author: 1 Judge PATRICIA RIVET MURRAY. h BYRNES, C.J.,

text:
    STATE of Louisiana v. Bruce MORGAN.
    No. 2002-KA-1489.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.

      Harry F. Connick, District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    Dwight Doskey, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   1 Judge PATRICIA RIVET MURRAY.

The defendant, Bruce Morgan, appeals his conviction for possession with intent to distribute heroin and his life sentence. Mr. Morgan asserts that the trial court erred in three respects: (i) denying his motion to suppress the evidence, (ii) allowing into evidence the state’s expert witness’ testimony on the ultimate issue of guilt, and (iii) infringing on his constitutional right to testify in his own defense. Finding no error, we affirm the conviction and sentence.

STATEMENT OF THE CASE

On September 21, 2000, Mr. Morgan was charged by bill of information with possession with intent to distribute heroin in violation of La. R.S. 40:966. On September 29, 2000, he was arraigned and pleaded not guilty. On December 19, 2000, a hearing was held on Mr. Morgan’s motions to suppress the evidence and a statement. On February 5, 2001, after allowing the parties to submit memoranda on the issue, the trial court denied those motions; on March 13, 2001, the trial court issued written reasons for denying those motions. On October 22nd through 24th, 2001, Mr. Morgan was tried before a twelve-person jury. Following the trial, the jury found him guilty as charged. On April 11, 2002, the trial court denied Mr. ^Morgan's motion for new trial. On May 10, 2002, the trial court sentenced him to life in prison, without benefit of probation, parole or suspension of sentence. The trial court on that same date also denied Mr. Morgan’s motion to reconsider sentence. The trial court granted Mr. Morgan’s motion for appeal.

STATEMENT OF THE FACTS

At the hearing on Mr. Morgan’s motion to suppress, it was established that New Orleans Police Department (NOPD) Officers Demetrius Jackson and Wayne Jacques were informed by a rehable confidential informant that Mr. Morgan was conducting around the clock sales of illegal narcotic drugs from his residence at 1414 Delery Street in New Orleans. On July 31, 2000, the officers initiated a controlled buy from that location using the informant. On August 1, 2000, the officers applied for and obtained a search warrant for Mr. Morgan’s residence.

At trial, Officer Jackson testified that they delayed executing the warrant until August 7th because they were involved in other investigations and because they wanted to make sure Mr. Morgan was home when the warrant was executed. When they went to execute the warrant on August 7th, Officer Jackson testified that they conducted a brief surveillance from an area near Mr. Morgan’s residence. He testified that he spotted Mr. Morgan four blocks from his residence, around the 1100 block of Delery Street, standing next to a gray Buick LeSabre. He then saw a red truck pull up next to the LeSabre and a man exit the truck. Mr. Morgan and the truck driver then engaged in a brief conversation. The truck driver then reached 13into his pocket, pulled out an unknown amount of money, and handed it to Mr. Morgan. Mr. Morgan then entered the LeSabre, popped the gas cap compartment door, exited the vehicle, walked to the gas cap compartment, pulled out a white package containing a plastic bag, and handed it to the truck driver. The truck driver then got back into the red truck and departed.

Based on his experience as a major narcotics detective, Officer Jackson testified that he believed he had just witnessed a “hand-to-hand” drug transaction. At that point, he called for back-up assistance to stop Mr. Morgan, who appeared to be leaving the area; he had started driving from the 1100 block of Delery Street towards the 1500 block.

Officers Clarence Gillard testified that he and his partner, Officer Kevin Honoré, were the back-up team. He further testified that Officer Jackson notified them by radio of what he had observed and requested they conduct an investigatory stop of Mr. Morgan. He still further testified that they stopped Mr. Morgan, who was driving a gray Buick LeSabre, in the 1500 block of Delery Street, and advised him he was under investigation for narcotics violations. The officers seized the temporary tag for the vehicle, which identified it as a 1991 Buick LeSabre. Mr. Morgan was searched and detained in a police unit. In Mr. Morgan’s pocket, the officers found eighty dollars.

Officer Jacques, similar to Officer Jackson, testified regarding his involvement in obtaining and executing the search warrant. Officer Jacques further testified that his job in the pre-raid- surveillance on August 7th was to ascertain if Mr. Morgan was present at his residence and to see if he was committing any violations. After the back-up team detained Mr. Morgan, Officer Jacques testified that he entered the LeSabre, popped opened the gas cap Lcompartment, and found in that compartment a white packet marked “Top Gun” (a male potency product) containing seven individual foils. Each foil contained a white powdery substance, which subsequently tested positive for heroin. Both Officers Jackson and Gillard testified that they witnessed Officer Jacques remove the Top Gun package from the gas cap compartment.

Thereafter, the officers relocated to 1414 Delery Street to execute the search warrant. Using the keys they obtained from Mr. Morgan to unlock the door, five officers (Officers Jackson, Jacques, Gillard, Honoré, and Cager) searched the residence. As a result of that search, the officers seized the following items: one bottle of Inositol (a dietary supplement); one Tanita digital scale; two Top Gun packets (identical to the one found inside the gas cap compartment); documentation in Mr. Morgan’s name (Sewerage and Water Board and Times-Picayune bills for the relevant period); and one Nokia cell phone. The officers also found slightly over ten thousand dollars in cash (mostly five and ten dollar bills). The money was found in two places: Officer Gillard found $1,995 in a dresser drawer inside the master bedroom, and Officer Honoré found $7,880 stashed inside a vacuum cleaner bag. The money was seized by NOPD’s Asset Forfeiture.

The officers found no evidence to indicate Mr. Morgan was a drug user; particularly, they found no syringes, burned foil, or burned spoons, and they saw no track marks on Mr. Morgan. Nor did the officers find any heroin in the residence. After the officers completed the search of the residence, they searched the LeSabre, which Officer Honoré had moved to 1414 Delery Street, but found nothing inside it.

Sergeant Michael Glasser, who had twenty years experience in narcotics enforcement, was stipulated to be an expert in the packaging of narcotics, | ¡^specifically heroin. Based on his experience, he testified that heroin is generally sold and distributed on a retail level packaged in tin foil. He further testified that heroin peddlers generally conceal their drugs in clever hiding places and that the gas cap compartment of a vehicle is “a fairly common place” they conceal it. He estimated the street value of the tin foils at issue in this case to be around $20 to $25 a piece. He also stated that it is a common practice for narcotics dealers to use vehicles belonging someone else, like a relative.

Sgt. Glasser stated that because heroin is lethal in its pure form it is necessary to cut it with some other substance. He explained that Inositol is commonly used as an adulterant for both cocaine and heroin because it homogenizes well with the narcotics and is not harmful when ingested. Sgt. Glasser also explained that because a dosage unit of heroin is a very small quantity (typically fifty milligrams) of which only twenty percent is heroin, a distributor would need a digital scale to measure such very small amounts. He further testified that collectively a digital scale, Inositol, and heroin in the Top Gun packets are suggestive of a distribution effort.

Sgt. Glasser further testified that a large amount of cash is also indicative of a distribution effort. He still further testified that the condition of the money— crumpled up bills as opposed to fresh new ones — was indicative of street sales because buyers generally crumple up their bills. Also the small denomination of many of the bills was consistent with retail drug sales. He further testified on redirect that in his expert opinion a large amount of money absolutely would be of some evidentiary value in a possession with intent to distribute heroin case.

| fiOfficer Harry O’Neil, who was qualified as an expert in the identification of narcotics, testified that the white powder in the tin foil packets tested positive for heroin.

The defense called several lay witnesses, including neighbors and relatives. Contrary to the police officers’ testimony, the defense witnesses testified that at the time of the arrest Mr. Morgan was sitting with friends and relatives on the porch of his mother’s residence, which is located at 1522 Delery Street. The defense witnesses stated that shortly after Mr. Morgan stepped off the porch, the police arrested him. The gray vehicle, according to the defense witnesses, was a Park Avenue that belonged to Mr. Morgan’s brother, Lionel Sims, who had been sentenced to prison three days before Mr. Morgan’s arrest.

Mr. Morgan’s wife, Lynn Williams, testified she returned home because she was informed the police were searching the residence. She testified that the money seized from the residence belonged to her and identified the source of the money as her earnings from working several jobs and her settlements of various lawsuits. She testified that the reason she put her money in a vacuum cleaner bag, as opposed to the bank, was because she had student loans and was told the money would be seized if she put it in the bank. She testified that she retained an attorney to assist her in the civil forfeiture proceeding regarding the money. She also testified that she has been using a dietary supplement for about two years and that she uses a scale to weigh it.

\ .ERRORS PATENT

A review of the record reveals what would appear to be, and what Mr. Morgan asserts to be, an error patent. Mr. Morgan’s sentence contains a prohibition against parole, but the applicable sentencing provision, La. R.S. 40:966(B), prohibits only probation and suspension of sentence. As Mr. Morgan points out, La. R.S. 40:966(B) does not prohibit parole if a defendant serving a life sentence for this offense has his sentence commuted to a terms of years. Following this court’s long-standing practice of amending a sentence that improperly denies parole eligibility, we amend his sentence to remove the prohibition of parole.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Mr. Morgan contends that the trial court erred in denying his motion to suppress the evidence found in the gas cap compartment of the vehicle he was driving. As noted above, when the police went to execute the search warrant, they observed Mr. Morgan engage in a hand-to-hand drug deal with an unidentified individual who departed in a red truck. They also observed Mr. Morgan obtain the object he exchanged for currency from the gas cap compartment of his vehicle. They then effectively searched the vehicle to retrieve the heroin from the gas cap compartment. Given the state only obtained a | ¿warrant for his residence, it is undisputed that this search of the vehicle was done without obtaining a warrant.

The jurisprudence is settled that if the police had probable cause to believe there was contraband in the car, they could validly search it without obtaining a warrant. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). The determining factor is whether the police had probable cause to believe there was contraband in the gas cap compartment. Probable cause to search exists when the facts and circumstances are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Huffman, 419 So.2d 458 (La.1982). The issue is thus whether it was more probable than not that there was contraband in the gas cap compartment.

Mr. Morgan argues that the police were uncertain what was being taken in and out of the gas cap compartment and thus he argues they lacked probable cause to search the car and that the evidence should have been excluded. In support of this contention, he relies strongly on a case involving similar circumstances that this court recently decided; indeed, he describes it as “on all fours with this case.” State v. Corzo, 2001-1278 (La.App. 4 Cir. 2/13/02), 811 So.2d 73, rev’d, 2002-0766 (La.11/8/02), 831 So.2d 904.

Factually, Corzo is similar to this case in that it involved a warrantless search of the gas cap compartment of a vehicle almost immediately after the vehicle was validly stopped. 2001-1278 at p. 5, 811 So.2d at 76. In Corzo, the police were conducting surveillance of an apartment while awaiting the issuance of a search warrant. They observed two subjects drive up to the apartment and enter. Shortly thereafter, the defendant exited the apartment, reached into the driver’s | flcompartment, and released the gas cap compartment. He walked back to the compartment, removed something from his pocket, and placed it inside the compartment. He then returned to the apartment. A few minutes later, the two men left the scene in the vehicle, and the police followed, stopping the car after it ran a stop light. The officers immediately searched the gas cap compartment and recovered a rock of crack cocaine.

Although another panel of this court in Corzo held that the officers lacked probable cause to search the gas cap compartment, the Louisiana Supreme Court reversed and reinstated the defendant’s conviction, reasoning:

From the testimony at the motion to suppress hearing, the officers had probable cause to search the gas cap compartment after watching the defendant, the target of the narcotics investigation, leave an apartment known for drug activity and place an object in the gas cap compartment. Furthermore, exigent circumstances arising from the detection of the vehicle on the open road excused the lack of a warrant. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). See also State v. Tatum, 466 So.2d 29, 31 (La.1985).

Corzo, 2002-0766 at p. 1, 831 So.2d at 905.

In this case, the facts present an even stronger showing of probable cause than in Corzo. The officers observed Mr. Morgan engage in an apparent hand-to-hand drug deal in which the narcotics were removed from the gas cap compartment. The police thus had probable cause to search the gas cap compartment, and the automobile exception excused the lack of a warrant. Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Following Corzo, we find Mr. Morgan’s argument regarding the denial of his motion to suppress lacks merit.

\,ASSIGNMENT OF ERROR NO. 2

Mr. Morgan’s second assignment of error is that the trial court erred in allowing Officers Jackson and Jacques to offer opinion testimony without being qualified as experts. Mr. Morgan further contends that that the officers were called to testified as “supposed experts” for a common purpose — to convince the jury that he was not only a heroin dealer, but also a very successful one. Mr. Morgan still further contends that the trial court erred in denying his motion for mistrial following Sgt. Glasser’s testimony. Defense counsel urged the motion following the testimony of the sergeant, arguing that his testimony at the conclusion of the state’s direct examination constituted giving an opinion on an ultimate issue of guilt, the intent to distribute, in violation of the holdings in State v. Wheeler, 416 So.2d 78 (La.1982); State v. Montana, 421 So.2d 895 (La.1982); State v. White, 450 So.2d 648 (La.1984).

Louisiana Code of Evidence Article 704 provides the rules for opinion testimony on an ultimate issue of fact:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Although Mr. Morgan argues that several of the officers gave improper expert testimony, the real focus of this assignment of error is the testimony of Sgt. Glasser, who was accepted as an expert in the packaging of narcotics, specifically heroin. The testimony by Sgt. Glasser at issue was as follows:

InQ. Now. I’ve shown you the money, the scale, the Inositol. These items in and of themselves aren’t illegal, are they?
A. No they are not.
Q. But in a larger context of your experience in heroin and narcotics enforcement what do they suggest to you?
A. If someone were to have this type of currency, this amount of currency in this denomination in this fashion concealed on the premises where there was a bottle of Inositol, where there was a digital scale, and where they had been found in possession of retail positions (sic) of heroin I would conclude that that was a distribution effort.

Immediately following the testimony defense counsel requested a side bar, which was not transcribed. At the conclusion of the officer’s testimony, defense counsel requested a mistrial, arguing that Sgt. Glas-ser was allowed to testify as to the issue of the ultimate fact. The trial court indicated that he would have to examine the expert’s testimony and that if Sgt. Glasser testified that it “would”, as opposed to “could,” indicate this person as guilty, then this would be reversible error. Subsequently, defense counsel renewed the motion for mistrial. Before closing arguments, the trial court, at the request of defense counsel, admonished the jury as follows:

The Court: Ladies and Gentleman, the defense has requested that I give you an admonition, which is basically a charge to correct something that may be determinative when you go in there to reach a verdict.
The role of experts in criminal cases is to provide, as I mentioned to you, jurors with a basis of knowledge and background and information on a particular subject.
Your role is that of the ultimate fact finder. I will tell you that you are the ultimate deciders of what facts have been proven and what facts have not been proven. You may not allow the testimony of any expert witness, including Sergeant Glasser to be determinative on the | tissue of intent to distribute. So you and you alone are to decide that issue, what constitutes the issue of intent to distribute, whether or not the defendant had the intent to distribute narcotics.
So anything that may have been said during the course of the testimony by an expert witness including but not limited to Sergeant Glasser regarding the issue of intent to distribute you are to disregard. You alone are going to make that decision, whether or not those requisite elements have been met. Mr. Boshea, is that acceptable to you?
Mr. Boshea [Defense Counsel]: That’s fine, keeping in mind my other previous discussions in the area.

Addressing a strikingly similar issue, the Louisiana Supreme Court in State v. Ducre, 2001-2778 (La.9/13/02), 827 So.2d 1120, recently reinstated the defendant’s conviction, finding the trial court did not abuse its discretion in opting to admonish the jury rather than grant a mistrial when a police officer indicated in his testimony that the cocaine the defendant possessed was a “distribution amount.” In so doing, the Court distinguished the trio of cases Mr. Morgan cites, reasoning:

Athough the court of appeal rested its decision on jurisprudence in this Court precluding expert testimony tantamount to an opinion that the defendant is guilty of the crime charged, State v. White, 450 So.2d 648, 650-51 (La.1984); State v. Montana, 421 So.2d 895, 900 (La.1982); State v. Wheeler, 416 So.2d 78, 81 (La.1982), in those cases the trial court overruled defense objections to the contested expert testimony, and thus the respective juries were allowed to consider what should have been inadmissible evidence. White, 450 So.2d at 649, Wheeler, 416 So.2d at 79, Montana, 421 So.2d at 900. In the present case, the trial court sustained the defense objection and admonished the jury that it, not the expert witness, remained the ultimate finder of fact.

2001-2778, p. 2, 827 So.2d at 1120-21. Continuing, the Court found that “[gjiven the pre-arranged drug deal, the amount of cocaine, and the manner in which it was packaged, the defendant cannot show that the expert witness’s testimony prejudiced [ 13him,” and ruled that the trial court did not abuse its discretion in denying the motion for mistrial. Ducre, 2001-2778, 827 So.2d at 1121.

This case tracks Ducre on several levels. First, in Ducre, as in this case, the trial court admonished the jury that it, not the expert witness, remained the ultimate finder of fact. Second, besides recovering the enumerated items often associated with heroin distribution and the large sum of money from Mr. Morgan’s residence, the officers also observed him engaged in a hand-to-hand drug deal, dispensing heroin from the gas cap compartment in exchange for cash. The latter drug deal provided an independent basis to consider that the heroin was possessed with the intent to distribute. Mr. Morgan’s reliance on the line of cases distinguished in Ducre is thus misplaced.

Turning to the issue of the opinion testimony offered by the two officers, Article 701 of the Code of Evidence permits a police officer to express an opinion regarding matters of personal knowledge gained through experience, even if the witness is not first qualified as an expert. State v. Lowery, 609 So.2d 1125, 1128 (La.App. 2d Cir.1992). The trial court overruled defendant’s objections on this basis. The record reflects that Officer Jackson had been with the police department for six years and had spent two of those years working in the NOPD’s Major Narcotics Unit and that Officer Jacques had been with the Major Narcotics Unit for four years. Accordingly, the record reflects a sufficient basis for the trial court to allow the officers to express an opinion as to the significance of some of. the evidence. We find this assignment unpersuasive.

ASSIGNMENT OF ERROR NO. 3

Mr. Morgan’s third and final assignment of error is that he was denied the right to testify and to a fair assessment of his motion to reconsider sentence | Ubecause of a misinterpretation of his prior arrest record. Particularly, he claims that his rap sheet reflects one or two improper convictions and that this error led him to not testify. Stated otherwise, he claims that had he known he had only one or two prior felony convictions as opposed to two or three, he might have chosen to testify in his own defense. He argues that his right to testify was therefore wrongfully burdened and that his conviction must be reversed. In support, he cites State v. Thompson, 2002-0361 (La.App. 4 Cir. 7/17/02), 825 So.2d 552, and State v. Hampton, 2000-0522 (La.3/22/02), 818 So.2d 720.

The state counters that Thompson is distinguishable from this case in two significant respects. First, in Thompson, the defense had previously attacked the predicate conviction and that was conviction had been vacated; here, none of Mr. Morgan’s three predicate convictions have been challenged much less vacated. The state thus urges that Mr. Morgan is improperly attempting to wage a collateral attack on his prior convictions. Second, in Thompson, the defendant was able to establish that he would have testified but for the erroneous prior conviction by showing that he testified in his prior jury trial, and his attorney testified in Ms post-conviction hearing that he advised the defendant not to testify due to his prior convictions. No such evidence exists in this case. To the contrary, the state stresses that the record from Mr. Morgan’s only other ease that was tried to a jury reflects that he did not testify in that case either. The state still further contends that even assuming Mr. Morgan could successfully collaterally attack his prior convictions, the jury would have heard if he testified that he had three separate convictions, one of which involved distribution.

Mr. Morgan’s argument concerning his criminal record is based on State v. Anders, 2001-0556 (La.6/21/02), 820 So.2d 513, which held that a conviction for | ^distribution of marijuana could not serve as a proper predicate for the crime of possession of marijuana second offense under 40:966(D)(2). Based on Anders, he argues that one of his prior convictions was miselassified as a felony rather than a misdemeanor and that this misclassification was a determming factor in his decision not to testify in this case. He contends that had his previous convictions accurately reflected the crimes that he properly committed he might have testified in his own defense. Essentially, he argues that his conviction should be reversed on the basis that in a retrial he might choose to testify.

We agree with the state that this case is in no way similar to Thompson, supra. Indeed, we find Mr. Morgan’s claim falls within the category of claims the Louisiana Supreme Court cautioned against in Hampton, supra, in expressly pronouncing that its decision was intended to be narrow in scope to avoid a flood-gate of claims in virtually every case where the defendant did not testify. We thus find this assignment unpersuasive.

DECREE

For foregoing reasons, we affirm the conviction, but amend the sentence to delete the prohibition against parole.

CONVICTION AFFIRMED; SENTENCE AMENDED AND SENTENCE AFFIRMED AS AMENDED.

BYRNES, J., dissents in part with reasons.

h BYRNES, C.J.,

Dissents in Part with Reasons.

I respectfully dissent with respect to the issue of whether a patent error exists where the trial court imposes a life sentence without the benefit of parole. I would follow the case of Richardson, in which the Louisiana Supreme Court stated:

We consider here whether the mandatory life sentence imposed upon Carol Richardson for the possession and distribution of heroin under La.Rev.Stat. § 40:966(B) as enacted by the Louisiana Legislature in Act 207 of 1973, was illegal. Ms. Richardson contends that a mandatory life sentence without benefit of parole could not permissibly have been imposed because (1) “without benefit of parole” is not to be found in the applicable statute and because (2) the sentence was constitutionally excessive for this crime and this defendant. Concluding that the sentence is legal and that La.Rev.Stat.Ann. § 15:574.4(B) (West 1992), applicable here, bars eligibility for parole consideration for a prisoner serving a life sentence, we reverse the judgment entered in the district court which ordered that Ms. Richardson be deemed parole eligible immediately.
Id., 627 So.2d at 636.

In Richardson, the Louisiana Supreme Court concluded:

We find that Section 15:574.4(B) must be applied to Ms. Carol Richardson’s sentence of life imprisonment pursuant to Section 40:966(B) for the possession and distribution of heroin and that parole eligibility cannot be considered until that life sentence has been commuted to a fixed number of years. We | ¿further find that this sentence is not a violation of the Eighth Amendment of the United States Constitution. Accordingly, we reverse the judgement of the trial court, adopting the Commissioner’s recommendation, which decreed that Ms. Richardson be deemed parole eligible immediately. [Emphasis added.]
Id. at 637.

In Mills v. Cain, 1999 WL 681385, *6 (E.D.La.8/31/99), the federal district court followed Richardson and stated:

In analyzing the proportionality issue in relation to the statute in question, La. R.S. 40:966, it must be noted that the Louisiana Supreme Court has flatly rejected the petitioner’s argument. In Richardson v. Louisiana Department of Public Safety and Corrections, 627 So.2d 635 (La.1993), the Louisiana Supreme Court considered the question whether a mandatory life sentence for possession and distribution of heroin under La. R.S. 40:966 was constitutionally excessive and whether it was illegal because there was no parole eligibility. The Louisiana Supreme Court, citing the United States Supreme Court decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), held that the mandatory life sentence for possession and distribution of heroin is not a violation of the Eighth Amendment nor was it illegal under Louisiana law.
In petitioner’s application for post-conviction relief, the state trial court, citing Richardson, held that a life sentence is not constitutionally excessive. Mills v. Cain, No. 94-487 (24th JDC La. Mar. 20, 1997). The Louisiana Fifth Circuit and Supreme Court both agreed.
The question here is whether this decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. S 2254(d)(1). In Harmelin, 111 S.Ct. at 2683, the United States Supreme Court considered whether a mandatory life sentence without possibility of parole for a defendant convicted of possession of more than 650 grams of cocaine was disproportionate and was “cruel and unusual punishment” in violation of the Eighth Amendment. The Supreme Court held that mandatory sentences are not subject to proportionality review because “[proportionality review is one of several respects in which we have held that ‘death is different,’ and have imposed protections that the Constitution nowhere else ^provides.” 111 S.Ct. at 2701. As to the “cruel and unusual punishment” argument, the Supreme Court held that “this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.... There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Id.
It is patent that the state court’s determination of this issue was not contrary to clearly established Supreme Court law, but in fact follows it. Thus, plaintiffs claim of cruel and unusual punishment fails.
Petitioner also argues that his life sentence without parole is illegal under state law because it does not provide a possibility of parole. The Louisiana Supreme Court has likewise rejected this argument. See, Richardson, 627 So.2d at 637 and Bosworth v. Whitley, 627 So.2d 629 (La.1993). [Emphasis added.]

In Bosworth v. Whitley, 627 So.2d 629, 630 (La.1993), the Louisiana Supreme Court stated:

In this case, we examine the law relative to the Parole Board’s policy of refusing to consider parole eligibility for inmates sentenced to serve life sentences between July 26, 1972 and July 2, 1973, while 1972 La.Acts No. 502(FN1) was in force. Concluding that the Board’s policy is legally correct, we reverse the judgment entered in the district court which had ruled that twenty-nine inmates serving life sentences in Angola Penitentiary are eligible for immediate parole consideration.

The Supreme Court not only reviewed the issue with respect to the twenty-nine inmates, who either received the death penalty but their sentences were changed to life, or who pled guilty without capital punishment. The Louisiana Supreme Court discussed the issue with respect to life sentences in general.

The Supreme Court found that:

While the foregoing emphasizes the power and authority of the Board of Parole, the general parole provisions contained in Section 15:574.4 clearly reveal |4that parole eligibility (which is determined by the sentence) and eligibility for parole consideration (which is dependent on meeting certain criteria and conditions specified by statute) are closely regulated by the Legislature. In Subsection A(l), the scheme provides that inmates otherwise eligible for parole, prisoners whose sentences do not carry parole restriction, become eligible for parole consideration under the following circumstances: when a first time offender has served one-third of the sentence imposed or when a second offender has served one-half of the sentence imposed. A person convicted of a third or subsequent felony is not eligible for parole. Although not applicable to an inmate serving a life sentence which has not been commuted to a fixed term of years, Section 15:574.4(A)(3) provides that prisoners sentenced to terms of thirty years or longer and who have reached the age of forty-five are eligible for parole consideration after serving at least twenty years in actual custody. Further legislative regulation of eligibility for parole consideration is contained in Subsection B, the statutory provision found unconstitutional by the Commissioner. It provides:
No person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64, or who has been convicted of violation of the Uniform Narcotic Drug Law and denied parole eligibility under the provisions of R.S. 40:981. No prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years. No prisoner may be paroled while there is pending against him any indictment or information for any crime suspected of having been committed by him while a prisoner. [Emphasis added in text.]
The Louisiana Legislature has thus provided parole consideration to inmates meeting specified standards and criteria, and has given to the Parole Board authority to make the final decision whether to release on parole. That scheme requires that those serving life sentences must first obtain a commutation by which the term of life is reduced to a fixed number of years, by petitioning the governor for clemency through the Board of Pardons, before becoming eligible for parole consideration. [Emphasis added.]

yd., 627 So.2d at 681-632.

In Bosworth, the Louisiana Supreme Court opined:

The existence of a parole system does not by itself give rise to a constitutionally protected liberty interest in early release. Board of Pardons v. Allen, 482 U.S. 369, 374, 107 S.Ct. 2416, 2418, 96 L.Ed.2d 303 (1987); Greenholtz v. Inmates of Nebraska Penal [and Correctional Complex], 442 U.S. at 11, 99 S.Ct. at 2105. Laws or regulations providing that a parole board “may” release an inmate on parole have not been found to give rise to that interest. Board of Pardons v. Allen, 482 U.S. at 378, n. 10, 107 S.Ct. at 2421, n. 10. (FN5 omitted)
Reviewed against Greenholtz and Board of Pardons v. Allen, it is apparent that the Louisiana parole statutes do not create an expectancy of release or liberty interest in general, or for those with life terms in particular. Inmates meeting standards contained in the law do have a statutory right to parole consideration, but the Parole Board has full discretion when passing on applications for early release. Furthermore, the Louisiana scheme specifically excludes parole consideration for inmates serving uncommitted life sentences. An inmate can remove this impediment to parole consideration by petitioning for an award of clemency in the form of commutation. If clemency is granted, the inmate joins the pool of other qualifying prisoners entitled to be considered by the Board for conditional early release on parole.
Louisiana’s constitutional and statutory provisions governing reprieve, pardon, and parole form a coherent whole. The scheme gives effect both to the Legislature’s authority to define and establish penalties for criminal offenses and to the executive’s plenary power to reprieve, pardon, commute and remit fines and forfeitures. Within the scheme, there have historically been placed restrictions on sentences of life imprisonment, which either disallowed parole altogether or required commutation as a pre-requisite to parole consideration. Offenses carrying life terms are among the most, if not the most, serious. Requiring that inmates convicted of such offenses first demonstrate merit for an award of executive clemency before receiving consideration for early release on parole is therefore reasonable. Such restrictions preclude any presumption that parole release will be available to felons sentenced to life imprisonment. Accordingly, we conclude that | fiLouisiana’s scheme regarding pardon and parole does not violate the constitutional mandates regarding either separation of powers or due process.
Id. at 633-634.
Bosworth held:
There is no conflict between 1972 La. Acts 502, which amended Article 817, and Section 15:574.4(B). The Code of Criminal Procedure provision addresses verdicts, and the relevant subsection of the Revised Statutes regulates early conditional release of felons from the custody of the Department of Corrections. The provisions operate concurrently, with no disharmony. In a similar situation, this Court noted that since Section 15:574.4(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration would be withheld from the defendant, by operation of law, despite the fact that the applicable penalty provision did not include the words “without benefit of parole.” State v. Wilson, 362 So.2d 536, 539 n. 3 (La.1978); State v. Lewis, 468 So.2d 557, 560 n. 11 (La.1985). Contrary to the views expressed in the district court opinion, there is no need to resort to rules of construction, to consult enactment dates of legislation, or to resort to the doctrine of repeal by implication. [Emphasis added.]
Id. at 634.

As stated above, the Louisiana Supreme Court found that restrictions on parole consideration preclude any presumption that parole release will be available to felons sentenced to life imprisonment. There is no presumption for parole eligibility for life sentences. In fact, an opposite presumption of parole eligibility would result where an error patent sentence is amended to delete the portion of the life sentence that is given “without benefit of parole.”

A defendant sentenced to life imprisonment is not eligible for parole until his life sentence is commuted to a fixed number of years under La. R.S. 15:574.4(B). At that time, the defendant can seek parole eligibility. If he is not ^satisfied with the Parole Board’s determination, he may appeal to the Nineteenth Judicial District Court, Parish of East Baton Rouge.

The present case, Morgan, involves the same sentence as Richardson, life imprisonment for distribution of heroin. I would follow Richardson v. Louisiana Dept. of Public Safety and Corrections, and Bosworth v. Whitley, based on the conclusion that there is no reversible error in the trial court’s denial of the benefit of parole.

      . The officers searched the informant before initiating the buy and then provided the informant with money for the buy. The officers positioned themselves outside the residence and watched as Mr. Morgan greeted the informant at the front door. After engaging in a short conversation, the informant handed Mr. Morgan the money, and Mr. Morgan reentered the residence. Shortly thereafter, Mr. Morgan exited and handed the informant a package of heroin. The informant then returned to the vehicle in which the officers were stationed and turned over the heroin to the officers.

      . It was stipulated that on August 4, 2000, Mr. Sims was sentenced in Orleans Parish Criminal District Court for possession with intent to distribute cocaine to serve forty months in jail.

      . Her attorney, Gary Wainwright, was also called as a defense witness. He stated that she told him she worked two jobs and had received money from the settlement of a discrimination lawsuit.

      . The latest published decision in which this court has applied its long-standing practice of finding patent error in denying parole eligibility is State v. Randle, 98-1670, p. 6 (La.App. 4 Cir. 12/22/99), 750 So.2d 353, 357. In two recent cases, however, other panels of this court have departed from this long-standing practice. State v. Flowers, 2000-0513, p. 3 (La.App. 4 Cir. 3/7/01), 782 So.2d 685, 688, writ denied, 2001-1175 (La.3/15/02), 811 So.2d 896; State v. Washington, 99-1111, pp. 4-5 (La.App. 4 Cir. 3/21/01), 788 So.2d 477, 485, writ denied, 2001-1096 (La.5/31/02), 816 So.2d 866. In those two cases, the panels construed Richardson v. Louisiana Dep’t of

        Public Safety and Corrections, 627 So.2d 635 (La.1993) to mean that the denial of parole eligibility in this context is not error because under La. R.S. 15:574.4(B) a defendant sentenced to life imprisonment is ineligible for parole until his life sentence is commuted to a fixed number of years and until that occurs paróle eligibility cannot be considered. To resolve this conflict in this circuit, we submitted this issue for an en banc vote, and this court voted en banc to follow its long-standing practice. Several judges voiced their opinion that Richardson, supra, is distinguishable, and Chief Judge Byrnes dissented.

      . The trio of cases Mr. Morgan, cites — Wheeler, Montana, and White — all involved defendants who were convicted of possession with intent to distribute drugs. In each case, an officer, who was qualified as an expert in narcotic transactions, was presented with a hypothetical that was identical to the facts of the particular case. In each case, the officer replied that, based upon those hypothetical facts, the defendant would have possessed the narcotic with the intent to distribute. In each case, the Louisiana Supreme Court reversed the defendant's conviction, finding that the officer’s opinion that the defendant possessed the intent to distribute was improperly admitted because that opinion usurped the jury’s role as the ultimate fact-finder.

        . The record reflects that in 1985 Morgan was convicted in case no. 306-449 "A” of possession with the intent to distribute marijuana. Thereafter, in 1986 in case no. 314-573 Morgan was convicted with possession of marijuana second offense, a felony. The predicate for the enhanced conviction was the 1985 conviction for possession with intent to distribute. In 1995, defendant was convicted in case 374-234 “A” of possession of marijuana third offense on the basis of the two aforementioned convictions. Mr. Morgan contends that he was "negligently” convicted of possession of marijuana second offense in case 314-573 and should properly have been convicted of the misdemeanor, simple possession of marijuana. Likewise, he contends that his conviction in case 374-234 should have only been for possession of marijuana second offense, not third offense.


source: Caselaw Access Project

author: 11 JONES, Judge.

license: Public Domain

text:
    Ann B. Bell, wife of/and Kenneth A. BELL, and Mr. and Mrs. Jerome C. Baehr v. Gaspar SCHIRO, Register of Conveyances, and Vernon Pettigrew, Jr., D.V.M.
    Nos. 95-CA-0114, 2000-CA-2024.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.

      James A. Babst, Lamothe & Hamilton, P.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Richard M. Michalczyk, Cronvieh, Wambsgans & Michalczyk, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE).
   11 JONES, Judge.

The instant cases were consolidated by order of this Court. The appeals were consolidated for judicial efficiency because the second appeal was filed seven years after the first appeal. However, both appeals relate back to only one district court judgment rendered on May 25, 1994. We dismiss this consolidated appeal as abandoned.

Ann Bell and Ken Bell (hereinafter “the Bells”), and Mr. and Mrs. Jerome Baehr owned a building on Magazine Street in New Orleans. They sued for a cancellation of a lease they claimed was improperly recorded against the property by Vernon Pettigrew, Jr., D.V.M. The Bells executed a written instrument containing an offer to the “Cat and Dog Clinic” to lease the commercial space. The Bells maintained that they executed the instrument in anticipation of the creation of a partnership by the Bells, Mr. Pettigrew and Mr. Pettigrew’s wife for the purposes of conducting a veterinary practice.

li>We are of the opinion that the merits of this case are not of issue at this time and we continue our discussion by outlining the procedural history that formulates the basis of the argument of this Court.

The Bells originally filed a Writ of Mandamus against Mr. Gasper Schiro, Registrar of Conveyances, and Mr. Pettigrew, in January 1991. Mr. Pettigrew filed a Reconventional Demand for Breach of Lease and Damages. A trial on the merits was held on July 21, 22 and October 29, 1993. The district court rendered judgment on May 25, 1994, finding in favor of the Bells. The district court ordered the lease null, the inscription of the lease can-celled, and appointed Mr. Harold Asher, a C.P.A., to:

... perform a full accounting of the enterprise carried on through the investment and efforts of petitioners Anna B. and Kenneth A. Bell and the defendant Pettigrew at 1823 Magazine Street1 from its inception through November 29, 1990 and the accounting to be returned to the Court within 30 days of receipt of all documentation from the litigants, together with a recommendation for the partition of any property that appears to be co-owned by petitioners Bell and defendant Pettigrew and for adjustments between the parties that may appeal necessary to bring into balance the expenses incurred by them respectively on the maintenance and management of any co-owned property or joint operation.

Mr. Pettigrew filed a Motion for New Trial which was denied, and then timely filed an appeal with this Court to review the dismissal of his reconventional demand. On September 29, 1995, Mr. Petti-grew filed with this Court a motion to suspend the briefing pending final disposition of the accounting claim. The motion Uwas granted on October 4, 1995 “pending a request from counsel to assign new scheduling dates.”

On February 26, 1999, we dismissed the appeal as abandoned pursuant to Rule 20(A) of the La. Rules of Court and La. Code Civ. Pro. art. 561(C) (discussed infra). On April 1, 1999, this Court signed an Order reinstating the appeal “pending conclusion of the matter in the Trial Court by Final Judgment”. Meanwhile, in district court, the Bells filed a motion for entry of a formal order of dismissal of the remaining action, the partition and accounting. The Bells argued in district court that the claim was abandoned. On April 24, 2000, the district court granted the motion and the action was dismissed. Mr. Pettigrew, on May 10, 2000, filed a Motion to Vacate the dismissal order which was denied after a June 16, 2000 hearing. Thus the second appeal was timely filed on June 19, 2000.

On appeal, Mr. Pettigrew raises three assignments of error, all of which relate back to the initial judgment of the district court dated May 25, 1994. However, this Court is of the opinion that Mr. Petti-grew’s appeal remains abandoned. Further, the assignments are rendered moot because of the dismissal of the remainder of the action as abandoned on April 24, 2000.

An appeal is abandoned when the parties fail to take a step in its prosecution or disposition for the period provided in the rules of the appellate court. La. Code Civ. Pro. art. 561. Except as provided hereafter when no activity occurs in an appeal for three years, the appeal shall be dismissed as abandoned, and notice, thereof shall be sent to the appellant or the appellant’s attorney at the last address shown on the court’s record. La. Rules of Court Rule 20(A).

This Court reinstated the initial appeal on April 1, 1999. Prior to thereto, Mr. Pettigrew had taken no steps in the legal process to preserve his appeal. The 1¿abandonment of the first appeal by Mr. Pettigrew, and the subsequent finding by this Court that the underlying lawsuit was indeed abandoned, was a final act notwithstanding this Court’s reinstatement of his appeal. Any steps taken in prosecution of a lawsuit after abandonment has accrued are ineffective. Washington v. City of Baton Rouge, 99-1987 (La.App. 1 Cir 2/18/00), 752 So.2d 367. Further, this Court reasoned in Pichon v. Reynolds, 02-0044 (La.App. 4 Cir. 7/31/02), 828 So.2d 599, that “in keeping with the self-operative effect of the abandonment provision, our Supreme Court has said that formal action ‘before the court and on the record’ is necessary for a ‘step’ in the prosecution”. Citing Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). In Pichón, the plaintiff argued that the trial court erred in granting the judgment of dismissal based on abandonment. The plaintiff filed a motion to set for trial on the merits on June 16, 1998. Three years later he filed a motion to set a status conference on July 11, 2001. This Court concluded that “clearly, each of these items was filed after the action was considered abandoned by operation of law. Therefore, even if we accepted that these items constituted steps in the prosecution, the jurisprudence indicates that any steps taken after abandonment has accrued are ineffective. See Semel v. Green, 252 La. 386, 211 So.2d 300 (1968); Family Federal Savings & Loan Association of Shreveport v. Huckaby, 32-456 (La.App. 2 Cir. 10/27/99), 743 So.2d 874. Therefore, Mr. Pettigrew’s subsequent filing of his brief on August 23, 2002, did not constitute a formal step in the prosecution. Once Mr. Pettigrew motioned this Court to reinstate his appeal, he still did nothing to maintain preservation of the appeal that warranted reinstating.

Further, Mr. Pettigrew argues that he was awaiting accounting and partition in district court in order to proceed with his appeal. Yet, that too was abandoned under La.Code Civ. Pro. art. 561(A), “... [a]n action is abandoned when the parties Isfail to take any step in its prosecution of defense in the trial court for a period of three years ...”

Mr. Pettigrew argues that the first judgment by the district court was partial and therefore he could not appeal until an accounting and partition made it final. However, Mr. Pettigrew also abandoned the case in the district court as well as his appeal. Further, the issues in the first judgment in which he attempts to appeal are now moot.

[An] issue is “moot” when judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic. Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 720 So.2d 1186, (La.10/20/98). In order to avoid deciding abstract, hypothetical or moot questions, courts require cases submitted for adjudication to be justiciable, ripe for decision, and not brought prematurely. Id. A decision from this Court on the merits of this case would be of no significance since the remaining action was dismissed by the district court.

The Bells argue that this Court erred in rescinding our dismissal order in the first appeal. Although we above establish that the abandonment was final notwithstanding the reinstatement, the Bells’ argument is improperly before this Court because they failed to file an Answer to Mr. Pettigrew’s appeal.

Decree

For the reasons stated herein, this appeal is dismissed as abandoned.

APPEAL DISMISSED AS ABANDONED.

      . The original petition and subsequent filed documents never state Mrs. Baehr’s first name.

      . The defendants/appellants in this case are referred to as one party only, that being Mr. Pettigrew.

      . Case# 1995-CA-0114.


author: I,JOAN BERNARD ARMSTRONG, Judge.

text:
    STATE of Louisiana v. Reginald WILLIAMS.
    No. 2002-KA-0260.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.
    Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plain-tifflAppellee.
    Patrick J. Costa, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge JAMES F. McKAY III).
   I,JOAN BERNARD ARMSTRONG, Judge.

STATEMENT OF CASE

The defendant, Reginald Williams, was charged by bill of information on November 6, 2000, with second degree kidnapping in violation La. R.S. 14:44.1. The defendant pled not guilty at arraignment. A preliminary hearing was held on December 18, 2000, and the trial court found probable cause. The State also filed a notice of intent to introduce at trial evidence of other crimes by the defendant. A Prieur hearing on the State’s motion was conducted on January 22, 2001. On March 9, 20001, the trial court granted the State’s motion to use evidence of other crimes.

On April 24, 2001, the defendant selected trial by judge. The State called Officer Steven Phillips and Lilly Riley. The defense moved for a directed verdict, which the trial court denied. The court found the defendant guilty as charged.

The defendant filed a motion for new trial, and on June 6, 2001, the trial court denied the motion. The defendant waived all legal delays, and the trial court sentenced the defendant to serve five years in the custody of the department of corrections with the first two years to be served without benefit of probation, parole or suspension of sentence. The State filed a multiple offender bill of | {¡information, alleging the defendant to be a second felony offender. On November 9, 2001, the trial court found the defendant to be a second felony offender and sentenced the defendant to twenty years at hard labor in the custody of the Department of Corrections with the first two years to be served without benefit of probation, parole or suspension of sentence.

The defendant filed a motion to reconsider sentence. On November 20, 2001, after hearing argument, the trial court denied the motion. The defendant filed a motion for appeal, which was granted.

STATEMENT OF FACT

The record reflects that on August 15, 2000, Lilly Riley was at her mother’s house when she called her husband, the defendant, to come pick her up. Williams refused, telling her that he was not in a good mood. Later, Riley went outside and was surprised to see her husband in the front yard. Initially, Riley was reluctant to leave with Williams. Apparently the two had experienced problems in their marriage, and before leaving, Williams promised the victim’s mother that he was not going to hurt her daughter, and that they were going to work it out.

The two stopped briefly at the store before going home. Riley testified that her husband did not speak during the drive. Once inside the house, Williams told Riley “You know, I’m gonna knock your ass off, huh. You better not try to run.” Riley chose otherwise, and ran down the steps and outside with Williams chasing behind her. Riley testified that Williams grabbed a shovel which was leaning against the wall of the house and blocked her path. He told her to get back in the house saying, “I knock your ass over with this shovel if you try to run. You gonna get back in that house.” Riley stated that she went back inside so he wouldn’t hit her.

laOnce inside, Williams latched and chained the door. Riley grabbed at the door handle with both hands. Riley testified that Williams pried her hands free and threw her onto the floor and started beating her. Riley lay on her stomach with her face down, and Williams sat on her back and beat her on the side of her head. During the struggle, Riley broke the glass table in the living room with her foot. As Williams was beating her he said, “I’m going to kill you. I’m going to beat you for two days and then they gonna find you stinking after that.”

Riley was able to get up after Williams became tired. She went up the stairs. After she noticed that the phone had been removed from the socket, she jumped out the window. Riley stated that she jumped because she believed that he was going to “finish beating her, finish her off.” Riley landed on a bush. The fall broke her foot in three places. Her arm and back were also injured. She also suffered a puncture wound on her leg.

Riley testified that once outside, she called to some children to call the police. Williams came outside, pushed her down and taunted her saying “ok you’re trying to run huh.” Riley pleaded with him to get away from her. A man came from across the street and helped her. Williams drove off in his car. After the police arrived, Riley was taken to Charity Hospital and treated. Her foot was put in a cast and she was released the next day.

The victim testified that the defendant had threatened her with knives a lot of times. She also related a previous incident involving her husband in which he had driven her to an isolated area of the city after the two had an argument. Williams told her that he was taking her where people take women and kill them. Riley testified that she ran from the car, but got back in the ear after the defendant ^removed the tire iron from the trunk, because in his state of mind she was afraid he would hit her.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends that the evidence was insufficient to support his conviction for second degree kidnapping as defined by La. R.S. 14:44.1. The standard of review as to the sufficiency of the evidence is whether, viewing the evidence in a fight most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt proof of each | ^element of the crime. 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).

In the instant case, the bill of information alleged that the defendant, committed second degree kidnapping by the forcible seizing and carrying the victim from one place to another, while the defendant was armed or reasonably led the victim to believe that he was armed with a dangerous weapon. La. R.S. 14:44.1 A(5), B(l).

The defendant asserts that the evidence was insufficient to establish the forcible seizing and carrying from one place to another element of the crime. The Louisiana Supreme Court has held that the term “from one place to another” “requires evidence that the offender relocated the victim from one physical setting or environment to another.” State v. Davillier, 99-1204, p. 1 (La.12/10/99), 752 So.2d 149,150. In Davillier, the “defendant dragged the victim by the hair from one side of her truck to the other and forced her to enter the cab, from where she ran and escaped.” Id. The court found the facts insufficient to establish the crime as the defendant “had not yet moved her from the immediate physical environment in which his initial physical assault had taken place.” Id.

Citing Davillier, in State v. Borne, 2000-3344; p. 23 (La.4/3/02), 813 So.2d 377, 393, the court likewise found that forcibly moving the victim from one room to another within the same structure was insufficient to establish that a forcible seizing and carrying “from one place to another” had occurred. See also State v. Arnold, 548 So.2d 920, 926 (La.1989) (cited in Bowie) (“[a] robber’s moving a victim at knife point from one room to another for the purpose of opening a safe arguably should not be punished as a kidnapping.”).

Uln the present circumstance, the evidence established that the defendant prevented the victim from leaving the residence by wielding the shovel and demanding that she go back inside. It could be argued that the victim’s immediate physical environment changed when she was forced to reenter the home. Nevertheless, the defendant’s moving of the victim from outside the door to inside the door would not meet the “from one place to another” element of second degree kidnapping. Bowie, supra.

In the instant case, a review of the transcript reveals however that the evidence presented at trial would have been sufficient to support a conviction for second degree kidnapping under a different subsection of La. R.S. 14:44.1, namely subsection A(3) or A(5) with subsection B(3). Read together with the common language of La. R.S. 14:44.1, these subsections provide:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused;
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(3) The imprisoning or forcible secreting of any person.

Further, the evidence showed the defendant forcibly detained the victim inside the residence. During the encounter when she tried to escape he threatened her with a shovel, forcing her to go back inside the residence. In addition, the ^victim testified he beat her while they were inside the residence. As such, the evidence was sufficient to support a conviction under either subsection A(3) or A(5) and subsection B(3).

The problem is the bill of information did not charge the defendant with committing the crime under subsection B(3); the bill alleged the commission of second degree kidnapping under subsection B(1). The question we must consider is whether the defendant’s conviction can be upheld based upon subsection B(3) even though the subsection alleged in the bill of information was subsection B(1). In two cases courts have held that a defendant’s conviction for first degree murder need not be reversed where the evidence was insufficient to support a conviction under one subsection of La. R.S. 14:30 but the evidence was sufficient to convict the defendant under another subsection of that statute. See State v. Wright, 2001-0322 (La.12/4/02), 834 So.2d 974, State v. Ruffin, 572 So.2d 232 (La.App. 1 Cir.1990). However, it is unclear from either of these cases whether the State alleged both subsections in the indictment, used the short form indictment which did not specify with which subsection the defendant was being charged, or as here alleged only one subsection for which the State did not present sufficient evidence.

A somewhat similar situation arose in State v. Schrader, 518 So.2d 1024 (La.1988). The defendant was charged with “first degree” murder, but because the crime occurred under a former statute which did not differentiate between “first” and “second” degree murder, the State later amended the indictment to charge him only with “murder.” At the time of the offense, “murder” was committed either (1) as a homicide with specific intent, or (2) as a homicide |soccurring during the perpetration of an enumerated felony. The State’s answers to the defendant’s bill of particulars alleged that the defendant committed the murder while engaged in the perpetration of aggravated arson, but it also alleged it was proceeding under subsection (1), the specific intent subsection. On the day of trial, the State apparently spotted the discrepancy and moved to amend its answers to reflect that it was proceeding under subsection (2) to “clarify” the record. Defense counsel objected, stating he had been expecting the State to have to prove intent to kill. The trial court allowed the amendment; the case proceeded to trial; and the defendant was convicted of manslaughter. On appeal, he alleged the trial court erred by allowing the State to amend the bill of particulars on the day of trial. The Court rejected this argument, stating:

The defense was clearly entitled to know under which subsection of R.S. 14:30 the state was proceeding. State v. Huizar, 414 So.2d 741 (La.1982); State v. Rogers, 375 So.2d 1304 (La.1979); State v. Johnson, 365 So.2d 1267 (La.1978). Nevertheless, as set forth in State v. Unzueta, 337 So.2d 1102, 1103-04 (La.1976), “[wjhile the bill of particulars is intended to assure the defendant a full understanding of the charge in order that he might, in fairness, properly defend himself, it was never intended as a trap for the unwary district attorney. It is for this reason that Article 485 of the Code of Criminal Procedure permits the district attorney to cure a defect in a bill of particulars.” The First Circuit relied on Unzueta in denying defendant relief on this point. See, Schrader, 506 So.2d at 871. Of course, Art. 485 addresses only those defects which might give rise to a motion to quash, not erroneous answers which may mislead counsel and impair preparation of the defense. In this case, however, the state had clearly informed counsel of how it intended to prove its case. The question of intent was a matter of inference arising from the circumstances of the case, if the state chose to make the argument at trial. R.S. 15:445. The apparent discrepancy in the state’s answers should have alerted counsel that the prosecution had simply referred to the wrong subsection of the statute. In any event, the defense efforts to subpoena its own arson expert for trial 19show clearly that counsel knew exactly where the issues would be joined at trial and that the state’s answers as a whole fairly informed the defendant of the nature of the charge against him.

Schrader, at pp. 1029-1030.

In the instant case, the bill of information listed the wrong subsection of the statute under which the defendant was being tried. The State’s answer to the bill of particulars did not specify what subsection of the statute under which it was proceeding; it merely listed: “14:44.1.” The answer also referred to an attached incident report, but that report is not in the record before this court, and it is unclear how much information was contained in the report. However, defense counsel was present at the suppression hearing held five months prior to trial where the victim’s testimony included her abortive attempt to escape, the defendant’s threats with the shovel, and his beating of her once he got her back inside the residence, It is also apparent that defense counsel had prepared his case based upon the assumption that the defendant had been charged under subsection B(3), not B(l) as alleged in the bill of information. At the conclusion of the testimony in the case, defense counsel moved for a directed verdict, stating:

When I came here this morning I thought that they were combining A3 with B3 or A3 and 5 with B3.... But that’s not what the Bill of Information says. We read the Bill of Information, they’re combining A3 and 5 with B1.... Now I thought they were going to say the imprisoning [or] forcibly secreting of any person.... But now that’s not what the Bill of Information calls for. It calls for the forcible seizing and carrying of any person from one place to another.... And they have not proved that element from this testimony. And that’s what’s in this Bill of Information to surprise [sic], I’ll tell you.

| mObviously, defense counsel was under no obligation at the time he finally looked at the bill of information (which apparently occurred sometime on the day of trial) to point out to the State that it had alleged a subsection for which it probably could not provide sufficient evidence. However, this is not a case where counsel had been misled as to what evidence the State was planning to present and was unprepared to meet the allegations in the bill of information. This case is not as clear-cut as that in Schrader, where the bill of particulars listed both the subsection describing the aggravating element actually presented at trial as well as the wrong subsection.

We find that the holdings of Wright, Ruffin, and Schrader are similar enough to encompass the situation in this case.

Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues that La. R.S. 14:44.1(B)(1) is unconstitutionally vague.

Statutes are presumed valid and their constitutionality should be upheld whenever possible. State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Louisiana criminal statutes must be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.R.S. 14:3. However, vague statutes must fall because they violate the due process clauses of the United States Constitution, amend. XIV, and the Louisiana Constitution, art. I, §§ 2 and 13. A penal statute is unconstitutionally vague if it does not give persons of reasonable intelligence adequate notice that certain conduct is proscribed and punishable by law or if it does not provide sufficient standards by which guilt or innocence may be determined. Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Palmer v. City of Euclid, 402 U.S. 544, 545, 91 S.Ct. 1563, 1564, 29 L.Ed.2d 98 (1971); State v. Azar, 539 So.2d 1222, 1224 (La.), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989); State v. Pierre, 500 So.2d 382, 384 (La.1987).

State v. Sandifer, 95-2226, pp. 8-9 (La.9/5/96), 679 So.2d 1324, 1331.

The First Circuit Court of Appeal considered the same issue in State v. Steward, 95-1693, p. 13 (La.App. 1 Cir. 9/27/96), 681 So.2d 1007, 1014 and stated:

We find no ambiguity in the second degree kidnapping statute. The language of the statute is clear and readily understandable, gives notice of what conduct is proscribed and provides adequate standards for determining the guilt or innocence of the accused. Any reasonable person can understand what is meant by forcibly seizing and carrying a person from one place to another.

This assignment is without merit.

For the foregoing reason the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The statute provides:
      A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
      (1) Used as a shield or hostage;
      (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
      (3) Physically injured or sexually abused;
      (4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
      (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
      B. For purposes of this Section, kidnapping is:
      (1) The forcible seizing and carrying of any person from one place to another; or
      (2) The enticing or persuading of any person to go from one place to another; or
      (3) The imprisoning or forcible secreting of any person.
      C.Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.
      The provisions of this statute apply when any occurrence mentioned in Subsection (B) combines with any occurrence enumerated in Subsection (A).

      . The crime occurred in 1970, prior to the 1973 delineation between "first” and "second” degree murder.


author: 11 JAMES F. McKAY III, Judge.

text:
    Terri Ann Jastram, Wife of/and Bart LAMBERT, Individually and on Behalf of their Minor Child, Jeffrey James v. ASSOCIATED CATHOLIC CHARITIES OF NEW ORLEANS, INC., and ABC Insurance Company, and State of Louisiana, Department of Vital Records.
    No. 2002-CA-0817.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.

      Leonard M. Berins, Gerald Wasserman, Bach & Wasserman, Metairie, LA, for Plaintiffs/Appellants.
    J. Don Kelly, Jr., C. William Bradley, Jr., Richard E. Gruner, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   11 JAMES F. McKAY III, Judge.

The plaintiffs, Terri Ann Jastram, wife of/and Bart Lambert, individually and on behalf of their minor child, Jeffrey James Lambert (the Lamberts), appeal the trial court’s maintaining of the defendant’s, Associated Catholic Charities of New Orleans, Inc.’s (ACC), exception of prescription. We affirm.

Jeffrey Lambert was born on September 9, 1982 and was placed with ACC for adoption by his birth mother. Jeffrey was placed with the Lamberts on September 14,1982 and was formally adopted by them on August 16,1983.

For the first three years of his life, Jeffrey was small compared to other children his age. He was also a late talker and a late walker. In 1985, while Jeffrey was attending the Nazarene daycare center, a teacher informed Mrs. Lambert that she felt Jeffrey appeared slow compared to other children his age. This comment caused Mrs. Lambert such concern that she brought Jeffrey to see his pediatrician, Dr. Gerald Mayer, not once but twice. Although Dr. Mayer thought Jeffrey was normal, he recommended that Mrs. Lambert bring Jeffrey to Dr. Caroline Duncan, a pediatric neurologist at LSU. Dr. Duncan told Mrs. | ¡.Lambert that Jeffrey showed delays in his development and could have learning disabilities. Dr. Duncan also suggested that Mrs. Lambert contact the St. Tammany Parish School Board to have Jeffrey tested for placement in a special school for slow learning children.

The St. Tammany Parish School, Board tested Jeffrey and he was found to have speech delays; he was enrolled in a special preschool program where he underwent speech therapy for approximately three years. When Jeffrey was six years old, he began kindergarten at St. Ann School. Jeffrey had behavioral problems at St. Ann and his parents removed him from St. Ann at the half-year point. Jeffrey was then enrolled at Atonement Lutheran School to finish the kindergarten school year. At the end of the school year, Atonement school administrators told Mrs. Lambert that Jeffrey was very immature as compared to other children his age and recommended that Jeffrey not advance to first grade but be enrolled in a transitional grade in between kindergarten and first grade. Jeffrey was then enrolled in the transitional grade at Abney Elementary School.

While at Abney, Jeffrey continued to have developmental and behavioral problems; he was also placed on Ritalin. In December of 1989, Mrs. Lambert had Jeffrey evaluated for growth hormone injections. She also took Jeffrey back to see Dr. Duncan. During this visit, Dr. Duncan informed Mrs. Lambert that Jeffrey had a small head circumference and still lagged in his development; these comments caused Mrs. Lambert to contact ACC seeking background information on Jeffrey’s Rbirth parents. Dr. Duncan also referred Jeffrey to Dr. Jayashree Rao, a pediatric endocrinologist at Children’s Hospital. Dr. Rao examined Jeffrey in March of 1990 and told Mrs. Lambert that Jeffrey’s height and weight were lagging behind what was considered normal for a child of his age. Dr. Rao also told Mrs. Lambert that Jeffrey’s problems were related to a prenatal event. On October 23, 1990, Mrs. Lambert brought Jeffrey back to Dr. Duncan. After this visit, Dr. Duncan advised Mrs. Lambert that in her opinion Jeffrey had fetal alcohol syndrome with impaired attention, impaired growth and microcephaly.

On July 11, 1991, the Lamberts filed suit in these proceedings alleging that ACC had negligently handled the adoption of their son, Jeffrey, by failing to diligently investigate the background and health history of the natural parents. The Lam-berts also asserted that ACC had misrepresented and/or failed to disclose to them certain pertinent facts which, if known to them would have caused them not to go through with the adoption. A first supplemental and amending petition was filed on May 10, 1993 and a second supplemental and amending petition was filed on January 17, 1995. ACC filed exceptions of no cause of action and prescription on September 17, 2001. The exceptions were heard on October 8 and 10, 2001. On December 7, 2001, the trial court rendered its judgment ruling only on the exception of prescription; the trial court maintained that exception and dismissed the Lam-berts’ suit. It is from this judgment that they now appeal.

On appeal, the plaintiffs raise the following assignments of error: 1) the trial court erred in determining that, as a matter of law, the Lamberts had information |4more than one year prior to filing suit sufficient to place them on notice of a possible cause of action against ACC; and 2) the trial court erred in determining that the Lam-berts’ suit against ACC was not timely filed and in dismissing the Lamberts’ suit on the grounds of prescription.

As a general rule prescription begins to run when a plaintiff has actual or constructive notice of the alleged tortious act. Mistich v. Cordis Mfg. Co., 607 So.2d 955, 956 (La.App. 4 Cir.1992). The doctrine of contra non valentem agree non nulla currit praescriptio may suspend the running of prescription during the period in which the cause of action was not known by or reasonably knowable by the plaintiff. Harlan v. Roberts, 565 So.2d 482 (La.App. 2 Cir.1990). In Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987), the Louisiana Supreme Court held that prescription begins to run, not at the earliest possible indication that the plaintiff may have suffered some wrong, but rather when the plaintiff has a reasonable basis to pursue a claim against a specific defendant.

In the instant case, although it was not until October 23, 1990 that Jeffrey was formally diagnosed with fetal alcohol syndrome, there were signs that he was not normal as early as 1985. From that time on, Jeffrey had behavioral problems in school, was placed in special education classes, was seen by numerous physicians, and was prescribed a number of special medications and hormones. In fact in March of 1990 when Dr. Rao told Mrs. Lambert that Jeffrey had likely suffered a prenatal injury, she was given actual knowledge by a medical professional that a Impermanent impairment existed. This knowledge was so important in Mrs. Lambert’s mind that it caused her to seek out additional information from ACC.

This Court has held that the knowledge of permanent impairment, without a formal diagnosis of fetal alcohol syndrome, is enough ' to place an adoptive parent on notice and thus trigger the running of prescription. April v. Associated Catholic Charities of New Orleans, 629 So.2d 1295 (La.App. 4 Cir.1993).. Accordingly, we find no error in the trial court’s maintaining the defendant’s exception of prescription.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . These behavioral problems led Mrs. Lambert to have Jeffrey evaluated by a child psychologist, Dr. Fontenelle.


author: PER CURIAM.

text:
    Joyce Taylor THOMAS v. Turner C. THOMAS.
    No. 2002-CA-1667.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.
    Theon A. Wilson, New Orleans, LA, for PlaintiffiAppellee.
    Charles E. Cotton, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   PER CURIAM.

The district court did not err by summarily dismissing the subsequent child support Rule to Show Cause filed by the Appellant, Mr. Turner C. Thomas, without an evidentiary hearing because the filing was of a frivolous and repetitive motion. Absent an allegation of a change of circumstances pursuant to La. C.C. art. 142, the original child support ruling stands.

The contempt issue was the only viable issue remaining to be argued on appeal. However, Mr. Thomas has abandoned the appeal by failing to brief the issue on appeal. Rule 2-12.4 of the Uniform Rules, Courts of Appeal states in pertinent part that “... [a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.... ” Therefore, this appeal is dismissed.

Finally, the request for sanctions argued in brief by the Appellee, Ms. Joyce T. Taylor, is dismissed for failure to file an Answer to the appeal. See La. C.C.P. art. 2133.

DISMISSED.