author: 11 GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Errick WHITE, Appellant.
    No. 38,501-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Laura M. Pavy, Paula Corley Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   11 GASKINS, J.

The defendant, Errick White, was originally charged with simple burglary of an inhabited dwelling and conspiracy to commit simple burglary of an inhabited dwelling. Subsequently, the state filed an amended bill of information charging him with simple burglary and conspiracy to commit simple burglary. Following a jury trial, the defendant was acquitted on the former charge and convicted on the latter. His motion for postverdict judgment of acquittal was denied. The trial court sentenced him to four and a half years at hard labor, with credit for time served, for conspiracy to commit simple burglary. The court ordered that the sentence run concurrently with his sentence on an unrelated drug offense. The defendant’s timely motion to reconsider was denied. We affirm.

FACTS

On November 18, 2002, the owner of a house on Blanche Street in Bastrop discovered that a rear door had been kicked in. Missing from the house were a cellular phone, a wall phone, a pair of white tennis shoes, a necklace, a ring, and about $90 in cash.

One of the homeowner’s daughters called the number of the stolen cell phone. It was answered by Antonio Peoples. He agreed to meet her; however, the police arrived instead. Peoples originally gave the officers a false number for the cell phone in his possession. However, when an officer dialed the number of the stolen phone, the cell phone he was holding began to ring. Peoples told the police that he bought the phone from the defendant and his brother, Justin Williams. According to Peoples, he also took the cell | {.phone in partial payment of a debt owed to him by the defendant. He denied knowing that the cell phone was stolen.

The day after the burglary, the police questioned Antonio “Jake” Minnieweather and took his statement. He admitted his participation in the burglary and stated that the defendant and Williams were also involved. Williams was located and questioned; he denied knowledge of the burglary. The police also spoke to the defendant, who admitted being the lookout. According to the defendant, Minnieweather was the one who kicked in the door.

A jury trial was held in August 2003. Immediately prior to trial, the trial court denied the defendant’s motion to suppress his statement to the police. The state presented the testimony of two police officers, Peoples, and Minnieweather. According to his testimony, Minnieweather admitted that he had pled guilty to simple burglary and received five years of probation. He initially denied that anyone was with him or that he knew anything about the cell phone. After he tried to evade the prosecutor’s questions about the burglary, the court informed him that he no longer had Fifth Amendment rights as to this offense. When Minnieweather asked if he could be charged for not telling what happened, the court removed the jury and informed the witness that false statements could lead to a perjury charge. Thereafter, Minnieweather continued his testimony in front of the jury and conceded that his police statement was truthful. He identified the defendant as one of the persons with him when they broke into the house on Blanche Street. He testified that a cell phone was removed from the house |3by Williams and that the defendant carried a small bag that they took from the residence. After they left, they went to a friend’s house on Roberts Street. The defendant called Peoples, who then purchased the cell phone.

Peoples testified that he got the cell phone from the defendant and Williams. Additionally, he was offered a pair of white tennis shoes; he declined to buy them.

The defense presented the testimony of the defendant’s brother. Williams indicated that he had entered a guilty plea to another charge and that he made restitution in relation to the burglary. According to him, he and Minnieweather entered the house while the defendant waited outside. Before entering, they told the defendant that they were going to “handle some business,” a street slang expression that meant that one was going to do “something out [of] the ordinary.” He denied knowing whether the defendant saw Minnieweather kick in the door. While he also denied having an agreement for the defendant to warn them, he said he was sure the defendant would have let them know if the police arrived. Williams further concéded that the cell phone was sold to Peoples in partial settlement of a debt the defendant owed to Peoples.

The jury acquitted the defendant on the charge of simple burglary; however, it convicted him of conspiracy to commit simple burglary.

At sentencing, the trial court noted that the defendant had a 2001 conviction for possession of cocaine for which he received a suspended sentence of four and a half years and three years of supervised probation. His probation was revoked due to the present offense. The court chose to 14sentence the defendant to four and a half years at hard labor, to be served concurrently with the cocaine possession sentence.

The defendant appeals.

SUFFICIENCY OF EVIDENCE

In this assignment of error, the defendant argues that the evidence was insufficient to convict him because Min-nieweather was impeached after he initially lied on the stand. Also, the defense contends that there was no actionable conspiracy because there was no explicit stated agreement to commit a burglary, i.e., “let’s agree to commit a burglary.”

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. James, 38,353 (La.App.2d Cir.5/12/04), 873 So.2d 858. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Cummings, supra; State v. James, supra.

To convict an accused of simple burglary, the prosecution must prove there was an unauthorized entry with the intent to commit a theft and that the defendant was a person concerned in the commission of the crime. La. R.S. 14:62; State v. Bullard, 29,662 (La.App.2d Cir.9/24/97), 700 So.2d 1051.

|fiTo convict of conspiracy, the prosecution must prove an agreement or combination of two or more persons for the specific purpose of committing a crime and an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26; State v. Valrie, 1999-226 (La.App. 3d Cir.10/13/99), 749 So.2d 11, writ denied, 1999-3236 (La.4/20/00), 760 So.2d 343.

The trial testimony, viewed in the light most favorable to the prosecution, supports the defendant’s conviction beyond a reasonable doubt. The police investigated a break-in of a residence on Blanche Street in Bastrop, and the owner related that a cellular phone had been taken. Based upon information received from the victim, the police encountered Peoples and obtained information leading them to the defendant.

The police interviewed the defendant. After being advised of his rights, the defendant admitted his “part in it was to be the look out.” The defendant identified his accomplices as Minnieweather and Williams. He also confessed that he had gone to a residence on Roberts Street after the burglary and had sold the stolen cell phone to Peoples.

Minnieweather admitted pleading guilty to this burglary and said the defendant “didn’t have nothing to do with it.” However, he then contradicted himself by saying he and Justin Williams and the defendant entered the residence. Min-nieweather agreed he had given conflicting testimony and there was no way the jury could tell when he was lying and when he was telling the truth.

Is As previously noted, Williams testified that he and Minnieweather had entered the residence after they told the defendant they were going to “handle some business,” which meant they were getting ready to do something out of the ordinary. Williams said there was no explicit agreement, but he knew that if the police came the defendant would “let us know something.”

The testimony, at the very least, supports a finding that the defendant was the lookout. Based on the testimony of Williams and on defendant’s admission to the police, the brothers had an understanding between themselves that the defendant would act as the lookout while the house was burglarized. Therefore, there was an agreement or combination even if it wasn’t expressly stated. The jurisprudence does not require there to be an express statement of agreement. The circumstances show that the defendant actively, and thus intentionally, desired the proscribed result to follow. Thereafter, there was an act in furtherance, to-wit: the house was broken into and property belonging to the resident was stolen. The circumstantial evidence of the defendant helping to sell the stolen cell phone to Peoples in partial payment of his debt tends to corroborate his involvement in the crime. This body of evidence proves the offense of conspiracy to commit simple burglary, even without relying on Min-nieweather’s testimony. This clearly was a compromise verdict, but juries are entitled to render lesser verdicts whenever they could have convicted on the greater charge. State v. Mitchell, 35,970 (La. App.2d Cir.5/8/02), 818 So.2d 807.

This assignment of error lacks merit.

^EXCESSIVE SENTENCE

For the offense of conspiracy to commit simple burglary, the defendant faced up to six years at hard labor. La. R.S. 14:26 and 14:62. Although the defendant assigns as error that his sentence is excessive, the brief does not state any specific reason to support that conclusion. The defense does not challenge the court’s articulation of reasons for sentence.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280.

Prior to imposing sentence, the trial court' reviewed a presentence investigation (PSI) report. The defendant had a prior conviction for possession of cocaine. He agreed to the revocation of his probation from |sthat conviction and the court said it would run the sentences concurrently with credit for time served. Observing that the defendant had been on probation when he committed the instant offense, the trial court concluded that he was in need of institutional treatment. Also, the defendant had pending charges of possession of marijuana and resisting during booking. The court believed that the invasion of a home was a serious offense, but it gave consideration to the mitigating factor that the defendant had a young child.

The sentence imposed upon this 20-year-old second felony offender is within the range available to the court. It is not the maximum or close to it. The court considered aggravating and mitigating factors. On this record, there is no clear showing of an abuse of discretion.

This assignment of error is meritless.

ERRORS PATENT

In his final assignment, the defendant requested that this court review the record for errors patent. Since such a review is made automatically in all criminal cases, this request is unnecessary. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. We note no errors patent.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: I .BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Allen Dewayne TAYLOR, Appellant.
    No. 38,574-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Kammi R. Whatley, Laura M. Pavy, for Appellant.
    Paul J. Carmouche, District Attorney, Sean Miller, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   I .BROWN, C.J.

Defendant, Allen DeWayne Taylor, was convicted of DWI, fourth offense, after a bench trial. The court denied timely-filed motions for new trial and post-verdict judgment of acquittal, then imposed a sentence of 15 years at hard labor, with all but 60 days without benefit suspended, as required by the applicable version of La. R.S. 14:98. Defendant was also placed on supervised probation for four years. A timely-filed motion for reconsideration was denied. For the reasons set forth below, we affirm.

Discussion

Sufficiency of the Evidence

On appeal, defendant argues that the evidence was “exceedingly weak,” consisting only of the subjective observations of the arresting officer and the results of the horizontal gaze nystagmus (“HGN”) test.

The trial transcript shows that when testimony of the HGN results and the officer’s subjective opinion of defendant’s intoxication were admitted into evidence, there was no contemporaneous objection. Furthermore, the motions for new trial and post-verdict judgment of acquittal are silent on the argument raised by defendant for the first time on appeal, that the testimony of the arresting officer did not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993).

An irregularity or error cannot be asserted after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La. App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La|App.2 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (La.1990). Furthermore, the holdings of Daubert, supra, and State v. Foret, supra, are not applicable to a challenge to the testimony of a lay witness in a DWI case. State v. Bowen, 01-594 (La.App. 5th Cir.12/26/01), 806 So.2d 749, writ denied, 02-0264 (La.10/25/02), 827 So.2d 1170. Nonetheless, we will review the evidence for sufficiency.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bell, 37,675 (La.App.2d Cir.09/26/03), 855 So.2d 946. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir. 1992).

To convict an accused of driving while intoxicated, the prosecution need only prove that defendant was operating a vehicle and that he was under the influence of alcohol or drugs. State v. Holladay, 38,354 (La.App.2d Cir.05/12/04), 873 So.2d 855; State v. Withers, 36,001 (La. App.2d Cir.06/12/02), 821 So.2d 556; State v. Minnifield, 31,527 (La.App.2d Cir.01/20/99), 727 So.2d 1207, writ denied, 99-0516 (La.06/18/99), 745 So.2d 19. Some behavioral manifestations, independent of any scientific test, |3are sufficient to support a charge of driving while intoxicated. State v. Holladay, supra; State v. McDonald, 33,013 (La.App.2d Cir.03/01/00), 754 So.2d 382. The behavioral manifestations that are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Holladay, supra; State v. Self, 36,887 (La.App.2d Cir.04/09/03), 842 So.2d 1240. It is not necessary that a conviction for DWI be based upon a blood or breath alcohol test, and the observations of the arresting officer may be sufficient to establish a defendant’s guilt. Id. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Spence, 418 So.2d 583 (La.1982); State v. Holladay, supra; State v. Blackburn, 37,-918 (La.App.2d Cir.01/28/04), 865 So.2d 912. The ultimate decision of whether the defendant was intoxicated rests with the finder of fact. State v. Allen, supra.

Horizontal Gaze Nystagmus, or HGN, refers to a lateral or horizontal jerking when the eye gazes to the side. In the impaired driving context, alcohol consumption hinders the ability of the brain to correctly control eye muscles, therefore causing the jerk or bounce associated with HGN. State v. Armstrong, 561 So.2d 883 (La.App. 2d Cir.1990), writ denied, 568 So.2d 1077 (La.1990). State v. Garris, 603 So.2d 277 (La.App. 2d Cir.1992), writ de nied, 607 So.2d 564 (La.1992); State v. Armstrong, supra, citing Ludington, Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60 A.L.R.4th 1129 (1988).

The HGN test allows the officer to observe the eyes of the subject to see whether nystagmus was present at maximum deviation, whether the Lsubject can smoothly pursue while tracking the pen with his eyes, and to see at what point the onset of nystagmus occurred. State v. Garris, supra. As held by this court in State v. Armstrong, supra, results of the HGN test are admissible as evidence of intoxication as long as a proper foundation has been laid. See also State v. Blackburn, supra; State v. Breitung, 623 So.2d 23 (La.App. 1st Cir.1993), writ denied, 626 So.2d 1168 (La.1993); State v. Regan, 601 So.2d 5 (La.App. 3d Cir.1992), writ denied, 610 So.2d 815 (La.1993). This foundation is laid when a showing is made that the officer who administered the test was trained in the procedure, that the officer was certified in its administration, and that the procedure was properly administered. Id.

The testimony introduced at the instant trial supports the conviction beyond a reasonable doubt. The defense stipulated that defendant had the requisite three pri- or DWI convictions. Deputy Leonard Scoggins testified that at 3:20 a.m. on January 12, 2003, he clocked defendant’s vehicle at 75 m.p.h. in a 55 m.p.h. zone. Dy. Scoggins pulled the vehicle over and noted that defendant had trouble walking when he got out of his vehicle. The deputy noted an odor of alcoholic beverages on defendant’s breath and that his speech was slurred. Defendant fumbled with his wallet and took several minutes to locate his driver’s license and insurance information. Defendant did not claim to have injuries or medical conditions which could have impaired his driving.

Deputy Scoggins testified that he has been trained in the detection of intoxicated drivers. He produced copies of documents indicating his | .^certification in standardized field sobriety administration, which includes field tests such as the HGN, as well as administration of the Intoxilizer 5000. Dy. Scoggins noted that in the standardized field sobriety courses he attended, the responses of intoxicated persons were compared with those who had not imbibed. He also stated that he has encountered many drunk drivers in his employment with the sheriffs office.

Dy. Scoggins performed the HGN test and observed that defendant had lack of smooth pursuit and distinct nystagmus at maximum deviation in both eyes. He also had distinct onset of nystagmus prior to 45 degrees in both eyes. Defendant’s score was six out of six possible clues or indicators for intoxication. The deputy noted that no other field tests were performed because defendant was unsteady on his feet. It was Dy. Scoggins’ opinion that defendant was impaired.

Defendant was taken to the police station and advised of his rights. After an unsuccessful attempt to take the intoxilyzer test, defendant refused to blow. He likewise refused any other field sobriety test.

The above testimony establishes that defendant was driving and that he was impaired by alcohol at the time. His attorney conceded that defendant had three prior DWI convictions. Viewing the evidence in the light most favorable to upholding the trier of fact’s verdict, we find it to be sufficient to establish the elements of DWI) fourth offense, beyond a reasonable doubt.

We reviewed the record for errors patent and found none.

| ñConclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


author: I,STEWART, J.

text:
    STATE of Louisiana, Appellee v. Noe STEPHAN, Appellant.
    No. 38,612-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    G. Warren Thornell, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Hugo A. Holland, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   I,STEWART, J.

The defendant, Noe Stephan (“Stephan”), entered a guilty plea to attempted aggravated burglary. The trial court entered a judgment sentencing Stephan to 15 years at hard labor from which he appeals. However, for the reasons that follow, the defendant’s conviction and sentence are affirmed.

FACTS

Minimal facts about the offense are contained in the transcript of these proceedings since the defendant entered a guilty plea. The only facts in evidence are from the following recitation by the assistant district attorney:

Your Honor, the State alleges on January 14, 2000, the defendant Noe Stephan while in the company of Stephen Tauzin and Misty Ellis entered the residence of Gilbert Sibley (sic), which is an inhabited dwelling with the intent to commit a felony and theft while therein. The State alleges that while therein the defendant Noe Stephan attempted to arm himself with a dangerous weapon. The State alleges these facts constitute an attempted aggravated burglary as prohibited by R.S. 14:27 and 14:60 sub-paragraph 2.

However, there are extensive discovery documents filed in the record and these provide information regarding the investigation.

On January 14, 2000, officers were summoned to the victim’s residence after a neighbor became concerned when the victim failed to come to the door. The neighbor looked through a broken window and saw the victim, Gilbert Moore, lying motionless on the floor.

When authorities arrived on the scene, they found the victim face down in a pool of blood. He had a large head wound. A hammer was | ¡.located on the floor close to the victim’s head and a syringe was stuck in his right buttock. The victim’s home and truck had been ransacked.

The autopsy performed on the victim revealed that death was caused by multiple injuries from a beating with one or more heavy, blunt objects. There was evidence of at least twelve separate blows that crushed the skull. The characteristics of the majority of the head wounds were consistent with a claw hammer found at the scene. The victim’s body contained evidence of approximately six blows, including injuries to the lower back and the forearms. The nature of these injuries indicated that they had been inflicted by a long, slender object such as a crowbar.

Initially, Stephan’s girlfriend, Misty Ellis, denied knowing anything about Moore’s death, but on March 29, 2000, she gave a statement implicating Stephan in the incident. Her final version was that she, Stephan, and another friend, Steven Tauzin, were at a bar on January 13, 2000, when she saw the victim. She told Stephan and Tauzin that she used to live with the victim and that some of her belongings were still at his house.

It was her idea for them to go to Moore’s house to get her belongings. Tauzin broke a window, climbed inside, and then let Ellis and the defendant into the residence. While they were looking for her property, Ellis heard Moore yelling outside about the broken window.

She said she hid in a closet so Moore would not see her in his house. She said she heard some loud arguing and then a “big thud” and some gurgling sounds. She said about ten minutes later she came out to see what had happened. She said she saw Moore’s body face down on the floor. She |3said Tauzin said he had hit him in the head and that Stephan was holding “the tool” that was about 14 inches long. She drew a picture of what it looked like. It was then referred to as a “crow bar.” She said Tauzin wiped his head with paper towels and he stuck the syringe in the body.

Ellis stated that Tauzin took the victim’s keys from his pocket and went through his truck. When they left Ellis said she used the keys to lock the house and unlock a gate. She re-locked the gate and all three left in Stephan’s mother’s car that had been parked down the street. She said that Stephan’s shirt, the keys and plastic gloves were thrown into the river off the Shr evep or t-B arks dale Bridge.

Stephan signed a form to be voluntarily fingerprinted on January 15, 2000. He was brought in for questioning on March 29, 2000, and signed a waiver of rights form. Stephan was being transported to his parents’ residence in Bossier City when the officer driving him there was instructed to return him to the station. Stephan jumped out of a squad car while it was moving and fled into a residential section of Bossier City. An arrest warrant was issued that day.

According to other information in the record, the trio fled to Mexico after the murder, and Tauzin killed a woman there. Stephan was arrested on May 5, 2000, in El Paso, Texas. A notice of intent to seek the death penalty was filed on May 31, 2000.

On October 12, 2000, Stephan was . charged with first degree murder in a secret grand jury indictment. On November 9, 2000, the indictment was amended to second degree murder. On February 4, 2003, another amended | ¿indictment charging him with second degree murder was filed. An amended indictment charging Stephan with attempted aggravated burglary and as a principal to the homicide of the victim was filed on October 8, 2003. Another amended indictment was filed on October 28, 2003, charging him with only attempted aggravated burglary.

On October 28, 2003, Stephan entered a guilty plea to attempted aggravated burglary and was sentenced to 15 years at hard labor. This appeal ensued.

DISCUSSION

Motion to Recuse Trial Judge

Stephan argues that the trial court erred in denying the motion to recuse the presiding judge who was actively engaged as the trial judge in the co-defendant’s trial. Stephan argues further that evidence of bias toward him was the court’s own motion questioning the sufficiency of the bond. The state argues that Stephan did not meet the burden of showing any bias, prejudice, or personal interest of a substantial nature and only presented conclusions of bias at the hearing for recusal.

We note that the entry of the guilty plea by Stephan waived his right to raise this issue on appeal. It is well settled that forgoing a trial “works a forfeiture of a vast range of rights, procedural and substantive.” See State v. Valentine, 259 La. 1019, 254 So.2d 450 (1971), certiorari denied, Valentine v. Louisiana, 406 U.S. 963, 92 S.Ct. 2066, 32 L.Ed.2d 351 (1972). See also State v. Starks, 2001-1078 (La.3/28/02), 812 So.2d 638, rehearing denied, 2001-1078 (La.6/7/02), 817 So.2d 1141 (“Stark’s guilty | fiplea waived all nonjuris-dictional defects in proceedings leading to the plea....”)

As shown in State v. Watson, 37,-090 (La.App.2d Cir.5/14/03), 847 So.2d 95, a defendant can have the guilty plea vitiated if he can show that he thought the plea was contingent on further review of the adverse pre-trial ruling. Under this scenario, the guilty plea would not be knowing and voluntary. The court in Watson, supra, said;

A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976). When the defendant, at the time of entering a guilty plea, expressly stipulates that he does not waive his right to the review of a non-jurisdictional pre-plea ruling, the appellate court will review that ruling. State v. Moore, 420 So.2d 1099 (La.1982).
As noted, defense counsel objected to the ruling on the motion to suppress but did not expressly reserve the right to have the denial of the motion reviewed on appeal. In the Boykin colloquy he unconditionally admitted his guilt and never once mentioned any intent to appeal the motion to suppress. Under the circumstances, the issue is not preserved for review. State v. Moore, supra; State v. King, 99-1348 (La.App. 5 Cir. 5/17/00), 761 So.2d 791, writ denied, 00-1824 (La.6/29/00), 794 So.2d 822; State v. Lawson, 95-1604 (La.App. 1 Cir. 12/20/96), 684 So.2d 1150, writ denied, 97-0191 (La.6/13/97), 695 So.2d 986. The assignment of error therefore lacks merit.

This assignment of error lacks merit. Nothing in this record indicates that Stephan would have any expectation that the denial of the motion to recuse the judge would be reviewed on appeal. Further, this applicant had already sought writs on the matter. The colloquy during the taking of the guilty plea shows that Stephan was advised of his rights under Boykin and waived them. The plea therefore is voluntary and will not be set aside.

| CrExcessive Sentence

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Stephan argues that the sentence is excessive because he has an outstanding reputation in the community, he is not a violent person, and “the facts of this case do not reflect a situation that is likely to recur.” The state argues that Stephan did not preserve the right of review by filing a motion to reconsider sentence regarding compliance with La. C. Cr. P. art. 894.1.

Under La. R.S. 14:60, whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years When a person is charged with attempted aggravated burglary as Stephan was, he may be punished by fine or imprisonment not to exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. See La. R.S. 14:27(D)(3).

Stephan’s argument is not that the court failed to follow the mandate of La. C. Cr. P. art. 894.1, but rather that the trial court did not consider the correct factors during sentencing.

However, we note that no motion for reconsideration was filed. Consequently, the sentence can only be reviewed only for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. |7Batchelor, 35,478 (La.App.2d Cir.5/10/02), 823 So.2d 367, on rehearing, writ denied, 2002-2247 (La.3/14/03), 839 So.2d 32.

A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

Stephan argues that the evidence indicates that his involvement was minimal. However, since this conviction is based on a guilty plea, there is very little evidence submitted. Moreover, the trial judge referenced that he had the opportunity to preside during the companion trial and found “this defendant could even be considered a principal, even though he’s not pleading guilty as a principal.”

Although Stephan further argues that “the mitigating factors should have had the effect of reducing the (his) sentence,” he does not articulate what these mitigating factors are.

|RWe conclude that the assignment of error regarding the failure to particularize this sentence is without merit. The trial court stated it was relying on the sentencing guidelines of La. C. Cr. P. art. 894.1. It specifically referenced the language in La. C. Cr. P. art. 894.1 A(3) when it said “this judge is persuaded that the severity of this offense warrants incarceration and that a lesser sentence would depreciate (sic) the seriousness of the defendant’s actions in this case.”

The trial court then stated, “Without citing any other aspects in paragraph B, the Court feels that the totality of the circumstances of this offense warrants a jail sentence and not a suspended sentence.” The trial court noted that there was a death stemming from this incident and that Stephan had already received “much consideration.”

On this record, there is no constitutional error. The sentence imposed is lawful. Stephan received a substantial benefit from the amended indictment. He was originally implicated in the murder, but the charges against him were reduced to attempted aggravated burglary.

Further, there was no excuse or justification for Stephan’s role in this offense. Considering that the victim was killed through no provocation on his part, the sentence is neither grossly disproportionate to the severity of the chain of events nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of the case, is supported by the record and is not constitutionally excessive. These assignments of error are without merit.

I ^CONCLUSION

The record supports the trial court’s decision to render the maximum sentence of 15 years for this attempted aggravated burglary where the victim was killed in his own home when the defendant and two friends went there to get things out of the residence.

The conviction and sentence are affirmed.

AFFIRMED.


author: J^MOORE, J.

text:
    STATE of Louisiana, Appellee v. Paul RACHAL, Appellant.
    No. 38,665-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    K. Wayne Dishman, II, for Appellant.
    Charles Foti, Attorney General, Bret Barham, Assistant Attorney General, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   J^MOORE, J.

Defendant was charged by bill of information with conspiracy to manufacture a Schedule II Controlled Dangerous Substance, Methamphetamine, with intent to distribute in violation of La. R.S. 14:26 and La. R.S. 40:967(A)(1). Subsequently, in open court, the assistant district attorney orally moved to amend the bill to a charge of Manufacture and Production of Methamphetamine in violation of La. R.S. 40:967(A)(1). At that time, defendant entered a plea of guilty to the amended charge in exchange for a sentencing cap of 15 years and the state’s agreement to drop any other known pending charges. The defendant was advised of his Boykin rights and indicated that he understood and waived those rights. The state set forth the factual basis for the plea into the record, and the trial court accepted the defendant’s guilty plea as freely and voluntarily given. The court subsequently imposed a sentence of 15 years at hard labor, ten years of which to be served without benefit of probation, parole or suspension of sentence. Defendant filed this appeal alleging the sentence is excessive. Finding the court lacked jurisdiction to accept the guilty plea, we vacate and set aside defendant’s conviction and sentence.

Jurisdictional defects, discoverable as error patent on the face of the record, are those defects which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. State v. Cook, 372 So.2d 1202 (La.1979); State v. Kendrick, 34,097 (La.App. 2 Cir.12/20/00), 779 So.2d 884; State v. Gooden, 523 So.2d 283 (La.App. 2 Cir.1988), writ denied, 530 So.2d 570 (La.1988). In addressing appeals from guilty pleas, we |2may review jurisdictional defects discoverable as error patent on the face of the record. State v. Cook, supra; State v. Gooden, supra; see also La. C. Cr. P. art. 920(2). Jurisdiction ratione materi-ae (subject matter jurisdiction) is nonwaivable and, without it, the trial court’s action is an absolute nullity. State v. Gooden, supra. Such deficiencies, even when arising through a guilty plea, must be recognized upon review. State v. Rivers, 28,565 (La.App. 2 Cir. 9/25/96), 681 So.2d 39; State v. Monroe, 25,825 (La.App. 2 Cir. 3/30/94), 635 So.2d 481.

Pursuant to La. C. Cr. P. art. 558, a defendant, with the consent of the state, may plead guilty to a lesser offense that is included in the offense charged in a bill of information. When this is done, it is unnecessary to amend the bill of information or file a new bill of information. State v. Hebert, 506 So.2d 863 (La.App. 1 Cir.1987). Pursuant to La. C. Cr. P. art. 487, a defendant, with the consent of the state, may plead guilty to a crime which is not responsive to the original bill of information. When this is done, the state must either amend the bill of information or file a new bill of information. State v. Cook, supra; State v. Johnson, 499 So.2d 244 (La.App. 2 Cir.1986); State v. Gooden, supra. If the state elects to amend a bill of information to state a nonresponsive charge, the amendment must be in writing. State v. Breaux, 504 So.2d 1011 (La.App. 1 Cir. 1987); see State v. Kendrick, supra, (C.J. Norris concurring in part); see also, State v. Buttner, 411 So.2d 35 (La.1982) (“An oral Bill of Information is no Bill of Information at all.”).

|3In this instance, the crime to which the defendant pled guilty is non-responsive to the original charge of conspiracy to manufacture methamphetamines with intent to distribute. La. C. Cr. P. arts. 814 and 815. Although the state orally moved to amend the bill to a charge of manufacturing methamphetamines, our law and jurisprudence requires that the information charging a new offense nonre-sponsive to the original indictment must be in writing. State v. Breaux, supra; cf. State v. Gooden, supra.

Thus, the trial court lacked jurisdiction to accept the defendant’s guilty plea to a non-charged offense. We therefore vacate and set aside the guilty plea and the sentence imposed by the court. We remand to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.

      . Subsequent amended bills were filed adding more co-defendants.

      . We are aware that some courts have considered the failure to amend the Bill of Information to be harmless error. See State v. Richard, 99-1078 (La.App. 3 Cir. 12/27/00), 779 So.2d 927; State v. Charles, 02-0443 (La.App. 3 Cir. 10/2/02), 827 So.2d 553; and State v. Narcisse, 01-49 (La.App. 5 Cir. 6/27/01), 791 So.2d 149.


author: |,BROWN, C.J.

text:
    Donna Sue ROYALS, Plaintiff-Appellee v. TOWN OF RICHWOOD, Defendant-Appellant.
    No. 38,738-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Samuel T. Singer, Winnsboro, Dawn Hendrix, Rayville, for Appellant.
    Curtis Daniel Street, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   |,BROWN, C.J.

Donna Royals, an officer with the Rich-wood Police Department, was awarded workers’ compensation benefits, attorney fees, and penalties for a job-related injury. The Town of Richwood appealed, and Royals answered seeking additional attorney fees. We reverse in part, affirm the remainder of the award, and award additional attorney fees.

Facts

In September 2002, Donna Royals worked as a school resource officer at Richwood High School. Her job duties included maintaining order at the school, making sure that the school’s perimeter was safe, and ensuring that school buses could safely cross the highway. Unless called to the police station, she would be at the school when it was in session from 7:00 a.m. until about 3:20 p.m. Royals patrolled the campus in a Richwood Police Department car and wore a Richwood police uniform. At about 2:00 p.m. on the afternoon of September 9, 2002, Royals completed her last perimeter check and parked the patrol car in front of the school. Royals testified:

And as I was opening up the driver’s door, and I had put my left foot out on the pavement and turned with my body, and was taking my right foot and my right leg to push out, and my knee twisted.... I felt a tremendous amount of pain in my knee. I just sat there and — ■ and I rubbed on my knee for about five minutes before I could even move, because I wasn’t sure if I could even walk.

There were no witnesses to this incident; however, Royals said that she limped into the school and notified another security officer that she had injured herself. She returned to her patrol car until school let out and then drove to the Richwood police station where she reported her injury to the | ?duty dispatcher, Michelle Payzant. Royals did not seek medical care. She went home and put an Ace bandage, Thera-Gesic (a pain-relieving cream), and a heating pad on her knee and went to bed.

The next morning, Royals reapplied the Thera-Gesic cream and knee bandage. Although it was a school day, Royals had arranged to take time off from work to take a test. The exam was unrelated to her job and lasted four hours. Royals was not wearing her police uniform.

After she completed the test, Royals picked up lunch and drove to the police station to eat. When she arrived at the station, she spoke to the dispatcher to check in and believed that she was “on the clock.” Royals stated that she would have been required to go to the school had there been an emergency.

After she ate and before leaving the station for the school, Royals went to the restroom. Royals testified:

When I went inside the bathroom, the— the toilet is not bolted down, and it wobbles. So, as I was getting up, then my weight shifted somehow or another, and like I say, my knee — the only way I can describe it is it just exploded.

Another officer helped her into a chair and she told that officer, the police chief, and Michelle Payzant that she had injured her knee. Even so, Royals drove to the school to help the buses exit onto the highway. She asked Michelle Payzant to accompany her. Royals was able to drive to the high school and assist with traffic control while remaining in her police car. Thereafter, she returned to the police station, dropped off Payzant, picked up her husband, and went to see her doctor, Ron Morgan.

|3Pr. Morgan sent Royals to the hospital for x-rays and, upon reviewing the x-rays, he put Royals in a leg cast for eight days. Royals testified that she remained in bed for these eight days.

Royals returned to work on October 16, 2002, on light duty as a dispatcher; she used crutches to move around and was able to elevate her leg on a chair while working. She worked until December 28, 2002, when she had arthroscopic knee surgery performed by Dr. Douglas Brown; this surgery was paid for by the town. After the procedure, the doctor prescribed a course of physical therapy. Royals estimated that she attended five physical therapy sessions. On January 8, 2003, Dr. Brown wrote a progress note that stated in part, “The patient is started on rehab with Richland Therapy and is allowed to return to work on 1/13/03.” Dr. Brown also noted that Royals was “Released to work 1-13-03. Dispatcher only.” Royals testified that the police chief did not want her to return to work until she was fully released from the doctor’s care.

Although Royals repeatedly requested weekly workers’ compensation benefits, the town never paid them. On January 22, 2003, the town’s claims manager, Risk Management, Inc. (“RMI”), disallowed any further physical therapy or medical treatment for Royals. In its letter discontinuing benefits, RMI informed Royals that “it is our opinion that you were not injured during the course and scope of your employment.”

|4RMI, through its adjuster, Sharon Jenkins, based its decision partly on a letter to the adjuster written by Michelle Payzant describing her impression of the events surrounding Royals’ injury. The letter reads:

On September 10, 2002, Donna Sue Royals was excused from work to attend an interview. She came to Richwood Police Department at or around 1300 hours to visit, and on her own doing, said she was going to go let the buses out at the school at 1500 hrs. She went to the restroom at or around 1330 hours. When exiting the restroom she alleged that she hurt her knee, that it had locked up on her pulling up her pants. Ofc. Tiffany Jackson pulled a chair over for Royals to sit down. At 1448 hrs. Royals and myself left in a patrol unit to let the buses out at the school. We returned at 1519 hrs., when after exiting the unit, she stated that her knee popped when she put her weight on it getting out of the patrol unit. Witnesses in the department during the time she hurt her knee in the restroom were: Det. Gary Jessie, Ofc. Tiffany Jackson, Dispatcher Mattie Allen, and Michelle Payzant. Be advised that Mattie Allen is no longer with this department. If you have any further questions, I will help you anyway I can. (Emphasis added.)

Jenkins also relied on a report of an interview with Royals conducted by another adjuster, Beverly Smith. This report generally coincides with Royals’ testimony at trial and indicates that Royals hurt her knee getting out of the car the day before the incident in the bathroom. This report indicates that these incidents occurred on September 10 and 11, 2002, respectively. (They actually occurred on the 9th and 10th). Jenkins did not speak with Royals during the investigation.

Neither Michelle Payzant nor Beverly Smith was present at trial. Only Royals and Jenkins testified. After hearing the two witnesses and considering the evidence, the court concluded that Royals’ knee injury was compensable. The WCJ specifically stated that she found Royals’ testimony to be credible and that there was no evidence to discredit her version of | ^events. The court further found that Royals was within the course and scope of her employment on September 10 when her knee gave out in the bathroom.

The court found that Royals was temporarily totally disabled (“TTD”) from September 12, 2002, through October 15, 2002, and from December 28, 2002, through January 13, 2003, and awarded TTD benefits, in the amount of $200 per week. Likewise, the court awarded Royals supplemental earnings benefits (“SEB”) from January 13, 2003, onward until she is released to full duty. The court also ordered the town to pay all unpaid medical expenses and pay for Royals to complete physical therapy.

The WCJ imposed a $1,000 penalty on the police department for the failure'to pay disability benefits between September 12, 2002, through October 15, 2002, and awarded Royals $8,000 in attorney fees. The WCJ imposed another $1,000 penalty on the police department for its premature termination of Royals’ physical therapy and awarded her another $3,000 in attorney fees. From this judgment, the town now appeals. Royals has answered the appeal seeking an additional award of attorney fees.

Discussion

Employment Related Accident

The WCJ found that Royals was within the course and scope of her employment at the time she suffered both of the knee injuries she described. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the compensation judge. Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App.2d Cir|06/16/99),6 741 So.2d 143. Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.03/04/98), 708 So.2d 375. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Id. Thus, if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., citing Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, (La.07/01/97), 696 So.2d 551, 556.

Because Royals’ second accident in the restroom at the police station produced the more immediate result, defendant’s main challenge is whether Royals was on the clock at this time. This emphasis is misplaced.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of her employment. La. R.S. 23:1031. An aggravation of a work-related injury is regarded as compensable and as resulting from the initial work-accident even if the aggravation occurs away from the job. Stewart v. Hospitals Affiliates Int’l, Inc. of Baton Rouge, 404 So.2d 944 (La.1981); Hughes v. General Motors Guide Lamp Division, |7469 So.2d 369 (La.App. 2d Cir.1985); see also Berry v. River City Timber, 27,364 (La.App.2d Cir.09/27/95), 661 So.2d 668, writ denied, 95-2612 (La.01/05/96), 666 So.2d 293. If the work-related injury predisposed the plaintiff to the second injury, then a causal connection is found between the two accidents and the plaintiff is entitled to compensation. Kelly v. City of New Orleans, 414 So.2d 770 (La.1982); see also Hanover Ins. Co. v. Allstate Ins. Co., 554 So.2d 1261 (La.App. 1st Cir.1989); and Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2d Cir.1977).

In this case, Royals first injured her knee getting out of her patrol car — clearly a work-related incident — and testified that the same weakened knee gave way the very next day. This is based on Royals’ testimony which the WCJ believed. We must give great deference to the WCJ’s credibility decision. With so little time between the first injury and the second, and no alternative explanation for the second injury, the latter injury is compensa-ble as an aggravation of the first.

Penalties and Attorney Fees

The penalty provisions in effect at the time of the alleged denial of benefits control. Gay v. Georgia Pacific Corp., 32,653 (La.App.2d Cir.12/22/99), 754 So.2d 1101.

Former La. R.S. 23:1201(F) provided, in part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits |sor fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bolton v. Mike Fleming Construction, 36,521 (La.App.2d Cir.12/11/02), 833 So.2d 1177. The determination of whether an employer should be cast with penalties is a question of fact for the WCJ, whose findings shall not be disturbed on appeal absent manifest error. Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831.

In this case we find no manifest error in the WCJ’s imposition of a penalty. The RMI investigator had the report of an interview with Royals and a letter from Michelle Payzant concerning the incident. The report conflicted with the letter with regard to Royals’ duty status on September 10, 2002. Payzant’s letter contains contradictions. RMI should have investigated this claim further, but failed to do so before denying benefits. This is particularly important as the interview by Beverly Smith with Royals clearly showed an accident the day before. This first accident was totally ignored by Jenkins.

An award of attorney fees is a type of penalty in workers’ compensation matters. Ward v. Phoenix Operating Co., 31,656 (La.App|2d9 Cir.02/24/99), 729 So.2d 109. The amount of the fee must, be assessed in accordance with law, i.e., the fee must be reasonable. Ward, supra. We do not find the $3,000 attorney fee to be an abuse of discretion.

Under La. R.S. 23:1203(A), an employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment related to an employee’s work-related injury. The town commenced, but then terminated, the payment of medical benefits.

Former La. R.S. 23:1201.2 provided, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.

This provision only allowed an award of attorney fees, not a penalty, for the discontinuance of benefits. Gilcrease v. Wal-Mart Stores, 36,523 (La.App.2d Cir.12/11/02), 843 So.2d 415, writ denied, 03-0113 (La.03/21/03), 840 So.2d 542. Because the statute did not provide for a penalty for the discontinuance of benefits, that portion of the judgment must be reversed. However, we find no error in the award of attorney fees given the de min-imis support for the discontinuance of medical benefits, particularly given that Royals was in the course of therapy required after surgery approved by her employer.

Plaintiff answered the appeal seeking additional attorney fees for work necessitated by this appeal. Defendant obtained only minor relief from the $1,000 penalty imposed for the discontinuation of benefits while losing in all substantive respects. We believe an additional award of legal |infees is in order. Based on the record, we award the sum of $500. See Smith v. Tudor Construction, 25,783 (La.App.2d Cir.05/04/94), 637 So.2d 666.

Conclusion

For the above reasons, the judgment of the Workers’ Compensation Judge is affirmed, except as to the $1,000 penalty for the discontinuance of medical benefits, which is not provided for by the law. We make an additional award of $500 in attorney fees for this appeal. Costs of this appeal are assessed to defendant.

REVERSED IN PART, AMENDED IN PART, and AS AMENDED, AFFIRMED.

      . The x-ray report in the record is inexplicably dated "09/09/02.”

      . However, because Royals had been on a personal mission that morning, she checked in at her employer’s main office before returning to the school. The record does not reveal how she ordinarily checked into work, but her choice on this day of checking in at the police department after a personal errand was reasonable and was, given the finding of the WCJ, work-related. We would therefore conclude that the WCJ was not manifestly erroneous in finding that the accident on September 10, 2002, was within the course and scope of Royals' employment.

      . The statutes governing penalties and attorney fees in compensation cases changed, in some ways materially, on July 3, 2003, when La. R.S. 23:1201 was amended ánd La. R.S. 23:1201.2 was repealed by the enactment of Act 1204 of 2003.


author: 1 .BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Jeffrey Howard ELLIS, Appellant.
    No. 38,740-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Lavelle Bernard Salomon, for Appellant.
    Jerry L. Jones, District Attorney, Neal Glen Johnson, Hamilton Stephens Winters, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   1 .BROWN, C.J.

Defendant, Jeffery Howard Ellis, was convicted of two counts of molestation of a juvenile and two counts of indecent behavior with a juvenile. He was sentenced to hard labor terms without benefit of parole or probation and without diminution of sentence for good behavior. The combination of concurrent and consecutive sentences resulted in a total of 12 years to be served. He has appealed his convictions and sentences. Finding no error, we affirm.

Brief Factual Synopsis

The original bill of information charged defendant with three counts of sexual battery. After two amendments, the final bill of information charged defendant with two counts of molestation of a juvenile (his seven-year-old daughter), and three counts of indecent behavior with a juvenile (count three — his daughter; count four — a friend of his children, “Z.P.”; and count five — his daughter and twelve-year-old son).

The state filed a Notice of Intent to Use Evidence of Other Crimes/Acts, notifying defendant that it planned to offer at defendant’s trial evidence of prior sexual misconduct with juveniles in accordance with State v. Prieur, 277 So.2d 126 (La.1973). A Prieur hearing was held and the trial court ruled that the state could introduce testimony relating to previous incidents involving his stepdaughter and her friend, who were six or seven at the time of the alleged sexual misconduct.

In December 2002, defendant’s court-appointed attorney withdrew after being elected to the district court bench. Thereafter, defendant elected to proceed to trial in proper person. Count four, charging defendant with | ¡Indecent behavior with a juvenile, “Z.P.”, was dismissed when the child victim failed to appear for trial. On July 9, 2003, a jury convicted defendant of the four remaining counts. Defendant was sentenced to eight-year concurrent hard labor terms on counts one and two; four years on count three to be served concurrently with three years on count five; and the sentences on the molestation counts (one and two) and indecent behavior counts (three and five) were then ordered to run consecutively, resulting in a total of 12 years to be served. The judge then ordered that the sentences were to be without benefit of probation, parole, or suspension. Finding that defendant was a sex offender as defined by La. R.S. 15:537, the judge ordered that defendant would not be entitled to diminution of sentence for good behavior.

Defendant has appealed his convictions and sentences.

Discussion

Bill of Information

According to defendant, the second and final amended bill of information is fatally defective as to the two counts of indecent behavior with juveniles. In support, defendant cites State v. Free, 26,267 (La.App.2d Cir.09/21/94), 643 So.2d 767, writ denied, 94-2846 (La.03/10/95), 650 So.2d 1175.

In State v. Free, supra at 774-75, this court reviewed the applicable jurisprudence as follows:

The charged offense [indecent behavior with a juvenile] may be committed in two distinct ways: (1) by the commission of a lewd or lascivious act upon the person; or (2) by the commission of a lewd or lascivious act in-the presence of any child under the age of seventeen, |3with the requisite intent. La. R.S. 14:81. An indictment for indecent behavior with juveniles must inform the accused in which way he is charged with having committed the offense, whether upon the person or in the presence of the person. Otherwise, the defendant would go into court without any knowledge, insofar as the disclosures in the indictment are concerned, of the kind or nature of acts intended be relied on as constituting the offense charged. (Citations omitted).

In the case sub judice, the state concedes that the final amended bill of information tracks the alternative language of La. R.S. 14:81, that is, it charges that defendant committed a prohibited act “upon the person or in the presence of (the victim)” and thus, is defective. See State v. Free, supra. However, as was the case in Free, by virtue of discovery, the previous versions of the bill of information, and the state’s answer to defendant’s application for a bill of particulars, defendant was aware of all of the evidence the state intended to use to establish its case against him. Likewise, he was aware of the nature and cause of the accusations against him so that he could prepare his defense. As noted by this court in State v. Free, supra at 775, the constitutional mandate that a defendant be informed of the nature and cause against him does not require that he may only be so informed by indictment [or information]. Under the facts and circumstances of this case, defendant had full knowledge of the nature and cause of the charges against him, as well as of the nature and extent of the evidence the state had with which to prove its allegations.

Furthermore, defendant has not claimed any surprise, nor has he shown any prejudice due to this alleged defect. State v. Comeaux, 408 So.2d 1099 (La.1981). A defendant may not complain of technical insufficiency in an indictment or bill of information for the first time after |4conviction, when the defendant is fairly informed of the charge against him and there is no prejudice caused by the defect. Id.; State v. Shelton, 545 So.2d 1285 (La.App. 2d Cir.1989); State v. Johnson, 02-254 (La.App. 5th Cir.06/26/02), 822 So.2d 840. This assignment of error is without merit.

Sufficiency of the Evidence

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, unit denied, 98-2723 (La.02/05/99), 737 So.2d 747.

The Louisiana Supreme Court has held that the testimony of the victim alone in a sexual assault case is sufficient to convince a reasonable fact finder beyond a reasonable doubt of a defendant’s guilt. State v. Rives, 407 So.2d 1195 (La.1981); State v. Smith, 35,699 (La.App.2d Cir|04/05/02),5 815 So.2d 412, unit denied, 02-1502 (La.04/04/03), 840 So.2d 1200; State v. Elzie, 37,920 (La.App.2d Cir.01/28/04), 865 So.2d 248; State v. Free, supra. Furthermore, such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Elzie, supra.

Counts One and Two: Molestation of a Juvenile

Molestation of a juvenile is defined in La. R.S. 14:81.2(A). Under this statute, the state must prove beyond a reasonable doubt that: (1) defendant was over the age of seventeen; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen; (3) the accused was more than two years older than the victim; (4) the accused had the specific intent to arouse or gratify either the child’s sexual desires or his own sexual desires; and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. State v. Leblanc, 506 So.2d 1197 (La.1987); State v. Elzie, supra.

Both molestation convictions arise out of incidents in which defendant engaged in inappropriate sexual behavior with his seven-year old daughter. Apparently conceding that the evidence was sufficient to prove | fithat he committed a lewd or lascivious act with the necessary intent, defendant asserts that the evidence was insufficient to establish that he committed the lewd or lascivious act by virtue of his position of control or supervision over the child. According to defendant, because he lived with his mother, it was she who had control and supervision over his children during their visitation with him.

This assertion is patently wrong. The evidence is clear that the child was visiting with defendant who exercised control and supervision. See State v. Elzie, supra; State v. Crabtree, 569 So.2d 646 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991); State v. Blue, 591 So.2d 1173 (La.App. 1st Cir.1991), rev’d on other grounds, 591 So.2d 1172 (La.1992). The jurisprudence is rife with cases involving molestation accomplished by virtue of control and/or supervision by noncustodial parents, babysitters, relatives, friends, and neighbors of young victims.

This assignment lacks merit.

17Counts Three and Five: Indecent Behavior with a Juvenile

La. R.S. 14:81(A) provides that in order to convict a defendant of indecent behavior with a juvenile, the state must prove that the defendant: (1) committed any lewd or lascivious act; (2) upon the person or in the presence of; (3) any child under the age of 17; (4) was over the age of 17 and more than 2 years older than the victim; and (5) had the intention of arousing or gratifying the sexual desires of either person. La. R.S. 14:81; State v. Jones, 34,863 (La.App.2d Cir.08/22/01), 794 So.2d 107, writ denied, 01-2648 (La.08/30/02), 823 So.2d 938; State v. Free, supra.

Specific intent to commit the offense of indecent behavior with a juvenile need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Blanchard, 00-1147 (La.04/20/01), 786 So.2d 701; State v. Jones, supra; State v. Battaglia, 03-692 (La.App. 5th Cir.11/25/03), 861 So.2d 704.

Defendant asserts that showing to and/or watching with his children, aged six and twelve, the director’s version of the R-rated movie “Showgirls” does not constitute a lewd or lascivious act, citing State v. Gaspard, 02-1040 (La.App. 3d Cir.03/05/03), 841 So.2d 1021.

In State v. Gaspard, supra, the Third Circuit held that showing sexually explicit movies and printed materials without any evidence of \ ^inappropriate touching or nudity to an 11-year-old was insufficient to support a conviction of attempted indecent behavior with a juvenile. In Gas-pard, the court observed that there was no evidence that defendant had tried to touch his son or himself, no evidence of nudity or physical exposure by either father or son, and no evidence of any suggestion or statement by defendant that he and/or his son engaged in sexual acts.

The supreme court has recently reaffirmed the jurisprudential definition of “lewd and lascivious” in State v. Interiano, 03-1760 (La.02/13/04), 868 So.2d 9. In State v. Interiano, supra at 15, the court cited State v. Holstead, 354 So.2d 493, 497-98 (La.1977), in which the supreme court reaffirmed that La. R.S. 14:81(A) provides fair notice that the defendant “is charged with having an act ... which is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.” The Interiano court further observed that the statute encompasses not just the physical touching of the victim in an indecent manner, but “indecent sexual displays in the presence of children under the age of seventeen.... [T]he statute clearly provides sufficient notice that a person knowingly engaged in any overt sexual activity performed in the physical proximity of a child enters a zone of danger in which he runs the risk that a trier of fact may later find that activity criminal in nature. State v. Interiano, supra at 15.

The evidence in the instant case as to count three, which charged defendant with illicit sexual behavior upon or in the presence of his six-year-old daughter, consisted of the daughter’s testimony that she and her | flfather watched the movie together on the couch and that during the movie, he took her hand and rubbed it up and down on his private part. She stated that the movie she watched with her father .was “Showgirls”, which was rated “R,” and contained a lot of scenes which depicted women kissing each other on their tee-tees. She also testified at trial that she watched another movie with defendant, either “Erotic Heat” or “The Erotic Witch Project”, which included a scene involving a nude woman standing by a tree. Sgt. Renee Smith with the Ouachita Parish Sheriffs Office watched “Showgirls,” as well as several pornographic movies recovered from defendant’s home, and testified that the tree scenes described by the daughter did not appear in “Showgirls,” but in “The Erotic Witch Project,” one of the many pornographic movies recovered during the search of defendant’s residence. Unquestionably, these were sexually explicit movies coupled with inappropriate touching and nudity.

As to count five, which alleged that defendant engaged in inappropriate sexual behavior with both his daughter and his twelve-year-old son, defendant contends that because there was no evidence of touching or nudity while he and the children watched “Showgirls”, nor was there evidence that he intended to gratify either one’s sexual desires, he is not guilty of this count of indecent behavior with a juvenile.

As noted above, intent does not have to be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State- v. Blanchard, supra; State v. Jones, supra. In the instant case, according to |10the son, he watched the movie “Showgirls” with defendant and his younger sister more than once, all in the same bed in defendant’s bedroom, before defendant and his sister went to sleep. He testified that there were nude and lesbian scenes in the movie and that he was aroused and felt differently after watching the movies. This is separate and distinct from the episode that his sister testified about, which involved defendant and her watching a movie in the den during which he put her hand on his “private” and moved it “up and down.”

The jury also heard the testimony of Sgt. Smith that defendant denied possessing any pornography. However, the search of defendant’s residence revealed this statement to be false. Sgt. Smith testified that the officers found numerous pornographic tapes and literature in defendant’s bedroom, in the exact locations described to Sgt. Smith by defendant’s daughter.

Defendant’s behavior showed a pattern of exposing children to erotic or semi-pornographic movies as a conduit for more specific sexual contact. A jury could reasonably find under these circumstances that this wanton conduct was lewd and lascivious.

This assignment of error has no merit

Credit for Time Served

Defendant correctly points out that the trial court failed to give him credit for time spent in custody prior to imposition of sentence. However, the 1997 amendment to La. C. Cr. P. art. 880 is designed to make credit for |nprior custody self-operating even on a silent record. Thus, there is no need for the sentencing court to reference credit for time served. State v. Ignot, 29,745 (La.App.2d Cir.08/24/97), 701 So.2d 1001, writ denied, 99-0836 (La.06/18/99), 745 So.2d 618.

This assignment of error is without merit.

Excessive Sentence

Defendant asserts that the trial court erred in that it did not adequately consider mitigating circumstances; failed to articulate a factual basis for the sentence imposed; and failed to adequately consider a significantly less harsh sentence. Defendant also argues that his sentence is unconstitutionally excessive.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.04/02/97), 691 So.2d 345.

In this case, the record contains a complete and accurate articulation of the factual basis for defendant’s sentence, setting forth the criteria the court considered in sentencing defendant in compliance with La. C. Cr. P. art. 894.1.

Defendant’s combined sentence of 12 years at hard labor is certainly within constitutional limits. Defendant’s pattern of lascivious behavior with children who have been entrusted to his care more than justified this sentence, which was less than the maximum sentences allowed for the _Jjgoffenses of conviction. The sentence is not grossly disproportionate, nor is it a purposeless and needless infliction of pain and suffering. In light of the harm done to society, the sentence imposed does not shock our sense of justice. These assignments of error lack merit.

Defendant next contends that the trial court erred in denying the benefit of parole.

La. R.S. 14:81(0 and 14:81.2(0 do not provide for the denial of parole, probation, or suspension of sentence. However, defendant is a sexual offender as defined in La. R.S. 15:536, and his victims were both children. Therefore, the provisions of La. R.S. 15:537, which provides for the denial of good time, and La. R.S. 15:538, which provides for ineligibility for probation, parole, or suspension of sentence unless certain conditions are imposed, are self-executing and are to be implemented by the Louisiana Department of Public Safety and Corrections. State v. Palmer, 37,355 (La.App.2d Cir.07/08/03), 850 So.2d 1058; State v. Fuller, 37,127 (La.App.2d Cir.06/25/03), 850 So.2d 909; State v. Moseley, 36,550 (La.App.2d Cir.10/23/02), 830 So.2d 354 (Brown, J., concurring).

Admission of Other Crimes Evidence

Although defendant assigned as error the trial court’s ruling on the admissibility of evidence of other crimes, he failed to address this issue in his brief. Assignments of error which are neither briefed nor argued are considered abandoned. U.R.C.A. Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir. 1989), writ denied, 558 So.2d 1123 (La. 1990). A mere statement of an |13assignment of error in a brief does not constitute briefing of the assignment, and, therefore, the assignment is deemed abandoned. State v. Toney, 26,711 (La.App.2d Cir.03/01/95), 651 So.2d 387.

Under State v. Prieur, supra, the state must provide written notice to the defendant of the acts it intends to prove, along with the exclusionary rule upon which it relies. Prieur further requires that the state show by clear and convincing evidence that the element the evidence tends to prove is truly at issue, that the defendant committed the other crimes, and that the probative value of the evidence to be admitted outweighs the dangers of unfair prejudice and will not confuse the issues, mislead the jury, or cause undue delay or waste of time. La. C.E. art. 403. At this hearing, the state must also show that the evidence is neither repetitive nor cumulative, and is not being introduced merely to show that the defendant is of bad character. State v. Kennedy, 00-1554 (La.04/03/01), 803 So.2d 916, appeal after remand, 02-214 (La.App. 5th Cir.06/26/02), 823 So.2d 411, writ denied, 02-2088 (La.01/24/03), 836 So.2d 43, superseded by statute as stated in State v. Zornes, 34,070 (La.App.2d Cir.04/03/02), 814 So.2d 113; State v. Hills, 99-1750 (La.05/16/00), 761 So.2d 516; State v. Taylor, 37,356 (La.App.2d Cir.09/26/03), 855 So.2d 958, writ denied, 03-3141 (La.03/19/04), 869 So.2d 848.

The evidence of other crimes involving defendant’s stepdaughter and her friend, who were six or seven years old at the time, established identity, proved intent, guilty knowledge, motive, system, scheme, opportunity, |uand/or acts tending to show the defendant’s “lustful disposition” in accordance with La. C.E. arts. 404(B) and 412.2.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . The victim related to Sgt. Renee Smith and at trial that, when she was seven years old, defendant bought some finger paints, and, while at the home defendant shared with his mother, defendant painted her "private” and stomach and she painted his "private.” She further stated that, after the finger painting, defendant took a shower with her and "licked her booty” while sitting behind her in the shower. During the investigation, defendant admitted to taking showers with his daughter, and stated that he saw nothing wrong with doing so.

      . State v. Rankin, 563 So.2d 420 (La.App. 1st Cir.1990) (stepfather while babysitting stepdaughter and her friend); State v. Speights, 546 So.2d 346 (La.App. 3d Cir.1989) (stepfather while staying at a motel); State v. Welch, 99-1283 (La.04/11/00), 760 So.2d 317 (mother's live-in boyfriend); State v. Kennon, 34, 455 (La.App.2d Cir.02/28/01), 781 So.2d 734 (mother’s live-in boyfriend); State v. Hillman, 613 So.2d 1053 (La.App. 3d Cir.1993), writ denied, 617 So.2d 1181 (La.1993) (mother's boyfriend); State v. Dillion, 99-2175 (La.App. 4th Cir.09/06/00), 770 So.2d 13, writ denied, 00-2815 (La.09/14/01), 797 So.2d 50 (mother’s ex-husband while babysitting); State v. Miller, 98-0301 (La.09/09/98), 718 So.2d 960 (uncle while babysitting); State v. Cook, 32, 110 (La.App.2d Cir.06/16/99), 742 So.2d 912 (uncle while visiting at child's home); State v. Free, supra (uncle while girls were at his home and place of employment); State v. Racca, 525 So.2d 1229 (La.App. 1st Cir.1988) (uncle while kids were visiting their father [his brother] for summer); State v. Colligan, 95-880 (La.App. 3d Cir.08/07/96), 679 So.2d 184 (grandfather while victim spent the night at his home); Doe v. Doe, 95-0478 (La.App. 1st Cir. 11/09/95), 665 So.2d 24 (step grandfather, a Baptist minister, while child visited his home).

      . This crime is identical to molestation of a juvenile, La. R.S. 14:81.2, except that Section 81.2 requires the lewd or lascivious act be committed by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of control or supervision over the juvenile.

      . Sgt. Renee Smith noted that this version contained more profanity and nudity than the version she saw on television.

      . Defendant represented himself at trial, which made it extremely difficult for the victims during his cross-examination.

        . Illustrative of the movies found by the officers are the following: "Erotic Heat”; "The Erotic Witch Project”; "Hollywood Sins”; "Nasty Nurses XXX Adam and Eve Presents”; and "Mistress of Seduction”.


author: JjBROWN, C.J.

text:
    FIRST SOUTH FARM CREDIT, ACA, Plaintiff-Appellee v. GAILLIARD FARMS, INC. and Joseph Patten Brown, Jr., Defendants-Appellants.
    No. 38,731-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      James Willis Berry, for Appellants.
    Thomas Wayne Bishop, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   JjBROWN, C.J.

Defendant, Joseph Patten Brown, Jr., appeals a judgment finding that he was personally liable, in solido, with Gailliard Farms, Inc. on a promissory note executed on February 24, 2000. We affirm.

Facts

Plaintiff, First South Farm Credit, ACA (“First South”), is the holder of a promissory note dated February 24, 2000, in the sum of $104,200 executed by defendants, Gailliard Farms, Inc. (“Gailliard”), and Joseph Patten Brown, Jr. (“Brown”). Defendants were engaged in farming in East Carroll Parish. Brown is the president of Gailliard. Mike Scott was a loan officer for the First South branch servicing loans made to Gailliard and Brown. Scott is Brown’s son-in-law. Scott’s wife, who is Brown’s daughter, owns 50 percent of Gail-liard’s stock.

The Gailliard-Brown loan history with First South began in 1994. During this period of time, Scott prepared all of the loan documents and did all of the credit work on the Gailliard-Brown loans, but, because Brown was his father-in-law, Scott’s supervisor, Mike Castello, signed all of the loan instruments on behalf of First South. Each year, the parties restructured the indebtedness. As security for the loan, Gailliard granted liens over its farm tools, including tractors and other implements; however, First South failed to reinscribe its security and lost its position to other creditors. Thus, in restructuring the loan in February 2000, First South requested and obtained from Gailli-ard additional collateral in the form of an assignment of government subsidies, which equaled $20,000 per year.

1 ¡¡Brown claims that in return for the subsidies assignment, he was released from personal liability. Brown offered into evidence a copy of a handwritten document dated December 21, 1999, and signed by Brown and Scott which states “assignment of FSA payments and new mortgage on equipment in return for release of personal liability.” This was handwritten on plain letter-sized paper. Only Brown and Scott signed. Castello denied any knowledge of the document or such agreement and the loan records at First South contain no such document.

On February 24, 2000, the Gailliard-Brown loan was again restructured. Brown signed the loan documents as president of Gailliard and in an individual capacity. Gailliard defaulted on the loan, and First South sued. At trial, the parties stipulated the indebtedness of Gailliard. The sole issue at trial was the personal liability of Brown. The trial court found that neither Scott nor Castello had the authority to release Brown from liability, and that the February 24, 2000, loan package personally obligated Brown. Defendants appeal the trial court’s rulings.

Discussion

Brown claims that he was released from personal liability on December 21, 1999, when he and Scott executed a release and contends that he had no reluctance or reservations about signing the February 24, 2000, loan documents because of this prior agreement to eliminate his personal liability.

Courts are bound to give legal effect to all written contracts according to the true intent of the parties. This intent is to be determined by the words |3of the contract when these are clear, explicit and lead to no absurd consequences. The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. Bonfanti Marine, Inc. v. Clement, 439 So.2d 537 (La.App. 1st Cir.1983). Signatures are not mere ornaments. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983). A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it. Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir.1983).

The February 24, 2000, mortgage package was introduced into evidence, and clearly shows that Brown executed four separate documents two times each; once in his capacity as president of Gailliard, and once individually. According to the testimony of Brenda Watson, a 17-year employee with First South, and the person in charge of maintaining all credit files at the branch in question, Brown was told, prior to executing the February 24, 2000, mortgage package, that he would be personally liable on the debt. The trial court found Watson to be credible. We allow the trial court deference in making credibility determinations, and, seeing no manifest error, we will not disturb this finding.

Brown, by his signature, in his individual capacity, is bound by the four corners of the promissory note. The February 24, 2000, loan package contained the entire agreement. If a previous agreement to release personal liability did exist, the February 24, 2000, mortgage supersedes it. So 14finding, we do not need to discuss whether the purported, handwritten release from liability signed by Brown and his son-in-law was valid.

Conclusion

We affirm the rulings of the trial court, and tax defendant, Joseph Patten Brown, Jr., with all costs of this appeal.


author: h LOLLEY, J.

text:
    James CLARK and Joy Clark Individually and on Behalf of Their Minor Children Jamel Clark, Jannell Clark, Jeleka Clark, Jelicer Clark, Leneva Dantzler, Lillie Thomas, Benjamin Thomas and Tina Thomas, Plaintiff-Appellant, v. SHACKELFORD FARMS PARTNERSHIP and Sida, Inc. and JFS Farms, Inc. and Tie Vine, Inc., Defendant-Appellee.
    No. 38,749-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Rehearing Denied Sept. 16, 2004.

      Bobby Manning, Pierre & Pierre, L.L.C., by Rodney Pierre, Langston Law Firm, L.L.C., by Carlton L. Parhms, Ant-wine, Harvey & Ruth, by Jarvis M. Ant-wine, Baton Rouge, for Appellants.
    Hudson, Potts & Bernstein, by Charles W. Herold, III, Robert Baldwin, D. Brian Allen, Monroe, for Appellees, Shackelford Farms & Shelter Life Ins. Co.
    Davenport, Files & Kelly, by Mike C. Sanders, Monroe, for Appellees, Mutual Service Casualty Ins. Co. & Bonita Elevator, Inc.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   h LOLLEY, J.

James and Joy Clark, and their minor children (the “appellants”), appeal the grant of summary judgment by the Fourth Judicial District Court for the Parish of Morehouse, Louisiana in favor of Shackel-ford Farms Partnership, Sida, Inc., JFS Farms, Inc., Tie Vine, Inc., Shelter Life Insurance Company, Bonita Elevator and MSI (collectively, “Shackelford”). For the following reasons, we affirm.

Facts

This lawsuit arises from the release of a hazardous chemical, anhydrous ammonia, from a tank owned by Shackelford Farms Partnership on the property of Bonita Elevators, Inc., which was located in the residential community of Bonita, Louisiana. This emission occurred around October 1, 2000, when thieves unwittingly released the ammonia while attempting to steal it. This caused the immediate evacuation of the Bonita community.

Appellants filed suit on March 9, 2001, seeking recovery for fear, fright and anxiety, as well as physical pain and discomfort including nose bleeds, burning sensation in the nasal passages, shortness of breath, episodes of uncontrollable coughing, irritation of the throat, eyes and stomach, nausea, and vomiting. They requested that the matter be certified as a class action. A scheduling order for certification issues was ordered by the trial court on August 20, 2001. A case management order was filed on February 20, 2002. Following discovery, Shackelford filed a Motion for Summary Judgment and/or Order Requiring Proof, and hearings on the matter were held on three separate dates. The trial court granted | ¡.Shackelford’s motion for summary judgment and stated in written reasons that there were no genuine issues of material fact and consequently held that the merits of the case were not satisfactory, dismissing the suit with costs assessed to appellants. This appeal ensued.

Discussion

The one issue on appeal is whether the trial court had the procedural power to decide Shackelford’s motion for summary judgment without first considering the class certification. For the following reasons, we find that the trial court’s actions were not in abuse of his discretion in granting Shackelford’s motion for summary judgment prior to the certification of the class.

Pursuant to La. C.C.P. art. 592(E), which addresses class actions, the trial court has very broad authority to determine all matters which “affect the general order of proceedings.” Louisiana C.C.P. art. 592(E) states as follows:

In the conduct of actions to which Article 591 and this Article apply, the court may make any of the following appropriate orders:
* * *
(5) Dealing with similar procedural matters, including but not limited to case management orders providing for consolidation, duties of counsel, the extent and the scheduling of and the delays for pre-certification and post-certification discovery, and other matters which affect the general order of proceedings; however, the court may not order the class-wide trial of issues dependent for their resolution on proof individual to a member of the class, including but not limited to the causation of the member’s injuries, the amount of the member’s special or general damages, the individual knowledge or reliance of the member, or the applicability to the member of individual claims or defenses.

13Prior to 1997, La. C.C.P. art. 593.1 provided that the court should determine whether the action could be properly maintained as a class action “prerequisite to any further proceedings therein.” However, this article was repealed, and consequently the new articles on class action procedure apply to suits filed after July 1, 1997, including the instant case. The new articles contain no prohibition to any proceedings in advance of certification. Thus, a trial court is not forbidden from considering a summary judgment motion regarding a named plaintiffs individual claims at any point deemed appropriate during the course of the litigation.

Because Louisiana’s rules of civil procedure do not address the issue directly, we find the federal rules of civil procedure regarding class actions (as well as the case law that interprets those rules) helpful. Federal R. Civ. P. 23 addresses the maintenance of class actions in federal court. There is nothing in either the “language or history of Rule 23 that gives a court the authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Despite that citation we find the instant case distinguishable as this inquiry was held prior to a hearing on class certification and was separate from the question of whether a certifiable class existed. See, Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Whereas there is abundant jurisprudence standing for the proposition that it is improper for |4the trial court to consider the merits of a case in a class certification hearing we find no jurisprudence that holds that it is improper for the trial court to consider the merits of the case prior to a class certification hearing. Therefore, although it would be erroneous for a trial court to look to the merits of the underlying action as one of the factors in making its determination about whether a class should be certified, it would not be improper to do so in the case sub judice, because there has not been a class certification hearing.

A decision on the merits may render all class certification issues moot; therefore, a trial court may properly refuse to entertain motions for class certification and related discovery until disposi-tive motions have been resolved. See Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir.1997) (holding that “in some cases, it may be appropriate in the interest of judicial economy to resolve a motion for summary judgment or motion to dismiss prior to ruling on class certification”). Moreover, the merits of a case have no impact on whether a class may be properly maintained, and a court may decide the merits of a case regardless of whether it is certified as a class action. Ladd v. Equicredit Corp. of America, 2001 WL 175236 (E.D.La.2001); Floyd v. Bowen, 833 F.2d 529, 534-35 (5th Cir.1987).

The record establishes that the trial court had on several occasions ordered appellants to produce the identities of any other potential class members. This was never provided to the trial court. Shackel-ford’s motion for summary judgment was originally scheduled for hearing on June of 2003. It was reset for September 19, 2003. At that hearing the trial court | ^recognized that the appellants were far from being certified as a class, and they were admonished, and given one more opportunity to return with affidavits from health care providers showing a causal connection between their exposure and alleged symptoms.

Resultantly, we find no merit to appellants’ contention that the trial court should not have been permitted to decide on the merits of their case until the court had ruled on the class certification question. See Krim v. BancTexas Group, Inc., 989 F.2d 1435 (5th Cir.1993).

Having found that the trial court’s action was procedurally correct, we turn to the merits on summary judgment. In determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.04/11/94), 634 So.2d 1180. Summary judgments are now favored. La. C.C.P. art. 966(A)(2). Nonetheless, both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor. Willis v. Medders, 2000-2507 (La.12/08/00), 775 So.2d 1049; South Central Bell Telephone Co. v. Sewerage and Water Bd. of New Orleans, 94-1648 (La. App. 4th Cir.03/16/95), 652 So.2d 1090, writ denied, 95-0949 (La.05/19/95), 654 So.2d 1090. Ultimately, the burden of proof remains with the mover who must meet the initial burden of making a prima facie showing of entitlement to summary judgment. Hanover American Ins. Co. v. Trippe Mfg. Co., 37,060 (La.App.2d Cir.04/09/03), 843 So.2d 571, 573 -574, writ denied, 2003-1302 (La.09/05/03), 852 So.2d 1042, citing, Mark Tatum and Judge William Norris, III, |6Summary Judgment and Partial Judgment in Louisiana: The State We’re In, 59 La. L.Rev. 131, 141 (1998).

In the instant case, the trial court found that claimants failed to present any competent evidence to show a factual support for their claims. The record reveals that the trial court gave claimants numerous opportunities to identify any physician or other expert who would link any reported physical problems to the alleged exposure to ammonia. The only physical problems appellants reported were minor sore throats, runny noses, coughs, headaches, and some of the claimants did not even seek an examination by a healthcare provider. Those that did go to the emergency room, failed to make follow up visits. At the next hearing, the trial court found that appellants failed to comply with its directive to produce evidence of actual physical injury and a causal connection between the alleged injuries and the ammonia leak. The trial court did acknowledge that while the appellants produced the affidavit of Dr. LaWanna Gunn-Williams, they failed to establish her qualifications. Dr. Gunn-Williams stated that her evaluation of the appellants revealed fear, fright, and post-traumatic stress disorder or syndrome, but no physical injury. Based on this lack of evidence, the trial court found that the appellants failed to produce factual support of the type of physical injury that would give rise to a cause of action and failed to produce evidence of a causal link between any injury and any alleged negligence of appellees. The trial court noted that appellants failed to produce evidence beyond the “mere allegations of their pleadings that [appellees] were negligent.” The record established that they |7took only one deposition of John Francis Shack-elford, which failed to produce any evidence of fault on the part of any appellees beyond mere allegations. The trial court concluded that the appellants failed to produce evidence that would create a genuine issue of material fact on the issue of liability as well and granted the motion for summary judgment.

A careful review of the record confirms the rationale given by the trial court. Based on the fact that two years elapsed since appellants were ordered to submit discovery and that the trial court gave appellants numerous opportunities to produce competent discovery, which directives were ignored, we find that the trial court’s decision to grant the motion for summary judgment was clearly within its discretionary power and no manifest error was committed in the timing of its ruling on the motion.

Costs of this appeal are assessed to appellants.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.

      . In Banks v. New York Life Insurance Company, 1998-0557 (La.07/02/99), 737 So.2d 1275, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000), the Louisiana Supreme Court acknowledged that federal jurisprudence may be relied upon as persuasive precedent due to the similarity between the Louisiana and Federal Rules of Civil Procedure on this subject.