hThe defendants/appellants, Timothy Hartford (“Hartford”) and Joshua Hogan (“Hogan”) (collectively, “the defendants”), appeal their convictions for attempted looting during a state of emergency, a violation of La. R.S. 14:62.5 C. After a review of the law and evidence, for the reasons that follow, we affirm their convictions and sentences.
On 4 October 2012, Hartford and Hogan were charged by a bill of information with one count of looting during a state of emergency.
STATEMENT OF FACTS
Mr. Mohammed Almasala worked at the Uptown Food Market, located at 2001 Seventh Street in New Orleans since June 2012. In late August 2012, he left New Orleans for a few days due to Hurricane Isaac. Before he left, he locked and secured the store. No holes or damages to the walls existed before he left. When Mr. Almasala returned, he found that someone had entered the store. A hole in the wall was present, and the inside of the building had been damaged. He recognized the defendants from the neighborhood because they had been in the store on numerous occasions. In the process of cleaning up, he found some tools in the backyard of the store, between the fence and the wall with the hole.
On 28 August 2012, New Orleans Police Department (“NOPD”) Officer Troy Pi-chon was assigned to patrol the Sixth District ahead of Hurricane Isaac making landfall. That evening, the winds were forty-nine miles per hour, and it was raining very heavily. Officer Pichón responded to a call of looting at a store at the intersection of Seventh and Danneel Streets. The officer testified that he was very familiar with this area, as he passed it four to five times a day during his | ^normal patrol. He was one block away from the intersection when he received the call of a business burglary. He and Detective Clay, who was driving another police vehicle right behind him, proceeded to the area. When the officers pulled up on the Danneel Street side of the building, everything appeared normal. When he turned onto Seventh Street, Officer Pichón observed that a side gate to an alleyway was swinging open. He pulled up to the alleyway and shined his mounted spotlight down it to get a view of it and the side of the building. He observed Hogan standing facing the wall, with his back to the wooden fence. Hogan turned, looked directly at the spotlight, and then turned his attention back to the hole in the wall. The officer informed dispatch that a person was present in the alleyway and requested additional assistance.
Officer Pichón exited his vehicle and proceeded down the alleyway. He gave Hogan verbal instructions to show his hands. At that time, the officer observed Mr. Spivey straddling the hole with half of his body outside and the other half inside the building. Mr. Spivey exited the building and ran down the alleyway, towards the rear of the building. Hogan stood in place and showed the officer his hands.
Officer Pichón testified that while Hartford was in the building, Hartford had a sock on one hand. The officer testified that from his experience, burglary suspects will try to conceal their hands to keep from leaving fingerprints on any items that they may touch.
Officer Pichón informed Officer Young that he observed one subject, later identified as Mr. Spivey, run to rear of the alleyway. While Officer Young and another officer went in search of the subject who ran away, Officer Pichón and other police officers entered the building to search and clear the building. No other subjects were found. When the officer when into the store, he observed that a sink or table was pushed away from the wall where the hole was made, and water was flowing from a faucet. A water pipe had been broken when the subjects moved the sink away from the wall in* order to gain entry to the building. Several items, including alcohol and cigarettes, were grouped together on a table. It appeared that the subjects had packaged everything together to carry it out at one time.
As the officers were exiting the budding, Officer Pichón noted that Officer Young had Mr. Spivey in custody. Officer Pichón was informed that the officers had found Mr. Spivey lying next to the fence in a puddle of water and mud, trying to conceal himself.
The crime lab was called out to the scene. The subjects were put in marked police vehicles and transported to Central Lockup. Officer Pichón identified both IsHogan and Hartford at trial. The officer stated that he had seen the defendants together numerous times. Hogan, Hartford, and Mr. Fox hung out together on a daily basis in the 1900 block of Seventh Street, between Dryades and Danneel Streets. The officer was not sure if Mr. Spivey hung out with the other three men on a daily basis.
Officer Young was on patrol on the evening of 28 August 2012, when he responded to a call of looting at the intersection of Seventh and Danneel Streets. When he arrived at the scene, on the Danneel Street side, he observed nothing. However, when he drove to the Seventh Street side of the store, he saw Officer Pichón in a narrow alleyway. Just beyond Officer Pi-chon were two men who were not police officers. As Officer Pichón placed the subjects under arrest, the subjects were passed from one police officer to another, almost like an assembly line, from the alleyway to the street. Officer Pichón passed the subjects to him, and he passed them onto the police officer behind him. Three subjects were arrested in that manner. The fourth subject, Mr. Spivey, was found in the rear corner behind the build
Erin Cunningham, a crime scene technician with the NOPD, was called to the scene on 28 August 2012. Ms. Cunningham testified that she took photographs of the scene. She identified the photographs and stated that they accurately depicted the scene. The photographs were introduced into evidence.
| (¡Gregory Spivey acknowledged that he had pleaded guilty in the present matter to looting. However, he denied that he was involved in the looting' of the store. Mr. Spivey testified that on 28 August 2012, he was walking down Seventh Street when he saw that the building had a hole in the wall. He was feeling bad, but thought he could ask the owner if he could repair the wall to make a few dollars. Mr. Spivey stated that he has seizures and must have had a. seizure and blacked out at that time because the next thing he remembered was the police officers standing over him while he was lying in puddle of water. He stated that he knew Hogan and Hartford from the neighborhood, but did not know their names. He denied making any statements about what Hogan was doing on the night of the arrest. He claimed he did not make any statement that Hogan wanted to get some stuff from the store.
The state impeached Mr. Spivey’s testimony with a recorded jailhouse telephone call in which Mr. Spivey stated that Hogan was standing outside the hole and said that he “wanted to get some” and asked the other men to “get [him] some.” The phone call was played for the jury.
ERRORS PATENT
A review of the record for patent errors reveals that the sentences imposed by the trial court are illegally lenient. The trial court sentenced both Hartford and Hogan to twenty years at hard labor, with three years without benefit of parole. (The sentences orally handed down are silent concerning the rights relating to probation or suspension of sentence.) The minute entries show that the twenty-year sentences were without benefit of parole, probation, or suspension of sentence for |7the first three years.
DISCUSSION
HARTFORD’S ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, Hartford argues that the state failed to produce sufficient evidence to sustain his conviction for attempting looting during a state of emergency.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court should first determine the ^sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); see also State v. Falkins,
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro,
La. R.S. 14:62.5 provides in pertinent part:
A. Looting is the intentional entry by a person without authorization into any dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person, or any structure belonging to another and used in whole or in part as a place of business, or any vehicle, watercraft, building, plant, establishment, or other structure, movable or immovable, in which normal security of property is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, or by virtue of a riot, mob, or other human agency, and the obtaining or exerting control over or damaging or removing property of the owner.
“Attempt” is defined in La. R.S. 14:27:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
Therefore, to prove that a defendant committed the offense of attempted looting, the state had to present evidence beyond a reasonable doubt that (1) the defendant attempted to enter without authorization into a structure belonging to another; (2) in which normal security of property was not present because of hurricane, flood, fire, act of God, or force majeure of any kind; and (8) obtained or |10exerted control over or damaged or removed property of the owner. State v. Collier, 08-0013, pp. 5-6 (La.App. 4 Cir. 6/18/08),
In State v. Browning,
In State v. Lopez,
In the case at bar, Officer Pichón testified that he responded to a call of a looting at the store. He stated that he was on patrol in anticipation of Hurricane Isaac. At trial, the state introduced the State of Emergency declared in anticipation of Hurricane Isaac. Officer Pichón testified that when he arrived on the scene, he observed one subject, later identified as Hogan, standing in the alleyway outside of store, next to a hole in the wall of the store. After arresting Hogan and Mr. Fox, Officer Pichón then stuck his head into the hole to get a view of the interior of the building and to determine if any other individuals were in the building. He shined his handheld flashlight into the building and observed Hartford walking from the rear of the building through the food preparation area. After observing Hartford in the building, Officer Pichón told Hartford to exit the building. Hartford put his hands through the hole. Officer Pichón handcuffed him and escorted him from the building. Upon entering the store, the officer noted that a sink or table was pushed away from the wall where the hole had been made, and water was flowing out of faucet. A water pipe had apparently broken when the defendants moved the sink 112away from the wall in order to gain entry into the building. Several items, including alcohol and cigarettes, were grouped together on a table, and it appeared that the defendants had packaged everything together to carry it out at one time.
The trial testimony reveals that (1) the defendant entered the store without authorization from the owner, (2) in which normal security of property was not present because of Hurricane Isaac, and (3) obtained or exerted control over or damaged or removed property of the owner. This evidence was sufficient for the jury to conclude that the defendant was guilty of attempted looting during a state of emergency.
This assignment of error is without merit.
HARTFORD’S ASSIGNMENT OF ERROR NUMBER 2
In his assignment of error, Hartford contends that the trial court imposed an excessive sentence. After being adjudicated a fourth felony offender, Hartford was sentenced to twenty years at hard labor, with the first three years without benefit of parole.
Article I, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence “is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey,
In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines and that the sentence is warranted under the facts established by the record. State v. Soco,
If adequate compliance with article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, supra;. State v. Guajardo,
Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado,
The minimum sentences imposed on multiple offenders by the Habitual Offender Law are presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98),
In the case at bar, Hartford was adjudicated a fourth felony offender and sentenced to twenty years at hard labor, the minimum sentence under the multiple offender statute.
In State v. Carter,
In sentencing Hartford, the trial court noted that Hartford had three prior convictions within a four-year period: possession of cocaine, possession of a stolen vehicle, and attempted possession of a firearm by a convicted felon; now he stood convicted of attempted looting during a state of emergency. The court also recognized that Hartford had previously had his probation revoked for his conviction for possession of cocaine. The trial court stated that it took into consideration that the incident occurred during the beginning of Hurricane Isaac and that the city was under a state of emergency. The trial judge referenced the testimony of the crime scene technician concerning the rain and wind that she encountered while photographing the scene. The trial court also noted that the police officers and crime scene technician were placed in harm’s way by having to traverse a dark alleyway during the storm.
We find that the trial court set forth sufficient reasons for the sentence imposed, and Hartford produced no evidence to suggest that the sentence is excessive. The trial court did not err in the sentence imposed on him.
This assignment of error is without merit.
| ^HARTFORD’S ASSIGNMENT OF ERROR NUMBER S
Hartford also suggests that the trial court erred when it allowed the state to introduce into evidence of the recorded jailhouse phone calls made by Mr. Spivey. La.C.Cr.P. art. 716 provides in pertinent part:
D. Upon written motion of the defendant, the court shall order the district attorney to disclose to the defen-, dant, and to permit or authorize the defendant to inspect and copy any written or recorded statements of any witness the state intends to call in its case in chief at the trial. For purposes of this Article: (1) “written or recorded statement of a witness” shall mean any audio or audio-video recording of an oral statement or interview of a witness, and any statement a witness writes or signs; (2) for the purposes of this Article, “trial” shall mean the phase of the case at which the state attempts to meet its burden as to guilt, and specifically does not extend to pretrial matters or hearings, or to the penalty phase in capital prosecutions. The state need not provide the defendant any written or recorded statement of its witnesses until immediately prior to the opening statement at trial.
The discovery rules, La. C. Cr. P. art. 716 et seq., are intended to eliminate any unwarranted prejudice that could arise from surprise testimony. State v. Toomer,
The Court feels that because Mr. Spi-vey has already pled guilty that he is no longer considered to be a co-defendant in terms of any exposure on the case and therefore he can be called by either side with no Fifth Amendment implications.
And that upon that now -witness, former defendant, but now a witness taking the witness stand, that he has denied several times on the witness stand that he made a statement to anyone or offered any statements relative to any other person being involved in this case or even himself.
He’s already testified in front of the jury that the police thought he was dead, that he was unconscious. And that he had no intent to loot or commit any crime at that property.
After the state played the recordings for the jury, the defendants cross-examined Mr. Spivey, who continued to state that he had a seizure on the night of the incident and had no knowledge of the looting.
The trial court recognized that the state had not anticipated using the recorded phone calls during the trial. The state only sought to introduce the recorded phone calls when Mr. Spivey failed to testify in accordance with the statements he had given the police. Thus, the state sought to use the phone calls to impeach Mr. Spivey’s trial testimony, once he became a hostile witness.
In State v. Gonzales,
The phrase ‘intends to offer in evidence at the trial’ has not been interpreted in our jurisprudence. However, a similar phrase from a similar code article was interpreted by our Supreme Court in State v. Pool,361 So.2d 1202 (La.1978). This case dealt with Article 719 which requires the state to allow the defendant to inspect or copy any results or reports of physical or mental examinations and of scientific tests or experiments ‘intended for use at trial’. In Pool, the Court held that introduction of evidence brought out on cross-examination by the defense and expounded upon by the State during redirect was not reversible error because the state had not intended to use it as evidence at the trial within the meaning of Article 719. The Court felt that the fact that this information was not brought out by the State on direct examination and had not mentioned it in their opening statement proved the State had “no intent to use the evidence at trial”.
In State v. Amedee, 408 So.2d 1259 (La.1982) the Court reiterated this interpretation of the phrase. Here, the State offered evidence of a drug test of the victim during its case in rebuttal to counter the defendant’s claim that the victim was ‘on something’. The Court stated ‘the rebuttal testimony here was not intended for use at trial within the contemplation of the statute.’
We conclude that the facts in the case at bar are similar to Pool and Amedee. The testimony of Officer Sherman was introduced to rebut the defendant’s testimony that the gun was not his. The State did not intend to offer this statement into evidence at the trial within the meaning of Article 716(B).
Gonzales,
In State v. Dugas,
In the case at bar, the state did not intend to introduce the recorded telephone calls in its ease in chief. It believed that Mr. Spivey’s testimony would be consistent with the statements he had given previously. However, when Mr. Spivey denied any knowledge of the looting, the state sought to impeach him with the recorded telephone calls. Because the state did not intend to use the recorded telephone calls in its case in chief, the trial court did not abuse its discretion in finding that no violation of the discovery articles occurred.
Furthermore, even if the failure to provide the recorded telephone calls prior to trial was a discovery violation and the calls were erroneously admitted at trial, the trial court’s ruling is subject to a harmless error analysis. State v. Hugle, 11-1121, p. 19 (La.App. 4 Cir. 11/7/12),
The admission of the recorded telephone calls was harmless error. Sufficient evidence was presented, without Mr. Spivey’s telephone calls, to prove that Hartford was guilty of attempted looting. Officer Pi-chon’s testimony placed Hartford inside the building when the looting occurred. The officer testified that he found Hartford inside the building after he had already arrested Hogan and Mr. Fox. He stated that he shined his flashlight into the darkened building and saw Hartford walking through the building, near the table with groceries stacked and ready to be removed from the building.
On appeal, Hartford also argues that the trial court erred in admitting the calls into evidence because the state failed to properly authenticate the tapes. A review of the trial transcript reveals that it is questionable whether such an objection was made, and if it was, whether it was timely.
La.C.Cr.P. article 841 A states that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” In the present case, the trial court gave the defendants an opportunity to place their objections to the admissibility of the tapes during the bench conference. Both | ⅞, defense counsel made their objections and arguments. Hartford’s objection as to authenticity came after the trial court ruled on the admissibility of the tapes and after the tapes were played for the jury. The objection was untimely, and as a result, precludes review of this issue on appeal. See La.C.Cr.P. art. 841.
This assignment is without merit.
HOGAN’S ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, Hogan argues that the state failed to produce sufficient evidence to sustain his conviction for attempting looting during a state of emergency. The standard of review for the sufficiency of evidence has been discussed above in Hartford’s first assignment of error.
As discussed above, Officer Pichón testified that he responded to a call of looting at a store at the corner of Danneel and Seventh Streets. He stated that he was on patrol in anticipation of Hurricane Isaac. At trial, the state introduced into the evidence the State of Emergency declared in anticipation of Hurricane Isaac. Officer Pichón testified that when he arrived on the scene, he observed one subject, later identified as Hogan, standing outside the store in the adjoining alleyway, next to a hole in the wall of the store. After arresting Hogan and Mr. Fox, Officer Pichón then stuck his head into the hole to get a visual of the interior of the building and to determine if any other subjects were present inside. The officer shined his handheld flashlight into the building and observed Hartford walking from the rear of the building through the food preparation area. After observing Hartford in the building, Officer Pichón told Hartford to come out of the building. Hartford put his hands through the hole. Officer Pichón handcuffed him and escorted him from the building. Upon entering the store, the officer noted that a sink or table was pushed away from the wall where the hole was made and water 122was flowing from a faucet. A water pipe had broken when the defendants moved the sink away from the wall in order to gain entry to the building. Several items, including alcohol and cigarettes, were grouped together on a table. It appeared that the defendants had packaged everything together to carry them out at one time.
The trial testimony reveals that Hogan intended to enter or entered the store without authorization from the owner; in which normal security of property was not present because of Hurricane Isaac, and obtained or exerted control over or damaged or removed property of the owner. This evidence was sufficient for the jury to conclude that Hogan was guilty of attempted looting during a state of emergency-
■HOGAN’S ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, Hogan contends that the trial court imposed an excessive sentence. The standard of review for excessive sentences has been set forth above in the discussion of Hartford’s second assignment of error.
In the case at bar, Hogan was adjudicated a fourth felony offender and sentenced to twenty years at hard labor, the minimum sentence under the multiple offender statute. Hogan argues that the minimum sentence was excessive. However, like Hartford, Hogan has not presented clear and convincing evidence that the sentence is excessive.
The trial court, in sentencing Hogan, noted that he had three prior convictions within a three year period: possession of a stolen vehicle, unauthorized use of a motor vehicle, and simple burglary of a motor vehicle. The court also recognized that he previously had his probation revoked in regards to his conviction for possession of a stolen vehicle. The trial court stated that it took into | ^consideration that the incident occurred during the beginning of Hurricane Isaac. and that the city was under a state of emergency. The trial judge referenced the testimony of the crime scene technician concerning the rain and wind that she encountered while photographing the scene. The trial court noted that the police officers and crime lab technician were placed in harm’s way by having to traverse a dark alleyway during the storm.
We find, like in Hartford’s case, that the trial court set forth sufficient reasons for the sentence imposed. Hogan produced no evidence to suggest that the sentence is excessive. The trial court did not err in the sentence imposed on Hogan.
This assignment of error is without merit.
HOGAN’S ASSIGNMENT OF ERROR NUMBER 3
Hogan also suggests that the trial court erred when it allowed the state to introduce into evidence the recorded jailhouse phone calls made by Mr. Spivey. This argument was also raised by Hartford and is discussed in Hartford’s third assignment of error. For the same reasons discussed above, this assignment is without merit. CONCLUSION
Accordingly, Hartford’s and Hogan’s convictions and sentences are affirmed.
AFFIRMED.
Notes
. Co-defendants Irvin Fox and Gregory Spi-vey were charged in the same bill of information with looting during a state of emergency. Mr. Spivey pled guilty as charged on 2 April 2013 and was sentenced to three years at hard labor without benefits of parole, probation, or suspension of sentence, with credit for time served. Mr. Fox pled guilty as charged on 29 May 2013, adjudicated a second offender, and was sentenced to ten years at hard labor without benefits of parole, probation, or suspension of sentence, with credit for time served.
. See the discussion of errors patent, infra.
. The exhibits that were introduced at trial by the state were initially thought to be lost.
They were, however, subsequently located, and thus the record on appeal is complete for appellate review.
. Ordinarily, when a conflict exists between an orally assigned sentence and the minute entry of sentence, the orally assigned sentence prevails.
. La. R.S. 14:27 states in pertinent part:
D. Whoever attempts to commit any crime shall be punished as follows:
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(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.
. La. R.S. 14:62.5 provides in pertinent part:
C. Whoever commits the crime of looting during the existence of a state of emergency, which has been declared pursuant to law by the governor or the chief executive officer of any parish, may be fined not less than five thousand dollars nor more than ten thousand dollars and shall be imprisoned at hard labor for not less than three years nor more than fifteen years without benefit of probation, parole, or suspension of sentence. [Emphasis supplied.]
.According to La. R.S. 15:529.1 G, "[a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.” [Emphasis supplied.]
. See the discussion of errors patent, supra.
. La. R.S. 15:529.1 A states in pertinent part:
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;.... [Emphasis supplied.]