author: McMANUS, Judge.

text:
    STATE of Louisiana v. Marcus WILLIAMS.
    No. 08-KA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Marcus Williams, Angola, Louisiana, In Proper Person.
    James A. Williams, Brian J. Evans, Attorneys at Law, Gretna, LA, for Defendant/ Appellant.
   McMANUS, Judge.

i statement of the case

The defendant Marcus Williams was indicted by a Jefferson Parish grand jury for the offenses of armed robbery, aggravated kidnapping and aggravated arson. He pled not guilty to the indictment on June 18, 2004. A second bill of information was filed on November 15, 2004 which contains a handwritten notation indicating that another bill would be filed and that the defendant would be arraigned on all charges. A second amended bill of information was filed on November 29, 2004. The record does not show that the defendant was re-arraigned after the corrected bill of information was filed. However, a failure to arraign the defendant is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. LSA-C.Cr.P. art. 555.

On June 20, 2006, the defendant proceeded to trial on the armed robbery and kidnapping charges. After hearing testimony, a twelve-person jury found him guilty as charged. The State dismissed the arson charge after the guilty verdicts were returned.

On August 4, 2006, the defendant was sentenced to 75 years at hard labor for the armed robbery and to life in prison on the aggravated kidnapping. With the |aassistance of retained appellate counsel, he now appeals his convictions and sentences. The defendant filed a pro se assignment of error on August 18, 2008.

FACTS

The victim, Owen Santiago, testified that two years earlier, on April 14, as he drove his car into his driveway, four men entered his car, three of whom were armed. The men wanted money and took his jewelry. One of the kidnappers, later identified as the defendant, told him that he would be released if he had an ATM card or could call someone to give them money. Santiago thought he was going to die. He knew one of the people who grabbed him, Marcus, because he had gone to school with him. The kidnappers took his earrings, chain, and bracelet. The kidnappers took Santiago out of his car and threatened to beat him if he did not cooperate. One of them said they would kill him and put his body in a dumpster. The kidnappers took the spare tire out of the trunk, put Santiago inside, and resumed driving.

The victim struggled to escape the trunk. As the car turned on the service road near Clearview, the victim was able to jump out. He ran to a nearby service station to call the police. Santiago described the routes taken during the kidnapping. Upon retracing these locations, the police recovered the spare tire where it had been discarded, as well as the victim’s shoes which had been lost as he jumped from the trunk.

At trial, the victim positively identified the defendant as the man who had been in the front passenger seat of his car. He had gone to grammar and high school with him and knew the defendant “pretty good.” The victim was absolutely positive that Marcus Williams was one of the men in the car.

DISCUSSION

|4In this appeal, the defendant raises two assignments of error: the court erred by not granting his motion to suppress and that the evidence was insufficient to support his conviction. On appeal, when issues relate to both the sufficiency of the evidence and other trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Therefore, the defendant’s second assignment of error raising a question of the sufficiency of the evidence will be addressed first.

Assignment of Error Number Two

In his second assignment of error, defendant argues the evidence submitted at trial was insufficient to prove he committed the crime with which he was charged beyond a reasonable doubt.

In reviewing claims challenging the sufficiency of the evidence or identification, an appellate court must consider “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

In addition to proving each statutory element of the crime charged, the State must prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

“Positive identification by only one witness is sufficient to support a conviction.” State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, unit denied, 02-3182 (La.4/25/03), 842 So.2d 398. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant | rjs guilty beyond a reasonable doubt. State v. Jupiter, 06-93, p. 6 (La.App. 5 Cir. 6/28/06), 934 So.2d 884, 888. The determination of the weight of evidence is a question of fact that rests solely with the trier-of-fact. State v. Upchurch, 00-1290, p. 4 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 402. If there is a conflict in the testimony, the trier-of-fact may accept or reject, in whole or in part, the testimony of any witness. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, unit denied, 01-1660 (La.4/26/02), 814 So.2d 549. 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 to convict. Id.

These principles are illustrated in State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, mit denied, 02-1457 (La.5/9/03), 843 So.2d 387. In Co-wait, there was no physical evidence linking the defendant to the crime and a single witness identified the defendant as the perpetrator of a shooting. At trial, the reliability of the eyewitness was attacked because the witness was a convicted felon, had been under psychiatric care, had initially lied to the police, gave a description that did not match the defendant, had perjured herself during motion hearings, and had changed her story about the crime scene and the number of shots she heard. Despite this lengthy list of deficiencies, this Court held that it was within the jury’s discretion to believe the witness’ testimony. Id. at 285.

In this case, the jury heard testimony from the victim, who knew the defendant from attending school with him. Over the course of several hours, the victim had an opportunity to see and hear the perpetrators. He made positive and consistent identifications that this defendant was one of the men who robbed and kidnapped him. If believed by the jury, this testimony was sufficient to prove identity. Under the Jackson standard, viewing the evidence in the light most | (¡favorable to the pi'osecution, a rational trier of fact could have concluded that the defendant was guilty of armed robbery and aggravated kidnapping. For these reasons, we find the evidence provided at trial was sufficient to support defendant’s convictions.

Assignment of Error Number One

In his first assignment of error, defendant argues the trial court erred in not granting his Motion to Suppress the Identification because the photographic lineup was improperly suggestive.

The defendant argues in his appellate brief that the lineup photo array is not included in exhibits and thus not reviewable by this Court. This factual contention is contradicted by a review of the district court record prepared for appeal. This exhibit is present in the record on appeal and is reviewable by this Court.

At the motion to suppress hearing, Detective Keith Forsythe testified regarding the selection of photographs and manner in which they were presented to the victim. He did not consider the photographs suggestive and noted that the six photographs in the array were all of black males with dreadlocks, around the same age, with thin mustaches. Forsythe testified that he utilized the automated fingerprint identification system (AFIS) by entering physical descriptions that resembled the suspect. The defendant’s picture was already in the AFIS system when the photo array was compiled. Forsythe informed the victim that it was possible that a suspect might not be in one of the photographs.

After hearing testimony from both the investigating detective and the victim and viewing the photographic lineup, the trial court denied the motion to suppress the identification.

A trial judge’s finding of fact in ruling on a motion to suppress identification is afforded great deference and may not be overturned in the absence of manifest 17error. State v. Higgins, 03-1980, pp. 20-21 (La.4/1/05), 898 So.2d 1219, 1233, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

In raising a challenge to identification procedures, the burden of proof is on the defendant to establish that the identification was suggestive and that there was a substantial likelihood of mis-identification. State v. Calloway, 97-796, p. 10 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, 565, 'writs denied, 98-2435 and 98-2438 (La.1/8/99), 734 So.2d 1229, The admissibility of an identification is controlled by Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Under this standard, viewing the evidence from a totality of the circumstances, the trial court should consider whether suggestiveness presents a substantial likelihood of misidentification. This review is based on five specific factors:

1) the opportunity of the witness to observe the perpetrator at the time of the crime,
2) the witness’ degree of attention at the time of the crime,
3) the accuracy of his prior description of the offender,
4) the level of certainty displaced at the confrontation, and lastly,
5) the time between the crime and the confrontation.

Id. at 115, 97 S.Ct. at 2253.

The victim and witness in this case had a lengthy opportunity to view the perpetrators of the crime. His degree of attention was heightened, his description of the offender was accurate, he was certain of his identification, both in selecting the defendant’s photograph and in identifying him in court, and the time between the crime and the identification was short. Thus, all of the factors set forth in Manson v. Brathivaite were present.

The defendant’s short argument related to the lineup is bolstered solely by reference to defense counsel’s questions of the police officer at the motion to suppress hearing. The defendant directs this Court’s attention to counsel’s 18question of the police officer as to whether the defendant’s lineup photograph was larger than other photographs. The officer’s response was that the photograph was not bigger than the other photographs. At the conclusion of the trial, the jury was specifically instructed that statements and arguments of counsel were not evidence.

We have reviewed the photographic lineup which is contained in the record on appeal and is viewable by the Court. We find the defendant’s photograph in the lineup was not larger than the other photographs, as argued by defendant. However, we do note that defendant’s face does appear slightly larger in his photograph than the others’ faces. However, we find this slight difference did not present a substantial likelihood of misidentification and, using the factors set forth in Manson v. Brathwaite, supra, the victim’s identification of defendant was reliable. Therefore, we find the trial court correctly denied the motion to suppress.

Pro Se Assignment of Error

In his pro se brief, defendant argues that the trial court erred in failing to wait the statutorily mandated period between denying defendant’s motions for new trial and post-verdict judgment of acquittal and sentencing.

Pursuant to LSA-C.Cr.P. art. 873, if a motion for new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. The transcript of sentencing in this case shows that the trial court denied the motion for new trial and sentenced the defendant immediately thereafter. There was no waiver of delays, nor was there an objection to the imposition of sentence.

In State v. Jones, 07-271 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149, this Court noted the general rule that where a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the ease remanded for resentencing. The Court also noted that the Supreme Court of Louisiana has held:

| ([Although C.Cr.P. art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.

Id. at 1149-50, quoting State v. White, 404 So.2d 1202, 1204 (La.1981).

In this case, the defendant was sentenced to the mandatory minimum sentence of life in prison on the conviction of aggravated kidnapping. He was sentenced within the statutory limits for the conviction of armed robbery. He made no contemporaneous objection to his sentence on either conviction, nor does he raise issues on appeal with regard to his sentences. In light of the lack of objection or prejudice, we find that this error is harmless and does not require remand.

Error Patent Review

This Court routinely reviews the record for errors patent regardless of whether the defendant requests such a review, pursuant to LSA-C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990).

In this case, we note one patent error, in addition to the failure to delay sentence after the denial of the motion for new trial discussed above. Although the commitment order states that the defendant was informed of the time for seeking post-conviction relief, the transcript contains no advice of rights for seeking post-conviction relief. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Therefore, we find the trial court failed to inform the defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8(C). We remand this matter and order the district court to properly inform the defendant of the time limits for seeking post-conviction relief by sending Imwritten notice to the defendant within ten days of the rendition of the appellate opinion, and to file written proof that the defendant received the notice in the record.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert A. NEELY.
    No. 08-KA-707.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE, Pro Tempore.
   EDWARD A. DUFRESNE, JR., Chief Judge.

_JjThe Jefferson Parish District Attorney filed a bill of information charging defendant, Robert A. Neely, with possession of a sawed off shotgun while committing a crime of violence in violation of LSA-R.S. 14:95(E) (count one), aggravated criminal damage to property in violation of LSA-R.S. 14:55 (count three), and possession of a firearm having a barrel less than 18 inches in length which was not registered with the Louisiana Department of Public Safety and Corrections in violation of LSA-R.S. 40:1785 (count four). Defendant pled not guilty to these charges and subsequently filed various pretrial motions. On August 24, 2007, the trial court heard and denied defendant’s oral motion to reduce bond and oral motion to recuse the trial judge. On November 6, 2007, the trial court heard and denied defendant’s motion to suppress his identification, statement, and evidence.

Defendant thereafter proceeded to trial on counts one and three, and a twelve-person jury unanimously found defendant guilty as charged as to both |.¿counts. The trial judge sentenced defendant to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence as to count one, and to twelve years imprisonment at hard labor as to count three. These sentences were ordered to run concurrently with each other. Defendant now appeals.

FACTS

On April 14, 2007, Keith Matherne and Loni Caruso slept at Karen and Robert Neely’s house. At the time, Mickey Bruce was also staying at this house. The next day, Keith and Loni noticed that they were missing some money, an ATM card, and prescription medication. Keith and Loni confronted them about the missing property. After no one admitted to taking the property, Keith and Loni left.

Keith and Loni returned to the house in an attempt to get their missing property and then left again. After riding around that evening, they went to the Avondale Truck Stop on Highway 90. While they were leaving the truck stop, Bruce pulled his truck in front of Keith’s truck and blocked them off. Bruce and defendant got out of Bruce’s truck, and Keith and Loni got out of Keith’s truck. After arguing, Bruce told defendant to get the gun out of the truck. Defendant retrieved the gun, and Bruce put the gun to Loni’s throat. Loni described the gun as a sawed off shotgun. According to Loni, she gently pushed the gun away, and they agreed to go talk about it. After Keith said he would call the police, Bruce threatened to shoot and kill him, putting the gun to his chest. They returned to their trucks after agreeing to go talk about it.

Keith drove off and as he turned onto Highway 90, Bruce and defendant followed behind them. Bruce was driving, and defendant was in the passenger seat. Shots were then fired, and Keith’s truck was struck multiple times. The shots |3struck the side of the truck by the gas tank, the back windshield, and the tailgate. Keith and Loni did not see who fired the shots. Keith and Loni went to the fire station and called the police. Once the officers arrived, they told the officers the identity of the two individuals involved.

Detective Decker compiled photographic lineups of defendant and Bruce and presented the lineups to Keith and Loni, who both positively identified defendant and Bruce as the individuals involved in this encounter. Based on the positive identifications, Detective Decker prepared arrest warrants for defendant and Bruce and a search warrant for defendant’s address. Defendant was arrested and his residence was searched. Pieces of a shotgun and shotgun shells were recovered from the residence.

Defendant was transported to the Detective Bureau, was advised of his Miranda rights, acknowledged that he understood his rights, waived his rights, and gave a statement. In his statement, defendant alleged that the conflict between the parties involved selling guns. According to defendant, Bruce thought that he, Loni, and Keith had stolen the guns that Keith was going to sell because they had not returned with the money. Defendant told Bruce that he had nothing to do with cheating him out of money, and he then took a ride with Bruce to look for Keith and Loni. In his statement, defendant admitted to retrieving the loaded shotgun and giving it to Bruce, admitted to shooting at the truck, and admitted to cutting up the gun with a hacksaw. Defendant also admitted that the components of a shotgun located during a search of his residence was the same shotgun used in the incident.

Bruce was arrested around the same time as defendant. A search warrant was executed on his truck. A gunshot residue test was conducted on the passenger side of the vehicle. Testing suggested that gunshot residue was present in the right passenger window frame and door jam.

|4Additional evidence was later obtained when the receiver end of a shotgun was recovered from Bayou Segnette Waterway on June 15, 2007. Divers discovered the evidence after searching a location based on information Detective Decker received regarding the investigation.

Defendant testified at trial. His testimony was similar to the statement he had previously given, except he denied that he was the shooter. Instead, he testified that Bruce, who was driving, shot three times into Keith’s vehicle from the driver’s side through the passenger side window. Defendant testified that when he gave his statement he was trying to be loyal to Bruce, and further that he was “under the influence” at the time of his statement.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues that the trial court erred in failing to hold the motion to recuse hearing on the record. According to the August 24, 2007 minute entry, defendant made an oral motion to recuse the judge. After the matter was argued and submitted, the trial court denied the motion and defendant objected. According to a court reporter’s August 18, 2008 letter regarding the August 24, 2007 transcript request, the pretrial conference was held in chambers off the record.

Defendant now argues he cannot receive a fair appeal because the recusal hearing was not held on the record. Because there is no transcript of the pretrial hearing on the recusal motion, he contends the issue cannot be addressed. For the reasons that follow, we find no merit to defendant’s arguments.

The Louisiana Supreme Court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, in particular, where as here, appellate counsel was not counsel at trial. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). The interests of justice require |athat a defendant be afforded a new, fully recorded trial where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his appellate counsel duties. State v. Ford, 338 So.2d 107, 110 (La.1976).

In addition, in Louisiana, the constitution guarantees a defendant the right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” State v. Deruise, 802 So.2d at 1234 (citing La. Const, art. I, § 19). LSA-R.S. 13:961(C) provides, in pertinent part, that in criminal cases tried in the district courts, the court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the proceedings required. Further, LSA-C.Cr.P. art. 843 provides, in pertinent part, that in felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders and charges by the court, and objections, questions, statements, and arguments of counsel.

Although the Louisiana Supreme Court has found reversible error when material portions of the trial record were unavailable or incomplete, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a defendant’s conviction. A defendant is not entitled to relief because of an incomplete record unless there is a showing of prejudice based on the missing portions of the transcript. State v. Boatner, 03-0485 (La.12/3/03), 861 So.2d 149, 153; State v. Cambre, 05-888 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 457, writ denied, 06-2121 (La.4/20/07), 954 So.2d 158.

Contrary to defendant’s position, not all proceedings are required to be transcribed. In State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 586-87, _|_6,cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000), the Louisiana Supreme Court stated the following:

This court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.Code Crim. Proc. art. 843. Still, art. 843’s description of “objections” and “arguments” will normally apply only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke art. 843. Similarly, Art. I, § 19’s command to record “evidence” does not encompass bench conferences, at least, not ones that do not satisfy the materiality requirements of La.Code Crim. Proc. art. 843. (citations and footnotes omitted)

See also State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1124-25, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599, where this Court rejected defendant’s claim that the trial court erred in refusing its request to have its objections and bench conferences transcribed, where one conference involved his motion for a mistrial, another involved a hearsay issue, and the remaining two bench conferences occurred during voir dire.

In the present case, defendant has failed to show how he was prejudiced by the missing transcript. Defendant does not point to any specific instance of prejudice, but merely argues that “the entirety of the trial was presided over by a judge who may have a legitimate grounds [sic] to be recused.” See State v. Chattman, 01-556 (La.App. 5 Cir. 10/30/01), 800 So.2d 1043, 1050, 'unit denied, 01-3320 (La.12/19/02), 833 So.2d 332, where this Court found that defendant failed to show that he was prejudiced by the missing transcript, noting that in his appellate brief the defendant alleged that he was prejudiced by the absence of the recusal transcript because it “may be argued that without Judge Wicker presiding over the trial the defense was prejudiced.” Further, even though this pretrial oral motion was not recorded, defendant had access to the trial transcript for review on appeal. Defendant has not cited to any error or evidentiary hearing relative to the 17trial, nor does he point to a specific instance of prejudice with respect to any ruling of the court.

Moreover, defendant’s motion to recuse was not in wilting, and therefore, presents nothing for this Court to review. A party desiring to recuse a trial judge shall file a written motion assigning the ground for recusal. State v. Page, 02-689 (La.App. 5 Cir. 1/28/03), 837 So.2d 165, 181, writ denied, 03-0951 (La.11/7/03), 857 So.2d 517. In State v. Crothers, 278 So.2d 12, 14 (La.1973), cert. denied, 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973), the Louisiana Supreme Court found that the defendant’s motion to recuse was not in writing as was required by LSA-C.Cr.P. art. 674 and, therefore, the denial of the oral motion for recusal presented nothing for it to review. See also State v. Lewis, 97-1244 (La.App. 3 Cir. 3/6/98), 728 So.2d 1, 9, writ denied, 98-0977 (La.9/18/98), 724 So.2d 752; State v. Williams, 96-1587 (La. App. 4 Cir. 4/16/97), 693 So.2d 249, 252-53, writ denied,, 97-2513 (La.4/9/98), 717 So.2d 1138; and State v. Davis, 485 So.2d 981, 982-83 (La.App. 4 Cir.1986), lurit denied, 488 So.2d 1019 (La.1986), where these appellate courts recognized that there was nothing to review when the defendants filed oral motions to recuse the trial judges.

Based on the foregoing discussion, we find that the arguments raised in this assigned error are without merit.

PRO SE ASSIGNMENT OF ERROR

Subsequent to the filing of the appellate brief by defense counsel, defendant filed a pro se supplemental brief alleging that the trial court’s omission of voir dire and jury selection from the appellate record violated his constitutional right to a complete record of all evidence on which the judgment was based. Defendant argues that it is impossible to determine if any selected jurors were biased, impartial, or prejudiced against defendant, noting that there were two selected jurors that disclosed close personal friendships with the alleged victim. Defendant |xalso notes that there were unrecorded bench conferences held during jury selection to determine if jurors were dismissed for cause or challenge, making it impossible for this Court to determine if jurors were properly challenged for cause or peremptorily and relieved from the jury in an unbiased manner.

In the present case, defendant has failed to show how he was prejudiced by the missing voir dire transcripts. The missing portion of the trial record concerning jury selection is not evidentiary and therefore, its absence does not compromise defendant’s constitutional right to a judicial review of all evidence. In addition, defense counsel did not specifically request that voir dire be transcribed, nor did he raise any assignments of error relating to voir dire. Moreover, in his pro se assignment of error, defendant did not specifically request that the record be supplemented with the transcripts, nor did he point to any specific prejudice he has suffered. Although under LSA-C.Cr.P. art. 914.1(D), this Court could designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of errors, it is not necessary for this Court to exercise this authority. The January 15, 2008 minute entry containing the jury selection indicates defendant used only five peremptory challenges. See LSA-C.Cr.P. art. 799. Further, the minute entry does not reflect any objections by defense counsel. Given these reasons, defendant has failed to show how he was prejudiced by the missing voir dire transcripts.

Accordingly, we find no merit no defendant’s pro se assignment of error.

J¡¡ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court failed to inform defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. We note that although the commitment reflects defendant was properly advised of the prescriptive period for filing post-conviction relief, the transcript does not so reflect. In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within 10 days of the rendition of this Court’s opinion and then to file written proof in the record that defendant received the notice. See State v. Cummings, 07-686 (La.App. 5 Cm. 1/22/08), 977 So.2d 135, 142, writ denied, 08-0471 (La.9/26/08), 992 So.2d 984. However, in State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, the Second Circuit corrected this error patent by way of its opinion rather than a remand. In accord with Monis, we advise defendant by this opinion, that, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSAC.Cr.P. arts. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.

DEFENDANT’S CONVICTION AND SENTENCE AFFIRMED.

      . Codefendant Mickey Bruce was charged in this bill of information as to counts one, two, and three.

        . The State entered a nolle prosequi as to count four.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . According to LSA-C.Cr.P. art. 914.1(A), the party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged.

      . The Louisiana Supreme Court has held that the defense's failure to exhaust its peremptory challenges bars review on appeal of a claim of an improperly denied peremptory challenge. See State v. Jones, 03-3542 (La. 10/19/04), 884 So.2d 582. In State v. Campbell, 06-0286 (La.5/21/08), 983 So.2d 810, cert. denied, - U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008), the Louisiana Supreme Court recognized that an erroneous ruling on a challenge for cause which does not deprive a defendant of one of his peremptory challenges does not provide grounds for reversing his conviction and sentence. The court stated that a defendant must use one of his remaining peremptory challenges curatively to remove the juror or waive the complaint on appeal, even in a case in which he ultimately exhausts his peremptory challenges.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Arthur HICKS.
    No. 08-KA-402.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintift/Appellee.
    John T. Fuller, Attorney at Law, New Orleans, LA, for Defendani/Appellant.

      Panel composed of Judges MARION F. EDWARDS, FREDERICKS HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¿The Defendant, Arthur Hicks, appeals from his conviction of possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. We affirm and remand for corrective action.

The Defendant was charged by a bill of information with the offense on February 1, 2006. He subsequently pled not guilty, and filed pre-trial motions to suppress the evidence and statements. The trial judge denied the motions, and on March 17, 2007, he waived his right to a jury trial. Following the bench trial on March 21 and 22, 2007, the Defendant was found guilty as charged. The Defendant subsequently filed a motion to reconsider the motion to suppress evidence, which was denied. On May 1, 2007, the trial judge sentenced the Defendant to imprisonment at hard labor for ten years to run concurrently with sentences in two other cases, and any other sentence he was serving.

The evidence at the trial showed that, on the morning of February 1, 2006, the Defendant’s probation officer, Agent Kevin Wall, went to the Defendant’s | ¿residence at 1625 East Judah, Apartment A, in Mar-rero to conduct a surprise visit. When the Agent arrived, he knocked on the door and identified himself as a probation officer. The Defendant allowed the officer to enter the apartment. While they were talking, another man who was sleeping on a bed in the room woke up and identified himself as Troy Williams.

Agent Wall believed that Williams was wanted by the Department of Probation and Parole for absconding from supervision. As a result, the Agent immediately left the residence and contacted Williams’ probation officer, Brian Poison, to inform him of Williams’ whereabouts. Agent Poison told Agent Wall to remain where he was and observe the residence. When Agent Poison and his partner, John Gui-dry, arrived, they knocked on the door. The Defendant opened it, and the two parole officers went inside with their guns drawn. They told the Defendant to get down on the ground.

Agent Poison handcuffed the Defendant and Williams. He stayed with them while Agent Guidry did a “sweep” of the apartment for officer safety. As Agent Guidry walked down the hallway, he saw a gun sitting on top of a dresser in the bedroom on the left-hand side of the hall. Agent Guidry informed Agent Poison that there was a gun present and told him to arrest the Defendant and Williams. The gun had one bullet loaded in the chamber.

After Agent Poison advised the two men of their Miranda rights, the Defendant repeated several times to Agents Poison and Guidry that he knew that there was a gun in the apartment. He explained that he needed a gun for protection because the apartment was in a dangerous area. After the Defendant made those statements, Agent Guidry walked to the back of the apartment to complete hisjjsearch to ensure that the Defendant had no other weapons or contraband in his room.

Agent Poison testified that the Defendant later changed his story twice. He asserted first that the gun belonged to both him and his live-in girlfriend, Katina Meyers. In his second statement, he claimed the gun belonged to Meyers, who he claimed, purchased it for approximately $100.

Upon investigation of the gun’s ownership, it was discovered that the gun had been stolen during a burglary.

The State and the Defendant stipulated that the Defendant had previously been convicted of violating the uniformed controlled substances law in a drug free zone, under La.R.S. 40:981.3.

Troy Williams testified that he did not see a gun in the apartment and that he did not hear the Defendant claim ownership of the gun found in the bedroom. He further testified that, when Agent Guidry returned from the back of the apartment with the gun, the Defendant asked him where he had retrieved it.

According to Meyers, she and the Defendant were living together at the apartment. Meyers paid the rent on the apartment, and the lease was in her name. Meyers stated that she and the Defendant had an on-again/off-again relationship, and that on the day of his arrest, the Defendant had only been back at the apartment for approximately three days after a separation of approximately one month.

Meyers claimed that Agent Wall called her during the incident and that the Defendant got on the phone and told her he was going to jail. Meyers said she told Agent Wall that the gun did not belong to the Defendant. She claims that Agent Wall informed her that it did not matter because the Defendant was not |fisupposed to be around guns. When Meyers told Agent Wall that the gun was hers, Agent Wall told her that she could go to jail for ten years.

Meyers asserted that her apartment was a mess when she got home, and that it was not in that condition when she left. She identified a photograph of her daughter’s room that depicted the mess she found. Meyers identified the gun as hers, stating that she purchased it for personal protection from a man two days after the Defendant left. She explained that she and her two children were the only ones living in then- building, and that the area was dangerous and had a lot of break-ins. She claimed that she kept the loaded gun under the mattress along with her birth control pills, but that she did not tell the Defendant about it. Meyers admitted she did not know how to load the gun or take the clip out of it, and she never test fired it. She claimed that she never saw the Defendant with a gun, and that the Defendant never told her that he had a gun.

The Defendant testified that he did not have a gun at the apartment, did not possess one on the day in question, and did not know the gun was there. He knew that he was not supposed to have one because he was a convicted felon who was on probation. He denied telling any of the probation officers that the gun belonged to him or that he knew it was in the apartment. The Defendant admitted that he was living in the apartment, but stated he did not keep his clothes there.

Agent Guidry stated that the apartment was very messy when he entered it and that he did not tear it up while searching it. Agent Poison contended that the Defendant never asked him from where he retrieved the weapon. Agent Wall recalled talking to Meyers, but did not remember Meyers telling him that the gun belonged to her.

ji;On appeal, the Defendant asserts that the trial judge erred in denying his motion to suppress the evidence of the gun. He also asserts that the evidence was insufficient to convict him of the crime charged.

When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Guillard, 04-899, p. 9 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.

The Defendant argues that the only evidence submitted to convict him of the crime charged was the probation officers’ self-serving statements that the Appellant declared ownership of the gun found during the search. He contends that no independent evidence was introduced to prove that the Appellant had knowledge of, and dominion and control over the gun. He argues that under the totality of circumstances no rational trier of fact could have found the requisite knowledge and intent necessary to convict.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence is sufficient if the conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; 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. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310.

|7In order to convict a defendant of violating La.R.S. 14:95.1, the State must prove that the defendant was in possession of a firearm and is a convicted felon. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. The State must also prove that ten years has not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Crawford, 03-1494, p. 26 (La.App. 5 Cir. 4/27/04), 873 So.2d 768, 784, writ denied, 04-1744 (La.5/6/05), 901 So.2d 1083. General intent is required to commit this crime. Id.

The facts of each case determine whether the proof is sufficient to establish possession. Johnson, 03-1228 at 5, 870 So.2d at 998. Guilty knowledge of a defendant’s intent to possess a firearm may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. Constructive possession of a firearm exists when a firearm is subject to a person’s dominion and control. Johnson, 03-1228 at 5, 870 So.2d at 998. Even if the person’s dominion over the weapon is only temporary in nature and if control is shared, constructive possession exists. Johnson, 03-1228 at 5, 870 So.2d at 999. However, mere presence of a defendant in an area where a firearm is discovered does not necessarily establish possession. Johnson, 03-1228 at 6, 870 So.2d at 999.

Agent Guidry testified that he saw a loaded gun in plain view on the dresser in one of the two bedrooms in the apartment. The Defendant and Meyers admitted that they were living together in the apartment, and Agent Wall testified that he had previously visited the Defendant at that apartment in December of 2005. Agents Guidry and Poison testified that the Defendant told them that he knew the gun was there, that it was his gun, and that he had it for protection because they lived in a dangerous area.

The Defendant denied owning the gun, claimed he did not know it was in the apartment, and denied telling the agents otherwise. Meyers testified that she had [^purchased the gun, that it belonged to her, and that the Defendant did not know she had it. She admitted, however, that she did not know how to load the gun or how to take the clip out of it. Agent Guidry confirmed that the neighborhood where the Defendant and Meyers resided was dangerous.

The trial judge was presented with conflicting testimony. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Macon, 06-0481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Here, the trial judge found the State’s witnesses more credible than the Defendant and his witnesses.

After reviewing the record, we find that a rational trier of fact could have found that the State proved beyond a reasonable doubt that the Defendant had constructive possession of the firearm. The Defendant admitted to living in the apartment and to ownership of the gun. Additionally, the gun was in the apartment where the Defendant was living, and thus had temporary and shared dominion over it. This constitutes constructive possession. See, State v. Frith, 08-52 (La.App. 5 Cir. 4/29/08), 985 So.2d 792, 799. Thus, we find that there was sufficient evidence to support the Defendant’s conviction.

The Defendant next asserts that the trial judge erred by denying his motion to suppress the gun seized during the search. The Defendant asserts that Officer Guidry’s search under bed mattresses, in dresser drawers and shoe boxes, and in the bathroom garbage can went far beyond what was necessary to secure the apartment after the arrest of Troy Williams.

[ flThe Fourth Amendment of the U.S. Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. State v. Manson, 01-159, p. 5 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 755, cert denied, 01-2269 (La.9/20/02), 825 So.2d 1156. Warrantless searches and seizures are unreasonable per se unless justified by a specific exception to the warrant requirement. Manson, 01-159 at 8-9, 791 So.2d at 757. When the constitutionality of a warrantless search or seizure is at issue on a motion to suppress, the State bears the burden of proving that the search or seizure was justified under one of the exceptions to the warrant requirement. State v. Narcisse, 01-49, pp. 5-6 (La.App. 5 Cir. 6/27/01), 791 So.2d 149, 153, writ denied, 01-2231 (La.6/14/02), 817 So.2d 1152. Whether evidence was seized in violation of the Fourth Amendment is a determination to be made by the trial judge, whose factual findings are entitled to great weight on appeal. Id.

A recognized exception to the search warrant requirement is a security check of the surrounding area immediately after an arrest. State v. Narcisse, 01-49 at 6, 791 So.2d at 153, citing State v. Guiden, 399 So.2d 194 (La.1981), cert denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). A “protective sweep” is a quick and limited search of a premises conducted to protect the safety of police officers or others. State v. Nicholas, 06-903, p. 9 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 688, citing Maryland v. Buie, 494 U.S. 325, 335, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Id.

In Buie, the Supreme Court found that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the |10arrest scene. Buie, 494 U.S. at 335, 110 S.Ct. at 1099. The Buie Court stated in pertinent part:

Buie, 494 U.S. at 334, 110 S.Ct. at 1098.

In United States v. Mata, 517 F.3d 279, 285 (5th Cir.2008), officers conducted a protective sweep of Mata’s automobile and truck repair business where they discovered marijuana and weapons in plain view. The sweep was conducted immediately after numerous individuals were arrested outside the gate leading into the premises. In analyzing the case, the Court discussed three variations of post-arrest exceptions to the warrant requirement potentially applicable to protective sweeps based on Chimel and Buie: (footnotes as found in the original):

There are three variations of the post-arrest exception potentially applicable to the officers’ “safety personnel sweep.” First, incident to an arrest, law enforcement officers may contemporaneously search areas within the arrestee’s immediate control to prevent the destruction of evidence or procurement of a weapon. Second, officers may search areas immediately adjoining the place of arrest, such as closets and other spaces, from which a surprise attack could occur. Probable cause or reasonable suspicion is not necessary for these first two variations. Third, officers may also perform cursory “protective sweeps” of larger areas if they have articulable facts plus rational inferences that allow a reasonable officer to suspect that an individual dangerous to the officers is within the area to be searched. [Footnotes omitted.]

As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

In the instant case, we are only concerned with the second type of search.

|, [There are no Louisiana cases with a factual situation similar to the instant one, but United States v. Thomas, 429 F.3d 282 (D.C.Cir.2005), cert. denied, 549 U.S. 1055, 127 S.Ct. 660, 166 L.Ed.2d 519 (2006) involves similar facts.

In Thomas, deputy marshals arrived at the defendant’s apartment to arrest him for a parole violation. The defendant was apprehended in the hallway immediately inside his front door. The officers then conducted a protective sweep of the apartment, including the defendant’s bedroom, which was located approximately fifteen feet from the entrance of the apartment, at the end of the hall. In plain view on the top closet shelf the officers found a shotgun shell and a handgun.

The court in Thomas held that the search of the defendant’s bedroom was a lawful protective sweep even though there was no probable cause or reasonable suspicion. Thomas, 429 F.3d at 287-88. The Court reached this conclusion because the entrance to the bedroom was a straight shot down the hallway from the spot where the defendant was arrested. Thus, the bedroom was a place “immediately adjoining the place of arrest from which an attack could be immediately launched.” Thomas, 429 F.3d at 287. The court noted that every room that was swept could be immediately accessed from the hallway, and refused to narrowly define the place of arrest merely in order to avoid permitting the police to sweep the entirety of a small apartment. It stated that the safety of the officers, not the percentage of the home searched, was the relevant criterion. The court concluded that if an apartment was small enough that all of it immediately adjoined the place of arrest, and all of it constituted a space or spaces from which an attack 11¿>could be immediately launched, then the entire apartment was subject to a limited sweep of spaces where a person may be found. Thomas, 429 F.3d at 287-88.

In this case, Agent Wall drew a diagram of the apartment. The diagram shows a hallway adjoining the living room, and a bathroom located on the right-hand side of the hall. A bedroom is located at the end.

Agent Poison testified that the apartment was small and contained two bedrooms. He agreed with the diagram, except that he thought that the bathroom was on the left-hand side of the apartment. Agent Poison, however, had stayed in the living room and kitchen area during the sweep.

Agent Guidry testified there was at least one other bedroom in the apartment. He described the apartment as average sized, containing a main living room, with a hallway leading off to the left. The Agent stated that the bathroom and one bedroom were on the right-hand side of the hall, and another bedroom was on the left. Agent Guidry saw the gun lying on the dresser in the left side bedroom as he walked down the hallway. He was unsure whether there was a third bedroom. Agent Guidry testified that the hallway was not that long, and that after he walked two feet down the hallway, he could see directly into the two bedrooms.

We find that the Agent’s search of the apartment constituted a lawful protective sweep. As in Thomas, the apartment in the instant case was small, and the Defendant’s bedroom was located down a hallway from where the Defendant and Williams had been apprehended. Every room in the apartment accessed the hallway. Thus, the Defendant’s bedroom was a place “immediately adjoining the place of arrest from which an attack could be immediately launched.” See: Buie, 494 U.S. at 335, 110 S.Ct. at 1098; Maia, 517 F.3d at 285.

In addition, the record shows that the agents had reason to be concerned for them safety. When Agents Guidry and Poison went into the apartment to arrest | ^Williams, they knew that at least two convicted felons were there, one of whom had violated his probation by absconding. Furthermore, the apartment is located in a dangerous area, largely comprised of abandoned buildings, where there had been numerous arrests for drug and weapons violations and many break-ins and burglaries. Thus, the protective sweep of the apartment was justified.

Furthermore, the seizure of the gun was constitutional. Evidence in the open or plain view of a police officer who is legally on the premises from which he obtains the view is subject to seizure without a warrant. State v. Nicholas, 06-903 at 10, 958 So.2d at 689. The agents here were legally on the premises to arrest Williams for a probation violation, and the gun was in plain view. Thus, it was subject to seizure without a warrant.

Thus, we find that the trial judge did not err in denying the Defendant’s motion to suppress the evidence.

ERROR PATENT

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. See, State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Polizzi, 05-478, p. 18 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 315. Our review discloses one patent error that requires corrective action.

A defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. La.C.Cr.P. art. 930.8(A). According to the transcript, the trial judge only advised the Defendant that he had two years to file an application for post-conviction relief. The notification was incomplete.. Furthermore, the commitment does not reflect that the trial judge advised the Defendant of the provisions of La.C.Cr.P. art. 930.8 at all. When there is a conflict between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 733 (La.1983).

114This Court routinely remands the case when the notice under La.C.Cr.P. art. 930.8 is incomplete, with an order for the trial judge to advise the Defendant by written notice within ten days of the rendering of this opinion that he has two years from the date his conviction and sentence become final to file his application for post-conviction relief, and then to file written proof in the record that defendant received the notice. See: State v. Jenkins, 07-586, p. 10 (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 150 and State v. Williams, 05-59, pp. 8-9 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 835.

Accordingly, the Defendant’s conviction and sentence are affirmed. Furthermore, the case is remanded for the trial judge to advise the Defendant by written notice within ten days of the rendering of this opinion that he has two years from the date his conviction and sentence become final to file his application for post-conviction relief, and then to file written proof in the record that defendant received the notice.

AFFIRMED AND REMANDED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Agent Guidry agreed that the neighborhood where the Defendant lived was dangerous as there was a lot of narcotics activity, and numerous narcotics and weapons arrests had been made there.

      . See State v. Frith, 985 So.2d at 799, where this Court found that defendant’s admission to ownership of the firearms found in his residence, coupled with the other evidence, was sufficient evidence for a rational trier of fact to find proof beyond a reasonable doubt that defendant possessed a firearm.

      . Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . The court in United States v. Williams, 2008 WL 1712291 *5 (W.D.La.) quoted Thomas approvingly to support its holding that the kitchen constituted an immediate adjoining space under Buie. In Williams, the kitchen immediately adjoined the area just inside the front door, and defendant was arrested in the doorway of his house, with most of his body still inside.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Robert BROWN.
    No. 2008-KA-0661.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2008.

      Keva Landrum-Johnson, District Attorney, Graham Bosworth, Assistant District Attorney, Nick Slater-Student Intern, University of North Carolina, New Orleans, LA, for Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. MeKAY, III, Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|,STATEMENT OF THE CASE:

Defendant, Robert Brown, was charged by bill of information with simple burglary, a violation of La. R.S. 14:62. On March 1, 2007, defendant was arraigned and entered a plea of not guilty. On March 21, 2007, the district court denied the motion to suppress the evidence and found probable cause to hold defendant for trial. On May 30, 2007, the state amended the bill of information to charge defendant with unauthorized entry into a place of business, a violation of La. R.S. 14:62.4; a jury convicted the defendant of the amended charge. On June 6, 2007, the state filed a multiple bill of information against defendant; the multiple bill was withdrawn on November 15, 2007, and defendant was sentenced to serve three years at hard labor with credit for time served.

STATEMENT OF THE FACTS:

Officer Bryan Rice testified that on December 9, 2006, he and his partner, Officer David Finneman, received a call telling him that two subjects in a brown pickup truck were possibly casing the St. Francis Cabrini School property located at Paris Avenue and Prentiss Avenue. Upon arrival at the location the officers observed a brown pick up truck parked on the street in the 5500 block of Perlita Drive, adjacent to the school. They observed the school was “gutted” because ofjjflood damage caused by Hurricane Katrina. Officer Rice stated that he and Officer Finneman entered the school through an open door on the Perlita Drive side and walked across the building to the Paris Avenue side. As the officers entered what appeared to be a boiler room or power plant room, they observed defendant and Roger Bailey, defendant’s codefendant, standing next to a cut water pipe from which water was gushing and pooling onto the floor. They observed a pipe cutter on the floor and two different lengths of copper pipe. The pipe appeared to have been freshly cut with a pipe cutter or metal snips because the ends were shiny and not tarnished. Officer Rice testified that he arrested defendant and informed him of his Miranda rights. Defendant told the officers that he had permission to take whatever he wanted by a “Father Robert” and an unknown FEMA worker. Officer Rice stated that defendant admitted ownership of the brown pickup truck. Officer Rice testified that a search of Roger Bailey incident to his arrest revealed a pair of wire cutters and metal snips.

On cross-examination, Officer Rice testified that he observed defendant and Roger Bailey standing in the boiler room. He stated that the pipe that appeared freshly cut was the pipe from which the water was gushing out onto the floor. He stated that defendant was unsure of the name of “Father Robert” and was unable to identify the unknown FEMA worker who allegedly gave him permission to take whatever he wanted, and he had no contact information for either of these people. He testified that defendant’s truck was parked approximately one block from the school. The truck was not searched. He stated that he did not see either defendant |p,or Bailey cut the pipe, and he did not ask defendant or Bailey if they owned the pipe cutting tool lying on the floor next to the cut pipe.

On re-direct examination, Officer Rice testified that the cut pipe was located on the floor a few feet from defendant and that cut sections of pipe were missing from the wall area.

Officer David Finneman testified that on December 9, 2006, at approximately 10:38 a.m. he and his partner received a call that the Cabrini School, located at the corner of Paris Avenue and Prentiss Avenue, was being burglarized. He described the school building as open and heavily damaged from Hurricane Katrina. He stated that the caller described a brown truck that the two suspects had been driving. A truck meeting the description and license number was found parked about one block from the school in the 6500 block of Perlita Drive. Upon entering and searching the school, Officer Finneman and his partner found the defendant and his co-defendant, Roger Bailey, inside what appeared to be a power room. The defendant and Bailey were ordered to put their hands up and lie down on the floor where they were handcuffed. He observed some cut pipes with water running out and pooling onto the floor. He stated that the pipes appeared to be freshly cut because the cut ends were shiny. A cutting tool was found on the floor within a few feet of the suspects. Also, several additional cut pipes were lying on the floor in close proximity to the suspects. He testified that he searched Roger Bailey and found a pair of tin snips and wire cutters on his person.

On cross-examination, Officer Finneman testified that it took a “few minutes” to arrive at the school after receiving the dispatch. He stated that he believed the pipe had been freshly cut because the cut ends were shiny. He stated |4that he did not ask either the defendant or Bailey if the pipe cutters belonged to them, and he did not fingerprint the pieces of pipe because he had to accompany defendant to the hospital after the defendant complained of chest pains. He further stated that he did not witness either the defendant or Bailey cut the pipes.

Lieutenant Dale Haydel testified that he is the assistant commander of the New Orleans Police Department’s evidence and property department. He identified two lengths of copper pipe with insulation, a pair of Wiss tin snips with a green handle, a pair of Kobalt nickel wire cutters with a blue handle, a gray Superior pipe cutter with serial number 350, and three digital photographs of the defendant’s truck. He stated that these items were placed in evidence by the investigating officer. Each item was given a bar code number and tagged with that number.

On cross-examination Lieutenant Hay-del testified that the items of evidence were confiscated on December 18, 2006 at approximately 12:00 noon and entered on the evidence book by Officer Butler.

Andre Villere, Jr. testified that he is employed by the Archdiocese of New Orleans as the Director of the Building Office. He stated that his duties and responsibilities consist of taking care of all of the buildings in the archdiocese, assisting parishes with construction projects, overseeing all work performed at the various institutions owned by the archdiocese, and handling all invoices. He stated that St. Francis Cabrini School is one of the buildings that he is responsible for managing. He testified that there are three “Father Roberts” in the archdiocese but none are affiliated with the Cabrini School and none would have the authority to give permission to anyone to remove property from the school. He stated that if permission had been given to remove copper pipe from the school that his office | ¿would have been aware of it. He stated that he was not aware of any permission that was given to anyone to remove anything from the Cabrini School and that he was not aware of any permission given to defendant to remove copper pipe from the school.

On cross-examination Mr. Villere testified that he remembered having a telephone conversation with defense counsel and discussing Holy Cross School but he did not remember the details of the conversation. He stated that Holy Cross School had purchased the St. Francis Cabrini School site but that the act of sale had not yet been signed. He stated that three contractors, ICI, AKT and Hamps Construction, were all hired to complete work on the site. He testified that he had no personal knowledge if anyone working for the contractors or FEMA gave defendant permission to remove copper pipe from the school.

Detective Douglas Butler testified that he participated in the investigation of the burglary at the Cabrini School in December 2006. He stated that he recovered several items of evidence found at the scene and logged them into the Central Evidence and Property room and was given a receipt for the items. He identified the items as two lengths of copper pipe with insulation, a pair of Wiss tin snips, one blue and yellow nickel wire cutter, one pipe cutter and three digital photographs of the defendant’s truck.

ERRORS PATENT:

A review for errors patent reveals none.

DISCUSSION:

ASSIGNMENT OF ERROR NUMBER 1:

In a single assignment of error, the defendant argues that the evidence is insufficient to support a conviction for unauthorized entry of a place of business.

| ^Specifically, the defendant argues that the state failed to prove the following facts essential to a conviction of the crime of unauthorized entry of a business: (1) that the Cabrini School was in fact a “place of business;” (2) that it was enclosed by a physical barrier at least six feet in height; (3) and that the property was not abandoned. Defendant also suggests that he had permission to enter and remove the copper pipe from the Cabrini School.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La. 1987).

When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012. This is not a separate test from Jackson v. Virginia, but is instead an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984); State v. Addison, 94-2431 (La.App. 4th Cir.11/30/95), 665 So.2d 1224.

| 7To convict a defendant of unauthorized entry into a place of business, the state must prove beyond a reasonable doubt that the defendant intentionally entered without permission any structure or premises, belonging to another, that is completely enclosed by any type of physical barrier of at least six feet in height and used in whole or in part as a place of business.

A place of business is defined as a place of employment, occupation, profession, enterprise or commercial activity engaged in for gain or livelihood in which a person shows willingness to invest time and capital on the future outcome. State v. Coleman, 528 So.2d 192, 195 (La.App. 3 Cir. 1988); Black’s Law Dictionary, 179 (5th ed.1979).

Abandoned property is defined as property to which an owner has relinquished all right, title, claim and possession, with the intention of not reclaiming it or resuming its ownership, possession or enjoyment. Black’s Law Dictionary, 3 (5th ed.1979).

The evidence adduced at trial proved beyond a reasonable doubt that the Cabrini School was a building completely enclosed by physical barriers such as walls and doors of at least six feet in height. Although it was not functioning as a school at the time of the burglary, it was not abandoned and was still functioning as a “place of business” within the meaning of La.R.S. 14:62.4. Andre Villere testified that the school property was being renovated as Holy Cross High School at the time of the burglary, and that he did not give defendant permission to enter and remove the copper pipe from the building. The defense failed to present any evidence to support defendant’s contention that he was given permission to enter and remove the copper pipe from the school property.

1 sViewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of unauthorized entry into a place of business beyond a reasonable doubt.

DECREE.

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

CONVICTION AND SENTENCE AFFIRMED.

      . On May 9, 2007, Roger Bailey pleaded guilty to simple burglary. He was sentenced lo serve two years at hard labor with credit for time served.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Wilbert VANBUREN.
    No. 2008-KA-0824.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2008.

      Keva Landrum-Johnson, District Attorney, David S. Pipes, Jr., Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR.)
   MAX N. TOBIAS, JR., Judge.

hOn 31 January 2007, the state filed a bill of information charging the defendant, Wilbert C. Vanburen (“Vanburen”), with possession of cocaine, a violation of La. R S. 40:967 C(2). At his arraignment on 5 February 2007, Vanburen pled not guilty. On 25 June 2007, the trial court denied his motion to suppress the evidence and found probable cause. On 31 July 2007, a jury found Vanburen guilty as charged. The state filed a multiple bill on 16 October 2007 to which Vanburen pled not guilty. On 17 October 2007, the trial court denied Vanburen’s motions for new trial, post-judgment verdict of acquittal and to quash the multiple bill. On that same day, the court sentenced Vanburen to ten years in the Department of Corrections without benefit of probation or suspension of sentence as a third offender, and granted Vanburen’s motion for appeal.

STATEMENT OF FACT

New Orleans Police Department (“NOPD”) Criminalist, Officer William Giblin, testified that he tested the white substance retrieved by officers at the time of Vanburen’s arrest and determined that the substance was cocaine.

| ¿Officer Octavio Baldassaro, Jr., a nine-year veteran of the NOPD, testified that on the night of 21 July 2006, he was assigned to the Special Operations Division along with his partner, Officer Chad Gag-non. They were patrolling in a marked police unit in the area of North Tonti and St. Philip Streets, an area of the city of New Orleans known as a high crime area. Officers Steven Keller and Travis Ward were also patrolling the same area in a separate police unit.

Officer Baldassaro observed the defendant standing in front of 2422 St. Philip Street with three or four other people. He described the lighting as good- — street lights and lighting from neighboring houses. When Vanburen spotted Officers Keller and Ward approaching, he reached into his right front pants pocket, dropped an object to the ground and began walking away from the two officers in Officer Bal-dassaro’s direction. When Vanburen saw Officer Baldassaro, he stopped and looked around. Based upon observation and experience, Officer Baldassaro decided to investigate. He and Officer Gagnon exited their vehicle. Officer Gagnon detained Vanburen while Officer Baldassaro retrieved the object he had seen the defendant discard. The object was a plastic bag containing crack cocaine. The officers arrested Vanburen and placed the contraband with Central Evidence and Property of the NOPD.

Officer Gagnon testified that he was Officer Baldassaro’s partner and on patrol with Officer Baldassaro on the night of the defendant’s arrest. He explained that he and Officer Baldassaro were in the area because of a rash of narcotics and weapons violations. Officer Gagnon stated that he was about one-half block away from Van-buren when he witnessed Vanburen reach into his pocket and discard an ¡¡¡object. Vanburen appeared to be focusing on Officers Keller and Ward as he discarded the object. Officers Gagnon and Baldassaro exited their police unit. Officer Baldassa-ro retrieved the discarded object. Upon being shown the object by Officer Baldas-saro, Officer Gagnon placed Vanburen under arrest.

Officer Travis Ward testified that he was in the vicinity of the defendant’s arrest on the night in question but played no part in Vanburen’s arrest.

Ms. Jeanie Donovan, a university student and intern with the Public Defender’s Office, testified for the defense. She told the court that she measured the 2400 block of St. Philip Street. From the curb at North Tonti Street to 2422 St. Philip Street, where the drop allegedly took place, she measured a distance of 185 feet. In making the measurement, she noted that only two street lights were present in the 2400 block of St. Philip Street. Both street lights stood on the opposite of the street from where the alleged drop took place, with the closest light standing 60 feet from the alleged drop site. Ms. Donovan further indicated that she visited the 2400 block of St. Philip Street the night before trial and found that none of the houses on the side of the street where the drop occurred had lights. She added that on the night before trial, she and defense counsel, Josh Perry, reenacted the scene of the alleged drop. She positioned herself inside her vehicle, which was parked in the spot where the officers testified they were when they saw Vanburen drop the contraband. Mr. Perry dropped a key chain first and then a white ball of paper. Ms. Donovan was unable to see either object fall from the vantage point the police claim they saw Vanburen drop the contraband. The street lights were on and a full moon was present the night of the reenactment. Ms. Donovan admitted under cross-examination that the only measurements she performed and the flighting observations she made were on the night before the trial, not the night of the incident.

ERRORS PATENT

A review for errors patent reveals none exist.

DEFENSE COUNSEL ASSIGNMENT OF ERROR NUMBER 1

As error, the defense first contends the trial court erred in failing to grant its motion for continuance.

Vanburen had issued a subpoena duces tecum to the NOPD for production of mobile data terminal records accessed by the arresting officers at the time of Vanbu-ren’s arrest. Vanburen argues that had the trial court granted the continuance, he would have been able to learn the identities of the other individuals who were arrested the same night at the same location and discover the source of the contraband the police contend he discarded.

La.C.Cr.P. art. 707 provides in part that after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice. In State v. Martin, 93-2085, p. 10-11 (La.10/17/94), 645 So.2d 190, 197, the Court stated that “[t]he decision to grant or deny a continuance lies within the wide discretion of the trial court.” In State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on reh’g), this court declared that “[t]he decision to grant or deny a motion for continuance rests with the sound discretion of the trial judge, and a reviewing court will not disturb such a | .^determination absent a clear abuse of discretion.” See also La.C.Cr.P. art. 712 (“[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”) A showing of specific prejudice is required to demonstrate that the trial court erred in denying the continuance. State v. Holmes, 590 So.2d 834 (La.App. 4th Cir.1991). In order for a defendant to show prejudicial error, one must demonstrate that the testimony of the absent witness would (a) be favorable to the defense and (b) indicate the possibility of a different result if the witness had testified. La.C.Cr.P. art. 731; State v. Jefferson, 04-1960, pp. 33-34 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, 601.

In denying the motion for continuance, the trial court noted that there was no likelihood that any other individuals present at the time of Vanburen’s arrest would waive their constitutional rights and testify that he/she possessed the narcotics rather than Vanburen. Specifically, the trial judge noted:

The court on reflection as it relates to this matter, has determined that it’s sufficient for the jury to hear that there were other people who were in that area, who may have been stopped, and it is a so-called high drug area. The Court does anticipate and is aware of your possible argument to the jury that anyone else, including any other particular suspects who have been stopped in the moments before or a short period of time before, or even a day before, may be responsible for the discarding of what is alleged to be cocaine in that area, cocaine allegedly linked to the defendant. The court is further aware that if any of these persons were discovered by name, that in all likelihood they would invoke the Fifth Amendment privilege and would not be willing to admit that it was they and not the defendant, Mr. Van Burén, who discarded the cocaine.

Additionally, in view of the testimony of Officers Baldassaro and Gagnon, it is unlikely Vanburen would have discovered the identities of these other persons | ^because Officers Baldassaro and Gagnon both testified that they did not question anyone else on the scene.

Further, Vanburen has not been denied a defense. Defense counsel argued to the jury that multiple persons were present on the scene on the night of the incident and at least one other individual was arrested for “throwing down” contraband.

Based on the foregoing, we find that the trial judge did not abuse his discretion in denying Vanburen’s motion for continuance. Thus the assignment of error has no merit.

DEFENSE COUNSEL ASSIGNMENT OF ERROR NUMBER 2

In the second assignment of error, defense counsel argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. Specifically, Vanburen contends that the evidence is insufficient to support the verdict. He claims he was convicted entirely on the uncorroborated testimony of two NOPD officers out to “make cases.”

In State v. Jones, 06-0485 (La.App. 4 Cir. 11/21/06), 952 So.2d 705, aff'd., State v. Jones, 07-1052 (La.6/3/08), 988 So.2d 95, this court noted:

“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” La. C.Cr.P. art. 821(B). A motion for post verdict judgment of acquittal raises the question of sufficiency of the evidence. See State v. Thibodeaux, 98-1673, p. 12 (La.9/8/99), 750 So.2d 916, 926. Evidence is deemed to have been sufficient when, after viewing the evidence in the light most favorable to the prosecution, it is determined that any rational trier of fact could have found the essential elements of the l7crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132.

Jones, 06-0485, pp. 3-4, 952 So.2d at 707.

In the case at bar, Vanburen was convicted of possession of cocaine, which makes it unlawful for any person to knowingly or intentionally possess a controlled dangerous substance. To convict an individual for possession of a controlled dangerous substance, the state must prove that the accused knowingly possessed it. State v. Handy, 00-0051, p. 3 (La.App. 4 Cir. 1/24/01), 779 So.2d 103, 104. Officers Baldassaro and Gagnon testified that they witnessed Vanburen reach into his pocket and discard an object. Subsequent testing by the state confirmed that the object discarded was cocaine. The evidence indicates that Vanburen knowingly possessed the contraband and then discarded it.

Vanburen further argues that Officers Baldassaro’s and Gagnon’s testimonies are discredited by his defense investigator’s testimony. We disagree. The defense expert, Ms. Donovan, corroborated the officers’ testimony that Vanburen was arrested in an area lit by two street lights. Moreover, Ms. Donovan admitted that she had no investigative expertise and that her calculations were made the night before trial, not at the time of the offense. Additionally, just because Ms. Donovan’s untrained eye could not see the “test drop” does not mean that two police officers trained to spot criminal activity could not have seen Vanburen discard the contraband.

Finally, Vanburen contends that his motion should have been granted because the state presented a paucity of evidence in his case in comparison to other cases in which trial courts have denied motions for new trial based upon much more evidence.

[sThe argument is baseless. Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’ testimony, if believed by the factfinder, is sufficient to support a factual conclusion. State v. Marshall, 04-3139 (La.11/29/06), 943 So.2d 362, cert. denied, — U.S. -, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La. 1984). The jury chose to credit the testimony of the state’s witnesses and not the testimony of the defense’s witness. The jury’s determination was not unreasonable in light of the evidence in this case. The assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

In the first of two pro se assignments of error, Vanburen complains that his multiple offender adjudication is based upon two flawed guilty pleas. He argues four reasons why his 14 August 2001 guilty plea to possession of crack cocaine in case number 422-786 and 26 October 2004 guilty plea to possession with intent to distribute cocaine in case number 452-657, are defective because there is (a) no evidence that he was represented by counsel at either prior guilty plea; (b) no indication the judge addressed him personally before he waived his rights prior to either plea; (c) no indication either guilty plea was knowing and voluntary; and (d) the state failed to produce a “perfect transcript” of the plea colloquy in either of the cases.

In State v. Alexander, 98-1377 (La.App. 4 Cir. 2/16/00), 753 So.2d 933, we held:

| sLSA-R.S. 15:529.1 D(l)(b) states that the district attorney has the burden of proving beyond a reasonable doubt any issue of fact and that the presumption of regularity of judgment shall be sufficient to meet the original burden of proof. In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Supreme Court stated:
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than the “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. [Footnotes omitted].

Alexander, 98-1377 at pp. 5-6, 753 So.2d at 937.

In the case at bar, the state presented a minute entry reflecting that on 14 August 2001, in case number 422-786, Wilbert C. Vanburen, attended by counsel, pleaded guilty as charged to a violation of La. R.S. 40:967 B(l) and was sentenced to two years, with the sentence to run concurrently with all other sentences. The minute entry reflected that, prior to entering the plea, the defendant was interrogated by the court as to his right to trial by jury, his right to face his |inaccusers, his right against self-incrimination, and his right to an appeal. The defendant answered in the affirmative and announced to the court that he understood those rights. The docket master in that case reflects the 14 August 2001 guilty plea and that the defendant was sentenced to two years. The state also introduced a plea of guilty form in case number 422-786, dated 14 August 2001, reflecting that a Wilbert C. Vanbu-ren, represented by counsel, waived his right to a trial by judge or jury, waived his right to an appeal, waived his right to face and cross-examine the witnesses against him, waive his right to compulsory process, and waived his right against self-incrimination; he pleaded guilty to possession with intent to distribute cocaine.

As to Vanburen’s 26 October 2004 guilty plea to possession with intent to distribute cocaine in ease number 452-657, the state introduced the docket master which reflects that on 26 October 2004 Wilbert C. Vanburen, attended by counsel, pled guilty as charged to a violation of La. R.S. 40:967 C(2) and was sentenced to three years suspended with three years active probation with the conditions he participate in drug court program and pay a $1,300.00 a fine. The state also introduced a plea of guilty form in that case, dated 26 October 2004, reflecting that Wilbert Vanburen, represented by counsel, waived his right to a trial by judge or jury, waived his right to an appeal, waived his right to face and cross-examine the witnesses against him, waived his right to compulsory process, and waived his right against self-incrimination; he pleaded guilty to possession of crack cocaine.

Although the state during the habitual offender adjudication herein did not produce a colloquy for either of Vanburen’s guilty pleas, the state did introduce documentation as to both guilty pleas showing that the defendant was represented by counsel, was advised of his rights, informed of the nature of offenses, | nrepresented that he had not been forced, threatened, or coerced in any way to render either guilty plea, and that he understood the nature of proceedings, and signed waiver of rights forms indicating the sentences he was to receive, and the trial court found that there was a factual basis for each guilty plea. La.C.Cr.P. art. 556.1 A(l). Moreover, before adjudicating Vanburen as a third offender, the trial judge herein thoroughly reviewed all of the documentation presented by the state and decided that it comported with Boykin provisions. This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

Lastly, Vanburen argues the trial court erred in failing to vacate his ten year sentence as a second offender prior to imposing sentence on him as a third offender for a manslaughter conviction.

The record indicates that immediately after the trial judge imposed sentence for the conviction which is the subject of this appeal, he also sentenced Vanburen as a third offender for the subsequent manslaughter conviction. As the defendant’s sentencing for manslaughter has no bearing on this appeal, the assignment of error is without merit. If an error in the defendant’s sentencing for manslaughter exists, that issue should be addressed in his appeal of his manslaughter conviction and sentence, not in this appeal. This assignment is without merit.

DEFENSE MOTION TO CORRECT RECORD

112Pefense counsel has filed a Motion to Correct Record in which he indicates that as he prepared his brief in this case, he noticed that documents pertaining to another of the defendant’s convictions were misfiled in this record. Because the record on file in this appeal is only a copy of the original, we remand this matter to the trial court to act upon Vanburen’s Motion to Correct Record.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Vanburen.

AFFIRMED WITH ORDER.

      . Throughout the record of these proceedings, the defendant's surname is interchangeably spelled “VanBuren” and "Vanburen”. As "Vanburen” is the spelling the defendant uses on his pro s e brief, that spelling is used.

      . Mobile data terminal records are computer generated logs officers are required to keep as to field interviews.

      . Robert (Joshua) McFarland was that other person. He was accused of discarding a gun. He did not testify at Vanburen’s trial.

      . In case number 469-335 of Orleans Parish Criminal District Court, the defendant was convicted of manslaughter. Vanburen is presently appealing that conviction and sentence, which bears number 2008-KA-0534 on this court’s docket.


author: JAMES F. McKAY III, Judge.

text:
    Paul Adolfo BELLO v. Martha Moncure Stout BELLO.
    No. 2008-CA-0260.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2009.

      David M. Prados Melanie Lockett, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant.
    Pamela R. Gibbs, New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hThe plaintiff, Paul Adolfo Bello, appeals the trial court’s granting of an exception of no cause of action in favor of the defendant, Martha Moncure Stout Bello, and the dismissal of his petition. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On April 19, 1997, Paul Adolfo Bello and Martha Moncure Stout were married. Prior to their marriage, the parties signed a marriage contract creating a separate property regime on April 17, 1997. However, on February 9, 2005, pursuant to Louisiana Civil Code Article 2329, the parties entered into an agreement entitled: “PARTIAL ESTABLISHMENT OF COMMUNITY AND MODIFICATION OF MARRIAGE CONTRACT OR MATRIMONIAL CONTRACT.” This document purported to do two things: create a “Community of Acquets and Gains” between Mr. and Mrs. Bello for all immovable property acquired by them; and “transfer, one to the other” Mr. Bello’s separate | ¿property located at 3117 State Street Drive in New Orleans “with the stipulation that it shall be a part of the community of acquets and gains.”

On May 9, 2005, Mr. Bello filed a revocation of donation and transfer of immovable property, in which he formally revoked the donation and transfer of the immovable property for reasons of Mrs. Bello’s ingratitude. On May 12, 2005, Mrs. Belo filed a petition for divorce and the parties were divorced on January 19, 2006. On February 23, 2006, Mr. Bello filed a petition for revocation of donation to revoke his transfer of 3117 State Street Drive. Thereafter, on November 2, 2007, Mrs. Bello filed an exception of no cause of action, claiming that Mr. Bello transferred 3117 State Street Drive into the community by way of a matrimonial contract, not through an act of donation, and that the marriage contract cannot be set aside unilaterally. On January 18, 2008, the trial court granted Mrs. Bello’s exception of no cause of action and dismissed Mr. Bello’s petition with prejudice. It is from this judgment that Mr. Bello now appeals. DISCUSSION

On appeal, Mr. Bello raises the following assignment of error: the trial court erred when it granted Mrs. Bello’s exception of no cause of action because it failed to acknowledge Mr. Bello’s donation under Louisiana Civil Code Article 2343.1 of his separate immovable property to Mrs. Bello in order to make it community property and be governed under the rules and regulations of the newly created community of acquets and gains.

|aIn reviewing a trial court’s ruling sustaining an exception of no cause of action, an appellate court should subject the case to de novo review because the exception raises a question based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346, 349. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Id. at 348. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Id. at 348-349. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant at 349.

In the instant case, Mr. Bello filed a petition to revoke a donation due to ingratitude on the part of his wife. The factual background of the case is straightforward. The parties entered into a matrimonial contract during their marriage, which created a legal regime with respect to immovable property acquired by the couple. The document also transferred Mr. Bello’s separate | ,⅜property located at 3117 State Street Drive to Mrs. Bello and changed its nature to community property. Mr. Bello later sought to revoke the transfer and the parties were ultimately divorced.

3117 State Street Drive was clearly Mr. Bello’s separate property before February 9, 2005. It in no way belonged to Mrs. Bello. It therefore could not have been disposed of by her. On February 9, 2005, it became community property. How did it become community? Although the matrimonial contract was signed by both parties, the action transferring the property had to be on the part of Mr. Bello. Based on the document that created the limited community and effectuated the transfer, the transfer was not onerous but gratuitous. According to Louisiana Civil Code Article 1467: “Property can neither be acquired nor disposed of gratuitously, unless by donations inter■ vi-vos or mortis causa, made in the forms hereafter established.” According to Louisiana Civil Code Article 1536: “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” In the instant case, the strict form requirements for a donation inter vivos of an immovable are met, that is it be by authentic act before a notary and two witnesses. See Brown v. Brown, 635 So.2d 255, (La. App. 3 Cir.1994). We are aware of no codal authority or jurisprudence which states that the document which gratuitously disposes of immovable property must be formally entitled “act of donation.” Accordingly, the transfer of 3117 State Street Drive had [r,to be by a donation inter vivos and a donation can be revoked. See La. C.C. arts. 1559 and 1560.

Based on the facts alleged in Mr. Bello’s petition, it appears he has stated a cause of action for revocation of a donation on the grounds of ingratitude. Whether Mr. Bello can prevail on this claim is a question for the trial court.

CONCLUSION

For the foregoing reasons, the trial court’s granting of Mrs. Bello’s exception of no cause of action is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.