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    STATE of Louisiana, Appellee v. Lloyd Wayne NELSON, Appellant.
    No. 44,762-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Edward K. Bauman, Lake Charles, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Laura 0. Wingate, Jacob P. Broussard, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   WILLIAMS, J.

| JJhe defendant, Lloyd Wayne Nelson, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62, and theft of used building components, a violation of LSA-R.S. 14:67.23. Following a trial by jury, he was convicted as charged. The trial court sentenced the defendant to serve eight years in prison at hard labor for each conviction, with the sentences to be served consecutively. The trial court also ordered the defendant to serve 30 days in prison for each conviction, in lieu of the payment of court costs, with credit for time served. For the reasons set forth herein, we affirm the defendant’s convictions. However, we amend the defendant’s sentences, vacating the portion of the sentences which imposed 30 days in prison in lieu of the payment of court costs. The sentences are affirmed as amended.

FACTS

On July 26, 2007, at approximately 6:00 a.m., Joe Wiggins observed the defendant walking down Morningside Drive in Shreveport, Louisiana, carrying a brown paper bag. Another witness, Gene Nelms, testified that he saw a man walk up the driveway of a vacant house and around to the back of the house. A short time later, Nelms heard the sound of breaking glass and called the Shreveport Police Department (“SPD”).

SPD Captain Ken Jackson responded to the call and arrived on the scene at approximately 6:47 a.m. Capt. Jackson spoke to Nelms, who related what he had witnessed. By that time, SPD Corporal Richard McDonald had arrived on the scene. Cpl. McDonald entered the vacant home and heard what he described as the “steady rattling” of the house’s 12plumbing pipes. Soon afterwards, Capt. Jackson found the defendant walking around the house. Capt. Jackson noticed that the defendant and his clothing were “very dirty” and that the dirt on the defendant appeared to be the same as the dirt found underneath the vacant house. Cut pieces of plumbing copper were found on the ground near where the defendant was located. Capt. Jackson detained the defendant.

The defendant was subsequently arrested and charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62, and theft of used building components, a violation of LSA-R.S. 14:67.23. Following a jury trial, he was convicted as charged. The defendant filed motions for new trial, arrest of judgment and post-verdict judgment of acquittal. The trial court denied the motions. The defendant was sentenced to serve eight years in prison at hard labor for each conviction. The sentences were ordered to be served consecutively. The trial court also ordered the defendant to serve 30 days in prison for each conviction, in lieu of the payment of court costs, with credit for time served. The trial court denied the defendant’s motion to reconsider sentences. The defendant appeals.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to prove that he |swas guilty of the crimes charged beyond a reasonable doubt. Much of the defendant’s argument with regard to the sufficiency of the evidence concerns the state’s proof of his identity as the offender. Specifically, he argues that Nelms, the witness who called the police, excluded him as the person he saw going to the rear of the vacant house prior to hearing the glass break. The defendant also argues that no one saw him enter the house and that he would not have had sufficient time to cause the damage to the house in the amount of time described by the witnesses. The defendant further argues that the lone fingerprint found inside of the house was not of sufficient quality to permit an analysis to prove that he was the perpetrator.

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

The Jackson standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its |4own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, unit denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

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

In cases involving a defendant’s claim that he was not the person who committed the crime, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

In the instant case, Joe Wiggins testified that he was on the front porch of his house when he saw the defendant walking down Morningside Drive toward Hearne Avenue. Wiggins testified that the defendant had a brown paper bag in his hand. Wiggins unequivocally identified the defendant as the man he saw that morning, stating that he had seen the defendant in the neighborhood on other occasions.

Capt. Jackson testified that, on the morning of the incident, Wiggins told him that the defendant had walked by earlier that morning carrying a brown paper bag that contained a pair of pliers with red handles. Although Wiggins was unable to recall telling the officer that the bag contained pliers, he was able to identify the bag found inside the vacant house as the bag the defendant had been carrying. The shears that were recovered at the scene had red handles.

1 fiGene Nelms testified that he saw a man walk up the driveway of the vacant house and go around to the back of the house. Nelms also knew the defendant from having seen him in the neighborhood; however, Nelms testified that the man he observed walking around the vacant house was not the defendant.

Capt. Jackson and Cpl. McDonald testified with regard to their investigation on the morning of the defendant’s arrest. They stated that when they responded to the call, they found the defendant outside of the vacant house. Capt. Jackson and Cpl. McDonald examined the scene outside of the house and discovered that a pane of glass in the rear door of the house had been broken and that the door had been opened. The officers went inside of the house, where they found a brown paper bag, some copper plumbing items and a pair of black rubber gloves. Various items around the house had been destroyed or displaced: metal fixtures were out of place, the hot water tank had been turned over and metal items had been pulled out of the wall. Underneath the house, the officers found a pair of shears with red handles lying adjacent to some cut pieces of copper plumbing pipe. One of the officers encountered the defendant walking around the house and noticed that the grass beneath the house had been pushed down as if someone had been lying there. The defendant and his clothing were covered in dirt. The officers did not find anyone other than the defendant near or inside of the vacant house. Photographs of the storage shed behind the house depict a yellow bag; the bag was filled with cut pieces of copper.

The defendant testified at the trial and denied removing the copper |7and other metal from the house. He testified that as he was walking down the street, he saw some copper on the side of the vacant house. The defendant stated that he decided to stop and walk around to the back of the house to urinate. After doing so, he looked underneath the house for copper. He testified that as he was looking under the house, he saw the feet of someone approaching, so he “got scared” and crawled underneath the house. The defendant further stated that the copper was already missing from underneath the house when he arrived. The defendant admitted that he had considered taking and selling the copper he saw around the house, but he denied entering the house and cutting or taking any copper. The defendant initially testified that he was in the backyard of the house for approximately 15 minutes. However, after he was confronted with the testimony of the other witnesses, he stated that “maybe” he was behind the house for as long as 45 minutes. He also testified that he never heard the sound of breaking glass that Nelms had reported. The defendant also admitted that he had previous convictions of simple burglary, theft and illegal possession of stolen things.

Viewing the evidence in a light most favorable to the prosecution, we find that the evidence was sufficient to prove, beyond a reasonable doubt, the defendant’s identify as the person who committed these offenses. The defendant was seen walking down the street carrying a brown paper bag shortly before one of the neighbors reported hearing the sound of breaking glass. The defendant was apprehended at the scene, and he admitted that he had searched for copper underneath the vacant house. Although the [ ^defendant denied cutting or taking any copper from the house, a pair of shears and some cut pieces of copper were found underneath the house near the site where the defendant had been lying. No one else was seen in the area when the defendant was apprehended. There was no evidence to indicate that another person had cut the copper and left it at the house. Therefore, the evidence presented supports the jury’s conclusion that the defendant was the perpetrator of the offenses charged.

We also find that the evidence was sufficient to establish the essential elements of both offenses beyond a reasonable doubt. Simple burglary is “the unauthorized entering of any dwelling ... or other structure, movable or immovable, ... with the intent to commit a felony or any theft therein.” LSA-R.S. 14:62(A). Further, LSA-R.S. 14:67.23 provides, in pertinent part:

A. Theft of a used building component is the misappropriation or the taking of a used building component from immovable property belonging to another, either without the consent of the owner of the immovable property, or by means of fraudulent conduct, practices, or representations. An intent to deprive the owner of the immovable property permanently of the used building component is essential.
B. “Used building component” shall mean any object produced or shaped by human workmanship or tools that is an element of [a] structural ... component ...., that is immovable property or fixture, including but not limited to ... lights, chandeliers, ... faucets, faucet handles ... air conditioners, water heaters ... plumbing ..., or component parts of immovable property of any nature or kind whatsoever.
C. (1) Whoever commits the crime of theft of a used building component, when the theft or taking amounts to a value or replacement value, whichever is greater, of five hundred dollars or more shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

|9In the instant case, the police officers who investigated the scene testified that various copper items had been removed and taken from the house; plumbing pipes had been removed from the attic and the copper had been removed from the air conditioning compressor outside the house. Joel Roberts, the owner of the vacant house, testified that he did not give the defendant permission to enter or take anything from his house. Roberts described the extensive damage to the home caused by the theft of the copper and other metals. Roberts stated that replacing the water pipes underneath the house and the hot water heater cost more than $500, but less than $2,000. He also estimated that it would cost between $5,000 and $6,000 to replace the missing components from the air conditioning compressor and the related equipment.

After hearing the testimony, the jury concluded that the defendant entered the vacant house, without the owner’s permission, and took the copper and other metal from the vacant house. Based on our review of the record, we find that it was reasonable for the jury to conclude that the evidence presented at trial proved, beyond a reasonable doubt, that the defendant had committed the burglary and the theft of used building components.

These assignments of error lack merit.

Motion in Limine

The defendant also contends the trial court erred in denying his motion in limine to exclude evidence from a national internet database of scrap metal transactions, which is accessible only to law enforcement [ inofficials. The internet database, known as Leadsonline.com, showed that the defendant was a frequent seller of scrap metals in the year prior to the date of these offenses. Prior to trial, the state provided the defendant with notice of its intent to introduce evidence that the defendant was a frequent seller of scrap copper. The defendant filed a motion in limine, objecting to that evidence. Following a hearing, the trial court overruled the motion in limine and allowed the introduction of the evidence.

In accordance with that ruling, the state presented the testimony of SPD Detective S.D. Willis, who testified with regard to LeadsOnline.com. Detective Willis explained that when scrap yards purchase scrap metal from sellers, the yards are required to collect information about the seller and enter the information into the internet database. Detective Willis testified that he searched the internet database for the defendant’s name and Louisiana identification number and discovered that the defendant had engaged in 90 transactions within the past year and had sold approximately 900 pounds of copper and brass to local scrap yards.

Hearsay is an oral or written assertion, other than made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801(A)(1) and (C). Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. LSA-C.E. art. 802; State v. Zeigler, 40,673 (La.App. 2d Cir.1/25/06), 920 So.2d 949, writ denied, 2006-1263 (La.2/1/08), 976 So.2d 708; State v. Wade, 39,797 (La.App. 2d Cir.8/9/05), 908 So.2d 1220. Hearsay is excluded because the value of the statement | nrests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Zeigler, supra; State v. Wade, supra.

LSA-C.E. art. 803 provides, in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

In State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), the Supreme Court explained the “business records” exception to our hearsay rule. The Court stated:

The witness laying the foundation for the admissibility of |12business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the bookkeeping and accounting procedures of the entity whose business records are sought to be introduced. Under Art[icle] 803(6), it is essential that a custodian or other qualified witness tes-timonially explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded.

Id. at 327, citing Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La.App. 2 Cir.1990).

LSA-R.S. 51:573 pertains to the record-keeping requirements of scrap metal dealers and processors. The statute requires the dealers and processors of scrap metal to, inter alia, keep records of purchases and sellers and to maintain those records either in a register, book or in electronic form at their place of business for a period of two years. The dealers are also required to make the records “available for inspection by any peace officer or law enforcement official at any time during the two year period.” At any time during the two-year period, the sheriff of the parish in which the dealer is located, may request a written copy of the completed form or report. In the event of such a request, one copy of the report must be filed with the parish sheriff and one copy must be filed with or mailed to the Department of Public Safety and Corrections.

In the instant case, although LSA-R.S. 51:573 authorized the SPD to request and review the records of scrap dealers and processors, there is no statutory requirement that the dealers forward them records to LeadsOnline.com. According to the evidence presented at trial, this | ^company, LeadsOnline.com, is a commercial internet database provider and is not operated by either local law enforcement or the Department of Public Safety and Corrections. There is no guarantee of reliability in the transfer of information from a dealer to the commercial database provider. Although the scrap metal dealer’s records may have been kept in the regular course of business in accordance with the law, there was no showing in the form of “testimony of the custodian or other qualified witness” that the records in question were the accurate, regularly kept records of the dealer(s) in question. Even if LeadsOnline.com could be considered an acceptable source for the information, there was no testimony from a qualified representative of the company to show that the records introduced in this case were those transmitted to the web site by the dealers in question. The records were not those of a scrap dealer or related business; rather, they were reports by a third party of what purported to be submitted business records. Accordingly, we find that the records from LeadsOn-line.com, and the police officer’s testimony with regard to those records, were hearsay evidence, and, therefore, inadmissible pursuant to LSA-C.E. art. 803, in the absence of testimony from the custodian of the records or other qualified witness. Thus, the trial court erred in admitting the evidence obtained from LeadsOnline.com.

However, the erroneous admission of hearsay evidence does not require a reversal of the defendant’s conviction if the error is harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the hearsay evidence might have contributed to |14the verdict. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Wille, 559 So.2d 1321 (La.1990); State v. Zeigler, supra.

As the reviewing court, we conclude that there is no reasonable possibility that Detective Willis’ erroneously admitted testimony contributed to the defendant’s verdict. The state’s case against the defendant was strong, even in the absence of the evidence obtained from LeadsOn-line.com. The defendant was seen in the area of the crime nearly an hour before police arrived and was found, covered in dirt, at the vacant house from which the copper had been cut. Additionally, there is no indication that the defendant’s decision to testify was induced by the wrongful use of the evidence obtained from the web site. Clearly, the strength of the state’s case, in particular the defendant’s apprehension at the scene of the crime, was the motivating factor in the defendant’s decision to testify and attempt to explain his presence at the scene. See, Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). This assignment lacks merit.

Motion in Arrest of Judgment/Double Jeopardy

| isThe defendant also contends the trial court erred in denying his motion in arrest of judgment. He argues that his motion should have been granted because his convictions for both simple burglary and theft of used building components violated his right against double jeopardy.

The Fifth Amendment to the United States Constitution contains the double jeopardy clause, which provides that no person shall be “subject for the same offenses to be twice put into jeopardy of life or limb.” State v. Price, 89,582 (La.App. 2d Cir.3/23/05), 899 So.2d 633; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir. 1986). The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article 1, Section 15 of the 1974 Louisiana Constitution contains a similar guarantee. Id. The guarantee against double jeopardy provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and, (3) protection against multiple punishments for the same offense. State v. Crandell, 2005-1060 (La.3/10/06), 924 So.2d 122; State v. Jefferson, 40,439 (La.App. 2d Cir.1/27/06), 920 So.2d 984.

In the instant case, the defendant apparently argues that he has been subjected to multiple punishments for the same course of conduct. Therefore, our analysis begins with a determination of whether a single offense or multiple offenses were involved. See, State v. Price, supra.

To determine whether two offenses are the same for purposes of double jeopardy analysis, Louisiana employs both the “Blockburger test” lifiand the “same evidence test.” State v. Knowles, 392 So.2d 651 (La.1980); State v. Price, supra. The “Blockburger test,” established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), states that two offenses are not the same for purposes of double jeopardy if “each crime requires proof of an additional fact which the other does not.” State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223; State v. Blackson, 38,044 (La.App. 2d Cir.1/28/04), 865 So.2d 272.

The “same evidence test” is a much broader test for purposes of double jeopardy:

If the evidence required to support a finding of guilt of one crime would also have supported the conviction of another, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
⅜ *
The “same evidence test” is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

State v. Price, 899 So.2d at 635, quoting State v. Knowles, supra (internal citations omitted).

A conviction for simple burglary requires proof of the following elements: (1) the defendant entered a dwelling or structure, (2) with the intent to commit a felony or theft, and (3) without authorization. LSA-R.S. 14:62(A), supra. A conviction for theft of a used building component requires proof: (1) that the defendant misappropriated or took (2) a used | i7building component (3) from immovable property belonging to another (4) without consent or by fraudulent conduct (5) with the intent to deprive the owner permanently of the used building component. LSA-R.S. 14:67.23(A), supra.

Applying the Blockburger test to these two offenses, it is clear that they are separate offenses. The offense of theft of a used building component requires additional proof that the defendant took or misappropriated a used building component from immovable property belonging to another. The offense of simple burglary requires the additional elements that the defendant entered a dwelling or structure with the intent to commit a theft or felony. Because each of these offenses requires proof of an additional element not required of the other, the offenses of simple burglary and theft of a used building component are two separate offenses under the Blockburger test.

Also, these are two separate offenses under the “same evidence test” because the evidence necessary to prove the offense of simple burglary would not have been sufficient to convict the defendant of theft of a used building component. The state was required to present the additional evidence that the defendant took or misappropriated a used building component in order to convict him of theft of a used building component. Likewise, the evidence necessary to prove the offense of simple burglary would not have been sufficient to support a conviction for theft of a used building component, as the state was required to prove that the defendant entered a dwelling or structure with the intent to commit a theft or felony 118therein. Thus, the plain language of LSA-R.S. 14:62 proscribes behavior above and beyond that of theft of a used building component as defined by LSA-R.S. 14:67.23. Accordingly, because these are two separate offenses, there was no double jeopardy violation in convicting the defendant of simple burglary and theft of a used building component. This assignment lacks merit.

Excessive Sentences

The defendant also contends the sentences imposed were constitutionally excessive. He also argues that the trial court failed to comply with the provisions of LSA-C.Cr.P. art. 894.1. Specifically, he argues that the trial court did not articulate for the record that it considered the defendant’s employment history, family ties or health.

In the instant case, the defendant filed a motion to reconsider sentences on the grounds that the sentences were “excessive and in violation of the defendant’s rights.” No mention was made of the trial court’s alleged failure to comply with the provisions of LSA-C.Cr.P. art. 894.1. In sum, the defendant merely argued that the sentences were constitutionally excessive.

The failure to include a specific ground upon which a motion to reconsider may be based shall preclude the defendant from raising an objection to the sentence or from urging on appeal or review any ground not raised in the motion. LSA-C.Cr.P. art. 881.1; State v. Mims, 619 So.2d 1059 (La.1993); State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Masters, 37,967 (La.App. 2d Cir.12/17/03), 862 So.2d 1121. Therefore, the defendant is precluded from arguing noncompliance with 119LSA-C.Cr.P. art. 894.1 and is relegated to a review of the bare claim of constitutional excessiveness.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

Whoever commits the crime of simple burglary shall be fined not more than $2,000, imprisoned with or without hard labor for not more than 12 years, or both. LSA-R.S. 14:62. As stated above, the defendant herein was sentenced to serve eight years in prison at hard labor.

Based on our review of the entire record of these proceedings, we are convinced that the sentence imposed for the conviction for burglary was not excessive. The defendant was exposed to a sentence of up to 12 years at hard labor, a fine of up to $2,000, or both. The defendant’s sentence of eight years in prison was within the statutory range for the offense for which he was convicted. We find that the sentence was neither disproportionate to the offense of conviction, nor shocking to the sense of justice. Thus, the |2nsentence imposed is not constitutionally excessive.

Regarding the sentence for the conviction of theft of a used building component, the defendant argues that the amount of the theft was never proven at trial; therefore, it was impossible for the trial court to determine the correct penalty to impose. LSA-R.S. 14:67.23 provides, in pertinent part:

(C)(1) Whoever commits the crime of theft of a used building component, when the theft or taking amounts to a value or replacement value, whichever is greater of five hundred dollars or more shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.
(2) When the theft or taking amounts to a value or replacement value, whichever is greater of three hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
(3)(a) When the theft or taking amounts to a value or replacement value, whichever is greater, of less than three hundred dollars, the offender shall be imprisoned, for not more than six months, or may be fined not more than five hundred dollars, or both.
(b) In a case provided for in Subpara-graph (a) of this Paragraph, if the offender has been convicted two or more times previously of a theft or taking, which each previous occasion, amounted to a value or replacement value whichever is greater, of less than three hundred dollars, he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
D. When there has been a theft or taking by a number of distinct acts of the offender, the aggregate of the amount of the theft or taking shall determine the grade of the offense.

As noted above, the homeowner in the instant case testified that the |2iCost of replacing the missing copper and metal components from the ah' conditioning compressor and the related equipment was between $5,000 and $6,000. He also testified that he replaced the copper pipes that had been removed from underneath the house with plastic pipes, and it cost him more than $500, but less than $2,000, to do so. The defendant produced no evidence or testimony to dispute the homeowner’s testimony with regard to the replacement value of the stolen pipes and related equipment.

Based upon our review of the record, we find that the evidence was sufficient to prove that the theft of the used building components amounted to “value or replacement value” of $500 dollars or more. Therefore, pursuant to LSA-R.S. 14:67.23(C)(1), the sentence for the theft was a maximum sentence of 10 years in prison with or without hard labor, a fine of up to $8,000, or both. The sentence imposed, eight years at hard labor, was within the sentencing range for the offense. We find that this sentence was neither disproportionate to the severity of the offense nor shocking to the sense of justice. This argument lacks merit.

Consecutive Sentences

Next, the defendant contends the sentences were excessive because the trial court ordered the sentences to run consecutively. The defendant argues that the court ordered consecutive sentences without setting forth any reasons for doing so.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or 122¾11 be served consecutively. LSA-C.Cr.P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App. 2d Cir.8/15/07), 962 So.2d 1126.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Mitchell, 37,916 (La.App. 2d Cir.3/3/04), 869 So.2d 276, writ denied, 2004-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005). Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and whether defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra. The failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. See State v. Harris, 42,376 (La.App. 2d Cir.9/26/07), 966 So.2d 773, writ denied, 2007-2109 (La.3/28/08), 978 So.2d 304.

In the instant case, the trial court did not articulate reasons for imposing consecutive sentences and no presentence investigation was ordered. However, we find that the record supports the aggregate 16-year sentence.

During his trial testimony, the defendant admitted that he had been previously convicted of simple burglary, theft and illegal possession of stolen things. The record contains a copy of the defendant’s “rap sheet,” which indicates an extensive criminal history, with numerous arrests. During the sentencing hearing, the court stated:

Mr. Nelson, I have taken into consideration your extensive criminal history, including a number of felony convictions that you have which includes a prior burglary. For that reason, the Court will sentence you on the simple burglary charge conviction to eight years’ hard labor, to run consecutively with any other sentence you are required to serve. Credit is given for time served.
On the theft of building components, the Court will sentence you to eight years’ hard labor, to run consecutive with any other sentence. Credit is given for time served.
In addition on the [sic] each count, the Court will sentence you to serve thirty days in lieu of costs, | ^concurrently, with credit for time served.

Moreover, after the sentences were imposed, the prosecutor stated for the record that the state would waive “any right to file a multiple offender bill because of the consecutive sentences.”

Considering the defendant’s criminal history and the poor potential for the defendant’s rehabilitation, we find that the sentences imposed are not excessive. Additionally, the defendant received a substantial benefit from the state’s decision not to file a multiple offender bill. This assignment is therefore without merit.

ERRORS PATENT

In accordance with LSA-C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals one error patent. The record reflects that the trial court sentenced the defendant “to serve thirty days in lieu of costs, concurrently, with credit for time served.”

An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is a part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App. 2d Cir.4/3/96), 671 So.2d 1242. A defendant’s indigent status in such a situation may be discerned from the record. See, State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, supra. This court has consid ered it error for a trial court to impose jail time for failure to pay court costs. See, State v. Howard, 44,434 (La.App. 2d Cir.6/24/09), 15 So.3d 344; State v. Kerrigan, supra. In the context of disposition of this issue, this court has elected to amend the defendant’s sentence. See, State v. Howard, supra; State v. Tillman, 43,569 (La.App. 2d Cir.10/22/08), 997 So.2d 144.

The record herein shows that the defendant was and is indigent, pursuant to LSA-R.S. 15:175(A)(l)(b). The defendant was represented by court-appointed counsel at trial and on appeal. Therefore, we hereby amend the defendant’s sentences to vacate the portions which impose an additional 30 days in jail, in lieu of the payment of court costs. The sentences are affirmed as amended.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions. We hereby amend the defendant’s sentences to vacate the portions of the sentences imposing jail time in default of the payment of court costs. As amended, the defendant’s sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AMENDED; AFFIRMED AS AMENDED.

      . Following his convictions, the defendant filed a motion for the appointment of a sanity commission, which the trial court granted. Two physicians examined the defendant and both considered him competent to consult with his attorney and capable of understanding the proceedings. After a hearing, the court found the defendant competent to proceed.

      . The state waived the filing of a habitual offender bill because of the consecutive sentences imposed.

      . In Harrison, supra, die defendant was charged with felony murder. The prosecution introduced into evidence three confessions allegedly made by the defendant. Thereafter, the defendant decided to testify with regard to his version of the events that led to the victim's death. The defendant appealed, and the appellate court reversed the defendant's conviction, finding that the confessions were inadmissible. On remand, the prosecution read the transcript of the defendant's testimony from the prior trial to the jury. The defendant was again convicted, and the appellate court affirmed the conviction. The United States Supreme Court granted certiorari and reversed the defendant's conviction, holding that the prosecution failed to show that the defendant's prior testimony was not induced by the prosecution's wrongful use of the illegally obtained confessions.

      . LSA-R.S. 15:175(A)(1)(b) provides that "[a] person will be deemed 'indigent' who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own.”


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Corey HOLDER and Jerrod Dewayne Johnson, Appellants.
    No. 44,386-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project by Frederick Kroenke, for Appellant, Corey Holder.
    Louisiana Appellate Project by Peggy J. Sullivan, for Appellant, Jerrod Dewayne Johnson.
    Charles R. Scott, District Attorney, Dale G. Cox, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| defendants, Corey Holder and Jerrod Johnson, were each charged with three counts of armed robbery with a firearm. The two men were tried together and a jury convicted both Defendants as charged. The trial judge sentenced Johnson to serve 41 years’ imprisonment at hard labor on each count and imposed the sentences concurrently. The trial judge sentenced Holder, as a third-felony habitual offender, to serve life imprisonment at hard labor. Both Defendants now appeal. For the reasons stated herein, Defendants’ convictions are affirmed and their cases are remanded for the imposition of determinate sentences.

FACTS

Late on the night of May 7, 2004, a group of three or four men robbed three employees at the Thrifty Liquor Store on Linwood Avenue in Shreveport. The robbers were dressed in black and wore masks and gloves. The victims identified the robbers as black males. Armed with a variety of firearms, the men forced the victims to the floor before taking several items of value from them and money from the cash registers. After taking the valuables, the men fled the store and got into a white Buick sedan.

A passerby called police after seeing the armed men at the liquor store and two officers from the Shreveport Police Department (“SPD”), Keith Sharrah and Trey Robinson, responded immediately. The officers pursued the Buick and their patrol car dash camera captured footage of the chase. When the Buick reached the end of a dead-end street, the robbers stopped, exited the vehicle and fled on foot.

|2Puring the pursuit on foot, the robbers discarded several masks, gloves and weapons. One of the robbers pointed an SKS rifle at the officers and both officers fired at the robbers. Additional SPD officers responded, including a K-9 unit, in an effort to apprehend the robbers. The police dog pursued and bit one of the fleeing robbers twice, but the robber was able to get away from the dog. One SPD officer, who was 6'2" tall, described the robber who was bitten as much larger than himself. Ultimately, all of the suspects escaped on foot. Police later found two blood-stained shirts along the path taken by the man who had been bitten. On searching the Buick, police found a bank bag from the liquor store, a walkie-talkie, duct tape and a ski mask.

Subsequent investigation led the police to determine that Defendants were the suspects in this case. DNA testing matched Holder, who is 6'6" tall, to the bloody shirts and matched Johnson to a ski mask and a glove found along the path of the foot chase. In addition, Holder was found to have pronounced scars on his body at the places where the fleeing robber was bitten by the police dog. One SPD officer identified Holder as resembling the man bitten by the dog. Another officer, however, believed the person bitten by the dog was shorter and identified another man in a lineup. Further investigation led to a storage unit rented by Johnson and a search of this unit uncovered an instruction manual for the type of walkie-talkie that was found in the Buick.

| :iThe State filed several amended bills of information against Defendants. Johnson was first charged on February 22, 2005, with armed robbery with a firearm of the Thrifty Liquor Store. Then on March 1, 2005, a second bill was filed charging Johnson and a third person, not a defendant in the instant trial, with armed robbery with a firearm of the Thrifty Liquor Store. A third bill, filed on March 14, 2005, charged Johnson, Holder and the third person with armed robbery with a firearm of the Thrifty Liquor Store. A fourth bill, filed on May 2, 2007, charged Johnson, Holder and the third person with armed robbery with a firearm of six individuals, not the store. The fifth and final bill, filed on June 18, 2007, charged Johnson, Holder and the third person with the armed robbery with a firearm of three of the individuals named in the previous bill.

Trial of this matter was originally set to commence on April 24, 2006. On April 17, 2006, the State moved to upset the trial and the trial date was reset for August 7, 2006. On July 27, 2006, the State forwarded a copy of the DNA evidence to Defendants and Johnson’s counsel received the evidence on July 31, 2006. The certified lab report included in this discovery was dated February 18, 2005, approximately 17 months earlier. Johnson moved for a continuance, but he did not request that the evidence be excluded.

On August 2, 2006, the trial court granted Defendant’s motion for a continuance, resetting the trial until October 2006. Pri- or to that date, the State requested a continuance and the matter was continued until February 2007. The State then requested another continuance and trial was preset for March 2007. The trial was again continued to May 2007, the reasons for which are unclear from the record.

In April 2007, Johnson’s counsel filed a motion to quash the bill of information charging him with the robbery, citing the allegedly untimely commencement of trial. In the meantime, as noted above, the State filed an amended bill on May 2, 2007. That day, the trial judge held a hearing on the motion to quash and the State informed the court that it had a substantial amount of documentary evidence that had not yet been provided. Defense counsel did not request another continuance and, instead, asked the court to continue the trial on its own motion. The trial court did so and reset the trial for June 5, 2007.

Additionally, the trial court denied Johnson’s motion to quash, finding his previous request for a continuance to be a preliminary plea that suspended prescription. Johnson sought writs from this court which were subsequently denied on June 14, 2007. Trial was held on June 18, 2007, and a jury convicted Holder and Johnson as charged.

As previously mentioned, the trial judge sentenced Johnson to serve 41 years’ imprisonment at hard labor on each count, with the sentences imposed concurrently. The trial judge sentenced Holder, as a third-felony offender, to serve a single term of life imprisonment, without the benefit of parole. Holder now appeals his conviction and Johnson appeals his conviction and sentence.

\r,DISCUSSION

Assignment of Error 5 (Johnson). The State failed to prove beyond a reasonable doubt Jerrod Johnson was present and participated in the armed robbery of the Thrifty Liquor Store located at 8420 Linwood Drive on May 7, 2004.

Assignment of Error U (Holder). The evidence was insufficient to prove the elements of the crime of armed robbery as to Corey Holder.

Both Defendants urge that the evidence was insufficient to convict them of the crime charged. Specifically, Defendants argue that the State failed to prove beyond a reasonable doubt their identity as the persons who robbed the victims at the liquor store.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence since the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The standard of appellate review for a sufficiency claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992).

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

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of the witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

In this case, the State provided a continuous link between the identity of the persons who robbed the employees of the liquor store and Defendants. Police responded to the robbery while it was still in progress |7and arrived just as the perpetrators were fleeing the scene. Police continuously pursued the suspects by vehicle until the suspects’ vehicle could continue no further. At that point, the pursuit on foot began. The robbers fled from their vehicle, shedding items of clothing and weapons. The items recovered from the ground after the chase matched the description of the robbers’ clothes and weapons as given by the victims and by the pursuing police officers.

The police dog bit one of the fleeing robbers and that suspect’s torn and bloody clothing was found along the path of the chase. DNA from that clothing matched the DNA of Holder, who is 6'6" tall and was identified by one detective as being unusually large. DNA from a mask and a glove recovered along the chase path matched the DNA of Johnson. Accordingly, we find that the evidence was sufficient to prove the identities of Holder and Johnson as two of the perpetrators of the robbery.

These assignments of error are without merit.

Assignment of Error 1 (Johnson) The failure of the State to timely prosecute Mr. Johnson pursuant to LSA-C.Cr.P. 578, et seq., required a dismissal of the case against him.

Johnson argues that the trial court erred in denying his motion to quash the prosecution of this case because of the State’s delay in bringing him to trial. He asserts that he was forced to obtain the continuance because the State delayed providing the DNA evidence that it had in its possession for over a year prior to trial. Johnson further contends that the trial was ultimately continued a second time because of the State’s failure to timely comply with its discovery obligation.

|sLa. C. Cr. P. art. 578 provides in pertinent part:

A. Except as otherwise provided in this Chapter, no trial shall be commenced ...
(2) In other felony cases after two years from the date of institution of the prosecution ...

La. C. Cr. P. art. 579 provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state ...

La. C. Cr. P. art. 580 provides:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by article 578 shall be suspended until the ruling of the court thereon; but in no cause shall the state have less than one year after the ruling to commence the trial.

Johnson argues that the State should not be allowed to enjoy the suspension of the limitation period provided in La. C. Cr. P. art. 579 because his preliminary plea was due to the State’s failure to timely supply the DNA testing results upon receiving them.

When a defendant has brought an apparently meritorious motion to quash based upon prescription, the State bears a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended and, thus, has not yet expired. State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. This court stated in Laihan:

The purpose of Article 578 is to enforce a defendant’s right to a speedy trial and to prevent the oppression caused by | ^suspending criminal prosecutions over citizens for indefinite. periods of time. When a defendant files a preliminary plea, however, the two-year time period established by La. C. Cr. P. art. 579 is suspended. La. C. Cr. P. art. 580. A preliminary plea is any pleading or motion filed by the defense that delays trial, which includes motions to quash, motions to suppress, applications for discovery, bills of particulars and motions for continuances. The suspension lasts from the date the motion is filed until the date the trial court rules on the motion and that relevant time period is not counted towards the two-year time limitation. After the trial court rules on the motion, the State has either the remainder of the time limitations or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580. (Internal citations omitted.)

The State brought Johnson to trial within one year from the date of the ruling granting his motion for continuance. Johnson contends that the continuance should not be considered a preliminary plea because it was the State’s delay in providing discovery, rather than Johnson’s desire for the delay, which forced him to request the continuance. At the time he requested the continuance, Johnson did not move to exclude the evidence because it was arguably not timely provided. At the hearing on the motion to quash, Johnson’s counsel expressed his impression that the trial judge had informed the parties that no evidence would be excluded.

Discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony, to permit the defense to meet the State’s case and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Bartley, 03-1382 (La.App. 5th Cir.3/30/04), 871 So.2d 563, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006, citing State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612. In the event of a discovery violation, the court may order the party to permit the discovery, |inmay grant a continuance, may order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed or may enter such other order, other than a dismissal, as may be appropriate. La. C. Cr. P. art. 729.5(A); Bartley, supra.

In the case sub judice, the record does not reveal the reason for the State’s delay in providing Johnson with the DNA testing results. The State’s delay in providing this evidence was clearly a factor in Johnson’s request for a continuance; however, absent a motion to exclude the evidence, it does not appear that Johnson was prejudiced by the trial court’s disposition of the matter. Likewise, the State’s additional delays in providing discovery appeared to have been addressed by the State, which replaced the prosecutor who was responsible for the delay with a second prosecutor who immediately cooperated with the court and Johnson to ensure that discovery was timely completed. Further, it does not appear from the record that Johnson was prejudiced by these additional delays.

Accordingly, we find this assignment of error to be without merit.

Assignment of Error 2 (Johnson). This Honorable Court erred in reversing the ruling of the Trial Court as to the State’s discriminatory exercise of peremptory challenges.

Assignment of Error 1 (Holder). The denial of the Defendant’s Batson Motion as to Prospective Jurors Shakira Davis, Dr. Frances Conley and Ariel Brown was error.

During voir dire, the State exercised nine of its peremptory challenges to strike African-American jurors from the panel. Defendants timely objected to these challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), urging that the prosecutor had In challenged these jurors solely because of their race. The trial court found that Defendants had made a prima facie case of discrimination and required the prosecutor to provide race-neutral reasons for these challenges. The State provided reasons and the trial court accepted the State’s reasons as to six of the nine excused jurors and rejected the State’s reasons as to three of the jurors.

The State sought supervisory writs from this court and this court reviewed the voir dire transcripts and reversed, holding that there had been no discriminatory pattern in the State’s use of peremptory challenges. Both Defendants seek reconsideration of that ruling on appeal. The State urges that this court should not revisit the issue because this court’s earlier decision is the law of the case.

Typically, a court will not revisit an issue on appeal that has previously been decided on a writ application. State v. Hunter, 39,664 (La.App.2d Cir.6/29/05), 907 So.2d 200, writ denied, 05-2027 (La.3/10/06), 925 So.2d 507. In the instant case, on granting the State’s writ application, this court examined the record and the trial court’s reasons for its ruling and found that the trial court erred. This court then took peremptory action to reverse the trial court’s ruling. Nothing in the subsequent proceedings has changed any of the reasons underlying this court’s prior action, so there is nothing to reconsider as urged by Defendants.

These assignments of error are without merit.

| iaAssignment of EiTor 3 (Johnson). The Trial Court inappropriately denied challenges for cause as to four potential jurors. Mr. Johnson exhausted his peremptory challenges, thus was prejudiced by this error.

Assignment of Error 2 (Holder). The Denial of the Defendant’s Challenges for Cause of Prospective Jurors Harper, Hernandez and Hale was error.

Both Defendants urge that the trial court should have excused certain jurors for cause; and, since both Defendants exhausted their peremptory challenges, they argue on appeal that the trial court’s alleged error is reversible error.

In State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, Blank v. Louisiana, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007), the supreme court explained:

A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. “A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.” State v. Robertson, [92-2660 (La.1/14/94), 630 So.2d 1278].
Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant exhausts his peremptory challenges. In Louisiana, a defendant must use one of his peremptory challenges curatively to remove the juror, thus reducing his remaining peremptory challenges, or waive any complaint on appeal. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. (Internal citations and footnote omitted.)

Johnson complains that the trial court erred in denying his challenge to juror James Barnard whose father was very sick, on pain medicine and not taking food or water. Mr. Barnard was very concerned about his | isfather’s condition. Mr. Barnard was somewhat involved in looking after both of his parents, but he described his caregiving role as “not that significant.” He said that his father’s condition would, “for the most part,” not be a distraction to his jury service, but, if his father’s condition changed, he testified, “I don’t know.” Mr. Barnard also said, however, that he would be able to follow the law and could be fair to both sides. Consequently, the trial judge denied the challenge for cause, noting that Mr. Barnard did not say that he could not be a good juror.

Our review of the record indicates that the trial judge’s decision was not an abuse of discretion. Mr. Barnard was in the midst of a serious life event, but did not express the opinion that he would be unable to serve as a juror. Further, his concerns about his ability to serve were focused on the uncertainty of his father’s health rather than an event which had already occurred.

In addition, both Defendants argue that the trial court erred in failing to dismiss juror Ms. Marcia Harper. Ms. Harper is a retired Caddo Parish school teacher and her husband had been a Shreveport city judge. Two of her sons-in-law are in law enforcement and Ms. Harper initially said that she would be more likely to take the word of a police officer than that of another witness.

After it was explained to Ms. Harper that she was to judge the credibility of police witnesses just like that of any other witness, she agreed several times that she could follow that instruction. In her response to a hypothetical, however, she stated that she would take the word of a police |14officer over that of a defendant. The trial court noted her response to the hypothetical, but was convinced, overall, that Ms. Harper could follow the law based on her statements that she could judge the witnesses’ credibility equally.

Although Ms. Harper’s various answers were somewhat differing, considering the entire context of her voir dire, it appears that the trial court correctly concluded that she would be able to follow the law. A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, the potential juror demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Taylor, 03-1834, (La.5/25/04), 875 So.2d 58. Ms. Harper stated:

I could do it [treat the witnesses equally] because their lives are in my hands, and if he [the judge] tells me to do that, that changes everything. Then I am really going for what is the truth and I could do it.

The judge was persuaded by the juror’s explanation and we find that the court’s ruling was not an abuse of discretion.

Both Defendants also challenged Ms. Geraldine Hernandez. Ms. Hernandez initially expressed some doubt about whether she could follow the law as it was given. She stated:

What I’m stating is yes, I understand what the law is, I understand what the judge says; so, yes, that’s what I’ll do. But I always have something in the back of my mind maybe thinking differently than what I’m instructed to think.

She further explained:

| lsJust because I disagree with something doesn’t mean I can’t follow it. That’s a daily decision that we do, you know, in any instance sometimes so, yes.

The court denied this challenge without further comment; but, given the juror’s explanation for her views, particularly, her explanation that she could put aside her personal opinions in favor of the law, we find no error in the trial court’s decision to deny the challenge.

Finally, both Defendants challenged juror Robert Hale. Mr. Hale also had concerns about an ailing parent. His mother was 92 years old and in ill health. He explained that she was in the hospital, but was about to be moved to a nursing home where she would continue to have full-time care. Mr. Hale had no specific prognosis from a doctor stating that his mother was in imminent danger of death and specifically stated that his concerns about his mother would not interfere with his ability to serve as a juror. Considering Mr. Hale’s unequivocal statement that his mother’s condition would not interfere with his deliberations, we find no error on the part of the trial court in denying Defendants’ challenge for cause on that basis.

These assignments of error are without merit.

Assignment of Error k (Johnson). The dismissal of Ms. Singleton from the jury deprived Mr. Johnson of the jury he had chosen and caused him prejudiced (sic).

Assignment of Error S (Holder). The Replacement of Juror Letitia Singleton was error.

In these assignments of error, Defendants challenge another ruling which was previously rendered by this court. During the trial, a juror informed the trial judge that one of the other jurors, Ms. Singleton, had been discussing the case with other jurors and expressing opinions, both of which |1fiwere in violation of the trial judge’s orders. The tidal judge held a hearing where the jurors were questioned and concluded that Ms. Singleton should remain on the jury.

The State, however, sought writs from this court and this court reversed, finding Ms. Singleton’s comments to be in violation of the rule prohibiting jurors from discussing the case prior to deliberation. This court ordered Ms. Singleton to be dismissed and replaced. Defendants sought writs from the Louisiana Supreme Court, which were denied. No. 2007-KK-1575.

As previously discussed in Johnson’s assignment of error number two and Holder’s assignment of error number one, there is no reason for this court to reconsider its previous ruling made during the trial. State v. Hunter, supra. This court considered the matter fully, had complete knowledge of the facts and circumstances and decided the case based on an adequate record. Id. Nothing in the subsequent proceedings has changed the basis for this court’s ruling. Id.

These assignments of error are, therefore, without merit.

Assignment of Error 6 (Johnson). The sentences imposed of forty-one years at hard labor without benefit of parole, probation or suspension of sentence were unconstitutionally harsh and excessive and constitute cruel and unusual punishment considering the facts and circumstances of this case.

Finally, Johnson argues that his 41-year concurrent hard labor sentences are excessive. As a threshold issue, however, we note that there is a question as to the specificity of Johnson’s sentences as imposed by the trial judge. Johnson was convicted of armed robbery with a firearm, but the 117trial judge only imposed a single term of 41 years for each offense without imposing a separate sentence for the use of a firearm.

This court has previously held that a sentence for the offense of armed robbery with a firearm must consist of a term for the armed robbery offense and a separate consecutive term for the use of a firearm. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685. Accordingly, we pretermit any discussion of Johnson’s assignment of error number six and remand the matter for imposition of determinate sentences in accordance with this court’s ruling in Eason, supra.

We further recognize as error patent that Holder’s sentence also appears to be indeterminate. La. C. Cr. P. art. 920(2); State v. Paben, 43,415 (La.App.2d Cir.8/13/08), 990 So.2d 123. Like Johnson, Holder was convicted of three counts of armed robbery with a firearm. The trial judge sentenced Holder to a single life sentence under the habitual offender law. It is unclear from the record whether the trial court considered the habitual offender bill to apply to all three of Holder’s convictions or only one. Regardless, the single sentence for Holder leaves two of his convictions without sentences.

Additionally, we recognize as error patent that, as with Johnson, the trial judge failed to impose separate sentences for Holder for the firearm portion of the convictions. La. C. Cr. P. art. 920(2); Eason, supra; State v. Paben, supra. Accordingly, we also remand for the imposition of determinate sentences as to Holder and sentencing in accordance with this court’s ruling in Eason, supra.

| ^CONCLUSION

For the foregoing reasons, the convictions of Defendants, Corey Holder and Dewayne Johnson, are affirmed and their cases are remanded for the imposition of determinate sentences.

CONVICTIONS AFFIRMED AND SENTENCES REMANDED.

      . Witnesses' accounts vary regarding the number of perpetrators.

      . The DNA testing resulted in a match of one in 19.2 trillion.

      .The DNA testing resulted in a match of 1 in 169 trillion.