author: WALTER J. ROTHSCHILD, Judge.

text:
    Stacy DUHE, Individually and on Behalf of her Minor Child Jermaine Duhe. v. STATE of Louisiana, City of Harahan, City of Kenner, Harry Lee, Sheriff of Jefferson Parish.
    No. 09-CA-290.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Writ Denied Feb. 5, 2010.

      John B. Wells, Attorney at Law, Slidell, Louisiana, for Plaintiff/Appellant.
    Keith M. Detweiler, John D. Carter, Gerald J. Nielsen, Attorneys at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .¿Plaintiff appeals from a summary judgment rendered in favor of defendant, the City of Kenner. For the reasons which follow, we affirm.

Stacy Duhe filed the instant petition for damages on March 11, 1999 against several government entities alleging that she was improperly arrested and incarcerated on two separate occasions and suffered damages as a result. Plaintiff alleges that the first arrest occurred on March 12,1998 when she was stopped for a traffic violation by the Harahan Police Department. During the course of the stop, she was arrested on an outstanding warrant for a probation violation, and she was incarcerated in the Jefferson Parish jail. It was subsequently discovered that plaintiff was not the probation violator, but that her sister, Andrea Duhe, had improperly used her identity during a guilty plea for prostitution and possession of a controlled dangerous substance. Plaintiff was released from custody and the Jefferson Parish District Attorney moved to modify the outstanding charges to read Andrea |sDuhe rather then Stacy Duhe. However, the name on the warrant was not immediately corrected.

Plaintiff further alleges that on August 18, 1998, she was stopped by Detective Brian McGregor of the Kenner Police Department for suspicious activity and was arrested based on an outstanding warrant for a probation violation. According to the petition, the stop was without probable cause and the arrest occurred in the presence of plaintiff’s young son, Jermaine. Plaintiff was incarcerated for several hours at the Kenner Police Department, was treated very poorly while in custody, and was forced to walk home when she was released. She alleged that she suffered humiliation, stress and distress as a result of both wrongful arrests, and that her son Jermaine suffered emotional stress and trauma as a result of the second arrest.

Plaintiff also alleged that the warrant remained outstanding until February of 1999, and that she feared another arrest and incarceration during this time period. She alleged she incurred $880.00 in attorney fees to have the warrant cancelled.

Plaintiff named as defendants in this action the State of Louisiana, through the Probation and Parole Office of the Department of Corrections, the City of Harahan, the City of Kenner, and Jefferson Parish Sheriff Harry Lee. She alleged that the State and the Jefferson Parish Sheriffs office failed to timely cancel the warrant in her name and learning it was improperly issued. She further alleged a violation of her constitutional rights by the City of Kenner’s failure to verify the correctness of the warrant which resulted in an unlawful incarceration.

|4In January of 2004, plaintiff settled with and dismissed with prejudice the City of Harahan. On April 3, 2008, the City of Kenner filed the present motion for summary judgment on the basis that the Ken-ner police detective had reasonable basis for the stop of plaintiff and that there was no violation of her constitutional rights. Defendant attached to its motion a copy of the deposition of Detective Brian McGre-gor, a copy of plaintiffs deposition and a copy of the police report from the Kenner incident dated August 18,1998.

Plaintiff opposed the summary judgment and attached copies of her own deposition, as well as the deposition of Detective McGregor and a copy of the deposition of Janet Cockren, a correctional officer at the Kenner jail on the date plaintiff was arrested.

Following a hearing, the trial court took the matter under advisement and, on November 10, 2008, rendered judgment in favor of the City of Kenner. This appeal followed.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991); Pizani v. Progressive Ins. Co., 98-225, p. 3 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122, p. 4 (La.App. 5 Cir. 6/28/05), 907 So.2d 804, 806, writ denied, 05-1976 (La.2/3/06), 922 So.2d 1184.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to | ¿judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Mitchell v. Kenner Regional Medical Center, 06-620 p. 5 (La. App. 5 Cir. 1/30/07), 951 So.2d 1193, 1196. Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id., Hyman v. East Jefferson General Hosp., 04-1222, pp. 3-4 (La.App. 5 Cir. 03/01/05), 900 So.2d 124, 126.

In the present case, defendant based its motion for summary judgment on an absence of factual support for plaintiffs claims that the actions of the Kenner police detective were unreasonable or that any of these actions violated plaintiffs constitutional rights. Defendant contends that the evidence presented shows a reasonable basis for the stop and arrest of plaintiff on the date in question. Further, with regard to plaintiffs allegations that the City of Kenner was negligent in arresting her on an erroneous warrant, defendant contends that it has no authority to modify or correct an arrest warrant issued by another governmental entity and that Detective McGregor had no reason to believe that the arrest warrant was issued in error.

|Jn Detective McGregor’s deposition, he testified that on August 18, 1998, he was driving an unmarked police vehicle on 27th Street in Kenner looking for a burglary suspect. He observed plaintiffs vehicle in the middle of the street with another subject leaning into the window of the vehicle. Based on his prior experience in this high-crime area, Detective McGregor believed that plaintiff may have been engaged in narcotics activity. He then watched her vehicle pull off and drive for two blocks, stop and wait and then turn around and drive back in the opposite direction. At this point, Detective McGregor stopped plaintiffs vehicle and asked for her driver’s license, registration and insurance information. Plaintiffs son was in the vehicle, and the detective stated that it is common in narcotics activity to be accompanied by a child. Plaintiff was unable to produce any of the requested items, and Detective McGregor subsequently learned that although plaintiff had a valid driver’s license, there was no insurance on the vehicle. Plaintiff was then issued citations for these infractions.

In addition, Detective McGregor learned that there was an arrest warrant for plaintiff from Jefferson Parish, and after this was verified, plaintiff was placed under arrest. Plaintiff was given the opportunity to call someone to pick up her son, but she chose to leave him with someone in the neighborhood. Detective McGregor admitted that plaintiff told him there was a problem with name on the warrant, but as plaintiff had no identification and the warrant was properly verified by Jefferson Parish, she was brought to the Kenner jail. The employees of the jail were told to investigate whether the warrant had been cancelled or modified in any way. The evidence indicates that plaintiff was released from the city jail within 5 hours of her arrest.

|7After a review of the record in this case, we fail to find factual support for plaintiffs allegations that the Kenner police detective had no reasonable basis for the stop and arrest of plaintiff. The detective’s testimony that plaintiffs was engaged in suspicious activity was supported by the record. The detective’s investigatory stop revealed that plaintiff failed to have pertinent information in her possession, and she did not contest the citation issued for this infraction.

Further, once the detective received information regarding the outstanding warrant in plaintiffs name, he had reasonable grounds to place her under arrest. Although it was subsequently discovered that the warrant was erroneously issued in plaintiffs name, there was no evidence submitted that the City of Ken-ner had responsibility for modification of an erroneous warrant issued by another government entity. Under these circumstances, there is no factual support for plaintiffs claim that the Kenner detective had a duty to verify the correctness of the name on the warrant prior to taking her under arrest. In addition, the record shows that once plaintiff arrived at the jail, the employees were told to investigate plaintiffs claim that the warrant should not have been issued in her name. Once this information was obtained by the jail employees, plaintiff was released.

Further, although plaintiff alleged that she received improper treatment while she was incarcerated, plaintiff failed to submit sufficient proof of this claim to sustain her burden at trial. We also find no factual basis for plaintiffs claim that the City of Kenner breached a duty of care owed to her son, and plaintiffs conclusory allegations regarding damages suffered by her son are insufficient to defeat summary judgment in this case.

1 «Accordingly, for the reasons assigned herein, we find no error in the ruling of the trial court that there are no genuine issues of material fact regarding the City of Kenner’s liability and that the City of Kenner is entitled to judgment as a matter of law. The judgment is therefore affirmed.

AFFIRMED.

      . The record before us indicates that the State of Louisiana, through the Probation and Parole Office of the Department of Corrections and Jefferson Parish Sheriff Harry Lee remain as defendants in this litigation.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alton MARKS.
    No. 09-KA-260.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree Valenti, Appellate Counsel, Vincent Paciera, Trial Counsel, Assistant District attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Michael J. Rocks, Attorney at Law, Gretna, LA, for Appellant, Alton Marks.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2On July 7, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Alton Marks, with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Defendant pled not guilty at arraignment.

Defendant filed various pre-trial motions, including a motion to suppress evidence. The Court heard and denied the motion to suppress evidence on August 22, 2008.

Defendant was tried by a twelve-person jury on October 22 and 23, 2008. The jury returned a verdict of guilty as charged. On November 6, 2008, the trial court sentenced defendant to 15 years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant filed a timely motion for appeal, which was granted on December 5, 2008.

The State filed a habitual offender bill of information alleging defendant to be a second felony offender. On March 11, 2009, defendant entered an admission to the allegations in the habitual offender bill. The trial court vacated the original sentence and imposed a habitual offender sentence of 15 years at hard labor, without | ^benefit of parole, probation, or suspension of sentence. Defendant has not appealed his habitual offender adjudication and sentence.

Facts

At trial, defendant stipulated that he was the same person who was previously convicted of attempted possession of heroin, a violation of La. R.S. 40:966 and 40:979, in case number 468-029 in Orleans Parish Criminal District Court. The trial court admitted State’s Exhibit 1, in globo, a certified copy of the conviction in Orleans Parish case number 468-029. The documents in that exhibit show defendant pled guilty to the offense on August 21, 2007, that he received a suspended sentence of two years, and that he was placed on one year of active probation and one year of inactive probation.

Kawauna Ceasor testified at trial that she is a probation officer with the State of Louisiana’s Division of Probation and Parole. She is assigned to the Jefferson Parish district. Although defendant’s case was originally assigned to Patrick Green in the Orleans Parish District, his supervision was transferred to Ms. Ceasor after he changed his physical address to 1665 Alexander Street, Apt. A in Terrytown on August 31, 2007.

Ms. Ceasor testified that her records show defendant was advised of the conditions of his probation when he initially reported to Mr. Green on August 27, 2007. Among those conditions was the requirement that defendant not be in any residence, structure, or vehicle that contains a firearm. Further, a probationer is prohibited from storing weapons on his premises, and he must ensure that visitors do not bring weapons into his home.

Ms. Ceasor testified that she visited defendant at the Alexander Court address on October 10, 2007, and he allowed her into the apartment. He stated he was on home incarceration with a 6:00 p.m. curfew, and that he was complying |4with the restrictions imposed by Orleans Parish Drug Court. Ms. Ceasor visited defendant again at the Alexander Court apartment on January 8, 2008, and defendant again allowed her into the residence. There were some occasions when Ms. Ceasor attempted to make official visits to the apartment, and defendant was not at home. In those instances, Ms. Ceasor left her card, and defendant responded by telephoning her.

Ms. Ceasor testified that she spoke with defendant by telephone on April 24, 2008, and he informed her he was having trouble accessing his mailbox at 1665 Alexander Court, and that he wanted Ms. Ceasor to mail future correspondence to his mother’s Charbonnet Street address. He also indicated that he had no other changes to report, including his physical address.

In January, 2008, Ms. Ceasor was in an accident, and limited to desk duty. While she was on limited duty, Agent Bryan Poison assisted her in monitoring defendant’s ease. Mr. Poison testified that he had tried to contact defendant at the Alexander Court apartment three times since January of 2008. When Mr. Poison visited 1665 Alexander Court, Apartment A, on May 16, 2008, at 11:40 a.m, he knocked at the door, and Danielle Jones responded. Mr. Poison identified himself as a probation officer and explained that he was there as a courtesy to Ms. Ceasor to supervise the defendant. Ms. Jones responded that defendant had already left for a drug court meeting in New Orleans. Mr. Poison stepped inside the apartment to look around.

As he walked into the apartment, he could see into every room on the first floor. Mr. Poison noticed an open pantry door next to the kitchen. On one of the shelves inside the pantry, Mr. Poison saw four boxes of ammunition inside another open cardboard box. Based on experience, he knew that two of the boxes contained AK47 ammunition, one box was .9 millimeter hollow point, and the | ¡..remaining box was .45 caliber hollow point ammunition. Mr. Poison testified that the ammunition caused him concern, since a probationer is not allowed to have a dangerous weapon or ammunition. He stated that his visit turned from an observation into a more thorough investigation once he saw the ammunition.

Next, in order to protect himself and the child that resided in the apartment, Mr. Poison went upstairs to check the master bedroom. He opened the top drawer of a dresser next to the bed and found another box of .45 caliber hollow point bullets, with 11 rounds missing.

At that point, Ms. Jones became very nervous. She was speaking to defendant on the telephone, and she gave the phone to Mr. Poison. Mr. Poison told defendant why he was at the apartment, and asked defendant to come there. Defendant said he could not go there because he had just finished with drug court, and he was on his way to work. Defendant telephoned the apartment two more times and stated that he was at work, but he refused to give Mr. Poison the address of his jobsite.

As Poison was finishing his third telephone conversation with defendant, Ms. Jones headed toward the bathroom. Mr. Poison asked her to stop because he had not searched the bathroom yet, and, with five boxes of ammunition already found, he was concerned for his safety. Ms. Jones refused to comply. Mr. Poison handcuffed her, placed her on the end of the bed, and told her to stay there. He told her she was not under arrest, but was being detained for his safety as well as her own.

Mr. Poison testified that he opened a closet door in the bedroom, and immediately saw the butt of a gun on the top shelf, partially covered by a pair of jeans and some hats. He took the gun and cleared it. There were ten rounds in the magazine and one in the chamber. The bullets were .45 caliber hollow points.

| fiMr. Poison asked Ms. Jones several times whether she knew who owned the gun, and she said she did not. Mr. Poison asked Ms. Jones who was living in the apartment, and she responded that no one lived there except defendant, herself, and her child.

Mr. Poison testified that he continued to search, but did not seize anything else. He called 9-1-1 and asked for a Jefferson Parish deputy. When the deputy ran a trace on the gun, the records did not show that the gun was reported stolen. Mr. Poison identified State’s Exhibit 12 as a photograph of the .45 caliber handgun he seized.

Captain Ralph Dunne of the Jefferson Parish Sheriffs Office testified he is the commander of the Jail Management Section. He maintains records pertaining to arrestees and was formerly the supervisor at Intake Booking for the Jefferson Parish Correctional Center. Captain Dunne identified State’s Exhibit 5 as an appearance bond that defendant completed and signed at the correctional center upon his release from the facility on March 10, 2008. Captain Dunne noted that the address given on the bond is 1665 Alexander Court, Apartment A, in Gretna. He stated that the signer writes the address on the form. There is a provision on the form that states the signer swears, under penalty of law, that the information is true and correct, and that the signer is obligated to notify the court of any change of address.

During his cross-examination of Captain Dunne, defense counsel produced Defense Exhibit 1. The officer identified it as a restraining order issued by a criminal commissioner against defendant in an unrelated domestic violence matter. The order commands defendant to stay away from 1665 Alexander Court, Apartment A. The restraining order was issued on February 29, 2008, and the expiration date was listed as May 29, 2008.

17Panielle Jones testified for the defense at trial. She stated she lived with defendant at 1665 Alexander Court, Apartment A from October, 2007 through February, 2008. Her five-year-old daughter also lived there. Defendant did not rent the apartment with her, but he did stay there. In late February, 2008, Ms. Jones had a falling out with defendant. As a result, defendant was removed from her home and placed under a restraining order that prohibited him from going to her apartment.

Ms. Jones testified that in May of 2008, a probation officer came to her house and asked her if defendant was there. She told him defendant did not live there anymore. The probation officer asked her if he could look around the apartment, and she said, “[F]ine.” When the officer began searching her things, she told him to stop. The officer became upset and handcuffed her. He told her if she did not allow him to do his job, she would go to jail for obstruction of justice.

Ms. Jones testified that the probation officer found bullets in the downstairs pantry. He found a gun under some of defendant’s clothes. Ms. Jones testified that her child’s father had given her the gun and ammunition for protection after her neighbor’s house was burglarized. She got the gun sometime in early to mid-May of 2008. Ms. Jones testified that when the probation officer asked her who the gun belonged to, she told him it was hers.

On cross examination, Ms. Jones stated that she had never fired the weapon. She also stated that she did not know how to load the bullets into the weapon.

In his first assignment of error, defendant contends that the State failed to prove his guilt beyond a reasonable doubt, arguing that the State did not prove he had constructive possession of the gun found in the Alexander Court apartment. The |sState responds that strong circumstantial evidence showed defendant was residing at the apartment at the time of the search, and that he had the requisite general intent to possess the weapon. In his reply brief, defendant argues the circumstantial evidence was not sufficient to prove guilty knowledge.

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.

In order to convict a defendant of violating La. R.S. 14:95.1, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense. At trial, the parties stipulated to defendant’s prior felony conviction. Here, defendant does not challenge the evidence as to his prior conviction or the ten-year cleansing period.

On appeal, defendant disputes the sufficiency of the evidence of possession and intent, i.e., guilty knowledge. Constructive possession is sufficient to satisfy the possessory element of La. R.S. 14:95.1. The question of whether there is sufficient “possession” to convict is dependent on the facts of each case. Constructive possession of a firearm exists when a firearm is subject to a person’s dominion and ^control. Even where a person’s dominion over the weapon is only temporary in nature and control is shared, constructive possession exists. But the mere presence of a defendant in the area of the seized contraband does not, by itself, prove he exercised dominion and control over the item such that it was in his constructive possession.

To establish possession of a firearm by a convicted felon, proof is required that the offender was aware that a firearm was in his presence, and that he intended to possess the weapon. Such guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence.

Defendant argues the evidence at trial did not connect him with the gun found in the Alexander Court apartment. He maintains that he was not a lessee; and the evidence did not show he lived in the apartment after January of 2008, when his probation officer, Ms. Ceasor, visited with him there. Defendant further notes that the restraining order, which was issued following his dispute with Ms. Jones, prohibited him from going to the apartment after February 29, 2008.

First, under the existing case law, a defendant does not to be co-lessee of an apartment to have constructive possession of contraband found in the apartment. Next, the testimony and evidence showed defendant lived there with Ms. Jones as early as August 31, 2007, when he reported it as his residence to Mr. Green, his Orleans Parish probation officer. Defendant allowed Ms. Ceasor into the apartment on October 10, 2007 and January 8, 2008. Further, defendant listed his address as Alexander Court on an appearance bond signed when he was released from the correctional center on March 10, 2008.

| |0On April 24, 2008, defendant reported to Ms. Ceasor that he was still living at the Alexander Court address. Further, defendant was monitored on house arrest at the Alexander Court residence.

Mr. Poison testified that, while he was at the Alexander Court apartment on May 16, 2008, Ms. Jones did not give him any reason to believe defendant was not currently living there. On the contrary, Ms. Jones told Mr. Poison that defendant had just left the apartment to go to drug court. Ms. Jones also told Mr. Poison that she lived in the apartment with her daughter and defendant. Further, Ms. Jones testified that she did not own the gun or know that the gun was in the apartment.

Furthermore, Mr. Poison stated that the gun was found in a bedroom closet, which also contained men’s clothing. More specifically, the gun was found under a large pair of men’s shorts and a pile of baseball caps. Ms. Jones stated during trial that the gun was under “Alton’s pants.”

Ms. Jones also testified at trial that defendant lived with her in the apartment at one time, but that he moved out in late February, 2008 after the couple had a falling out. She testified she obtained the gun from her daughter’s father, Darrell Keys. She stated that when Mr. Poison asked her who the gun belonged to, she told him it was hers. Ms. Jones also admitted that she did not take lessons in how to operate the gun; and when the prosecutor questioned her on cross-examination regarding how the gun worked, Ms. Jones could not show him. Ms. Jones stated that any discrepancy between her testimony and Mr. Poison’s testimony was caused by Mr. Poison being untruthful.

Here, the jury apparently found the testimony of the State’s witnesses to be more credible, and discredited Ms. Jones’s testimony that the gun was hers and that defendant did not live in her apartment after February, 2008. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, |nin whole or in part, the testimony of any witness. The credibility of witnesses will not be re-weighed on appeal. Based on the State’s evidence, the jury could have reasonably inferred that defendant was living at the Alexander Court apartment in circumvention of the restraining order, and that he knew the gun was in the bedroom closet.

Courts have generally found evidence of constructive possession when a gun is found in an area customarily occupied by the defendant. For instance, in State v. Jackson, 97-1246 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37, this Court held the evidence was sufficient to prove the defendant knowingly possessed the gun found in his bedroom under the mattress where he regularly slept. Despite the argument that other friends and relatives had stayed in the defendant’s bedroom during a recent visit, and the gun could have belonged to them, this Court found the evidence was sufficient to affirm the defendant’s conviction for possession of a firearm by a convicted felon.

In State v. Paul, 05-612 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 349-50, this Court found the State proved beyond a reasonable doubt that the defendant knowingly possessed a gun found between the pillows in the room where he slept when he stayed at the residence. Similarly, in this case, it appears the State put on sufficient evidence that defendant lived at the Alexander Court address at the time of the search, and that the gun found in the closet with his clothes was under his dominion and control.

Here, the State was required to prove that defendant had dominion and control over the gun. Our review reveals that the State provided 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 possession and intent, beyond a reasonable doubt.

12In his second assignment of error, defendant complains that the trial court erred in denying his motion to suppress evidence. He argues the evidence was suppressible because Mr. Poison had neither consent nor reasonable suspicion to enter the Alexander Court apartment. Defendant further contends that Mr. Poison’s discovery of ammunition in the kitchen pantry did not give rise to reasonable suspicion of criminal activity that would allow him to conduct a more thorough search of the residence. The State responds that Mr. Poison conducted a lawful search of the residence in furtherance of his duties as a probation officer, and that the gun was legally seized.

The Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by a specific exception to the warrant requirement. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving the admissibility of any evidence seized without a warrant.

This Court has recognized that:

[a]n individual on parole or probation does not have the same freedom from governmental intrusion into his affairs as does the average citizen. A probationer must necessarily have a reduced expectation of privacy, which allows for reasonable warrantless searches of his person and residence by his probation officer, even though less than probable cause may be shown.

Saulsby, 04-880, p. 4 (La.App. 5 Cir. 12/28/04), 892 So.2d 655, 657-58. The reduced expectation of privacy derives from the probationer’s conviction and his agreement to allow a probation officer to investigate his activities in order to confirm that he is [^abiding by the provisions of his probation. Id. Simply stated, a probationer’s freedom is conditioned upon the provisions of his probation.

A probationer has essentially the same status as a parolee. A parolee agrees to submit to unannounced visits from his parole officer as a condition of parole. While the decision to search must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search.

A probation officer, however, may not use his authority as a subterfuge to help another police agency that desires to conduct a search, but lacks probable cause. The parole or probation officer must believe the search is necessary in the performance of his duties and is reasonable in light of the total circumstances. In determining whether a warrantless search by a probation or parole officer was reasonable, the court must consider: 1) the scope of the particular intrusion; 2) the manner in which it was conducted; 3) the justification for initiating it; and 4) the place in which it was conducted.

At the hearing on defendant’s motion to suppress evidence, the State produced the testimony of probation officer Bryan Pol-son. Mr. Poison stated that he visited 1665 Alexander Court, Apartment A, in Gretna, on May 16, 2008, in order to assist defendant’s probation officer, Kuawana Ceasor. Mr. Poison had been to the apartment on three or four other occasions, but no one had responded when he | uknocked on the door. This was intended as a supervisory visit, since defendant had not been seen in four months. A copy of defendant’s probation record, introduced at trial, shows defendant was instructed that he was required to submit to a home visit by his probation officer “each and every month” as a condition of his probation.

Mr. Poison testified that defendant’s probation file indicated he had been using the Alexander Court apartment as his official address. When Mr. Poison knocked on the door this time, a woman asked who was there. He responded that he was a probation officer.

Several moments passed, and Danielle Jones opened the door. She questioned Mr. Poison about who he was and what he was doing there. He explained that he was a probation officer, and he was conducting a courtesy supervision of defendant as a favor to Ms. Ceasor, defendant’s assigned probation officer. Ms. Jones then opened the door wider, and Mr. Poison stepped inside the apartment. Ms. Jones told Mr. Poison that defendant was not in the apartment at that time. When Mr. Poison asked Ms. Jones who lived in the apartment, she told him that only she, her daughter, and defendant lived there.

During a cursory walk-through on the first floor of the residence, Mr. Poison noticed the door to the kitchen pantry was open. Through the open doorway, Mr. Poison saw four boxes of ammunition on one of the pantry shelves. Based on that finding, as well as defendant’s background, Mr. Poison decided to conduct a more in-depth search of the apartment. He went upstairs and discovered a gun on a closet shelf in the master bedroom. The butt of the weapon was sticking out from a pair of men’s blue jeans and some hats.

Iifiln denying the suppression motion, the trial court commented that Mr. Poison did not overstep his authority in entering the residence to check on a probationer. Once the officer saw the ammunition (i.e. contraband) in plain view, he was justified in continuing the search.

Defendant maintains that Mr. Poison did not have reasonable suspicion to enter the apartment, and that Ms. Jones did not consent to a search of her apartment. Therefore, defendant argues, the officer’s entry was unlawful, and the evidence seized by Mr. Poison was suppressible.

Consent to search constitutes one of the exceptions to the probable cause and warrant requirements of the Fourth Amendment when it is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. The State bears the burden of proving the consent has been freely and voluntarily given. Vol-untariness is a question of fact to be determined by the trial court based on the totality of the circumstances.

In the instant case, Mr. Poison knocked on the apartment door, and Ms. Jones, a resident of the apartment, responded by opening the door Mr. Poison testified that when he told Ms. Jones he was there for a supervisory visit, she opened the door wider and allowed him to step inside. More importantly, Ms. Jones testified at trial that Mr. Poison asked if he could step inside that apartment, and she responded, “[F]ine.” Ms. Jones further testified that when Mr. Poison asked her if he could look around, she again responded, “[F]ine.” At that point, Ms. Jones verbally consented for Mr. Poison to enter the premises.

[,(After entering the apartment, Mr. Poison saw the ammunition in plain view in the open pantry. Under the “plain view” exception to the warrant requirement, police may seize evidence in plain view when: 1) there is prior justification for an intrusion into the protected area and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband.

In the instant case, Mr. Poison was rightfully in the area where he spotted the ammunition, and he immediately recognized it as contraband. He testified at trial that he was concerned when he saw the ammunition, because it was a violation of defendant’s probation to possess dangerous weapons, including ammunition. Once Mr. Poison saw the ammunition, he had reasonable suspicion to conduct a more thorough search of the apartment. Thus, it appears Mr. Poison lawfully seized the gun he found in the bedroom closet. Based on the foregoing, we cannot say that the trial court erred in denying defendant’s motion to suppress the evidence.

Finally, as is our routine practice, the record was reviewed for errors patent. La. C. Cr. P. art. 920. The minute entry for August 20, 2008 (R., p. 6) is duplicative of the minute entry for August 22, 2008. (R., p. 9). Based on the motion hearing transcript, which is dated August 22, 2008, it appears the minute entry bearing that date is the correct one. Additionally, there are two different minute entries for August 21, 2008. (R., pp. 7-8). One of those (R., p. 8), is duplicative of the minute entry for August 22, 2008. We instruct the district court to order the correction of the minute entries to accurately reflect the court proceedings on those days. Defendant’s conviction is hereby affirmed.

AFFIRMED.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.

      . 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. 5 Cir. 2/14/06), 924 So.2d 303, 310, writs denied, 06-1052 (La.11/3/06), 940 So.2d 660, and 08-2006 (La. 1/30/09), 999 So.2d 751.

      . State v. Watson, 08-214, p. 7 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 784.

      . State v. Mose, 412 So.2d 584, 586 (La. 1982); State v. Ware, 01-194, pp. 4-5 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 499.

      . State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998.

      . Id.

      . Johnson, 03-1228 at 5, 870 So.2d at 999; State v. Blount, 01-844, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, 775.

      . Johnson, 03-1228 at 6, 870 So.2d at 999.

      . State v. Lee, 02-0704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-0535 (La. 10/17/03), 855 So.2d 755.

      . Johnson, 03-1228 at 5, 870 So.2d at 998.

      . State v. Ware, 795 So.2d at 499.

      . State v. Lathers, 03-941, p. 7 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 886.

        .Id.

      . State v. Manson, 01-159, pp. 8-9 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 757, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156.

      . La. C. Cr. P. art. 703(D); State v. Parnell, 07-37, p. 9 (La.App. 5 Cir. 5/15/07), 960 So.2d 1091, 1097, writ denied, 07-1417 (La. 1/7/08), 973 So.2d 733.

      . State v. Young, 07-988, p. 6 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 763, writ denied, 08-1599 (La.3/27/09), 5 So.3d 139, citing United States v. LeBlanc, 490 F.3d 361 (5th Cir. 2007).

      . State v. Malone, 403 So.2d 1234, 1238 (La. 1981); State v. Saulsby, 04-880 at 4, 892 So.2d at 657.

      . State v. Robertson, 06-167, p. 13 (La.App. 3 Cir. 7/16/08), 988 So.2d 294, 303; State v. Wesley, 28,941, p. 8 (La.App. 2 Cir. 12/13/96), 685 So.2d 1169, 1174, writ denied, 97-0279 (La. 10/10/97), 703 So.2d 603.

      . State v. Robertson, supra; State v. Epperson, 576 So.2d 96, 99 (La.App. 2 Cir. 1991), writ denied, 580 So.2d 920 (La. 1991).

      . State v. Malone, 403 So.2d at 1238.

      . State v. Saulsby, 04-880 at 4, 892 So.2d at 658.

      . State v. Malone, 403 So.2d at 1239; State v. Young, 07-988 at 8, 988 So.2d at 763-764.

      . Defendant's probation record shows Ms. Ceasor visited with defendant at the Alexander Court apartment on January 8, 2008. After that, Mr. Poison made three unsuccessful attempts to find defendant there. Thus, May 16, 2008 was Mr. Poison's fourth attempt to visit Mr. Poison at that address.

      . State v. Robinson, 08-25, p. 6 (La.App. 5 Cir. 5/27/08), 986 So.2d 716, 720, writ denied, 08-1527 (La.3/4/09), 3 So.3d 470.

      . State v. Owen, 453 So.2d 1202, 1206 (La. 1984).

      . State v. Gomez, 06-417, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 86.

      .When a door is opened in response to a knock, it signifies the occupant's consent to confront the caller, and there is no compulsion, force or coercion involved. State v. Warren, 05-2248, pp. 6-7 (La.2/22/07), 949 So.2d 1215, 1222; State v. Haywood, 00-1584, p. 6 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 575.

      . Horton v. California, 496 U.S. 128, 135-136, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990).

      . State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990)

      .Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).


author: JUDE G. GRAVOIS, Judge.

text:
    Kenneth G. BURG and Ashton J. Burg, Jr., Individually and on Behalf of Decedent, Norma Sciortino v. LIVING CENTERS-EAST INC. d/b/a Metairie Heatlh Care Center.
    No. 09-CA-248.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Jeffrey M. Burg, Attorney at Law, Ken-ner, LA, for Plaintifi/Appellant.
    Jeremy D. Goux, Martha D. Bowden, Attorneys at Law, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| gPlaintiffs, Kenneth G. Burg and Ashton J. Burg, Jr., individually and on behalf of their deceased mother, Norma Sciortino, appeal the trial court’s judgment granting defendant Metairie Operations, L.L.C.’s exception of prescription. After thoroughly reviewing the record and the applicable law, for the reasons that follow, we affirm.

Factual Background and Procedural History

The record shows that Mrs. Sciortino, after suffering several disabling strokes, was admitted in February 2005 to the Me-tairie Health Care Center, a long term care facility, as a permanent resident. She left the facility on June 13, 2005 and died shortly thereafter on July 10, 2005. Plaintiffs’ suit alleged that while Mrs. Sciortino was a resident of the facility, she received substandard medical treatment and nursing care which caused her accelerated deterioration and eventual death.

| ^Plaintiffs’ petition for damages, which was filed on July 10, 2006, named Living Centers-East, Inc. d/b/a Metairie Healthcare as defendant. Next in the record is a motion for an extension of time to plead filed on November 21, 2006 by Metairie Operations, L.L.C. (“Metairie Operations”), asserting that Metairie Operations, which was “sought to be made a defendant herein,” had “received” a copy of plaintiffs’ petition for damages on or about November 8, 2006 and desired an extension of time to answer or otherwise plead in this matter. The trial court thereupon granted Metairie Operations an extension of an additional thirty (30) days or until December 21, 2006 in which to answer or otherwise plead in this matter. Metairie Operations did not, however, file any responsive pleadings within the extension period so granted.

The next pleading in the record is a supplemental and amending petition filed by plaintiffs on June 28, 2007, in which plaintiffs replace “Living Centers-East, Inc. d/b/a Metairie Healthcare” with “Me-tairie Operations, LLC d/b/a Metairie Health Care Center” as defendant in this case. On the same day, plaintiffs voluntarily dismissed the originally named defendant, Living Centers-East, Inc. d/b/a Metairie Healthcare, with prejudice.

On July 27, 2007, Metairie Operations filed exceptions of prematurity, prescription, and no cause of action. Plaintiffs filed an opposition to these exceptions, to which Metairie Operations replied. A hearing on the exceptions was held on August 20, 2008. The trial court took the matter under advisement and rendered a judgment on October 27, 2008 granting Metairie Operation’s exception of prescription. The other exceptions were appropriately found to be moot by the trial court. This timely appeal followed.

| .¡Analysis

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443.

The prescriptive period found in LSA-C.C. art. 3492 of one year from the day injury or damage is sustained is applicable to the causes of action asserted by plaintiffs in this case.

LSA-C.C.P. art. 1153, which governs the relation back of pleadings, provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Considering the applicable prescriptive period and the undisputed facts of this case, the causes of action asserted by plaintiffs have prescribed unless plaintiffs’ supplemental and amending petition relates back to the date of filing of plaintiffs’ original petition for damages.

In Renfroe v. State through Department of Transportation and Development, 01-1646 (La.2/26/02), 809 So.2d 947, the Supreme Court reiterated the four-part test, as originally laid out in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), to determine if a supplemental petition relates back to the original petition for prescription purposes:

(1) The amended claim must arise out of the same conduct, transaction or occurrence set forth in the original petition;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
|fi(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Plaintiffs argue on appeal, as they did in the district court, that their amended petition relates back to the original petition because it satisfies all four relation back criteria outlined above. They assert that the trial court found that factors 1 and 2 outlined above were met, and so do not include argument on those in brief. They argue that they sued the correct facility and that there was only a mistake in the identity of the party that owned or operated the facility. They further argue that there is an “identity of interest” between Living Centers-East, Inc. and Me-tairie Operations because they both operated out of the same physical facility. Plaintiffs argue that their search for the identity of the appropriate defendant herein on the Louisiana Secretary of State’s website constituted requisite due diligence to ascertain the identity of the appropriate defendant herein, and that no further action with respect thereto was required on their part.

The record establishes and it is likewise undisputed that the originally named defendant, Living Centers-East, Inc., sold or transferred the facility in question to Me-tairie Operations sometime during 2008, and therefore neither owned nor operated the nursing home facility in question at any of the time during 2005 that Mrs. Sciortino resided there. The record is also clear that the actual owner and operator of the facility during Mrs. Sciortino’s residency there, Metairie Operations, first gained knowledge of the suit when counsel for Living Centers-East, Inc. sent Metairie Operations’ counsel an email alerting them of the suit, which had been served upon Living Centers-East, Inc.’s agent. This email was | fidated November 6, 2006, which is well after the running of the prescriptive period applicable to plaintiffs’ alleged causes of action herein.

In its Reasons for Judgment, the trial court found that the first two relation back criteria had been met, but third and fourth were not:

Factors 3 and 4, however, present a problem for plaintiffs. Living Centers-East and Metairie Health Care are two separate and distinct entities, with different domicile addresses and registered agents. Plaintiffs argue that they are related because they both operated (at different times) out of the same physical facility; however, this argument was rejected by the Fifth Circuit in Melerine v. American Multi-Cinema, Inc., 882 So.2d 628 (La.App. 5th Cir.2004). In Melerine, plaintiff filed suit against the current owner of the movie theater where she fell, but her accident occurred when the theater was owned by another entity. More than a year after her accident, she filed suit against the correct defendant; however, an exception of prescription filed by that defendant was granted by this Court and upheld by the Fifth Circuit. In Melerine, the Fifth Circuit stated that if an amendment is to relate back, a plaintiff cannot sue a new and unrelated defendant. The original and new defendants must have an identity of interest. An identity of interest has been found between a parent corporation and a wholly owned subsidiary and between corporations with interlocking officers. Living Centers-East was part of a nationally traded company out of Atlanta and Metairie Operations is a Louisiana Limited Liability company whose members are local citizens. There is no parent corporation and/or wholly owned subsidiary relationship between these two defendants, and they share no officers. Although the result is harsh, it is apparent from the applicable Fifth Circuit caselaw that there is no relation back from the amended petition to the timely filed original petition.

We find no manifest error in the trial court’s findings of fact or application of the law in this case. There is no “identity of interest” between Living Centers-East, Inc. and Metairie Operations. The facts in this case are actually stronger than those in Melerine, in that in this case at all times pertinent hereto (i.e., for the entire time that Mrs. Sciortino actually resided at the facility in question), the facility in question was actually owned and operated by Me-tairie Operations, rather than by Living Centers-East, Inc.

Plaintiffs further argue that their search of the Secretary of State’s website prior to filing suit as an attempt to find and identify the correct owner/operator of 17the facility in question constituted due diligence on their part. They argue that the information on the website was incorrect and misleading, thereby excusing their mistake in naming the correct defendant herein. Defendant Metairie Operations countered that due diligence by the plaintiffs in this particular case required additional relatively non-onerous action on the part of the plaintiffs that could have easily allowed plaintiffs to identify the then-current owner/operator of the facility in question. Plaintiffs would have thus been able to appropriately name the correct party defendant in this proceeding when they originally filed their petition for damages.

We agree with Metairie Operations. Under the particular facts and circumstances involved in this case, due diligence in this case required more action and research on the part of the plaintiffs. Phone calls by the plaintiffs to the appropriate public agency which regulates facilities of this type, or to the facility itself, seemingly would have allowed plaintiffs to easily find and accurately identify the then-current registered owner/operator of the facility in question. Such additional action by the plaintiffs would not have been so onerous on plaintiffs so as to be considered unreasonable and inappropriate under the particular facts and circumstances involved in this case.

Conclusion

For the reasons stated above, the trial court’s judgment granting defendant Me-tairie Operations, L.L.C.’s exception of prescription is hereby affirmed.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Eddie WILLIAMS.
    No. 09-KA-48.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys Parish of Jefferson, Gretna, LA, for Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

DThis is a criminal proceeding in which the defendant/appellant Eddie Williams appeals his conviction and life sentence for aggravated rape of a juvenile. The defendant assigns four errors to the proceedings below. First, the defendant contends that the trial court erred in admitting “other crimes” evidence. Second, the defendant contends that the trial court erred in denying his Motion for New Trial. Third, the defendant contends that the trial court erred in admitting hearsay testimony of the victim’s sister. Finally, the defendant contends that the trial court erred in failing to inform the jury of the mandatory life sentence for aggravated rape. For the foregoing reasons, we affirm the defendant’s conviction and sentence. Further, we remand this matter to the trial court with instructions to inform the defendant in writing of his sex offender registration requirements and of his child predator registration requirements.

PROCEDURAL HISTORY

On October 13, 2005, the defendant was charged by grand jury indictment with one count of aggravated rape of a juvenile, a violation of La. R.S. 14:42. On March 16, 2006, the defendant filed several pretrial motions, including a Motion to Suppress Evidence, Identification, and Confession, a Motion and Order to Produce |,sPoIice Report, a Motion for Preliminary Examination, and a Motion for Brady and Giglio Material. On April 20, 2006, the defendant pleaded not guilty at arraignment.

On May 20, 2008, the state filed a Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to La.Code of Evidence Article 412.2 (the “Notice of Intent”). After a hearing, the trial judge allowed the admission of the evidence as requested by the state.

A three-day trial was held in this matter, after which a jury found the defendant guilty as charged. The trial court sentenced defendant to life imprisonment without the benefit of parole, probation or suspension of sentence. This timely appeal follows.

FACTS

The Notice of Intent indicated that the “State intend[ed] to introduce” the testimony of two women who, while they were juveniles, had separate encounters with the defendant in 1993. One incident resulted in the defendant’s arrest and subsequent guilty plea for lewdness involving a child in the Third District Court of Utah. The second incident resulted in defendant’s arrest for sexual abuse of a child. The Notice of Intent further indicated that the state intended to use these incidents to demonstrate the defendant’s “lustful disposition towards children” pursuant to La. C.E. art. 412.2.

On May 29, 2008, a hearing was held on the Notice to Intent. The trial court allowed the prosecutor to testify in lieu of the victims over defense counsel’s objection. The prosecutor indicated that she obtained the defendant’s certified Utah conviction for lewdness involving a child. The prosecutor also indicated that |4she was able to obtain police reports from Utah authorities and locate the two women who were referred to in the Notice of Intent.

One of the women referred to in the Notice of Intent was A.D., who was thirteen years old at the time of her encounter with the defendant. The prosecutor testified that she spoke to A.D. After speaking to A.D., the prosecutor learned that a man had come to A.D.’s door in 1993 selling cleaning supplies and that he had asked to come inside to give her a demonstration. After A.D. acquiesced, the man told A.D. that she was pretty and that “he would lick her up” if she was his girlfriend. The defendant then stained the “crotch of [A.D.’s] shorts” and made “overt and verbal gestures” in an attempt to remove the stain near her genital area. Afterwards, A.D. became very upset, asked the defendant to leave the house, and told a friend what had transpired. A.D.’s friend contacted the police. No legal action was instituted against the defendant for the allegations raised by A.D.

The second woman referred to in the Notice of Intent was G.P., who was twelve years old at the time of her encounter with the defendant. The prosecutor also spoke to G.P. G.P. and A.D. lived on the same street at the time of the incidents. According to G.P., the defendant knocked on her door, asked if she was alone, and told her that he wanted to help her clean a stain off the carpet. While G.P. was bending down, the defendant told her to turn around. He then placed his hands on her buttocks, marked G.P.’s crotch with a stain, put his hands up the inside of her shorts, and “rubbed her pubic and vaginal area with his hand.” G.P. ran away, locked herself in a bathroom, and ordered the defendant to leave her house. She then called a friend, who called the police.

|5The prosecutor testified that both A.D. and G.P. subsequently identified the defendant, “as he was still remaining on that street when the police arrived.” At the conclusion of the hearing, the trial court ruled that the testimony of the witness was admissible pursuant to La. C.E. art. 412.2. Counsel for the defendant objected to the ruling.

K.S., the victim, testified at trial that before Hurricane Katrina, she was living with her mother F.S. and the defendant. Her sister Ke. S. also lived nearby. According to K.S. the defendant “took down her pants” one day and started “licking” her and “biting” her on her “nu-nu” and her “butt.” K.S. indicated that her “nu-nu” is the “place where the pee-pee comes out.” K.S. denied seeing the defendant’s penis. K.S. additionally denied that the defendant ever rubbed his penis against her.

K.S. testified that the defendant told her if she told her mother F.S. what had happened, he would kill F.S. K.S. indicated that she was scared of the defendant. After the first incident, the defendant “took down [KS.’s] pants” a second time. K.S. testified that the defendant “started doing the same stuff.” Shortly thereafter, K.S. indicated that F.S. found her “in the bed with [the defendant].” F.S. and K.S. went to Ke. S.’s home and called the police. On cross-examination, K.S. testified that the first person that she told what had happened was F.S., and that the second person that she told what had happened was Ke. S.

F.S. testified that on July 8, 2005, she was living with the defendant and K.S. At approximately 4:30 in the morning, F.S. woke up and noticed that her apartment was completely dark, which she indicated was unusual because she usually kept the TV and a bathroom light on at night. She went to KS.’s room and turned on the light. According to F.S., K.S. was “half naked” and the defendant was “butt naked.” F.S. testified that she saw the defendant “licking” and “eating” | ñon KS.’s “bottom.” F.S. hit the defendant on the head with a nearby stick, wrapped K.S. in a sheet or towel, and left her apartment. K.S. and F.S. arrived at Ke. S.’s apartment and thereafter called the police. On cross-examination, F.S. admitted that she and the defendant fought and argued often and that she and the defendant had been consuming alcohol the night of July 7, 2005.

Ke. S. testified that on the morning of July 8, 2005, she was living down the street from K.S. and F.S. At approximately 5:00 AM, F.S. started banging on Ke. S.’s door. Ke. S.’s fiancé opened the door and let K.S. and F.S. into Ke. S.’s house. K.S. was crying at the time. Ke. S. took K.S. upstairs. The trial court allowed Ke. S. to testify about the conversation she had with K.S., over the defendant’s objection. According to Ke. S., K.S. told her that the defendant “licked on her noonie and her bootie.” K.S. did not indicate that the defendant had licked her or bitten her on more than one occasion.

Deputy Brian Brinser of the Jefferson Parish Sheriffs Office testified that he responded to F.S.’s call. At the time, F.S. was “very frantic, very angry.” According to Deputy Brinser, K.S. seemed “scared” and “confused.” Deputy Brinser was familiar with the defendant because he had dealt with him previously. Deputy Brin-ser located the defendant talking on a pay phone at a local Shell station. He identified himself and the defendant hung up the phone. Deputy Brinser then arrested the defendant and advised him of his rights.

K.S. was taken to the Ambulatory Care Center at Children’s Hospital later that day, where a rape kit was collected. Dr. Scott Benton testified that Dr. Monica Weiner examined K.S. and took a history from her at Children’s Hospital. K.S. indicated to Dr. Weiner that the defendant “licked her in the booty and nu-nu.” Dr. Benton testified there was nothing found during the physical exam that invalidated the history K.S. gave to Dr. Weiner. Dr. Benton additionally testified that neither |7he nor Dr. Weiner collected evidence for the rape kit. Karen Bourne, a nurse at Children’s Hospital, testified that she collected evidence for the rape kit. The rape kit included samples of K.S.’s blood, saliva, and hair, as well as fingernail, navel, genital, and anal swabs.

Gina Pineda testified for the state as an expert in the field of forensic science and DNA analysis, to which the defendant had no objection. Pineda testified that she prepared a report in conjunction with the instant case. Pineda additionally testified that male DNA was recovered from K.S.’s genitals and gluteal cleft. Pineda reviewed the DNA evidence that had been submitted with the rape kit. After reviewing the DNA, Pineda concluded that the defendant “[could not] be excluded as being a donor to the male DNA in the dried secretions and genital swabbing.”

Omalee Gordon of the Gretna Police Department’s Child Advocacy Center testified that she interviewed K.S. approximately two weeks after the incident. The jury viewed the videotape of Gordon’s interview with K.S. During the interview, K.S. stated that defendant licked and bit her on her “bootie” and her “nu-nu.” Gordon asked K.S. where her “nu-nu” was. K.S. responded by pointing to her vaginal area.

The final witness to testify was A.D., one of the women referred to in the Notice of Intent. A.D. testified that when she was thirteen, a man came to her door and told her that he was selling carpet cleaning products. She told the man that she was home alone. Eventually, A.D. took the man to her basement, where she recalled that there were stains on the carpet. The man squirted the stain on the carpet and told A.D. to put her foot on the stain. The man then told her to “put her hips into it,” then grabbed her hips and “moved them around.” Afterwards, the man “colored” on A.D.’s shirt and “put his hand underneath it and tried to scrub |sthat out.” According to A.D., the man told her that “if you were my girlfriend, I’d lick you up.” A.D. became uncomfortable and asked the man to leave. After the man left, A.D. rode her bicycle to her friend’s house. While she was riding home, A.D. noticed that the man was sitting at the top of her street in handcuffs.

At trial, A.D. did not identify the defendant as the man who was selling cleaning products. A.D. was never specifically asked at trial whether the defendant was the man who had assaulted her fifteen years prior. The prosecutor asked A.D. if “the complexion of the person who was in your home, is it consistent with the person who sits here in the courtroom,” to which A.D. replied, “yes.”

The defendant did not testify at trial. On June 18, 2008, the jury found the defendant guilty as charged. On June 25, 2008, the trial court sentenced the defendant to a term of imprisonment of life at hard labor without benefits. Immediately prior to sentencing, the defendant orally moved for a motion for new trial. The motion was denied by the trial court.

SECOND ASSIGNMENT OF ERROR

In the interests of economy and clarity, we will address the defendant’s second assignment of error first.

In his second assignment of error, the defendant contends that the trial court erred in denying his motion for new trial. The defendant did not brief the merits of this assignment of error. The Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from the appellant’s brief that he intended to appeal the merits of the case. See, e.g., Shultz v. Shultz, 2002-2534, p. 3 (La.App. 1 Cir. 11/7/03), 867 So.2d 745, 746-747 (quoting Carpenter v. Hannan, 2001-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La.10/25/02), 827 So.2d 1153). In the instant case, the arguments locontained in the defendant’s motion for new trial are the same as those made in his first and third assignments of error on appeal. Accordingly, we will consider the merits of the defendant’s first and third assignments of error below.

FIRST ASSIGNMENT OF ERROR

In his first assignment of error, the defendant claims that the trial court erred in allowing A.D.’s testimony. The defendant contends that the testimony given by A.D. was irrelevant, that the prejudicial effect of the evidence outweighed its probative value, and that the limiting instruction given by the trial court was improper. The state contends that A.D.’s testimony was admissible to show the defendant’s “lustful disposition towards children” pursuant to La. C.E. art. 412.2.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. See State v. Hatcher, 372 So.2d 1024, 1036 (La.1979) (Tate, J., concurring on rehearing).

La. C.E. art. 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other 1 mpurposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The Louisiana Supreme Court first recognized a “lustful disposition” exception to the general rules of evidence in State v. Cupit, 189 La. 509, 179 So. 837 (1938). In Cupit, the defendant was charged with assault with intent to commit rape of his niece. The state presented evidence the defendant had raped another niece and that the defendant had been charged with the rape of a third niece. The Supreme Court held the evidence was admissible because the “prior offenses ... clearly-tended to show the lustful disposition the defendant bore towards his nieces, and his unnatural desire to have sexual intercourse with them; all of his nieces being children of tender age.” Cupit, 179 So. at 839 (emphasis supplied). In State v. Kennedy, 00-1554 (La.4/3/01), 803 So.2d 916, the Louisiana Supreme Court held that absent a dispute as to whether the accused intended to commit the crime, evidence of other crimes was prohibited to show intent when the crime charged was a general intent crime.

In 2001, the legislature enacted La. C.E. art. 412.2 in response to State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037 and Kennedy, supra. See also State v. Williams, 02-1030 (La.10/15/02), 830 So.2d 984, 986. La. C.E. art. 412.2(A) provides:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
(emphasis supplied)

| nAccordingly, pursuant to La. C.E. art. 412.2(A), evidence of a prior sexual offense indicating that the defendant has a “lustful disposition toward children” is admissible if it is relevant and if the probative value of the evidence outweighs its prejudicial effect. State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 218. Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. Id.

In the instant case, A.D. did not identify the defendant at trial as the man who ostensibly came to her home to sell cleaning supplies or who she saw in handcuffs at the top of her street. A.D. only testified that the complexion of the man who came to her home was similar to the defendant’s complexion. The state never proved that the defendant was the person who came to A.D.’s home at trial. However, the prosecutor indicated at the hearing on the Notice of Intent that A.D. positively identified the defendant as the man that had come to her home. Thus, when the state called A.D. as a witness, the trial court had reason to believe that she would identify him in open court. A.D. did not do so. A.D.’s testimony was irrelevant because it did not tend to make the defendant’s alleged lustful disposition towards children more probable or less probable. Thus, at a minimum, the trial court should have stricken A.D.’s testimony from the record and instructed the jury to disregard it.

The defendant also alleges that the trial court erred by failing to instruct the jury that no legal action was instituted against him for the allegations raised by A.D. Prior to A.D.’s testimony, the trial court instructed the jury as follows:

Ladies and gentleman, listen to me carefully. Evidence that a defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show 1^guilty knowledge, absence of mistake or accident, intent, system motive, identity, or to show a lustful disposition towards children. Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.

The trial court gave a nearly identical limiting instruction to the jury before the jury began its deliberations.

The record indicates that defense counsel did not make a contemporaneous objection to either instruction. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. La. C. Cr. P. art. 801(C). The nature of the objection and grounds therefor shall be stated at the time of objection. Id. This Court has held that a defendant is required to make a timely objection under La. C. Cr. P. art. 801 in order to preserve a jury charge issue for review. See State v. Gardner, 05-62 (La.App. 5 Cir. 6/28/05), 907 So.2d 793 (the defendants were precluded from raising issues pertaining to jury charges on appeal when the defendants failed to object to the charges given or the trial court’s failure to give a specific charge). Accordingly, we need not consider the defendant’s argument that the trial court erred by failing to instruct the jury that no legal action was instituted against him for the allegations raised by A.D.

Even though A.D.’s testimony should have been stricken from the record, we need not reverse the defendant’s conviction. La. C. Cr. P. art. 921 provides “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” The introduction of inadmissible other crimes evidence is subject to a harmless error analysis. State v. Girod, 96-660 (La.App. 5 Cir. 11/25/97), 703 So.2d 771, 775-776 (quoting State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 101-102, reconsideration denied, 94-1379 (La.4/8/96), 671 So.2d 332). An error is harmless when the verdict is “surely unattributable to the error.” State v. Williams, 05-318, p. 4 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1036, writ denied, 06-0973 (La.11/3/06), 940 So.2d 654.

In this case, the jury’s verdict was surely unattributable to the alleged error. The state presented overwhelming evidence of guilt at trial without consideration of the defendant’s lustful disposition towards children. K.S. consistently testified that the defendant licked and bit her on her “butt” and her “nu-nu.” K.S. indicated that her “nu-nu” was her vaginal area. KS.’s testimony was corroborated by Dr. Benton and Omalee Gordon’s interview. Gina Pineda testified that male DNA, from which the defendant could not be excluded, was recovered from K.S.’s genitals and gluteal cleft. F.S. testified that when she walked into the defendant’s bedroom, K.S. was “half naked” and the defendant was “butt naked.” F.S. further testified that she saw the defendant “licking” and “eating” on K.S.’s “bottom.”

Accordingly, this assignment of error has no merit.

THIRD ASSIGNMENT OF ERROR

In his third assignment of error, the defendant contends that the trial court erred in allowing the testimony of Ke. S. More specifically, the defendant contends that the trial court erred in allowing Ke. S. to testify with respect to the conversation she had with K.S. The defendant argues that this testimony was inadmissible hearsay. The state contends that the testimony was nonhearsay under La. C.E. art. 801(D)(1)(d).

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. As a general rule, hearsay is inadmissible at trial. La. C.E. art. 802.

1 MLa. C.E. art. 801(D) provides:

Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.
(emphasis supplied)

The comments to La. C.E. art. 801 emphasize that “[i]t is only the initial complaint by the victim, whether made to a family member, policeman, or other person, that is defined as non-hearsay under this provision. Subsequent complaints or reports about the same crime would not be admissible under it.” La. C.E. art. 801, cmt. The Louisiana Supreme Court has stressed that La. C.E. art. 801(D)(1)(d) “reflects a longstanding jurisprudential rule exempting the initial report of a child rape victim from the hearsay rule.” State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, 778, rev’d on other grounds, — U.S.-, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

It is undisputed in the instant case that Ke. S. testified at trial and that she was subject to cross-examination. The state and the defendant dispute whether K.S. made the “initial complaint of sexually as-saultive behavior” to Ke. S. or F.S.

At trial, K.S. testified that the first person that she first reported the incident to F.S., and that she thereafter reported the incident to Ke. S. K.S. repeated this claim during her interview with Omalee Gordon. Conversely, F.S. testified that K.S. did not report the incident to her while they were in transit to Ke. S.’s house. According to F.S., she did not question K.S. about what happened because her concern was getting to Ke. S.’s house and notifying the police.

11KThe record indicates that counsel for the defendant objected several times to Ke. S.’s testimony. The first objection was made during Ke. S.’s testimony. The trial court overruled the objection. The second objection was made after K.S. testified that she first reported the incident to F.S. The trial judge again denied the objection, noting:

I do pay particular note to the testimony of the adults as opposed to that of the child. And despite the testimony of [K.S.], in these cases, the very nature of the case, and because of the tender age, children tend to contradict themselves from time to time. It’s quite clear to the Court that in those seconds immediately following the incident [K.S.] was brought, hurriedly, over to [Ke. S.’s] house, the mother’s older daughter, and I think it is without question that [K.S.] had an opportunity in an upstairs area to talk one-on-one with [Ke. S.]. And I think in her testimony in court it’s quite apparent that she gave her sister many more details than what the mother was apprised.
So, for those reasons, I think in the spirit of the law ... the sister was, in fact, the first reporter, and the slightest contradiction in the young lady’s testimony at an age of nine is not persuasive to the Court.
So, I’ll note your objection. It’s denied. Thanks.

The trial court therefore determined that Ke. S.’s testimony was more credible than that of K.S. This Court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, 612, 613, reh’g denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973)) (,superseded by statute on other grounds). The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions | ^between the respective courts. M A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Theriot v. Lasseigne, 93-2661, (La.7/5/94), 640 So.2d 1305, 1310 (citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). After reviewing the record, we have concluded that there is a reasonable factual basis in the record for the trial court’s finding that Ke. S.’s testimony was more credible than that of K.S. We cannot say that the trial courts decision was manifestly erroneous.

In addition, the Louisiana Supreme Court has long held that the admission of even hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Johnson, 389 So.2d 1302 (La.1980); State v. McIntyre, 381 So.2d 408, 411 (La.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980). In the instant case, Ke. S.’s testimony was cumulative. K.S. testified that the defendant licked and bit her on her “butt” and her “nu-nu.” The defendant’s conduct was corroborated by F.S, a firsthand witness. Moreover, DNA recovered from K.S. could not exclude the defendant.

Accordingly, this assignment of error has no merit.

FOURTH ASSIGNMENT OF ERROR

| l7In his fourth assignment of error, the defendant contends that the trial court erred in failing to inform the jury of the mandatory life imprisonment sentence for an aggravated rape conviction during his instructions.

La. C. Cr. P. art. 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

“When the penalty imposed by the statute is a mandatory one the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury.” State v. Washington, 367 So.2d 4, 4 (La.1978) (emphasis supplied). In the instant case, there is no indication in the record that the defendant requested a special charge instructing the jury that the mandatory penalty for an aggravated rape condition is term of imprisonment at hard labor. Moreover, the defendant failed to object to the special jury charges at the time they were proposed and at the time they were given to the jury. Omissions in jury charges that the trial court was not requested to supply are not error. State v. Thames, 95-2105 (La.App. 1 Cir. 9/27/96), 681 So.2d 480; State v. Harris, 166 La. 759, 117 So. 820, 823 (1928), cert. denied, 278 U.S. 641, 49 S.Ct. 34, 73 L.Ed. 556.

Accordingly, this assignment of error has no merit.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C. Cr. P. art. 920(2). See also State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We discern two errors patent.

11sFirst, we note that the trial court failed to notify the defendant of Louisiana’s sex offender registration or notification requirements pursuant to La. R.S. 15:540 et seq. The legislature recently enacted extensive amendments to the sex offender and child predator registration statutes in 2007 La. Acts 460, § 2, which became effective on January 1, 2008. 2007 La. Acts 460, § 6 pertinently provides:

The provisions of this Act shall apply to all persons convicted of a sex offense or a criminal offense against a victim who is a minor, as defined in R.S. 15:541, regardless of the date of conviction, with the exception of those persons required to register under previous provisions of law whose obligations to register] have been fulfilled and extinguished by operation of law.

The offense for which the defendant was convicted is designated as a “sex offense” under La. R.S. 15:541(24). La. R.S. 15:542, as amended, outlines mandatory registration requirements for sex offenders and child predators. Additionally, La. R.S. 15:542.1, as amended, sets out notification requirements for offenders categorized as sex offenders and child predators.

La. R.S. 15:543(A), as amended, states that the trial court “shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of [La. R.S. 15:540 et seq}.” In addition, La. R.S. 15:543(A) states that the trial court shall use the form contained in La. R.S. 15:543.1 to inform the defendant of the registration and notification requirements. La. R.S. 15:543(A) further requires that such notice be included on any guilty plea forms and judgment and sentence forms provided to defendant, and that an entry be made in the court minutes stating that the written notification was provided.

| iSHere, the record indicates that the trial court did not comply with La. R.S. 15:543(A). As a result, we are remanding this matter to the trial court for the purpose of providing the defendant with appropriate written notice of his sex offender notification and registration requirements. See, e.g., State v. Scott, 42,997 (La.App. 2 Cir. 2/13/08), 975 So.2d 782. We instruct the trial court to inform the defendant of his notification and registration requirements by using the form contained in La. R.S. 15:543.1.

The record additionally indicates that the defendant filed a Motion for New Trial in open court on June 25, 2008. The trial court promptly denied the Motion for New Trial and sentenced the defendant to a term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence that same day. Thus, the trial judge failed to observe the twenty-four hour delay required between the denial of a motion for new trial and the imposition of sentence pursuant to La. C. Cr. P. art. 873. However, no corrective action is required. Absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of a prematurely imposed sentence is not necessary. State v. Jackson, 99-401 (La.App. 5 Cir. 10/13/99), 746 So.2d 698. In the present case, we find that the defendant was not prejudiced by the failure to observe the delay because the trial judge was required to impose a mandatory sentence of life imprisonment at hard labor on the defendant’s conviction of aggravated rape. Thus, the failure to delay sentencing in this case can be deemed harmless. See also State v. Patterson, 05-560 (La.App. 5 Cir. 1/31/06), 922 So.2d 1195, 1204.

CONCLUSION AND DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court for the purpose of providing the defendant with appropriate written notice of his sex offender notification and | ^registration requirements. The trial court is instructed to inform the defendant of his notification and registration requirements by using the form contained in La. R.S. 15:543.1.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . We note that the trial court was not required to conduct a pre-trial hearing prior to admitting evidence demonstrating the defendant’s "lustful disposition towards children” pursuant to La. C.E. art. 412.2. State v. Williams, 02-1030, 02-0898, p. 6 (La. 10/15/02), 830 So.2d 984, 987.

      . In accordance with La. R.S. 46:1844, the victims and their family members will be referred to by the use of initials in order to protect their identities. See also State v. Myles, 04-677 (La.App. 5 Cir. 1/25/05), 894 So.2d 515, 528.

      . At the hearing on the Notice of Intent, the prosecutor indicated that A.D. and G.P. had previously identified the defendant in 1993. However, the record indicates that A.D. did not identify the defendant at trial.

      . Even if the trial court erred in admitting Ke.S.'s testimony, we note that at least one Louisiana circuit has allowed La. C.E. art. 802(D)(1)(d) testimony from a witness other than a “first responder.” See State v. Reed, 1997-0812 (La.App. 1 Cir. 4/8/98), 712 So.2d 572 (allowing police officer to testify as a first responder even though juvenile victim had told two neighbors and two other police officers that she had been raped).

      . The Louisiana legislature adopted La. R.S. 15:543.1 in 2007 La. Acts 460; the same bill wherein the legislature enacted extensive amendments to the sex offender and child predator registration and notification statutes. In 2008 La. Acts 816, § 1, the legislature made several amendments to La. R.S. 15:543.1 to reflect changes in the underlying registration requirements. 2009 La. Acts 205, § 2 repealed La. R.S. 15:543.1(14), which required the offender to "timely sign and return the periodic address verification form sent to them by the Louisiana Bureau of Criminal Identification and Information ... according to the instructions on the verification form." In the same act, the legislature repealed La. R.S. 15:542.1.6, which required the Louisiana Bureau of Criminal Identification and Information to send sexual offenders and child predators periodic address verification forms.