source: Caselaw Access Project

author: hAMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. David Wayne WILTURNER.
    No. 2003-0719.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      J. Phillip Haney, District Attorney, New Iberia, LA, Kathleen E. Petersen, Louisiana Department of Justice, Baton Rouge, LA, for Appellee, State of Louisiana.
    Lynden J. Burton, Pecantte-Burton & Burton Jeanerette, LA, for Defendant/Appellant, David Wayne Wilturner.
    David Wayne Wilturner, Iberia Parish Detention Center, New Iberia, LA, In Proper Person.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hAMY, Judge.

The defendant was charged with three counts of sexual battery and three counts of molestation of a juvenile and ultimately entered a guilty plea to one count of sexual battery. The trial court sentenced him to serve five years at hard labor. The defendant appeals his sentence. For the following reasons, we affirm.

Factual and Procedural Background

On September 7, 2001, in connection with a plea bargain, the State filed a bill of information charging the defendant, David Wayne Wilturner, with sexual battery. The charge arose from certain events that transpired at the East Patout Group Home, a state-licensed home for mentally challenged children located in New Iberia, Louisiana, in September 1997.

According to the factual basis presented by the State at the plea hearing, the defendant was employed at the East Patout Group Home in the month of September 1997, when the events forming the basis for the sexual battery charge took place. On September 15, 1997, several group-home employees noticed a mark on the neck of a twelve-year-old resident of the home. The child initially told the employees that the mark was an insect bite. However, he later recanted this explanation and told an employee that the defendant, David Wilturner, had performed fellatio on him and had kissed and sucked certain other parts of his — the child’s— body. The child further confided that he was afraid of the defendant. The employees reported the sexual abuse on September 15,1997.

The State declared in its factual basis that beginning on or about September 1, 1997, and continuing through on or about September 15, 1997, the defendant sexually molested the minor child by sucking his nipples, touching his buttocks, and sucking his penis. The State further explained that the defendant also attempted to insert his | {.penis into the child’s rectum but was unsuccessful. In addition, the defendant rubbed his penis against the child’s back and buttocks.

On or about September 23, 1997, the child’s bedding and bed linens were removed after the child disclosed that the defendant had ejaculated in his bed. Testing was performed on a semen stain found on the bedding, and the results indicated that the DNA present therein belonged to the defendant. The record indicates that the defendant’s independently conducted lab tests confirmed the State’s results.

Investigators from the Louisiana Department of Justice questioned the defendant about his conduct with the minor child in June 1998. The defendant denied that the alleged activities had taken place.

The defendant entered a plea of guilty to one count of sexual battery on August 29, 2002. The State alleged that the defendant knowingly and intentionally committed sexual battery, in violation of La. R.S. 14:43.1, against a victim who was not yet fifteen years of age, who was not the defendant’s spouse, and who was more than three years younger than the defendant (at the time of the offense, the defendant was thirty-six years old, and the victim was twelve). Furthermore, the State noted, the victim was mildly mentally retarded and was under the defendant’s control and supervision.

At the plea hearing, the defendant testified that he was presently employed as a customer representative, and he also served as a minister of music for a local church. He further testified that he was a high-school graduate, had some college education, and had no prior felony convictions.

|aThe defendant’s sentencing hearing took place in December 2002. The defendant produced numerous letters from various persons in the community that attested to his good character. In addition, three members of the community testified on his behalf and prayed for leniency. The trial court sentenced him to serve five years at hard labor, with two and a half years suspended. The State subsequently challenged this sentence as illegal in that La.R.S. 14:43.1(0), the penalty provision of the sexual battery statute, requires that any sentence of imprisonment shall be “without benefit of parole, probation, or suspension of sentence.” The trial court then vacated the original sentence and imposed a sentence of five years at hard labor.

The defendant appeals this sentence. In his sole assignment of error, the defendant contends that the trial court failed to adequately consider the mitigating circumstances listed in La.Code Crim.P. art. 894.1, the Louisiana sentencing guidelines, thereby resulting in a failure to sufficiently particularize the sentence.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find one such error.

The record of the proceedings in the court below does not indicate that the trial judge told the defendant at final sentencing that, pursuant to La.R.S. 14:43.1(0, he is not eligible for parole, probation, or suspension of sentence. La.R.S. 14:43.1(0 requires that a defendant’s sentence under the sexual battery statute shall contain such restrictions.

Louisiana Revised Statutes 15:301.1(A) provides as follows:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of Lprobation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court held that where statutory restrictions, such as those enumerated in La.R.S. 14:43.1(C), are not recited at sentencing, those restrictions are deemed to be contained in the sentence by operation of La.R.S. 15:301.1(A). The supreme court consequently determined that La.R.S. 15:301.1(A) “self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.” Williams, 800 So.2d at 799; see also State v. Joseph, 02-717 (La.App. 5 Cir. 1/14/03), 839 So.2d 103, writ granted, 03-315 (La.5/16/03), 847 So.2d 1196, aff'd on remand, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, and State v. Segura, 02-280 (La.App. 5 Cir. 9/30/02), 829 So.2d 587, writ denied, 02-2696 (La.3/28/03), 840 So.2d 569.

Pursuant the Louisiana Supreme Court’s decision in Williams, we determine that the trial judge’s failure to specify that the defendant’s sentence was subject to the restrictions listed in La.R.S. 14:43.1(C) does not require remand for correction; instead, the judge’s sentence is deemed to include those restrictions by operation of law. Accordingly, any such error requires no action by this court.

| RConstitutionally Excessive Sentence

In his sole assignment of error on appeal, the defendant asserts that his sentence of five years at hard labor, imposed by the trial judge, is constitutionally excessive.

The maximum sentence that a court may impose for a violation of La.R.S. 14:43.1 is ten years. La.R.S. 14:43.1(C).

The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court has provided a list of several factors that appellate courts are to consider in ascertaining whether a sentence, by its excessive duration or severity, is grossly disproportionate to the underlying offense. State v. Baxley, 94-2982 (La.5/22/95), 6656 So.2d 973, citing State v. Telsee, 425 So.2d 1251, 1253 (La. 1983). The appellate court’s analysis of the sentence is cumulative and centers on an amalgam of relevant factors. Id. Among these factors the supreme court notes, are “the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at 1253-54.

The heinous nature of the offense in the instant matter is apparent. According to the record, the defendant was very intimate with the victim, even to the extent of mounting an abortive attempt at intercourse. The victim’s age and disability make this offense even more grievous. Five years’ imprisonment for committing such a crime is not unreasonable punishment, and it is not an example of needless imposition of pain. Moreover, a sentence of five years’ imprisonment is not grossly disproportionate to the severity of the offense and does not betray a manifest abuse of discretion on the part of the trial judge.

The crux of the defendant’s argument on appeal is that the trial judge did not adequately consider mitigating circumstances pursuant to La.Code Crim.P. art. 894.1; as a result, he contends, his sentence violates the principles against excessive punishment set forth in the Louisiana constitution and the corresponding jurisprudence.

La.Code Crim.P. art. 894.1 provides general sentencing guidelines for offenses that warrant imprisonment. Mitigating and aggravating factors are listed in the guidelines, and each applicable factor is to be weighted accordingly in the trial | fudge’s determination. In its opinion in State v. Davis, 449 So.2d 452, 453-54 (La.1984), the supreme court noted,

The trial court’s reasons in imposing sentence, as required by La.C.Cr. P. art. 894.1, are an important aid to this Court in reviewing an allegedly excessive sentence. State v. Telsee, supra; State v. Sepulvado, 367 So.2d 762 (La.1979). . .
The record of sentencing should indicate that the trial court has considered not only the circumstances militating for incarceration, but also any mitigating factors. State v. Walker, 414 So.2d 1245 (La.1982). In State v. Gulden, 399 So.2d 194, 200 (La.1981), U.S. cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 [(1982)], this Court noted that “[w]hile the trial judge need not articulate every aggravating and mitigating circumstance presented in La. C.Cr.P. Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.”

It is evident from the record that the trial judge had indeed considered La.Code Crim.P. art. 894.1 in determining the defendant’s sentence. Aggravating factors relevant to the matter on appeal include La.Code Crim.P. art. 894.1(B)(2), (B)(9), and (B)(13). Article 894.1(B)(2) provides: “The offender knew or should have known than the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.” This aggravating factor is certainly present in the case sub judice in that the defendant was employed at a group home for mentally retarded children, of which the victim was one. The defendant was well aware of the victim’s disability. Art. 894.1(B)(9) provides: “The offense resulted in a significant permanent injury or significant economic loss to the victim or his family.” The record of these proceedings reflects that the child’s family is pursuing a civil suit against the defendant for damages that cannot be compensated through a criminal proceeding such as the instant matter. Finally, Art. 894.1(B)(13) provides, in pertinent part, that “the offender occupied ... a supervisory position.” This 1¡¡factor is apposite in that the defendant was in a position of authority over the victim and was supposed to be his supervisor and care giver.

A review of the list of mitigating factors in La.Code Crim.P. art. 894.1 reveals that (B)(28) is applicable to the instant matter. This subpart provides: “The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.” In the instant matter, the defendant has no criminal record apart from the violation of La.R.S. 14:43.1 that forms the focus of this case. The judge’s comments at the sentencing hearing reflect that he had taken into account the commendations of members of the community in determining a sentence. The judge made an oblique reference to, and the record contains, the letters written by members of the defendant’s community, and he stated that he was impressed by the testimony of the character witnesses called by the defendant at the sentencing hearing.

In his discretion, the trial judge determined that the appropriate sentence for the defendant was five years at hard labor, and we find that this sentence is supported by the record. This assignment lacks merit.

DECREE

For the foregoing reasons, the sentence of the defendant, David Wayne Wilturner, is affirmed.

AFFIRMED.


author: JjDOUCET, Chief Judge.

text:
    Rita BERGERON v. CAJUN KWIK MART, INC.
    No. 2003-675.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    R. Scott McClain, Attorney at Law, Lake Charles, LA, Counsel for Plaintiff/Appellee, Rita Bergeron.
    Dennis Ray Stevens, Gibbens & Stevens, New Iberia, LA, Counsel for Defendant/Appellant, Cajun Kwik Mart, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   JjDOUCET, Chief Judge.

Defendant, Cajun Kwik Mart, Inc., appeals a judgment of an Office of Workers’ Compensation (OWC) judge reinstating Claimant’s, Rita Bergeron’s, benefits as of November 27, 2001, and awarding her $2,000.00 in penalties and $1,000.00 in attorney’s fees for Defendant’s failure to provide medical care. Claimant answered the appeal seeking additional attorney’s fees. We affirm in part and amend in part the judgment of the OWC judge.

FACTS

The parties entered into the following stipulations: 1) Claimant was injured in the course and scope of her employment on February 26, 2000; 2) her average weekly wage was $194.34; 3) her correct compensation rate was $129.57 weekly; and 4) benefits were paid to Claimant through November 27, 2001.

The issues before the OWC judge were whether benefits should be continued beyond November 27, 2001, and whether Defendant had proven Claimant violated the provisions of La.R.S. 23:1208, thus forfeiting her right to benefits.

LAW AND DISCUSSION

On appeal, Defendant’s only specification of error argues “that the Trial Court erred in its application of LSA-R.S. 23:1208 .... when considering the specific deposition testimony of Rita Bergeron and the video tape evidence showing Rita Ber-geron’s activities.”

Louisiana Revised Statute 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|gE. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In Flintroy v. Salvage, 36,857, pp. 12-13 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093, our brethren of the second circuit commented on the application of La.R.S. 23:1208 stating as follows:

La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. Resweber v. Haroil Construction Co., 94-2708 (La.09/05/95), 660 So.2d 7. All of these requirements must be present before a claimant can be penalized. Nolan v. Rawls Farming Co., 35,086 (La.App.2d Cir. 10/31/01), 801 So.2d 524, writ denied, 02-0001 (La.03/15/02), 811 So.2d 910; Harris v. Bancroft Bag, Inc., 30,-431 (La.App.2d Cir.04/09/98), 714 So.2d 44. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions. Chevalier v. L.H. Bossier, Inc., 95-2075 (La.07/02/96), 676 So.2d 1072; Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir.12/09/98), 722 So.2d 332, writ denied, 99-0072 (La.03/19/99), 739 So.2d 782.

See also, Wallace v. Lavergne Transport, 02-0123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508, writ denied, 02-1896 (La.10/25/02), 827 So.2d 1176.

Recently, in Rowan Companies, Inc. v. Powell, 02-1894 c/w 02-1895, pp. 6-7 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, 2003 WL 21513229, the first circuit observed:

The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Town of Clinton v. Loyell, 2001-1608, p. 3 (La.App. 1st Cir.6/21/02), 822 So.2d 171, 172, writ denied, 2002-2051 (La.11/1/02), 828 So.2d 573. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous. Town of Clinton, 2001-1608 at p. 3, 822 So.2d at 172 (citing Stobart v. State, through Dep’t of Dev. and Transp., 617 So.2d 880, 882 (La.1993)).

|3In his oral reasons for judgment, the Workers’ Compensation Judge stated:

Having heard and seen all of the evidence, I want the record to reflect that the decision is made completely on the careful, firsthand observation of the evidence that was submitted, particularly the video tape, and the explanation of the video tape by the — by the inspector and the medical reports that were submitted. I find that this — that the conduct of Ms. Bergeron, while impacting perhaps on her extent of disability, does not equate to fraud; and I also find that the termination of her benefits with the resulting denial of further medical treatment does rise to the level of arbitrary and capricious behavior.

After examining the record and exhibits, we cannot say that there is no reasonable factual basis for the finding by the Workers’ Compensation Judge or that his finding is clearly wrong.

Appellant relies on a surveillance tape made at Jeffs Pool Place in November 2001. Ms. Bergeron explained that, at that time, her husband was managing the pool-hall and that she spent three or four days a week at the business. However, she denied that she was employed there. There is no evidence to rebut her claim. The surveillance tape of Ms. Bergeron shows her vacuuming with a “shop-vac,” but neither emptying it nor picking it up. It also shows her serving drinks at the pool-hall bar, but neither stocking the coolers nor doing any heavy lifting. Ms. Ber-geron admitted to spending many hours a day at the pool-hall, but explained that there was a cot in the back where she could lay down when her pain mandated she rest. The defense brought forth no testimony or evidence to dispute this. While Ms. Bergeron maintains she cannot “weed-eat” or engage in other strenuous activities, she did admit that she could do light chores such as cooking, washing dishes, grocery shopping and sweeping. Her use of the shop-vac appears to be consistent with her testimony as to the activities in which she could engage. While there is some discrepancy between Ms. Bergeron’s testimony and what is depicted on the surveillance video, we, as did |4the Workers’ Compensation Judge, find that these discrepancies do not equate to fraud, but rather reflect on the extent of her disability.

The Appellant did not question the award of penalties and attorney’s fees. Hence, whether those items were warranted is not before this court. However, Claimant did answer the Defendant’s appeal seeking additional attorney’s fees. After considering the record, we amend the judgment to increase the attorney’s fees award from $1,000.00 to $2,500.00 and affirm that judgment as amended.

AFFIRMED AS AMENDED.


author: hEZELL, Judge.

text:
    STATE of Louisiana v. Chet K. WHATLEY.
    No. KA 03-655.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      David E. Stone, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Chet K. Whatley.
    J. Reed Walters, District Attorney— 28th Judicial District Court, Jena, LA, for Plaintiff/Appellee, State of Louisiana.
    Steven P. Kendrick, Attorney at Law, Jena, LA, for Plaintiff/Appellee, State of Louisiana.
    Chet K. Whatley, South Jena, LA, Pro Se.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

On June 3, 2002, the LaSalle Parish District Attorney’s Office filed a bill of information charging Defendant, Chet Whatley, with simple criminal damage to property, violation of La.R.S. 14:56. At the close of a trial held on October 30, 2002, a six-person jury found him guilty as charged. Defendant represented himself at trial.

Subsequently, Defendant filed a motion for acquittal, which the trial court denied on March 4, 2003. On April 9, the court sentenced him to pay a $1,000 fine and serve one year at hard labor. On these latter dates, Defendant was represented by counsel. Said counsel now represents him on appeal.

Defendant now appeals his conviction and sentence, assigning five errors.

FACTS

In April 2002, Defendant and his estranged wife, Natalie Whatley, were in the midst of divorce proceedings. Pursuant to those proceedings, that court had issued an interim order in October 2001, awarding use of a 1996 Cadillac El Dorado to Mrs. Whatley.

On April 13, 2002, Defendant went to Mrs. Whatley’s residence and asked to use the Cadillac the next day. She refused to let him use it, so he called the sheriffs office. Once deputies arrived, they assessed the situation, then advised Defendant to leave. Defendant complied, but returned in the early morning hours of April 14, and again asked to use the Cadillac. Again, she refused.

Defendant then threatened to ram the pickup truck he was driving into the Cadillac. Shortly thereafter, Defendant’s daughter saw the pickup ram into the Cadillac. She saw Defendant get out of the truck and leave the scene.

| ¡ASSIGNMENTS OF ERROR NUMBERS ONE & THREE

In his first and third assignments of error, Defendant argues the evidence adduced at trial was insufficient to support his conviction. Such an argument must be addressed first, as a finding that the evidence was insufficient would result in an outright acquittal. State v. Hearold, 603 So.2d 731, (La.1992). The analysis for such claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1988); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Regarding the present case, La.R.S. 14:56 states, in pertinent part:

Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.

The thrust of Defendant’s argument is that at the time of the offense, he was co-owner of the Cadillac, with rights coextensive to those of Mrs. Whatley. Thus, he contends the State failed to prove the car belonged to “another,” or that “the owner” did not consent to the damage.

| «The only evidence regarding ownership came in during the testimony of Mrs. Whatley. The court notes the relevant colloquy:

Q The judgment that you are referring to — the judgment that allows you to use the vehicle — you had it between you and Chet. You had use, possession and control of the car?
A Right. And I told him, I believe the 20th, we came to Court here.
MR. KENDRICK: Your Honor, may I approach?
THE COURT: Yes.
MR. KENDRICK: Thank you.
THE COURT: Please demonstrate the exhibit to Mr. Whatley. And for the record, if it’s already marked, with an identifying thing, please identify it for the record.
MR. KENDRICK: Certainly. It is pre-marked as State’s Exhibit 1.
THE COURT: Okay. You can go off the record.
OFF RECORD
ON RECORD
THE COURT: Now we’re on.
MR. KENDRICK: May I approach the witness, Judge?
THE COURT: Yes.
MR. KENDRICK: Ma'am, I have a document which has been pre-marked as State’s Exhibit 1. And I would ask that you identify that for me, please.
A The judgment that I received whenever we come to Court. And it was on the 18th of October that was where they had give me use of the car and the house.
Q And this is a signed judgment?
A Um-hmm.
Q And this is the judgment to which you were referring to in the testimony?
|4A Yes, sir.
MR. KENDRICK: AH right, Your Honor, the State wishes to offer State’s Exhibit 1.
THE COURT: Any objections, Mr. Whatley?
MR. WHATLEY: I don’t guess.
THE COURT: Okay. Then, let it be filed. Please tender it to the Clerk. MR. KENDRICK: Yes, sir.
MR. KENDRICK: The property which is the subject of that order is the house, the business and the car. Isn’t that correct?
A Yes, sir.
Q And that was all community property between you and Mr. Chet Whatley? A Yes, sir. It still is.
Q And that was all property which Judge Mauffray granted you exclusive use and control at a trial in October of 2001?
A Yes, sir.
Q After you showed the judgement, which is State’s Exhibit 1 to the law enforcement, the deputies, what happened next?
A Well, I didn’t actually show them the judgment. I told them that I had a judgment that I could show them. And they said that that was no problem. That they would tell Chet to leave. And they went out there to the truck, where he was at, and they told him to leave and he got upset and drove off. And the brown — the tan and blue truck that belonged to Dr. Hedrick.
This court in a civil case, with a similar scenario observed:
The state simply did not prove beyond a reasonable doubt Pam Rabalais took property “belonging to another.” Even assuming the evidence sufficiently established Pam removed the truck from Steve Rabalais’ yard, the State nonetheless was required to prove the “thing of value” she took belonged to another.
|sThe well-settled law of this State is that the rights of co-owners to the possession of property held in common are equal and co-extensive. Butler v. Hensley, 382 So.2d 315 (La.App. 4 Cir.1976). The Louisiana Supreme Court long ago recognized:
Co-owners are owners par mi et par tout, of part and of the whole. Neither of two co-owners has the exclusive right to any determinate part of the common property.
Thus the Court stated in Juneau v. Laborde, 82 So.2d 693, 696, 228 La. 410, 418 (1955), that the “right of co-owners to possession of the property being equal and coextensive, neither becomes indebted to the other for his personal occupancy and enjoyment, save, probably, that a co-owner, who has been deprived of the right of possession by reason of his co-owner’s exclusive occupancy, may claim damages from the date upon which he has demanded occupancy and has been refused by the possessor.” But even then, a co-owner who is dissatisfied with the use to which the property is being put has his remedy by injunction if the character is being changed or the assets wasted and to the remedy of a partition if he is dissatisfied with the occupancy or possession exercised by his co-owner. See Coon v. Miller, 175 So.2d 385 (La.App. 2 Cir.1965). The law generally does not afford a criminal remedy for the taking of property held in common by one co-owner from another. Any contention that property so held in common “belonged to another” is insufficiently grounded vis a vis co-owners because each has the legal right to take and possess the object of the alleged theft.
In this case, Pam Rabalais testified she acquired an ownership interest in the object of the theft (the Chevy S-10 pickup) by virtue of an Act of Donation executed by her husband, Jason Raba-lais, who was financially indebted to her for sums she loaned him prior to their marriage....
The Act of Donation, albeit invalid to translate title to immovable property, evidenced Jason’s intent to convey to his wife an interest in the truck to be held in “community.” Further, the State offered no evidence to rebut Pam’s testimony that she loaned Jason $18,500 and in payment of the loan he gave her equal interest in all the property listed separately in his name, including the Chevy S-10 pickup. Without instructions on what constitutes a valid “donation by manual gift,” the jury understandably was ill-prepared to properly weigh the evidence. The burden to prove beyond a reasonable doubt the property belonged to “another” and not in any portion to Pam rests with the State. This burden it did not carry as a matter of law.
State v. Rabalais, 99-623, pp. 7-9 (La.App. 3 Cir. 1/26/00), 759 So.2d 836, 840-41. (emphasis added).

| (¡Although Rabalais was a theft case, we find its reasoning easily fits the present context, ie., criminal damage, as well. In both cases, the defendants and alleged victims were co-owners of the property at issue, in situations connected to their dissolving matrimonial regimes. Perhaps a more cogent point is that Rabalais clearly indicates that one co-owner cannot be criminally liable for taking property from another co-owner. Thus, by analogy, such a co-owner cannot be criminally liable for damaging co-owned property.

The lower court discussed this issue during the hearing on Defendant’s motion for acquittal:

THE COURT: First of all, just let me say that — I mean that — that case that was cited also did not persuade me. Your case that you cited did not persuade me. Neither of those cases persuaded me one way or the other. And so far everything that you’ve said so far is right except your [sic] missing the essence of this. The essence of this is that the property is not necessarily the thing itself but the right to use it. That’s what the property is. That’s what the property right is. And if that which Ms. Whatley had the right to use was damaged by the damage of the thing — of the physical corporal [sic] thing itself, that’s the interest that was invaded. And that’s the interest that is protected by the statute. It’s not just physical corporeal, you know, property rights as far as my analysis goes. Now, hey, it’s like Steppenwolf, I’ve been wrong before. So, I don’t know if I’m right or if I’m wrong, but I truly believe that I am right about this, that the essence of the offense was the invasion of the property right, the property right not of ownership but of use. They are two—
MR. STONE: And, Your Honor, — •
THE COURT: — separate and distinct things and the statute specifically says without the consent of the owner. But, it’s the owner of the right, not necessarily the owner of the thing, although the thing was damaged, it deprived the owner of the property right. And that was the same analysis made in that First Circuit Case. The right to use the property is separate and distinct from ownership and so, I—
THE COURT: Okay. Okay. Mr. Kendrick, I take it you don’t have anything to say because you don’t need to say anything. Correct?
|7MR. KENDRICK: That’s correct, Judge. Only that we agree — I guess the opposite of Mr. Stone. We agree with your conclusion, maybe not the way that you get there. I think that he’s probably guilty of it, regardless if there’s a use, possession, and control order. And if you’ll consider this analogy—
THE COURT: I guess what I’m basing it on — let me tell you specifically, it’s State versus Perry, 408 Southern Second 1358, and that page is 1663. Okay? A case cited in the context of this particular statute. Okay? Proceed.
MR. KENDRICK: Judge, I think that if we take the case out of the domestic arena and put it in, perhaps succession arena, if a man has nine brothers and sisters and inherited a piece of property and one brother that he should’ve got it all, and said none of these other people are gonna get their share, and burns down the property, I think that the 14:56 provides a remedy for that. I think it’s criminal.
THE COURT: No, except but by fire and explosion. That wouldn’t work. You’d have to go to the arson statute. But, basically, the elements are the same.
MR. STONE: Sure.
MR. STONE: Just briefly, Your Hon- or. On the Perry case, I am well familiar with that case and I am aware that in that case the defendant as arguing that owner should be defined in accordance with using the terminology on— the last page, I guess.
THE COURT: Yes.
MR. STONE: [“]Contrary to the argument of the defendant, owner should be defined in accordance with the common meaning and understand the term not in accordance with the technical definition of ownership of a movable property, meaning the term is be gathered from the connection from which it is used and from the subject matter to which it is applied. [”] And ownership— goes on later to say — [“]that is not always defined as the person who holds the record title to property!”] Again, I have no problem with what that case says. But here in this case, Perry must be limited to its facts. You had some people that were charged with damaging property owned by someone else. Not the defendant. At all. He had no ownership interest whatsoever. And in Perry he was arguing that the tenants had no right to come in and say, wait a minute, I didn’t give him permission to damage my property and so the defense said, well the State failed to prove the essential element of without the consent of the owner because the actual owner of that lease hold property did not get into Court and say I did not give that defendant permission to damage my property. Is We’ve got a completely different situation. That case is totally in opposite, because we have an owner. He’s sitting right next to me. He’s an owner, an owner, an owner, an owner, until the community property is resolved, he sells his interest, he gives away his interest, that interest is taken from him in ownership to the corporals, [sic] And I think that the Court’s reliance on Perry is exactly why we’re here, Your Honor. And I think exactly why this case has no business in this Courtroom.
MR. KENDRICK: And, Judge, what — the we respond is this — he didn’t — he took damage of the undivided interest of his ex-wife. He didn’t have permission to damage that part of the interest. And not only do we rely on Alessi, we rely on that argument as well.
MR. STONE: Nothing further, Your Honor.
MR. KENDRICK: Nothing here, Judge.
THE COURT: Well, that’s — the Court also agrees with that basically. You know, while there are civil remedies available, there’s two civil remedies available that I’m aware of. It’s not only purely civil remedy but there’s also the quasi criminal — or, quasi civil remedy of contempt, a violation of the Court order. But, anyway, be all of that as it could’ve been, because of how I view the statute in the context of this particular case, the arguments made in the post-verdict judgment of acquittal motion are denied.
MR. STONE: Please note my objection.

The case cited by the State both on appeal and below, State v. Alessi, 258 La. 753, 247 So.2d 858 (1971), held that tenants who damaged their landlord’s property were criminally liable for such actions. The court noted that the existence of potential civil remedies did not prevent the State from pursuing such a prosecution. Id. at 859.

A reading of the State’s brief, and the memorandum the State filed below, suggests the State relied upon Alessi due to a misreading of Rabalais. In the motion for acquittal, Defendant cited Rabalais and quoted dicta from the concurrence, which commented that the matter belonged in civil court. Seizing upon this passage, the State cited Alessi for its language on the relationship between the availability of civil remedies, and criminal liability. However, we find the State was essentially arguing |9against dicta, as the comment made by the concurring judge in Rabalais was not the basis of the majority’s holding or the concurrence.

The lower court’s discussion of jurisprudence, cited above, also appeared to focus upon the same Rabalais dicta. In denying the motion for acquittal, the lower court explicitly relied upon State v. Perry, 408 So.2d 1358, 1363-64 (La.1982), which contained the following discussion:

The trial court in its general charge to the jury gave the following instruction which the defendants complain of on appeal:
“Without the consent of the owner, in the context of this statute, means without permission or approval of the one who has the right of residency, use or occupancy.”
Defendants contend that this instruction was erroneous and that “owner” should be defined more restrictively. Specifically, it is the contention of the defendants that the term “owner” means the person who has the right of direct, immediate, and exclusive authority over a thing; the “owner” is that person who may use, enjoy, and dispose of a thing under the conditions established by law. See LSA-C.C. Art. 477.
During the state’s case in chief the residents of each of the three homes that were vandalized testified that they did not consent to the damaging of their property. The defendants established that none of the residents who testified had record title to the houses which had been vandalized. Rather, the victims of these acts of vandalism were tenants or lessees merely possessing the property that was vandalized.
It is axiomatic that the state must prove every element of the crime with which the defendant in a criminal case is charged. An essential element of the crime of simple criminal damage to property is that the damage was done without the consent of the owner. Contrary to the argument of the defendants, “owner” should be defined in accordance with the common meaning and understanding of the term, not in accordance with the technical definition of ownership of immovable property. The meaning of the term is to be gathered from the connection in which it is used and from the subject matter to which it is applied. See LSA-R.S. 14:3. The term “owner” has been defined in many ways. See Black’s Law Dictionary (4th Edition). “Owner” may be defined as the person in possession of a thing or the one with dominion, control and management of a thing at the time in question. “Owner” is not always defined as the person who holds the record title to property.
I,nIn this case, proof that damage to a house was inflicted without the consent of the person living in the house is sufficient to establish lack of consent of the owner. Additionally, we note that lack of consent of an owner to malicious vandalism of an owner’s property can often be inferred circumstantially from the evidence presented, and such is the only reasonable inference under the evidence presented in this case.
Under the circumstances presented by this case, we think the trial court’s definition of “owner” as including persons with the right of use, residency or occupancy was not erroneous. The instruction to the jury fairly dealt with the issue of proof of lack of consent. It is well established that the ruling of a trial court on an objection to a portion of his charge to a jury will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be erroneous and prejudicial. State v. Dardar, 353 So.2d 713 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, 154 La. 295, 97 So. 449 (1923). Under the facts presented in this case, we do not find the disputed portion of the charge to the jury to be erroneous or prejudicial. This assignment of error lacks merit.

While Perry and Rabalais are not in direct conflict with one another, they do establish two separate routes for resolving the present case. Perry did not rely on the Civil Code, Rabalais did. If, as in Rabalais, a co-owner is not criminally liable for the taking of co-owned property, then it seems such a co-owner would not be liable for damage to co-owned property. One possible distinguishing point, noted by the State and the lower court, is that the court had issued an interim order in October 2001. The order awarded her use of the car at issue. The lower court reasoned that by damaging the car, Defendant had damaged her right to use the ear, as established by the court order. Since Defendant and Mrs. Whatley were still co-owners at the time of the offense, Rabalais would dictate an acquittal.

On the other hand, Perry held that, for purposes of La.R.S. 14:56, right of use is equivalent to ownership. Also, it appeared to divorce criminal-law definitions from those of civil law, at least in situations where the direct victims are lessees. However, as Defendant points out, the present case and Rabalais differ from Perry and Alessi, because in the latter pair of cases the defendants clearly had no |1Townership interest in the damaged property. Thus, in those cases, the question to be resolved was whether lessee victims had ownership interests for purposes of the La.R.S. 14:56. Also, Perry could be seen as part of a separate genera of jurisprudence that treats lessees or possessors as “owners” in a criminal-law contejct. See, e.g., State v. McClanahan, 262 La.138, 262 So.2d 499 (1972), and State v. Lewis, 49 La.Ann. 1207, 22 So. 327 (1897).

However, other courts have addressed issues of civil-law ownership and use in the criminal-law context. For example, in State v. Peterson, 623 So.2d 919 (La.App. 4 Cir.1993), a defendant claimed he could not be guilty of simple burglary of his grandmother’s house. He argued that his one-eighth ownership interest in the house gave him authority to enter, thus, said entry was not “unauthorized” as defined by the simple burglary statute.

The fourth circuit acknowledged the defendant’s one-eighth ownership interest, but observed the victim had usufruct of the house. Relying on the Civil Code, the court stated the defendant’s naked ownership interest did not entitle him to interfere with the victim’s usufructuary rights. Id.

We find that Peterson highlights the factor that distinguishes the present case from Rdbalais. The court order awarding use of the car to the victim, and preventing either party from alienating it, placed Defendant in a position analogous to that of the Peterson defendant, who had naked co-ownership. Meanwhile, the victim here was in the same position as the victim in Peterson, who had usufruct of the home at issue in that case. Therefore, Defendant’s co-ownership rights, expressly limited by the court’s prior order, did not entitle him to interfere with the victim’s use of the car. Thus, we find the Defendant’s argument that his status as |i?co-owner immunized him from criminal liability for simple criminal damage lacks merit.

His argument implies that some other elements were also unproven, but we note the victim testified she did not consent to Defendant’s act of damaging the car. Also, Jessica LeAnne Whatley testified she saw her father, the Defendant, commit the act of driving into the car at issue.

In his first assignment of error, Defendant also argues the State failed to prove the damage exceeded $500.00. We find this argument is meritless, as the State introduced an invoice showing the repairs cost $5,161.62. Also, although the record lacks evidence of the condition of the car before the offense, Mrs. Whatley’s testimony indicated the repairs were made for damage that resulted from Defendant’s offense, as shown by the following colloquy:

MR. KENDRICK: May I approach, Judge?
THE COURT: Yes.
MR. KENDRICK: Ma'am, I have a document which I have pre-marked as State’s Exhibit 2 and I would ask for you to identify that for me, please.
A Yeah. That’s the car. That’s the Cadillac El Dorado.
Q Okay.
A Also, it has some front damage up here, too.
Q Okay. But, this accurately reflects the damage on the car right after the incident?
A It was in a probably in a hour — by the time we called the law, it was about one o’clock. But, by the time they came out, and had to come back to town to get the camera to come back and take a picture. I mean, this come out of the police camera.
Q Okay. But, you actually observed what is being shown in these pictures and you can tell this jury, you know, I didn’t personally take the pictures but this does represent the condition of the car after—
I is A Right.
Q —it happened. Isn’t that correct?
A Right.
MR. KENDRICK: Your Honor, I’d like to offer State’s Exhibit 2 and also show the picture to the jury at this time.
THE COURT: Any objection?
MR. WHATLEY: No, sir.
THE COURT: Okay. Let it be filed first.
MR. KENDRICK: Yes, sir.
THE COURT: But, since it is an Exhibit, tender it to the Clerk, the Clerk will endorse it as filed. At any appropriate time, any Exhibit that’s been introduced can be demonstrated to the jury.
MR. KENDRICK: Thank you, Judge. Ma'am, the gentleman who you’re testifying about, Chet Whatley, do you see him in the court room today?
A Yes, sir. He’s at the other table.
Q Thank you. Mr. Whatley did not cause the damage by exploding it or by burning it? Isn’t that correct?
A No. It did damage on the front, right-hand side of the tan truck.
MR. KENDRICK: Your Honor, may I approach?
THE COURT: Yes.
MR. KENDRICK: Ma'am, I have a document which I have pre marked as State’s Exhibit 3, and I’d ask that you identify that for me, please.
A This is the what Progressive was going to fix and pay the — they sent me this part of the check to pay for my '55. And it shows the $250 deductible but I only had to pay $150. So, all together, this is what they paid.
Q This document demonstrates what Progressive paid on your claim?
|14A On my claim. Yes.
Q I also have a document which I have pre-marked as State’s Exhibit 4 and I would like for you to identify that for me, please.
A This is where I sent the car to Ant-ley’s Collision. And where I gave them my check and my deductible check and the total balance due to fix the car.
Q Okay. And if I — if you read these two exhibits in conjunction with each other, State’s Exhibit 4 is the bill from the collision center.
A Right.
Q And the State’s Exhibit 3 is the insurance paperwork to pay the claim.
A Right.
MR. KENDRICK: Your Honor, I would like to offer State’s Exhibit 3 and State’s Exhibit 4 at this time.
THE COURT: Any objection?
MR. WHATLEY: No, sir, Your Hon- or.
THE COURT: Let them be filed.

Thus, we find the Defendant’s first and third assignments lack merit. We will proceed to discuss the remaining assignments.

ASSIGNMENT OF ERROR NUMBER TWO & ERROR PATENT

In his second assignment, Defendant contends the trial court failed to make an adequate determination regarding whether he validly waived his right to counsel.

In our review of the record for errors patent, we discovered an error which occurred at arraignment. Because discussion of this error is related to the issue raised in this assignment of error, we will discuss them together.

Louisiana Code of Criminal Procedure Article 513 states:

In the case of an offense punishable by imprisonment, when the defendant appears for arraignment without counsel, the court shall inform him before he pleads to the indictment of his right to have counsel appointed to defend him if he is indigent. When a defendant Instates under oath that he desires counsel but is indigent, and the court finds the statement of indigency to be true, the court shall provide for counsel in accordance with the provisions of R.S. 15:145 to the defendant before he pleads to the indictment.

The Defendant in this case was not represented by counsel at arraignment and the trial court did not comply with the requirements of Article 51B. Recently, in a case where a defendant was not afforded counsel at arraignment, this court examined whether arraignment is a critical stage of the proceedings. In doing so, this court stated:

In Louisiana, there is no confrontation of witnesses or presentment of evidence at arraignment. Additionally, available defenses are not lost if not pled at arraignment. For example, La.Code Crim.P. art. 561 provides that a “defendant may withdraw a plea of ‘not guilty’ and enter a plea of ‘not guilty and not guilty by reason of insanity,’ within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.” (Emphasis added). La.Code Crim.P. art. 726 which permits a defendant, who intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of his mental state required for the offense charged, to notify the district attorney of such intention no later than ten days prior to trial or such reasonable time as the court may permit. Moreover, motions to quash are required to be filed after arraignment. See La.Code Crim.P. arts. 521 and 535. Therefore, the present case is distinguishable from Hamilton [v. Alabama, 368 U.S. 52, 82 S.Ct. 157[, 7 L.Ed.2d 114] (1961).
Further, the present case is distinguishable from [State v.] Fraychineaud [, 620 So.2d 338 (La.App. 5 Cir.1993)]. Fraychineaud was not represented by an attorney at arraignment or at trial and the court found reversible error. The court did not distinguish whether it would have reached the same result if the attorney had not been present at arraignment but had been present at the trial. In this case, the Defendant had appointed counsel at the time of arraignment. The record indicates that on August 29, 2001, the trial court ordered no bond be set and referred the case to the Indigent Defender Board. The day after arraignment, November 6, 2001, the Defendant’s appointed counsel filed a Motion for Discovery and Inspection and Motion for Bill of Particulars. On January 2, 2002, the Defendant’s counsel requested discovery and a fifteen day extension to file any motions. Moreover, he also participated in all phases of the trial and sentencing.
| ^Consequently, arraignment was not a critical stage requiring the presence of counsel. Therefore, this assignment of error is denied.

State v. Tarver, 02-973, 02-974, 02-975, pp. 9-10 (La.App. 3 Cir. 3/12/03), 846 So.2d 851, 857-58.

We find Tarver is distinguishable in that the Defendant in this case was not afforded counsel at trial. More on point is State v. Fraychineaud, 620 So.2d 338 (La.App. 5 Cir.1993). As mentioned in Tarver, Fray-chineaud was not represented by counsel at arraignment or trial. In addressing the defendant’s claim that he was not informed of his right to counsel and did not waive that right, the fifth circuit stated:

Since the defendant was faced with the possibility of imprisonment he was constitutionally entitled to counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Accordingly, LSA-C.Cr.P. art. 513 mandates that the court inform a defendant of his right to counsel before he pleads in answer to an indictment for an offense punishable by imprisonment. While the defendant may waive the right to counsel, the waiver must be knowing and voluntary and the record must affirmatively reflect that the defendant was advised of the right and elected to waive it. LSA-C.Cr.P. art. 514; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This failure of the trial court to inform defendant of his right to counsel and to secure a valid waiver constitutes reversible error.

Id. at 340 (footnote omitted).

Unlike the situation in Tarver, the Defendant in the present case was not represented by counsel at either arraignment or trial, which, under the analysis employed in Tarver, supports a finding that arraignment was a critical stage in this case.

In the case sub judiee, the right to counsel was discussed immediately before jury selection:

THE COURT: Okay. Very good, then. Okay. Are we ready to have the jury come back in?
|17MR. KENDRICK: No, sir, Judge. I think that under the Third Circuit jurisprudence, I think that at this time it would be appropriate if the Court would make a determination whether Mr. Whatley has validly waived his right to counsel. I’ve taken into account the factors in the State versus Hayes case and it will—
THE COURT: I see the gentleman present. I see that he’s ready. I believe that’s a correct statement, then. You’re ready to proceed and you’re gonna represent yourself. Right?
MR. WHATLEY: Yes, sir.
THE COURT: That’s what I thought. That’s giving the tenor of his demeanor and what have you, I figured that he’s ready to represent himself. That is correct?
MR. WHATLEY: Yes, sir.
THE COURT: Okay. Now, we’re ready to call the jury in?
MR. KENDRICK: Sir?
THE COURT: Are we ready to call the jury in? Are there any other preliminary matters?
MR. KENDRICK: Yes, Your Honor. There — the requirements of Hayes require a determination of literacy competency — understanding (inaudible) — much like the warnings, Judge, that Your hon- or—
THE COURT: Okay.
MR. KENDRICK: — makes in your colloquy.
THE COURT: Mr. Whatley, see this little short eight and a half by 11 piece of paper?
MR. WHATLEY: This one right here, Your Honor?
THE COURT: Yes, sir.
MR. WHATLEY: Yes, sir.
THE COURT: What — the big writing at the top — what does that say?
MR. WHATLEY: Juror questions dash criminal cases.
THE COURT: And then the next line? In smaller print?
11SMR. WHATLEY: Name, mailing address, marital status, spouse’s name, occupation, spouse’s occupation.
THE COURT: I think Mr. Whatley is literate. I make a factual determination that he reads the American language— That he reads the English language on a piece of paper. And, of course, you understand, basically, what the general juror questions is. [sic] You can tell me what that means in your own language.
MR. WHATLEY: I’m sorry, Your Honor?
THE COURT: Your general juror questions — you know what that means?
MR. WHATLEY: Yes, sir.
THE COURT: And it means to you?
MR. WHATLEY: That I can question the jurors?
THE COURT: Well, it means that. But, this is what I’m gonna ask them. Is that correct?
MR. WHATLEY: Yes, sir.
THE COURT: Okay. Are you nervous, sir?
MR. WHATLEY: Yes, sir.
THE COURT: Well, I kind of thought he was. Okay.
MR. WHATLEY: Can I say something, Your Honor? I’m sorry.
THE COURT: Yes.
MR. WHATLEY: I just feel a little put down having my daughter here.
THE COURT: Well, I understand that. But, it’s not the Court’s choice to call witnesses.
MR. WHATLEY: Yes, sir. I understand.
THE COURT: It’s not my case at all. I’m just kind of like the referee between the State and you. You understand that?
MR. WHATLEY: That’s great. I just wanted you to know that.
THE COURT: Okay.
J^MR. WHATLEY: I’m sorry.
THE COURT: No. That’s no problem.
MR. WHATLEY: Yes, sir.
THE COURT: Okay. And I think that Mr. Whatley is competent. I think he’s literate. I think he’s competent to represent himself in this particular matter. I think he understands, you know, the criminal prosecution. And I think he understands that we’re gonna be selecting a jury and we’re gonna have a prosecution. But, you have a right to put on evidence first. He’s got a right to put on evidence. And then you’ve got a right to rebut any evidence that he puts on.
MR. KENDRICK: And he should know specifically about the right that he does have a fundamental right to counsel—
THE COURT: Oh, yes.
MR. KENDRICK: — and that he would be at a disadvantage at not having one.
THE COURT: Certainly. Certainly. Of course, Mr. Whatley, you do understand that everybody in a criminal prosecution has a right to hire the attorney of their choice. You understand that?
MR. WHATLEY: Yes, sir. I wished I could, Your Honor.
THE COURT: Okay. And only if a person is indigent, in other words, if you have no income, no means, nothing you could mortgage, nothing you can sell, — if you are in that position, then, of course, and if you qualify, then, of course, an attorney could be appointed to represent you if you qualify.
MR. WHATLEY: Yes, sir.
THE COURT: And, of course, you understand since you haven’t been trained in the law, that, of course, that a person who has been trained in law should be better able to do a better job than you. You understand that, too?
MR. WHATLEY: Yes, sir. I understand that.
THE COURT: Okay. And you realize all of that, but, realizing all of that, you’re still here. And you’re still gonna represent yourself. Correct?
MR. WHATLEY: Yes, sir.
MR. KENDRICK: Okay. Thank you, Judge. I think that’s—
lanTHE COURT: Is there anything else, Mr. Kendrick?
MR. KENDRICK: No, sir.
THE COURT: Okay. Mr. Whatley, is there any other preliminary matters that you want to address? You’ve already addressed the issue of your daughter being present. And I think your daughter was removed from the courtroom.
MR. WHATLEY: Yes, sir. I want to appreciate y’all letting me do this on my own behalf. If I had any money whatsoever, I would’ve hired an attorney, sir. I don’t have anything no more.
THE COURT: Well,—
MR. WHATLEY: I got a heart and a soul. That’s about all I got left.
THE COURT: Okay. I’m sure that you have undivided interest in property. I’m sure you own something, sir.
MR. WHATLEY: Yes, sir, but—
THE COURT: I know—
MR. WHATLEY: — it ain’t got no value to me no more.
THE COURT: Well, I know it might not have a value to you, but, it’s got a value to a banker.
MR. WHATLEY: Yes, sir.
THE COURT: And that’s part of the criteria for appointed counsel. Do you understand?
MR. WHATLEY: Yes, sir. I understand.
THE COURT: Okay.
MR. KENDRICK: And I think we can stipulate, Judge, that he was advised — that he was to obtain counsel at arraignment within 15 days and—
THE COURT: Within seven.
MR. KENDRICK: — within seven— and has never applied for counsel in this case.
THE COURT: Well, that’s — that would be a correct statement.
J_2jMR. WHATLEY: Your Honor?
THE COURT: Would it be a correct statement, Mr. Whatley, in this particular case?
MR. WHATLEY: I would—
THE COURT: When you were arraigned I gave you a scheduling sheet? And I did point out the fact that within seven days, that’s the time you apply for an attorney or hire one. Is that correct?
MR. WHATLEY: I’ll assume that’s correct, Your Honor. I contacted Kisat-chie in Jonesville, Louisiana. And they sent me a notice where the [sic] couldn’t represent me.
THE COURT: Well, no. They couldn’t represent you because that’s— they represent people in civil cases, not criminal cases.
MR. WHATLEY: Yes, sir.
THE COURT: We a public defender, [sic]
MR. WHATLEY: Yes, sir.
THE COURT: He represents people in criminal cases.
MR. WHATLEY: Yes, sir.
THE COURT: If they qualify.
MR. WHATLEY: Yes, sir. I talked to the State attorney. And I thought he was gonna contact me, but he never did. He talked to me. I’m sorry.
THE COURT: The State attorney?
MR. WHATLEY: Yes, sir.
THE COURT: Who is that?
MR. WHATLEY: He was here yesterday. I don’t know his name, Your Honor.
THE COURT: Oh, no. He’s a public defender. That’s Mr. Kutch-Joe Kutch.
MR. WHATLEY: Well, I believe that’s the man.
THE COURT: And you also spoke to Mr. Paul Lemke. From Jonesville— from Harrisonburg.
| «MR. WHATLEY: Yes, sir. I just spoke to him.
THE COURT: Yes. He’s not a state man. He’s just an attorney that people hire to represent them. Okay.
MR. WHATLEY: Yes, sir.
MR. KENDRICK: But, despite all of that, you do wish to proceed today? That is—
MR. WHATLEY: Yes, sir. I’m ready.
THE COURT: Okay.
MR. KENDRICK: Judge, we’re ready for the jury to come back in.
THE COURT: Okay. Well, let’s do it. Instruct them that when they come in that the prospective members of the jury—

We find the above colloquy is problematic for a number of reasons. First of all, it includes strong indications Defendant was indigent and desired counsel, e.g., ‘Tes sir. I wished [sic] I could, Your Honor,” and “If I had any money whatsoever, I would’ve hired an attorney, sir. I don’t have anything no more.” Also, the record reveals Defendant attempted to directly contact indigent counsel on his own.

We note this court’s holding in State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86 cited by both parties. That case explained:

Before being allowed to represent himself, a criminal defendant must knowingly and intelligently waive his constitutional right to counsel. State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993).
A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI; La. Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s waiver of counsel is | ^intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant’s literacy, competency, understanding and volition, i.e. was defendant’s waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. Mitchell, 580 So.2d 1006; Smith, 479 So.2d 1062; State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).

The court went on to reverse the conviction and remand the case, and ordered the lower court to conduct a hearing on the defendant’s possible indigent status, in accordance with La.R.S. 15:147. Id.

In a more recent case, this court explained:

The record here shows that the trial court did not look into the voluntariness and intelligence of the defendant’s waiver of counsel, or warn the defendant of the dangers and disadvantages of self-representation. The record indicates that, because counsel had been appointed to assist the defendant prior to his request to represent himself with assistance, the trial court thought that the defendant had waived his right to counsel. However, the defendant informed the trial court that he had not meant to waive his right to counsel and that he only wanted to be involved in his defense. Therefore, we must determine whether the defendant actually waived his right to counsel and, if a waiver occurred, whether the waiver was adequate.

24State v. King, 96-1286, p. 5 (La.App. 3 Cir. 10/8/97), 702 So.2d 814, 816-17 (footnote omitted).

In King, the defendant proceeded to trial with counsel sitting in an advisory capacity. Relying on Hayes and other jurisprudence, the court reversed and remanded the case, noting, “The trial court failed to make a meaningful inquiry into the voluntariness and intelligence of the waiver and failed to warn the defendant about the dangers and disadvantages of self-representation. Therefore, any waiver that may have arisen under these facts was inadequate.” Id. at 818.

It is noted that the lower court briefly discussed the possible value of Defendant’s property. That portion of the colloquy suggests the court made a determination that Defendant was not in fact indigent, without conducting an indigency hearing as required by La.Code Crim.P. art. 513 and La.R.8.15:147.

Additionally, we find the trial court’s determination that Defendant had validly waived counsel rested in part on its belief that it had advised him of his right at arraignment. However, as already pointed out in the error patent discussion, the record of arraignment shows the lower court did not advise Defendant of his right to counsel. In discussing the arraignment, the court mentioned giving Defendant a “scheduling sheet,” but it is not clear whether the sheet contained any information regarding the right to counsel, and the arraignment record does not show that any such schedule or form was filed into the record, thus it is not available for appellate review.

We note Hayes is factually distinguishable, because the judge in that case refused to appoint trial counsel for the defendant. However, we find Defendant in the present case is in a similar position to Hayes. In the case sub judice, the trial court apparently made a summary decision Defendant was not indigent, or simply 12signored Defendant’s indications that he wanted a lawyer but did not have sufficient funds to hire one. The Defendant retained counsel after the trial, as appellate counsel, David Stone, also represented him at the post-trial hearing on the motion for acquittal, and sentencing. It is unclear how counsel came to represent Defendant, thus it is not clear whether or not Defendant is factually indigent. For example, it is possible a family member stepped forward with funds after the trial. If this is the case, Defendant himself could still qualify as indigent. See, e.g., State v. Frank, 99-553 (La.1/17/01), 803 So.2d 1.

Further, in the context of the error as assigned, Defendant’s statements that he would proceed without counsel, even thanking the court for “allowing” him to do so, merely serve as indications Defendant did not understand his right to have counsel appointed. Simply put, the overall colloquy suggests Defendant did not understand his rights. Further, although the court conducted a clear and practical inquiry into Defendant’s literacy by having him read in open court, there was no further inquiry into his education or background, or the relative complexity of the case. As shown by the Jackson review in the previously-discussed assignments, the issue of co-ownership gave this case nuances that Defendant, a layman, may not have appreciated. As the lower court did not inquire into these factors or similar issues, it is clear the trial court did not make a sufficient inquiry into whether Defendant knowingly and intelligently waived his right to obtain trial counsel.

Further, the ultimate result of the colloquy was that Defendant proceeded without counsel. In the context of the error patent analysis, this lack of representation gave rise to reversible error, pursuant to La. Code Crim.P. art. 513 and Fraychineaud.

| ^Considering the above, we find the trial court did not comply with La.Code Crim.P. art. 513 and the Defendant was not represented at critical stages of trial. Thus, we reverse Defendant’s conviction and remand the case for re-arraignment of the Defendant after the lower court complies with La.Code Crim.P. art. 513.

This result renders the fourth assignment moot, as it alleges the sentence is excessive. However, we will discuss the fifth assignment, because it involves an error patent.

ASSIGNMENT OF ERROR NUMBER FIVE & ERROR PATENT

The bill of information charges the Defendant with simple criminal damage to property in excess of $500, in violation of La.R.S. 14:56. The Defendant notes that pursuant to La.Code Crim.P. art. 470, if the value, price or amount of damage is essential to the charge or to determine the grade of the offense, the amount must be contained in the bill of information. The three grades of simple criminal damage to property are damage less than $500, $500 but less than $50,000, and $50,000 or more. See La.R.S. 14:56. Thus, the bill is defective as it does not allege with which of the upper two grades the Defendant is charged. See State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398; See also State v. Breaux, 96-1516 (La.App. 3 Cir. 4/30/97), 693 So.2d 326 (bill found deficient where amount of damage not stated).

It is unnecessary to discuss how the error would affect the conviction and sentence in this case because the court has found that the conviction and sentence be reversed. However, the case is remanded to give the State the opportunity, before proceeding further, to amend the bill to properly charge an offense. See Breaux, 693 So.2d 326, and State v. Bass, 509 So.2d 176 (La.App. 1 Cir.1987).

^CONCLUSION

Defendant’s conviction and sentence are reversed and remanded for proceedings in accordance with this opinion. Before proceeding further, the State is given the opportunity to amend the bill of information to properly charge an offense.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WOODARD, J., concurs.

      . La.R.S. 15:147 requires an inquiry and determination regarding indigency "not later than arraignment” and sets procedures to follow if such a determination is made.


author: I THIBODEAUX, Judge.

text:
    Paul MUNDELL, Jr. v. Susann E. Ortega MUNDELL.
    No. 2003-631.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Field Vernon Gremillion III, Alexandria, LA, for Plaintiff/Appellee, Paul Mundell, Jr.
    Kathleen Morrissey Delaney, Austin Law Firm, Ronald J. Bertrand, Lake Charles, LA, for Defendant/Appellant, Susann E. Ortega Mundell.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   I THIBODEAUX, Judge.

In this community property case, Sus-ann E. Mundell appeals the trial court’s judgment granting Paul Mundell’s peremptory exception of res judicata to her petition to partition community assets. After their divorce, each party filed separate bankruptcy proceedings and listed each other as a creditor with respect to the existing community property. The trial court ruled that Mrs. Mundell waived her right to pursue her claims outside of Mr. Mundell’s bankruptcy proceeding and that the debtor-creditor relationship between the parties regarding their respective assets and liabilities were litigated and determined by the bankruptcy proceedings. We disagree and reverse and remand to the trial court for a trial on the community property partition.

I.

ISSUE

We must decide whether the trial court erred in granting Mr. Mundell’s peremptory exception of res judicata.

II.

FACTS

Appellant, Susann E. Mundell, and ap-pellee, Paul Mundell, Jr., were divorced by judgment dated April 30, 1998. In November 1998, each party filed separate Chapter 7 bankruptcy proceedings in the United States Bankruptcy Court for the Western District of Louisiana. In their individual petitions, each party listed the other as a creditor and listed the properties which are the subject of Mrs. Mun-dell’s action to partition. Mr. and Mrs. Mundell were both discharged as debtors in their respective bankruptcy proceedings in February 1999. The properties fisted in their 1 ^bankruptcy proceedings were abandoned pursuant to 11 U.S.C. § 554 upon the closing of their respective bankruptcy cases.

On May 17, 2001, Mrs. Mundell filed a Petition for Judicial Partition of Community Property. In response, Mr. Mundell filed exceptions of no right of action and res judicata. The trial court granted the res judicata exception and determined the exception of no right of action to be moot. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

Louisiana Revised Statutes 13:4231 sets forth the requirements for res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2)If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(8) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

“The burden of proof is upon the pleader to establish the essential facts to sustain the plea of res judicata.” Ins. Assocs., Inc. v. Francis Camel Const., Inc., 395-1955, p. 3 (La.App. 1 Cir. 5/10/96), 673 So.2d 687, 689. The concept should be rejected when doubt exists as to whether a plaintiffs substantive rights actually have been previously addressed and finally resolved. Tate v. Prewitt, 33,895 (La.App. 2 Cir. 9/27/00), 769 So.2d 800, writ denied, 00-3203 (La.1/26/01), 781 So.2d 1265.

In this case, Mr. Mundell contends that the division of the property in question has been determined by the bankruptcy court and that Mrs. Mundell is barred from bringing an action for partition of community property because of res judica-ta. As the pleader of res judicata, Mr. Mundell has the burden of proving that the issue of ownership of the property has been previously adjudicated.

Under La.R.S. 13:4231(3), res judi-cata applies if the issue was “actually litigated.” “Under this civilian theory of res judicata, ‘only matters actually litigated and finally adjudged may not be contradicted later.’ ” Patin v. Patin, 00-0969, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676 (citing Ebey v. Harvill, 26,373, p. 2 (La.App. 2 Cir. 12/7/94), 647 So.2d 461, 463).

The trial court’s ruling stated:
The Judgments of the Bankruptcy Court are now final judgments. Each of the assets were listed in the plaintiffs bankruptcy petition. The defendant’s claim to those assets was listed as a claim of a creditor in the plaintiffs bankruptcy. Further, the defendant has not contradicted the plaintiffs claim that she was served with the bankruptcy petition and was made aware that he intended to claim her as creditor. As such, giving full faith and credit to the Bankruptcy Court’s discharge in the plaintiffs bankruptcy, the Court is constrained to find that the defendant waived her right to pursue these claims outside the plaintiffs bankruptcy proceedings. Indeed, the debtor-creditor relationship between the parties regarding their respected assets and liabilities were litigated and determined in the bankruptcy proceeding.

In essence, the trial court ruled that the parties “litigated” their rights with regard to the property by listing them in their respective bankruptcy proceedings and when the | ¿bankruptcy court discharged the debts of Mr. Mundell, Mrs. Mundell’s rights in any property were also discharged. Mrs. Mundell argues that only debt, but not property, can be discharged by bankruptcy proceedings. Mrs. Mundell is correct in her contention that an interest in property is not dischargeable in bankruptcy. A discharge in bankruptcy discharges debts. 11 U.S.C. § 524(a)(1). A “debt” means a liability on a claim. 11 U.S.C. § 101(12). A “claim” means a right to payment, or a right to an equitable remedy. 11 U.S.C. § 101(5). A discharge extinguishes rights to payment. It does not extinguish interest in property. See In re Granados, 214 B.R. 241 (Bankr.E.D.Cal.1997); In re Gendreau, 122 F.3d 815 (9th Cir.1997); In re Chandler, 805 F.2d 555 (5th Cir.1986). The purpose of the bankruptcy proceeding was to discharge the debtor, Mr. Mundell, of any debts he owed and not to divide the community property. Thus, the bankruptcy court could not have litigated the division of community property.

Furthermore, the bankruptcy court also “abandoned” the property. “Abandonment” of property of the estate is defined in Section 554 of the United States Bankruptcy Code as follows:

(a) After giving notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
ls(d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.

Mrs. Mundell argues that the effect of the abandonment was that the assets listed in their respective bankruptcy proceedings reverted unto each of them upon the close of their respective bankruptcy cases. After abandonment, the property reverts to the debtor, and the debtor’s rights to the property are treated as if no bankruptcy petition was filed. In re Dewsnup, 908 F.2d 588 (10th Cir.1990). See also Brown v. O’Keefe, 300 U.S. 598, 57 S.Ct. 543, 81 L.Ed. 827 (1937); Wallace v. Lawrence Warehouse Co., 338 F.2d 392 (9th Cir.1964). Following abandonment, “whoever had the possessory right to the property at the filing of bankruptcy again reacquires that right.” See In re Dewsnup, 87 B.R. 676, 681 (Bankr.D.Utah.1988). Thus, after each bankruptcy court abandoned the property, the parties were put in the same position as if the bankruptcy was never filed. Before the filing of the bankruptcy proceedings, the parties were divorced. Under La.Civ.Code art. 2369.8, a spouse has the right to demand partition of former community property at any time. A contrary agreement is absolutely null. If the spouses are unable to agree on the partition, either spouse may demand judicial partition which shall be conducted in accordance with La.R.S. 9:2801(A) which provides:

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:....

The bankruptcy court only discharged Mr. Mundell of his debts. The parties did not litigate the issue of partition, nor did the bankruptcy court partition the | (¡community property. Furthermore, the abandonment of the property by the bankruptcy court reverts the property back to Mr. Mundell and places him in the same position as if a bankruptcy was never filed. Thus, Mrs. Mundell is able to proceed with her action to partition the community property. Res Judicata does not apply to the facts of this case.

IV.

CONCLUSION

For the reasons assigned, the judgment appealed from is reversed. The case is remanded to the trial court for a trial on the community property partition.

REVERSED AND REMANDED.


author: | DECUIR, Judge.

text:
    ALFRED PALMA, INC. v. CRANE SERVICES, INC., et al.
    No. 2003-0614.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Eric L. Pittman, Pittman & Associates, Denham Springs, LA, for Defendant/Ap-pellee, JAH Enterprises, Inc.
    Gary J. Gambel, Ronald J. White, Robert E. Guidry, Murphy, Rogers & Sloss, One Shell Square, Orleans, LA, for Defendant/Appellant, Crane Services, Inc. Rey-nold LeBlanc.
    V. Ed McGuire, Plauche’, Smith & Nies-et, Lake Charles, LA, for Plaintiff/Appel-lee, Alfred Palma, Inc.
    Court composed of NED E. DOUCET JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   | DECUIR, Judge.

Defendant, Crane Services, Inc., appeals summary judgment rendered in favor of plaintiff, Alfred Palma, Inc., granting rescission of the sale of a used industrial crane. Upon review, we find material issues of fact preclude summary judgment, and we reverse the decision rendered below.

On September 27, 2001, Alfred Palma, Inc., through its representative, John Pal-ma, purchased a Grove crane at a public auction. The seller of the crane was Crane Services, Inc. The purchase price was $248,400.00, and the sale included a waiver of warranty. The auction house, JAH Enterprises, Inc., d/b/a Henderson Auctions, informed all participants prior to the auction that all items were to be sold “as is/ where is” and without warranties of any kind. This waiver of warranty was included in the pre-bid application and in the bill of sale for the crane in question. However, any potential purchasers were given the opportunity to view and professionally inspect the items before the auction.

Specifically with regard to the litigants herein, John Palma testified via affidavit that he discussed the crane with Reynold LeBlanc, of Crane Services, prior to the auction. He was informed that the crane had been damaged in a rollover accident, but that LeBlanc had repaired the crane and replaced certain parts. LeBlanc represented that the repairs had been inspected and certified by Dixon Equipment Services, whose sticker evidencing the annual inspection of September 21, 2001 was affixed to the crane. Upon purchasing the crane, Palma put it into operation in his construction business, and it functioned properly. Palma testified that he later sought more information on the crane from the manufacturer. He was told that certain sections of the boom contained damaged parts that needed to be repaired or replaced. Palma then had the crane inspected. Crane Services subsequently refused Palma’s demand to make the delineated repairs that Palma thought were necessary for | «.certification under OSHA standards; Crane Services asserted that the repairs previously made were adequate and complete.

Consequently, Palma filed this redhibition suit against Crane Services and others, seeking to rescind the sale of the crane. After initial discovery, Palma and Crane Services filed opposing motions for summary judgment. Palma contends the crane is defective because it cannot be certified under OSHA standards as long as it contains damaged parts that have been condemned by the manufacturer. Because Palma believes the crane does not comply with OSHA regulations for cranes in use at a construction site, Palma has taken the crane out of service. Palma also asserts that the inspection sticker affixed to the crane at the time of the auction was bogus, and was placed there to induce potential purchasers into believing the crane was OSHA certified. By contrast, Crane Services’ motion for summary judgment asserts the protections of the written warranty and redhibition waivers in the bill of sale and pre-bid application.

In oral reasons for judgment, the trial court rejected Crane Services’ motion, finding the Dixon certification sticker represented that the crane could be operated “for its intended purpose,” which representation the court found was legally more compelling than the waiver of warranty. The court determined the certification vitiated the general waiver of warranty because it “carried more intent as to [the crane’s] purpose with Mr. Palma than [did] the waiver.”

In granting Palma’s motion for summary judgment, the trial court found the crane had a redhibitory defect and rescinded the sale. Specifically, the court determined that Palma relied on the Dixon certification in purchasing the crane and that the certification was a misrepresentation that could be imputed to Crane ^Services. The court also concluded the crane had significant problems which render it unsafe and not fit for its intended purpose, even though he made a factual finding that the crane is “in good shape and appears to be operational.”

In this appeal, Crane Services contests both the denial of its motion for summary judgment and the granting of Palma’s similarly styled motion. We will not consider the denial of Crane Services’ motion because of the provisions of article 968 of the Code of Civil Procedure, which bar review of a court’s refusal to render summary judgment. Granger v. Guillory, 00-863 (La.App. 3 Cir. 4/26/00), 762 So.2d 640.

Rather, we will address the propriety of the trial court’s granting Palma’s motion for summary judgment. In the factually similar case of Shelton v. Standard/700 Associates, 01-587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65 the supreme court reiterated the rules of summary judgment review:

Appellate courts review summary judgments de novo. Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, 136. It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA C.C.P. art. 966(B).

Interestingly, the Shelton case also involved a sale which included a waiver of warranty against redhibitory defects. The waiver was clearly articulated in the bill of sale and was made known to the buyer. The supreme court limited its review of the summary judgment granted in favor of the seller to a determination of whether the buyer could show fraud in the inducement of the contract; for without that showing, the waiver of warranty provisions would be enforceable against the buyer:

|4WhiIe an exclusion or limitation of the warranty against redhibitory defects is usually effective, LSA-C.C. art. 2548 further provides that “[a] buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.” Under this article, an otherwise effective exclusion or limitation of the warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the civil code, upon the buyer. Thus, although the warranty against redhibitory defects may be excluded or limited, a seller cannot contract against his own fraud and relieve himself of liability to fraudulently induced buyers. See Roby Motors Co. v. Price, 173 So. 793, 796 (La.App. 2nd Cir.1937). Indeed, such a contract would be contra bonos mores and unenforceable.
A contract is formed by the consent of the parties. LSA-C.C. art.1927. However, consent may be vitiated by error, fraud, or duress. LSA-C.C. art.1948. “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” LSA-C.C. art.1953. “Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent.” LSA-C.C. art.1955.
Nevertheless, fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. However, this exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations. LSA-C.C. art.1954.
In pleading fraud, the circumstances constituting fraud must be alleged with particularity. LSA-C.C.P. art. 856. However, fraud need only be proven by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art.1957.
In sum, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

Id., p. 4-5, 798 So.2d at 64.

In the summary judgment rendered in the instant case, the trial court necessarily reached certain conclusions of law and material fact. First, the trial court concluded that Palma had adequately pled fraud against Crane Services, and then |Kmade the factual finding that fraud had been proven to the extent that no genuine issue of fact remained on that question. Second, the trial court determined that failure to comply with OSHA standards constitutes a redhibitory defect, and then made the finding that the instant crane did not meet those standards at the time of its sale to Palma. In reaching these conclusions, the trial court relied on affidavit testimony from the parties and from crane repairmen and inspectors who may be qualified as experts at a trial on the merits.

The evidence presented to the trial court was conflicting. Palma’s evidence bolstered its assertion that the crane had too many deficiencies to be certified and, therefore, cannot be used. Palma offered various OSHA regulations and interpretation letters, its own professional inspection report wherein the inspector stated he could not certify the crane, a allegedly altered inspection record from Crane Services, and an affidavit from John Palma. Crane Services’ evidence supported its position that the company knew of no additional repairs required by the manufacturer for the safety of the crane, and it had no intent to defraud Palma in this transaction. It submitted affidavits from its owner, Reynold LeBlanc, LeBlanc’s son who inspected the crane on behalf of Dixon, the owner of the auction house, and the owner of Dixon. They testified that repairs to a crane do not have to be approved by the manufacturer, that Palma was given the opportunity to inspect the crane prior to purchase, that Palma purchased the crane without any warranties, and that the crane could be certified in its present condition.

In Moore v. Dupart, 00-1272, p. 7 (La.App. 4 Cir. 4/11/01), 785 So.2d 207, 212, writ denied, 01-1388 (La.6/22/01), 794 So.2d 796, the court cited a long line of cases holding “that issues pertaining to subjective facts such as intent, knowledge, motive, malice, or good faith are usually not appropriate to a summary judgment | ^¡determination.” See Murphy’s Lease & Welding Service, Inc. v. Bayou Concessions Salvage, Inc., 00-978 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284; Belgard v. American Freightways, Inc., 99-1067 (La.App. 3 Cir. 12/29/99), 755 So.2d 982, writ denied, 00-293 (La.3/31/00), 756 So.2d 1147; Nelson v. Torian, 96-176 (La.App. 3 Cir. 6/26/96), 676 So.2d 773, writ denied, 96-1938 (La.11/15/96), 682 So.2d 761; Greer v. Dresser Indus., Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, unit denied, 98-2094 (La.11/6/98), 728 So.2d 867. The Moore court explained, “Such determinations are only possible by the trier of fact who has the opportunity to hear all the evidence and to observe the witnesses on direct and cross-examination.” 785 So.2d at 212.

As in the case of Federated Rural Elec. v. Gulf South Cable, 02-852 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, we must conclude that the trial court could not have properly rendered its summary judgment ruling without making improper factual findings. The trial court made credibility determinations on the issues of fraud and the alleged defective condition of the crane simply by reviewing affidavits. No witnesses testified, and there was no opportunity for cross-examination. This controversy involves disputed material facts, which should be resolved by the fact finder after trial on the merits. Our conclusion preter-mits discussion of the trial court’s legal analysis of the sufficiency of Palma’s fraud allegations and its finding that failure to comply with unspecified OSHA regulations constitutes a redhibitory defect.

Accordingly, for the above and foregoing reasons, the summary judgment of the trial court rendered in favor of Alfred Pal-ma, Inc., is reversed, and this matter is 17remanded for trial on the merits. Costs of this appeal are assessed to Alfred Pal-ma, Inc.

REVERSED AND REMANDED.

      . Presumably, the trial court took note of the fact that the Dixon inspector, Reynold Le-Blanc II, was the son of the owner of Crane Services.