author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Patrick WILSON.
    Nos. 09-KA-108, 09-KA-210.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Walter G. Amstutz, Michael D. Smith, Jr., Assistant District Attorneys, Twenty Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
    James A. Williams, Rachel Yazbeck, Law Office Of James A. Williams, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

|2In this criminal matter, the defendant/appellant, Patrick Wilson (“Wilson”), was charged with three counts of illegal drug activity. Count one was a charge of possession of marijuana with intent to distribute, count two was a charge of distribution of cocaine, and count three was a charge of possession with intent to distribute cocaine. Wilson was arraigned and entered pleas of not guilty to all charges. A defense motion to suppress the evidence and identification was filed and denied by the trial court.

Wilson was tried by a jury and found guilty as charged on all three counts. The trial judge imposed a sentence of fifteen years at hard labor on each count. The sentences were made concurrent, and the trial judge ordered the first two years of Wilson’s sentences on counts two and three be served without benefit of parole, probation, or suspension of sentence. Wilson was given credit for time served, and lathe trial court recommended that Wilson be placed in Blue Walters Drug Treatment while incarcerated.

The State filed a multiple bill of information alleging that Wilson was a second felony offender. Wilson denied the allegations of the multiple bill and a hearing was conducted. The trial court found Wilson to be a second felony offender. The court vacated Wilson’s sentence on count two and sentenced him to an enhanced sentence of twenty years at hard labor without benefit of probation or suspension of sentence. The court ordered that the enhanced sentence was to be served concurrently with his sentences on counts one and three and again recommended the Blue Walters Drug Treatment. Wilson filed for and was granted appeals from both the original drug convictions and sentence and the adjudication on the multiple offender bill and the enhanced sentence. Both appeals have been consolidated in this Court and will be considered in this opinion.

FACTS

Detective John Pacaccio (“Detective Pa-caccio”), with the Jefferson Parish Sheriffs Office Narcotics Division, testified that, on June 23, 2006, he was part of a multi-jurisdictional strike force conducting undercover drug purchases. On the day in question, one of those areas was the Bee-chgrove Apartment complex. Detective Pacaccio and his partner, Agent Wiley Davis (“Agent Davis”), along with Deputy Joshua Bermudez (“Deputy Bermudez”), an undercover agent for the Jefferson Parish Sheriffs Office, and Sergeant Sam Pa-lumbo (“Sergeant Palumbo”), of the New Orleans Police Department, worked the Beechgrove Apartment complex trying to make undercover drug purchases.

Deputy Bermudez went into the Bee-chgrove Apartment complex at approximately 6:00 p.m. He was driving a vehicle equipped with a VCR and a camera that faced the driver’s side window. As the deputy was driving down the Rstreet approaching 917 Beechgrove, he saw two black males. After he made eye contact with one of the men, later identified in court as Wilson, the man approached the passenger side. The other individuals who were with Wilson were yelling out to him, “If you sell it to [him] that’s going to be a sell charge.” In response, Wilson yelled back that he did not care if he “[got] a sale charge.” Deputy Bermudez testified that he told Wilson that he “wanted a 20,” which meant that he wanted $20 worth of crack cocaine. Wilson gave the deputy $20 worth of crack cocaine as requested in exchange for a $20 bill and left. Deputy Bermudez informed both Detective Pacac-cio and Agent Davis that a transaction had taken place at 917 Beechgrove. A subsequent field test by Agent Davis of the 0.1 gram “off-white, rock-like object” purchased by Deputy Bermudez was positive for the presence of cocaine.

About thirty to forty minutes later, Deputy Bermudez returned with the other officers to 917 Beechgrove in order to identify the seller. When the officers entered the parking lot, Wilson was standing outside with his hands behind his back. Deputy Bermudez identified Wilson as the person from whom he had purchased the crack cocaine.

Detective Pacaccio testified that he saw a group of individuals standing on the corner by the parking lot when he returned to 917 Beechgrove. Upon entering the parking lot, Detective Pacaccio observed the suspect as described by Deputy Bermudez.

Both Detective Pacaccio and Sergeant Palumbo testified that the individuals began to walk away when they noticed the unmarked cars. Sergeant Palumbo testified that he was walking behind Wilson when Wilson dropped “a clear plastic bag, each containing green vegetable matter, five clear orange Ziploc bags, each containing green vegetable matter, and one clear plastic bag containing eight offjwhite,6 rock-like objects.” Wilson then turned and walked into a breezeway. Detective Pacaccio testified that he started to follow Wilson until he was informed by Sergeant Palumbo that the suspect had discarded some drugs. Sergeant Palumbo retrieved the bag and turned it over to Detective Pacaccio.

Evidence presented at trial showed that the orange plastic bags were $5 bags of marijuana packaged for distribution, and four bags were $20 or $25 bags of marijuana. There were also several rocks of cocaine each with a street value of $20.

In the search incident to arrest, Wilson was found in possession of one $20 bill and one $5 bill that were photocopied. It was confirmed that these bills were the same ones used in the drug transaction between Deputy Bermudez and Wilson. Further, Deputy Bermudez positively identified Wilson as the man who sold him the drugs.

Laurie Ann Wilson (“Ms.Wilson”), the defendant’s aunt, testified that she was inside her residence of 917-Q Beeehgrove on the day some young African-American males, including her nephew, were arrested. Ms. Wilson testified that the police stopped everyone who passed the scene. According to her testimony, only young African-American males were handcuffed on the ground. Ms. Wilson testified that her nephew was walking through the breezeway to her house after work when he was called over by the police and placed on the ground. She testified that the police ran the names of everyone and subsequently arrested them. Ms. Wilson admitted that Beeehgrove had a lot of drug activity.

LAW

Wilson assigns two errors for our review on appeal. In the first assignment, he asserts that he was denied his constitutional right to the counsel of his choice.

| ^Wilson's argument is based on a decision of the trial court to refuse to continue the case on the scheduled trial date in order to allow James Williams to enroll as private counsel and prepare for trial. Wilson argues that his request to replace his counsel was not a dilatory tactic. He claims that he attempted to exercise his right to counsel at a reasonable time and in a reasonable manner, as well as at an appropriate stage of the proceedings, and that his actions were justifiable under the circumstances. Further, Wilson argues that the trial court’s error was not harmless because his trial counsel was ineffective.

The State responds that Wilson abandoned his right to appellate review because he failed to request a transcript of the proceedings relating to this issue and further submitted the argument in brief with full knowledge that the transcript was not included. Since the record has been supplemented with the applicable transcript by order of this Court, we will address Wilson’s claim.

The State argues, in the alternative, that there is no evidence to show that Wilson was denied an effective advocate as envisioned by the Sixth Amendment right to counsel.

The record shows that Wilson was arraigned on August 7, 2006. On July 15, 2008 Wilson filed a request for appointed counsel. In response to that request, Katherine Guste (“Ms. Guste”) was appointed counsel. On September 11, 2008, James Williams (“Mr. Williams”) filed a motion to enroll as counsel. On September 15, 2008, the day of the trial, both Ms. Guste and Mr. Williams appeared before the court. Mr. Williams told the trial judge that he had just been hired by Wilson’s family to represent Wilson at trial. However, Mr. Williams explained that, when he found out about the impending trial date, he informed the family that he could only take on the defense if a continuance would be granted. |7 When the trial court denied the continuance, Mr. Williams informed the court that he was not prepared for trial. The trial court denied Mr. Williams’ motion to enroll as counsel, and the trial proceeded the following day with Ms. Guste as defense attorney.

The right to counsel is a fundamental constitutional right. The Louisiana Supreme Court has found that it is both structural error requiring reversal, and a violation of the Sixth Amendment, when a criminal defendant has been denied his right to retained counsel of choice. When the right to be assisted by counsel of choice is wrongly denied, no harmless-error analysis is required regarding counsel’s effectiveness or prejudice to the defendant. The Louisiana Supreme Court stated:

Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice-which is the right to a particular lawyer regardless of comparative effectiveness-with the right to effective counsel-which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.

Generally, a person accused in a criminal trial has the right to counsel of his choice. However, an indigent defendant’s right to choose his defense counsel only extends so far as to allow the defendant to retain the attorney of choice, if the defendant can manage to do so, but the right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice.

s The defendant’s right to choose an attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases.

Given the facts of the current matter and the applicable law, we must inquire into the issue of whether the trial court’s decision to deny the motion for continuance prejudiced Wilson by denying him his counsel of choice.

A motion for a continuance must be filed seven days prior to the commencement of trial, in writing and stating the specific grounds on which it is based. The Louisiana Supreme Court has consistently held that the decision on whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and that an appellate court will not disturb such a determination absent a clear abuse of that discretion. In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice.

It is well settled that a defendant in a criminal trial cannot force a postponement by a last minute change of counsel. This Court has found no abuse of the trial court’s discretion in denying a motion for continuance on the day of 19trial to replace attorneys where the defendant was represented by counsel prepared for trial.

In his argument that the trial court abused its discretion in denying the motion, Wilson relies on State v. Mitchell. In Mitchell, this Court reversed the defendant’s conviction and sentence after a finding that the trial court abused its discretion in denying a continuance to allow the defendant to replace his attorney. Because we find Mitchell to be distinguishable from Wilson’s issue, we are unconvinced by Wilson’s argument.

The defendant in Mitchell claimed that the trial court’s refusal to allow his attorney to withdraw and to grant a continuance so that co-counsel could enroll as counsel of record violated his constitutional right to counsel of his choice. The defendant argued that the trial court’s refusal caused him to be represented by an unwanted, unwilling, and unprepared counsel.

This Court noted that the defendant’s attorney stated he was unprepared to try the case. Defense counsel also failed to attend several pre-trial hearings and to timely comply with a court order which would have granted the defendant a continuance and an opportunity to replace him with prepared, experienced counsel. We determined that the defendant attempted to replace his attorney because his attorney was unprepared and unwilling to try the case. We found that the defendant’s attempt to replace his attorney was justified and not a dilatory tactic because it was reasonable for the defendant to assume that his attorney was not going to present an adequate defense based on his attorney’s lack of preparation for the trial.

|1flIn the present case, Wilson has failed to show any specific prejudice in the trial court’s denial of his motion for continu-anee. Wilson alleges his trial counsel was ineffective. However, these instances occurred during trial, not prior to his request for a continuance to allow private counsel to prepare for trial. Therefore, these allegations do not enter into the discussion on whether the trial court properly denied the motion for continuance prior to trial.

An ineffective assistance of counsel claim is most appropriately addressed in an application for post-conviction relief filed in the trial court where a full eviden-tiary hearing can be conducted.

In the matter before us, the bill of information was filed on July 14, 2006. Arraignment was held on August 7, 2006, at which time Wilson informed the trial judge that he would retain private counsel. However, Wilson did not obtain private counsel and requested appointment of counsel on July 15, 2008. Therefore, Wilson had approximately two years between his arraignment and the date set for trial of September 15, 2008 to retain the attorney of his choice, if he could manage to do so. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases.

We find no merit in this assignment of error.

In his second assignment of error, Wilson challenges his sentences. Specifically, Wilson claims that the sentences for possession with intent to distribute cocaine and marijuana, as well as his enhanced sentence for distribution of cocaine, are unconstitutionally excessive. He further claims that the trial judge |n failed to consider mitigating circumstances as part of the sentencing guidelines as required by La.C.Cr.P. art. 894.1.

According to Wilson, at the time of the offense he was an eighteen-year-old employed man with strong family ties. Wilson claims his current offense did not contain any aggravating factors. There was no testimony that he resisted arrest or was in possession of a weapon when arrested. In addition, there was no testimony that he was “someone the police dealt "with before,” that he was targeted either by the task force or upon information provided by a confidential informant, or that he was known to have dealt drugs in the past. Wilson also claims that the amount of drugs sold and found in his possession was not large, and he was not found with a lot of money in his possession. He notes that his previous two convictions for possession of cocaine and unauthorized use of a movable were not crimes of violence. Wilson also asserts that the likelihood of his rehabilitation is high because of his age and his supportive family.

The State contends that Wilson is precluded from raising a claim based upon the trial court’s articulation of La.C.Cr.P. art. 894.1 factors because there was no objection made at the time of sentencing. We agree. Wilson’s failure to raise the issue of compliance with La.C.Cr.P. art. 894.1 in the trial court below precludes him from raising this issue on appeal.

The State also responds that the trial court did not abuse its discretion in sentencing Wilson.

The record reveals that Wilson failed to file a motion to reconsider sentence. A motion to reconsider sentence must be made orally at the time of sentence or in writing thereafter, setting forth the specific grounds on which the motion is based. |12 Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, precludes the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. When there is no motion to reconsider sentence filed in the trial court, a defendant is limited to a bare review of the sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. A sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits.

In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. The three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. A trial court is afforded great discretion in determining sentences and sentences will not be set |,saside as excessive absent clear abuse of that broad discretion. An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.

The sentencing range for possession with intent to distribute cocaine is at least two and not more that thirty years at hard labor, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence.

The sentencing range on the possession with intent to distribute marijuana conviction is five to thirty years at hard labor, and a fine of not more than fifty thousand dollars.

Wilson’s sentences of fifteen years on each of these convictions are mid-range sentences within the statutory guidelines. Considering that Wilson committed three drug-related offenses on the same day, sold drugs to an undercover officer, and had additional cocaine and marijuana found in his possession, we find no merit in his argument as it relates to these sentences.

The habitual offender law expresses a clear legislative intent that repeat offenders receive serious sentences. When an appellate court reviews a sentence on appeal, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion.

| uThe term of imprisonment for a second felony offender “shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” A conviction on a charge of distribution of cocaine carries a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence. Thus, Wilson was facing an enhanced sentence as a second felony offender of imprisonment between fifteen and sixty years without benefit of parole, probation, or suspension of sentence for the first two years of the sentence. His actual sentence is twenty years at hard labor. Although the trial court did not restrict the first two years to withhold benefits of parole, probation, or suspension of sentence as required, the sentence is deemed to contain the required restriction and, therefore, does not require any corrective action.

Given the facts of this case and considering the enhanced sentence of twenty years is on the low end of the possible sentencing range, we find no abuse of the trial court’s discretion.

For the foregoing reasons, we affirm Wilson’s convictions and sentences.

AFFIRMED.

      . The actual motion is not in the record. However, the chronological index states that is "on imaging.”

      . See, State v. Reeves, 06-2419 (La.5/5/09), 11 So.3d 1031.

      . Id. at 1056 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 2563, 165 L.Ed.2d 409 (2006)).

      . Id.

      . Id.

        . Id. at 1057.

      . Id.

      . State v. Leggett, 363 So.2d 434, 436 (La.1978).

      . Id.

      . La.C.Cr.P. art. 707.

      . State v. Reeves, 11 So.3d at 1078. See, La.C.Cr.P. art. 712.

      . Id. at 1079 (citing State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, 140, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007)).

      . State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 790-91, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666.

      . State v. Divine, 98-812 (La.App. 5 Cir. 5/19/99), 738 So.2d 614, writ denied, 99-2393 (La.2/4/00), 754 So.2d 222, cert. denied, 530 U.S. 1219, 120 S.Ct 2227, 147 L.Ed.2d 258 (2000); See also, State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445.

      . 95-552 (La.App. 5 Cir. 7/30/96), 680 So.2d 64.

      . Id. at 67-68.

      . State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 751, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754.

      . State v. Leggett, 363 So.2d at 436.

        . State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 867, writ denied, 08-1086 (La.12/19/08), 996 So.2d 1132.

      . La.C.Cr.P. art. 881.1(B).

      . La.C.Cr.P. art. 881.1(E).

      . State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 814.

      . State v. Crawford, 05-494 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669.

      . State v. Riche, 608 So.2d 639, 640 (La.App. 5 Cir.1992), writ denied, 613 So.2d 972 (La.1993).

      . Id.

      . State v. Crawford, supra, at 670.

      . Id.

      . State v. Riche, 608 So.2d at 640.

      . La.C.Cr.P. art. 881.4(D).

      . La. R.S. 40:967(B)(4)(b).

      . La. R.S. 40:966(B)(3).

      .We note that the trial judge did not impose a fine. There is some doubt surrounding the issue of whether a statutory fine of “not less than” a certain amount is a mandatory fine. See, State v. Phillips, 02-0866 (La.11/22/02), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003), Chief Justice Calogero, dissenting; and State v. Francois, 06-0788 (La.App. 3 Cir.12/13/06), 945 So.2d 865 (holding that, when the trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” a certain amount, it impliedly imposes a fine of $0 and there is no error requiring remand); State v. Kerlec, 06-838 (La.App. 5 Cir.4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626. Further, the State neither objected at the lime of sentencing nor assigned this issue for our review. Accordingly we will not disturb this sentence for the failure to impose a fine.

      . State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 651, writ denied, 05-597 (La.6/3/05), 903 So.2d 455.

      . Id. at 651.

      . La. R.S. 15:529.1(A)(1)(a).

      . La. R.S. 40:967(B)(4)(b).

      . See, La. R.S. 15:301.1 and State v. Wiley, 03-884 (La.App. 5 Cir. 4/27/04), 880 So.2d 854, 871.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Norbert JOSEPH, III.
    No. 09-KA-400.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Prentice L. White, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges, MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ¡(Defendant, Norbert Joseph, III, was convicted of theft of property having a value of $500.00 or more, and was sentenced to five years imprisonment, at hard labor. The trial court suspended three years of defendant’s sentence and ordered him to serve two years on home incarceration. The court explained that when he completed the home incarceration program he would be on probation for an additional three years. Defendant was ordered to make restitution to the victims and was given two years in which to do so. This timely appeal followed.

The following facts were adduced at trial. In November and December 2006, GameStop, the world’s largest specialty retailer in video games, was selling PlayStation 8 and Xbox 360 gaming consoles. Christopher M. Douglas, Sr. testified that in November of 2006 he was assistant manager of the GameStop store that was located on Veterans Memorial Boulevard, and in December of 2006, he was promoted to store manager. Mr. Douglas testified that over about a three-week period of time, PlayStation 3 and Xbox 360 gaming consoles were stolen from GameStop. He testified that the records at UPS, their store’s primary provider for shipments, reflected 30 PlayStation 3 consoles were never received at |sGameStop. Mr. Douglas testified that the missing packages were shipped from Grapevine, Texas, GameS-top’s home office warehouse, through UPS.

Gordon Brown, III was working as a security supervisor for UPS in November and December of 2006. He testified that after being contacted by GameStop regarding the missing items, he participated in an investigation into the missing items. Mr. Brown discovered that items were missing since November 30, 2006.

Mr. Brown stated that on December 4, 2006, he was tracking the shipments coming into the area and discovered eight packages had not been delivered to Gam-eStop stores. Mr. Brown contacted the store managers and requested that they check their inventory. The managers checked their systems and the packages were not there. Mr. Brown went to the store to check boxes there to see if the tracking numbers matched, and they did not. Mr. Brown explained that each package has an individual tracking number, allowing UPS to know where packages are when they travel through its system and when the packages are delivered. Mr. Brown explained that the missing items not delivered to GameStop were tracked and showed that the items arrived at the Earhart facility, but then were not delivered.

Mr. Brown testified that on the following day, December 5, 2006, it was discovered that additional packages containing the same type of items, PlayStation 3 consoles, were missing. Thereafter, Mr. Brown contacted their technology group to obtain a Global Positioning Satellite unit (GPS) that they could run through them system and track the movement of the package.

Mr. Brown obtained an empty PlayStation box from GameStop, built in the GPS, added weights to the bottom of the box, and put the package into the UPS system and tracked it. On December 12th and on December 13th, the package was delivered to GameStop as intended. On December 14th, however, the package was E tracked to a different destination. Mr. Brown explained that the package was monitored from the time it was put into the UPS system, which was at approximately 4:00 a.m., and the GPS showed that the package left UPS and stopped at Andrews’ Sports (hereinafter referred to as Andrews’), which was about three buildings down.

Knowing the package went to a destination to which it was not supposed to be delivered, Mr. Brown called 9-1-1. Two deputies were dispatched to Andrews’. Mr. Brown testified that the GPS unit was found at Andrews’, about 40 or 50 yards behind the building in the grass by the railroad tracks.

Mr. Brown testified that five boxes went to Andrews’ that contained nine PlayStation 3 consoles. He testified that some Xbox 360 consoles were also included in the shipment. Mr. Brown testified that the boxes were unusual in that they contained two labels. He explained that the original labels had labels over them, with the label addressed to Andrews’ on top of the original label that was addressed to GameStop. Mr. Brown testified that they worked with the police and discovered another package that was “over-labeled” that was supposed to be delivered to Babbage’s that day. He explained that Babbage’s was an affiliate of GameStop and had several missing PlayStation 3 units.

Mr. Douglas testified that GameStop does not ship gaming devices to Andrews’. Mr. Brown testified that they found the box that was tracked and shipped to the warehouse inside the facility in the back of the warehouse. He explained that the outer carton with the shipping label was found in the initial search, and the actual PlayStation box was found during the second search.

Mr. Brown testified that they recovered nine PlayStation consoles and two Xbox 360 consoles on December 14, 2006 from Andrews’. PlayStation 3 boxes and a box for an Xbox console were found in the warehouse, hidden behind |fiinventory and inside of Andrews’ boxes. Usually, the PlayStations were shipped in boxes with two units, but these Andrews’ boxes held three PlayStations each.

Three people were arrested as a result of the investigation: defendant, Jasel Bol-den, and Sean Weber. All three individuals worked at UPS in the Earhart facility and at Andrews’. Mr. Brown explained that defendant was an hourly sorter and worked in the evening, around 5:00 to 9:00 p.m. Bolden and Weber were part-time supervisors with UPS and worked in the morning, usually from 4:00 a.m. to 8:00 or 9:00 a.m.

Mr. Brown stated that the GPS unit was put into a package and placed in a trailer destined for the Earhart facility at approximately 4:00 a.m. Mr. Brown testified that the test package had no problems up until the time it arrived at the Earhart facility. Mr. Brown testified that the label was covered sometime after 4:00 or 5:00 a.m. and before 8:00 or 9:00 a.m. when it left the Earhart facility. He concluded that the label was changed in the Earhart facility. He testified that at 4:00 a.m. Weber and Bolden would have been the workers at the Earhart facility, and could have put those labels on in the morning. He testified that he could assume defendant was not working at that time.

Mr. Brown testified that on the morning of December 15, the owner of Andrews’ called and told them that labels were discovered on their computer that had been printed from Andrews’ system that reflected shipments to Buena Park, California, and that Andrews’ did not ship to that place. The packages were being shipped from Andrews’ to GameQuest in Buena Park, California. Mr. Brown called the security department in California and the packages, which contained three PlaySta-tions, were intercepted. Mr. Brown testified that the labels on the packages were made at Andrews’.

|fiCarl Raymond Livermore, III testified that he worked at Andrews’. He explained that he was currently the warehouse manager, but that in November and December of 2006, he was a warehouse helper and defendant was his supervisor. Mr. Livermore testified that on the morning of December 14, 2006, he was working in the warehouse when a UPS driver arrived at approximately 8:30 a.m. He explained that the boxes that were delivered seemed different, both in weight and in appearance.

Mr. Livermore testified that after the boxes were unloaded, defendant opened the first box and it contained a tracking device. Mr. Livermore said he saw defendant take the device out of the box, but did not know what he did with it. Mr. Liver-more testified that defendant became nervous and started telling them to hurry up and wheel the boxes to the back of the warehouse. He testified that the area in the back of the warehouse was usually used for trash, and it was unusual for him to take boxes out back by the trash at that time of the morning when they would always throw out the trash on the afternoon prior to when the trash would be collected. Mr. Livermore also said he observed defendant cutting boxes and throwing them out.

Mr. Livermore testified that the police arrived and arrested defendant, Weber, and Bolden. He stated that later the office manager told him to find all the boxes, and that the boxes hidden by defendant were found. He testified that he saw defendant pull out these PlayStation boxes when he was wheeling boxes to the back. After finding the boxes, they called the detective. Mr. Livermore testified that Andrews’ did not sell any gaming devices, including PlayStation 3 and Xbox consoles.

|7Mr. Livermore testified that defendant was in charge of labeling the packages and that there was a UPS labeling machine at Andrews’ in the warehouse. Mr. Liver-more testified that only defendant used the machine.

Detective Greg Floridi, a detective with the Jefferson Parish Sheriff’s Office, testified that in November and December of 2006 he participated in the investigation that led to defendant’s arrest. He testified that he arrived at Andrews’ to assist deputies who were investigating a theft. At the scene, he spoke with a deputy, with Mr. Brown of UPS, and with defendant, Andrews’ warehouse manager. Detective Floridi testified that at the time, defendant was not a suspect. He believed defendant would be a witness. Detective Floridi testified that he asked defendant if he had seen anything suspicious. He testified that defendant appeared nervous and was “a bit evasive” initially when he was questioned. Defendant advised Detective Flo-ridi that another employee, Bolden, had asked defendant to hold a package in defendant’s car for him. Detective Floridi testified that defendant said Bolden gave him the package to hold while he went get something to eat, but did not explain why. Defendant then said “I don’t want it; here, you can take it.” Detective Floridi said defendant was nervous and went to take the package out of his trunk. Defendant gave the package to Detective Floridi. Detective Floridi explained that the package defendant gave him consisted of a sealed box with a label affixed to it that was addressed to Andrews’. The box contained a PlayStation gaming console.

Detective Floridi testified that defendant and two co-defendants, Weber and Bolden, were transported to the Detective Bureau for further investigation. Detective Floridi stated that defendant and Weber were both interviewed, but Bolden did not want to be interviewed.

| ^Defendant was advised of his rights and waived them. Defendant then made statements regarding the theft investigation. Detective Floridi asked defendant if he had ever sold any PlayStations on eBay, and defendant admitted to buying a PlayStation 3 on eBay and then re-selling it on eBay. Defendant also said he purchased a PlayStation 3 from Bolden about three weeks before and that it was at his house.

Detective Floridi testified that he asked defendant about the internet as a result of something Weber had said. Weber gave a statement to Lieutenant Penouilh. Detective Floridi testified that Weber said that both he and defendant worked at Andrews’ and at UPS, and that defendant produced shipping labels at Andrews’ and gave him the packaging slips from Andrews’ and advised him to place these labels on the packages at UPS and the packages would then be shipped to Andrews’, as opposed to being shipped to their true locations. Weber said the packages were intercepted at Andrews’ and then defendant would sell the packages on eBay.

Detective Floridi testified that the PlayStation at defendant’s house was recovered. He explained that Mississippi authorities went to defendant’s house and obtained consent to search from defendant’s wife.

Detective Floridi testified that when they searched the warehouse initially, they did not find any gaming consoles. However, the owner of the warehouse and employees later did their own search. Detective Floridi stated that PlayStation 3 consoles were recovered in the warehouse at Andrews’. He explained that boxes were found that were addressed to Andrews’, but these labels had been placed over other labels addressed to GameStop. Detective Floridi concluded that the labels had to have been changed prior to when they arrived at Andrews’. Detective | (¡Floridi testified that he did not know who put the labels on the packages, but was aware that Weber and Bolden were in a position to do it.

Detective Floridi testified that he did not believe Bolden had anything in his trunk, but that Weber had some electronic items in the trunk of his vehicle. Weber had a PlayStation in his trunk. After the investigation, it was discovered that at least some of the items in Weber’s trunk were missing items that had been reported by UPS.

Detective Floridi reviewed defendant’s eBay activity and received a printout containing defendant’s sales and bidding history from eBay security. Detective Floridi testified that on December 4, 2006, defendant placed a PlayStation 3 for sale on eBay and that on December 9, 2006, he placed three more PlayStation 3 consoles for sale. On December 4th, he sold one for $820.00 and on December 9, he sold another for $740.72. Defendant had described the listed bidding items as brand-new and factory-sealed PlayStations. According to the report received from eBay, defendant placed four PlayStations and two Xbox 360 gaming consoles for sale on eBay between November 30, 2006 and December 9, 2006.

Defense witness Clifton Dreyfus testified that defendant worked for him at UPS at the Earhart facility, and that defendant worked from 5:30 p.m. until about 8:30 p.m. He stated if something came in from Texas at 4:00 a.m. to be delivered at 9:00 a.m. that defendant would not have had access to it because of his hours. Mr. Dreyfus explained that defendant had been working the 4:00 a.m. shift, but asked to be switched to the evening shift.

Mr. Brown was also called as a defense witness. He testified that the GPS package was unloaded out of the trailer into the facility at approximately 5:30 or 6:00 a.m. on the same morning it was delivered. He testified that Weber and Bolden were working on that morning.

| mAnother defense witness, Darlene Jones, testified that she was friends with defendant’s mother and had sold defendant video games and two PlayStation 3 gaming consoles while she was acting as an agent for her friend’s son. She identified a receipt she wrote for defendant when she sold him the games and consoles for $1200.00. The date it was signed, December 3, 2006, is the date Mrs. Jones said defendant physically took the items into his custody.

In his first allegation of error, defendant alleges that the trial court erred in accepting the jury’s guilty verdict. Defendant alleges that the State failed to present sufficient evidence to sustain his conviction because there was no evidence to suggest that he knowingly and actively participated in taking the PlayStation 3 and X-box 360 devices. He does not refute that GameStop equipment was rerouted to Andrews’ or that someone fraudulently placed labels on the shipping boxes for delivery to Andrews’, he just blames these actions on his co-workers, Weber and Bolden. He argues that he was convicted simply because he worked with Weber and Bolden, because he had one of the devices in his car, and because of his nervous reaction to the police. Defendant argues that the State’s entire case of defendant being the culprit depended on the testimony of Mr. Livermore, who based his testimony on defendant’s reaction to seeing the GPS device in one of the boxes. Defendant blames this reaction on his realization at the time that he had purchased stolen goods from Bolden and Weber. Defendant concludes that at most, he is guilty of illegal possession of stolen things or unauthorized use of a movable.

The State responds that it is apparent from the testimony presented that defendant was involved in a scheme to steal and sell for profit video gaming devices from GameStop and, therefore, possessed the requisite specific intent to commit the crime. The State argues that defendant created UPS labels and passed | nthem to Weber at UPS. The labels were placed on the packages and were redirected to Andrews’, where defendant would receive the stolen property and list them on eBay for profit. The State argues that the alternate hypothesis of events offered by defendant, that he was not privy to the scheme, and simply purchased a gaming device from a co-worker unaware that it was stolen, does not address how or why defendant listed and sold several factory-sealed gaming devices on eBay. The State concludes the jury found its witnesses more credible than the defense witnesses, and that the evidence was sufficient to support the theft conviction.

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), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert.denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, 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) (quotation omitted). 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. |1215:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation 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 (quotation omitted).

Defendant was convicted of theft in violation of LSA-R.S. 14:67. LSA-R.S. 14:67(A) defines theft as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

As such, in order to support a conviction for theft pursuant to LSA-R.S. 14:67, the State is required to prove that the defendant misappropriated or took, a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Carmen, 08-478, p. 7 (La.App. 5 Cir. 1/27/09), 3 So.3d 587, 591. In addition, the State is required to prove the value of the stolen property, since the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen goods. State v. Ramsdell, 06-644, pp. 6-7 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 511. In this case, the State was required to prove that the value of the goods was over $500.00.

Theft is a crime of specific intent. State v. Kibbe, 04-349, p. 7 (La.App. 5 Cir. 10/26/04), 887 So.2d 565, 569. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact finder. Kibbe, supra.

We find that the State presented sufficient evidence for the jury to conclude that property was taken, more specifically gaming consoles, belonging to GameStop, without its consent, and that the value of this property was in excess of $500.00. Further, the State presented evidence that defendant was involved in the scheme that involved re-labeling and re-routing delivery, resulting in the misappropriation of these gaming consoles from GameStop. Although defendant denies involvement and blames the misappropriation on Weber and Bolden, the State did present evidence of defendant’s involvement in the scheme.

Weber’s statement presented at trial implicated both himself and defendant in the scheme. Weber said that defendant produced the shipping labels at Andrews’ and gave him the labels to put on the PlayStation packages at UPS. Weber explained that after the packages were delivered to Andrews’, defendant would sell the items on eBay. The State also presented evidence that showed that defendant listed brand new PlayStation and Xbox consoles for sale on eBay and sold two of them. Furthermore, GameStop resumed receiving their shipments after the investigation concluded.

Testimony was presented that only defendant made the labels at Andrews’ that were used in the scheme to re-route the gaming consoles. Although defendant discounts his reaction to finding the GPS device in the box as a reaction to realizing he had bought stolen goods, defendant’s actions at that time appear to be efforts in covering up the scheme. Testimony was presented that Weber and Bolden were not at Andrews’ at the time the package that contained the GPS device was delivered. Further, Weber and Bolden arrived after the GPS device | uwas found. The GPS device was found 40 or 50 yards behind the building in grass. Mr. Liver-more testified that he saw defendant take out the GPS device and saw defendant cutting up boxes. He also testified to seeing defendant pulling out PlayStation boxes. Further, he stated that defendant told him to hurry and wheel the boxes away.

The jurors clearly found the testimony of the State witnesses more credible than the testimony of the defense witnesses. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

The jury was presented with all of the evidence, and it appears the jury rejected defendant’s theory that only Weber and Bolden were involved in the scheme to misappropriate the gaming consoles from GameStop. Based on the foregoing, we find that the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of the essential elements of the crime beyond a reasonable doubt.

We have reviewed the record for errors patent, according to 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), and find the following which merit our attention.

There are discrepancies in the commitment and the transcript. Although the commitment reflects that defendant was properly advised of the prescriptive period hr,for filing post-conviction relief, the transcript reflects an incomplete advisal. In State v. Davenport, 08-463, pp. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, this Court corrected this error by way of its opinion rather than a remand. Following Davenport, we advise defendant by way of 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. See State v. Schaller, 08-522 (La.App. 5 Cir. 5/26/09), 15 So.3d 1046.

The trial court’s order of restitution contains the following error. LSA-C.Cr.P. art. 895.1 A(l) provides:

When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution ' in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

The transcript reflects that the trial judge stated the following when ordering the payment of restitution:

I’m going to order that you make restitution to the victims in this case; the amount is over Sixteen Thousand, but we’re going to let the probation officers get an exact amount from either the D.A.’s Office, or the victim. And I’m going to give you two years to pay that restitution.

As such, we note that the trial judge failed to specify who the victim or victims were in this case that restitution would be paid. Further, the trial judge failed to specify the amount of restitution that would be paid. He noted the amount was over $16,000.00, hfjbut stated that the probation officers could get an exact amount from the D.A.’s Office or the victim.

The statutory authorization for the ordering of restitution as a condition of probation requires the amount of restitution to be determined by the court. State v. Dassau, 534 So.2d 467, 469 (La.1988). When the restitution is ordered in an amount to be determined by the probation department, that portion of the sentence is considered illegal. Id.

We also note that the record does not reflect that the trial court determined defendant’s earning capacity and assets or set a payment schedule for restitution. LSA-C.Cr.P. art. 895.1 provides the “restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” Thus, for this reason, the court’s restitution order appears indeterminate. See State v. Echeverria, 03-898, p. 12 (La.App. 5 Cir. 11/25/03), 862 So.2d 163, 170.

Accordingly, we remand the matter to the trial court for a determination of the manner in which defendant will pay restitution, either in a lump sum or in installments, based on defendant’s earning capacity and assets. Further, the trial judge shall specify the victim to which the restitution is to be paid, as well as the specific amount of restitution to be paid.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. This matter is remanded for the trial court to set a determinate amount of restitution, to specify the manner of its payment, and to specify the victim to be paid.

AFFIRMED AND REMANDED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Melvin MILLIEN v. Lori A. JACKSON and Insurer Louisiana Farm Bureau Insurance.
    No. 09-CA-56.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Geri Broussard Baloney, Abril Baloney Sutherland, Fontella Fountain Baker, Ke-yojuan L. Gant, Attorneys at Law, Gary-ville, LA, for Plaintiff/Appellee.
    James S. Thompson, Matthew L. Mann, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

Lin this personal injury matter, defendants/appellants Lori A. Jackson and Louisiana Farm Bureau Mutual Insurance Company appeal a judgment awarding plaintiff/appellee Melvin Millien $62,500 and related medical expenses. The trial judge found that Mr. Millien sustained injuries as a result of falling off Ms. Jackson’s roof while in the process of placing a tarp on the damaged roof. The trial judge further apportioned 25% fault to Melvin Millien and 75% fault to the defendants/appellants. Ms. Jackson and Farm Bureau, her insurer, now appeal raising the following specifications of error. First, Ms. Jackson and Farm Bureau contend that the trial court erred in assessing them with any fault because Ms. Jackson’s roof did not present an unreasonable risk of harm. Second, Ms. Jackson and Farm Bureau contend that Melvin Millien was the sole and proximate cause of his injuries because, in ascending Ms. Jackson’s roof to affix the tarp, Mr. Millien used a ladder that was not as high as the eave of Ms. Jackson’s roof. For the reasons that follow, we affirm the judgment of the trial court.

| ¡¡FACTS AND PROCEDURAL HISTORY

On August 29, 2005, Hurricane Katrina passed over southeast Louisiana. The storm damaged the roof of Ms. Jackson’s home located at 1936 Williamsburg Drive in LaPlace, Louisiana. The damage to Ms. Jackson’s roof caused water to leak into her kitchen. On September 22, 2005, Hurricane Rita was threatening southeast Louisiana. Ms. Jackson asked Mr. Millien to place a tarp over the damaged portion of her roof to prevent water from continuing to leak into her residence and to prevent the potential of further damage from Hurricane Rita. After attaching the tarp to Ms. Jackson’s roof, Mr. Millien slipped on a loose shingle, slid off the roof, and fell to the ground.

Trial in this matter was held on March 26, 2008. Mr. Millien testified at trial and in his deposition that was introduced into evidence that he and Ms. Jackson had been involved in a relationship for six years before the accident occurred. Mr. Millien is a forklift and vacuum truck operator who worked for PSC Phillip Services in West Lake before the accident.

Mr. Millien testified that Ms. Jackson had told him that she had consulted with Farm Bureau before asking him to affix the tarp to her roof. According to Mr. Millien, a Farm Bureau official had told Ms. Jackson that Farm Bureau would reimburse Ms. Jackson for the damage to her kitchen if she installed a tarp on the damaged portion of her roof.

The day of the accident, Mr. Millien testified that he leaned his twelve-foot ladder against the roof of Ms. Jackson’s home. The ladder was shorter than the roof. Mr. Millien climbed the ladder, went on the roof and placed the tarp in the area over the kitchen where the roof was leaking. On his way back to the ladder, Mr. Millien slipped on a loose shingle located near the edge of the roof and fell off the roof onto the concrete slab below. Mr. Millien testified that he could not tell |4the shingle on which he slipped was loose before he slipped on it. Mr. Millien testified that he slipped on the loose shingle as he sat down to climb down on the ladder before he reached the ladder.

Mr. Millien testified that Ms. Jackson did not tell him about the extent of the damage to her roof or whether she had asked a professional to fix the roof. Moreover, Mr. Millien testified that he could not tell that the shingle he slipped on was loose merely by looking at it. Mr. Millien additionally testified that the loose shingle was not on a portion of Ms. Jackson’s roof where shingles were missing. After he fell to the ground, Mr. Millien could not move and Ms. Jackson had to drive him to the hospital. At the hospital, Mr. Millien’s leg was set and placed in a cast. As a result of the accident, Mr. Millien fractured his leg and smashed his heel. He was hospitalized and required surgery during which a metal plate was placed in his ankle. Mr. Millien had to have another surgery to remove the plate. Mr. Millien’s physical therapist had to make him a special shoe insert, which he was still wearing when this trial began. Mr. Millien also endured several months of physical therapy and had a home health nurse for seven months. During his treatment, complications occurred which lengthened and complicated his recovery. Mr. Millien testified that he still limps and experiences pain as a result of this accident.

On cross-examination, Mr. Millien testified that he personally purchased the hammer and nails he used to attach the tarp to Ms. Jackson’s roof. Counsel for the appel-lees asked Mr. Millien if he was a “handyman sort of person,” to which he replied “I do my work at home.” Mr. Millien testified that he performed his own home maintenance and occasionally helped Ms. Jackson with maintenance on her home. However, Mr. Millien testified that he was not a professional roofer and that he had no expertise in the area of roofing. Moreover, Mr. Millien did not know the | sextent of the damage to Ms. Jackson’s roof and testified that he did not know about the different layers of materials on roofs or the signs of wear and tear on a roof.

Mr. Millien admitted that the top step of the ladder he used to ascend Ms. Jackson’s roof was slightly shorter than the eave of Ms. Jackson’s roof. Thus, he had to step from the next to last step of the ladder onto the roof. Counsel for Farm Bureau and Ms. Jackson showed Mr. Millien a series of photographs. One of the photographs depicted an area of Ms. Jackson’s roof that had been damaged during Hurricane Katrina. Mr. Millien identified the damaged portion of the roof in the picture as the portion of Ms. Jackson’s roof where he placed the tarp. Mr. Millien testified that he placed the ladder approximately two to four feet away from the damaged portion on the corner of the roof. Mr. Millien was adamant that he did not know that there would be damage to Ms. Jackson’s roof until he ascended the ladder and saw the roof. Mr. Millien then placed the tarp over the exposed area of the roof and nailed down the tarp. Mr. Millien testified that he did not slip on a shingle as he was trying to climb back on to the ladder, rather, he slipped as he was walking in the direction of the ladder after nailing down the tarp. At the time he slipped, Mr. Millien was in a hands-free crouched position and was very close to the end of the roof. Mr. Millien acknowledged that he could have declined to get on Ms. Jackson’s roof and insisted that Ms. Jackson get a professional roofer.

Ms. Jackson testified that she had not had the roof inspected after purchasing the house on Williamsburg Drive. She had the house inspected before she purchased it, but not between that time and August 2005 when Hurricane Katrina struck. After Hurricane Katrina struck, Ms. Jackson testified that she had several roof leaks. According to Ms. Jackson, an official from Farm Bureau had inspected the roof after Hurricane Katrina, however, she was not sure if this had occurred before or after Mr. Millien fell from her roof. She had not hired a roofer or a | (¡contractor to repair the damage. Ms. Jackson testified that at some point she contacted four or five roofers who gave her quotes between $5,000.00 and $3,900.00 to repair the roof. Ms. Jackson submitted these figures to Farm Bureau. Ms. Jackson testified that if she had had a check from Farm Bureau she would have hired a professional roofer to repair her roof rather than asking Mr. Millien to affix a tarp to the roof. The only way Ms. Jackson could repair the roof was with insurance money. Ms. Jackson admitted she did not call any roofers or community agencies about putting put the tarp. She testified that she did not know if she asked Farm Bureau whether it could send somebody to affix the tarp to her roof. Farm Bureau did not send anybody out to put a tarp on Ms. Jackson’s roof or give Ms. Jackson a list of professionals who were qualified to put a tarp on a roof.

Ms. Jackson further testified that she did not inform Mr. Millien of the extent of damage to her roof prior to asking him to place the tarp on her roof or whether she had asked a professional to fix her roof. Ms. Jackson did not know what portion of the roof Mr. Millien fell from. However, Ms. Jackson testified that when she saw Mr. Millien on the ground after he fell, he was on the side of the house where Mr. Millien testified that he had placed the ladder. After Ms. Jackson testified, counsel for Mr. Millien rested.

Counsel for the appellees subsequently recalled Ms. Jackson to the witness stand. Ms. Jackson testified that she had not had any problems with her roof prior to Hurricane Katrina. Ms. Jackson testified that she had contacted approximately five roofers before asking Mr. Millien to place the tarp on her roof. Ms. Jackson was waiting for Farm Bureau to pay for the repairs to her roof when Mr. Millien was injured. Ms. Jackson testified that Farm Bureau did not offer to place a tarp on her roof. The appellees then rested and the trial court then took this matter under advisement.

|7On May 28, 2008, the trial court rendered its judgment, finding that the plaintiff had borne his burden of proof that the roof presented an unreasonable risk of harm. The trial court additionally found that Ms. Jackson had failed to have the roof inspected after Hurricane Katrina, to regularly maintain the roof before the storm, and had failed to warn Mr. Millien about the damaged condition of the roof.

The trial court rejected the appellees’ argument that the roof presented an obvious danger, noting that “[i]t is assumed that when [Mr. Millien] stayed at [Ms. Jackson’s] house, he stayed inside the house where the roofs condition was not readily apparent.” (emphasis in original). The court additionally determined that while the unreasonably dangerous condition of the roof was the primary cause of Mr. Millien’s fall and injuries, Mr. Millien’s own actions contributed to his fall and subsequent injuries

The trial court awarded Mr. Millien $62,500.00 plus legal interest from the date of judicial demand, applicable medical expenses, and costs. The trial court additionally apportioned “the plaintiff with 25% fault for the accident, while the defendant was found to be 75% at fault. Accordingly, the judicial award shall be made proportionate to each party’s respective fault.” The appellees filed a timely Motion for New Trial, or Alternatively, Motion to Clarify Judgment (the “Motion for New Trial”). In the memorandum accompanying the Motion for New Trial, Farm Bureau and Ms. Jackson requested that the trial court clarify the judgment because “[i]t is unclear whether the Court assessed the fault percentages before awarding the $62,500.” On September 23, 2008, the trial court rendered a Judgment denying the Motion for New Trial. The court additionally noted “defendants must pay 75% of $62,500.00 or $46,875.00 plus 75% of $33,533.56 in medical expenses. They, further, must pay legal interest from date of judicial demand plus court costs.” This timely appeal followed.

|SLAW AND DISCUSSION

In their first specification of error, the appellants contend that the trial court erred in allocating 75% of the fault for Mr. Millien’s injuries because Mr. Millien’s negligence was the sole and proximate cause of his fall. More specifically, the appellants contend that any potential danger on Ms. Jackson’s roof was “obvious, universally known, and easily avoidable” and that the roof did not therefore present an unreasonable risk of harm.

La. C.C. arts. 2315 and 2316 are the codal foundation for delictual liability for negligence in Louisiana. La. C.C. arts. 2317 and 2317.1 define the basis for delic-tual liability for defective things. La. C.C. art. 2322 defines the basis for delictual liability for buildings.

Prior to 1996, an owner’s liability for a vice or defect on the premises was rooted in La. C.C. arts. 2317 and 2322. See, e.g., Celestine v. Union Oil Co. of California, 98-1868 (La.4/10/95), 652 So.2d 1299. Both La. C.C. art. 2317 and art. 2322 formerly imposed strict liability based upon status as owner or custodian rather than on personal fault. Celestine, 652 So.2d at 1303. In 1996, the Louisiana legislature adopted La. C.C. art. 2317.1 and significantly amended La. C.C. art. 2322. La. C.C. art 2317.1 currently provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2322 currently provides in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the |9damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Accordingly, a plaintiff alleging negligence or strict liability of a building owner or custodian must now prove the following elements: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Cochran v. Safeguard Self-Storage, Inc., 02-1272 (La.App. 5 Cir. 4/29/03), 845 So.2d 1128, 1130. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d 319.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1012; Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181, 190. It is well-settled law that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions, and to either correct the condition or warn the plaintiff of its existence. See, e.g., Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 410 (La.1976).

The degree to which a potential victim may observe a danger is a factor in the determination of whether a condition is unreasonably dangerous. Hutchinson, 866 So.2d at 235. Not every defect gives rise to liability. Jeansonne, 8 So.3d at 619. The defect must be of such a nature to constitute a dangerous condition, hnwhich would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Id.

Generally a defendant has no duty to protect against an open and obvious hazard. Id. If the facts of a particular case show that the complained of condition should be obvious to all, the condition is not unreasonably dangerous and the defendant owes no duty to the plaintiff. Id. (citing Pitre v. La. Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, 591). It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984).

The judicial process involved in deciding whether the risk of a thing is unreasonable is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). The manifest error standard of review applies to the trial court’s finding of whether a defect creates an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365.

After a thorough review of the record herein, we find that the trial court’s conclusion that the roof posed an unreasonable risk of harm was not manifestly erroneous. Following the passage of Hurricane Katrina, Ms. Jackson’s roof was damaged and water was leaking into her kitchen. By her own admission, Ms. Jackson failed to perform routine maintenance on the roof and failed to inform Mr. Millien that the roof had not properly been maintained or inspected by a roofer after Katrina. Moreover, Ms. Jackson admitted that she did not ask Farm Bureau whether they had a roofer who could place the tarp on her roof. Accordingly, Ms. Jackson relied on Mr. Millien to place the tarp on her roof. We find that the probability of the harm occurring in this case to be relatively high considering that |nMs. Jackson’s roof was already damaged when Mr. Millien affixed the tarp. We also find the potential gravity of harm to be high because (1) the roof was more than twelve feet off the ground and (2) Mr. Millien took adequate precautions in affixing the tarp. Most importantly, we find that the social utility of Mr. Millien’s conduct was high because he agreed to nail a tarp to Ms. Jackson’s roof under difficult conditions, despite the fact that he was under no legal obligation to do so. Ms. Jackson and Mr. Millien were aware that damage to Ms. Jackson’s roof was causing water to leak into her kitchen. Mr. Millien was not a professional roofer and had no experience in roofing. He nonetheless acted to preserve Ms. Jackson’s property. Unfortunately for Mr. Millien, he was injured in the process of doing so.

We additionally find that the trial court’s ruling apportioning 25% fault to Mr. Millien was not manifestly erroneous. In adjusting percentages of fault attributable to each tortfeasor, a court should consider both the nature of each party’s conduct and the extent of the causal relation between the conduct and the damages suffered. In assessing the ña-tee of the conduct of the parties, various factors may influence the degree of fault assigned, include (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the [ ^plaintiff are considerations in determining the relative fault of the parties. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 973 (La.1985); Johnson v. State Farm Mut. Auto. Ins. Co., 95-1027 (La.App. 5 Cir. 5/15/96), 675 So.2d 1161, 1163.

Here, Mr. Millien was solely responsible for determining when and how to affix the tarp to Ms. Jackson’s roof. Moreover, Mr. Millien admitted that he knew that Ms. Jackson’s roof was damaged because it was leaking. However, Mr. Millien testified that he did not know the extent of the damage to Ms. Jackson’s roof until he was actually on the roof. Mr. Millien was not aware that a danger existed on the portion of the roof that he slipped on. Moreover, for the reasons described above, we believe that the significance of Mr. Millien’s conduct was substantial. He placed a tarp on a hurricane-damaged roof to prevent further damage from a second hurricane. In doing so, he attempted to protect the property of an individual with no other recourse.

Accordingly, this specification of error is without merit.

In their second specification of error, the appellees allege that Mr. Millien negligently created a hazard by using an inadequate ladder that was shorter than the eave of Ms. Jackson’s roof. Thus, in this specification of error, the appellees are essentially arguing that Mr. Millien’s use of an inadequately high ladder was the cause of his fall.

In addition to proving that the defect created an unreasonably dangerous condition, a plaintiff must also show the defect was a cause-in-fact of his injury in order to recover under La. C.C. art. 2317.1 or art. 2322. See, e.g., Jeansonne, 8 So.3d at 620; Dauzat v. Thompson Const. Co., Inc, 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d 319, 322; see also 12 LA. CIV. L. TREAT. § 1:18 (“[t]he second clause, that the damage could have been prevented, apparently is a statement of the | iscausation requirement, which would have been an element of the action whether here stated expressly or not.”). Cause-in-fact usually is a “but for” inquiry that tests whether the accident would or would not have happened but for the defendant’s substandard conduct. McCain v. Howell, 2006-1830 (La.App. 1 Cir. 9/14/07), 971 So.2d 323, writ denied, 2007-2027 (La.12/14/07), 970 So.2d 533. When there are concurrent causes of an accident, which nevertheless would have occurred in the absence of one of the causes, the proper inquiry regarding cause-in-fact is whether the conduct under consideration was a substantial factor in bringing about the accident. Id. A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party’s fault was a cause-in-fact of the damage complained of. Watson v. Brazeel, 36,499 (La.App. 2 Cir. 12/18/02), 833 So.2d 1276, writ denied, 03-0217 (La.04/04/03), 840 So.2d 1215.

Whether the defendant’s conduct was a substantial factor in bringing about the harm, and, thus, a cause-in-fact of the injuries, is a factual question to be determined by the factfinder. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1310 (citing Cay v. State DOTD, 93-0887 (La.1/14/94), 631 So.2d 393 (La.1994)). This Court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State, Though DOTD, 617 So.2d 880, 882 (La.1993). The trier of fact determines the credibility of witnesses, and within the bounds of rationality, may accept or reject the testimony. State v. Wilson, 07-961, p. 9 (La.App. 5 Cir. 4/15/08), 984 So.2d 870, 875. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Toussaint, 98-1214, p. 6 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 964. When findings of fact are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell, 549 So.2d at 844.

In the instant case, Mr. Millien testified that he was able to step from the ladder onto Ms. Jackson’s roof. After placing the tarp on the damaged portion of Ms. Jackson’s roof, Mr. Millien began to walk in a crouched position towards the direction of the ladder. It was at that time that Mr. Millien slipped on a shingle and fell off Ms. Jackson’s roof. Mr. Millien testified that he had not reached the ladder when he slipped. Mr. Millien established that the cause-in-fact of his injury was slipping on a loose shingle; but for slipping on the shingle, his injuries would not have occurred. The appellees offered no testimony to rebut Mr. Millien’s testimony.

The appellees rely on Barrow v. Brownell, 05-1627 (La.App. 1 Cir. 6/9/06), 938 So.2d 118. Their reliance is misplaced. In Barrmv, the plaintiff was injured when he fell off a ladder while in the process of taking down Christmas lights. Barrow, 938 So.2d at 120. The plaintiff was a general handyman who had worked for the defendant and her husband for several years. Id. On the date of the accident, the plaintiff had ascended a ladder, and removed the Christmas lights. He then placed his feet on the ladder, “placed his other arm on the top of the ladder, and leaned forward, placing his weight on the ladder.” Id. The bottom of the ladder slid outward, causing both he and the ladder to fall. Id. at 121.

The defendant filed a motion for summary judgment, which was granted by the trial court. On appeal, the plaintiff contended that a material question of fact existed because he was “basically forced to take down Christmas lights from the defendant’s home despite the fact that he did not think that the conditions were safe.” Id. at 123. The First Circuit affirmed, noting that the plaintiff “fail[ed] to 11f,provide evidence to show how the weather conditions contributed to the accident ... and that [the plaintiff testified] that if he had thought the ladder was unsafe, he would have found another way to finish the job.” Id.

Barrmv is inapplicable to the instant ease. In Barrow, the First Circuit determined that the trial court’s ruling that the defendant owed no duty to the plaintiff was not manifestly erroneous. Id. In the instant case, Ms. Jackson asked Mr. Mil-lien to place a tarp on her roof after Farm Bureau requested the same. According to Mr. Millien’s testimony he traversed the ladder, affixed the tarp to Ms. Jackson’s roof, and slipped on a shingle on his return march to the ladder. The trial court thus made a credibility determination by believing Mr. Millien’s testimony that he fell due to a loose shingle on Ms. Jackson’s roof rather than his own negligence in using a ladder that was too short to ascend the roof. We cannot say that the trial court was manifestly erroneous in this determination.

Accordingly, this specification of error is without merit.

CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . We need not address here whether Mr. Mil-lien was entitled to '‘rescuer” status. We do point out, however, that in one factually similar case, the Third Circuit determined that a man who tried to ascend a neighbor's roof to put out a fire and subsequently fell off the roof was entitled to rescuer status as "the record indicates that plaintiff was acting to preserve the lives and property of the tortfeasor and others endangered by the fire.” Inseco v. Cambridge Mut. Fire Ins. Co., 447 So.2d 606, 611 (La.App. 3 Cir.1984).