa with a bottle of the victim’s vodka next to him. For safety reasons, Deputy Hotard handcuffed defendant and then yelled at him to try to wake him up. After a minute or two, defendant woke up and mumbled something.
Officer Hotard accompanied defendant out of the house and brought him to the rear of his patrol unit. The deputy advised defendant that he was under arrest and read defendant his Miranda rights. Thereafter, Officer Hotard searched defendant and found several items of jewelry and coins belonging to Ms. Frickey in his pockets. Ms. Frickey testified that she did not know defendant prior to the date of the incident and had not given him permission to be in her house.
Defendant testified that he had been drinking for two days prior to the incident and did not remember going into the house or anything about the incident.

ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, defendant argues that the trial court erred in imposing a constitutionally excessive sentence because the trial court failed to adequately consider mitigating factors such as defendant’s age, education, employment, alcoholism, and remorse. Defendant further contends that the trial court failed to consider the guidelines set forth in LSA-C.Cr.P. art. 894.1. Defendant alleges that the trial court did not give sufficient weight to aggravating and mitigating circumstances and that the imposition of his sentence was grossly out of proportion to the severity of the crime.

LThe State responds that because defendant received a sentence that was imposed in conformity with a plea agreement which was set forth in the record at the time of the plea, he is barred from challenging the excessiveness of his multiple offender sentence on appeal. The State also contends that because defendant failed to previously raise the issue regarding the trial court’s failure to comply with LSA-C.Cr.P. art. 894.1, that he is precluded from raising this issue for the first time on appeal. The State responds alternatively that even if defendant was not precluded from raising the issue on appeal, the court’s failure to articulate every circumstance listed in Article 894.1 would not require re-sentencing because the record contains an adequate factual basis for the sentence.

Defendant admitted that he was a second felony offender, and he received an enhanced sentence in conformity with a plea agreement. Although the trial judge only stated the penalty range defendant faced as a second felony offender and did not provide the specific sentence defendant would receive, the waiver of rights form reflects the sentencing range that defendant faced as a second felony offender as well as an advisal that defendant would receive a 15-year sentence at hard labor. The record reflects that defense counsel went over the waiver of rights form with defendant and explained it to him prior to the colloquy. The commitment and transcript reflect defendant received a 15-year sentence to be served with the Department of Corrections.

Under LSA-C.Cr.P. art. 881.2(A)(2), a defendant “cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that this article precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to pleading guilty. State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

In State v. Lemeunier, 07-230, pp. 13-14 (La.App. 5 Cir. 5/27/08), 986 So.2d 130, 139, writ denied, 08-1403 (La.3/6/09), 3 So.3d 481, the defendant complained that his enhanced sentence was excessive, asserting that the trial court failed to state reasons for the sentence under LSA-C.Cr.P. art. 894.1, failed to consider mitigating factors, and failed to tailor the sentence to fit the facts of the case. The defendant’s enhanced sentence was the result of the stipulation to the multiple bill. This Court recognized that the defendant was advised of the sentence he would receive by the waiver of rights form and the judge. This Court concluded that because Lemeunier received a sentence that was imposed in conformity with a plea agreement set forth in the record at the time of the plea that he was barred from challenging the excessiveness of his multiple offender sentence on appeal.

In State v. Stewart, 03-976, pp. 8-9 (La. App. 5 Cir. 12/30/03), 862 So.2d 1271, 1277, the defendant argued that his enhanced sentence was constitutionally excessive because the crimes he committed were nonviolent offenses, and his drug problem should have warranted a lesser sentence. The defendant further argued that the trial judge failed to state for the record the factual basis for the considerations that led to his decision to impose the defendant’s sentence as mandated by LSA-C.Cr.P. art. 894.1. Citing LSA-C.Cr.P. art. 881.2(A), this Court held that the defendant’s enhanced sentence was imposed in conformity with a plea agreement that was set forth in the record at the time of the plea and, therefore, the defendant was precluded from raising a claim of excessiveness on appeal.

In accordance with the above cases, we find the defendant in this case is precluded from challenging his enhanced sentence as excessive on appeal because his sentence was imposed in conformity with the plea agreement set forth in the record at the time of the multiple bill admission.

| ¿ERROR PATENT DISCUSSION

This Court performed an errors patent review of the original record in this case at the time of defendant’s first appeal. Defendant is now only entitled to an errors patent review of the habitual offender proceedings. See State v. Darensbourg, 06-572, pp. 11-12 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128, 1136, writ denied, 07-0317 (La.11/9/07), 967 So.2d 495; State v. Yrle, 05-202, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200. We note one error patent for review.

The commitment reflects that defendant was properly advised of the prescriptive period for filing an application for post-conviction relief, however the transcript reflects that the advisal was not complete. According to the transcript, defendant was told he had “two years from the date the sentence becomes final to file post conviction relief applications.” LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date the defendant’s conviction and sentence become final in which to apply for post-conviction relief. Since there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La.1983). The waiver of rights form for the admission of the multiple bill does not reflect an advisal.

This Court may correct this error by way of this opinion rather than on remand. See Davenport, 08-463 at 10-11, 2 So.3d at 451. As such, this Court advises defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

In accordance with the above, defendant’s multiple offender finding and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jermaine E. FAVORS
    No. 09-KA-413.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Michael D. Smith, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Defendant/appellant Jermaine E. Favors timely appeals his conviction and sentence. He assigns as error insufficiency of the evidence to convict him. For the following reasons, we affirm the conviction and sentence and remand for the limited purpose of ordering correction of the commitment/minute entry.

The state charged the defendant by bill of information with violating La. R.S. 141402(E), introducing or possessing contraband; namely, Marijuana, into the parish jail. Originally, the state alleged that the offense occurred on or about November 12, 2008. On the date of trial, before jury selection, without objection, the state amended the bill to allege the date as on or about November 10, 2008. The jury found the defendant guilty as charged of violating La. R.S. 14:402(E) concerning Marijuana. The defendant filed a motion for new trial that was denied prior to sentencing on March 80, 2009. After denying the motion, the defendant ^waived the 24-hour delay afforded by La. C. Cr. P. art. 873 by stating his readiness for sentencing. The trial judge sentenced the defendant to three years at hard labor.

Facts

At trial, Sergeant Pierre Harris testified that on November 10, 2008 at approximately 7:80 AM, he discovered Marijuana in the defendant’s cell at the Jefferson Parish Correctional Center. It is undisputed that the defendant had been the sole occupant of the cell in question in the Jefferson Parish Correctional Center for at least ten days before the discovery. The defendant, however, testified that the Marijuana did not belong to him. He believed that the Marijuana belonged to the inmate who had previously occupied the cell. He said that this inmate, Shawn Franklin, told the defendant that the Marijuana was Franklin’s. Mr. Franklin, who was called outside the presence of the jury, testified that he intended to invoke his Fifth Amendment right and did not wish to testify.

Sergeant Harris, a Jefferson Parish Sheriffs supervisor, testified that he works in the Jefferson Parish Correctional Center. Around 7:30 AM on the date in question, Sergeant Hawkins placed a radio call to him asking for assistance at the defendant’s cell. Sergeant Hawkins reported that while he was performing a security check, he smelled an odor.

When Sergeant Harris arrived, he smelled a Marijuana odor. He entered the cell and began searching it. He checked the mattress, and the cubbyhole. He discovered a rolled-up, orange-colored sock between the wall and the bed frame. Sergeant Harris testified that the sock was hidden from view. It was tightly rolled and folded up between the bed frame and the wall. He opened the sock and discovered a plastic bag inside the sock that contained a green substance. The substance was field tested at the correctional center. It tested positive for Marijuana.

|4Puring cross-examination Sergeant Harris testified that there are 13 cells in a pod. He said that the defendant was housed in the first cell that is encountered when a person walks into the pod. Sergeant Harris said approximately 15 individuals were inmates on that floor. Some cells have two bunks while others have one bunk.

Sergeant Harris testified that he has smelled Marijuana before in the correctional center and in other places. He did not check any of the other cells. When asked how he could tell if the odor came from cell number one, he testified that as he entered the cell, he smelled it and the odor was stronger coming from the first cell. He said that it was not coming from cell 12 or cell 13.

Sergeant Harris testified that he did not find matches, a pipe, or any other evidence of burning matter. He found no evidence of smoking. He did not see any evidence that the cigarette was stepped on or that there was a pipe nearby.

Sergeant Harris stated that the defendant was already out of the cell when the sergeant arrived. Another sergeant had removed him in order to search the defendant. He stated that there was no way that sock could have been tossed into the cell by anyone else.

During redirect examination, when the state inquired about the fact that he did not find any lights, matches, or roaches, the state asked whether there was a working toilet in the defendant’s cell. The officer replied affirmatively.

The defendant testified that around 7:00 AM to 7:30 AM, on the morning that the officers entered his cell, everyone was sleeping. Sergeant Hawkins told him to step out of the cell. The defendant complied. Sergeant Hawkins brought the defendant into the shower area and performed a strip search. Sergeant Hawkins did not find anything. Then, the sergeant started searching the defendant’s cell. While the sergeant searched the cell, he told the defendant to stay |fion the wall with his hands up. Sergeant Hawkins called for assistance while he was in the defendant’s cell searching it. After that, Sergeant Harris arrived to assist Sergeant Hawkins. Another person also arrived to assist in the search.

The defendant said that he was not the only person to have ever been in that cell. As far as he knew, there could have been 20 previous occupants. He said that when he first came on the floor, Mr. Franklin was his cell mate for approximately five days. Then, the defendant was alone.

During cross-examination, he testified that he did not see Sergeant Harris find the sock during the search of his cell. He stated that it had been approximately ten days before the incident at issue since anyone other than himself or a deputy had been in that cell. He testified that he did not smell Marijuana. But, he acknowledged that he was the only person who would have had any opportunity to smoke Marijuana in that cell.

During redirect examination, he testified that Mr. Franklin wrote him a letter after Mr. Franklin learned that the defendant was charged with this offense. In the letter, Mr. Franklin told the defendant that he did not want to see an innocent person be convicted and he let the defendant know that the Marijuana was Mr. Franklin’s.

Sufficiency

The defendant argues on appeal that there was insufficient direct or circumstantial evidence to convict him for two reasons: (1) The state only proved that he was merely present in the cell where the Marijuana was found. (2) There was no evidence that he had actual knowledge of the Marijuana or that he exercised control and dominion over the substance. The state disagrees.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Cummings, 95-1377, p. 2 (La.2/28/96), 668 So.2d 1132, 1133. In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the Jackson v. Virginia standard enunciated by the United States Supreme Court. State v. Kestle, 07-1573, p. 5 (La.12/2/08), 996 So.2d 275, 278 citing State v. Captville, 448 So.2d 676, 678 (La.1984). When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. Id., citing La. R.S. 15:438; State v. Camp, 446 So.2d 1207, 1209 (La.1984); State v. Wright, 445 So.2d 1198, 1201 (La.1984). However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror reasonable doubt formula. It is merely an evidentiary guide for the trier-of-fact when considering circumstantial evidence. Id., citing State v. Porretto, 468 So.2d 1142, 1146 (La.1985). The trier-of-fact makes credibility determinations and may accept or reject the testimony of any witness. Id. (Citation omitted).

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. State v. Chism, 436 So.2d 464, 469 (La.1983). The trier-of-fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. Id.

The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory 17explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222 citing State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Spears, supra, 05-0964 at 3, 929 So.2d at 1222-23 (Citations omitted).

It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. State v. Hooker, 05-251, p. 17 (La.App. 5 Cir. 1/17/06), 921 So.2d 1066, 1076 citing State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56. As the Louisiana Supreme Court stated, “the Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293 (per curiam) (Citation omitted). The trier-of-fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Hampton, 98-0331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, Hampton v. Louisiana, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999) (Citations omitted).

In the present case, defendant was convicted of introducing into or possessing marijuana into the Jefferson Parish Correctional Center in violation of La. R.S. 14:402. La. R.S. 14:402 provides, in pertinent part, the following:

|SE. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
(5) Any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq[.]

Testing confirmed that the substance found was Marijuana. Marijuana is a controlled dangerous substance. See La. R.S. 40:961(7); La. R.S. 40:964; La. R.S. 40:966.

For purposes of La. R.S. 14:402, possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. A person not in physical possession of a drug is considered to be in constructive possession of the drug, even though it is not in his physical custody, when the drug is under his dominion and control. State v. Decay, 07-966, p. 7 (La. App. 5 Cir. 6/19/08), 989 So.2d 132, 138, writ denied, 08-1634 (La.4/13/09), 5 So.3d 161.

Guilty knowledge is an essential component of any showing that a defendant has constructive possession of contraband, i.e., dominion and control over it although the contraband is not in his actual possession. State v. Pigford, 05-0477, p. 7 (La.2/22/06), 922 So.2d 517, 521 (per curiam) (Citations omitted); State v. Frith, 08-52, p. 10 (La.App. 5 Cir. 4/29/08), 985 So.2d 792, 798 (Citations omitted). Guilty knowledge may be inferred from the circumstances of the case. Frith, 08-52 at 10, 985 So.2d at 798 (Citations omitted).

|9Mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession. Frith, 08-52 at 10, 985 So.2d at 798 (Citations omitted).

In the present case, the jury heard conflicting testimony and evidently rejected the defendant’s testimony that the Marijuana was left in the cell by Mr. Franklin, the defendant’s former cell mate.

The defendant argues that there was weak circumstantial evidence and therefore the evidence was insufficient in light of his alternative hypotheses of innocence. He raises the following to support his hypotheses of innocence: (1) The mere fact that the pod was permeated with Marijuana smoke does not sufficiently prove that he exercised dominion and control over the substance. According to the defendant, since his cell was at the entrance to the pod, the inference was that the Marijuana smell was not localized to his cell alone. (2) There was no evidence to suggest that he had consumed the Marijuana or had actual knowledge of the Marijuana. When he was not in his cell, anyone could have placed something there without his knowledge or consent. (3) There was no evidence to show that his cell had been searched prior to its assignment to him.

We are not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, we must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3842, p. 7 (La.10/17/00), 772 So.2d 78, 83 (Citation omitted).

|1(lIn this case, the defendant was the sole occupant of the cell in which Sergeant Harris smelled the Marijuana odor. He had been the sole occupant of that cell for at least ten days. Mr. Franklin was no longer there at the time the odor was detected. Although no evidence of burning or consumption was discovered, Sergeant Harris did testify that the cell had a working toilet. Thus, the jury could have reasonably inferred from this testimony that such evidence could have been disposed of. Further, the fact that the Marijuana was hidden supports the defendant’s guilty knowledge. Although the smell was present when entering the pod, Sergeant Harris testified that the odor was stronger from the defendant’s cell. In addition, after explaining the location of where the sock was discovered, Sergeant Harris stated that the sock could not have been tossed into the defendant’s cell by someone else. And the defendant acknowledged that he was the only person in the cell who would have had the opportunity to smoke Marijuana in the cell.

Based on the foregoing, the evidence, viewed in a light most favorable to the state, was sufficient to establish that the defendant was guilty of the charged offense.

Accordingly, this assignment of error lacks merit.

Error Patent

The record was reviewed for errors patent, according to La. 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). A review of errors patent revealed that the specific section under which the defendant was charged with omitted. In this case the bill of 11T information simply contained a charge under the general provisions of La. R.S. 14:402 without citing the pertinent section.

An accused has a constitutional right to be informed of the nature and cause of the accusation against him. La. Const. Art. I, § 13. That constitutional requirement is codified in La. C. Cr. P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

The charge, however, specified that the defendant was charged with introducing into or possessing marijuana in the Jefferson Palish Correctional Center. The reference to parish prison implicated Section E of the statute.

The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Draughn, 06-1825, p. 60 (La.1/17/07), 950 So.2d 583, 623, cert. denied, Draughn v. Louisiana, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) (Citation omitted). The defendant did not file a motion to quash the bill as defective. See: La. C. Cr. P. art. 532(2). He did, however, file a motion for a bill of particulars and was given discovery by the state.

Given the failure to file a motion to quash, the defendant arguably waived any claim based on the allegedly defective indictment. State v. Campbell, 06-0286, p. 94 (La.5/21/08), 983 So.2d 810, 870, cert. denied, Campbell v. Louisiana, — U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). Even so, in Campbell, the Louisiana Supreme Court addressed assigned errors regarding an alleged defective indictment based on the constitutional mandate that an accused has a constitutional right to be informed of the nature and cause of the accusation against him. Id.

112The failure to cite the correct criminal statute number is a technical deficiency in the bill of information which is not grounds for reversal unless the defendant can show surprise or lack of notice which causes prejudice. State v. Sims, 426 So.2d 148, 158 (La.1983) (Citations omitted). In this case, there is no showing of prejudice or surprise in that the wording of the bill of information is sufficiently clear to inform the defendant that he is charged with violating Section E of the statute. Thus, the misstatement in the bill of information is not ground for reversal of the conviction.

Our error patent review also revealed that the commitment/minute entry is inaccurate in two respects: First, the transcript reflects that the defendant was found guilty by a jury on January 21, 2009 while the commitment/minute entry reflects that defendant was convicted on January 27, 2009.

Second, the commitment is also inaccurate in that it indicates that the defendant was found guilty of 14:402, contraband in a correctional center. In fact, the defendant was convicted by a jury of La. R.S. 14:402(E), concerning contraband in a correctional center; namely, parish prison. Accordingly, we remand this matter to the trial court for the limited purpose of correcting the commitment/minute entry. We order the commitment/minute entry to be amended to reflect the correct statute and to show the correct date that the defendant was found guilty by a jury. Compare: State v. Stevenson, 02-769, p. 10 (La.App. 5 Cir. 1/28/03), 839 So.2d 340, 346, writ denied, 03-0833 (La.10/31/03), 857 So.2d 472 (remand for correction of date that charges were resolved); State v. Pomeroy, 97-1258, p. 9 (La.App. 5 Cir. 5/13/98), 713 So.2d 642, 646 (remand to reflect the correct statute).

Further, we direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the |isminute entry to the officer in charge of the institution to which the defendant has been sentenced. See: La. C. Cr. P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Conclusion

For the reasons stated herein, the defendant’s conviction and sentence are hereby affirmed. The case is remanded to the trial court for the limited purpose of correcting the commitment as more fully discussed in this opinion.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED FOR LIMITED PURPOSE.

      . See error patent discussion infra.

      . In the instant case, the actual date the offense is alleged to have occurred is not an essential element of the offense. La. R.S. 14:402(E). When the date of the alleged offense is not an essential element of the offense charged, a mistake respecting the date on which the offense occurred is only a defect of form which may be corrected at any time with leave of court. State v. McCoy, 337 So.2d 192, 195 (La.1976), citing in part La. C. Cr. P. arts. 468 and 487. In this case, there was testimony concerning only one alleged offense during that time.

      . Marijuana (Marihuana) was formerly classified as a Schedule I drug by La. R.S. 40:964(0(22), which was amended by La. Acts 2008, No. 67, § 1. Thereafter, La. R.S. 40:964(0(19) included "Marihuana" as a Schedule I drug.

      . There are several factors to consider in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs. State v. Major, 03-3522, pp. 7-8 (La. 12/1/04), 888 So.2d 798, 802 (Citation omitted).

      . Compare: State v. Converse, 529 So.2d 459, 463 (La.App. 1 Cir.1988), writ denied, 533 So.2d 355 (La.1988), in which the defendant argued the evidence was insufficient to sustain his conviction of possession of contraband in a penal institution. After viewing the evidence in the light most favorable to the state, the court found that any rational trier of fact could have found that the defendant had constructive possession of the items of contraband found in his cell, which he alone occupied. The Converse court also noted that any rational trier of fact could have inferred that the defendant concealed them because of guilty knowledge that institutional regulations prohibited him from having them in the cell. Id. at 464.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. David PAGE.
    No. 08-KA-531.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, James W. Adair, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for State/Appellee.
    David Page, Angola, Louisiana, pro se.
    Brace G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 {.Defendant, David Page, was indicted by a Jefferson Parish Grand Jury on March 15, 2007, and charged -with second degree murder in violation of LSA-R.S. 14:30.1. Defendant pleaded not guilty and filed several pre-trial motions, including motions to suppress his statement and the evidence, which were denied after a hearing. He proceeded to trial on October 16, 2007. After a three-day trial, a unanimous 12-person jury found defendant guilty as charged. Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. This timely appeal follows.

On appeal, defendant was originally represented by Bruce Whittaker with the Louisiana Appellate Project, who filed an Anders brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting he had failed to find any non-frivolous issues to raise on appeal. Thereafter, defendant filed a pro se supplemental brief raising five assignments of error. Prior to oral ^arguments, current retained counsel, Kevin Boshea, filed a Motion to Enroll as appellate counsel and a Motion to File a Supplemental Brief, which were both granted. Thereafter, Mr. Boshea filed a supplemental brief asserting two assignments of error. Because there are now assigned errors, the issues raised in Mr. Whittaker’s Anders brief will not be addressed.

FACTS

Approximately 11:59 p.m. on January 4, 2007, Deputy Leon James, of the Jefferson Parish Sheriff’s Office, responded to the scene of a shooting at the Villa D’Ames apartment complex in Marrero. He observed a black and gold taxi parked in the parking lot still running with both of its rear doors open and a white male slumped over the driving wheel. Emergency medical services arrived, and Deputy James helped remove the victim from the cab. Deputy James noticed the victim, Moneir Gindy, had a gunshot wound to the right side of his body. The victim was subsequently pronounced dead at the scene. A later autopsy revealed the victim died of a gunshot wound to his right chest that lacerated his liver. The victim’s wallet and $186 cash were found on his person, but his left front pants pocket was turned out with nothing in it.

David Garrison testified that he had known “Moon,” the victim, for approximately five years and used his cab services five days a week while working as a D J in a club in the French Quarter. Around 11:00 p.m. on the night of the murder, Garrison called Moon for a ride from the Bywater area on the eastbank to the Villa D’Ames apartment where his girlfriend lived. Moon picked Garrison up and drove him to the apartment complex. Garrison testified that he and Moon had a conversation about pills before he got out of the cab. In particular, Garrison explained Moon always had pills, his cousin took pills, and he was going to see if his cousin, who lived in the apartment complex, wanted any of Moon’s pills. ^Garrison told Moon to wait and exited the cab. While in the parking lot, Garrison saw defendant and “Poppa” talking. After leaving the cab, Garrison ran into his girlfriend, Te-nille Williams, who was returning from the store, and the two went to his cousin’s apartment where they started arguing. Garrison called Moon’s cell phone to tell him he was coming back, but Moon had left his cell phone at home. Garrison and Williams continued their argument, at which time they heard a gunshot. Williams immediately looked out of the window, heard sirens, and saw police arrive on the scene. Meanwhile, Garrison left the apartment complex.

Although no witnesses came forward on the night of the murder, the police learned within 24 hours, through a confidential informant, of witness, Kecia Blair, who ultimately led them to develop defendant and Darnell Junior as suspects. Blair testified she lived in the ground floor apartment of the building near the murder scene. She stated that on the night of the murder, she was standing at the window that overlooks the parking lot when she saw the cab pull up and Garrison get out. Blair testified that after the cab sat for approximately five to ten minutes, her phone rang and she turned to answer it. When she returned to the window, she saw defendant and Junior enter the back seat of the cab.

Blair stated she felt the cab sat too long so she went to the back of the apartment to get her brother, at which time she heard gunshots. She immediately returned to the window and saw defendant and Junior walking away at a fast pace.

Blair testified she did not go to the police that night but rather told a friend of hers what she saw. She stated the police contacted her the next day, and she gave a statement. Blair identified the perpetrators as “Big Fot” and “Poppa” and showed the police where each lived. She subsequently identified defendant as “Big Fot” and Junior as “Poppa” in a photographic lineup.

| ¡thereafter, the police obtained arrest warrants for defendant and Junior. Defendant was arrested six days after the murder. After waiving his rights, defendant gave a taped statement admitting he was at the scene next to the cab, but that “Poppa” shot the victim. Defendant explained he was coming from a girl’s house when they all went in the Villa D’Ames complex. He stated he saw Junior retrieve a long camouflage gun from the bushes, walk up to the cab driver and ask for money. According to defendant, when the driver refused to give Junior money, Junior pulled the trigger. Defendant denied he or Junior entered the cab at anytime.

ASSIGNMENT OF ERROR NUMBER ONE

. The Verdict is Contrary to the Law and the Evidence

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Insufficiency of Evidence

DISCUSSION

By these two assignments of error, defendant argues the evidence was insufficient to support his conviction for second degree murder. In particular, defendant asserts the evidence failed to show he was the perpetrator of the crime. He contends the identification of him by State witness, Kecia Blair, was unreliable, and specifically challenges her credibility because of issues between her family and his. He also contends there was no scientific evidence, such as fingerprints, DNA, or shotgun residue, or physical evidence to implicate him as the perpetrator. Defendant maintains the evidence against him was circumstantial, and the State failed to exclude every reasonable hypothesis of innocence, namely that either David Garrison or Darnell Junior was the perpetrator.

| fiThe standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Although the State lacked any physical evidence connecting defendant to the crime, two State witnesses, David Garrison and Kecia Blair, testified that defendant was present at the scene at the time of the murder. Garrison testified he saw defendant and Junior nearby when he left the cab. Blair testified she saw defendant and Junior walk up to the cab and enter the cab. She stated defendant entered the cab on the back passenger side while Junior entered on the back driver’s side. She explained the doors of the cab remained open. Blair stated the cab sat too long so she went to the back of the apartment to call her brother at which time she heard one or two shots. When she returned to the window, she saw defendant and Junior walking away at a fast pace. The day after the murder Blair identified defendant in a photographic lineup.

The record shows a shotgun shell was found outside the passenger side of the cab. The State offered the testimony of an expert in firearms and tool mark, Timothy Scanlan, who testified that based on the victim’s wound, the shot was fired less than one foot away. Mr. Scanlan further testified that the shotgun shell found outside the passenger side of the cab was consistent with someone shooting 17the victim from the passenger side of the vehicle. The pathologist who performed the autopsy also testified the victim was shot at a range of six to twelve inches, and his wound was consistent with the victim being shot from the passenger side of the vehicle.

Some fingerprints were lifted from the victim’s cab but none matched the defendant’s fingerprints. Additionally, the record shows a gunshot residue test on defendant would not have been beneficial because the test must be performed within 12 hours and defendant was not taken into custody until six days after the murder.

In his statement to the police, defendant admitted being at the scene but claimed he remained outside the cab. He further claimed Junior was the shooter. However, Blair testified she had no doubt defendant was the one who entered the passenger side of the cab.

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.

It appears the jury believed Blair’s testimony over defendant’s testimony. Defendant argues Blair’s identification of him as the perpetrator was unreliable or not credible. At trial, there was evidence of some animosity between the Blair family and defendant’s family, resulting from a fight that occurred in the fall of 2002. The jury heard this evidence and still found Blair’s testimony credible.

| ¡¿Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Kempton, 01-572, p. 7 (La. App. 5 Cir. 12/12/01), 806 So.2d 718, 722. The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623, p. 11 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). Rather, the court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.; State v. Wiley, 03-884, p. 13 (La.App. 5 Cir. 4/27/04), 880 So.2d 854, 863, writ denied, 04-1298 (La.10/29/04), 885 So.2d 585.

Defendant argues the evidence failed to exclude the reasonable hypothesis that either Garrison or Junior was the perpetrator. Defendant points to the fact Garrison was the last fare the victim had, fled from the scene after the shooting, and refused to cooperate with the police.

The record shows Garrison testified at trial under a material witness bond. Garrison testified he left the apartment complex immediately after learning the victim had been shot. He explained he left because he was scared, since he had been the last person with the victim. He admitted he did not go to the police but 19rather was picked up by the police for questioning. Garrison further admitted he was not initially truthful with the police but later told the police everything.

Despite Garrison’s reluctance to cooperate, the evidence excluded him as the perpetrator. Garrison and his girlfriend, Tenille, testified that they were arguing in Garrison’s cousin’s apartment when they heard a gunshot. Additionally, Kecia Blair testified she saw Garrison get out of the cab and walk away before she saw defendant and Junior enter the cab and heard the gunshot. Immediately after hearing the gunshot, Blair saw defendant and Junior, not Garrison, walking away from the cab. Because several witnesses place Garrison away from the scene at the time of the shooting, it does not appear defendant’s alternative hypothesis, that Garrison was the perpetrator, is sufficiently reasonable that a rational juror could not have found defendant guilty beyond a reasonable doubt.

Based on the foregoing, it appears the State negated any reasonable probability of misidentification. A review of all the evidence shows the jury could have reasonably determined defendant was the shooter, even absent evidence such as fingerprints and gunshot residue testing. See State v. Mitchell, 08-136, pp. 11 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 728.

Defendant also contends the evidence shows Junior was the shooter and not him. He maintains that under the law of principals, his mere presence at the scene is insufficient to show he had the requisite mental state, and that he aided and abetted in the murder.

The record shows the jury was instructed on the law of principals. Under LSA-R.S. 14:24, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Only those persons who “knowingly | ^participate in planning or execution of a crime” are principals to that crime. State v. Pierre, 93-893, p. 4 (La.2/3/94), 631 So.2d 427, 428; State v. King, 06-554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-371 (La.5/4/07), 956 So.2d 600.

An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. King, supra. The mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. Id. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223, 1225 (per curiam), quoting 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996).

In State v. Hill, 98-1087, p. 10 (La.App. 5 Cir. 8/31/99), 742 So.2d 690, 696-97, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147, this Court upheld the defendant’s second degree murder conviction after the jury determined he was at least a principal to the crime. This Court determined that 1) the defendant chose to remain with the co-defendant, at the murder scene, with knowledge, by his own admission, that his co-defendant planned to rob the victim, 2) the defendant did nothing to prevent the crime, and 3) the defendant did not come to the victim’s aid after the shooting, but rather fled the scene.

Likewise, defendant in the present case remained with Junior at the scene, did nothing to prevent the crime, fled the scene rather than coming to the victim’s aid after the shooting, and did not attempt to report the shooting. Additionally, defendant and Junior had been seen together on the day of the murder talking about |1T “flighting” and money, which was explained to mean they would rob someone if they had the chance. Furthermore, in his statement to the police, defendant admitted he was on the driver’s side of the taxi cab but claimed Junior shot the cab driver. Defendant stated he saw Junior get a camouflaged weapon from the bushes, walk up to the cab driver, stick the gun in the window, and demand money from the cab driver. Thus, even under the law of principals, the evidence is sufficient to support defendant’s second degree murder conviction.

We find no merit to these assignments of error.

ASSIGNMENT OF ERROR NUMBER TWO

The Prosecution Introduced, over an Objection, Improper “Bad Acts” or “Other Crimes Evidence” in Its Rebuttal Case

DISCUSSION

Defendant argues the trial court erred in admitting evidence of defendant’s trespassing violations during the testimony of the State’s rebuttal witness, Deputy Christopher Thomas. Defendant contends the evidence was not proper rebuttal evidence because it did not rebut any evidence presented by the defense. He further asserts no Priewr hearing was held and no limiting instructions were given to the jury. Defendant alleges he was prejudiced by the admission of this other crimes evidence because it allowed the jury to infer that defendant is a habitual criminal who had no respect for the law.

Immediately after the State called Deputy Thomas to testify on rebuttal, defendant objected stating, “it’s my understanding that this witness is going to talk about some incidents with my client being arrested for prior bad acts. There was no Pri-eur hearing that was had.” The State responded stating it was not going to ask Deputy Thomas about any arrests. The State explained Deputy Thomas was _Jjjgoing to testify that defendant was told to leave the premises of the Villa D’Ames on three occasions, but was not going to mention any arrests. The trial court never specifically overruled defendant’s objection but stated “that’s all right” and noted defendant’s objection for the record.

Deputy Thomas proceeded to testify. He stated that, as head of security detail at the Villa D’Ames apartments, he had asked defendant to leave the premises on July 27, 2006 with the understanding that defendant was no longer welcome at the property. According to Deputy Thomas, defendant was thereafter observed on the property on three separate occasions and asked to leave each time, including the day after the murder.

On appeal, defendant argues Deputy Thomas’ rebuttal was improper. However, defendant failed to object to Deputy Thomas’ testimony on that ground at trial. To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. LSA-C.Cr.P. art. 841(A); State v. Enclard, 03-283, p. 11 (La.App. 5 Cir. 6/19/03), 850 So.2d 845, 853. A new basis for an objection may not be raised for the first time on appeal. State v. Winfrey, 97-427, p. 23 (La.App. 5 Cir.10/28/97), 703 So.2d 63, 77, writ denied, 98-264 (La.6/19/98), 719 So.2d 481.

In Winfrey, supra, the defendant argued on appeal that the trial court had allowed the prosecutor to go beyond the scope of cross-examination on redirect. He also argued on appeal that the testimony was based on inadmissible hearsay. This Court found that the defendant had not raised the issue of redirect testimony exceeding the scope of cross-examination at trial but only argued the testimony was based on hearsay. Accordingly, this Court limited its analysis to the issue of hearsay. Because defendant did not raise the issue of improper rebuttal testimony |iaat trial, the issue on appeal is limited to the basis of his objection at trial, which was the admission of other bad acts during Deputy Thomas’ rebuttal testimony.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187, p. 8 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. Evidence of other crimes is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad act. LSA-C.E. art. 404(B)(1); Id.

In order for other crimes evidence to be admitted under LSA-C.E. art. 404(B)(1), certain requirements must be met. Under State v. Prieur, supra, the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. State v. Jackson, 05-923, p. 10 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 78, writ denied, 06-1589 (La.1/8/07), 948 So.2d 121. Additionally, one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. Id. Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. LSA-C.E. art. 403; State v. Jackson, 05-923 at 11, 926 So.2d at 78.

Contrary to defendant’s claim, it does not appear Deputy Thomas’ rebuttal testimony constituted evidence of “other crimes or bad acts” as contemplated by |14LSA-C.E. art. 404(B). Deputy Thomas simply testified that defendant had been asked to leave the Villa D’Ames apartment complex by security several times in the six months prior to the murder and the day after the murder. Deputy Thomas also stated that quite a few other people had been asked to leave the property during this period. Deputy Thomas explained it was not uncommon for security to ask people to leave. There was no suggestion that defendant was committing a crime when asked to leave the property or that he was ever arrested for trespassing on the property.

In State v. Nguyen, 04-321, pp. 13-14 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 909, writ denied, 05-220 (La.4/29/05), 901 So.2d 1064, this Court concluded a witness’ testimony about being involved in an altercation with defendant did not constitute evidence of other crimes as contemplated by LSA-C.E. art. 404(B). This Court noted that no particulars of the altercation were given. This Court determined that because the testimony was not evidence of other bad acts, pre-trial notice of the testimony was not required.

Also, in State v. Marsalis, 04-827, pp. 7-8 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, 1086, this Court found a witness’ testimony that defendant was housed in the maximum security side of the jail where sentenced inmates were housed was not other crimes evidence. This Court noted the objectionable testimony did not specifically mention defendant was in jail for an armed robbery conviction and awaiting trial for first degree murder, and thus, the testimony did not impermissibly reference other crimes evidence.

And, in State v. Sprinkle, 01-137, pp. 18-21 (La.App. 5 Cir. 10/17/01), 801 So.2d 1131, 1143-45, writ denied, 01-3062 (La.10/25/02), 827 So.2d 1174, cert. denied, 537 U.S. 1235, 123 S.Ct. 1358, 155 L.Ed.2d 200 (2003), this Court determined a State witness’ testimony that there were telephones in the jail, after |15the witness testified the defendant was initially ruled out as a suspect because he was in jail at the time, was not an impermissible reference to another crime. This Court found the question and response at issue made no specific mention of other crimes committed or alleged to have been committed by the defendant.

Likewise, in the present case, there was no specific mention of other crimes committed or alleged to have been committed by defendant. Deputy Thomas gave no particulars surrounding the occasions, such as what defendant said or did, when defendant was asked to leave. Deputy Thomas made it clear that quite a few people get asked to leave the property and that it is not uncommon. Thus, the testimony that defendant had been asked to leave the property on several occasions does not appear to be evidence of other crimes or bad acts for which Prieur notice is required.

This assignment of error merits little consideration.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Constitutionally Deficient Indictment

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Trial Court Was Without Jurisdiction

DISCUSSION

These two assignments of error overlap. Defendant contends the grand jury indictment was defective and, therefore, the trial court lacked subject matter jurisdiction to hear the case. Defendant essentially maintains the indictment was | , (¡defective because it failed to meet the requirements of LSA-C.Cr.P. art. 464, and it did not adequately notify him of the charges against him.

The time for testing the sufficiency of an indictment is before trial by a motion to quash or an application for a bill of particulars. State v. Richthofen, 01-500, p. 34 (La.App. 5 Cir. 11/27/01), 803 So.2d 171, 192. “A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense.” State v. Draughn, 05-1825, p. 60 (La.1/7/07), 950 So.2d 583, 623, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

In the present ease, defendant failed to file a motion to quash, and thus, arguably-waived any claim based on the allegedly defective indictment. In Draughn, 05-1825 at 60-61, 950 So.2d at 623-24, the Louisiana Supreme Court noted the same procedural bar to the defendant’s claim that the indictment was defective, but went on to address defendant’s claim.

Article I, § 13 of the Louisiana Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. This requirement is implemented in LSA-C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

LSA-C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. The constitutionality of the short forms has been consistently upheld by the Louisiana Supreme Court. State v. Draughn, 05-1825 at 61, 950 So.2d at 624. When a short form indictment 117is used, it is intended that the defendant use a bill of particulars to procure details as to the statutory method by which he committed the offense. Id.

In the present case, the State charged defendant by a bill of indictment, which read in pertinent part, “David Page ... on or about the 4th day of January in the year of our Lord, Two Thousand and Seven ... violated 14:30.1 in that [he] did commit second degree murder of Moneir Gindy.” As such, defendant was charged in compliance with LSA-C.Cr.P. art. 465(A)(32), which provides a short form indictment for second degree murder as follows: “A.B. committed second degree murder of C.D.” See State v. Richthofen, 01-500 at 36, 803 So.2d at 193.

Although defendant did not file a motion for bill of particulars, he filed a motion for discovery. In response to defendant’s discovery request, the State provided, among other things, the police reports, the arrest warrants for both defendant and Junior, the probable cause affidavits, the statements of defendant and Junior, and the statements of three key State witnesses. As such, defendant was fully aware of the nature of the charges against him.

Accordingly, these two assignments of error merit little consideration.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

Credit for Time Served

DISCUSSION

Defendant contends the record does not show he was given credit for time served. Although the commitment indicates defendant was given credit for time served, the sentencing transcript does not. Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

The granting of credit for time served has long been self-operating under LSA-C.Cr.P. art. 880. State v. Johnson, 05-180, pp. 10-11 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 582, writ de nied, 06-1254 (La.12/15/06), 944 So.2d 1282. Thus, it is no longer necessary for the Court of Appeal to amend a defendant’s sentence to reflect credit for time served.

We find not merit to this assignment.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

Appellant urges this Court to examine the record for errors patent and to take whatever corrective action it deems appropriate.

DISCUSSION

Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with 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), regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . It is noted that defendant did not file a motion for post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821. However, this failure does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La. 1982); State v. Carey, 04-1073 (La.App. 5 Cir. 3/29/05), 901 So.2d 509, 512, footnote 4.

      . State v. Prieur, 277 So.2d 126, 128 (La. 1973).

      . Even assuming Deputy Thomas’ rebuttal testimony constituted an impermissible reference to other crimes or bad acts and was improperly admitted, such an error is subject to a harmless error analysis. State v. Marsalis, supra at 8, 902 So.2d at 1087. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Id.

      As discussed in assignment of error number one, there was ample evidence to support defendant's conviction for second degree murder. Kecia Blair testified she saw defendant enter the cab, heard a gunshot a few minutes later, and then saw defendant walk from the cab. Defendant admitted being at the scene at the time of the murder. Evidence that defendant had been asked to leave the property on three occasions in the six months prior to the murder would not have contributed to his guilty verdict.


author: MARION F. EDWARDS, Judge.

text:
    Francisco A. HERNAEZ v. MOTHE LIFE INSURANCE COMPANY and Mothe Funeral Homes, LLC.
    No. 09-CA-147.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Kevin C. O’Bryon, O’Bryon & Schnabel, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Daniel A. Ranson Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

| ?The judgment on appeal in this matter is the grant of a Motion for Summary Judgment in favor of defendant/appellee, Mothe Funeral Homes, LLC (“Mothe”), which dismissed plaintiffs/appellants’ action for damages. For reasons that follow, we affirm.

Francisco Hernaez (“Mr. Hernaez”) and his family evacuated to Picayune, Mississippi during Hurricane Katrina and were still living there on October 1, 2005. Sadly, on that day, Mr. Hernaez’ wife of 35 years, Alba Hernaez (“Mrs. Hernaez”), died in a Mississippi hospital. A family member called Mothe in New Orleans and made an appointment for the following day to arrange for Mrs. Hernaez’ funeral. Mr. Hernaez chose Mothe because he had a policy of burial insurance on his wife with a face value of $750 that was purchased in 1972 from Mothe Life Insurance Company (“MLIC”). The meeting among the Her-naez family members and representatives of Mothe did not go well and, ultimately, the | ¡¡family was asked to leave the premises. Funeral services for Mrs. Hernaez were held later at a funeral home in Mississippi.

Subsequently, Mr. Hernaez and his two adult children, Sayra and David Hernaez, filed this action against MLIC and Mothe for damages. The petition alleges bad faith breach of contract, misrepresentation of the coverage of the insurance policy, and negligent and intentional infliction of emotional distress. They asserted that the funeral director at Mothe falsely informed them that the policy contract was null and void because Mrs. Hernaez died out of state, that the funeral home was too busy with previously scheduled funerals to accommodate them, and that the Hernaez family was not welcome on the premises. It is also alleged that the funeral director ordered them to leave. In a supplemental and amending petition, the Hernaez family added the allegation that Mothe negligently had the deceased’s remains embalmed in Mississippi without authorization of the family.

Both Mothe and MLIC filed motions for summary judgment. The Hernaez family settled with MLIC and dismissed MLIC with prejudice. The motion for summary judgment filed by Mothe was heard and granted by the trial court. That judgment, which also dismissed all claims made by the appellants against Mothe, is the subject of this appeal taken by the Her-naez family.

Our review of summary judgments is de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate.

FACTS

Affidavits and depositions presented in regard to the motion to suppress included depositions by Mr. Hernaez, his son, David, and his daughter, Sayra. The 14deposition and affidavit of Noah Stoute (“Mr. Stoute”), the funeral director for Mothe, are also included.

The testimony in the three Hernaez family depositions is consistent and alleges that, shortly after Mrs. Hernaez died in Mississippi on October 1, 2005 at a very late hour, Sayra Hernaez had a telephone conversation with a representative of Mothe who informed her that arrangements would be made to have a local funeral home pick up the deceased the next morning and have her transported there. On the following day, Mothe would pick up the deceased and bring her home. There was no discussion regarding embalming of the deceased. Sayra also made an appointment with Mothe for October 2 at noon to meet with the funeral director to make the funeral arrangements.

Mr. Stoute, the funeral director, met with the family the next day. He offered his condolences and gathered pertinent information about the deceased. Mr. Stoute informed the family that they had incurred charges to McDonald Funeral Home in Mississippi for embalming. Sayra told Mr. Stoute that she had only given permission for transportation, not embalming. Mr. Stoute explained that the embalming was necessary for transportation across state lines. Sayra was upset and the meeting became somewhat tense. There is testimony from family members that they were still considering whether an autopsy should be conducted.

Mr. Hernaez produced the burial policy and stated that he wanted Mothe to provide a funeral for his wife.

The versions of what occurred between the Hernaez family and Mr. Stoute at that meeting differ. According to the account of the meeting given by the Hernaez family, when Mr. Hernaez produced the policy, Mr. Stoute told the family that the policy was “null and void” because Mrs. Hernaez died out of state. There was a heated discussion among the Hernaez family members and Mr. Stoute that ended 15with Mr. Stoute telling the family that Mothe would not provide funeral services. Mr. Stoute then asked the family to leave the premises.

Mr. Stoute’s version of the events is that the three family members came into Mothe and had a general discussion with him about what information would be needed. Mr. Stoute went over some initial charges already incurred, including the transportation and embalming of the deceased in Mississippi. When Sayra objected to the embalming procedure, Mr. Stoute called in Whitney Schroeder, the Mothe employee who had spoken with Sayra the previous night, to verify that Sayra had given permission the night before to proceed with the embalming. Whitney Schroeder told him that her notes showed that Sayra had authorized the procedure.

Mr. Stoute testified that he gave the Hernaez family an approximate cost for the funeral services, including the cost of transportation and embalming, but he could not recall the exact figure and did not get far enough in the conference to record the numbers in the usual way.

Mr. Stoute recalled that Mr. Hernaez indicated he was willing to pay the charges incurred in Mississippi and presented Mr. Stoute with the MLIC policy to pay for the funeral services at Mothe. Mr. Stoute read the policy and told Mr. Hernaez that the maximum amount of the policy was $750 and that would not cover the entire cost of the service the Hernaez family indicated they wished to have. Mr. Stoute stated he explained that the $750 face value of the policy would be deducted from the final bill. He denied telling the Her-naez family that the policy was null and void.

Mr. Stoute also stated that Sayra became very upset and began to use foul language, calling them liars. All three Hernaez family members admit to being upset, but deny the use of bad language or any other inappropriate behavior. Mr. | fiStoute admits he asked the family to leave and find another funeral home to provide the necessary services. However, in his affidavit he stated that he had no “desire to inflict emotional distress of any kind.” The Hernaez family say that Mr. Stoute’s behavior caused them great embarrassment, confusion, grief, and heartache. Ultimately the family explained that, because of the misinformation and mistreatment by Mothe employees, the respectful funeral they planned for Mrs. Hernaez at home was reduced to a cremation in Mississippi.

LAW

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. The mover bears the burden of proof; however, the mover need only to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim....” Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. This Court has further explained that

17Additionally, a “fact” is “material” if its existence or nonexistence may be essential to a party’s cause of action under the applicable theory of recovery. ... Or, put another way, any decision as to the propriety of a grant of the motion must be made with reference to the substantive law applicable to the case. Only in the context of the applicable substantive law can issues of material fact be ascertained....

The Hernaez family made claims of misrepresentation, negligent and intentional infliction of emotional distress, unfair- trade practices, and mistreatment of the decedent’s remains against Mothe. The transcript of the hearing on the Motion for Summary Judgment shows that the trial court found no material facts at issue regarding the claim of unfair trade practices. As to that claim, the trial judge specifically found that there were no material facts that rise to “what is needed ... extreme and outrageous and all that....” The court also stated “[tjhere’s definitely not negligent infliction of emotional distress. That’s just not there.... ” The trial court did not offer insight into the reason for granting the summary judgment on the claim of mistreatment of the decedent’s remains.

In applying the substantive law of unfair trade practices and misrepresentation to the facts presented by both parties, we find no material issues of fact still at issue. The Louisiana Unfair Trade Practices Act (“LUTPA”) is embodied in La. R.S. 51:1405 et. seq. LUTPA makes “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. A practice is “unfair” when it offends established public policy and when the practice is unethical, oppressive, unscrupulous or substantially injurious. As this Court has explained:

Acts which constitute unfair or deceptive practices are not specifically defined in the statute and are determined by the |¡¡courts on a case-by-case basis.... In order to recover damages for a claim made under this act, a plaintiff must prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.... For conduct to be unfair it must offend established public policy.... Fraud, deceit and misrepresentation constitute deceptive practices ....

Thus, misrepresentation constitutes deceptive practices. To recover on a claim of negligent misrepresentation a claimant must show, 1) a legal duty on the part of the defendant to supply correct information to the plaintiff; 2) a breach of this duty; and 3) damages to plaintiff as a result of his justifiable reliance upon the misrepresentations.

It is undisputed that the parties discussed the burial policy at the meeting on October 2, 2005, and that the terms of the policy were discussed. Mothe argues that there was no misrepresentation because the policy was limited to the $750 face amount, which Mr. Stoute agreed to apply to the cost of the funeral. The only controversy is whether the Hernaez family was told the insurance would not apply. We note that the Hernaez family was paid by the insurance company and has released the company as a defendant. Given the elements for stating a cause of action for misrepresentation, we do not find this issue to be an undecided material fact that would preclude the rendering of a summary judgment.

Further, while there are conflicting statements of fact regarding the permission for the embalming, we do not find any of the facts to be genuine triable issues. Mothe asserts that permission was given by Sayra on the night of her mother’s death. Sayra denies that fact. We do not find this fact to be a genuine issue of triable fact essential for defeating a motion for summary judgment.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.

Given the facts presented by both parties, the claims made, and the applicable law, we find summary judgment was correctly granted by the trial court. Accordingly, we affirm that judgment.

AFFIRMED.

      . Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255.

      . La. C.C.P. art. 966.

      . La. C.C.P. art. 966(C)(2).

      . Perricone v. East Jefferson Gen. Hosp., 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

      . Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751).

      . King v. Ill. Nat'l Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780.

      . Johnson v. Folse, 07-1031 (La.App. 5 Cir. 5/27/08), 986 So.2d 110, 114, writ denied, 08-1377 (La.9/26/08), 992 So.2d 991 (citations omitted).

      . La. R.S. 51:1405.

      . Indest-Guidry, Ltd. v. Key Office Equip., Inc., 08-599 (La.App. 3 Cir. 11/5/08), 997 So.2d 796, writ denied, 08-2851 (La.2/6/09), 999 So.2d 782.

      . Dixie Sav. and Loan Ass'n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99) 751 So.2d 911, 923 (citations omitted).

      . Commercial Nat'l Bank in Shreveport v. Audubon Meadow, 566 So.2d 1136 (La.App. 2 Cir.1990).

      . La. C.C.P. art. 966(A)(2).

      . Id.


text:
    PUNCTUAL ABSTRACT CO. INC. v. U.S. LAND TITLE.
    No. 09-CA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Rachel M. Riser, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    Scott T. Winstead, Daniel A. Webb, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this proceeding concerning an alleged contract for services, defendant/appellant U.S. Land Title, LLC (“U.S.Land”) appeals a judgment confirming a judgment of default and a related judgment denying its motion for new trial. On June 25, 2008, based on the defendant’s failure to file a timely answer, the trial judge confirmed a preliminary default in favor of plaintiff/ap-pellee Punctual Abstract Co., Inc. (“Punctual”) in the sum of $71,921.50 and attorney’s fees. On appeal, U.S. Land argues that the trial judge erred in confirming the preliminary default for these reasons: (1) U.S. Land was not properly served under the Louisiana long-arm statute; (2) the evidence was insufficient to establish a pri-ma facie case. Alternatively, U.S. Land argues that the trial judge erred in awarding attorney’s fees in the absence of proof of a contract. U.S. Land additionally argues that the trial judge erred in denying its motion for new trial. Finding that the evidence was insufficient to establish a pri-ma facie case, we reverse the judgment confirming the default and remand for | .-¡further proceedings consistent with this opinion. The remaining specifications of error are rendered moot by the rendition of this opinion.

FACTS AND PROCEDURAL HISTORY

The parties do not dispute that U.S. Land is a real estate services provider headquartered in Marietta, Georgia and incorporated under Georgia law. It is undisputed that Punctual is a Louisiana corporation.

On June 12, 2007, Punctual filed a Petition. In the Petition, U.S. Land contended that it entered into a contract with Punctual in 2006 wherein Punctual agreed to perform title services for U.S. Land. Punctual contended that U.S. Land had refused to pay it for title services performed pursuant to the 2006 contract. Punctual additionally contended that U.S. Land was “justly and truly indebted [to it] in the full principal sum of $71,921.50 together with legal interest thereon from date of judicial demand and for a reasonable attorney fee set at 25% on the principal and interest and for all costs of these proceedings.” Punctual additionally contended that it had “made repeated amicable demand upon defendant for payment, to no avail.” Punctual attached to the Petition a demand letter dated May 24, 2007 and addressed to “U.S. Land Title.” In addition, Punctual attached a lengthy list of title services that Punctual had allegedly performed for U.S. Land to the Petition.

The record also contains an affidavit of service executed by Punctual’s former counsel averring that he mailed a certified copy of the Petition “properly addressed to the defendant, U.L. [sic] Land Title, 4875 Olde Town Pkwy, Suite 50, Marietta, GA 30068.” An attached signed receipt shows that on June 27, 2007, one “Rose Hidlay” received and signed for the Petition.

U.S. Land never filed answer to the Petition. On August 16, 2007, the trial court entered a preliminary default judgment against U.S. Land. On June 25, 2008, |4the trial court confirmed the default judgment in favor of Punctual. The trial court granted judgment as prayed for, legal interest from the date of judicial demand, and attorney’s fee on 25% of principal and interest due. The June 25, 2008 judgment indicated that the trial court considered the “law and the evidence to be in favor of the plaintiff, for the reasons orally assigned.” However, there are no transcribed oral reasons contained in the record. The minute entry for that day indicates that the confirmation of the default did not take place in open court before a court reporter.

U.S. Land filed timely Motion for New Trial seeking to nullify the default judgment on the basis of insufficient service of process. U.S. Land also argued that there was insufficient evidence to maintain the judgment and the award of attorneys’ fees was improper. In a supplemental memorandum, U.S. Land attached Reta S. Hampton’s affidavit wherein Ms. Hampton averred the following:

She is the chief executive officer of U.S. Land and the only person authorized to accept service of lawsuits against U.S. Land. She never received a copy of the Petition via certified mail. The company has a procedure in place for directing mail concerning lawsuits to her attention. Ms. Rose Hidley, a receptionist for U.S. Land, signs for all mail. Then, non-ordinary matters are directed to the vice-president of Accounting and Resources. If the non-ordinary matter concerns a lawsuit, it is immediately sent to Ms. Hampton. Ms. Hampton averred that the first notice she had of the lawsuit was notice of the confirmation of a default judgment that was sent by certified mail on July 2, 2008. Her failure to receive notice of the preliminary default was due to administrative inadvertence.

The Motion for New Trial was heard on September 11, 2008. The trial court signed a judgment denying the Motion for New Trial on September 15, 2008. This timely appeal followed.

MOTION FOR NEW TRIAL

Before addressing the merits of the specifications of error, we note that we must pretermit consideration of the denial of the Motion for New Trial. Denial of motion for new trial is an interlocutory and non-appealable judgment. Roger v. Roger, 99-765 (La.App. 5 Cir. 1/12/00), 751 So.2d 354, 356; McCain v. Howell, 2006-1830 (La.App. 1 Cir. 9/14/07), 971 So.2d 323, n. 1. The Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from the appellant’s brief that he intended to appeal the merits of the case. See, e.g., Shultz v. Shultz, 2002-2534, p. 3 (La.App. 1 Cir. 11/7/03), 867 So.2d 745, 746-747 (quoting Carpenter v. Hannan, 2001-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied; 2002-1707 (La.10/25/02), 827 So.2d 1153). It is obvious from U.S. Land’s brief that it intended to appeal the June 25, 2008 default judgment on the merits. Thus, we will treat the appeal accordingly.

SERVICE OF PROCESS

In its first specification of error, U.S. Land contends that the trial court erred in confirming the default judgment because it had not been properly served with the Petition. More specifically, U.S. Land contends that Punctual did not serve its designated agent for service pursuant to La. C.C.P. art. 1261 and La. R.S. 13:3201 et seq.

Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under La. C.C. art. 102, and proceedings under the Children’s Code. La. C.C.P. art. 1201(A). Without them all proceedings are absolutely null. Id. A return of citation is prima facie evidence of service. La. C.C.P. art. 1292. Without valid citation and service of process, “the court does not have jurisdiction over the person of the defendant.” In re: Justice of Peace Landry, 01-657, p. 9 (La.6/29/01), 789 So.2d 1271, 1277.

|fiLa. 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 provides, in pertinent part:

A. 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.
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

A “nonresident” corporation for the purposes of La. R.S. 13:3201 is a foreign corporation not licensed to do business in Louisiana. La. R.S. 13:3206. Nonresident corporations may be served either by mail or by personal service. La. R.S. 13:3204(A). To effect mailed service, the plaintiff must send to the defendant, by registered or certified mail, a certified copy of the citation and of the petition in the suit. Id.

La. C.C.P. art. 1261 provides, in pertinent part:

A. Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.
(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
|7(3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.

Thus, under La. C.C.P. art. 1261, service of process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process. If the corporation has failed to designate an agent or if the designated agent has died, resigned or been removed, then service may be made “at any place where the business of the corporation is regularly conducted,” either by personal service on any officer, director or resident agent or by personal service on “any employee of suitable age and discretion.”

In the instant case, the record indicates that U.S. Land does not have an agent for service for process in Louisiana. At the hearing on the Motion for New Trial, counsel for U.S. Land argued that service was improper because it was not addressed to Ms. Hampton, U.S. Land’s ostensible agent for service of process. However, Punctual established that U.S. Land is not listed in the Louisiana secretary of state’s corporations database. In addition, Ms. Hampton’s affidavit indicates that she is domiciled in Cobb County, Georgia. Foreign corporations authorized to do business in Louisiana are required to maintain an agent for service of process “in this state.” La. R.S. 12:308(A). Ms. Hampton is not a registered agent for service of process in Louisiana. Accordingly, Punctual was entitled to effectuate personal service of the Petition on any of U.S. Land’s employees of suitable age and discretion pursuant to La. C.C.P. art. 1261(B)(2).

| ¡¡Counsel for Punctual mailed the Petition to U.S. Land via certified mail on June 25, 2007. The Petition was addressed to “U.S. Land Title, 4875 Olde Town Pkwy, Suite 50, Marietta, GA 30068.” Rose Hidlay received and signed for the Petition on June 27, 2007. According to Ms. Hampton’s affidavit, Ms. Hilday is a receptionist at U.S. Land who receives and signs for many documents. Thus, service in the instant case was proper under La. C.C.P. art. 1261(B)(2).

This specification of error is without merit.

CONFIRMATION OF DEFAULT

In its second specification of error, U.S. Land contends that the trial court erred in confirming the default judgment because Punctual “failed to establish a prima facie case that it was entitled to the relief it demanded” as required by La. C.C.P. art. 1702. We agree.

La. C.C.P. art. 1702 A provides that “[a] judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. La. C.C.P. art. 1702(B)(3). The formula used most often by courts throughout Louisiana in defining the standard of proof necessary to confirm a default judgment is proof with competent evidence of the essential elements of the petition as fully as if each of the allegations were specifically denied. See, e.g., Beevers v. Burmaster, 00-1951 (La.App. 5 Cir. 4/11/01), 787 So.2d 381, 384. Put differently, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposing party. Hall v. Folger Coffee Co., 02-0920 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280; writ denied 2001-1035 (La.6/1/01) 793 So.2d 196 (citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989)). A presumption exists that a default judgment is supported by sufficient evidence, however, that presumption can be overcome when the record upon which the judgment is rendered does not support it. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993); Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 878 (1972). In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La.5/5/09), 9 So.3d 815, 818. This determination is a factual one governed by the manifest error standard of review. Id.

Punctual did not submit sufficient proof of the demand to establish a prima facie case as required by La. C.C.P. art. 1702(A). In the Petition, Punctual alleged that it had entered into a contract with Punctual wherein Punctual had agreed to perform title services for U.S. Land. Punctual attached two documents to the Petition; a list of title services that Punctual had allegedly performed for U.S. Land and a demand letter of May 24, 2007 addressed to U.S. Land. There is no contract between U.S. Land and Punctual contained in the record. There are no affidavits in the record from Punctual employees averring that U.S. Land was indebted to Punctual. While Punctual alleges that an affidavit of correctness was filed with the district court, no such document appears in the record before us. Evidence not offered and introduced into evidence cannot be considered on appeal. Ray Brandt Nissan v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476.

We must assume that U.S. Land would have filed an Answer to the Petition and specifically denied that it had entered into a contract with Punctual. Beevers, 787 So.2d at 384. By not including a copy of the contract between itself and U.S. Land, Punctual did not provide the Court with proof of the “essential elements of the petition.” Id. Consequently, Punctual did not sustain the standard of proof necessary to confirm a default judgment. See also Ventola v. Hall, 03-9703 (La.App. 5 Cir. 11/12/03), 861 So.2d 677, 680 (default judgment against insurer was improper when insured failed to introduce insurance contract into the record); Camel v. Harmon, 2004-1437 (La.App. 3 Cir. 3/2/05), 896 So.2d 1253, 1255-56 (default judgment obtained by homebuyer was improper because homebuyer failed to introduce Act of Cash Sale and “as is” waiver into the record).

Punctual did not establish the elements of a prima facie case pursuant to La. C.C.P. art. 1702(A). Accordingly, we find that the trial court was manifestly erroneous in confirming the default judgment in favor of Punctual. We therefore reverse the June 25, 2008 judgment.

Because we find that the June 25, 2008 judgment must be reversed, the remaining specification of error is moot.

CONCLUSION AND DECREE

For the foregoing reasons, the June 25, 2008 default judgment is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal to be assessed to Punctual. All other costs to await final determination of the cause.

REVERSED; REMANDED.

      . In the affidavit, Ms. Hampton refers to Ms. Hilday as “Rose Hidley.”

      . At the time U.S. Land filed the Petition, an entity known as "U.S. Land Title of Louisiana, L.L.C.” had a designated agent for service of process in Louisiana. In the memorandum accompanying the Motion for New Trial, counsel for U.S. Land argued that service was deficient because Punctual did not serve U.S. Land Title of Louisiana, L.L.C.’s agent for service of process. However, at the hearing on the Motion, counsel for U.S. Land did not argue that service was deficient because Punctual did not serve U.S. Land Title of Louisiana, L.L.C.'s agent for service of process. Rather, counsel for U.S. Land argued that U.S. Land “is a Georgia limited liability company” and that service was deficient because Punctual did not serve Ms. Hampton. Similarly, in his brief to this Court, counsel for U.S. Land only contends that service was deficient because Punctual did not serve Ms. Hampton. Thus, there seems to be no dispute in the instant case that Punctual dealt solely with U.S. Land rather than U.S. Land Title of Louisiana, L.L.C.
      In addition, we note that counsel for U.S. Land did not brief U.S. Land's earlier contention that service was not perfected because Punctual did not serve U.S. Land Title of Louisiana, L.L.C.’s agent for service of process. U.S. Land has therefore abandoned the argument. Rule 2-12.4, Uniform Rules, Courts of Appeal.