text:
    STATE of Louisiana v. Christina ECHEVERRIA.
    No. 03-KA-898.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Cameron M. Mary, Assistant District Attorneys, Gretna, LA, for The State of Louisiana, Plaintiff-Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Cristina Echeverría, Defendant-Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Defendant, Cristina Echeverria, was charged by a bill of information on October 31, 2001 with theft of currency valued at over $1,000 in violation of LSA-R.S. 14:67, a charge to which the defendant pled not guilty. On November 8, 2002, a six-person jury returned a verdict of guilty of “theft of property with a value of $500 or more.”

After denying the defendant’s motion for new trial on December 6, 2002, the trial judge sentenced the defendant to five years of imprisonment at hard labor. The judge suspended the sentence, placed the defendant on five years of active probation, and ordered the defendant to pay a $300 fine, as well as other specified fees. Additionally, the trial judge ordered the defendant to pay restitution as a condition of probation “in that amount that the State will provide to the probation officer.” This timely appeal follows.

FACTS

At trial, Yolanda Gibson, the controller at the Landmark Hotel in Metairie, testified that the defendant stole money from the hotel while the defendant was employed as the credit manager in the accounting department. According to Ms. Gibson, the defendant worked at the hotel for eight years until she left in December of 2000. Ms. Gibson, the defendant’s immediate supervisor, explained that she initially became suspicious of the defendant after an anonymous phone caller told her that the defendant was stealing from the hotel. After conducting an investigation, Ms. Gibson could find no evidence to confirm this information. Ms. Gibson’s suspicions were again aroused when a representative from a credit card company informed her that the Landmark had requested a credit on a card that had never been charged by the hotel. The credit card belonged to one of the defendant’s relatives.

After a two-month investigation into the defendant’s transactions, Ms. Gibson discovered that the defendant had stolen money by manipulating the hotel’s accounting system, in particular the Accounts Receivable Miscellaneous Clearing account, hereinafter referred to as the “A/ R” account, and by removing cash from the bank deposits. Ms. Gibson testified that an independent audit had verified her findings.

Ms. Gibson explained the hotel’s accounting procedures involved codes to represent transactions. One of these codes, “CSH” (cash), was used to represent a cash or check payment, and “CLP” (city ledger payment) was used to represent a check payment. Additionally, the code “TRC” (transfer credit) was used to transfer money from one account to another, as in the case when a credit is erroneously applied to the wrong account. A “TRD” (transfer debit) code would epresent the debit to the account where the money was first placed. According to Ms. Gibson, only she and. the defendant had access to post payments to the A/R account.

Ms. Gibson explained that the only way to post a check as a payment is by using the CSH or CLP code. Otherwise, the accounting system does not record the check as money received into the hotel, and the cheek will not be included in the amount of money that should be deposited in the bank. Ms. Gibson detailed three incidents in which the defendant posted checks with a “TRC” code rather than CSH or CLP codes. In two of these incidents, the defendant included the checks in question when she made the hotel’s deposits in the bank. However, the deposit slips reflected that not all of the cash was deposited in the bank. The third incident involved transactions in which the defendant posted funds to the hotel as transfer credits, instead of cash or checks, for her daughter’s wedding reception that was held at the hotel.

The first incident that Ms. Gibson detailed involved a function that the National Kidney Foundation held at the hotel in October and November of 2000. Ms. Gibson testified that the hotel’s computer records revealed that the defendant had posted a check for the National Kidney Foundation in the amount of $2039.63 as a transfer credit on November 8, 2000. According to Ms. Gibson, the credit was manually placed in the A/R account due to a loophole in the computer system. Further, Ms. Gibson said that the computer records do not reflect that the check was ever posted as a check or cash transaction, meaning that the money was never included as an amount that should be counted in the hotel’s deposits. Ms. Gibson testified that the records reflected that $2,887.16 in cash should have been deposited on November 9, 2000. However, the defendant only deposited $397.46 in cash that day. Ms. Gibson testified that the reduced cash deposit went undetected because the defendant included the $2039.63 check (which had not been counted in the computer system) in the deposit.

The second incident involved a function with Alcoholic Anonymous held in April of 2000. As with the National Kidney Foundation’s check, Ms. Gibson testified that the hotel’s computer records reflected that the defendant had posted the check for this function as a transfer credit. According to Ms. Gibson, the computer records did not reflect that the check, in the amount of $1750, was ever posted with a check or cash code. Ms. Gibson testified that the records reflected that $4,450.98 in cash should have been deposited on May 26, 2000. However, the defendant only deposited $866.38 in cash that day. The reduced cash deposit went undetected because the defendant included the $1,750 check (which had not been counted in the computer system) in the deposit.

The final incident involved the defendant’s daughter’s wedding reception held at the hotel in August 2000. In this incident, the defendant opened the account and wrote a $500 check as a deposit. Ms. Gibson testified that this check, number 4804, was properly posted with a CLP code. However, the defendant posted another check (number 4843), as a transfer credit. She also posted $500 as a deposit and $213.35 as the balance paid in full, with transfer credit codes. Ms. Gibson acknowledged that both checks had been deposited in the bank. However, Ms. Gibson stated that the computer system had no record that check number 4843 and the transactions for $500 or $213.35 had ever been posted as cash or check payments.

The defendant and four witnesses testified at trial. The defendant admitted that she had the A/R account set up when the hotel first set up the computer system. However, she denied that she had manipulated the accounting system or stolen money from Landmark. While the defendant admitted that she made the deposit to the bank for the hotel on November 9, 2000, the defendant denied that she entered the corresponding credit to National Kidney’s account in the A/R account. However, the defendant said that if she had posted the check to the A/R account, it would have been because the. charges needed to be researched, since there were two accounts for National Kidney and neither account amounted to the total amount of the check. According to the defendant, the check remained in the miscellaneous account until the proper account was determined. The defendant explained that she debited the A/R account for the amount of the check and applied the transfer credit to National Kidney’s master account upon checkout on November 10, 2000.

The defendant had a similar explanation for the Alcoholics Anonymous function. Although she admitted making the deposit that included their check on May 26, 2000, the defendant denied that she had posted the corresponding credit into the A/R account. However, the defendant said that if she had posted their check to the A/R account, it would have been because the name on the check and the name on the account did not match. Specifically, the defendant explained that the account was set up as “Alcoholic Deepsouth,” whereas the check for the function was from the Greater New Orleans Service Board of Alcoholics Anonymous. The defendant subsequently acknowledged, however, that the check’s memo line indicated the check was for “Deep So Convention 2000.” The defendant explained that she debited the A/R account for the amount of the check and applied the transfer credit, to Alcoholic’s Anonymous master account upon checkout on May 30, 2000.

The defendant admitted that she had processed the checkout for both functions with transfer credits. However, defendant surmised that the transfer credit was necessary because someone else had posted the checks to the wrong account and a transfer credit was needed to apply the payment to the proper accounts. The defendant admitted that she had made the deposits for the hotel on November 9, 2000 and May 26, 2000.

Finally, the defendant said that no one ever told her that she should not have handled her daughter’s account at the hotel. With regard to the transactions posted as transfer credits, the defendant claimed that she evidently had difficulty posting these transactions due to “glitches” in the system. The defendant said that she “could have” brought the check to the front desk and that they “could have” posted it to the wrong account, which would have necessitated a transfer credit to correct the posting. According to the defendant, the explanations of the transfers would have been documented. The defendant said that since the state’s exhibits did not include these slips, she could not explain the reasons behind the transfers. The defendant claimed that she paid the first two $500 charges, and that her father paid the remaining two charges on the account.

The defendant’s witnesses were either current or former employees of the Landmark Hotel and testified about the hotel’s mail and accounting procedures. Lisa Taylor testified that had worked at the hotel for twenty-two years. At the time of trial, she was the director of sales at the hotel. Ms. Taylor testified that checks frequently were mailed- to the hotel, that the mail was opened by the administrative assistant to the executive director and that checks were ultimately sent to the accounting department. However, Ms. Taylor said that she was not involved in any of the accounting procedures at the hotel.

At the time of trial, Noelle West had worked at the hotel for four years and was the revenue manager. She testified that she had also worked at the front desk and that there were occasions when advance deposits were posted to the wrong account. If the reservation had not checked in, a “reverse charge” was made to the first account and the deposit would be applied to the proper account. Otherwise, the ad-jüstment would be considered a “transfer charge.” Ms. West explained that, when making corrections, the explanation of the transactions would be documented. Ms. West testified that while working at the front desk, however, she did not have access to the A/R account.

Pat Crawford testified that she was the front office manager in 2000. Ms. Crawford testified she had posted checks to clients’ accounts as part of her duties. She further stated that she would post a check to the miscellaneous account when the name on the check did not have a matching account. However, Ms. Crawford stated that she did not know the code for a check, and she acknowledged that accounting department verified the work of the front office. In particular, Ms. Crawford stated that the defendant was responsible in 2000 for ensuring that the accounts balanced and for billing the hotel’s clients.

Angela Nicoll stated that she had worked in the accounting department for two months with the defendant and had worked at the front desk and in reservations as well. Initially, Ms. Nicoll said she was at the hotel in 2000, but later acknowledged that she had left in 1998. Ms. Ni-coll said that multiple accounts were frequently opened for the same organizations, as in the case of the National Kidney Foundation. However, she stated that in the event that a check came in to the hotel and the name of the account could not be located, the check would-not be posted to the miscellaneous account. Rather, a new account would be opened and the check would be posted to the new account. She also stated that transfer credits and debits would have to be documented with explanation slips.

On rebuttal, Ms. Gibson clarified that many departments, could post an advance deposit to an account and could transfer a bill into the A/R account. However, only an. employee of accounts receivable could post a payment to the A/R account. Ms. Gibson stated that only she or the defendant could have posted the credits in the A/R account, and that she was certain the defendant was the person who made the postings into the A/R account.

DISCUSSION

By her sole assignment of error; the defendant contends that the evidence is insufficient to support her conviction because the state did- not exclude every reasonable hypothesis of her innocence. The state responds that the evidence was sufficient to support the defendant’s conviction. .

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” Under this statute, the fact-finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence when analyzing circumstantial evidence. See, State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56. The Jackson standard of review is an objective standard for testing the all evidence, both direct and circumstantial, for reasonable doubt. Id.

LSA-R.S. 14:67(A) sets out the elements of theft as follows:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive'the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the state is required to negate any reasonable probability of I misidentification in order to carry its burden of proof. State v. Zeno, 99-69 (La.App. 5 Cir. 8/31/99), 742 So.2d 699, 706, writ denied, 00-0105 (La.6/30/00), 765 So.2d 1065.

The thrust of the defendant’s argument is that the state failed to prove that she was the person who committed the theft. However, it appears that the state’s evidence excluded any reasonable hypothesis of the defendant’s innocence. It is undisputed that the defendant made the deposits on November 9, 2000. It is also undisputed that the amount of cash that was deposited that day was $397.46, when the computer records indicate that $2887.16 should have been deposited. Likewise, the defendant deposited $866.38 on May 26, 2000 when the computer records indicate that $4450.98 should have been deposited. Further, even though the checks for these functions were deposited in the bank, there is no record that the checks were processed as payments to the hotel.

Although the defendant’s checks for her daughter’s reception were deposited in the bank, the defendant only posted one of her deposits (check number 4804), with the proper code. Thus, the other check (number 4843), and the other transfer credit transactions, which amounted to $1213.35, were not processed as payments made to the hotel.

In returning the guilty verdict, the jury obviously believed Ms. Gibson’s testimony. This is a credibility determination and it is not the function of the appellate court to evaluate the credibility of witnesses, nor to overturn the trier of fact on its factual determination of guilt. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 118, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464. Based on Ms. Gibson’s testimony, as well as the other evidence presented by the state, it appears that the evidence at trial was sufficient to exclude every reasonable hypothesis of innocence and that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant committed the offense for which she was convicted.

This assignment of error is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters were discovered:

The record does not reflect that the defendant was arraigned on the amended bill of information. Originally, the bill of information alleged that the crime occurred between January 1, 1998 and December 20, 2000. On the day of trial, the State amended the bill of information to reflect that the crime occurred between March 1, 2000 and December 31, 2000. LSA-C.Cr.P. art. 555 provides that the failure to arraign the defendant is waived “if the defendant enters upon trial without objecting thereto” and that “it shall be considered as if he had pled not guilty.” Because the defendant proceeded to trial without objection, we find that the defendant waived any irregularity in the arraignment. See, State v. Charles, 00-1586, p. 11 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 712.

We also find that the record reflects that the trial judge failed to specify the amount and payment plan when ordering the defendant to pay restitution. LSA-C.Cr.P. art. 895.1 provides the “restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” At sentencing, the prosecutor stated that the amount of restitution was $13,000 and that the parties had discussed the amount in conference. The trial judge responded:

THE COURT:
Well, it is, and the State will make that available to the Probation office. It is a little over thirteen thousand dollars: I’m going to — that will be, part of the res [sic]' — 'that will be part of the | condition of probation is that you make restitution in that amount that the State will provide to the probation officer....

Subsequently, the prosecutor informed the court that the amount of the theft was actually over $100,000, but that the victim had collected some money from the insurance company. Thereafter, the court specified the restitution should be “[t]hirteen thousand whatever it is, the amount over what the insurance company paid.”

In State v. Berkeley, 00-1900 (La.App. 5 Cir. 5/30/01), 788 So.2d 647, 656, writ denied, 01-1659 (La.4/26/02), 814 So.2d 549, this Court found that the trial judge failed to set a specific amount to be paid in restitution when the judge ordered the defendant to pay the victim twenty-five percent of the defendant’s take-home pay for five years. The Berkeley court vacated the defendant’s sentence and remanded for resentencing to afford the trial court the opportunity to consider the earning capacity and assets of the defendant, and to set a determinate amount of restitution. See also, State v. Alexander, 97-1199 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 88, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628 and State v. Peters, 611 So.2d 191, 193 (La.App. 5 Cir.1992), where this court vacated the defendant’s sentence because the trial judge failed to set a determinate payment schedule for restitution payments.

The trial court did not set a determinate amount of restitution in this case. Based on the foregoing, we find that the defendant’s sentence must be vacated and the matter must be remanded for resentencing to afford the trial court the opportunity to set a determinate amount of restitution and to establish a payment schedule.

Accordingly, for the reasons assigned herein, the conviction of defendant, Cristina Echeverría, is affirmed. However, the senténce is vacated and the matter |1sis hereby remanded to the trial court for resentencing in a manner consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

      . LSA-R.S. 14:67(B)(1) provides for sentencing based on the value of the goods taken, with "five hundred dollars or more” being the highest value referenced. Although the defendant was charged with theft of over $1,000, the jury returned the statutorily delineated verdict of guilty of theft of $500 or more.

      . The amended bill of information alleges that the defendant committed the theft between March 1, 2000 and December 1, 2000.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. David FORTIER.
    No. 03-KA-882.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Gregory M. Kennedy, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Arthur A. Lemann IV, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

Defendant, David Fortier, entered a plea of nolo contendere to a charge of theft of currency valued at over $1,000.00 from Cardiac, Thoracic, Vascular Surgery, Inc. The trial judge sentenced David Fortier to five years of imprisonment at hard labor. The judge suspended the sentence, placed David Fortier on five years of active probation, and ordered him to pay a $500.00 fine, plus court costs, and a $100.00 Commissioner’s fee. Additionally, the trial judge ordered David Fortier to pay restitution in an amount to be determined at a restitution hearing. This appeal stems from the restitution hearing. For the reasons that follow, we amend the restitution order and remand this matter to the trial court for further proceedings.

FACTS:

The Bill of Information alleged that David Fortier’s theft from Cardiac, Thoracic, and Vascular Surgery, Inc., (hereinafter “CTVS,”) occurred between March 8, 1996 and November 7, 1998. At the restitution hearing, Morris Holmes, the administrator for CTVS, testified that David Fortier was the former administrator of CTVS. Mr. Holmes related that the accounting firm of Arthur Anderson had conducted an investigation into “irregular” payments at CTVS. Arthur Anderson generated a report of irregular and routine payments, and Mr. Holmes used this document to prepare a synopsis of the irregular payments that had directly and indirectly benefited David Fortier. The State introduced this document as Exhibit No. 1.

Mr. Holmes recounted. that the investigation had revealed that David Fortier had used CTVS’ funds for purposes that were unrelated to CTVS’ interests, including that David Fortier had used funds of CTVS to finance a loan made by a business entity that he had created. Additionally, the investigation revealed that David For-tier had transferred CTVS’ funds into his own personal account and into an account held jointly by him and Dr. Warren Gott-segen. According to Mr. Holmes, the company suffered over two million dollars in losses between 1994 and 1999, with transactions attributable' to David Fortier totaling $230,000.00. Mr. Holmes stated that the company ultimately settled with Dr. Gottsegen for $710,000.00. As a result of David Fortier’s actions, Mr. Holmes explained that CTVS was seeking $391,111.46 in restitution, including $16,893.20 related to a Medicare seizure, $54,462.50 in accounting fees incurred by Arthur Anderson, and $79,763.65 in IRS interest.

At the conclusion of the hearing, the trial judge took the issue of whether the victim’s accounting fees and legal fees should be included as part of the restitution. On January -9, 2002, the judge rendered a judgment setting the total amount of restitution at $298,096.59. The same day, a separate judgment was filed, ordering the defendant to pay as restitution $54,462.50 for the victim’s accounting fees, but finding that the victim’s legal fees were not permissible restitution.

Following the denial of his Motion to Reconsider Sentence, David Fortier filed this appeal.

LAW AND DISCUSSION:

On appeal, David Fortier contends the trial court committed reversible error by ordering him ‘to pay restitution for damages unrelated and remotely consequential to the criminal conduct.

David Fortier contends that the trial judge improperly awarded restitution for interest related to the Medicare seizure, the IRS interest, and the accounting fees incurred by the victim because these amounts are not attributable to David For-tier’s alleged theft. The State responds that the trial judge did not abuse her discretion in setting restitution in this regard.

When a court places a defendant on probation, it may impose any specific conditions of probation reasonably related to rehabilitation, including a requirement that the defendant make “reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court.” LSA-C.Cr.P. art. 895(A)(7). Items that may be included in restitution are listed in LSA-C.Cr.P. art. 895.1, which provides in pertinent part:

Art. 895.1. Probation; restitution; judgment for restitution; fees

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

Additionally, LSA-C.Cr.P. art. 895.1(B)(5) provides that, when the court suspends the imposition or execution of sentence and places the defendant on probation, the court may order, as a condition of probation, that the defendant pay an additional amount to compensate the victim for his loss and inconvenience. This amount “may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.”

First, David Fortier claims that the trial judge improperly ordered him to pay $16,898.20 that resulted from Medicare’s withholding $150,000.00 from CVTS. Mr. Holmes testified that Dr. Gottsegen and other physicians previously owned a company named Vascular Labs. In the early 1990’s, the company was sold to Fortier and Blum, which was a holding company comprised of Dr. Gottsegen and David Fortier. In 1996, Medicare audited Vascular Labs and discovered that Vascular Labs had overbilled Medicare in the amount of $150,000.00. Dr. Gottsegen later became a partner of CTVS, and David Fortier became its financial administrator. Because Vascular Labs did not have any Medicare payments to withhold, Medicare withheld the money from CTVS. Mr. Holmes explained that, if a physician does business at an entity that owes Medicare money, Medicare may withhold money from any entity that owes money to the physician.

Mr. Holmes testified that David Fortier was aware of the Medicare withholdings, which occurred between August of 1997 and September of 1997. In addition to the $150,000.00 payments withheld, Medicare charged CTVS $10,704.31 in interest. Although Dr. Gottsegen ultimately repaid the principle, the Medicare interest and the unearned interest remained unpaid. According to Mr. Holmes, the total loss suffered by CTVS as a result of the Medicare offset was $33,786.40, representing approximately $22,000.00 in interest on its funds and $10,704.31 for the interest charged by Medicare. The amount sought by CTVS of $16,893.20 represented one-half of the total loss of the Medicare offset. Mr. Holmes testified that he learned that David Fortier had instructed one of Mr. Holmes’ subordinates not to reveal the Medicare withholdings to anyone. David Fortier explained that he would replace the money with funds that Dr. Gottsegen owed CTVS.

David Fortier argues that any theft he may have committed did not cause the Medicare withholding. The State responds that CTVS could have mitigated its loss of interest on its funds if David Fortier had promptly disclosed the seizure. At the conclusion of the hearing, the trial judge ruled, with little explanation, that the loss incurred due to the Medicare offset was a “monetary loss” suffered by the victim as provided by LSA-C.Cr.P. art. 895.1.

We agree with David Fortier that the trial judge erred in including interest owed to Medicare as a result of the Medicare withholdings and unearned interest on the money withheld by Medicare to be paid as part of the restitution. In State v. Diaz, 615 So.2d 1336 (La.1993), the Supreme Court explained that article 895.1 is not to be used to provide criminal sanctions to collect civil damages, but rather is to be used to compensate the victim for pecuniary losses caused by the criminal activity of the defendant. Even Mr. Holmes characterized David Fortier’s actions relating to the Medicare loss as a violation of his fiduciary duty by failing to disclose the situation relating to the withholding. Moreover, it was Dr. Gottsegen’s presence at CTVS, not David Fortier’s theft that triggered Medicare’s ability to seize the funds from CTVS. We conclude that the interest related to the Medicare withhold-ings should not have been included in the restitution order. Accordingly, the portion of the judgment ordering David Fortier to pay $16,893.20 for loss related to the Medicare withholdings is reversed and set aside.

David Fortier also contends that the trial judge should not have included as part of the restitution the $79,763.65 in interest that CTVS had to pay to the IRS. Mr. Holmes testified that CTVS had not paid 1.2 million dollars in taxes between the fourth quarter of 1997 and the end of 1998. Mr. Holmes testified that as Chief Financial Officer and Comptroller of CTVS, David Fortier was responsible for paying the taxes for CTVS and that this penalty was a direct result of David Fortier’s inaction. According to Mr. Holmes, CTVS did not have the funds to pay the IRS because of David Fortier’s theft and that CTVS was unable to borrow funds, since David Fortier and Dr. Gottsegen had exhausted CTVS’s $500,000.00 line of credit at Bank One. CTVS contends that David Fortier is responsible for this loss because he intentionally hid the IRS notices from the physicians in the practice.

As with the Medicare loss, we find that the trial judge should not have included the IRS interest in the restitution order. Mr. Holmes stated that “[i]t is speculative to tie it [the IRS interest] to the theft.” Further, Mr. Holmes acknowledged that David Fortier breached his fiduciary duties by failing to pay the tax liability. The failure to pay the tax liability may result in civil liability against David Fortier, but should not be included in the restitution payment, as per Diaz, supra. Accordingly, the portion of the judgment including the $79,763.65 in IRS interest in the restitution order is reversed and set aside.

David Fortier next contends that the trial judge should not have included the $54,462.50 in Arthur Anderson accounting fees in the restitution payments. Mr. Holmes testified that Arthur Anderson was hired to conduct an investigation as “a direct result” of David Fortier’s actions. Further, Mr. Homes testified that the investigational accounting fees totaled approximately $108,000.00 and that the firm believed one-half of that amount, $54,462.50 was attributable to David Fortier.

Although Mr. Holmes initially stated that no fees for Arthur Anderson’s tax preparation was included in this figure, Mr. Holmes later clarified that two payments to Arthur Anderson in the amounts of $24,975.00 and $4,200.00 had been included. On cross-examination, Mr. Holmes stated that he would “stipulate” that the $4,200.00 payment should be excluded. In fact, Mr. Homes stated that he thought the $4,200.00 payment to Arthur Anderson for tax preparation had been removed from the amount attributable to Fortier’s actions. Mr. Holmes stated that he believed that the $24,975.00 should be attributed to David Fortier because he increased the difficulty of the tax preparation by destroying documents that were necessary to prepare the taxes.

David Fortier cites several federal cases for the proposition that accounting fees should not be included in a restitution order. However, he does not mention that there are other federal cases that have included such costs, including United States v. Cummings, 189 F.Supp.2d 67 (S.D.N.Y.2002) in which the court included approximately 2.5 million dollars in restitution that the victim incurred to prepare financial documents after the discovery of crimes committed by defendant, the victim’s Chief Financial Officer.

Moreover, LSA-C.Cr.P. art. 895.1(A)(1) requires the trial judge to order David Fortier to pay restitution when the victim suffers “any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property.” Paragraph B(5) of the same statute allows the trial judge to order David Fortier to pay an additional amount to compensate the victim for his “loss and inconvenience.” Considering that the accounting investigation was triggered by David Fortier’s actions, we find that the portion of the accounting expenses related to the investigation was properly included in the restitution order. The trial judge correctly excluded portions of the accounting fees that were unrelated to Arthur Anderson’s investigation in light of Mr. Holmes’s concession that the fees were not attributable to David Fortier’s theft. However, we find the trial court erred in failing to remove the $4,200.00 from the amount awarded for Arthur Anderson fees in light of Mr. Homes’ testimony that the $4,200.00 was directly related to tax preparation services and that he thought that amount had been removed from the reimbursement request.

David Fortier also argues that the trial court committed patent error by failing to determine the manner in which the restitution should be paid as required LSA-C.Cr.P. art. 895.1. The State responds that the law requires the trial judge to set a payment schedule in repaying restitution.

LSA-C.Cr.P. art. 895.1 provides the “restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” In the present case, the trial judge ordered David Fortier to pay the entire amount of restitution by the end of his five-year suspended sentence, but did not specify the manner in which the payments were to be made. In State v. Alexander, 97-1199 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 88, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628, this court vacated the defendant’s sentence because the trial judge failed to set a determinate payment schedule for restitution payments. In that case, the defendant and the State stipulated that the amount of restitution was $1,290.00 and the trial court ordered the defendant to pay this amount during probation under the supervision of the probation department. The Alexander court concluded that the trial court’s order did not comply with Article 895.1(A) and remanded for the trial court to -determine the manner in which restitution should be paid, either in a lump sum or in monthly installments, based on the defendant’s earning capacity and assets. (See also State v. Peters, 611 So.2d 191, 193 (La.App. 5 Cir.1992), in which this Court vacated the defendant’s sentence because- the trial judge failed to set a determinate payment- schedule for restitution payments.)

Accordingly, this matter is remanded to the trial court for a determination of the manner in which restitution should be paid, either in a lump sum or in monthly installments, based on David Fortier’s earning capacity and assets.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We first note that the commitment reflects that David Fortier entered an Alford plea, whereas the transcript reflects that he entered a plea of nolo contendere and that the trial judge accepted the plea pursuant to LSA-C.Cr.P. art. 893. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, on remand the trial court is ordered to correct the commitment to conform to the transcript.

It is further noted that the record does not reflect that the judgments setting restitution were pronounced in open court or that David Fortier was present when the trial judge issued the written judgments setting the restitution. According to LSA-C.Cr.P. art. 871(A), a “[s]entence shall be pronounced orally in open court and recorded in the minutes of the court.” LSA-C.Cr.P. art. 835 requires the defendant to be present when sentence is pronounced in felony cases. Article 835 also provides that the defendant shall be resentenced when his presence is secured if a sentence is improperly pronounced in the defendant’s absence.

In State v. Perrilloux, 99-1314 (La.App. 5 Cir. 5/17/00), 762 So.2d 198, 201, the trial judge issued a written judgment that, inter alia, amended the defendant’s sentence. This Court found that the defendant had been sentenced in absentia in violation of LSA-C.Cr.P. art. 835, vacated the sentence, and remanded for resentenc-ing.

In the present case, David Fortier’s sentence was not pronounced orally in open court and he was not present when the judgments setting the restitution were issued. Accordingly, this matter is remanded for resentencing in accordance with LSA-C.Cr.P. articles 835 and 871(A) and this opinion.

CONCLUSION:

For the foregoing reasons, this matter is remanded for proceedings in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMAND FOR FURTHER PROCEEDINGS.

      . It is noted that the transcript contains the spelling "Godsagen.” However, the documents prepared by the victim reflect that the name is spelled "Gottsegen.”

      . It is noted that the record reflects that, at the time of the hearing, CTVS was pursuing a civil action against the defendant, David For-tier.

      . United States v. Schinnell, 80 F.3d 1064 (5th Cir.1996), Ratliff v. United States, 999 F.2d 1023 (6th Cir.1993), and United States v. Mullins, 971 F.2d 1138 (4th Cir.1992).

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: WALTER J. ROTHSCHILD, Judge.

text:
    SERVPRO OF METAIRIE v. Peter J. CANNATA.
    No. 03-CA-825.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.
    Wade A. Langlois, III, Gretna, LA, Counsel for Servpro of Metairie, Plaintiff-Appellant.
    Wayne W. Yuspeh, Metairie, LA, Counsel for Peter J. Cannata, Defendant-Ap-pellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

This worker’s compensation case arises from a motor vehicle accident that occurred on April 1, 1999. The claimant, Peter Cannata, was a passenger in a company vehicle when it was struck two times from the rear by another vehicle. Mr. Cannata suffered injuries in the accident, primarily to his lower back. He was in the course and scope of his employment with Servpro of Metairie at the time of the accident.

Mr. Cannata has not worked since the date of the accident. He was paid temporary total disability benefits from the date of the accident until February 2001, when Servpro began paying him Supplemental Earnings Benefits (SEB). He was paid full SEB until November 2001 when they were reduced by Servpro.

On December 14, 2001, Mr. Cannata filed a disputed claim for compensation, seeking full benefits, as well as penalties and attorney fees, from Servpro for arbitrarily reducing his benefits. Trial of this matter was held on November 14, 2002. Mr. Cannata and his wife testified at trial, and the remainder of the case was submitted via exhibits. On March 7, 2003, the worker’s compensation judge rendered a judgment finding that Mr. Cannata was entitled to SEB at the full compensation rate of $193.35 per week and finding the employer, Servpro, to be arbitrary and capricious in its refusal to pay worker’s compensation benefits at the correct rate. The worker’s compensation judge further assessed a $2,000.00 penalty and $2,000.00 in attorney fees against Servpro. It is from this judgment that Servpro appeals.

DISCUSSION

On appeal, Servpro assigns the following two errors:

1) The worker’s compensation judge was legally incorrect and manifestly erroneous in awarding Supplemental Earnings Benefits to the claimant, because the claimant did not prove entitlement to such benefits since he did not make any effort to attempt to return to work.
2) The worker’s compensation judge was legally incorrect and manifestly erroneous in finding that Servpro was arbitrary and capricious and awarding penalties and attorney fees, because Servpro had a reasonable legal and factual basis for all actions taken in this case.

Servpro does not dispute that Mr. Cannata suffered lower back injuries in the accident and that he still has pain resulting from the accident. However, it asserts that he is able to return to work with light duty restrictions. Mr. Cannata argues that he cannot return to any employment due to his pain and therefore, he is entitled to SEB benefits at the full compensation rate.

LSA-R.S. 23:1221(3) sets forth the law pertaining to a claim for SEB, and it provides in pertinent part as follows:

(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds .percent of the difference between, the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not' an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.
(b) For purpose of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this .Paragraph, for purposes of Subpara-graph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Sub-paragraph (b) of this Paragraph, which he was .physically able to perform, and 1) which he was offered or .tendered by the employer or any other employer, or 2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
(ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

In order to recover SEB, the initial burden is on the employee to prove by a preponderance of the evidence that he is unable to earn at least ninety percent of the wages that he earned prior to the accident. McKenzie v. Evans Quality Temporaries, 99-518 (La.App. 5 Cir. 10/26/99), 746 So.2d 163, 168-169. If the employee meets this burden, the burden shifts to the employer to demonstrate by a preponderance of the evidence that the employee is physically capable of performing certain jobs and that the jobs were offered or available. Joffrion v. Bryant, 98-1439 (La.App. 3 Cir. 4/14/99), 732 So.2d 767, 770; writ denied, 99-1425 (La.10/1/99), 748 So.2d 440; Blanchard v. Federal Express Corporation, 95-0349 (La.App. 1 Cir. 11/9/95), 665 So.2d 11, 13.

Mr. Cannata saw several doctors after the accident. Dr. Bruce Razza, who was one of the claimant’s treating physicians, and Dr. Robert Múñeles, who saw the claimant at the employer’s request, agree that the claimant suffered severe injuries to his back, and both doctors have indicated that Mr. Cannata is a candidate for surgery.

At trial, Mr. Cannata testified that he is 81 years old and he was 27 at the time of the accident. He stated that his back is always in pain and that his leg is in pain at times. He testified that he can only sit for 10-15 minutes and stand for 5-10 minutes before the pain gets too bad. He stated that he can drive a car on short trips and he picks up his son every day from school. He indicated that he sometimes cooks and washes dishes and clothes, but he stops when his back hurts too badly. He spends most of the day lying around the house watching television. He has not taken pain medication for two years because it makes him feel sick and he has not seen any doctors since he last saw Dr. Razza in November 2001, because there is nothing that they can do, except surgery. Mr. Cannata testified that he has elected not to have the surgery, because it is not guaranteed to relieve his pain and he believes that it could possibly make the pain worse.

Mr. Cannata testified that he has not looked for or tried to work, and he has not talked to any of his doctors about whether or not he could work. Mr. Cannata’s attorney referred him to a vocational evaluation specialist who performed a vocational evaluation on February 20, 2001. This evaluation indicated that Mr. Cannata could not perform light or sedentary work at that time.

Dr. Mímeles ordered a Functional Capacity Evaluation (FCE), because Mr. Cannata indicated that he did not want to have surgery. During the FCE testing, Mr. Cannata had difficulty with some of the tests and he indicated that the pain in his back usually ranges from 4-8 on a scale of 0-10 (0 reflects no pain and 10 reflects severe pain). He stated that his pain was at an intensity of 7 on the date of the testing. The FCE report indicated that Mr. Cannata had some restrictions but he could work at a medium duty job.

Dr. Mímeles reviewed the FCE and recommended that Mr. Cannata should return to light duty work, rather than medium duty. He opined that medium duty work would not further damage Mr. Cannata’s back, but it was more likely to cause his pain to flare up. Dr. Mímeles stated that whether or not Mr. Cannata has surgery, he would have permanent light duty restrictions. The purpose of the surgery would be to relieve his pain, but would not eliminate the need for working restrictions.

In a letter dated March 15, 2001, Mr. Cannata’s treating physician, Dr. Razza, stated that he basically agreed with Dr. Mímeles and the FCE and that Mr. Can-nata could return to light or sedentary work if his pain was tolerable. If the pain was not tolerable, he would recommend surgery. He also agreed with Dr. Mí-meles that Mr. Cannata was at maximum medical improvement if he does not have the surgery.

Servpro retained a vocational rehabilitation counselor, who located various light duty jobs and proposed them to Mr. Can-nata. Mr. Cannata did not apply for any of the jobs because he did not believe that he was able to return to any employment. Dr. Razza reviewed the job listings that were proposed by the vocational rehabilitation counselor, and he did not approve the jobs for Mr. Cannata. Rather, he indicated on each job listing that the prognosis would be favorable after surgery. However, as stated above, if Mr. Cannata is not going to have surgery, Dr. Razza believes that he is at maximum medical improvement and can perform light duty work if his pain is tolerable. Dr. Razza has not indicated that Mr. Cannata is totally disabled and cannot return to any employment.

Considering the testimony, evidence, and caselaw, we find that Mr. Cannata did not meet his burden of proving by a preponderance of the evidence that he is unable to earn at least ninety percent of his pre-injury wages. Both Dr. Razza and Dr. Mímeles agree that it is Mr. Cannata’s choice whether or not to have surgery. However, he is at maximum medical improvement if he does not have the surgery. The FCE report indicates that Mr. Canna-ta can return to work at a medium duty job. Dr. Mimeles believes that he could try a medium level job, but he would suggest light duty. Dr. Razza indicated that he could perform a light duty job if his pain permits. However, Mr. Cannata testified that he has not looked for or tried any work and he has not even talked to any doctors about his ability to return to work.

Mr. Cannata clearly has some level of disability and pain, and he certainly has restrictions on the duties that he can perform in an employment setting. However, he has failed to establish that he is unable to work at a light duty or sedentary job and that he is unable to earn ninety percent or more of the wages he earned prior to the accident. Therefore, because Mr. Cannata has failed to meet his burden, the burden does not shift to Servpro to show that there are jobs available which the claimant is physically able to perform.

Based on the foregoing, vye find that the worker’s compensation judge’s award of SEB to the claimant, Peter Cannata, was not supported by the record and was manifestly erroneous. Accordingly, we hereby reverse and vacate the award of Supplemental Earnings Benefits to the claimant.

In its second assignment of error, Serv-pro argues that the worker’s compensation judge was manifestly erroneous in finding Servpro to be arbitrary and capricious and in awarding penalties and attorney fees. We agree.

LSA-R.S. 23:1201(F) provides for an assessment of penalties and attorney fees where an employer has refused or failed to pay benefits and medical expenses that are due. Araujo v. Marriott Corporation, 98-1129 (La.App. 5 Cir. 3/30/99), 731 So.2d 432, 437. However, this penalty provision does not apply if the claim is reasonably controverted. Id.

Considering our ruling that Mr. Cannata did not show that SEB were due to him, we find that the claim was reasonably controverted and that the worker’s compensation judge was manifestly erroneous and clearly wrong when she ordered the employer to pay penalties and attorney fees. Accordingly, we reverse and vacate the award of penalties- and attorney fees in this case.

DECREE

For the reasons set forth above, we reverse the judgment of the worker’s compensation judge awarding Supplemental Earnings Benefits to Mr. Cannata and ordering Servpro tó pay penalties and attorney fees.

REVERSED.

      . The judgment also awarded medical expenses. However, Servpro filed a Motion for New Trial, asserting that medical expenses were not an issue at trial and that it had already paid the claimant’s medical bills. A hearing on the Motion for New Trial was held on April 25, 2003. On May 7, 2003, the worker’s compensation judge signed an amended judgment, deleting the paragraph from the original judgment that awarded medical expenses and inserting a paragraph reserving the claimant's right to seek payment of medical expenses.


author: | JAMES L. CANNELLA, Judge. CHEHARDY, J.,

text:
    Jerry JORDAN, Individually as Agent for Thomas Jefferson Jordan v. STONEBRIDGE, L.L.C.
    No. 03-CA-588.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Emmett, Cobb, Waits & Kessenich, Susan E. Henning, James A. Cobb, Jr., New Orleans, LA, for Appellant.
    Rene J. Pfefferle, Chris J. Leblanc, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Amicus Curiae.
    Michael W. Hill, New Orleans, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Stonebridge, L.L.C., d/b/a Stonebridge Convalescent Center (Stonebridge), appeals from the trial court ruling denying its exception of prematurity. The exception of prematurity was filed against the Plaintiff, Jerry Jordan (Jordan), individually and as agent for Thomas Jordan (Thomas) a resident of Stonebridge, for damages suffered by Thomas when he fell. For the reasons which follow, we affirm.

Thomas is a 62 year old man who is six feet one inch tall and weighs approximately 310 pounds. His mental age is seven years old. As a result of a number of strokes, Thomas has lost the use of his left leg. He was admitted to Stonebridge in March of 1992 and required assistance with all activities of daily living. In December of 2001, at the time of his accident, he received 18 daily medications. Among other things, the Plan of Care for Thomas expressly included the need for two orderlies to assist in moving him from his wheel chair to his shower chair. Jordan alleged that the protocol was very explicit and required two orderlies to move Thomas from his wheel chair to the shower chair while still in his room because the shower room was too narrow for two orderlies to properly support him therein.

Jordan had visited his brother at Stone-bridge on December 23, 2001. Upon leaving, he told the staff that he would be back the next morning at about 9:30 A.M. to pick up his brother for the Christmas holidays and requested that he be bathed and dressed at that time. The next morning despite the Plan of Care, Thomas was taken to the shower room in his wheel chair and one orderly attempted to move him from his wheel chair to the shower chair in the narrow shower room, by propping him up against the wall on one leg. Because of his size and instability Thomas fell to the ground, fracturing his right leg. As a result, Thomas was taken to the hospital and thereafter spent two months in a rehabilitation center. Jordan was required to buy several pieces of mobility equipment to assist Thomas. A pressure sore developed from the cast and amputation was contemplated although ultimately not required. Jordan filed suit for damages against Stonebridge.

In response, Stonebridge filed an exception of prematurity, arguing that, since it was a qualified health care provider under La. R.S. 40:1299.41 et seq., the Medical Malpractice Act (the MMA), the case must first proceed before a medical review panel before suit could be filed. Stonebridge originally supported its exception with only a statement from the Patients’ Compensation Fund stating that Stonebridge was “an Enrollee under La. R.S. 40:1299.41 et seq.”

Jordan opposed the motion, relying on two Louisiana Supreme Court cases, Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460 and Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303. Jordan pointed out that Richard held that not every negligent act by a health care provider during a patient’s confinement in a nursing home was covered by the MMA. To be covered by the MMA, the negligent act must be related to medical treatment. Coleman sets forth a six part test to determine whether- a negligent act is covered by the MMA and the negligent act in this case does not satisfy the Coleman test.

Thereafter, on the eve of the hearing on the exception, Stonebridge filed a reply memorandum arguing, for the first time, that the negligent act in this case did constitute medical malpractice within the Coleman factors. In support of this argument, Stonebridge attached to its memorandum the Plan of Care for Jordan.

Following the hearing, the trial court found that the negligent act of moving Thomas with one orderly, despite the Plan of Care requiring two, was a custodial act and did not constitute medical treatment. Therefore, the trial court ruled that the negligent act was not medical malpractice within the MMA and denied the exception of prematurity. It is from this ruling that Stonebridge appeals.

On appeal both parties present opposing arguments concerning whether the care Thomas was receiving at Stonebridge constituted custodial care and was not covered by the MMA, or constituted medical treatment and, therefore, was covered by the MMA. Both parties cite and rely on Richard and Coleman. Stonebridge argues that there was a detailed protocol on Thomas including the administration of 18 daily medications. Jordan argues that there was no special “treatment” being administered by Stonebridge. Stone-bridge simply assisted Thomas in his long-term care including his daily activities like bathing and grooming.

In Richard, the Louisiana Supreme Court addressed the question of “whether plaintiffs allegation under the Nursing Home Residents’ Bill of Rights, La. R.S. 40:2010.8, et seq. (the ‘NHRBR’) that she was negligently allowed to fall out of her wheel chair at a nursing home must be submitted to a medical review panel pursuant to the provisions of the MMA.” The Louisiana Supreme Court concluded that the enactment of the NHRBR was not intended to remove malpractice claims against qualified health care providers from the coverage of the MMA. However, it noted that not all negligent acts by a nursing home constitute medical malpractice under the MMA. To constitute a medical malpractice claim, the alleged negligent act must be related to the nursing home resident’s “medical treatment” under Louisiana law “rather than 24-hour custodial shelter.” Richard, at 13-14, 835 So.2d at 469. The Richard case was ultimately remanded to the trial court for a determination of whether the allegations that the resident was negligently allowed to fall from her wheelchair constituted allegations of medical malpractice under Coleman.

The Richard court outlined the six part test set out in Coleman to determine whether a negligent act by a health care provider is covered under the MMA:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

Richard v. Louisiana Extended Care Centers, Inc., 02-0978, p. 13 (La.1/14/03), 835 So.2d 460, 469.

Applying the above Coleman factors to the case before us, we find that the alleged negligent acts complained of herein are not covered under the MMA. The 15 page Plan of Care, attached as an exhibit to the Stonebridge reply memorandum on the exception of prematurity, does not evidence that Thomas was undergoing medical treatment at Stonebridge. Rather, it is a description of how his day-to-day activities are to be handled, including administrating his medication, assisting with going to the bathroom, reminding him to go, bathing three times a week, brushing teeth, and asking him yes or no questions so he responds. It simply does not rise to the level of medical treatment or the requirement of professional skill. The negligent act in this case does not require medical evidence to determine whether the standard of care was breached. The Plan of Care stated that two orderlies were to assist, one on each side, in the transfer of Jordan from his wheelchair. Yet, on the day in question, only one orderly was assisting this 310 pound man who only had use of one leg. No assessment of Thomas’ condition was required. The requirement of two orderlies was not judgment-related based on Thomas’ condition on any given day. It was a constant requirement because of his size and the uselessness of his left side due to previous strokes. The incident was not related to a physician-patient relationship. It occurred in the routine transfer, by staff, of Thomas from his wheelchair to his shower chair. Therefore, we find that the alleged negligent act herein, mishandling of the patient in a routine transfer from his wheelchair to his shower chair, was in the course of his 24-hour custodial care at Stonebridge rather than part of medical treatment and does not come under the MMA.

Accordingly, for the reasons stated above, we affirm the trial court ruling denying the exception of prematurity filed by Stonebridge. The case is remanded for further proceedings. Costs of appeal are assessed to Stonebridge.

AFFIRMED.

CHEHARDY, J., dissents.

CHEHARDY, J.,

dissents.

I respectfully disagree with the majority and would reverse the trial court’s denial of defendant’s exception of prematurity. I believe the allegations in the petition that commenced this lawsuit are claims of medical malpractice against a healthcare provider, which should have been submitted to a medical review panel before filing suit.

In Louisiana, “malpractice” is defined as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers....

La. R.S. 40:1299.41(A)(8); Richard v. Louisiana Extended Care Centers, 02-0978 (La.1/14/03), 835 So.2d 460, 468; Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315.

In this case, the nursing home’s alleged negligence occurred during a wheelchair transfer of its resident, Mr. Jordan. Clearly, the nursing home’s actions occurred during the “handling of a patient, including loading and unloading of a patient,” which comes directly under, the statutory definition of “malpractice.” As noted in Richard, supra, however, even though the alleged act involved the handling of a patient, it does not necessarily constitute medical malpractice. Richard, 835 So.2d at 468.

In Coleman, 813 So.2d at 315-316, the Louisiana Supreme Court held that the negligent act must be related to medical treatment to be covered under the Louisiana Medical Malpractice Act (“MMA”). The Coleman court set forth a six-part test to determine whether a negligent act by a health care provider is covered under the MMA:

(1) whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

The first Coleman factor is whether plaintiffs’ allegations of wrongdoing are related to treatment and are caused by a dereliction of professional skill. In the plaintiffs’ petition, they clearly allege that the lack of skill evidenced by the nursing home’s staff during Mr. Jordan’s wheelchair transfer was the cause of Mr. Jordan’s fall. Further, the attempted wheelchair transfer was to enable a nursing home employee to bathe Mr. Jordan, who was a very large man with a neurological defect, limited use of his left side, and incontinence. In this case, showering was required as part of Mr. Jordan’s “plan of care” to prevent “skin breakdown” in connection with his incontinence. Thus, the alleged incident was also “related to treatment.”

The second Coleman factor is whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached. Here, expert medical testimony should be heard on the standard of care in handling and transfer of patients weighing over 300 pounds.

The third Coleman factor is whether the pertinent act or omission involved assessment of the patient’s condition. In this case, plaintiffs allege that the nursing home’s staff failed to properly assess Mr. Jordan’s condition before and during the wheelchair transfer, which caused his fall and resultant leg fracture.

The fourth Coleman factor is whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform. Stonebridge, at all times pertinent to this, was a licensed nursing home facility. Here, plaintiffs’ allegations regarding failure to hire, train, and retain competent staff satisfy this factor.

The fifth Coleman factor is whether the injury would have occurred if the patient had not sought treatment. Here, the plaintiffs assert that Mr. Jordan’s broken leg was the result of the alleged inadequate care and treatment, thus alleging a cause-and-effect relationship between the alleged failure of care and the injuries. Finally, plaintiffs do not allege that any of defendants’ actions were intentional, thus satisfying the final Coleman factor, whether the tort alleged was intentional.

After reviewing plaintiffs’ allegations, I find that the trial court erred in finding that the allegations do not fit within the statutory definition of medical malpractice. Accordingly, I would reverse the judgment denying the exception of prematurity.

      . It has been held that the denial of an exception of prematurity based on coverage by the Medical Malpractice Act is an interlocutory appealable issue, Prisk v. Palazzo, 93-2156 (La.App. 4th Cir. 1/19/96), 668 So.2d 415, writs denied, 96-0437 (La. 4/8/96), 671 So.2d 335. It has also been held that such an issue should be considered under appellate supervisory jurisdiction. Evans v. Charity Hospital in New Orleans, 01-0507 (La.4/20/01), 790 So.2d 8. Since this case was lodged as an appeal, we will consider it as such.


text:
    STATE of Louisiana v. Ira ZERINGUE.
    No. 03-KA-697.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Harry J. Morel, Jr., District Attorney, David L. Chaisson, Assistant District Attorney, Hahnville, LA, for The State of Louisiana, Plaintiff-Appellee.
    Manina D. Dubroca, Luling, LA, for Ira Zeringue, Defendant-Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

On June 5, 2002, the St. Charles Parish Distinct Attorney filed a bill of information charging defendant, Ira Zeringue, with carnal knowledge of a juvenile (Count 1), a violation of LSA-R.S. 14:80; and aggravated oral sexual battery (Count 2), a violation of LSA-R.S. 14:43.2. Defendant was arraigned on June 13, 2002, and pled not guilty to both charges.

On December 10, 2002, the State amended Count 2 of the bill of information, reducing the charge to oral sexual battery, a violation of LSA-R.S. 14:43.3. Defendant was arraigned with respect to the amended charge, and pled not guilty.

A bench trial was held on January 21 and 22, 2003. The court found defendant guilty as charged on both counts. On February 4, 2003, defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial. The trial court heard and denied those motions on February 20, 2003.

On March 6, 2003, the court sentenced defendant to seven years at hard labor on both counts. The court further ordered that the sentence on Count 2 be served without benefit of parole, probation or suspension of sentence, and directed that the sentences run concurrently with each other. Defendant made an oral motion for appeal, and the judge granted the motion. Defendant filed a written motion for appeal on March 26, 2003. Defendant filed.a motion to reconsider sentence on March 18, 2003. The trial court denied the motion on March 24, 2003.

Defendant now appeals on the basis of three assignments of error. For reasons stated more fully herein, we affirm conditionally defendant’s convictions and sentence and remand the matter for an evi-dentiary hearing.

FACTS

A.B., the victim in the instant case, testified that her date of birth is September 9, 1988, and that she lives in Boutte. As of May 14, 2002, A.B. had known defendant for two to three weeks. A.B. initially became acquainted with defendant through Damian Blake (Damian), the twenty-two-year-old brother of her classmate, Dana Blake (Dana). Defendant worked with A.B.’s step-brother, Lloyd Whitehead, Jr. (a/k/a Sonny), whose date of birth is August 17, 1981. According to an exhibit offered by the State, defendant, Ira Ze-ringue, was born on July 20, 1980.

A.B. testified that she and defendant were both at the Blakes’ home between 3:30 and 4:00 p.m. on May 14, 2002. Mr. Blake, Dana’s father, instructed defendant to leave the house. A.B. invited defendant to accompany her to her house, and defendant accepted. Damian drove A.B. and defendant to the house where she lived with her mother, step-father, and Sonny. A short time later, Sonny drove defendant from there to his grandfather’s house, where defendant picked up some clothing belonging to him. Sonny then drove defendant to Breaux’s Motel, where defendant was living in a rented room. A.B. testified that she rode along with them in Sonny’s truck. Defendant told A.B. that he liked her. A.B. asked defendant whether he wanted to come to her house that night to have sex with her, and defendant said he did.

A.B. later telephoned defendant at his motel room and told him to come to her house at 10:30 p.m. She testified that defendant arrived at the agreed-upon time and that she let him in at the front door. Her step-father and Sonny were asleep in the house, and her mother was using her computer behind closed doors. Defendant went into A.B.’s bedroom with her. Defendant performed oral sex on her, and the two engaged in vaginal intercourse. The encounter lasted forty to forty-five minutes and was consensual on A.B.’s part.

At 11:47 p.m., defendant and A.B. went outside to the backyard and smoked marijuana cigarettes provided by defendant. A.B. testified that this was not the first time she had smoked marijuana with defendant. Moreover, defendant performed oral sex on her in his hotel room prior to the May 14 incident.

Rene Whitehead, A.B.’s mother, testified that she went to the backyard at 11:45 p.m. to smoke a cigarette. She noticed the outside lights were on, although they are usually kept off. She saw a man with a cigarette in the yard. She then saw A.B. and asked her who the man was. A.B. responded that he was Ira. Defendant left the yard by jumping over the fence. Ms. Whitehead took A.B. inside and looked outside through a window. She saw defendant walking in front of the house. She recognized him because she had met him once when he came to her house to visit with Sonny and A.B. He was not wearing a shirt or shoes. Ms. Whitehead ordered defendant to leave the premises and threatened to call police if he returned.

Ms. Wfiiitehead questioned A.B. as to what she and defendant had been doing at that hour. A.B. said they had been talking and smoking marijuana. A.B. testified that she discovered defendant’s tennis shoes and shirt in her bedroom, along with a can of beer. She hid those items in her step-sister’s room, as her step-sister was away that night.

Sonny Whitehead testified that he was at Damian Blake’s house on the afternoon of May 15, 2002 when defendant arrived. The three young men went to a Wal-Mart store in Damian’s truck. On the way there, defendant told Sonny he had had sex with A.B. the previous night. Sonny in turn told his father, and Mr. Whitehead confronted A.B. when she returned home from school that day. Ms. Whitehead returned home from work and also questioned A.B. Eventually, A.B. admitted that she had had sexual relations with defendant. Upon hearing A.B.’s story, Ms. Whitehead reported the incident to police. Detective Joe Lawler of the St. Charles Parish Sheriffs Office interviewed A.B. and her family and determined defendant to be a suspect in the matter.

Kevin Hollingsworth, a crime scene technician with the St. Charles Parish Sheriffs Office, testified that he collected evidence from A.B.’s home on May 15, 2002, including a pair of tennis shoes and a white T-shirt. A.B. identified State’s Exhibit 2 as the tennis shoes defendant left at her house on the night of May 14, 2002. She further testified that State’s Exhibit 4, a photograph, depicts defendant’s shoes and T-shirt.

Jamie Lynn Zammit testified that she saw defendant socially on the night of May 14, 2002. When she arrived home from work at 11:30 p.m.; there was a message from defendant on her answering machine. The message prompted her to drive to Breaux’s Motel. She arrived there between 11:40 and 11:45, and went to defendant’s room. He was not there, so she left a note on the door and returned home. Defendant telephoned her right after she arrived at her house, and she returned to defendant’s motel room. He was wearing sandals on his feet. She did not remember whether he was wearing a shirt. Defendant told her he had lost his tennis shoes but did not say how.

Ms. Zammit told Detective Lawler she had arrived at defendant’s room the second time at 12:30 a.m., but she testified that she thought the time was closer to midnight. She remained with defendant in his room until 8:30 on the morning of May 15 when she dropped him off at his grandparents’ house. Later that day, she picked defendant up at an unknown person’s house and took him with her to visit some friends in Kenner. They were there the whole afternoon. She did not recall seeing Sonny Wfhitehead that day.

Defendant testified on his own behalf at trial. He stated that he was living at Breaux’s Motel in May 2002 because he and his step-father did not get along well. He testified that he saw Sonny and A.B. at Damian Blake’s house on the afternoon of May 14, 2002. When Damian’s father asked defendant to leave, Sonny and A.B. took him to his grandmother’s house in Luling to get some money: Sonny later drove him to his grandfather’s house to pick up his tennis shoes and some clean clothing. The group stopped at a Wal-Mart store, and then Sonny dropped off defendant at the motel. When he got out of the truck, he inadvertently left his tennis shoes. In all, defendant was with Sonny and A.B. between 12:30 a.m. and 2:00 a.m.

Defendant testified that he was not at the Whiteheads’ house at any time on May 14, 2002. He did not have sexual relations with A.B. He was with Ms. Zammit on the night of May 14, 2002 through the morning of May 15, 2002.

ASSIGNMENT OF ERROR NUMBER ONE

The court erred in concluding that the state had met its burden of proving beyond a reasonable doubt a crucial element in both offenses charged, namely, the relative ages of the complainant and the aggressor.

DISCUSSION

By this assignment, defendant argues that the State’s evidence was insufficient to sustain his convictions, as it failed to prove his age, an essential element of the charged offenses. When issues are raised on appeal as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. Wfiien the entirety of the evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Hearold, 603 So.2d 731, 734 (La.1992).

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Evidence may be either direct or circumstantial. Circumstantial evidence consists 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. Williams, 99-223 at p. 8, 742 So.2d at 608. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Qutoum, 02-780, p. 4 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 326, writ denied, 03-0595 (La.5/30/03), 845 So.2d 1059.

Defendant accurately argues that both of the statutes under which he was convicted require proof of the perpetrator’s and the victim’s ages. LSA-R.S. 14:80 provides, in pertinent part:

A. Felony carnal knowledge of a juvenile is committed when:
(1) A person who is nineteen years of age or older has sexual intercourse, with consent, with a person who is twelve years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender; or
(2) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is twelve years of age or older but less than fifteen years of age, when the victim is not the spouse of the offender ...
B. As used in this Section, “sexual intercourse” means anal, oral, or vaginal sexual intercourse.
LSA-R.S. 14:43.3 provides, in part:
A. Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender when the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or the genitals of the victim by the offender using the mouth or tongue of the offender ...

The age of the victim, A.B., at the time of the instant offenses was established by A.B.’s trial testimony. She gave her date of birth as September 20, 1988. She was, therefore, thirteen at the time of the instant offenses. In order to prove defendant’s guilt as to Count 1, the State was required to prove that defendant was at least seventeen years old. As to Count 2, the State was required to prove that defendant was at least three years older than the victim.

Defendant correctly claims that the only direct evidence of his age produced at trial was the chain of custody form introduced during the testimony of crime scene technician Bill Slaton. Based on the date of birth listed on the document, 1 defendant was twenty-one years of age at the time of the incident. The parties entered into a stipulation with respect to the document. The trial judge allowed the document to be admitted, accepting the parties’ stipulation as to its authenticity. Defendant argues that the document was admitted for the limited purpose of showing chain of custody as to evidence the officers seized and could not be used as proof of his age. However, since the parties did not stipulate that the document’s use would be limited to showing chain of custody, the trial judge was entitled to use information on the form for any purpose. Moreover, as the State points out, the judge might, have observed that defendant’s date of birth appears on the bill of information. Defendant did not challenge the validity of that date.

We find that the State successfully proved that defendant’s age met with the requirements of the statutes, regardless of whether the judge actually considered the aforementioned document as proof of age. In State v. Noil, 01-521, p. 25 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, 313, writ denied, 02-0276 (La.10/25/02), 827 So.2d 1177, this Court held that “jury observation and circumstantial evidence can be used to infer the age of a defendant when no direct evidence of defendant’s age is presented.” (Citations omitted).

In the instant case, defendant’s physical appearance was open to view by the judge. Defendant was living by himself in a motel room. He testified on cross-examination that, on October 15, 1998, nearly four years before the instant offenses, he pled guilty to three counts of simple burglary, three counts of simple criminal damage, and three counts of possession of stolen things. As a condition of his sentence, he was assigned to the IMPACT program. The judge could have inferred that defendant was charged and sentenced as an adult, considering that the IMPACT program is not available to juvenile offenders (i.e., those under the age of seventeen). Moreover, it is likely defense counsel would have objected to questions regarding any juvenile convictions, as evidence of such convictions is not generally admissible at trial.

Defendant testified at trial that, on May 15, 2002, he wanted to go to a casino, but that his companions were not old enough. From that statement, it might be inferred that defendant was himself over the statutory minimum age (twenty-one) for gambling. Lastly, defendant testified that he bought beer at no less than three different places during the night at issue. Had defendant been.below the legal drinking age of twenty-one, it is unlikely that three different stores would have sold him alcohol.

Based on the foregoing, we find that the circumstantial evidence was sufficient, under the Jackson test, to prove the element of age. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The court accepted defense counsel’s motion to waive a jury trial outside the presence of the defendant and without determining whether the defendant had made a knowing and intelligent waiver of his right to be tried by a jury of his peers.

DISCUSSION

Defendant complains there is nothing in the record to show that he was properly informed of his right to a jury trial, or that he knowingly and voluntarily waived that right before the court proceeded with a bench trial. Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P. art 780(A). Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976).

Where no valid jury waiver is found in the record, Louisiana appellate courts have traditionally set aside the defendant’s conviction and remanded the matter for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5 Cir.1987), writ denied, 523 So.2d 1335 (La.1988). However, the Louisiana Supreme Court, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, set out a procedure by which the case is initially remanded to the trial court for an eviden-tiary hearing on the question of whether the defendant validly waived the right to a jury trial. The Nanlal court held that, if the trial court finds the defendant did not make a valid waiver of his right to a jury trial, the court must set aside his conviction and sentence and grant him a new trial. The court further reserved the defendant’s right to appeal any adverse ruling on the waiver issue. Id. This Court has followed the procedure set forth in Nanlal. See, State v. Lokey, 02-1087 (La.App. 5 Cir. 2/25/03), 840 So.2d 653, 656; State v. Terrase, 02-1009 (La.App. 5 Cir. 2/25/03), 841 So.2d 947, 950.

Defendant asserts that a remand under Nanlal would be fruitless in this case, arguing that “[i]n the case at bar, it is undisputed that the defendant did not waive his right to a jury trial through counsel in open court in the defendant’s presence.” However, on remand, the court will determine, through an evidentiary hearing, whether there was a valid jury waiver that is simply absent from the record before this Court.

On June 13, 2002, the court held an arraignment and preliminary hearing. There is nothing in the minute entry for that date or in the transcript of the proceedings to show that the trial court advised defendant of his right to a jury trial, or that defendant waived that right. Similarly, there is nothing in the trial transcript to show that defendant was advised of his right to a jury trial. The minute entries pertaining to the trial proceedings and the various status conferences held prior to trial are devoid of any mention of defendant’s right to trial by jury.

The only evidence of defendant’s intention to waive his right to a jury trial is a letter from defense counsel to the trial judge dated January 16, 2003. Counsel wrote, “Dear Judge St. Pierre: This letter is formal notification to the court that Ira Zeringue has chosen to waive the jury in the referenced matter scheduled for January 12, 2003.” There is an order handwritten by the judge at the bottom of the letter, granting defendant’s motion to waive a jury. The letter is not sufficient evidence that defendant knowingly and intelligently waived his right to a jury trial. In State v. Pierre, 98-1123 (La.App. 5 Cir. 4/14/99), 733 So.2d 674, 679, this Court held that the defense attorney’s statement that, “we’re going to waive the jury, Your Honor” did not, on its own, constitute a valid waiver of the defendant’s right to trial by jury.

In State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (Per Curiam), the Supreme Court updated the guidelines for valid jury waivers, stating:

Although it remains the preferred method for the district court to advise a defendant of her right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. See La.C.Cr.P. art. 780; State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Muller, 351 So.2d 143, 146-47 (La.1977). Likewise, it is preferred but not necessary, for the defendant to waive her right to jury trial personally. State v. Wolfe, 98-0345, pp. 6-7 (La.App. 4th Cir.4/21/99), 738 So.2d 1093, 1097. Counsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. Id.; Kahey, 436 So.2d at 486-87.
In the instant case, the record reflects that counsel waived a jury trial on the defendant’s behalf. On the second day of trial, the district court memorialized the defendant’s earlier waiver in her presence. At this time, defense counsel stated that he and his client had discussed the waiver at length and on several occasions, and that both agreed to the waiver. In these circumstances, the court of appeal erred in its determination that the defendant did not waive her right to a jury trial knowingly and intelligently.

The facts in defendant’s case are distinguishable from the facts the Supreme Court addressed in State v. Pierre, in that there is nothing in the instant record to show that defense counsel extensively discussed with defendant his right to a jury trial, or that defendant understood his right and knowingly and intelligently agreed to the waiver. Moreover, the trial court in Pierre accepted the waiver in defendant’s presence. There is no evidence that such was the case here.

Based on the foregoing, this case will be remanded for an evidentiary hearing on the question of whether defendant validly waived his right to a jury trial. If he did not, the trial judge must set aside the conviction and sentence, and set the case for further proceedings as dictated by the holding in Nanlal. If the trial court rules there was a valid waiver, defendant’s right to appeal this ruling will be reserved. State v. Terrase, supra.

ASSIGNMENT OF ERROR NUMBER THREE

The court was wrong as a matter of law in concluding that the rape shield statute makes all evidence of the sexual history of the complainant irrelevant. Such evidence may be introduced where the purpose is to undermine credibility or to establish bias or motive.

DISCUSSION

Here, defendant complains the trial court erred in barring him from examining A.B. and other witnesses with regard to alleged sexual contact she had with her step-brother, Sonny Whitehead. Defendant argues that the court’s restrictions wrongly deprived him of his right of confrontation and to present a defense.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. State v. Hillard, 398 So.2d 1057, 1059 (La.1981).

An accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). As a general rule, a party may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. LSA-C.E. art. 607(C). The right of an accused sex offender to present a defense is, however, balanced against the victim’s interests under LSA-C.E. art. 412, which is meant to protect the victim of sexual assault from having her sexual history made public. The rape shield law is precisely drawn to exclude evidence of the alleged victim’s sexual history with persons other than the defendant. Subpart B(l) of the article does make an exception for “[e]vidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury ...” That subpart did not apply to the instant case. Although the record shows that a “rape kit” was performed on the victim, no evidence regarding semen or physical injury was produced at trial.

The rape shield statute does not apply when a defendant attempts to use evidence of a victim’s false allegations of improper sexual behavior to impeach the victim’s credibility. State v. Smith, 98-2045, p. 5 (La.9/8/99), 743 So.2d 199, 203; State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 587, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297. The relevant inquiry for the trial court in such an instance is whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim made prior false accusations. Smith, 743 So.2d at 203; State v. Wallace, supra. The evidence defendant sought to elicit at trial did not fit under this exception. Defendant did not attempt to show that the victim, A.B., had previously made false claims of sexual assault.

In cross-examining A.B., defense counsel asked her whether she had had sexual relations with Sonny. The State objected on grounds of relevancy, and the court sustained the objection. Counsel then asked A.B. whether her mother had ever questioned her regarding her sexual relationship with Sonny. The State again objected on grounds of relevancy, and the court sustained the objection. The defense questioned Sonny Whitehead about whether he had ever had an intimate relationship with A.B. The State objected, and the court sustained the objection. Defense counsel asked Megan Stabile, A.B.’s classmate and friend, about the victim’s sexual behavior. Again, the court disallowed the line of questioning. The defense recalled A.B. to testify in its case-in-chief. Counsel again attempted to elicit information about her relationship with Sonny. The State objected, and the court sustained the objection. The defense called Megan Matherne, A.B.’s best friend, to testify. The court disallowed questions regarding what Megan knew about A.B.’s relationship with Sonny. Defense counsel attempted to question Samantha Burleigh, another classmate of the victim’s, about whether she had heard A.B. say she had had sexual relations with Sonny. The court disallowed the questioning.

Defendant complains that he was prejudiced by the trial court’s refusal to allow him to make a proffer of the evidence he sought to elicit in order to preserve it for appeal. This argument has no merit. Article 412 provides that before a person accused of committing a crime that involves sexually assaultive behavior may offer evidence of the victim’s past sexual behavior, the accused shall make a written motion to offer such evidence, accompanied by a written statement of evidence setting forth the names and addresses of persons to be called as witnesses. LSA-C.E. art. 412(C)(1). The motion shall be made within the time for filing pre-trial motions specified in LSA-C.Cr.P. art. 521, except that the trial court may allow the motion to be made at a later date. LSA-C.E. art. 412(D). After the motion is filed, the trial court determines the admissibility of the evidence at a hearing. LSA-C.E. art. 412(E). There is no evidence in the record that defendant complied with those requirements. In State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1047, writs denied, 00-0150 (La.6/30/00), 765 So.2d 1066, 99-3477 (La.6/30/00), 765 So.2d 1062, this Court found that, because the defendant had failed to make the proper motion under Article 412, he waived the right to introduce any evidence of the victim’s past sexual history.

Moreover, defendant was not prejudiced by the restrictions the trial court placed on testimony having to do with A.B.’s sexual relationship with her stepbrother. Counsel managed to elicit from A.B.’s mother an admission that she had learned of A.B.’s sexual involvement with Sonny. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). The review reveals no errors patent in this case.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant are conditionally affirmed on the evidence in the record on appeal. See, State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832. However, a final determination of the appeal is pretermitted, and the case is remanded to the trial court to conduct an evidentiary hearing on the question of whether defendant validly waived his right to a jury trial, and for further proceedings, if necessary, pursuant to the holding in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963. If the evidence shows that defendant did not make a valid waiver of his right to a jury trial, the district court must set aside his convictions and sentence and grant him a new trial. Defendant may appeal from any adverse ruling on the waiver issue, and in the absence of such an appeal, defendant’s copnvictions and sentence will be affirmed.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; CASE REMANDED FOR EVIDENTIARY HEARING

      . For purposes of this opinion, under the authority of LSA-R.S. 46:1844(W)(3), only the victim's initials will be used.

      . It appears from Ms. Zammit's testimony that she referred to Damian Blake’s house.

      . IMPACT is an intensive program of parole supervision established by LSA-R.S. 15:574.4.

      . The supreme court’s Per Curiam is unrelated to this Court’s case of the same name, cited above,