author: 12AMY, Judge. | THIBODEAUX, J.,

text:
    STATE of Louisiana v. Billy Frank JACKSON.
    No. 03-1079.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Rehearing Denied March 10, 2004.
    Robert Richard Bryant, Jr., District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Billy Frank Jackson.
    Billy Frank Jackson, Angola, LA, pro se.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   12AMY, Judge.

The defendant was convicted of simple burglary, aggravated rape, two counts of second degree kidnaping, and theft of goods over $500.00. The defendant appeals the conviction for aggravated rape, alleging the State presented insufficient evidence to support the charge. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

The offenses alleged in this matter occurred on September 29, 2001 at a house in Lake Charles, Louisiana. The record reveals that, on that date, R.M. and a friend, Johnette Duhon, arrived at the house where they were finishing a painting job. The house was for sale, with the owners visiting only occasionally.

According to the testimony of R.M. and Ms. Duhon, they found the door unlocked upon arriving at the house. After they entered, Ms. Duhon went upstairs to turn on lights. While upstairs she encountered the defendant, Billy Frank Jackson. The record indicates that the defendant was homeless and had been staying in the house. As will be discussed in detail below, the State alleged that the defendant forced Ms. Duhon downstairs, holding a pair of scissors to her neck, and that the two joined R.M. Eventually, the State alleges, the defendant forced both women upstairs, bound Ms. Duhon, and locked her in a closet. After doing so, the State alleges, the defendant raped R.M. and eventually also locked her in a bathroom. The defendant subsequently escaped, taking R.M.’s truck. The women escaped, contacting authorities.

|sThe defendant was subsequently arrested in Houston, Texas. On November 29, 2001, the defendant was charged by indictment of aggravated burglary, a violation of La.R.S. 14:60, aggravated rape, a violation of La.R.S. 14:42, two counts of second degree kidnaping, violations of La. R.S. 14:44.1, and theft of an item valued at over $500,00, a violation of La.R.S. 14:67. The defendant waived formal arraignment and pled not guilty to the charges. After a trial by jury, the defendant was convicted as charged for aggravated rape, second degree kidnaping and theft, but on the charge of aggravated burglary, he was convicted of the responsive offense of simple burglary.

On the aggravated rape conviction, the defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. For simple burglary, the defendant was sentenced to ten years in the Department of Corrections. For each count of second degree kidnaping, the defendant was sentenced to twenty years without benefit of parole, probation or suspension of sentence. Finally, for theft, the defendant was sentenced to serve ten years. Each of the latter four sentences were ordered to be served concurrent with the life sentence for aggravated rape.

The defendant appeals, questioning the sufficiency of the evidence for the aggravated rape conviction.

Discussion

Patent Error

In accordance with La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. We find two such errors.

First, we observe an error in the grand jury indictment charging the defendant. Along with the above-referenced crimes, the defendant was charged with [/Aggravated Rape.” Reference was made to La.R.S. 14:42, the statute defining aggravated rape. However, in the description of the offense, the indictment reads as follows:

COUNT II: BILLY FRANK JACKSON DID ENGAGE IN VAGINAL SEXUAL INTERCOURSE WITH [R.M.], A FEMALE, WHO IS NOT THE SPOUSE OF THE DEFENDANT AND WITHOUT THE VICTIM’S LAWFUL CONSENT AND UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS PREVENTED FROM RESISTING THE ACT BY FORCE OR THREATS OF PHYSICAL VIOLENCE UNDER CIRCUMSTANCES WHERE THE VICTIM REASONABLE [sic] BELIEVED THAT SUCH RESISTANCE WOULD NOT HAVE PREVENTED THE RAPE.

Rather than tracking the language of La. R.S. 14:42, the latter portion of the above description closely follows the description of forcible rape contained in La.R.S. 14:42.1.

Louisiana Constitution Article I, § 15 provides that: “Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.” With regard to the content of an indictment, La.Code CrimP. art. 464 provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

| sIn the present case, we do not have error in the citation, but rather a discrepancy between the statute number and the description of the offense provided. Although the defendant has not complained of the conflict, we address the difference in the provisions, as it is discoverable by the inspection of the pleadings/proceedings.

La.Code CrimP. art. 487 provides:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered. ■

In State v. Birabent, 305 So.2d 448 (La.1974), the Louisiana Supreme Court reviewed an indictment that described the offense of manslaughter, but on the reverse side of the indictment form, the endorsement read “Murder.” After the first witness testified at trial, the defense counsel moved to limit evidence related to manslaughter. The State sought amendment of the bill or, alternatively, the declaration of a mistrial. The trial court granted the mistrial. On appeal, the State asserted that the indictment contained a substantive defect rendering the entry of the mistrial lawful. Therefore, the State argued, double jeopardy principles did not prevent prosecution of the | adefendant. In finding that the mistrial was illegally entered, the supreme court explained:

We acknowledge that a substantial defect in the indictment would be grounds under La.C.Cr.P. art. 775(3) for the declaration of a mistrial. Such a defect in the indictment would constitute “a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” See Official Revision Comment (g) to La. C.Cr.P. art. 775. Therefore the central issue for our determination is whether the indictment which formed the basis for relator’s prosecution contained a substantial defect.
There did not exist in this prosecution a legal defect which would render any judgment entered upon a verdict reversible as a matter of law. The indictment which formed the basis for the relator’s prosecution was a perfectly valid indictment for the crime of manslaughter. The 'word “MURDER” and the alphabetical and numerical statutory designation “1950 L.R.S. 14:30” do not constitute any part of the finding of the grand jury; the endorsement is not a substantive part of the charge. See State v. Lawrence, 221 La. 861, 60 So.2d 464 (1952); see also State v. DeHart, 109 La. 570, 33 So. 605 (1903). Nothing which took place during the proceedings would have vitiated a judgment entered upon a verdict rendered at the close of trial.

Id. at 451 (footnote omitted).

While Birabent involved a situation where the defendant challenged the sufficiency of the indictment, and did so prior to conviction, the instant matter involves a situation where the defendant has never contested the indictment’s sufficiency. The Louisiana Supreme Court has explained that, given La.Códe Crim.P. art. 841"s requirement of contemporaneous objections, “a defendant may not raise the sufficiency of an indictment for the first time after conviction ... especially when the charging document fairly informed him of the charge against him and the alleged defect did not prejudice him.” State v. Allen, 01-2494, p. 1 (La.6/21/02), 824 So.2d 344, 344. The supreme court found that, by failing to allege that an indictment provides inadequate notice of the charge prior to trial, the defendant had waived the claim. Id. See also State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916; State v. Miller, 99-950 (La.App. 3 Cir. 2/2/00), 757 So.2d 744; State v. Clay, 623 So.2d 211 (La.App. 2 Cir.1993).

In the present case, the defendant has not questioned the sufficiency of the indictment nor asserted that he was in any way misled by the above-described conflict. Instead, it appears that this matter proceeded as an aggravated rape charge since institution of the prosecution. In addition to the two references to the crime of aggravated rape on the indictment, the defendant’s motion for bill of particulars specifically seeks information related to the charge of “aggravated rape LSA R.S. title 14:42.” In response to the bill of particulars, the State presented evidence indicating that the investigation phase of the proceedings was pursued as one for aggravated rape. Furthermore, in opening statements, both the State and counsel for the defendant referenced the charge as being one for aggravated rape, a charge on which the court instructed the jury. Given these factors, we do not find that the defendant was without notice of the charge. As the defendant did not raise this issue in pre-trial proceedings, the matter is now waived and does not require correction on appeal.

Also on patent error review, we observe that the defendant was not informed of the two-year time limit for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Accordingly, we remand this matter with instructions to the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 within ten days of the rendition of this opinion. The trial court is further instructed to file written proof into the record that the defendant received the notice.

Sufficiency of the Evidence

In his sole assignment of error, the defendant contends that the State failed to introduce evidence sufficient to support the guilty verdict for aggravated rape. He | Sargues the sexual relations were consensual and focuses on what he alleges are inconsistencies between R.M.’s trial testimony and her statements to the investigating detective. The defendant alternatively claims that, if this court finds the sexual relations were not consensual, the degree of force was so minimal that a verdict of forcible rape should have been returned.

When sufficiency of the evidence is raised on appeal, the reviewing court considers whether the evidence, viewed in a light most favorable to the State, is sufficient to have convinced a rational trier of fact that the State has proven all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921.

In pertinent part, La.R.S. 14:42 defines aggravated rape as:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by the apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

The trial court instructed the jury as to Subparagraphs 1,2, and 3.

The State presented evidence that R.M. and Ms. Duhon arrived at a Lake Charles house which they had been hired to paint. According to their testimony the back door was unlocked at the time of their arrival. The women entered the house, with Ms. Duhon going upstairs to turn on lights. R.M. inquired when she heard a strange sound coming from upstairs. Ms. Duhon replied, “No,” but, according to 19R.M., not in her usual voice. While R.M. was deciding whether to call for help, the defendant entered the room with his arm over Ms. Duhon’s chest. According to R.M., he had a pair of red-handled scissors to her throat.

R.M. testified that the defendant asked whether she had called the police. She told him “No.” She explained that he then told her if she called the police, he would kill her friend. R.M. explained that he then checked to see what numbers had been dialed. According to R.M., the defendant still had the scissors on Ms. Duhon during this time. R.M. testified that she tried to keep a conversation going so that he would not kill them. She explained that she told the defendant that they were there to paint and that they were not going to hurt him.

According to R.M., she attempted to “ignore the situation,” opening a can of paint and inquiring whether the defendant wanted a beer. Ms. Duhon stated that she wanted a cigarette. The defendant stated that he also wanted a cigarette. As the cigarettes were in R.M.’s truck, the defendant, still holding Ms. Duhon with the scissors, went to the truck. R.M. explained that she followed them. When asked at trial why she did not run, R.M. initially responded that she did not know, but shortly thereafter, she explained that she was not going to leave Ms. Duhon. R.M. stated that, after retrieving the cigarettes, the three returned to the house and the defendant started smoking a cigarette. R.M. stated that the defendant told her that he had “had enough of this and it was time to go upstairs.” R.M. testified she told him “No ... We’re not going anywhere. We’re staying right here in the kitchen. This is where the job needs to be done, I’m not going.” According to R.M., the defendant said, ‘Tes, we’re going.” After putting the scissors in his pocket, he pulled out a knife and put it to Ms. Du-hon’s throat and said: “I said now. We’re going upstairs.”

|]0R.M. denied remembering how the three arrived upstairs. However, she explained that, once upstairs, the defendant put down his lit cigarette and retrieved another pair of scissors, ones with black handles. He then used the scissors to cut various electrical cords. Although he was not holding either woman while doing so, R.M. explained that there was only one way out of the hallway and it was “right over him.”

R.M. testified that she continued to talk to the defendant and that he told her “that he had killed a woman in Houston and he would not hesitate killing two more, for me to shut up.” Although Ms. Duhon denied hearing the defendant verbalize a threat, R.M. testified that the threat was made after Ms. Duhon was put into a closet.

R.M. explained that the defendant gave her a cord, and told her to tie up Ms. Duhon. She stated that the defendant then tied it tighter and put either the knife or scissors to Ms. Duhon’s shoulder and pushed her into a closet. The defendant then attempted to tie two doorknobs together. R.M. testified she did not leave at that point because, “he would’ve killed one of us. He’d have got hold to Johnny then if I would’ve left.” The defendant was unable to tie the doorknobs together, so he removed the cords and checked to make sure Ms. Duhon was not going anywhere. R.M. testified that the defendant told her to go into a room. She described the events that transpired at that point as follows:

A So, I walked in that room, and he had told me, he said, “I’m going to f — you” And I said, “I don’t think you are.” He said, “oh, yeah, I am.” And I said, “You don’t talk to me like that. You don’t use that word to me. Nobody f — s me.” And—
Q What did he do then?
A And he came up to me, he twisted my shirt around my neck, placed the knife on my throat; you do it or I do it.
InQ And what did you do?
A I told him that I was afraid of the knife and I didn’t want it anywhere around me, that he was giving me no choice, that I had no choice. He said, “This is how it has to be.” I said, “I don’t want to see the knife. I don’t want it on me.” So, he told me to get down on that bed; I told him, “No.” I said, “I don’t want to be in this room, I want to go in the room that has the waterbed.”
Q Why was that?
A Because they had some weapons in there that could’ve been used.
Q Was it weapons?
A There were drum stands, there were stainless steel drum stands that were folded on the floor.
Q Okay.
A So—
Q Okay. You’re in the room with the drum stands.
A So, I was sitting on the bed, and he went back into the hallway to tie Johnny’s door up more.
Q And then what did he want?
A He told me, he says, you stay in there; I said, “I’m not staying in there by myself,” because I needed to know wherever he was, and I needed Johnny to be okay.
Q Okay.
A Because as long as, you know, all three of us were there, you know — so, he finished tying the doorknob and that, we went into the room, and he pushed me on the floor. I told him to leave the light on because, I said, “I want to see your face.”
Q Why did you say that?
A I didn’t know who he was.
|1gQ And then what?
A He got on top of me and he had intercourse with me.
Q Now, where were you laying when ■this happened?
A On the floor.
Q Why not on the bed?
A Because I needed to get close to the stands, and another thing I was thinking, if he’d get in there and he’d push me in that waterbed, I wouldn’t have enough time to get out before he killed me.
Q Okay. You said he had intercourse with you.
A Uh-huh. (yes)
Q So, does that mean he penetrated you vaginally?
A Yes.
Q With his penis?
A Yes.
Q Now, while he was doing this, were you talking to him?
A Yes.
Q What were you saying?
A [Pause] [crying] Um, I was just telling him how wonderful he was and what a man he was.
Q Why were you doing that?
A Because I didn’t want to die.
Q Did you think that would keep him from killing you?
A I don’t know, but I wasn’t going to fight him.
Q And then at some point, he was having problems, correct?
A Uh-huh. (yes)
|13Q What was that?
A He was having to hold himself because he couldn’t control himself, because he couldn’t handle me talking to him.
Q And what did he do?
A He was getting worried, so he pushed me away, and when he did that, the only thing — he was headed back to the hallway and that’s where the knife was.
Q What did you do whenever he pulled away from you?
A I grabbed his arm and I told him, I said, “You’re not finished yet, you’re not going anywhere.”
Q Why did you do that?
A Why?
Q Yes.
A One thing, he would never expect is for someone to say something like that, and I didn’t want him to go get that knife.
Q Why would he go get the knife?
A Because he already got what he wanted.
Q "When you did that, you pulled him back, what happened?
A I told him, I said, you know, I said, “I wish we would’ve met under different circumstances because,” I said, “you’re such a man.”
Q Did you mean that?
A No.
Q Well, what happened when you told him that?
A He told me he was going to have to tie me up, and I said, “no.”

The defendant then pushed R.M. into a bathroom. She stated that she could hear the defendant trying to tie something to the door. A short time later, the defendant opened the door, asked for her shoes, and then continued his attempts to lutie the door. R.M. explained that, about five to ten minutes later, she heard her truck start. She kicked the door of the bathroom, and after getting out, she went to a window where she watched the defendant drive off in her truck. R.M. then told Johnette to stay where she was and not to make a sound. R.M. then went for help.

R.M. was questioned at trial about her behavior toward the defendant. She explained that she was “being passive to someone that was being aggressive!.]” When R.M. was asked if she tried to “get inside his head in some way,” she stated that she was doing what she had been taught in a course. She explained that it was not that she was being friendly to him, she just attempted to remain calm and talked continuously. R.M. maintained that she did not want to have sex with the defendant and that she did so because she thought he was going to kill them if he did not get what he wanted. She testified that the defendant told her he was not going to hurt her after she was put in the bathroom. R.M. was asked if she heard the defendant say downstairs that he was not going to hurt her. She explained that the statement in question was directed to Ms. Duhon, not her.

At trial, the investigating police officer, Detective David Rupf of the Lake Charles City Police Department, testified that R.M. told him that when the defendant tried to get off of her, she grabbed him and told her it had been a long time since she had been with a man and that he was going to finish. In R.M.’s testimony, she denied telling the police this. She said this may have been their “form of it,” but she denied making that particular statement. R.M. testified that she asked the defendant where he was going and told him he was not finished yet “because he was headed ... to the hallway, and he wasn’t going to kill me.” Detective Rupf testified that he did not 1^recall R.M. telling her that the defendant twisted her shirt around her neck while holding a knife to her.

As for the location of the weapons during the rape, R.M. testified the defendant did not have the knife, but he still had the scissors. It is not clear from the victim’s testimony if the scissors were in his hand or lying on the floor. R.M.’s testimony regarding the location of the weapons during the rape was as follows:

Q Now, once you’re in the hallway walking from room to room, isn’t it true that you told him that you were scared of the knife and would not have sex with him unless he put the knife down?
A I told him I was afraid of the knife and I wouldn’t have anything to do with him unless he put the knife down. But he still had the scissors.
Q Did you tell him — tell the police that you made him keep his hands on your body so you knew where his hands were at all times?
A He had one hand on his penis and the other hand was on my shoulder, holding me down; and the scissors were next to my head.

In State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992), a panel of this court reviewed a conviction for forcible rape that involved very disputed facts. In its application of the Jackson standard of review, the court stated:

This case clearly presents a classic divergence of testimony. The victim characterized defendant’s actions as an act of rape, and the defendant maintained that the victim consented to sexual intercourse. Thus, the determination of the sufficiency of the evidence hinges upon witness credibility. It is well established in our jurisprudence that the fact finder may accept or reject, in whole or part, the testimony of any witness. State v. Nolan, 503 So.2d 1186 (La.App. 3rd Cir.1987), writ denied, 507 So.2d 226 (La.1987).
The jury, sitting as the trier of fact, had the distinct opportunity to view each individual witness’s demeanor, listen to their respective testimony, and assess credibility. Their firsthand knowledge of the witnesses’s testimony is an immeasurable advantage when compared to our limited review within the four corners of the cold record. In the case I wsub judice, the jury chose to believe the testimony of the victim along with the testimony of Dr. Bouillion over defendant’s denials. Since the record fully supports the jury findings, this court will not engage in reevaluating the credibility of witnesses and reweighing the other evidence adduced at trial.

Id. at 76.

In the present case, the occurrence of sexual intercourse is undisputed; the contested issue is whether the sex was consensual. R.M. testified the defendant had a knife to her throat when he ordered her to undress. Although the defendant put the knife down prior to the rape, R.M. testified the defendant had one hand on her shoulder and the scissors were near her head. Although it is not clear whether the scissors were actually in the defendant’s hand during the perpetration of the rape, the jury was reasonable in determining that they were easily accessible to him. The victim testified that she had sex with the defendant because she thought he was going to kill them if he did not get what he wanted. Furthermore, the jury heard R.M.’s testimony and the defendant’s videotaped statement to police and was made aware of inconsistencies in R.M.’s testimony pointed to by the defense. After hearing these versions of events, the jury found credibility in that of R.M. After instruction on both forcible and aggravated rape, the jury returned a verdict of guilty of aggravated rape. In light of the credibility determination inherent in the verdict and the testimony contained in the record, we conclude that a rational trier of fact could have found the essential elements of aggravated rape proven beyond a reasonable doubt. Accordingly, under the dictates of the Jackson standard, the conviction for aggravated rape is affirmed.

This assignment lacks merit.

|17DECREE

For the foregoing reasons, the defendants convictions are affirmed. This matter is remanded and the trial court instructed to inform the defendant of the time delays of La.Code Crim.P. art. 930.8. The trial court is further instructed to file written proof into the record that the defendant received the notice.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

| THIBODEAUX, J.,

dissenting.

The majority concludes that the Defendant’s failure to object to the sufficiency of the indictment waives any argument regarding that indictment. Further, the facts support a finding that the Defendant was not without notice of the charge of aggravated rape. I disagree.

It was unnecessary for the Defendant to question the sufficiency of the indictment. The indictment was sufficient to charge a valid crime — the crime of forcible rape. The indictment does not violate La.Code Crim.P. art. 487. It does not contain “any defect or imperfection in, or omission of, any matter of form only,” nor is it insufficient “because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein.” La.Code Crim.P. art. 487(A). The indictment conforms with La.Code Crim.P. art. 464 in that it is “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” La.Code Crim.P. art. 464. While there is a discrepancy between the statute number and the description of the crime charged, “[ejrror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a | ^conviction if the error or omission did not mislead the defendant to his prejudice.” La.Code Crim.P. art. 464.

The charging document, the indictment, fairly informed him of the charge of forcible rape. While the majority finds that the Defendant was not without notice of the charge of aggravated rape, a bill of particulars is not a “charging document” nor is an opening statement a “charging document.”

In State v. Birabent, 305 So.2d 448 (La.1974), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975), the grand jury charged the defendant with having unlawfully killed the victim, which conformed to the short-form indictment for manslaughter as set out in La.Code Crim.P. art. 465. However, the back of the indictment contained the endorsement “murder.” After the first witness testified, the error was called to the court’s attention by defense counsel, who moved that the court restrict the reception of evidence to that pertaining to manslaughter. The court agreed and at that point, the state- requested it be allowed to amend the bill or that the court grant a mistrial. The judge granted a mistrial and the following month, the state filed a motion seeking to correct the indictment to charge murder. At the hearing on the motion, the grand jury foreman testified that the grand jury had voted to indict the defendant for murder. Thus, the court allowed the correction of the bill and an arraignment date was set. The defendant then filed a motion to quash the bill on the grounds of double jeopardy. Specifically, the defendant contended that the court erred in .granting the mistrial because the charging instrument was a valid indictment for manslaughter; thus, to allow prosecution on a corrected bill would constitute double jeopardy. The trial court denied the motion to quash. On appeal, in addressing whether the reprose-cution of the defendant would constitute double jeopardy, the supreme court was called upon to determine whether the mistrial was legally ordered under the provisions of La.Code 13Crim.P. art. 775. The ground for a mistrial which was at issue was whether “[t]here [was] a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” The court stated:

We acknowledge that a substantial defect in the indictment would be grounds under La.C.Cr.P. art. 775(3) for the declaration of a mistrial. Such a defect in the indictment would constitute “a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” See Official Revision Comment (g) to La. C.Cr.P. art. 775. Therefore the central issue for our determination is whether the indictment which formed the basis for relator’s prosecution contained a substantial defect.
There did not exist in this prosecution a legal defect which would render any judgment entered upon a verdict reversible as a matter of law. The indictment which formed the basis for the relator’s prosecution was a perfectly valid indictment for the crime of manslaughter. The word “MURDER” and the alphabetical and numerical statutory designation “1950 L.R.S. 14:30” do not constitute any part of the finding of the grand jury; the endorsement is not a substantive part of the charge. [FN 2] See State v. Lawrence, 221 La. 861, 60 So.2d 464 (1952); see also State v. DeHart, 109 La. 570, 33 So. 605 (1903). Nothing which took place during the proceedings would have vitiated a judgment entered upon a verdict rendered at the close of trial.

Id. at 451.

The supreme court concluded the trial court had improperly granted the mistrial and thus erred in denying the motion to quash.

In State v. Brown, 506 So.2d 1261 (La.App. 2 Cir.1987), one of the charges in the original bill filed against the defendant was titled, “Poss. Sch. II |4w/Intent.” The body of the bill stated that the defendant committed the offense of “Poss. Sch. II w/Intent” in that he “did knowingly and intentionally possess and have under his control, a Schedule II, controlled dangerous substance, to-wit. Preludin (Phenme-trazine),” Id. at 1262. Thus, both the title of the bill and the body charged the defendant in count two with possession of a Schedule II substance with intent to distribute; however, as written, the defendant was charged with simple possession. Prior to trial, the judge noticed the discrepancy and noted to counsel that the charges were improperly joined as the modes of trial were different. After the error was pointed out, the state moved to sever the counts, stating it would file a new bill as to the second count. Trial commenced with a six person jury. Thereafter, the state formally filed the new bill of information which charged the defendant with simple possession. Defense counsel objected to the filing of the new bill and, on appeal, argued the trial court should have granted a mistrial as the amendment to the bill was one of substance which should not have been allowed after trial had begun. In addressing the claim, the second circuit stated:

The Code of Criminal Procedure clearly indicates that the nature of the charge against a defendant is determined by the “indictment.” An indictment is defined as the written accusation of the crime. LSA — C.Cr.P. Art. 388. More specifically, it is defined as “a plain, concise and definitive [sic] written statement of the essential facts constituting the offense charged.” LSA— C.Cr.P. Art. 464. Thus, it is not the title of the offense which is determinative of the nature of the offense or “indictment,” but it is rather the substance thereof. See also, State v. Birabent, 305 So.2d 448 (La.1974). Indeed, as Art. 464 points out, error in the citation of the offense, or even its omission, is not grounds for dismissal or reversal absent a showing of prejudice, although the article requires that the customary statutory citation be provided for each offense charged.
Thus, it is clear that the amendment of the bill to change the title of the offense charged is not one of |fisubstance and is therefore an amendment which may occur after trial has commenced.

Id. at 1264.

As mentioned previously, the caption of the indictment states the Defendant was charged with aggravated rape. The body of the indictment also refers to aggravated rape and a violation of La.R.S. 14:42; however, the body of the charge tracks the forcible rape statute. Under the above cited case law, the written charge would be considered, in which case the Defendant was charged with forcible rape, not aggravated rape.

Following Birabent, the indictment was a valid indictment for forcible rape. To avoid the danger of a double jeopardy violation, we should examine the evidence and determine whether the elements of forcible rape, the offense validly charged in the indictment, were proven at trial. The elements of forcible rape were clearly proven given the fact the Defendant was armed with a dangerous weapon and the victim testified she feared he would kill them if he did not get what he wanted. Additionally, we note the jury was instructed as to the elements of forcible rape, which is a valid responsive verdict to the crime returned by the jury. See La. Code Crim.P. art. 814. Thus, this court should enter a verdict of forcible rape and remand the case for resentencing.

For the foregoing reasons, I respectfully dissent.

      . Pursuant to La.R.S. 46:1844(W), the victim's initials are used throughout for confidentiality purposes.

      . La.R.S. 14:42.1 provides, in pertinent part:
      A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

      . Even if the face of the indictment and the back could be read together to charge murder (see State v. Cooper, 249 La. 654, 190 So.2d 86 (1966)), the indictment would still support a verdict. The defendant would have been in jeopardy for murder. Errors in court rulings are not attributable to defendant. A court order of a mistrial under the indictment (if read as a murder indictment) without a motion by defendant constitutes double jeopardy.


source: Caselaw Access Project

author: | .BILLY HOWARD EZELL, Judge. | ¶ SAUNDERS, J.

license: Public Domain

text:
    Cecil BROOKING & Elizabeth Brooking v. Victor P. VEGAS & Betty Rives Vegas.
    No. CA 03-1114.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Jack Hendrix McLemore, Jr., Attorney at Law, Vidalia, LA, for Defendants/Appel-lees, Victor P. Vegas, Betty Rives Vegas.
    Josiah William Seibert III, Attorney at Law, Vidalia, LA, for Plaintiffs/Appellants, Cecil Brooking, Elizabeth Brooking.
    Patrick L. Boothe, Smith, Taliaferro & Purvis, Jonesville, LA, for Defendants/Ap-pellees, Victor P. Vegas, Betty Rives Vegas.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   | .BILLY HOWARD EZELL, Judge.

Elizabeth and Cecil Brooking appeal a trial court finding that Betty and Victor Vegas acquired title to a small strip of land by thirty-years acquisitive prescription. The Brookings argue that their actions interrupted the running of the thirty-years acquisitive prescription.

FACTS

The property in dispute is located in Concordia Parish, Louisiana. The Brook-ings and Vegases own contiguous tracts of land which were once both owned by a common ancestor, the Panola Land and Development Company. On February 18, 1971, Panola sold a tract of land known as Lot A to May Beard Caskey.

At the time of the sale to Caskey, a fence was located adjacent to the southwestern boundary of Lot A. However, the location of the fence did not coincide with the southwestern boundary of Lot A.

On January 3, 1977, Cecil Brooking purchased from Panola that portion of land adjacent to Caskey’s property. Subsequently, in November 1977, Caskey sold Lot A to the Vegases.

In May 1999, and as a consequence of the development of the Brooking property and the preparation of a new plat of survey, the Vegases and the Brookings agreed that their respective surveyors would make separate determinations as to the boundaries established by their titles. The Brookings employed the firm of Jordan, Kaiser & Sessions, and the Vegases hired Gary Caldwell. Both surveys concluded that the titles established the boundary between the two pieces of land at the same location, which was not along the fence line. No one questions that the deeded line is correct.

13As a result of the surveys, the Brook-ings hired Roger Deville in September of 1999, who removed remnants of the fence. On April 9, 2001, the Brookings filed suit to judicially fix the boundary. In their answer, the Vegases alleged acquisitive prescription of the property in question.

A trial was held on April 1, 2002. Reasons for judgment were rendered on March 7, 2003. Amended reasons were rendered on April 4, 2003, and judgment was signed that same day in favor of the Vegases finding that they established title to the disputed property by thirty-years acquisitive prescription. The Brookings appeal that judgment asserting four assignments of error. These errors relate to the trial court’s finding that the Vegases had proven title by thirty-years acquisitive prescription.

ACQUISITIVE PRESCRIPTION

The issues in this case center around the fence on the property that was obviously placed on the property when Panola was the owner of both pieces. While admitting the title ownership of the Brookings to the disputed piece of land, the Vegases alleged that they and their ancestor-in-title, Cas-key, possessed the disputed piece of land up to the fence for the purposes of thirty-years acquisitive prescription. They claim that prescription began to run on February 18, 1971, when Caskey acquired the property and began possessing the land up to the fence. The Brookings argue that they interrupted prescription before the thirty-years ran by conducting a survey and removing the visible portions of the fence.

“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La. Civ.Code art. 3446. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that lawhich has been actually possessed.” La. Civ.Code art. 3487. “Acquisitive prescription is interrupted when possession is lost.” La.Civ.Code art. 3465. “The interruption is considered never to have occurred if the possessor recovers possession within one year or if he recovers possession later by virtue of an action brought within the year.” Id. “Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation.” La.Civ. Code art. 3433.

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.” La.Civ.Code art. 794. “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than them title called for, the boundary shall be fixed along these bounds.” Id.

In discussing the burden of proof in an action to establish acquisitive prescription this court stated:

It is well settled that the party pleading acquisitive prescription bears the burden of proving all of the facts that are essential to support it. The proof required to fix a boundary according to acquisitive prescription is the same proof required to prove ownership in a petitory action based on 30 year acquisitive prescription, i.e., continuous, uninterrupted, peaceable, public and unequivocal possession with a positive intention to possess as owner.

Mistric v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir.1992), writ denied, 612 So.2d 102 (La.1993).

The interruption of acquisitive prescription is by acknowledgment, by filing suit, or when possession is lost. Pisón, Inc. v. Jackson, 633 So.2d 234 (La.App. 1 Cir.1993).

The Brookings do not disagree with the trial court’s findings that the Vegases’ ancestor-in-title, Caskey, exercised acts of possession over the disputed piece of land, l4in the form of mowing and using the fence to keep horses locked up. The Ve-gases continued to exercise control over the disputed piece of land. This included placing plants and exotic palms near the fence. However, they claim that the Ve-gases lost the right to possess the land before the thirty years had passed.

Possession of the disputed strip of land commenced on February 18, 1971, so if possession was not interrupted, the Vegas-es would have acquired ownership by thirty-years acquisitive prescription on February 19, 2001. Therefore, we will consider the Brooking’s arguments and whether their actions interrupted the Vegases’ possession of the disputed strip of land so as to interrupt the acquisitive possession.

There is no doubt that both the Brookings and the Vegases conducted surveys, both indicating that the fence line was not the boundary. However, this alone would not be sufficient to interrupt prescription as title is not at issue when establishing thirty-years acquisitive prescription. It is clear from the record that the Vegases continued to possess the land up to the fence line. However, the fence did deteriorate over the years with only some remnants of the fence remaining, a few posts and small amounts of wire were left on the ground. The section of the fence near the lake had been gone for some time.

The Brookings hired Roger Deville in 1999 to remove the remnants of the fence. The trial court found that Deville removed three fence posts but did not remove any fence posts in the Vegases’ plants. Deville testified that he removed as much of the fence as he could. He tried his best to avoid the Vegases’ plants but removed some of the palms because they were actually growing in the fenced area. It was Tom Butcher who testified that he did some work for Mr. Brooking and removed three fence posts. Mr. Brooking also testified that two to three fence posts were removed at a later time, after Deville had removed the posts.

IfiMr. Vegas admitted that he quit maintaining the fence when Mr. Brooking took cattle off his property. He did not go out and replace the fence that had been torn down. However, Mr. Vegas testified that, even after Mr. Brooking removed the fence, he continued to mow up to the same point as he had before.

John Swalm, a surveyor employed by Jordan, Kaiser and Sessions who performed the survey in May 1999, testified about the condition of the fence when he surveyed the property. He explained that, at the time of the survey, he did not know that there was a dispute concerning the fence line. However, he did remember the condition of the fence line and told the court that there were more than 10 fence posts but less than 30. He stated that it was not much of fence and not really maintained very well and it was located about five feet on the Brooking side. Most of the wire was on the ground.

The trial court found that the removal of the fence posts by the Brookings was not sufficient to interrupt prescription. It further found that the Vegases continued to exercise control over the disputed land.

In Bourman v. Blankenship, 34,558 (La.App. 2 Cir. 4/4/01), 785 So.2d 134, writ denied, 01-1354 (La.6/22/01), 794 So.2d 794, the second circuit agreed with the trial court that the act of bulldozing a fence interrupted the defendants’ possession for the purposes of acquisitive prescription. We disagree with the trial court in this case and find that the Brookings’ actions in removing the fence remnants also served to interrupt the Vegases’ possession of the disputed property.

After the disturbance of their possession, the Vegases were required to recover possession with one year of the disturbance in order to continue their possession for purposes of acquisitive prescription. La.Civ.Code art. 8465. Mr. Vegas testified that he continued to mow up to where the fence line had been even after the fence Rremnants were removed. The palms and other plants that had been planted in the area of the fence were left intact when the fence remnants were removed. While Mr. Deville may have removed some of the plants when he removed the fence remnants, he did not remove them all and specifically tried to avoid them. We find that the trial court did not err in finding that the Ve-gases continued to exercise acts of possession in the area where the fence once existed and, therefore, recovered possession of the disputed land. These acts of possession continued even after the fence was removed. Furthermore, the Brook-ings did not file suit in this matter until after the thirty-years acquisitive prescriptive had run from the date Caskey bought the property.

For these reasons we affirm the ruling of the trial court. Costs of this appeal are assessed to Cecil and Elizabeth Brooking.

AFFIRMED.

SAUNDERS, J., concurs and assigns written reasons.

| ¶ SAUNDERS, J.

concurs.

The resolution of this case hinges on whether or not the actions of the Brook-ings were sufficient to interrupt the thirty-year prescriptive period. Possession of the disputed strip of land began on February 18, 1971, therefore, if possession was not interrupted, the Vegases would have acquired ownership by thirty-years acquisitive prescription on February 19, 2001. It is undisputed that the Brookings did not file suit before the thirty-year period required for the Vegases to obtain ownership of the disputed strip had elapsed. It is also undisputed that the Vegases never acknowledged that title or ownership of the disputed strip of land resided in the Brookings. Although the Vegases were made aware of the actual boundary between the respective tracts of land by their survey, this in and of itself, is insufficient to impute an acknowledgment of ownership of the disputed strip in the Brookings by the Vegases. Therefore, it was incumbent upon the Brookings to show that the acts taken by them were sufficient to suspend or interrupt the thirty-year prescriptive period. Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00), 770 So.2d 392.

In order to do so the Brookings needed to show that their acts were sufficient to divest the Vegases of possession of the disputed strip of land. La.R.S. art. 3465. In May of 1999, both the Brookings and Vegases hired surveyors to demarcate the ^boundary between the respective properties. Although both surveyors concluded that the correct boundary was not located along the “old fence line”, we agree with the majority that this survey was insufficient to interrupt the prescriptive period. Additionally, the Brookings, on two occasions hired persons to remove the remains of the old fence and they assert that this act was sufficient to interrupt the prescriptive period. We note, however, that the Brooking’s workers were careful in not removing any of the palm trees planted by the Vegases along the old fence line. I fail to see how removal of a remnant of a fence that no longer serves any purpose can be said to interfere with ones possession so as to interrupt prescription. Additionally, the Vegases exercised corporeal possession over the disputed strip by continuing to care for the palm trees they planted along the old fence line, continuing to mow the grass up to the old fence line and, continuing in all respects behavior concomitant with an owner of property without any interference from the Brookings. La.Civ. Code art. 3424. It thus seems to me that the acts of the Brookings were not sufficient to divest the Vegases of possession of the disputed strip of land, therefore, I agree with the reasoning of the trial court and its conclusion that there has been no interruption of the running of prescription.

However, assuming for the sake of argument that the acts of the Brookings were sufficient to interrupt the prescriptive period I would still find that the Vegases acquired ownership of the disputed property through acquisitive prescription and I agree with the reasoning of the majority to the effect that Louisiana Civil Code Article 3465 considers the interruption of the thirty-year period never to have occurred if the possessor recovers possession within one-year or if he recovers possession later by virtue of an action brought within the year.

]3I would also note that the case of Bowman v. Blankenship, 34,558 (La.App. 2 Cir. 4/4/01), 785 So.2d 134 while factually similar to the present case, is nevertheless distinguishable. In Bowman the second circuit affirmed the trial court’s finding that bulldozing a fence constituted a disturbance sufficient to interrupt possession for purposes of acquisitive prescription. The court went on to state that the defendants were then required to recover possession of the disputed land within one-year in order to continue their possession for purposes of acquisitive prescription. Although the defendant, in that case, mowed the grass and parked cars in the disputed area, he was unable to prove he performed these acts and recovered possession of the disputed area within the one-year period contemplated by La.Civ. Code art. 3465.

The present case is distinguishable from those found in Bowman in that the Vegas-es never relinquished control over the disputed strip of land. Their acts of possession occurred within the one-year time frame required by La.Civ.Code art. 3465 and would be sufficient for the Vegases to assert a recovery of possession for the purposes of acquisitive prescription.


author:
JjCLARENCE E. McMANUS, Judge.
      | ¶ DALEY, J.,

text:
    David W. GIBSON v. STATE of Louisiana, Richard Ieyoub, Attorney General, State of Louisiana, Harry Morel, District Attorney, 29th Judicial District Court, State of Louisiana.
    No. 03-CA-1112.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Rehearing Denied March 3, 2004.

      David W. Gibson — In Proper Person, Angie, LA.
    Harry J. Morel, Jr., District Attorney, Hahnville, LA, for appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   JjCLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court erred in granting defendant’s exceptions of no right of action and no cause of action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellant in this case is David Gibson who was convicted of theft and forgery and was sentenced as a multiple offender to thirty-two years at hard labor in 1989. His conviction and sentence were affirmed on appeal. See, State v. Gibson, 596 So.2d 832 (La.App. 5 Cir. 1992). His application for post-conviction relief was denied. See, State v. Gibson, 598 So.2d 348 (La.1992). His petition for habeas corpus was denied. Gibson v. Whitley, 1992 WL 211537 (E.D.La.1992).

In August 2002, Gibson filed a pro se petition for declaratory judgment against Attorney General Richard Ieyoub and Harry Morel, the District Attorney for the Twenty-Ninth Judicial District. The petition alleges that La. Const. Art. Y § 26(B) and La. R.S. 16:1(B) are unconstitutional because those provisions conflict with the Separation of Powers Doctrine, Articles I, II, III of the United States Constitution, the Supremacy Clause, Article VI, Clause 2 of the United States [..¡Constitution and La. Const. Art. I § 2. Gibson argues that an error in the Louisiana Constitution of 1974 resulted in an unconstitutional delegation of executive powers to the District Attorney. He believes that the unconstitutional delegation of power to the District Attorney’s Office to prosecute on behalf of the State of Louisiana deprived him and deprives others of due process. He asserts that the court system as it exists is invalid, a court without jurisdiction. Thus, arrests, investigations and criminal convictions are “void” because there is no “properly empowered” executive branch officer in court to legally represent the State of Louisiana.

In response, the St. Charles Parish District Attorney’s Office, (“the DA”), filed exceptions of no cause of action and no right of action. The DA contends that Gibson’s attack on the framework of our judicial system by alleging the DA has no authority to institute and prosecute criminal action for the state is absurd. Thus, Gibson is not entitled to the relief sought. Gibson dismissed the Attorney General as a party in this case. The trial court rendered judgment on the pleadings and granted the DA’s exceptions of no cause of action and no right of action. This appeal followed.

DISCUSSION

Gibson argues that the trial court erred in granting the DA’s exceptions. The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the operative facts alleged in the pleading. Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. P. art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id. citing, Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993).

|4In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court conducts de novo review because the exception raises a question of law. Id. citing, City of New Orleans v. Board of Commissioners of the Orleans Levee Dist., 93-0690, (La.7/5/94), 640 So.2d 237, 253. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording to the plaintiff the opportunity of presenting evidence at trial. Id. citing, Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).

Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.' Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517 (La.2/21/01), 779 So.2d 726. For a declaratory judgment to be granted, there must be a justiciable controversy, as courts are not permitted to issue advisory opinions based on a contingency which may or may not .occur. Id. Courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Id.

Accepting all of the allegations in the petition as true, and applying the legal principles for the exception of no cause of action to the instant case, we find the trial court properly granted the DA’s exception of no cause of action. This situation presents no existing, actual and substantial dispute for which declaratory judgment would be appropriate. No resolution of a justiciable controversy could possibly be served by a declaratory judgment in this case.

Second, we consider whether this particular plaintiff has a right to bring the suit in this case. Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. Code Civ. Proc. Art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La.Code Civ. Proc. Art. 927(A)(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted- in the suit. Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, citing, Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015, (La.11/30/94), 646 So.2d 885, 888. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has á legal interest in the subject matter of the litigation. Id. The trial, court did not err in granting the exception of no right of action.

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.

DALEY, J., dissents.

| ¶ DALEY, J.,

dissents.

I dissent from the majority opinion. First, I disagree with the majority’s characterization of the suit. Plaintiff, David Gibson, filed a Petition for Declaratory Judgment against Harry Morel in his capacity as District Attorney for the 29th Judicial District Court, alleging that R.S. 16:1 and Art. V, Section 26(B) of the Louisiana Constitution (1974) are unconstitutional as being in direct conflict with the Doctrine of Separation of Powers and the Supremacy Clause of the United States Constitution, because, he argues, the Attorney General of the State, who is part of the Executive Branch, is the only officer empowered to represent the State in criminal matters, and the delegation of that authority to the District Attorney, who is part of the Judicial Branch, by the Louisiana Constitution, is in violation of the federal Separation of Powers doctrine. His suit asks that these two statutes be found unconstitutional.

The majority’s opinion does not set forth the basis of the District Attorney’s exceptions, but only states that the District Attorney characterized the plaintiffs suit as “absurd.” The District Attorney’s appellate brief, however, sets forth more significant legal grounds for its position.

The District Attorney, on appeal, cites Robertson v. Caddo Parish, LA, 833 So.2d 1139 (La.App. 2 Cir. 12/11/02), which stated that a suit for declaratory judgment is an appropriate means of testing the constitutionality of a statute or applicability of an ordinance in which there is an actual controversy between the parties.

|2The District Attorney contends that Gibson filed this suit to collaterally attack his previous eonviction(s) now that he has exhausted all of his appellate and post-conviction remedies. The Prayer in Gibson’s Petition, however, does not request that his convictions be overturned. The District Attorney argues that since Gibson’s conviction is final, there is no longer an actual controversy between the parties. I disagree with the majority and the trial court because Gibson is susceptible to prosecution by a District Attorney for violation of a criminal statute. Robertson stated:

The law is clear that a suit for declaratory judgment is an appropriate means of testing the constitutionality of a statute or applicability of an ordinance in which there is an actual controversy between the parties. It is available to test the validity of a criminal ordinance where a criminal prosecution has not yet begun, (cites omitted) * * * In the criminal context, the courts have found ... an individual falls within a class which is threatened with prosecution under an allegedly unconstitutional statute, not after the prosecution has begun.

Robertson’s affirmance of the Exception of No Cause of Action can be distinguished from the current suit, because Robertson sought a determination of the constitutionality of a provision that no longer existed. Specifically, Robertson sought relief based upon the past application of a (since) repealed provision to his 1986 indictment and conviction. In this case, plaintiff seeks constitutional review of the past and current structure of State prosecutorial authority.

I find that Robertson actually supports plaintiffs right and cause of action. Since plaintiff could be prosecuted for criminal conduct in St. Charles Parish, he has asserted a cause of action and he has a right of action. I admit that his cause of action asserts a claim of questionable merit, but the merits are not determined when reviewing exceptions of no cause and no right of action. I would, therefore, reverse the judgment granting the Exceptions and remand for further proceedings.

      . He is presently incarcerated in Angie, Louisiana.


author: SOL GOTHARD, Judge.

text:
    Clark DUFRENE and Catherine Dufrene v. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Alberta L. Williams and Rick’s Custom, Inc. d/b/a Rick’s Auto Collision Center.
    No. 03-CA-1001.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Rehearing Denied March 8, 2004.

      Melvin Ripp, Jr., Gretna, LA, for Plaintiffs/Appellants, Clark Dufrene and Catherine Dufrene.
    Timothy F. Upton, Boudreaux & Upton, Metairie, LA, for Defendants/Appellees, Imperial Fire & Casualty Insurance Company.
    G. Patrick Hand, Jr., the Hand Law Firm, APLC, New Orleans, LA, for Defendant/Appellee, Rick’s Custom, Inc.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   SOL GOTHARD, Judge.

Plaintiffs, Clark and Catherine Dufrene, appeal a judgment of the district court that finds in favor of defendants and dismisses plaintiffs’ negligence action. For reasons that follow, we reverse that judgment.

Plaintiff Catherine Dufrene’s vehicle was damaged, while parked in front of her place of employment, when it was struck by a vehicle driven by Alberta Williams. Mrs. Dufrene’s vehicle, a 1991 Ford Aeros-tar, was towed to Rick’s Auto Collision Center (Rick’s) for repair. About one month later the car was returned to the Dufrenes. Shortly afterward Mrs. Du-frene experienced trouble with the engine, and the vehicle was again returned to Rick’s for repair. After the vehicle was returned the second time to the Dufrenes, it ran hot and ultimately became inoperable.

The Dufrenes filed suit against Alberta Williams, her insurer, Imperial Fire and Casualty Insurance Company (Imperial), and Rick’s seeking damages for the vehicle. In the petition the Dufrenes allege that the vehicle had a blown head gasket necessitating an engine replacement. Petitioners seek repair or replacement |3of their vehicle. Imperial filed a cross-claim against Rick’s. After a trial on the merits, the trial court ruled for the defendants, finding that there was no evidence of causation between the accident and the damage to the engine. It is that judgment that is the subject of this appeal.

Before trial, the parties settled the claim against Imperial as it applied to rental car costs of $1,589.94, while reserving their right to claim other damages. At trial certain exhibits were introduced by stipulation of the parties. Those exhibits included the police report of the accident, the original damage estimate of $2,306.40, and various correspondences.

Mrs. Dufrene testified that she parked her 1991 Aerostar van outside of her place of employment on August 23, 2001. Later in the evening, she was looking out of her office window and saw a car run into her van and push it into the vehicle parked behind the van. As a result of the collision, the front end of her van was smashed, steam was coming out of the hood and water was coming out of the bottom. Police officers obtained insurance information from the driver and arrested her. Subsequently, Mrs. Dufrene telephoned the insurance company on the card, Imperial, ■ and was told someone would contact her shortly. The next day Mrs. Dufrene spoke to Ms. Holly Stelly, representing Imperial, and told her about the accident. Mrs. Dufrene also told Ms. Stelly that the front end was smashed and there was fluid and steam emanating from the radiator. Mrs. Dufrene had the car towed to Rick’s and Ms. Stelly authorized the repair work. About two weeks later, a representative of Rick’s called to advise Mrs. Dufrene that the van was repaired. She picked up the car about 4:30 that afternoon. While stopped at a stoplight a short distance away, Mrs. Dufrene heard an alarm sound in the car and a light which indicated the vehicle was overheating. When the light turned green, she pressed the accelerator. She heard a loud “boom” and the engine killed. It would |4not re-start. Mrs. Dufrene called a friend, who helped her push the car off of the roadway. Subsequently, she had the ear towed back to Rick’s.

About three days later Mrs. Dufrene was told the vehicle was repaired. When she picked up the vehicle, Mrs. Dufrene questioned the mechanic about the cause of the problem. She was told that the radiator was empty, containing no fluid or coolant, and the starter was loose. Mrs. Dufrene was told that all problems were fixed. On the drive home, Mrs. Dufrene again experienced trouble with her van. The diagnostic indicators on the dashboard again showed the van was overheating. She filled the radiator with water and drove home. When she got home, Mrs. Dufrene re-filled the van’s radiator and called Rick s, but got no answer. The next day the car started normally. However, as she began driving to work, the car overheated again. At work, she again filled the radiator and called Rick’s. The mechanic told her to keep water in the radiator and bring the car in to the shop for repair the next morning. Mrs. Du-frene testified that she specifically asked the mechanic if she could drive the car to a meeting that night. He stated that she could drive the car as long as she was sure to keep water in the radiator. That night Mrs. Dufrene put water in the radiator and proceeded to her meeting. She explained that she had to drive from her office in Gretna to Loyola University on St. Charles Avenue in New Orleans for the meeting. Before she got to the meeting, the warning light on the dashboard again indicated the car was overheating. The van engine killed and would not restart. The radiator was refilled and Mr. Dufrene, who had come to rescue his wife, took the van home.

Subsequently, the Dufrenes had the car towed to two other repair shops for estimates. Copies of both estimates were sent to Imperial and Rick’s. No further repairs were authorized or done and the van is still parked and unusable. The Dufrenes were forced to rent a vehicle for Mrs. Dufrene’s use to replace the van. | sUltimately, in October of 2001 Mrs. Du-frene leased a new vehicle for transportation.

Mrs. Dufrene testified that the accident and subsequent time when her van was not running normally were very inconvenient for her, causing her to miss work, meetings and social events.

She further testified that although she timely sent bills for her rental car to Imperial, nothing was paid until December 17, 2002 . However, because the check was tendered with a ful release, Mrs. Dufrene did not cash the check. It was again tendered without a release in open court at the start of the trial on the matter in February 2003.

On cross-examination, Mrs. Dufrene stated that part of her claim of damages is $3,438.27 which is the estimated cost of repair to the van. She further stated that Imperial paid all repairs performed by Rick’s.

Clark Dufrene testified that he arranged the towing of his wife’s car and made arrangements with Rick Combel of Rick’s to repair the vehicle. Mr. Dufrene discussed the damage with Mr. Combel. Mr. Dufrene specifically told Mr. Combel to check the cooling system because the coolant had leaked out of the front of the vehicle after the accident. Also', Mr. Du-frene expressed his concerns about the transmission because the van was parked at the time of impact and was pushed back several feet.

Mr. Combel explained that he only did body work; however, he agreed to have a mechanic evaluate the damage to the cooling system and the transmission. After the first attempt at repair, Mr. Dufrene called Mr. Combel and explained that the mechanical repairs were not done. Mr. Combel told Mr. Dufrene that he found a radiator leak which was repaired and the starter was loose. Mr. Combel also told him there was no damage to the transmission. Mr. Combel told Mr. Dufrene he | ninade the mechanical repairs and road tested the vehicle on the Westbank Expressway.

Mr. Dufrene spoke to Mr. Combel again after two mechanic shops agreed the engine needed to be replaced. Mr. Combel would not take responsibility for the mechanical problems because he only did body work. Mr. Dufrene testified that he notified Ms. Stelly of the problem several times after the second unsuccessful attempt to have the car repaired at Rick’s. Ms. Stelly refused the claim, informing Mr. Dufrene that the mechanical repairs should have been taken care of by Rick’s. The remainder of Mr. Dufrene’s testimony corroborates that of his wife concerning the need to lease a vehicle for her use.

Francis Boudreaux, the insurance adjuster who was assigned to the Dufrenes’ claim, testified that he inspected the Du-frenes’ van for damage after the accident. He found damage to the right front bumper, fender assembly, lights, lamps, hood panel and radiator support panel. However, he did not inspect the radiator for damage. He sent his findings to Imperial and was later advised by Rick’s that the vehicle needed additional repair to the front bumper cover and some rear bumper damage that was not covered on the original appraisal. The first appraisal of the damage was $2,306.40 and the appraisal for the supplemental work was $346.55. He stated again that he did not inspect the radiator and he was not advised by anyone at Rick’s of a'problem with the radiator. Nevertheless, he did state that his expert opinion was that there was no damage to the radiator as a result of the accident.

On cross-examination, Mr. Boudreaux admitted that he did not know the car had to be towed to the repair shop until he got the bill for towing. No one at Imperial informed him that the car had to be towed because it was not drivable due to a dry radiator. Further, he did not obtain a copy of the police report of the accident. His visual inspection of the front end of the car was limited to sheet frmetal damage and he did not see sheet metal driven into a radiator or a condenser. However, Mr. Boudreaux admitted he would have examined the radiator if he had known it was out of fluid and had to be towed after the accident. He also would have inspected the rear bumper of the van if he had the police report and knew that the van had been pushed into the car parked behind it.

Mr. Boudreaux testified that he went to a second body shop in October of 2001 to inspect the car for a third time. This was done at the request of Imperial to find out why the van was still not running. He found that the van was overheating, but could not tell the cause of the problem. At that time he was told the “engine was blown.” He explained that a blown engine can be caused by the head gasket or a crankshaft. The cost of repair would depend on the cause.

Mr. Boudreaux also testified that the incident described by Mrs. Dufrene in which the car overheated, made a loud noise and killed when she attempted to accelerate at a red light could have been exhaust leaking past the head gasket and could have been the “engine blowing.” In Mr. Boudreaux’s opinion, the overheating problem was the responsibility of the repair shop to fix.

Mr. Boudreaux did take issue with the testimony of Mrs. Dufrene that steam came out of the radiator of her parked van at the time of the accident, stating that would only occur if the car were running and the water in the radiator was hot. Mr. Boudreaux testified that if Mrs. Du-frene drove the car while it was overheating, that could have caused the engine to blow. Given all of the information, he could not state for certain whether the accident or subsequent misuse of the van caused the engine damage.

The court also heard testimony from Rick Compel, owner of Rick’s. He confirmed that the Dufrenes’ van was originally towed to his shop in August of 2001 for repair after the accident. He also confirmed that he did the work |sdescribed in the original and the supplemental appraisal and was paid for his work by Imperial.

Mr. Compel testified that he did the work according to the appraisal. Since there was no mention of the radiator, he did not look at it. He explained that assessing the damage is the job of the insurance adjuster and he is not authorized to repair anything beyond the appraisal. He only does body work and this appraisal only required such work.

Mr. Boudreaux stated that he did not inspect the radiator when the car was brought to him for repair, and could not recall if either of the Dufrenes had requested that he examine the radiator. However, when the van was returned to him a second time for overheating problems, he did inspect the radiator and found a crack. Mr. Boudreaux replaced the radiator at no charge. Mr. Boudreaux stated that he assumed the damage to the radiator was caused by the accident. About a week later, Mr. Dufrene went to Mr. Bou-dreaux’s shop insisting that Mr. Bou-dreaux either buy the vehicle or he would hire an attorney.

The record also contains various documentary evidence, including the police report, which shows Mrs. Dufrene’s van was properly parked when it was struck in the front end by Ms. Williams’ vehicle. The report also clearly shows that the van was pushed into the car parked behind it. The record contains both the original and the supplemental appraisals, and correspondences from the Dufrenes to Rick’s and Imperial dated October 11, 2001seeking $8,438.27 for replacement of the engine. However, the estimate referred to in the letters is not contained in the record. Both the plaintiffs and Imperial presented valuation estimates of the van at the time of the accident. Also contained in the record are time sheets from Mrs. Du-frene’s employer showing time taken to deal with the repair of her van.

As previously stated, after reviewing all of the evidence, both testamentary and documentary, the trial judge found that the Dufrenes did not meet their burden l9of proof that the ruin of their car was related to the accident, and dismissed the matter. Specifically, the court stated in reasons for judgment:

The testimony in this case indicates that the vehicle in question sustained body damage as a result of the accident of August 23, 2001. The vehicle was taken to Rick’s Custom, Inc. for repair of the body damage.
Imperial made a tender to plaintiffs for the cost of this repair as well as the rental expense incurred during the period of repair.
Mr. Clark Dufrene testified that he knew that the repairs performed by Rick’s Custom, Inc. were limited to body damage.
Plaintiffs are now asking this court to find liability as to the insurer of the defendant’s vehicle for damages not directly related to the accident of August 23, 2001. There is no evidence, that the damage to the engine was caused by the accident. This court does not find that the damage caused by the overheating of the engine is a result of the accident and therefore does not find in favor of defendants and against plaintiffs, (sic)
Furthermore, plaintiffs understood the limited scope of services provided by defendant, Rick’s Custom, Inc. Therefore, without reaching a decision as to the cause of the leak in the radiator, this court is unwilling to find in favor of plaintiffs - and against Rick’s Custom, Inc.

In three assignments briefed to this court, the Dufrenes argue the trial court misapplied the law, in its ruling. Defendants argue that the trial court made findings of fact which are not reversible absent a showing that the findings are manifestly erroneous or clearly wrong.

We do not quarrel with the general law contained in defendants’ brief. Our standard of review is that a district court’s finding of fact may not be set aside in the absence of manifest error or unless it is clearly wrong. Leal v. Dubois, 2000-1285 (La.10/13/00), 769 So.2d 1182, rehearing denied 2000-1285 (La.11/17/00), 774 So.2d 155. The trial court’s determinations as to whether the plaintiffs’ testimony is credible and whether they have.discharged their burden of proof are factual determinations not.to be disturbed on review unless clearly wrong or manifestly erroneous. Derrick v. Yamaha Power Sports of New Orleans, 03-184 (La.App. 5 Cir. 6/19/03), 850 So.2d 829, 834, citing; Bruno v. Harbert International, Inc., et al., 593 So.2d 357 (La.1992). There is a two-part test for the reversal of a factfin-der’s determinations: , (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, 617 So.2d 880, 882 (La.1993).

As we understand the judgment and the reasons for judgment, the trial court found that the plaintiffs failed to meet their burden of proof that the leak in the radiator, and ensuing engine problem, was causally related to the accident.

As explained by the Louisiana Supreme Court in Lasha v. Olin Corp. 625 So.2d 1002, 1005 (La.1993):

In Louisiana tort cases and other ordinary civil actions, the plaintiff, in general, has the burden of proving every essential element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, not by some artificially created greater standard. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. (citations omitted)

Id.

In applying the above cited law to the facts of the matter before us, we find the trial court was manifestly erroneous in its factual finding that the damage to the Dufrenes’ van was not causally related to the accident. There is ample evidence to show that the van was in good running order before the accident and that it had serious overheating problems afterward. Both plaintiffs offered testimony and documentary evidence to support that fact. Defendants, on the other hand, did not show otherwise. Imperial’s adjuster admits he never examined the radiator. Mr. Combel also states he only did the body work and never looked at the radiator until the van was returned to him a second time after his repair. Mr. Combel did not refute Mr. Dufrene’s testimony that the radiator was discussed as a possible 1 n problem at the time the car was originally towed to Rick’s for repair; Mr. Combel simply stated that he could not recall if it was discussed.

What plaintiffs showed at trial was that their van was seriously damaged in a front end collision, rendering it unusable and necessitating the towing of the vehicle to Rick’s for repair. After the van was returned from Rick’s it began to have overheating problems. The van was returned to Rick’s twice before a leak in the radiator was discovered. By the time the problem was detected, the van was no longer usable because the engine had “blown”.

An adjuster for Imperial, the insurance company liable for the damages, went to the repair shop shortly after the accident without the police report or any information from plaintiffs, and assessed only body damage to the front end. He made only a visual check of the radiator and did not see any sheet metal imbedded in the radiator. Based on the adjuster’s report, Rick’s only repaired the damage to the body of plaintiffs’ van, and Imperial paid only for that body work. A supplemental finding of damage to the rear end of the vehicle had to be produced after the adjuster was informed that the van struck a car parked behind it at impact. Neither the adjuster nor the repairman checked to see if the cooling system of the van was in need of repair, beyond a cursory visual inspection. It was only after the plaintiffs returned the van to Rick’s for the second time that the possibility of cooling system damage was considered.

We do not believe it would require the testimony of an expert in automobile mechanics to meet the burden of proof by a preponderance of the evidence that a radiator may be damaged in a front end collision, and that discovery of this damage may require more than a simple visual inspection to see if any obvious pieces of metal punctured it. Thus, we do not find merit in defendants’ argument that the “self-serving” testimony of plaintiffs is insufficient to meet the required burden of | ^proof, and that the damage was more likely caused by the age of the car and its misuse by the owner.

We find the plaintiffs in this action have proven by a preponderance of evidence that the damaged radiator and ultimate engine damage to their van was directly related to the accident in question. Accordingly, we find the trial court was manifestly erroneous and clearly wrong in its finding of fact that no causal relationship existed between the damage sued for herein and the accident. Therefore, we reverse the trial court’s ruling in this matter and hold that plaintiffs have proven their cause of action against defendants.

Having ruled in favor of plaintiffs, we turn our attention to amount of damages proven. The pertinent clause in the collision portion of the applicable insurance policy states:

The maximum limit of collision insurance for losses in the actual cost to repair or replace the damaged property, or the limit stated on the declarations page, whichever is lesser. Payment won’t exceed the actual cash value of the property at the time of the loss.

We believe the record is sufficient to show that repair of the vehicle would amount to more than the value of the vehicle at the time of the accident. Accordingly, we award to plaintiffs the value of the van at the time of the accident, shown to be $3,025.00.

Plaintiffs also claim damage pursuant to La. R.S. 22:658, which provides in pertinent part as follows:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest....
11S(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658(A)(2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Given the evidence presented at trial we find Imperial was arbitrary and capricious in its failure to timely pay insurance benefits and is, therefore, subject to penalties pursuant to La. R.S. 22:658B(1), and so order. We further find that an. award of reasonable attorney fees an amount equal to one-third of the award to plaintiffs is appropriate and we so order.

We note that the cross-claim made by Imperial against Rick’s is still viable with the rendering of this opinion, and remand the matter to the trial court for consideration of that issue.

In conclusion, we reverse the judgment of the trial court and enter judgment in favor of plaintiffs and against Imperial for damages as awarded herein. We remand the matter to the trial court for further proceedings in accordance with this opinion.

REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

      . That date was later corrected to September 6, 2002.