author: h KIMBALL, Justice. 11 CALOGERO, Chief Justice, h KNOLL, Justice,

text:
    STATE of Louisiana v. Cristhian INTERIANO.
    No. 2003-KA-1760.
    Supreme Court of Louisiana.
    Feb. 13, 2004.

      Hon. Charles C. Foti, Jr., Attorney General, Hon. Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Frank A. Brindisi, Andrea F. Long, Assistant District Attorneys, Counsel for Applicant.
    Dennis C. Kronlage, New Orleans, Counsel for Respondent.
   h KIMBALL, Justice.

This case is before us on a direct appeal from a judgment by the district court which granted defendant’s motion to quash his indictment and declared unconstitutional La. R.S. 14:81(A). This statute provides that “[ijndecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.” For the reasons that follow, we find that the lower court erred in considering attenuated hypothetical applications of La. R.S. 14:81(A) in ruling the statute unconstitutional and we find a narrowing construction of the statute provides adequate notice to a person of ordinary intelligence and understanding of what conduct is proscribed and an adequate evi-dentiary standard for jurors to determine guilt or innocence. Accordingly, we reverse the district court’s finding that La. R.S. 14:81(A) is unconstitutional and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On April 14, 2002, investigators from the Kenner Police Department | ¡^questioned 19-year-old defendant, Cristhian Interi-ano, regarding a report they received from his 10-month-old daughter’s pediatrician that the infant had tested positive for gonorrhea. Whether the defendant has ever tested positive for gonorrhea is disputed and his medical records were not placed into evidence. Nonetheless, during the initial interview, the defendant admitted that, from time to time, he would lie on the living room couch while masturbating and watching pornography, sometimes while his daughter played or slept on the floor nearby.

On June 4, 2002, on the basis of his earlier admission, police arrested the defendant, and served him with a Louisiana Uniform Abuse Prevention Order the following day. The state subsequently charged him with indecent behavior with juveniles under La. R.S. 14:81(A), which provides:

Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.

Thereafter, the defendant filed a motion to quash the indictment in which he claimed that La. R.S. 14:81(A) is unconstitutionally vague, overbroad, and ambiguous, as it fails to define the terms “lewd and lascivious” and “in the presence of.” The defendant also contended that the statute, as applied, violates his Art. I, § 5 right to privacy under the Louisiana Constitution, and that the penalty provisions are excessive.

On February 11, 2008, the trial court granted the defendant’s motion to quash, finding merit in his arguments regarding vagueness and ambiguity. Specifically, the 13trial court set out the alleged facts of the case and noted that the 10-month-old infant was almost certainly in no way aware of the defendant’s actions or was apparently not connected to them other than by virtue of her position on the floor of the same room. The trial court further noted that the word “presence” as used in the statute could have applied under one interpretation to someone in the same room, while under another interpretation to someone merely in the same house. Finally, the trial court found vague the requirement of the sexual arousal of only one of the two persons present. A magistrate dissolved the protection order soon after the trial court’s ruling.

This court docketed the case as an appeal. La. Const. Art. V, § 5. The issue presented for our consideration is whether La. R.S. 14:81(A) is unconstitutionally vague, overbroad or ambiguous.

|4LAW AND DISCUSSION

As a general matter, a statute is presumed to be constitutional, and the burden of showing otherwise falls to the challenger. State v. Muschkat, 96-2922, pp. 4-5 (La.3/4/98), 706 So.2d 429, 482. Further, criminal statutes are given a genuine construction according to the fair import of their words, taken in their usual sense, in context, and with reference to the purpose for the provision. La. R.S. 14:3; Muschkat, 96-2922 at 4-5, 706 So.2d at 432; State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Additionally, when the constitutionality of a statute is at issue, and under one construction it can be upheld, while under the other it cannot, a court must adopt the constitutional construction. State v. LeCompte, 406 So.2d 1300, 1311 (La.1981). Therefore, a court may avoid constitutional problems by adopting a narrowing construction of the statute as long as that interpretation remains consistent with the overall purpose behind the legislation. Muschkat, 97-2765 at 10, 706 So.2d at 434 (stating “[wjhile we recognize our duty to interpret statutes in a manner consistent with our state and federal constitutions, we may only preserve a statute by a constitutional construction provided that the saving construction is a plausible one.”) (citations omitted). In addition to criminal statutes being strictly and narrowly construed, any ambiguity must be resolved in favor of the accused. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271.

La. R.S. U:81 (A)

In challenging the trial court’s ruling, the state contends that the trial court erred in ruling La. R.S. 14:81(A) unconstitutionally vague and ambiguous by pointing out that this court, on previous occasions, has rejected a similar attack on the alleged vagueness of the language “lewd and lascivious” in La. R.S. 14:81(A). See, e.g., State v. Holstead, 354 So.2d 493, 497-98 (La.1977). The state also argues that, while the court has not given a definitive interpretation of the language “in the presence of,” any person of ordinary intelligence would understand that, whatever hypothetical applications the statute might have in other situations, masturbating with a child present in the same room falls within the compass of the statute. Further, the state contends that the legislative intent behind the statute is concerned with protecting children from being present during lewd and - lascivious acts, not with their being used as an object of sexual gratification. Thus, the state argues that the statute does not require the child be aware of the acts nor that the defendant perform the acts because the child was in the room. Therefore, in the state’s view, a broad application of the statute is warranted given the compelling state interest in protecting children from the physical and psychological harm that can result from indecent sexual acts committed upon their pérson or in their presence.

In opposition the defense argues that without a narrowing interpretation, the statute is clearly vague and overbroad because the terms “lewd and lascivious” and “in the presence of’ are not defined with sufficient definiteness that an ordinary person can understand what conduct is prohibited. The defendant contends, for example, that under the state’s broad interpretation, the statute’s language would potentially encompass all- sexual relations conducted by the child’s parents in the home. In the defense’s view, then, the statute intends to protect children in two ways: (1) to prevent them from being harmed either physically or psychologically from exposure at an early age to sexual matters; and/or (2) to keep them from being used as objects of an older person’s sexual gratification. To accomplish these purposes in a manner which would provide constitutionally sufficient notice of what conduct is proscribed, the defendant suggests a narrowing construction as follows: indecent |fibehavior with juveniles is “the commission of any sexual acts upon the physical person or in the physically conscious presence of the juvenile as a prerequisite to the intention of arousing or gratifying the sexual desires of either person.”

A statute is vague if its meaning is not clear to the average citizen or if an ordinary person of reasonable intelligence is incapable of discerning its meaning and conforming his conduct to it. State v. Barthelemy, 545 So.2d 531, 532-533 (La.1989); State v. David, 468 So.2d 1126, 1128-1129 (La.1984); State v. Broom, 439 So.2d 357, 359 (La.1983). Further, a statute must provide adequate standards by which guilt or innocence may be determined so that an individual’s fate is not left to the unfettered discretion of law enforcement. Muschkat, 97-2765 at p. 6, 706 So.2d at 432 (citing Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1859; 75 L.Ed.2d 903 (1983)). Longstanding Louisiana law holds that “vagueness challenges to statues which do not invoke First Amendment freedoms must be examined in the light of the facts of the case ... [a] defendant engaged in conduct clearly described in a statute cannot complain of the vagueness of the statute as applied to others ... [a] defendant [therefore] may not establish that a statute is unconstitutionally vague by speculating about hypothetical conduct which could also be prosecuted under the same statute.” State v. Hair, 00-2694, p. 5 (La.5/15/01), 784 So.2d 1269, 1273) (citing State v. Boyd, 97-0579, p. 2 (La.4/14/98), 710 So.2d 1074, 1076) (“[A] vagueness challenge to a statute must be examined in the light of the facts of the case ... and as applied to the particular defendant ... [who] must show at trial that the statute lacks specificity as to his behavior.”)).

In the present case, then, the trial court erred when it speculated about the possible application of La. R.S. 14:81(A) in cases in which the juvenile is in an adjoining room, whether the door remains opened or closed, or elsewhere in a family l7home. Unlike those hypothetical situations considered by the trial court, in this case, the child was unquestionably in physical proximity of the defendant by virtue of being within the same room as the defendant while he masturbated.

Nonetheless, the trial court raised two pertinent questions about the statute applicable to the facts in this case regarding the meaning of “presence” as used in La. R.S. 14:81(A): first, whether the child not only must be present, but must also be conscious of the sexual activity taking place, or at least capable of becoming conscious of the activity; second, whether the presence of the child must constitute an integral component of the sexual gratification sought by the person engaged in masturbation. The trial court’s doubts as to the answers to both of these questions led it to conclude that the statute does not provide fair notice to a person in defendant’s position of what conduct was proscribed and therefore also fails to provide an adequate standard to a trier of fact by which to measure guilt or innocence.

“Leivd and Lascivious”

As noted by the state, this court has previously addressed and rejected the defendant’s challenge to the language incorporated in La. R.S. 14:81 (A) in State v. Holstead, 354 So.2d 493, 497-98 (La.1977). In Holstead, this court reaffirmed its prior jurisprudence that the statute provides fair notice that the defendant “is charged with having done an act upon the person of a juvenile 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.” 354 So.2d at 498 (internal quotation marks and citation omitted). Further, as the Reporter’s Comment to La. R.S. 14:81(A) observes, the state encompasses not only the physical touching of the victim in an indecent manner, but also “indecent sexual displays in the presence of children under the age of seventeen.” Thus, pre-termitting the question of whether [sthe act of masturbation is lewd and lascivious in and of itself, the 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. See, State v. Gill, 441 So.2d 1204, 1207 (La.1983). Thus, the trial court erred in holding La. R.S. 14:81(A) as unconstitutionally vague, overbroad, and ambiguous, by its failure to define the terms “lewd and lascivious” and defendant’s challenge to the statute on this ground is without merit.

“In the Presence of’

However, the question remains whether mere physical presence or proximity alone satisfies the requirement that the sexual display take place “in the presence of’ a child or whether a sensory awareness must accompany the physical proximity. Keeping in mind that any narrowing construction given to the statute must remain consistent with the overall purpose behind the legislation, a review of the legislative history of the statute is helpful. Muschkat, 97-2765 at 10, 706 So.2d at 434. Such a review shows that La. R.S. 14:81(A) is intended “to apply to behavior which falls short of intercourse [when] carried on with young children.” 1942 La. Acts 43 § 81 (Official Comment). Thus, the legislative history shows a compelling state interest in protecting children from the physical and psychological harm that can result from sexual acts committed “upon the person” of the child and the psychological impact that having such acts committed in their presence may cause.

In this case, the sexual display at issue was not accompanied by a sexual touching; that is, no offense was committed “upon the person” of the child. Thus, the state’s contention that the child need not be aware of the sexual act at issue here conflicts with the legislative intent behind the statute when no physical touching of |nthe child occurs. Likewise, the defendant’s contention that a nexus must exist between the presence of the child and the sexual act is contrary to the legislative intent behind the statute because the child need not be a stimulus for the sexual display in order to be psychologically harmed from having such a display committed in his or her presence.

Accordingly, we find that the complete definition of “presence” encompasses sensory awareness as well as physical proximity. The legal usage of the word “presence” denotes something more than being in the- immediate vicinity; it is the viewing or awareness of an act that gives legal significance to the term. Such a construction is appropriate, as, in the past, Louisiana courts'have interpreted “presence” in other legal contexts as encompassing more than mere, physical proximity. See, e.g., In re Succession of Smith, 01-980 (La. 5 Cir. 1/15/02), 806 So.2d 909 (statutory requirement that testator must sign will in presence of two attesting witnesses and notary interpreted to mean that each witness and notary must see the testator sign). Further, such a construction serves the legislative intent of preventing the psychological harm that witnessing such sexual displays can cause.

Therefore, in this case, in furtherance of the legislative purpose of the statute, and taking the language at issue in the context of the statute as a whole, this court holds that in the absence of a physical touching upon the person of the child, La. R.S. 14:81(A) requires the knowing commission of a sexual act such that the child sees or senses that a sexual act is taking place, even if the child is not able to articulate or even comprehend what the offender is doing, for a violation to occur.

Accordingly, the trial court erred in ruling La. R.S. 14:81(A) unconstitutionally vague by essentially preempting the trier of fact’s role in determining whether the child saw or sensed that a sexual act was taking place. Under a proper limiting [ ^construction, a child is “present” for purposes of La. R.S. 14:81(A) if the state can demonstrate not only the physical proximity of the child but also that the child saw or sensed the offender’s actions. In the instant case, although the state has not yet provided any evidence of such sensory awareness, it remains a question of fact for a jury.

Penalty Range

Because the trial court granted the defendant’s motion to quash, it did not address the defendant’s argument that the penalty range provided by La. R.S. 14:81 for the offense, a maximum term of imprisonment at hard labor for not more than seven years, is excessive. A defendant may challenge the penalty range of the offense for which he has been charged although he has not yet been convicted, and the defendant raises the argument in brief before this court. State v. Baxley, 94-2982, pp. 4-5 (La.5/22/95), 656 So.2d 973, 976-77. The defendant argues that a potential sentence of seven years imprisonment at hard labor for the conduct which he admitted to the police, accompanied by registration as a sex offender under La. R.S. 15:542, appears grossly disproportionate to his conduct of masturbating in physical proximity of a child too young to understand what was happening even if she observed it.

However, under the limiting construction outlined above, a verdict of guilty in this case would reflect a finding that the child did have sensory awareness of the sexual act. Given the compelling state interest in protecting its young from- abuse at the hands of adults, a maximum term of seven years at hard labor does not appear grossly disproportionate to the offense and may serve a salutary purpose of separating father and daughter and forestalling other, and perhaps more serious, instances of sexual misconduct. Thus, defendant’s challenge to the penalty provision of the statute is without merit. '

N CONCLUSION

After considering the language in La. R.S. 14:81(A), read as a whole, we hold the phrase “in the presence of’ to encompass sensory awareness as well as physical proximity. In the instant case, although the state has not yet provided any evidence of such a sensory awareness, it remains a question of fact for a jury.

DECREE

For the foregoing reasons, we find that the lower court erred in considering attenuated hypothetical applications of La. R.S. 14:81(A) in ruling the statute unconstitutional and we find a narrowing construction of the statute provides adequate notice to a person of ordinary intelligence and understanding of what conduct is proscribed and an adequate evidentiary standard for jurors to determine guilt or innocence. Accordingly, we reverse the district court’s finding that La. R.S. 14:81(A) is unconstitutional and remand for further proceedings.

DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

CALOGERO, C.J., -dissents and assigns reasons.

KNOLL, J., concurs in the result with reasons.

11 CALOGERO, Chief Justice,

Under the “void-for-vagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused. State v. Union Tank Car Company, 439 So.2d 377 (La.1983); State v. Dousay, 378 So.2d 414 (La.1979). In connection with the requirement of adequate notice, this court has held that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary people of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Baron, 416 So.2d 537 (La.1982); State v. Payton, 361 So.2d 866 (La.1978). As to adequate standards, the United States Supreme Court has held that a criminal statute must not admit of such arbitrary and discriminatory application as to allow judges and juries to pursue their personal predilections as to what conduct is or is not proscribed. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). A statute that fails to establish minimal, objective guidelines sufficiently distinct to administer the law impartially and in accord with the legislative will cannot withstand constitutional scrutiny. Smith v. Goguen, supra; State v. Union Tank Car Company, supra; City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974).

12In this case, the majority and the concurring justice agree that the statute as written is vague and unconstitutional unless “a narrowing construction” is given to the meaning of the words “in the presence of.” While that may be true, I do not agree that the majority’s “narrowing construction of the statute provides adequate notice to a person of ordinary intelligence and understanding of what conduct is proscribed.” Ante, p. 11: Nowhere in State v. Muschkat, 96-2922 (La.3/4/98), 706 So.2d 429, cited by the majority, did we hold that “a narrowing construction” could provide adequate notice of what conduct is proscribed and punishable, in order to save from unconstitutionality a vague or ambiguous statute. In fact, in Muschkat, we declined to read into the drug-traffic loitering statute, La.Rev.Stat. 40:981.4, a specific intent element so as to render that statute not vague. We reasoned that, “[wjhile we recognize our duty to interpret statutes in a manner consistent with our state and federal constitutions, we may only preserve a statute by a constitutional construction provided that, the saving construction is a plausible one.” 96-2922, p. 10, 706 So.2d at 434. We declined to read a specific intent requirement into the statute under issue there “because to do .so would not be plausible.” Id., p. 11, 706 So.2d at 434-35.

However, the majority today, ignoring its own statement that criminal statutes must be strictly construed and.that any ambiguity must-be resolved in favor of the accused,. Ante p. 13, reads into La.Rev. Stat. 14:81(A) a scienter element of “sensory awareness” on the part of the child, as well as the child’s physical proximity. And the source of this element is, surprisingly, a succession case that held that witnesses must actually see a testator sign the will. Ante, p. 16 (citing Succession of Smith, 01-0930 (La. 5 Cir. 1/15/02), 806 So.2d 909). The majority completely omits any discussion of whether the construction it formulates today is plausible or of whether the statute, unless refashioned by the majority, gives adequate notice of the proscribed conduct. 13Instead, the majority simply concludes that its reading of the statute comports with the intent of the legislature.

Whether the legislature intended there be a sensory awareness on the part of the child or a nexus between the offender’s sexual gratification and the presence of the child, I find the majority’s legal reasoning unfortunate in that the majority in its zeal to uphold a criminal statute as constitutional essentially chooses to engage in curative legislation rather than function more appropriately as a judicial body ruling on the constitutionality of the statute. In my view, the court should simply uphold the lower court’s finding that the statute is unconstitutionally vague and allow the legislature to rewrite the statute as it sees fit.

Perhaps after publication of the majority’s opinion a prospective violator of the statute, if he can know about and learn of the opinion and its “narrowing construction,” may inform himself of the provisions of the then non-vague-as-narrowed statute and its prohibited conduct. How that helps this accused individual know of the statutory proscriptions on the date of his conduct, well preceding this opinion, I cam not fathom. Saving the prospect of a conviction of the person here charged with masturbating in the same room in which his ten-month-old daughter was playing, or sleeping, conceivably serves an acceptable purpose. But at the cost of disrespect for applicable legal and constitutional principles, it is hardly defensible.

h KNOLL, Justice,

concurring.

I agree with the majority that the lower court erred in considering attenuated hypothetical applications of La.Rev.Stat. 14:81(A) in ruling , the statute unconstitutional and that a narrowing construction of the statute provides adequate notice to a person of ordinary intelligence and understanding of what conduct is proscribed and an adequate evidentiary standard for jurors to determine guilt or innocence. However, in my view the majority errs in holding that the phrase “in the presence of’ requires the State to prove not only the physical proximity of the child, but also that the child saw or sensed the offender’s actions.

The district court did raise two pertinent questions about the statute that had previously been unanswered by this court’s jurisprudence, namely: (1) whether the child not only must be present but must also be conscious of the sexual activity taking place, or at least capable of becoming conscious of the- activity; and (2) whether the presence of the child must constitute an integral component of the sexual gratification of the offender. The state’s position is that mere physical presence or proximity alone satisfies the “in the presence of’ requirement. Defendant argues that a nexus must also exist linking the conscious presence of the child and the sexual gratification of the individual indulging in the lewd or lascivious act.

The state’s broad reading of the statute would encompass situations in which pthe presence of the child is entirely fortuitous and not brought about by any deliberate conduct by the defendant (e.g., accidental or inadvertent discovery by the child of the defendant masturbating in apparent privacy) or in which the presence of the child has no connection to sexual arousal or gratification (e.g., .parents surreptitiously engaging in sex in the same room as an infant in a crib). I agree with the majority that for cases which involve a sexual display without an accompanying -sexual assault, La.Rev.Stat. 14:81 requires a .defining and narrow construction. In my view, the narrow construction -can be accomplished by requiring a nexus between the child’s, presence and the defendant’s sexual gratification, i.e., the knowing commission of a sexual act in which the presence of a child is either an active or passive stimulus for the adult’s sexual activity and a component of his or her sexual gratification, without regard to whether the child sees or senses that a sexual act is taking place. This construction conforms more closely to the legislative purpose of the statute because the Legislature intended to “cover[ ] indecent sexual displays in the presence of children under the age of seventeen.” 1942 La. Acts 43 § 81 (Official Comment).

Previously, this court has addressed the contention that the words “lewd” and “lascivious” contained in La.Rev.Stat. 14:81 were vague and indefinite. In holding the terms were certain and definite enough to withstand constitutional attack, this court stated: “the necessity that the act be committed with .the intent of arousing sexual desires gives to the words an even more confined meaning.” State v. Holstead, 354 So.2d 493, 498 (La.1977). I find this also applies to a construction of the word presence; the requirement that the act performed in the presence of any child be with the intention of arousing or gratifying the sexual desires of either person gives to the word “presence” a confined meaning, and is adequate to provide notice to a person of ordinary intelligence and understanding of what conduct is proscribed and an | ¡¡adequate evidentiary standard for jurors to determine guilt or innocence. The requirement that the act be done with the intention of arousing or gratifying the sexual desires of either person is sufficient to narrow the construction to avoid constitutional problems, and to avoid prosecution of persons for which the statute was not intended to apply.

The majority’s interpretation, by requiring that in the absence of a physical touching the child must see or sense that a sexual act is taking place, reads a requirement into the statute that was not intended by the legislature. Criminal statutes are to be given a genuine construction according to the fair import of their words, taken in their usual sense, in context, and with reference to the purpose for the provision. La.Rev.Stat. 14:3; State v. Muschkat, 96-2922, p. 5 (La.3/4/98), 706 So.2d 429, 432 (emphasis added). A construction of “presence” to require that the child see or sense that a lewd or lascivious act is being committed is contrary to the legislative intent in enacting La.Rev.Stat. 14:81, which is to prohibit adults from using children, either actively or passively, as stimulants for the adult’s sexual activity. Any narrowing construction given to the statute must remain consistent with the overall purpose behind the legislation. Muschkat, 96-2922 at 10, 706 So.2d at 434.

Further, the majority’s interpretation decriminalizes conduct that heretofore was prohibited by the statute, e.g., a defendant masturbating while standing over a child sleeping in her crib; or a defendant who, under the pretext of playing a game with the child, induces the young child to wear a blindfold and then proceeds to masturbate, utilizing the child as a sexual stimulus but not touching the child. In both scenarios, the children are completely unaware that they have become an integral component of a sexual scenario staged by the defendant with the intention of’ [^gratifying his own sexual desires.

Moreover, the majority’s interpretation places an undue burden of proof on the State that was not required by the statute, namely, to show that the child either saw the sexual act or was aware of the sexual act.

In my view, the majority’s construction of the statute seriously diminishes the compelling state interest of protecting children from becoming objects of adult sexual gratification. Accordingly, for these reasons I concur only in the result.

      . Although the trial court refers to the defendant as "Christian,” as does the state, defense counsel repeatedly and consistently refer to the defendant as "Cristhian” rather than “Christian.” Further, defendant signs his name as "Cristhian.” Accordingly, this opinion refers to the defendant as "Cristhian.”

      . The trial court neither addressed nor ruled upon on the defendant's contention that La. R.S. 14:81(A) violates his Art. I, § 5 right to privacy under the Louisiana Constitution. Further, this issue was neither briefed nor argued before this court. Consequently, we do not address the issue of whether La. R.S. 14:81(A) violates the defendant’s Art. I, § 5 right to privacy under the Louisiana Constitution.

      .The text of the relevant portion of the trial court's ruling is as follows:
      In this case, the defendant was masturbating and watching pornography in his home while his infant child was in the room. There is no indication that the infant child was aware of the defendant's acts, nor that the defendant performed these acts because the infant child was in the room; nor that the infant’s presence in the room was necessary for the defendant to achieve arousal or sexual gratification. Remove the infant child from the room and we are left with an individual performing what is considered a normal and legal activity in the privacy of his home.
      The phrase "presence of any child” also leaves to question whether the child must be physically present in the same room as the actor. Would the defendant’s actions still have violated R.S. 14:81 if he had been masturbating and watching pornography in the TV room while the infant child slept in an adjoining bedroom with the door either open or closed? Go beyond this case, are the parents violating [R.S.] 14:81 when they engage in otherwise normal and legal sexual acts while their child lays, be it asleep or awake, in the same room, or in the same house? By a reading of [R.S.] 14:81, the court does not know.
      Vague also is the requirement that the act be for the purpose of arousal or sexual gratification of either person. It can be assumed that whenever an individual masturbates it is done to accomplish the goal of arousal or sexual gratification. Under [R.S.] 14:81, is that enough? [....] Is it sufficient that arousal or gratification was achieved, or is something more required, must the presence of the child be integral to that arousal or gratification, that is, without the child present, would the arousal or gratification not have occurred? Again, the court does not know.


source: Caselaw Access Project

author: h JOHNSON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Calvin GROSS.
    Nos. 2003-K-2462, 2003-K-2694.
    Supreme Court of Louisiana.
    Feb. 13, 2004.
   In re Gross, Calvin: — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, Nos. 14,778; to the Court of Appeal, First Circuit, Nos. 2002 KA 2282 and 2002 KA 2465.

| /Writ denied.

CALOGERO, C.J., and KIMBALL, J., would grant the writ.

JOHNSON, J., would grant the writ and assigns reasons.

h JOHNSON, J.,

would grant the writ application for the following reasons.

The Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The Sixth Amendment further grants to an accused the right of self-representation. State v. Carpenter, 390 So.2d 1296 (La.1980). In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. Because an accused managing his own defense “relinquishes ... many of the traditional benefits associated with the right to counsel”, he “must ‘knowingly and intelligently’ forego those relinquished benefits” in order to represent himself. Faretta, 95 S.Ct. at 2541.

The State has the burden of proving that a defendant knowingly and intelligently waived his constitutional right to the assistance of counsel. State v. Brooks, 452 So.2d 149 (La.1984). The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); State v. Harper, 381 So.2d 468 (La.1980).

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’

Faretta v. California, 95 S.Ct. at 2541 [citing Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)]. Thus, before a trial judge can allow a defendant to represent himself, he must determine whether defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). State v. Nevels, 457 So.2d 1254 (La.App. 1 Cir.1984); State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985). There should be some indication that the trial court tried to assess defendant’s literacy, competency, understanding and volition before he accepted the waiver of counsel. State v. LaFleur, 391 So.2d 445 (La.1980).

In this case, a review of the transcript makes it abundantly clear that the trial court failed to ascertain whether the defendant’s waiver of his right to counsel was made intelligently. There is no indication that the trial court made an attempt to assess the defendant’s “literacy, competency, understanding, and volition” prior to accepting the waiver of right to counsel. Moreover, the trial court made no attempt to inform the defendant of “the dangers and disadvantages of selfirepresentation.”

Because the record does not establish that the defendant made a knowing and intelligent decision to waive his right to counsel, I would grant this writ application, reverse the defendant’s conviction and sentence, and remand this matter for a new trial.


author: PER CURIAM.

text:
    STATE of Louisiana v. Lawrence J. MATTHEWS.
    No. 2002-K-1121.
    Supreme Court of Louisiana.
    Feb. 13, 2004.
   In re Lawrence J. Matthews; Applying for Rehearing of this Court’s action dated September 19, 2003; from Parish of Orleans, Criminal District Court, Div. J, Nos. 416-7214; to the Court of Appeal, Fourth Circuit, No.2001 KA 868.

PER CURIAM.

Rehearing granted. Our order in State v. Matthews, 02-1121 (La.9/19/03), 855 So.2d 740, is recalled as improvidently granted. The state’s application is denied as untimely, and the decision rendered by the court of appeal in State v. Matthews, 01-0868 (La.App. 4th Cir.3/20/02), 814 So.2d 619, is reinstated.

TRAYLOR and KNOLL, JJ., dissent.

      . Pursuant to our order of September 19, 2003, the court of appeal rendered a second decision in the present case on October 23, 2003. However, respondent timely applied for rehearing, which the court of appeal denied on December 10, 2003, the same day on which this Court issued a stay of all further proceedings in the district court and the court of appeal pending action on respondent's application for reconsideration. See La.S.Ct. Rule 10, § 7(b)("At the time the writ is granted, the court may order peremptory relief. A party affected may apply for rehearing within the delay provided by Rule IX and the court may, with or without application, stay the relief granted to permit consideration of any such application.”). In view of the stay issued by this Court, the court of appeal's rehearing denial of December 10, 2003, did not have the effect of rendering that decision final. Cf. La.C.Cr.P. art. 922(C)("If an application for rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.”). Reinstatement of the decision issued by the court of appeal on March 20, 2002, renders that judgment, reversing respondent’s conviction and sentence, the final and binding disposition of the case.


author: 11 JOHNSON, J.,

text:
    Nicolas ESTIVERNE v. HIBERNIA CORPORATION.
    No. 2003-CC-3411.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
   In re Hibernia Corporation et al.; Eady, Paula; St. Paul Fire & Marine Insurance Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court, Div. C, No. 2000-13428; to the Court of Appeal, Fourth Circuit, No. 2003-C-1850.

Writ granted.

CALOGERO, C.J., would grant and docket.

JOHNSON, J., dissents with reasons.

WEIMER, J., concurs.

11 JOHNSON, J.,

would deny the writ application for the following reasons:

It is clear that pursuant to Supreme Court Rule XIX, §§ 28 and 29, the ODC |2has the power to request the financial records of a lawyer. However, in this case, the Office of Disciplinary Counsel (“ODC”) served Hibernia National Bank with a subpoena duces tecum, requesting records from Mr. Estiverne’s client account. The account number listed on the subpoena was incorrect, so Hibernia’s employee, Brion Workman, telephoned the ODC. Following a conversation with Eric Barefield, the deputy disciplinary counsel listed on the subpoena, Mr. Workman forwarded to the ODC copies of statements from Mr. Estiverne’s client account, as well as statements from Mr. Estiverne’s and his wife’s personal account.

The dissenting court of appeal opinion states, in pertinent part:

In the case at bar, plaintiff/respondent, Nicholas Estiverne, was aware of the subpoena issued by disciplinary counsel to Hibernia Bank.... The plaintiff/respondent, if he did not want the records produced, was obligated to attempt to quash of [sic] the subpoena. Mr. Esti-verne failed to try to quash the subpoena.

Whether Mr. Estiverne was “aware of the subpoena issued” by the ODC is of no moment, as the request for records from the personal account was not contained in the subpoena. The failure to give Mr. Estiverne notice that the ODC was requesting financial records 2’egarding his and his wife’s personal account served to deprive him of the right to attempt to quash the subpoena.

For the foregoing reasons, I would deny the bank’s writ application, and allow the trial court’s decision to stand.

      . Supreme Court Rule XIX, § 28 provides in pertinent part:
      B. Access to Lawyers' Financial Account Records. Every lawyer practicing or admitted to practice law in Louisiana shall, as a condition thereof, be conclusively deemed to have consented to the production by the depository institution of records of all financial accounts maintained by the lawyer in any bank or similar institution.
      C. Request for Production of Records. A request by disciplinary counsel directed to a bank or other financial institution for production of records pursuant to this Section shall certify that the request is issued in accordance with the requirements of this Section and Section 29 of these Rules of Lawyer Disciplinary Enforcement.

      . Supreme Court Rule XIX, § 29 provides:
      A. Generally. Whenever disciplinary counsel has probable cause to believe that financial accounts of a lawyer that contain, should contain, or have contained funds belonging to clients or third parties have not been properly maintained or that the funds have not been properly handled, disciplinary counsel shall request the approval of the chair of a hearing committee selected in order from the roster established by the board to initiate an investigation for the purpose of verifying the accuracy and integrity of all accounts maintained by the lawyer in any bank or similar institution. If the reviewing member approves, counsel shall proceed to verify the accuracy of the financial accounts. If the reviewing member denies approval, counsel may submit the request for approval to one other chair of a hearing committee selected in order from the roster established by the board. B. Confidentiality. Investigations, examinations, and verifications shall be conducted so as to preserve the private and confidential nature of the lawyer's records insofar as is consistent with these rules and the lawyer-client privilege.


author: LPER CURIAM.

text:
    STATE of Louisiana v. Craig A. PARKER.
    No. 2003-K-2736.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
   In re Parker, Craig A.? — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, Nos. 02-0031; to the Court of Appeal, Fourth Circuit, No. 2002-KA-2527.

LPER CURIAM.

Granted. The order of the court of appeal is vacated and the defendant’s sentence is reinstated. The state did not move in the district court for correction of defendant’s sentence, see La.R.S. 15:301.1, or seek correction on review, see La. C.Cr.P. art. 881.2(B), and the presentence report upon which the appellate court relied for its conclusion that defendant is not eligible for suspension of sentence and probation because of his prior record is not part of the record for purposes of error patent review. See State v. Wrestle, Inc., 360 So.2d 831, 837 (La.1978)(“Historically, our jurisprudence does not permit inspection of the trial transcript to ascertain such errors ... but only of the record for purposes of error patent appellate review — in general, the indictment or information, the minutes, and the verdict and sentence.”) (citation omitted). To the extent that amendment of the defendant’s sentence entails more than a ministerial correction based on self-activating terms of the statute defining the offense of conviction, and |2necessarily includes consideration of the report’s contents which otherwise were not contested in the trial court because the state failed to make an issue of them relative to the court’s authority to suspend sentence as a matter of La.C.Cr.P. art. 893, our decision in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, does not sanction the sua sponte correction made by the court of appeal on defendant’s appeal of his conviction and sentence.

TRAYLOR, J., would deny the writ.


text:
    In re Joseph Nicholas BREAUX.
    No. 2004-OB-0518.
    Supreme Court of Louisiana.
    March 10, 2004.
   In re Breaux, Joseph Nicholas; Disciplinary Counsel; — Plaintiff(s); Applying for Joint Petition for Transfer to Disability Inactive Status.

ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status filed by respondent, Joseph Nicholas Breaux, and the Office of Disciplinary Counsel,

IT IS ORDERED that Joseph Nicholas Breaux, Louisiana Bar Roll number 22271, be and he hereby is transferred to disability inactive status pending further orders of this court. All disciplinary proceedings in this matter shall be deferred until such time as respondent resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Stevens Joseph WHITE.
    No. 2004-OB-0325.
    Supreme Court of Louisiana.
    March 9, 2004.
   In re White, Stevens J.; — Plaintiff; Applying for Petition for Voluntary Permanent Resignation from the Practice of Law Office of Disciplinary Board, No. 03-DB-049.

ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Stevens Joseph White, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Stevens Joseph White, Louisiana Bar Roll number 8750, for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

IT IS FURTHER ORDERED that Stevens Joseph White shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

TRAYLOR, J., would reject the petition.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Stevens Joseph WHITE.
    No. 2004-OB-0324.
    Supreme Court of Louisiana.
    March 9, 2004.
   In re White, Stevens Jr.; — Plaintiff; Applying for Petition for Return to Active Status Office of Disciplinary Board, No. 03-DB-049.

ORDER

Considering the Petition for Return to Active Status filed by respondent, Stevens Joseph White,

IT IS ORDERED that Stevens Joseph White, Louisiana Bar Roll number 8750, be and hereby is reinstated to the practice of law. This order shall be effective immediately.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Ronald F. DeFRANCES.
    No. 2004-OB-0265.
    Supreme Court of Louisiana.
    March 10, 2004.
   In re DeFrances, Ronald F.; — Plaintiff; Applying for Permanent Resignation.

ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Ronald F. DeFrances, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Ronald F. DeFrances, Louisiana Bar Roll number 4800, for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

IT IS FURTHER ORDERED that Ronald F. DeFrances shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/a/ John L. Weimer Justice, Supreme Court of Louisiana


author:
I .McDonald, j.
      b KUHN, Judge

text:
    Rebecca J. LOUT v. BOOTSY’S DELI (Sedco, Inc.)
    No. 2002 CA 2703.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Daniel E. Becnel, III, LaPlace, Counsel for Plaintiff/Appellant Rebecca J. Lout.
    Jeffrey C. Napolitano, Bradley P. Nae-cari, Metairie, Counsel for Defendant/Ap-pellee Bootsy’s Deli (Sedeo Inc.).
    Before: WHIPPLE, KUHN, and MCDONALD.
   I .McDonald, j.

The appellate record indicates that the appellant timely filed an appeal in this matter on October 16, 2002. The briefing schedule in conformity with Rule 2-12.7 provided that appellant’s brief was due on January 21, 2003. Appellant filed a motion for extension of time to file her brief and was given until February 5, 2003, to do so. On that date, the appellant filed a second request for an extension of time to file her brief and was given until February 20, 2003, to do so. However, appellant failed to file her brief. On February 27, 2003, a letter was sent to appellant from the clerk of this court advising her that she had until March 29, 2003, to file her brief or her appeal would be dismissed.

Appellant suggests that she mailed her brief on March 28, 2003, but failed to include a copy of the judgment from the workers’ compensation judge. Uniform Rules-Courts of Appeal 2-12.4 requires that the judgment “shall be appended to the brief of the complaining litigant on appeal.” Upon learning of this, the judgment was sent. However, appellant does not dispute that the brief that included the attached judgment was filed three days late, or than an order of dismissal was issued on April 7, 2003.

Subsequent to this dismissal, plaintiff filed an application for rehearing and a motion to reinstate the appeal. The motion was granted by this court and the appeal was reinstated, for purposes of argument, on May 16, 2003. On May 30, 2003, defendant filed a motion to dismiss the appeal, contending that the matter had become final when appellant failed to file the brief and the order of dismissal issued. We agree.

Appellant has failed to meet any of the deadlines set by this court. The appeal is dismissed. Appellee’s timely filed answer is dismissed as moot. Costs are assessed against the appellant.

APPEAL DISMISSED.

KUHN, J., concurs & assigns reasons.

b KUHN, Judge

additionally concurring.

We do not reach the merits of this dispute because appellant did not timely file her appellate brief. However, if we were to address the merits, I would find no error in the ruling of the Office of Workers’ Compensation.


author: | sGAIDRY, J. | í FITZSIMMONS, Judge,

text:
    Dr. Daniel G. KYLE, Louisiana State Legislative Auditor v. Scott M. PERRILLOUX, District Attorney of 21st Judicial District Court
    No. 2002 CA 1816.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Jennifer Schaye, Baton Rouge, Counsel for Plaintiff/Appellant Grover C. Austin, CPA, Acting Legislative Auditor.
    Scott M. Perrilloux, Amite, Counsel for Defendant/Appellee Scott M. Perrilloux, District Attorney.
    Eric L. Pittman, Nicholas J. Muscarello, Jr., Denham Springs, Counsel for Interve-nor/Appellee Bryan T. McMahon, doing business as The Ponchatoula Times.
    Christopher M. Guidroz, Thomas J. Fischer, New Orleans, Counsel for Amicus Curiae Louisiana Society of Certified Public Accountants.
    David A. Woolridge, Jr., Baton Rouge, Counsel for Amicus Curiae Louisiana Press Association, Inc.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.

      . In January 2003, Dr. Kyle resigned his position. As of this writing, his duties have been assumed by Grover C. Austin, C.P.A., First Assistant Legislative Auditor, as acting Legislative Auditor, pursuant to La. R.S. 24:511 (C).

   | sGAIDRY, J.

This is an action by the legislative auditor, seeking injunctive relief against the district attorney of the 21st Judicial District, prohibiting him from releasing copies of work papers in his possession, obtained by investigative subpoena from the legislator auditor, and now the subject of public records requests under the Public Records Law, La. 44:1, eb seq. The legislative auditor claims that his work papers are specifically exempt from disclosure by virtue of La. R.S. 44:4(6) and by virtue of the records being the subject of grand jury testimony from the auditor who conducted the audit and compiled the work papers. One person requesting the records intervened in this action, and opposes the granting of injunctive relief on the grounds that the records are public records subject to inspection. Additionally, the Louisiana Press Association, Inc., and the Louisiana Society of Certified Public Accountants, have submitted amicus curiae briefs. As far as we are able to determine, the issues presented are res novae in this state.

FACTS AND PROCEDURAL HISTORY

On February 27, 2002, the state legislative auditor released his report relating to a limited examination and investigative audit of the clerk of court of Tangipahoa Parish. A copy of the report was received by the defendant/appellee, Scott M. Perril-loux, district attorney for the 21st Judicial District, which includes Tangipahoa Parish. Based upon the content of the report, the district attorney decided to open an investigation for possible criminal charges. On March 12, 2002, .a subpoena duces, .te-cum was requested and issued pursuant to the authority of La.C.Cr.P. art. 66, which authorizes a district attorney to move for the issuance of subpoenas “concerning any offense under investigation by him.” The subpoena was |4directed to the legislative auditor, ordering the production of “[a]ny and all working papers, statements, tapes, photographs, video tapes, charts, [and] copies of any pertinent records” relating to the investigative audit. On March 19, 2002, copies of the requested documents (the work papers) were provided by the legislative auditor to the district attorney.

The district attorney presented the results of his investigation to a grand jury in June 2002. Included in the evidence presented was the testimony of Eric Sloan, the assistant legislative auditor who conducted the investigative audit. The grand jury pretermitted the matter, rather than returning either a “true bill” or “not a true bill.” •

On June 24, 2002, the clerk of court, John J. Dahmer, requested by letter that the district attorney furnish Him with “all material in [his] possession relating to the grand jury hearing ■... and investigations conducted in reference to'same,” including “récordings [and] memoranda from the State Legislative Auditor, persons interviewed and information voluntarily issued. [sic ]” On June^ 27, Bryan T. McMahon, the publisher of The Ponchatoula Times, also submitted a public records request to the district attorney, requesting “the file on the recent accusations and grand jury proceedings” relating to the clerk of court. Later that day, the district attorney contacted the legislative auditor’s general counsel and advised her of his determination to release the records requested, including the copies of the work papers previously furnished to him in response to the subpoena duces tecum. The following day, the legislative auditor filed a petition for a | stemporary restraining order, and applied for preliminary and permanent injunctions to prohibit the district attorney from releasing the copies of the work papers to the public. On July 2, 2002, a third public records request was sent to the district attorney by Avery J. Davidson of WAFB TV-9,, a Baton Rouge television station, requesting, “all documents concerning the grand jury investigation” of the clerk of court, including “work papers from the Louisiana Legislative Auditor’s Office.”

Following the issuance of the temporary restraining order, the hearing on the application for the preliminary and permanent injunctions was held on July 11, 2002. After hearing the testimony and receiving evidence, the trial court denied the legislative auditor’s application for injunctive relief, but stayed the effect of its ruling pending appeal. Its judgment in that regard was signed on July 29, 2002, and this appeal by the legislative auditor follows.

ANALYSIS

Article XII, § 3 of the Louisiana Constitution provides:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law. (Our emphasis.)

This provision specifically empowers the legislature to establish such exceptions to access to public documents as it determines are in the public interest. St. Mary Anesthesia Associates, Inc. v. Hospital Service District No. 2 of the Parish of St. Mary, 01-2852, p. 11 (La.App. 1st Cir.12/20/02), 836 So.2d 379, 387, writ denied, 03-0220 (La.3/28/03), 840 So.2d 577. However, the Louisiana Supreme Court has repeatedly emphasized that this constitutional provision “must be construed liberally in favor of free and unrestricted access to public documents, and that access can be denied only when a law, specifically and unequivocally, provides otherwise.” DeSalvo v. State, 624 So.2d 897, 902 (La.1993), cert. denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386.

The Public Records Law, La. R.S. 44:1, et seq., has a venerable history in our state, having its genesis in Acts 1912, No. 242, before being substantially revised by Acts 1940, No. 195, with later amendments and additions implementing the current constitutional right. It was enacted to implement the inherent right of the public to be reasonably informed as to the manner, basis, and reasons upon which governmental affairs are conducted. United Financial Services of Baton Rouge, Inc. v. Guste, 555 So.2d 561, 563 (La.App. 1st Cir.1989).

Louisiana Revised Statutes 44:31 provides as follows:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of any public record.
(2) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

As the party seeking injunctive relief and one seeking to prevent disclosure of records which are arguably public records, the legislative auditor bears the burden of proving that the records requested are exempt from the provisions of the Public Records Law. See La. R.S. 44:31(B)(2); La. R.S. 44:35(B); State v. Mart, 96-1584, p. 7 (La.App. 1st Cir.6/20/97), 697 So.2d 1055, 1059. The legislative auditor has invoked La. R.S. 44:4(6) as the primary basis for his claim of exemption of the records at issue. This statute provides, in relevant part:

17This Chapter [the Public Records Law] shall not apply:
(6) To any records, writings, accounts, letters, letter books, photographs or copies or memoranda thereof in the custody or control of the legislative'auditor, or to the actual working papers of the internal auditor of a municipality until the audit is complete, unless otherwise provided. (Our emphasis.)

In the alternative, the legislative auditor contends that the documents at issue were brought within the ambit of grand jury proceedings through the testimony of Mr. Sloan, and therefore entitled to the same secrecy to which grand jury testimony and evidence are subject, pursuant to La. C.CrJP. art. 434(A).

The resolution of this dispute, in our view, hinges upon the proper determination of (1) the custodian of the particular records sought, and (2) whether those records are “public records” within the meaning of the law.

WHO IS THE CUSTODIAN OF THE RECORDS?

La. R.S. 44:1(A)(3) defines “custodian” for purposes of the Public Records Law as “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.”

It is undisputed that the copies of the work papers at issue are in the physical possession of the district attorney, and that they form part of the records of his office. There is therefore a rebuttable presumption that he is their custodian for purposes of the Public Records Law. State ex rel. Wogan v. Clements, 192 So. 126, 131 (La.App.Orl.Cir.1939), affirmed, 194 La. 812, 195 So. 1 (La.1940). But physical possession is not synonymous with “custody or control.” See.CII Carbon, L.L.C. v. St. Blanc, 99-1043, p. 5 (La.App. 1st Cir.7/31/00), 764 So.2d 1229, 1232, writ denied, 00-2781 (La.11/27/00), 775 So.2d 1069. Notably, the record before us does not show that the district attorney denied having “custody or control” of the requested records upon receipt of the records requests, nor that he made the required written certification of their “absence” from his custody or control, the reason for such “absence,” and their present custodian. La. R.S. 44:34. This supports the presumption that the copies of the work papers in his possession were in his custody or control.

-The three records requests were directed to the district attorney for his “file,” “all material in [his] possession,”- and “documents” relating -to his investigation, two requests specifically referring to records of the legislative auditor. The intervenor contends that the records it requested, including the copies of the work papers, are public records relating to closed criminal investigation or litigation, and therefore removed from the exemption of La. R.S. 44:3(A)(1), which provides in pertinent part:

A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of ... district attorneys, ... which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled ....

IflThe legislative auditor contends that because the copies of the work papers were not generated by the district attorney in his own investigation, he cannot properly be considered their custodian. We respectfully beg to differ. Although the district attorney did not prepare the work papers, he obtained copies of them for his investigative file through an authorized investigatory device, and there is no evidence that the copies delivered to him in compliance with the subpoena duces te-cum remained in the legal custody or under the control of the legislative auditor. There is nothing in La. R.S. 44:4(6) which suggests that investigative records in the possession of a law enforcement agency or official, otherwise meeting the definition of “public records,” lose such quality simply because they are identical to or even photocopied duplicates of work papers and other records of the legislative auditor.

It is important to note that the legislative auditor did not seek to quash the subpoena duces tecum as overly broad, or to obtain a protective order restricting public access to the copies of the work papers or recognizing his custody or control of those copies. The use of compulsory process is always subject to judicial review to prevent abuse and to enforce interests protected by law. And there is no evidence of any inter-agency confidentiality agreement between the legislative auditor and district attorney as to the ownership, custody, or control of the copies of the work papers. The legislative auditor testified that such an agreement exists in standing form between his office and the attorney general.

|inOn the record before us, the legislative auditor has plainly failed to overcome the presumption of the district attorney’s custody and control of the copies of the work papers in his file, and has likewise failed to meet the burden of proving that he is the custodian or entitled to control of the copies of the work papers.

ARE THE COPIES OF THE WORK PAPERS “PUBLIC RECORDS”?

Louisiana Revised Statutes 44:l(A)(2)(a) broadly defines “public records” as records having been used, being in use, prepared, possessed, or retained by a public body in its conduct, transaction, work, duty, function, or performance of its business. CII Carbon, 99-1043 at p. 5, 764 So.2d at 1232. But for the exemption granted in La. R.S. 44:4(6), the legislative auditor’s work papers would clearly fall within that broad definition. We must decide whether that exemption extends to copies of the work papers which were indisputably “used,” “possessed,” and “retained for use” by the district attorney.

In acting within his broad authority in the examination of documents and other records, the legislative auditor must “comply with any and all restrictions imposed by law on documents, data, or information deemed confidential by law and furnished to the legislative auditor.” La. R.S.r 24:513(H). And although the audit reports issued by the legislative auditor are public records as provided by La. R.S. 44:6, “any documents, data, or information furnished the legislative auditor which are deemed confidential by law ” are not subject to the Public Records Law. La. R.S. 24:513(F). The phrase emphasized above is significant. On the one hand, it can be interpreted as a reference to La. R.S. 44:4(6), recognizing a broad privilege created by that statute in favor of the legislative audb tor. On the other hand, it could also be read as implying that “documents, data, or information” h ifurnished to the legislative auditor which are not deemed confidential under the law might be subject to disclosure. But this issue is not before us, and we therefore decline to address any possible conflict between La. R.S. 24:513(F) and La. R.S. 44:4(6) as they relate' to documents in the custody or control of the legislative auditor. It is only necessary for us to determine the character of the copies of the work papers, which we have concluded were in the custody and control of the district attorney.

In determining the character of the shared records at issue, it is riecessary to briefly examine the interrelationship between the officials who shared the records. Louisiana Revised Statutes 24:513(G) imposes a duty on local district attorneys to “give assistance to the legislative auditor” in the performance of his work. Louisiana Revised Statutes 24:516(A)(2) requires the legislative auditor to furnish a copy of any audit report disclosing any alleged criminal conduct by a public official or employee to the district attorney of the parish, where the offense was committed. In turn, within thirty days of his receipt of such an audit report, the district attorney must advise the chairman of the Legislative Audit Advisory Council of any action taken or which he proposes to take in connection with the alleged illegality. La. R.S. 24:519(B). /

haThe legislative auditor has no authority to prefer criminal charges based upon the results of his audits; such is. the responsibility of the appropriate prosecutive officials. It can reasonably be anticipated that a district attorney charged with the responsibility of prosecuting a criminal offense disclosed by an audit would seek access to all investigative material in order to effectively weigh the merits of the case and to secure a- conviction.

The legislative auditor urges that the district attorney, in obtaining the issuance of the investigative subpoena, did so with the. knowledge .that the work papers and copies thereof. were exempt from disclosure under La. R.S, 44:4(6). Even assuming this to be true, we fail to see why the converse principle would not apply: by surrendering copies of the work papers (albeit in response to a subpoena) to the custody or control of the district attorney conducting an investigation of possible criminal wrongdoing, the legislative auditor did so with the knowledge that once pending charges are adjudicated or dismissed, or prosecution is not reasonably anticipated or otherwise “settled,” those copies become “public records” subject to disclosure under La. R.S. 44:3(A)(1).

The legislative auditor urges that because his office performs investigative functions, at the very least his work papers are exempt from | ^disclosure under La. R.S. 44:3(A)(1) until the matter under investigation is adjudicated or settled from his perspective. We disagree. The legislative auditor is not included in the list of prosecutive, investigative, and law enforcement officials and agencies in La. R.S. 44:3. Despite his factfinding or investigative duties, the legislative auditor and his office’s employees performing audits are not law enforcement personnel. State v. Hammond, 97-1677, pp. 6-8 (La.App. 4th Cir.12/30/97), 706 So.2d 530, 533-34. Indeed, this fact was admitted' by the legislative auditor several times in his testimony. The legislative auditor admitted in his testimony that the limited examination and audit were complete as to the issues raised therein. The district attorney testified that no criminal litigation was pending as to the issues raised in the audit report and the audit work papers, and that he did not anticipate “any likelihood that there will be criminal charges.” Thus, there is nothing upon which the district attorney could base a denial of access to his nonconfidential records under La. R.S. 44:3(A)(1).

We next address the legislative auditor’s alternate argument that the copies of the work papers are subject to the secrecy required as part of grand jury proceedings under La.C.Cr.P. art. 434(A). The work papers were “separate” from the grand jury investigation, and were not “part of the grand jury investigation” in the sense of being “connected with” it. See Fryar v. Guste, 371 So.2d 742, 745 (La.1979). They simply constitute documentation of the facts upon which Mr. Sloan’s later testimony was based. As such, they do not fall within the ambit of La.C.Cr.P. art. 434(A).

The Louisiana Society of Certified Public Accountants raises the point that the legislative auditor’s work papers fall within the accountant-client privilege embodied in La. C.E. arts. 515-17. Similarly, it urges that La. R.S. 37:86 and 37:87 of the Louisiana Accountancy Act, dealing with 114confidential communications or information divulged to accountants and ownership of accountants’ work papers, also set standards against disclosure of the copies of the work papers at issue. But these points are easily disposed of by consideration of who the “client” is. The “client” of the legislative auditor is the legislature, the elected representatives of the public. And the public, through the legislature, has in effect waived any privilege in favor of disclosure of these records by enacting the law applicable to the particular facts present here. Additionally, the Society has failed to address the unequivocal language of La. R.S. 37:95, which provides that “[njothing in this Part shall apply to ... any practices, services, functions, or other actions performed by the duly elected or appointed legislative auditor ... in the discharge of the powers, duties, and functions committed to his office by the state constitution or any statute.” Finally, La. R.S. 37:86(A)(2) plainly states that the statute “shall not apply to any audit conducted pursuant to R.S. 24:511 through 521 [the statutes pertaining to the legislative auditor].”

The points made by the legislative auditor and the Society address legitimate concerns and are compelling. But weighed against those valid considerations is the no less valid consideration of openness of public records. While the legislative auditor points out the apparent incongruity between allowing public access to copies of his work papers obtained by a district attorney, yet denying access to the originals still in his possession, 11F;any incongruity must ultimately be reconciled in favor of the public's right of access. The preeminent status of the right of access to public records reinforces our interpretation that the records at issue are encompassed within the meaning of public records of the district attorney under La. R.S. 44:3(A)(1), and, as such, constitute an exception “otherwise provided” by law under La. R.S. 44:4(6). Given the factual context of this controversy and the requirement of liberal construction in favor of access to public records, we must resolve it in favor of providing such access.

DECREE

The judgment of the trial court, denying the application of the legislative auditor for preliminary and permanent injunctions, is affirmed.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

| í FITZSIMMONS, Judge,

concurring with reasons.

When tendered in an effort to cooperate with another governmental investigation, documents produced under subpoena; especially, should not automatically lose their confidentiality from the mandated act of physical transfer alone. In my opinion, to hold that custody of the information is transferred by allowing access will discourage the sanctioned sharing of information between governmental investigative entities. In these troubled times, the public good is not fostered by discouraging valid exchanges of information. Nor is this opinion necessarily dependent on an interpretation of any rule of confidentiality between a certified public accountant and his client. Instead, this case presents different facts. The facts presented show that the documents are no longer confidential.

La. R.S. 44:4(6) allows a public records exemption for the working papers of the legislative auditor, “unless otherwise provided.” La. R.S. 44:4(6); see La; R.S. 44:l(2)(a). Presumably, if the legislature had meant to provide a more substantial exemption, it would not have added the phrase, “unless otherwise provided.” See, e.g., La. R.S. 44:4(17). I believe that one of the “otherwise” provisions is found in La. R.S. 44:2. “After final disposition” of a legislative investigation, such as the one conducted by the legislative auditor, “the records, writings, accounts, ... or copies thereof, are public records.... ” La. R.S. 44:2. Another exemption is provided for records pertaining to a “pending criminal litigation,” or one that is “reasonably anticipated .... ” La. R.S. 44:3(A)(1). However, similar to the 12provision of La. R.S. 44:2, once the criminal litigation is ended, or no longer “reasonably anticipated,” the previously protected records lose their exemption. La. R.S. 44:3(A)(1). Now that the audit investigation is complete, and no criminal litigation is pending or contemplated, the working papers of the auditor are no longer exempt from the public records law. For these reasons, I respectfully concur.

      . The legislative auditor testified at trial that all of the documents listed in La. R.S. 44:4(6) and those described in the subpoena duces tecum fell into the category of audit "work papers,” defined by him as the "raw data” and evidence accumulated during the course of an audit. "Working papers” in the accounting field have been defined as "the records kept by an independent auditor of the procedures followed, tests performed, information obtained, and conclusions reached pertinent to his or her examination.” Black’s Law Dictionary 1605-06 (6th ed.1990).'

      . In Wogan, the court held that the right of access of the Supervisor of Public Accounts (the predecessor to the legislative auditor) to public records of agencies being audited did not vest him with their “custody or control,” so as to prevent their disclosure under the statute equivalent to La. R.S. 44:4(6) at that time.

      . For example, a custodian .may not avoid his responsibility to control public records in his custody by transferring physical possession to another. Alliance for Affordable Energy v. Frick, 96-1763, p. 10 (La.App. 4th Cir.5/28/97), 695 So.2d 1126, 1133. See also Bridges v. Collier, 21 Media L. Rep. 1061 (La.C. D.Ct.Orl.1992).

      . See La. R.S. 44:l(A)(2)(a) and discussion relative to it, infra.

      . Conceivably, under such an agreement the district attorney would be required to segregate the work papers as nonpublic records under La. R.S. 44:32(B). But whether such an agreement may legally prevent shared records from being categorized as public records subject to disclosure is an issue which, thankfully, we need not address today.

      . See, e.g., Goode v. New Hampshire Office of the Legislative Budget Assistant, 148 N.H. 551, 813 A.2d 381 (N.H.2002). The New Hampshire Right-To-Know Law, RSA 91-A, governs the right of access to public records, but exempts certain records pertaining to "confidential” information. In Goode, the New Hampshire Supreme Court held that even if the audit work papers at issue were deemed confidential, they were not¿>er se exempt from disclosure, and a court must apply a balancing test to weigh the benefits of public disclosure against the benefits of nondisclosure. The court rejected the legislative budget assistant's argument that audit investigation would be" compromised by interviewees’ reluctance to disclose’ information which might become public, finding it was outweighed by the public's interest in disclosure. Goode, 148 N.H. at 555-56, 813 A.2d at 387. The court did note, however, that a subsequent enactment specifically exempting "[ajudit work papers and notes” made the issue unlikely to arise again. Goode, 148 N.H. at 556, 813 A.2d at 388.

      . Interestingly, the converse factual situation was involved in State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 685 N.E.2d 1223 (Ohio 1997). There, newspaper publishers made public records requests of the Ohio state auditor for his working papers related to an audit of a water service district. The auditor incorporated within his working papers certain records provided by the special prosecutor investigating corruption in a county serviced by the water district. The auditor resisted production of all of the working papers, even though Ohio law classified them as public records subject to disclosure, on the grounds that the records were exempted from disclosure as grand jury materials and investigatory work product of the special prosecutor. In addition to finding that the auditor waived his right to assert exemptions by prior representations of the records' public nature and release of their contents, the Ohio Supreme Court held that “[t]he prosecutor should have been aware that records [he released] which [the auditor] considered in his audit of a public entity would be subject to disclosure” under Ohio's public records law. Petro, 80 Ohio St.3d at 265, 685 N.E.2d at 1227.

      . See Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 93, 722 S.W.2d 581 (Ark.1987), 291 Ark. 89, 722 S.W.2d 581, 583, wherein the Arkansas Supreme Court rejected a similar argument as to confidentiality of "audit work papers” of the Arkansas legislative auditor based upon the Code of Ethics of the American Institute of Certified Public Accountants. It observed that "these accountants work for the public, not private clients” and "[t]he legislature decides what will be made public and it has spoken with the Freedom of Information Act.” Woosley, 291 Ark. at 93, 722 S.W.2d at 583. The Society further relies on La. C.E. art. 502(B), providing that a claim of privilege is not defeated by a disclosure which was compelled. Its reliance on that article is likewise misplaced, as it fails to consider that the "client” upon whom the privilege is conferred may waive the privilege, even though the accountant does not.


author: | .FITZSIMMONS, J. 11 GAIDRY, J.,

text:
    In the Matter of SUCCESSION OF Rudolph Holmes HATCHELL.
    No. 2003 CA 0163.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Darlene Hatchell, Denham Springs, Pro Se — -Appellant.
    Sherman Q. Mack, Albany, Counsel for Appellant Raymond Hatchell.
    Eric L. Pittman, William S. Dykes, Den-ham Springs, Counsel for Appellee Jacqueline Hatchell Borchgrevink.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | .FITZSIMMONS, J.

Petitioners, Paulette Hatchell Drum-mond (Mrs. Drummond), Darlene Hatc-hell Blackwell, and Raymond Coe Hatc-hell (Mr. Hatchell) contested a petition by Jacqueline Hatchell Borchgrevink (Mrs. Borchgrevink) for probate of notarial testament of a copy of a “Last Will and Testament” of Rudolph Holmes Hatchell (decedent) and for confirmation of testamentary executrix. The trial court held that the copy of the will presented for probate was valid. Mr. Hatc-hell appealed. Following our review of the evidence and applicable law, this court affirms.

The decedent executed a will on December 17, 1987. In the will, the decedent disinherited petitioners for failure to communicate with him for two years. He named his remaining daughter, Mrs. Bor-chgrevink, as the residual legatee of his estate. After decedent’s death on July 24, 2000, Mrs. Borchgrevink presented a copy of the 1987 will for probate because the original will was missing. Her sibling petitioners opposed the probate of the copy of the will. Following the trial court judgment, petitioners filed a motion for new trial asserting the discovery of at least one additional witness who could testify to the fact that a new will was executed by the decedent after the 1987 will.

The trial court denied the motion for new trial. Raymond Hatchell has appealed the judgment. In a single assignment of error, Mr. Hatehell asserts that the court erred in not considering evidence of a new testament that was demonstrative of decedent’s intent to revoke the December 17, 1987 will. Although Mr. Hatchell’s assignment of error could be construed as strictly limited to the denial of motion for new trial, it is somewhat ambivalent. Therefore, we |swill incorporate a discussion of the validity, vel non, of the trial court judgment recognizing the copy of the will for purposes of probation.

When a will cannot be found at the testator’s death, there arises a presumption that the testator has destroyed the will with the intent of revoking it. Succession of Talbot, 530 So.2d 1132, 1134-1135 (La.1988) The presumption may be rebutted by “clear proof’ (1) that the testator made a valid will; (2) of the contents or substantiality of the will; and (3) that the will was not revoked by the testator. In Re Succession of Claiborne, 99-2415, p. 3 (LaApp. 1 Cir. 11/3/00), 769 So.2d 1267, 1268, writs denied, 2000-3283 (La.2/16/01), 786 So.2d 98 and 2000-3310 (La.2/16/01), 786 So.2d 99 (citing Succession of Nunley, 224 La. 251, 69 So.2d 33, 35 (1953)). An exponent of such a will assumes the burden of demonstrating that the testator did not intend to revoke the will by destroying it. See Succession of Talbot, 530 So.2d at 1135. In this regard, the jurisprudence has created a sliding scale of the requisite proof to refute the presumption, depending on the weakness or strength of the evidence surrounding the lost original. In Re Succession of Claiborne, 99-2415, p. 4, 769 So.2d at 1269.

In the case at hand, Mrs. Borchgrevink testified that her father gave her a copy of the contested will shortly after he had confected it in 1987. She also saw the original will at her father’s house on several occasions, particularly in 1988 when she was assisting him with bills and shopping. Mrs. Borchgrevink stated that the last time she saw the original 1987 will occurred at the home of her sister, Mrs. Drummond, after her father went to the hospital in June 1999. At that time, the children had collectively taken all of them father’s important papers to Mrs. Drum-mond’s home. The evidence revealed that Mrs. Borchgrevink assumed the primary role as caretaker for the decedent during the last years of his life. The decedent never returned to his own home before he passed away in August 2000.

|4Mrs. Drummond testified that she “knew nothing of the 1987 will” until Mrs. Borchgrevink advised her about it via email. She denied ever having physically possessed an original last will and testament. Mr. Hatehell stated that he was not aware of a 1987 will until opposing counsel showed him a copy. He did not recall if his sister, Mrs. Drummond, had indicated to him that everything had been left to Mrs. Borchgrevink. William Rudolph Hatehell, decedent’s grandson and son of Mr. Hatehell, admitted that his father and the decedent were not “getting along too well” for years prior to the decedent’s death.

Counsel for Mrs. Borchgrevink introduced copies of four emails between Mrs. Drummond and Mrs. Borchgrevink. The first one, dated September 15, 1999, was sent several months after the decedent had gone to the hospital. In the transmission, Mrs. Drummond advised Mrs. Borchgre-vink of sibling “difficulty dealing with the fact that Dad has willed his portion of the property to you.” In a second email, dated September 20, 1999, Mrs. Borchgrevink requested a copy of the will that “you guys are so upset about .... ” Mrs. Drummond responded that she would fax Mrs. Bor-chgrevink a copy the next morning. The emails corroborate the position of Mrs. Borchgrevink and undermine petitioners’ case vis-a-vis the 1987 will. Thus, this court does not attribute error to the trial court in its determination that Mrs. Bor-chgrevink successfully rebutted the presumption that the 1987 will had been revoked.

Turning to the motion for new trial, it is asserted that there was sufficient evidence introduced to affirm the existence of a subsequent testament after decedent’s will of December 17, 1987. In the motion for new trial, Mr. Hatchell indicated that there were “some new witnesses” and “new evidence” which required additional discovery. During oral argument, movant stated that the notary public of a purported subsequent will had been found during the prior week and that counsel was trying to schedule her deposition. However, no evidence to | ^substantiate the existence of a subsequent will was presented; nor was there any supportive testimony by witnesses.

Louisiana Code of Civil Procedure articles 1972 and 1973 address the grounds necessary to grant a new trial. In order to successfully assert a motion for new trial based on La. C.C.P. art.1972, a mov-ant is required to demonstrate the “discovery of evidence important to the case that they could not, with due diligence have obtained before or during the trial.” The due diligence requirement was not met; therefore, movants are precluded from the peremptory grounds for a motion for new trial. Thereafter, article 1973 provides a trial court with the discretionary right to grant a new trial in cases in which there has been a demonstration of “good ground therefor[.]” However, in the instant case, movants merely alluded to an unnamed notary public who purportedly participated in the execution of a subsequent will. “Good ground” demands greater specificity than movants provided. Accordingly, the trial court did not abuse its discretion in its denial of the motion for new trial.

The judgment of the trial court is affirmed. All costs associated with this appeal are assessed to Raymond Coe Hatc-hell.

AFFIRMED.

GAIDRY, J., concurs and assigns reasons.

11 GAIDRY, J.,

concurring and assigning reasons.

While I agree with the outcome in this case, I disagree with the analysis of the court. Specifically, I disagree that the rebuttable presumption of revocation adopted by the court in Succession of Talbot, 530 So.2d 1132 (La.1988), ever arose in this case.

In Talbot, the Louisiana Supreme Court adopted the uniformly adhered to rule that “the failure to find a will which was duly executed and in the possession of, or readily accessible to, the testator, gives rise to a legal presumption of revocation by destruction.” (Emphasis added).

In this case, the evidence established that the 1987 testament was neither in the possession of, nor readily accessible to, the decedent prior to his death. The decedent was in a nursing home, and the original testament was proven to be in the possession of Mrs. Drummond. Therefore, the presumption of revocation adopted by the court in Talbot never arose in this case.

Because there is no presumption that the will was revoked in this case, we are simply dealing with a lost document; that is, probating a copy of a |2will where the original has been lost. Under article 1004 of the Louisiana Code of Evidence, a copy is admissible in place of the original when the original has been lost and where the proponent of the document has not lost or destroyed it in bad faith. Mrs. Borehgre-vink, the proponent of the lost document in this case, did not have possession of the lost document and is not the one who lost it. Therefore, the copy of the will is acceptable for probate in this case in place of the original. See Succession of O’Brien, 168 La. 303, 121 So. 874 (1929).

      . Darlene Hatchell Blackwell asserted a separate subsequent pro se motion for new trial in which she alleged that she had discovered proof within her possession which negated testator’s cause for disinherison. She also challenged the testator’s “statements of fact” and, therefore, his state of mind at the time of the execution of the contested will. On appeal, Darlene Hatchell Blackwell has filed a pro se “Statement to the Court,” in which she states that "Plaintiff has not yet completed her action in trial court,” and she "reserves the right to appeal in a timely manner from the trial court's ruling at such time as Plaintiff's actions in the trial court have been completed.” The record does not reveal further action by Mrs. Blackwell.