author: h JOHNSON, Justice.

text:
    STATE of Louisiana v. Michael L. HARRIS.
    No. 2002-K-1589.
    Supreme Court of Louisiana.
    May 20, 2003.

      Richard P. Ieyoub, Atty. Gen., Eddie J. Jordan, Jr., Dist. Atty., Jacques Y. Le-Blanc, Leslie P. Tullier, for Applicant.'
    Lynda A. Torry, Baton Rouge, for Respondent.
   h JOHNSON, Justice.

We granted the state’s writ application to consider the court of appeal’s reversal of defendant’s conviction and sentence for attempted possession of a controlled dangerous substance with intent to distribute on grounds that there was insufficient evidence to support the conviction. State v. Harris, 01-1661 (La.App. 4 Cir. 5/8/02), 817 So.2d 1205. After considering the facts and applicable law, we find that the court of appeal erred in reversing the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

Relying on information received from a confidential informant regarding narcotics activities in the 1200 block of South Dorge-nois Street, New Orleans Police Detective Terri Wilson conducted a controlled purchase of crack cocaine from a man named “Rooney,” later identified as defendant, Michael Harris. Detective Wilson then obtained a search warrant for 1240 South Dorgenois Street. Before executing the warrant, Detective Wilson conducted additional surveillance in the area of 1240 South Dorgenois. At this time, he observed the man whom he knew as “Rooney,” later identified as defendant, loitering around the area with another man, later identified as James Cooper. A few minutes into the surveillance, an individual walked up to defendant. The two men exchanged words; defendant accepted money from the other person and nodded to Mr. Cooper Rwho walked from the car to some nearby shrubbery, got a brown paper bag and removed a small object. Mr. Cooper then replaced the bag and walked over to defendant and the other person, handed the item to defendant, then defendant handed the object to the individual who gave him the money.

Approximately 15 minutes after this encounter, Sergeant Wilson observed the same kind of transaction with a different individual. Two other similar transactions followed. Based on these observations, Detective Wilson executed the search warrant. Detectives Michael Harrison and Wayne Jacques secured defendant and Mr. Cooper, then Detective Harrison retrieved the brown paper bag from the shrubbery, which Detective Wilson stated contained about three ounces of crack cocaine. Sergeant Wilson identified the brown paper bag during trial. Detective Michael Harrison also found over $500 in cash while searching defendant, in small denominations recognized by experts as those carried by narcotics dealers.

Defendant, Michael Harris, and co-defendant, James Cooper, were arrested on August 2, 1999, and charged with possession of cocaine, more than 28 grams and less than 200 grams, in violation of R.S. 14:967(F)(1). Defendant entered a plea of not guilty. The trial court denied defendant’s motion to suppress the evidence and found probable cause to arrest. Defendant’s bill of information was amended on the first day of trial, February 7, 2001, to possession of cocaine with the intent to distribute.

At trial, the state did not offer scientific evidence to establish that the contents of the brown paper bag were in fact cocaine. However, Lieutenant Reginald Jacques, an 11-year veteran of the major case narcotics division of the New Orleans Police Department, testified as an expert in the area of packaging and retail distribution of controlled dangerous substances. Upon examining the crack |3cocaine entered into evidence, Lieutenant Jacques identified some of the pieces as “slabs,” or pieces of crack cocaine that are sold on the streets for up to $100 each and some of the smaller pieces known as “twenties” which are sold for $20 each. He also examined the denominations of the currency found during the search of defendant and testified that the denominations present were consistent with those typically found on the person of a crack cocaine dealer.

There were several defense witnesses who testified at trial. Kewel Short, the resident of 1240 South Dorgenois, testified that she did not know defendant and that she came home on the date of defendant’s arrest to find her home ransacked. Ms. Short’s neighbor, Velma Witey, testified that she knew defendant and that she never saw him selling drugs. She testified further that she had never seen anyone selling drugs in her hallway.

Defendant testified at trial that on August 2, 1999, before the police arrived, he was outside talking to Antoinnette Dewey, Corinthia Francois, and Janine Sutton. Defendant stated that he does not distribute drugs and did not know anything about a brown paper bag filled with crack cocaine before the officers asked him about it. He also testified that he did not know his co-defendant, Mr. Cooper, before their arrest. In explaining the cash on his person, defendant testified that $300 came from his uncle as payment for defendant’s helping him with some contracting work and that the other $200 were personal.

The jury found the defendant guilty of attempted possession of cocaine with the intent to distribute. The trial court denied defendant’s motion for post-judgment acquittal and sentenced defendant to five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. After the state filed an habitual offender bill, the trial court vacated this sentence on July 26, 2001, and sentenced defendant as a second time offender to seven and one-half years at hard | ¿labor without benefit of parole, probation, or suspension of sentence.

Defendant made a timely appeal to the Fourth Circuit and claimed that the state provided insufficient evidence to support his conviction because it failed to prove that the substance he was found guilty of attempting to possess with the intent to distribute was actually crack cocaine, as the state failed to introduce evidence of any chemical testing on the substance. The court of appeal agreed with defendant’s contention and reversed the trial court’s decision based on the fact that the state failed to “establish the substance in the brown paper bag was cocaine.” State v. Harris, 817 So.2d at 1210.

DISCUSSION

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984). Further, an appellate court will not reverse a jury’s return of a responsive verdict, whether or not supported by the evidence, as long as the evidence is sufficient to support a conviction for the charged offense. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the factfinder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

In its only assignment of error, the state argues that the court of appeal erred in finding that the state did not submit sufficient evidence of attempted cocaine possession to support the jury’s verdict. The state argues that even though it 1 ¡^inadvertently failed to introduce into evidence the crime lab report that indicated that the substance that defendant sold was cocaine, there was sufficient evidence presented to prove that defendant is guilty of the attempted possession with the intent to distribute cocaine. We agree with the state’s contention.

There is ample jurisprudence to support the state’s position. In one such case, cited by the state, State in the Interest of J.W., 597 So.2d 1056 (La.App. 2 Cir.1992), defendant, J.W., was convicted of possession of cocaine with the specific intent to distribute in violation of La. R.S. 40:967. The state was required to prove the identity of the drug as cocaine, an essential element of the charged offense. State in the Interest of J.W., 597 So.2d at 1058 (citing State v. James, 517 So.2d 291 (La.App. 1 Cir.1987); State v. Guillory, 447 So.2d 1214 (La.App. 5 Cir.1984)). The state failed to produce a laboratory report or the results of a chemical test which would have proved the exact nature of the suspected contraband. The second circuit concluded that the evidence was thus insufficient to support an adjudication of delinquency on the basis that the defendant had committed the charged offense.

Nevertheless, the court in J.W. went on to consider whether the evidence was sufficient to support a finding of attempted possession in the absence of scientific proof that a controlled dangerous substance was actually involved, i.e. without a chemical analysis of the substance. The court found that the evidence clearly showed that J.W. subjectively believed that the substance in his possession was cocaine, that the substance was packaged like cocaine, and that his statements following his arrest were evidence that he intended to distribute the substance. State in the Interest of J.W., 597 So.2d at 1059. The court concluded:

... regardless of whether the substance was cocaine or not, the evidence was sufficient to show J.W. had specific intent to commit the offense of possession of cocaine with the intent to distribute and he |6took actions tending directly toward the accomplishment of that objective. Accordingly, the state proved the essential element of the offense of attempted possession of cocaine with the intent to distribute.

The court in J.W. based its decision on federal jurisprudence interpreting analogous federal drug statutes, 21 U.S.C. § 841(a), § 846. The federal courts subscribe generally to the view that the “government need not introduce scientific evidence to prove the identity of a substance ... as long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal.” United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir.1990). Identification of a controlled substance does not require direct evidence if available circumstantial evidence established its identity beyond a reasonable doubt. United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984). This circumstantial evidence can include “lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use such as testing, weighing, cutting and peculiar ingestion.” Harrell, 737 F.2d at 978, (citing United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.1984); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.1975)). Identification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance. Harrell, 737 F.2d at 978-979.

In United States v. Pennell, 737 F.2d 521 (6th Cir.1984), the defendant was found guilty of attempted possession of cocaine with the intent to distribute after purchasing “sham cocaine” because he had the subjective intent to purchase hcocaine. Pennell, 737 F.2d at 525. The court further noted that “the sale of a non-eontrolled substance that the defendant subjectively believes to be a controlled substance can constitute an attempt to distribute.” Id. The defendant’s objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics. Pennell, 737 F.2d at 525 (citing United States v. McDowell, 705 F.2d 426, 428 (11th Cir.1983)). The court explained that to preclude unjust attempt convictions in cases in which there is no proof that the substance is actually a controlled substance, the federal jurisprudence has crafted the following evidentiary rule:

In order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea [must] mark the defendant’s conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law_In other words, the defendant’s objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics.

Pennell 737 F.2d at 525; see also United States v. Everett 700 F.2d 900, 908 (3rd Cir.1983).

The court in State v. Hollis, 96-738 (La.App. 5 Cir. 1/28/97), 688 So.2d 108, adopted the rationale used in J.W. In Hollis, the defendant attempted to purchase a large quantity of narcotics from an undercover officer. However, no drugs were present during the transaction. On appeal, the defendant argued that the evidence was insufficient to support his conviction, inasmuch as there was no proof of the existence of an illegal substance, and no evidence relative to the specific quantity charged. He argued that because the state did not prove that over twenty-eight grams of cocaine were actually present during the transaction, he could not be convicted of violating La. R.S. 40:970, :976(C), and it was impossible for him to be guilty of attempting to purchase over twenty-eight grams of cocaine.

| sIn rejecting the defendant’s argument, the court noted the definition of attempt: “any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” La. R.S. 14:27(A). The court also cited State v. Smith, 661 So.2d 442 (La.1995), in which this Court discussed the issue of attempt. In determining whether the action of a defendant is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. State v. Smith, 661 So.2d at 444 citing State v. Williams, 490 So.2d 255, 261 (La.1986). The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted. Id. It is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt. Id. The court in Hollis, thus, concluded that based upon the evidence presented at trial, the jury could have reasonably concluded that the actions of the defendant described by the witnesses corroborated his subjective intent to possess cocaine.

In the instant case, as in J.W. and Hollis, the state failed to introduce scientific evidence that the substance was cocaine. However, we find that there was sufficient evidence presented, when considered in its entirety, to support a guilty verdict of the charged offense. The evidence presented clearly shows that the substance was packaged like cocaine and that defendant had on his person over $500.00, in denominations recognized by experts as those carried by those who distribute cocaine. Sergeant Wilson, a narcotics detective with ten years experience in the field and Lieutenant Jacques, an expert in' the retail distribution of cocaine with over eleven years of experience in the field, identified the substance |flas cocaine. This evidence, coupled with the surveillance conducted on defendant on the date of the incident and in the days preceding the incident, provides direct and circumstantial evidence to support a rational trier of fact’s conclusion that the substance seized by the detectives was, in fact, cocaine.

Because the evidence introduced at trial was sufficient to support a conviction for the charged offense, it could also support a jury’s verdict on the lesser and included offense of attempted possession with intent to distribute. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982). Where the defendant acquiesces in the submission of responsive verdicts, he is bound by the trier of fact’s decision to employ a responsive verdict. The evidence must support either the responsive verdict returned or the crime charged. State v. Porter, 93-1106 (La.7/5/94), 689 So.2d 1137.

CONCLUSION

For the foregoing reasons, we* reverse the court of appeal’s decision. The defendant’s conviction and sentence are hereby reinstated.


source: Caselaw Access Project

author: I .TRAYLOR, J.

license: Public Domain

text:
    STATE of Louisiana v. Donald BROWN.
    No. 2002-K-1922.
    Supreme Court of Louisiana.
    May 20, 2003.

      Richard P. Ieyoub, Atty. Gen., Don M. Burkett, Dist. Atty., Richard Z. Johnson, Jr., Mansfield, for Applicant.
    Peggy J. Sullivan, Monroe, for Respondent.
   I .TRAYLOR, J.

Donald Brown was indicted by a grand jury for the first degree murder of Kathryn Rankin in violation of La. R.S. 14:30. After a bench trial, defendant was found guilty of manslaughter, a violation of La. R.S. 14:31, and was sentenced to serve twenty years at hard labor, with credit for time served. The court of appeal reversed defendant’s conviction and sentence. State v. Brown, 2001-35641(La.App. 2 Cir. 6/12/02), 825 So.2d 596. Upon the state’s application, we granted certiorari to review the correctness of that decision. For the reasons that follow, we reverse the court of appeal, reinstate defendant’s conviction, and remand the case to the court of appeal for consideration of defendant’s remaining assignment of error.

FACTS AND PROCEDURAL HISTORY

On January 13, 2000, a grand jury indicted defendant for first degree murder of Kathryn Rankin. Defendant waived his right to a jury and received a bench trial. At trial, various witnesses outlined the activities and whereabouts of the victim on the night of April 5, 1999 and early morning hours of April 6,1999, the last time she was seen alive.

Tony Pratt testified that on that evening after work, he went to a pool hall, arriving at approximately 7:00 p.m. or 8:00 p.m. He noticed the victim arrive at the pool hall between approximately 8:30 p.m. and 10:00 p.m. At the victim’s request, [gPratt drove her to a liquor store before it closed at either 11 p.m. or midnight. After a brief stop at the home of the victim’s mother, they returned to the pool hall. Pratt estimated that the pool hall closed for the night at 11:30 p.m. or midnight. They stayed at the pool hall for approximately forty-five minutes and then Pratt drove the victim and Harold Anderson to Anderson’s house.

Harold Anderson testified that on the night of April 5, 1999, he encountered the victim outside the pool hall and agreed to pay her $20 for sex. Pratt drove Harold Anderson and the victim to the house he shared with his brother, Hewitt, and dropped them off. At his residence, Harold Anderson and the victim engaged in sexual activity for approximately 30 or 35 minutes, after which he fell asleep.

Hewitt Anderson testified that he was home in bed when his brother came home with the victim. She later left the residence alone but he was not sure of the time. However, when earlier questioned by the police, he indicated that the victim had left the residence between midnight and 12:30 a.m. However, he stated that he did not did not have a clock.

Garrison Simpson testified that he left his girlfriend’s house at approximately 11:00 p.m. on April 5, 1999, and drove through an area close to where the victim’s body was found. While he waited at a stop sign, he saw defendant and the victim emerge from behind a tree. Defendant was holding the victim from behind and the two were “tussling.” The victim was crying and asked Simpson to drive her home. Simpson drove away, but then backed up and told defendant to “leave her alone.” Defendant responded that he would “take care of the girl.” Simpson observed the two for approximately five minutes and, concluding that the matter was nothing more than a lovers’ quarrel, he did not intervene. He claimed that the area where he observed defendant and the victim engaged in the altercation was approximately 50 yards from where her body was ultimately discovered. On the following Thursday, Simpson encountered defendant in a liquor store but defendant refused to speak to him. Simpson did not tell the authorities about his encounter with defendant and the victim until they questioned him in December of 1999. However, he told others in the community about what he had observed upon learning of the victim’s death. Simpson | .¡first indicated at trial that he learned of the victim’s death the day after he saw her fighting with defendant. Later, however, he stated that he was unsure about whether he learned of the victim’s death the following day or two days after her altercation with defendant.

Clarence Gillard, Jr., discovered the victim’s body at approximately 11:00 a.m. on April 7, 1999, approximately 36 hours after she was last seen alive. The victim’s body was on a wooded trail used as a shortcut to the housing projects.

In January of 2000, defendant was apprehended in Virginia. Initially, defendant denied knowing the victim but on January 6, 2000, agreed to give a statement to the Desoto Parish investigating officers about his encounter with the victim on April 5, 1999. Defendant was Mirandized and told police that he was on the trail with the victim on the night of April 5, 1999, but denied killing her. He claimed that when he and the victim met that night, she had two rocks of crack cocaine. They smoked the crack cocaine at his sister’s house, which was located in the projects adjacent to the murder scene. He estimated that he left the house at 5:00 a.m. with his sister and the victim. Defendant stated that he purchased more crack cocaine and his sister went home. Defendant and the victim then went to the trail and smoked his newly-purchased crack cocaine in exchange for sex. As the victim pulled down her pants, she tried to steal defendant’s billfold from his pants. Defendant slapped her across the face with his open hand, retrieved the billfold, and ran away in the same direction they had used to enter the trail. Defendant claimed that the victim followed him, shouting, “I’m gonna get you!” Defendant insisted that the victim was alive when he left her.

Defendant further stated that, earlier in the evening, the victim had beaten a man with a bottle and stole $20 from him. According to defendant, this individual had threatened the victim. When defendant emerged from the trail after his altercation with the victim, he saw the other man on the corner. In explaining the victim’s death, defendant suggested that either the victim had died accidentally by falling on tree stumps on the wet trail or that the man she had taken money from earlier had murdered her.

^Defendant also denied seeing Simpson that night. He claimed that after he left the trail, he went to his sister’s house. The next morning, he went to the house of his girlfriend, Bertha Jewitt. Later that day, someone telephoned Jewitt and told her that the victim’s body had been discovered. Defendant attended the victim’s funeral and moved to Virginia two weeks later for a job. After he left Louisiana, defendant’s aunt told him that people began to say that he had killed the victim.

Jewitt testified that defendant came to her house around midnight or 1:00 a.m. on April 6, 1999. Although the body was not discovered until the following day, Jewitt testified that at 9:30 a.m., defendant told her that the victim was dead. Jewitt stated that after defendant told her about the victim’s death, they did not discuss the matter further. However, Jewitt’s testimony demonstrating defendant’s guilty knowledge differed from the story she originally told police. When questioned by officers during their investigation of the crime, Jewitt corroborated defendant’s story, stating that she learned about the victim’s death when a friend had telephoned and told her about it.

Horace Womack of the DeSoto Parish Sheriffs Office testified that various items of clothing were found in the area where the victim’s body was discovered but that none of the articles linked anyone to the crime scene. He indicated that the waterline suggested that the victim’s head had at some point been completely submerged in water.

Robert Davidson, another officer employed by the DeSoto Parish Sheriffs Office, aided in the investigation. He testified that on April 7,1999, the victim’s body was found face down in a small creek and she was wearing only a pair of socks. Based on their investigation, law enforcement officers located defendant in Virginia. After they questioned defendant, he was arrested and transported back to Louisiana.

Sergeant Gary Hobbs of the Mansfield Police Department was the lead detective in the investigation of the crime and stated that the body was found on a well-traveled trail. However, the trail floods in wet weather and it had been raining around the time of the offense. The officer explained that “[w]hen it rains, that area floods and that trail is not used commonly, ‘cause it stays two to three inches deep in Lwater for several days.... ” Accordingly, it was not unusual that the body had not been discovered earlier. The investigation revealed that no one had seen the victim alive after the night of April 5,1999.

Steven Cogswell, a forensic pathologist, performed the autopsy on the victim’s body. He concluded that the scrapes on the victim’s face, chest, arm and back had been sustained when her body was dragged along the ground. These injuries were inflicted before the victim’s death. Cogswell stated that the presence of stones and dirt in the victim’s lungs and stomach indicated that she was alive and ingested the materials when her head had been forcibly held underwater.

Cogswell stated that the bruising in the deep muscles of the victim’s neck around her voice box and thyroid gland were consistent with strangulation. A contusion and one-half-inch laceration was observed on her anus, indicating she had been forcibly penetrated by some object. Given the degree of the injury, Cogswell opined that the intercourse had not been consensual. No semen was detected in swabs of her mouth, rectum, and vagina. He concluded that the victim’s death had been caused by a combination of drowning and strangulation.

At the close of the state’s ease, defendant moved for a directed verdict, an option open to him as the result of electing a bench trial. See La.C.Cr.P. art. 778. The court acknowledged “gaps in the information available to show what happened that night” but ultimately denied the motion.

The defense presented its case through the testimony of pathologist Gerald Edward Liuzza. The witness reviewed the autopsy report prepared by Cogswell and concluded that drowning and blunt force injuries may have caused the victim’s death but that these findings did not foreclose other possible causes. He stated that no time of death could be established, and because the victim’s body had been submerged in water, such a determination would be difficult. He claimed that although the victim may have drowned, he had observed other cases in which a dead body had been immersed in moving water which resulted in the deposit of debris in the mouth and lungs. Liuzza recognized that the victim’s neck had bruises suggesting she had been grabbed by a hand but noted that there were no finger imprints or nail marks.

| fiGiven the large quantity of cocaine and alcohol in the victim’s system, Liuzza testified that there was a great risk for a drug reaction and the possibilities of a seizure or drug overdose could not be excluded as causes of death. Ultimately, the witness concluded that there was not enough information to determine whether the victim’s death was a homicide. Nonetheless, the witness admitted that Dr. Cogswell was in a better position to evaluate the post-mor-tem findings because he had performed the autopsy. However, he added that he was not disputing those findings but rather offering a different interpretation of them.

The parties waived closing arguments and the court found defendant guilty of manslaughter, ruling as follows:

.... Kathryn Rankin was killed on ... April 5, 1999, on the shortcut trail here in Mansfield from the projects to Johnson Street. She was beaten and dragged. Whether she was forcibly drowned or drowned in an unconscious state, ... can not conclusively be determined. The evidence proves beyond a reasonable doubt however that she died as a result of Donald Brown’s actions. Because we can not determine the circumstances surrounding the drowning, the maximum crime that the [defendant can be convicted of is manslaughter. I am hereby finding Donald Brown guilty of manslaughter in the death of Kathryn Rankin.

At sentencing, the court expanded on its earlier statements regarding the crime, commenting, “From a legal standpoint, this [cjourt concludes that drowning was the cause of her death, along with the blunt force injuries.” As to defendant’s story regarding his encounter with the victim, the court added, “The statements that you made in there I didn’t find plausible whereby you indicated that after striking her you turned and ran from the scene and she must have chased after you and fallen and hurt herself, causing her injuries.” In explaining his manslaughter verdict, the court stated:

_We cannot know today what Mr. Brown’s intent was then. The facts indicate that there was violence at the time. Whether that violence arose to the level of intentional infliction of death is very possible but the reason I found him guilty of [mjanslaughter instead of second degree murder was because it was impossible to prove beyond a reasonable doubt that he specifically intended her death.

In a split decision, the Second Circuit reversed the conviction. State v. Brown, 35,641 (La.App. 2 Cir. 6/12/02), 825 So.2d 596 (unpub’d). The appellate majority was primarily concerned with the inconsistencies in the various state witnesses’ | ^testimony regarding the times at which they had encountered the victim. Given the circumstantial nature of the evidence, the majority concluded that the state failed to prove beyond a reasonable doubt that defendant killed the victim as a rational fact-finder should not have rejected as unreasonable the hypothesis that Simpson saw defendant and the victim “tussling” shortly after 11:00 p.m.; that the victim then made the walk over to the pool hall where she met Pratt and later Anderson; and that she then returned to Anderson’s residence and had sex with him, exiting his home at 12:30 a.m., the following morning. That being the case, the majority found that the trial court erred when it concluded that the state proved that defendant was the last person to see the victim alive and had thus necessarily committed the murder. Specifically, the majority found that the state’s evidence:

[Sjuggests that the defendant could have committed the crime. However, there is no evidence suggesting that the defendant was the only person who could have committed the crime. The fact that the defendant and the victim were involved in an altercation does not make it an unreasonable hypothesis that someone else committed the crime, particularly in light of the fact that the evidence does not establish how or when the drowning occurred. The death could have occurred hours after the defendant’s confrontation with the victim.

The majority conceded that perhaps the most damning proof offered by the state was the testimony of defendant’s girlfriend, Jewitt, who stated that defendant told her about the victim’s death the day after he fought with the victim but before the body had been discovered by the authorities. However, it found that the evidence demonstrating defendant’s “guilty knowledge” had been largely undermined by the testimony revealing that Jewitt had originally corroborated defendant’s story, telling police that a friend had telephoned and told her about the victim’s demise. Ultimately, the majority concluded that the district court erred when it determined that the state proved the element of identity beyond a reasonable doubt and accordingly reversed the conviction.

[SLAW AND DISCUSSION

When considering a claim of insufficient evidence, an appellate court must determine 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 had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). Further, when the conviction is based upon circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207, 1209 (La.1984); State v. Wright, 445 So.2d 1198, 1201 (La.1984). However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt standard; it is merely an evidentiary guide for the jury when considering circumstantial evidence. State v. Porretto, 468 So.2d 1142, 1146 (La.1985).

The essential elements of manslaughter are provided in La. R.S. 14:31. Pertinently, the article provides manslaughter is:

(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person ...

In this case, despite the inconsistencies in the times provided by the witnesses, the state presented constitutionally sufficient evidence to convict defendant of manslaughter. Notably, defendant admitted to committing a battery upon the victim. Furthermore, regarding any inconsistencies in timing of the events as described by witnesses, it appears likely that several of the state witnesses were intoxicated when they encountered the victim on the night she was last seen. Defendant himself stated that he was with the victim and engaged in the altercation with her after 5:00 a.m., |9well after any other person had seen her alive. Defendant was presumably very intoxicated at the time considering the amount of cocaine he claimed to have smoked. Considering all of the above, it does not seem particularly troublesome that several of the witnesses could not provide certain or accurate information concerning the exact time of their encounters with her.

While defendant claims that Simpson’s testimony should not have been deemed credible given the witness’s failure to alert the authorities to his observation of defendant and the victim fighting until he was questioned by police nearly nine months after her death, this very passage of time may have accounted for the discrepancy in the eyewitnesses’ testimony concerning the exact time it was that they encountered the victim. In fact, Simpson’s testimony was corroborated by defendant’s statement to the extent that he admitted fighting with the victim on the trail that night.

In addition, defendant’s speculation that the victim may have died as a result of a fall was wholly contradicted by Cogswell’s testimony concerning the cause and manner of her death. While the defense expert speculated otherwise, the district judge evidently found the coroner’s testimony more credible, a reasonable conclusion given that it was Cogswell who performed the autopsy on the victim’s body.

As for defendant’s statement about the man who the victim had taken 20 dollars from earlier; allegedly seen by defendant after he emerged from the trail with the victim chasing him, and the speculation that this individual may have killed her, other than his self-serving testimony, defendant provided no support for this theory. Moreover, while defendant claimed that this other individual was seen in the vicinity at the time he fought with the victim, he was not seen by Simpson, who lingered at the scene for some time trying to assess the victim’s condition. It is notable that the motive defendant provided police for his theory that another man may have killed the victim would equally apply to himself, that is, that she stole money from both men.

It also appears highly implausible that the victim would chase defendant out of the trail when it was he who had allegedly caught her trying to steal his money. An noted above, this portion of defendant’s statement wholly conflicted with Simpson’s observation of the victim trying to free herself of defendant’s clutches.

b nIn this situation, it appears that the court acted rationally when it rejected defendant’s testimony that the victim was alive when he left her. State v. Mussall, 523 So.2d 1305 (La.1988). Moreover, the court evidently found credible Jewitt’s trial testimony that defendant told her about the victim’s death before her body had been discovered. Accepting this sworn testimony and that provided by the coroner that the victim had been murdered, the court could rationally have concluded that defendant killed the victim. Finally, while not conclusive of defendant’s guilt, it is relevant that shortly after the murder defendant left the area and moved to Virginia. See State v. Wilkerson, 403 So.2d 652 (La.1981) (evidence of flight, concealment, and attempt to avoid apprehension is relevant and admissible to prove consciousness of guilt from which the factfin-der may infer guilt).

Conclusion

In sum, defendant acknowledged being with the victim in close proximity to where her body was discovered. Defendant admitted striking the victim (albeit with an open hand) when he caught her trying to steal his money. An eyewitness observed defendant forcibly restraining the crying victim who was begging to be released from his grasp. Testimony provided by the coroner demonstrated that the victim had been murdered. Given the circumstances, that the court acted rationally when it concluded that the state proved the elements of manslaughter in this case, in finding that defendant killed the victim, and in determining that defendant failed to present any reasonable hypotheses of innocence. Accordingly, we reverse the court of appeal and reinstate defendant’s conviction and sentence as imposed by the trial court. We remand the case to the court of appeal and order it to consider defendant’s remaining assignment of error.

InDECREE

REVERSED, CONVICTION AND SENTENCE REINSTATED, REMANDED FOR CONSIDERATION OF THE REMAINING ASSIGNMENT OF ERROR. .

      . Gaskins, J. dissented and would have affirmed, noting that defendant's explanations for the victim’s injuries, specifically that she had fallen and smashed her head on tree stumps or that the individual who she had robbed earlier that day had killed her were wholly implausible. As to the discrepancy in the times, the dissent noted that the witnesses gave, only estimates. Finally, the dissent found it highly improbable that the victim would have returned on her own or with another individual to the somewhat remote area where she was last seen with defendant.


author: 11WEIMER, Justice.

text:
    STATE of Louisiana v. Larry WASHINGTON.
    No. 2002-KK-1346.
    Supreme Court of Louisiana.
    May 20, 2003.
    Richard P. Ieyoub, Atty. Gen., John F. Johnson, Dist. Atty., Ronnie O. McMillin, William A. Yarbrough, Vidalia, for Applicant.
    Derrick D. Carson, for Respondent.
   11WEIMER, Justice.

We granted a writ in this case to determine whether the time limitations of LSA-C.CrJP. art. 578 et seq. barred the prosecution of Larry Washington on a count of aggravated rape which was joined by indictment with a count of armed robbery that occurred in conjunction with the rape. Concluding the court of appeal erred in finding prosecution for the rape was time barred, we reverse and remand to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURES

Larry Washington was arrested as a suspect in the following criminal acts: 1) an armed robbery committed in conjunction with the rape of S.G. on November 21, 1997; 2) an armed robbery that occurred on November 28, 1997; and 8) an armed robbery that occurred on November 25,1997. Filings and proceedings pertinent to the issues raised in this court are listed, as follows, in chronological order.

December 3, 1997: Bill of Information No. 97-2112 was filed charging Washington with three counts of armed robbery.
laMarch 3, 1998: A Grand Jury returned a single true bill, Nos. 97-2112B and 97-2112C, alleging Washington committed the aggravated rape and armed robbery of S.G.
March k, 1998: Washington was arraigned on the counts alleged in the true bill.
July 20, 1998: As part of a plea agreement, Washington entered pleas of guilty to an amended charge of forcible rape of S.G. and three counts of armed robbery, including the armed robbery that occurred in conjunction with the rape.
^April 6, 2000: Washington filed an application for post conviction relief based upon the grounds of a broken plea agreement.
June 21, 2000: The trial court set aside Washington’s plea to the forcible rape count, because during the Boykin guilty-plea proceeding, the court failed to advise him of the sex offender notification law, LSA-R.S. 15:542.
September 26, 2000: Washington gave notice of intention to apply for supervisory writs.
November 29, 2000: Washington applied for writs to the Court of Appeal, Third Circuit, claiming the guilty pleas for the armed robberies should have been set aside with his plea to the forcible rape count.
May 29, 2001: The appellate court granted Washington’s writ, setting aside his guilty plea to the three armed robberies on the grounds that when one count that was part of a plea agreement is set aside, the whole agreement must be set aside. (See “DISCUSSION,” infra.)
July 6, 2001: Washington filed a motion to quash the re-instituted aggravated rape count and the armed robbery counts on grounds of time limitations.
August 8, 2001: The hearing on the motion to quash was scheduled, following which the trial court denied Washington’s motion.
October 23, 2001: Washington applied for a supervisory writ to the Court of Appeal, Third Circuit, challenging the trial court’s ruling denying his motion to quash the rape and armed robbery counts.
| «November 26, 2001: In preparation for trial of the counts of armed robbery and aggravated rape of S.G., the State filed a notice of intent to introduce the crime laboratory report evidencing Washington’s sperm found in the anus of the victim of the armed robbery and rape.
December 19, 2001: Washington filed an application for appointment of a sanity commission. The record before us reveals the sanity commission hearing was scheduled for March 6, 2002, but there is no indication the trial court has ruled on the issue.
February 28, 2002: The third circuit denied Washington’s writ in part, finding the trial court did not err when it refused to quash the armed robbery counts for failure to prosecute timely. However, the third circuit granted the writ in part, finding the trial court erred in refusing to quash the aggravated rape count for failure to prosecute timely. Thereafter, the State filed a writ application to this court, which was granted.

DISCUSSION

In argument to this court, the State urges the court of appeal erred in finding the State had only one year pursuant to LSA-C.Cr.P. arts. 580 and 582 from the granting of a new trial on the aggravated rape count of the Grand Jury indictment to try Washington for the aggravated rape when the joined armed robbery count of the indictment was still in the appellate process. We agree.

In State v. Carter, 352 So.2d 607, 608-610 (La.1977), this court explained:

Joinder of offenses is the charging of an accused with two or more crimes as multiple counts in a single indictment. Unless these offenses are later severed, and hence, split for separate trials, all offenses joined in one charge will be tried together at a single trial.
In 1975, the Louisiana legislature, apparently responding to a need for increased efficiency in the handling of criminal trials, liberalized the restrictive state rule on joinder of offenses.... The | legislature also added to our law a provision for severance of joined offenses[.]

Since 1975, LSA-C.Cr.P. art. 493 has provided:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Pursuant to the provisions of LSA-C.Cr.P. art. 493, the indictment that charged Washington in separate counts with aggravated rape and armed robbery ensuing from two acts connected together was proper. Thus, if Washington had filed a motion to sever, it would have been properly denied. Cf. State v. McZeal, 352 So.2d 592 (La.1977) (The joinder of aggravated rape and armed robbery would have been proper but for the fact aggravated rape was classified as a capital offense at that time, but armed robbery was not; thus, the joined counts did not satisfy the requirement of being triable by the same mode of trial.) We agree with the State that Washington’s application for a writ to the third circuit court to review the denial by the trial court of post-conviction relief on the armed robbery counts prevented the State from proceeding to trial on the aggravated rape count because of the proper joinder of the two counts in the indictment.

On May 29, 2001, the appellate court granted Washington’s writ, stating:

WRIT GRANTED AND MADE PEREMPTORY. Relator pled guilty to three counts of armed robbery pursuant to a plea agreement in which he also pled guilty to one count of forcible rape. On June 21, 2000, on application for post-conviction relief, the trial court set aside Relator’s plea to forcible rape, but did not set aside his pleas to the three counts of armed robbery. When a plea of guilty to one count that was part of a plea agreement is set aside, the whole agreement must be set aside. Thus, the trial court erred by not setting aside Relator’s pleas to each of the three counts |fiof armed robbery. State v. Presley, 99-802 (La.App. 3 Cir. 3/1/00); 758 So.2d 308. Accordingly, Relator’s pleas to each of the three counts of armed robbery are set aside and the case is remanded to the trial court for further proceedings. Relator’s remaining assignments of error are rendered moot and are not considered.[]

However, less than a year later, on February 28, 2002, in ordering that the rape count be quashed, the third circuit court did not mention its May 29, 2001 ruling. The court stated:

The trial court granted Relator’s motion to withdraw his guilty plea on June 21, 2000. Pursuant to La.Code Crim. P. arts. 580[] or 582,[] the State had one year from the trial court granting the withdrawal of Relator’s guilty plea or two years from institution of prosecution, whichever period was longer. See State v. Wiggins, 432 So.2d 234 (La.1983). At the time Relator filed his motion to quash in July 2001, the one year period had elapsed. Additionally, at the time the trial court granted Relator’s motion to withdraw guilty plea, the two-year period had elapsed. The State failed to offer any proof that the time limitations were interrupted or suspended. See State v. Harris, 29,574 (La.App. 2 Cir. 5/7/97); 694 So.2d 626.

The error in the appellate court’s reasoning is that it used the date of the trial court’s ruling vacating Washington’s guilty plea on the forcible rape charge instead of the date of its own order setting aside the pleas to each of the three counts of armed robbery. Because of the joinder of the aggravated rape count and the November 21, 1997 armed robbery in the indictment by operation of law and because of the 16“joining” by the parties of the four counts in the plea agreement, the trial court’s ruling of June 21, 2000, did not become final until the pleas to the armed robberies were set aside by the appellate court on May 29, 2001. Thus, the one year time period allowed for the State to commence trial had not elapsed when Washington filed his motion to quash in July 2001.

Finally, in response to the State’s argument concerning joinder, Washington argues he pled guilty to the November 21, 1997 armed robbery count in the Bill of Information, not to the November 21, 1997 armed robbery count in the Grand Jury indictment. In support of his argument, he relies on the fact that there were different numbers for the Bill of Information and for the two counts in the indictment. He points out the State has not filed a motion to consolidate for trial or otherwise consolidated the charges in docket number 97-2112 with the indictments in docket numbers 97-2112B and 97-2112C. He states the only time the armed robberies in the Bill of Information and the aggravated rape in the indictment were “linked” was when the sentences imposed for each crime were made to run concurrently pursuant to the plea agreement.

Washington’s argument is clearly untenable. First, the order of the third circuit court dated May 29, 2001, rendered pursuant to Washington’s writ application, specifically held that the plea agreement was one “whole agreement” thus providing a “link” even if one did not exist before. Washington acquiesced in that ruling and the State did not apply for a writ to this court; thus, the May 29, 2001 order is final.

17More importantly, as stated previously, the November 21, 1997 armed robbery was joined by operation of law with the aggravated rape. LSA-C.Cr.P. art. 498. This is a controlling factor, which relieves the State of any alleged obligation to “consolidate” the Bill of Information and the indictment. When Washington entered a plea of guilty, he pled guilty to the November 21, 1997 armed robbery itself, not to a count in a Bill of Information. The fact that his guilty plea incorporated different numbers is immaterial. See State v. Johnson, 97-0605 (La.App. 4 Cir. 4/22/98), 713 So.2d 579, 582, (The fact that two counts in a Bill of Information, which had been severed for trial by the State, had the same number had no bearing on the issue of whether the time limitation of Article 578 had elapsed.)

CONCLUSION

To summarize, once Washington pled to all four counts and received concurrent sentences, he acquiesced in the joining of these charges. While the armed robberies remained in the appellate process, the time period in which to prosecute the rape count remained suspended. It was Washington’s appeal of the armed robbery-counts that suspended the time period applicable to the rape count. Once the counts were joined in the plea agreement and the “whole agreement” was not disposed of in the trial court’s ruling on the rape count, the State was not obligated to commence the trial. Further, once the aggravated rape count and the armed robbery count were joined by operation of law in the indictment, these counts did not become separate absent a severance. Neither the defendant nor the State moved for a severance.

Finding the appellate court erred in partially granting Washington’s writ and reversing the trial court’s denial of his motion to quash, we reverse that portion of the appellate court’s ruling. We remand this matter to the trial court for further proceedings consistent with this opinion.

| .ORDER QUASHING RAPE INDICTMENT REVERSED; MATTER REMANDED TO DISTRICT COURT.

KNOLL, J., concurs in the result.

      . Washington was originally charged with aggravated rape, but pursuant to a plea bargain the charge was reduced to forcible rape.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      .Because the plea agreement relative to the forcible rape was set aside, the State apparently re-instituted the original charge of aggravated rape.

      . Washington did not file a writ application on this ruling, nor urge the issue in argument to this court. Thus, the ruling of the court of appeal denying Washington's motion to quash the armed robbery counts is final.

      . Citing the federal rules of criminal procedure and the American Bar Association Standards for Joinder and Severance, then Associate Justice Calogero as organ for the court in Carter performed an erudite comparative analysis of Louisiana's newly enacted rules on the subject. The opinion went into considerable detail concerning the similarities and differences between the Louisiana legislation, the federal rules, and the ABA standards. State v. Carter, 352 So.2d at 608-611.

      .It is immaterial that the November 21 robbery was joined by the Bill of Information with the other two robberies. Such a joinder did not prevent the November 21 robbery from being joined with the aggravated rape in the indictment. Obviously, the defendant could not have been tried more than once for the November 21 robbery.

      .Thus, although the aggravated rape and the armed robbery had been joined by operation of law since the date of the Grand Jury indictment, all four counts (three armed robberies and one rape) were effectively “joined” by court order when the appellate court found they were all four part of the "whole agreement” between the State and the defendant that led to Washington’s entering a guilty plea.

      . LSA-C.Cr.P. art. 580 provides: "When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial."

      . LSA-C.Cr.P. art. 582 provides: “When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer."

      . Further, on December 19, 2001, which was within the one-year period following the vacating of the guilty pleas to the armed robberies, Washington filed an application for the appointment of a sanity commission. According to LSA-C.Cr.P. art. 580, that preliminary motion suspended the time limitation until a ruling was made on his sanity. Thus, the State would have one year from the date of the trial court's ruling on the report of the sanity commission in which to try Washington for aggravated rape.
      Because of our disposition of this matter, it is unnecessary for us to address whether the appellate court was correct in stating the two-year limitation of Article 578 also had elapsed.


author: hPER CURIAM.

text:
    In re Michael D. CALLAHAN.
    No. 2002-B-2960.
    Supreme Court of Louisiana.
    May 20, 2003.

      Charles B. Plattsmier, Bernadine Johnson, Baton Rouge, for Applicant.
    Michael D. Callahan, Baton Rouge, Charles D. Jones, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This attorney disciplinary proceeding arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael D. Callahan, an attorney licensed to practice law in the State of Louisiana.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to the practice of law in 1987. Between 1996 and 1998, he engaged in misconduct unrelated to the instant proceedings involving neglect of legal matters, failure to account for and return unearned fees, failure to withdraw from representation, commingling and conversion of client and third party funds, and failure to cooperate with the ODC. As a result, respondent was placed on interim suspension on July 30,1998. In re: Callahan, 98-1996 (La.7/30/98), 717 So.2d 1127. He was subsequently disbarred for this conduct. In re: Callahan, 00-3357 (La.3/23/01), 782 So.2d 624 (“Callahan I ”).

UNDERLYING FACTS

Hardison Matter

Prior to his interim suspension in Callahan I, respondent represented Dorothy Hardison in a worker’s compensation matter. After respondent was interimly suspended on July 30, 1998, he did not withdraw from the representation of Ms. 1 ¡.Hardison as required by this court’s rules nor did he advise her he could no longer represent clients. Instead, he continued to represent Ms. Hardison by engaging in ongoing settlement negotiations on her behalf for over a year after his suspension was imposed by this court.

Additionally, in April, 1999, respondent associated himself with another attorney, Tommy Gipson, for purposes of attending a mediation hearing on behalf of Ms. Har-dison. Respondent did not advise Mr. Gipson of his suspension.

Rachal Matter

In April, 1997, Charles and JoAnn Ra-chal retained respondent to handle the successions of Alva Joseph Marcotte and Angeline Marcotte. Respondent advised Mr. Rachal that he would have to pay a total of $177.25 in inheritance taxes due in both succession matters. Mr. Rachal provided this amount to respondent. In fact, however, no taxes were assessed in Angeline Marcotte’s succession, and $106.25 was only due relative to Alva Marcotte’s succession.

Respondent forwarded a check to the Louisiana Department of Revenue and Taxation in the amount of $106.25 for payment of the taxes. However, the check was returned for insufficient funds. Subsequently, respondent abandoned his client without paying the taxes or completing the legal matters. Respondent further failed to refund the funds entrusted to him by Mr. Rachal for payment of the taxes.

In December, 1999, Mr. Rachal filed a complaint with the ODC. Respondent failed to comply with the ODC’s request for information regarding this complaint.

Criminal Conviction

On July 13, 1999, respondent entered a plea of guilty in the 12th Judicial District Court for the Parish of Avoyelles to the misdemeanor charge of theft of an ^amount not in excess of $500, in violation of La. R.S. 14:67. The conviction stemmed from conduct at issue in Callahan I, involving respondent’s intentional failure to refund an unearned legal fee to a client. Respondent was sentenced to pay a fine of $300 and $110 in costs. Respondent neglected to advise the ODC of his conviction as required by the rules of this court.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed separate counts of formal charges against respondent.

With respect to the Hardison matter, the ODC alleged violations of Rules 5.5(a) (unauthorized practice of law), 8.4(a) (violating the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

As to the Rachal matter and the criminal conviction matter, the ODC alleged respondent’s conduct violated Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5(f)(4) (failure to refund client funds), 1.15(b) (failure to promptly account for and deliver funds or property owed to a client or third party), 1.16(a) |4(failure to withdraw from representation of a client when representation results in professional misconduct), 1.16(d) (failure to protect client interests upon termination of representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.3 (failure to report professional misconduct), 8.4(a) (violating the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

Respondent did not file an answer. Accordingly, the charges were deemed admitted.

Recommendations of the Hearing Committees

The hearing committee which presided over the Hardison matter recognized the formal charges were deemed admitted and proven by clear and convincing evidence. As mitigating factors, the committee noted remorse and the absence of any dishonest or selfish motive. It recognized in aggravation respondent’s prior disciplinary offenses, pattern of misconduct, multiple offenses and substantial experience in the practice of law. Applying these factors to the baseline sanction of disbarment, the committee concluded disbarment is appropriate under the facts.

The hearing committee which presided over the Rachal and criminal conviction matters likewise recognized the formal charges were deemed admitted and, thus, proven by clear and convincing evidence. Recognizing respondent’s misconduct Isstemmed from the conversion of client funds and a criminal conviction (also involving conversion of client funds), the committee recommended that respondent be disbarred from the practice of law, commencing from the expiration of the disbarment imposed in Callahan I. The committee did not cite any jurisprudential or statutory authority in support of its proposed sanction.

Recommendation of the Disciplinary Board

The disciplinary board consolidated the two sets of formal charges and addressed them in a single recommendation. The board found all three charges were proven by clear and convincing evidence, based on the deemed admitted order and other documentary evidence in the record.

In fashioning a sanction, the board observed the misconduct in the Rachal matter and the criminal conviction matter took place in 1997 and 1998, within the same general time frame as the misconduct subject of Callahan I. Relying on In re: Vaughan, 01-1948 (La.10/26/01), 801 So.2d 1058, the board determined, although respondent should be disbarred for this conduct, the disbarment should run concurrently with his disbarment in Callahan I. However, the board found the misconduct in the Hardison matter took place in 1999 and 2000 and, thus, was not encompassed by the conduct in Callahan I. The board recommended that respondent |fibe disbarred for this misconduct, commencing from the expiration of the disbarment imposed in Callahan I. It further proposed respondent be ordered to provide an accounting and payment of restitution.

Respondent filed an objection to the board’s findings and recommendation. The matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of 'the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the hearing committees’ findings that the charges against respondent have been proven by clear and convincing evidence. In the Hardison matter, it is undisputed that respondent continued to represent his client after he was placed on interim suspension by this court. In the Rachal matter, respondent neglected a legal matter and converted client funds. Respondent’s criminal conviction involved conduct that directly reflects on his moral integrity.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining]^ sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

While respondent’s actions in the Rachal matter and criminal conviction matter would warrant disbarment, the board correctly found that the underlying facts in these matters arose during the same general time frame as respondent’s misconduct in Callahan I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we declined to impose an additional disbarment on a previously-disbarred attorney based on conduct which occurred during the same time frame as the earlier disbarment. We observed:

Since the attorney-respondent cannot control the timing of the institution of disciplinary proceedings, it is generally inappropriate to disbar a previously disbarred attorney an additional time when the violations at issue occurred before or concurrently with the violations which resulted in the initial disbarment. When a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. See 1 Lawyers’ Manual on Professional Conduct 466 (1984); Matter of Thompson, 492 A.2d 866 (D.C.App.1985).
Chatelain, 573 So.2d at 471, n. 2.

We believe a similar approach is appropriate in the instant case. Accordingly, we decline to disbar respondent for a second time based on the misconduct in the Radial matter and his criminal conviction. Instead, we will adjudge respondent guilty of additional violations based on these matters which warrant disbarment and which Iswill be added to his record for consideration in the event he applies for readmission after becoming eligible to do so.

The Hardison matter requires a different analysis. The facts of this charge involve the unauthorized practice of law which arose after the interim suspension imposed in Callahan I. By its nature, this conduct had to arise after the Callahan I misconduct and could not have been charged. Therefore, we must impose separate discipline for this misconduct.

The unauthorized practice of law by a suspended or disbarred attorney is very serious misconduct. Our legislature has made it a felony to engage in such conduct. La. R.S. 37:213. Likewise, we have listed the unauthorized practice of law by a suspended or disbarred attorney as a possible ground for permanent disbarment under the Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment contained in Appendix E to Supreme Court Rule XIX.

In general, when the attorney has manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so, we have not hesitated to impose disbarment. See, e.g., In re: Jones, 99-1036 (La.10/19/99), 747 So.2d 1081 (attorney disbarred for engaging in the unauthorized practice of law on four occasions, after being suspended in the past for similar misconduct). However, not all instances of the unauthorized practice of law warrant the most severe sanction. For example, in In re: Ellis, 99-2483 (La.9/15/99), 742 So.2d 869, we imposed a ninety-day suspension on a previously suspended attorney who failed to remove the “attorney at law” designation from his office. See also In re: Withers, 99-2951 (La. 11/19/99), 747 So.2d 514 (attorney suspended for six months, followed by an eighteen-month period of probation, for representing a client while ineligible to do so).

Recently, we considered two cases which fell between those two extremes, In re: Audwin Jackson, 02-3062 (La.4/9/03), 843 So.2d 1079, and In re: Charles Williams, 02-2698 (La.4/9/03), 842 So.2d 353. In those cases, the suspended attorneys, ostensibly acting as paralegals, participated in out-of-court proceedings such as depositions and sworn statements. We found that, while these attorneys were clearly engaged in unauthorized practice of law, they did not display an obvious intent to flout the authority of this court and did not have dishonest or selfish motives. As discipline, we imposed suspensions of two years, with all but one year and one day deferred.

In the instant case, respondent’s actions following his interim suspension consisted largely of engaging in settlement negotiations in a worker’s compensation matter. The record does not indicate that he appeared on behalf of his client in any proceedings. While respondent’s actions unquestionably violate Rule 5.5(a), we do not believe his actions manifest an intent to the defy the authority of this court.

Accordingly, we find the baseline sanction for respondent’s actions in the Har-dison matter is a suspension from the practice of law for a period of two years. As aggravating factors, we recognize respondent’s prior disciplinary record and his substantial experience in the practice of law. In mitigation, we identify remorse and lack of a dishonest or selfish motive. Considering all these factors, we conclude the appropriate sanction for the misconduct in the Hardison matter is a suspension of two years, with three months deferred, to commence upon the date respondent is eligible to seek readmission from his disbarment in Callahan I.

_JiflDECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael D. Callahan be adjudged of additional violations warranting disbarment for his conduct in the Rachal matter and for his conduct resulting in a conviction for misdemeanor theft. These violations shall be added to his record for consideration in the event he seeks readmission from the disbarment imposed in In re: Callahan, 00-3357 (La.3/23/01), 782 So.2d 624. For the conduct in the Hardison matter, it is ordered that respondent be suspended from the practice of law for a period of two years, with three months deferred. This suspension shall commence on the date respondent is eligible to seek readmission from the disbarment imposed in In re: Callahan, 00-3357 (La.3/23/01), 782 So.2d 624. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Retired Judge Robert L. Lobrano sitting as Justice Ad Hoc in place of Knoll, J. recused.

      . When attempting to serve respondent with a subpoena in connection with the Rachal matter subject of Count I, the ODC learned respondent had been arrested in April, 2000 on three outstanding arrest warrants for theft, forgery and issuance of worthless checks. The ODC followed the criminal proceedings, part of which culminated in a bill of information for felony theft involving an amount in excess of $500. However, the charge was reduced and respondent pled guilty to misdemeanor theft of an amount of less than $500 pursuant to a plea agreement. As stated, the conviction stemmed from respondent's failure to refund unearned legal fees to a client. The client was Clinton Baudin, Jr., who gave $4,500 to respondent for payment to Mr. Bau-din's wife to effect a community property settlement. Rather than delivering the funds as directed, respondent converted the funds to his own use. This professional misconduct was subject of Callahan I.

        . The ODC filed one set of formal charges in the Hardison matter and a separate set in the Rachal and criminal conviction matters.

      . The following violations were deemed admitted and, thus, proven by clear and convincing evidence: Rules 5.5(a), 8.4(a), 8.4(b), 8.4(c) and 8.4(d) of the Rules of Professional Conduct.

      . The following violations were deemed admitted and, thus, proven by clear and convincing evidence: Rules 1.3, 1.4, 1.5(f)(4), 1.15(b), 1.16(a), 1.16(d), 8.1(c), 8.3, 8.4(a), 8.4(b), 8.4(c), 8.4(d) and 8.4(g) of the Rules of Professional Conduct.
      The hearing committee erroneously stated Rule 1.15(f)(6), rather than Rule 1.15(f)(4), had been proven. Respondent was not charged with a violation of Rule 1.15(f)(6). Additionally, it neglected to cite that Rule 1.15(b) had been proven. By all indications, these were simply mistakes on the part of the hearing committee, rather than any intentional legal findings.

      . In Vaughan, this court stated:
      When a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the Court simultaneously.

      . Guideline 8 of Appendix E provides:
      Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.