author: PICKETT, Judge. PETERS, J.,

text:
    Darryl HINNARD v. SECURITAS SECURITY SERVICES USA, INC.
    No. 2007-45.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2007.
    Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee: Betty Hinnard.
    Deanne Breaux McCauley Rabalais, Un-land & Lorio, Covington, LA, for Defendant/Appellant: Securitas Security Services USA, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| /The defendant, Securitas Security Services USA, Inc. (Securitas), appeals a judgment of an Office of Workers’ Compensation Judge (WCJ) finding the claimant, Darryl Hinnard, entitled to weekly benefits based upon a 40-hour work week (the hours he was working at the job he held at the time he became unable to continue working), rather than the 24-hour work week (the hours the claimant was working at the job he held at the time of the original accident). The appellant also claims the WCJ erred in awarding the claimant court costs, as this issue had been previously decided in a consent judgment. We affirm in part and reverse in part.

FACTS

The claimant, Darryl Hinnard, died during the pendency of this appeal and his mother, Betty Hinnard, was substituted as party-plaintiff.

The claimant underwent a double lung transplant in May 1999 for reasons unrelated to his employment. In August 2000 he resumed his employment as a part-time security guard (24 hours per week, average) for Securitas. On October 29, 2001, while working at the Royal Palace Casino, the claimant was injured when a car crashed into the casino striking him, knocking a video poker machine into him, and propelling him into a podium on the casino floor. The claimant was out of work and received compensation benefits for approximately three months, returning to work in late January 2002. For the following year, the claimant worked, for the most part, 24-32 hours per week. Beginning in April 2003, he generally worked 40 or more hours per week up until he was hospitalized in September 2003, after which time he could not return to work. While his employment record shows some exceptions, the claimant stated in his deposition that any time he took off between April and | ..¡September 2003 was for medical reasons. He stated that he had two surgeries, one for kidney problems and the other to have “another stent put in my lungs.” He stated that he also had to take off a day or two a few times because of back pain. The claimant noted that he earned no “sick time” while working for Securitas and that when he took time off for back pain, “I never filed it.”

Mr. Hinnard explained that Securitas provided security and security-related services to a number of businesses. When he started he was working solely as a security guard on a part-time basis. Beginning in April 2003 he was employed as a cashier at Vegas Magic Casino (his full-time, 40-hour per week position).

He testified that after his accident his only immediate symptom of concern was right-leg pain from his foot to his groin. Over the next month his symptoms increased to include low back pain, pelvic pain and numbness in the right leg. These symptoms eased with rest and medication and by the end of January 2002, he was released to return to work. Shortly thereafter, his symptoms returned. The claimant stated that his position as a security guard was less taxing than the position he ended up working full-time, that of a cashier.

The WCJ found that the claimant’s new job [as cashier] involved standing in one place primarily, or at least being on his feet, and the pain increased as did his anxiety attacks to the point where he simply gave out and could not work anymore and the date given by him is September the 2nd of 2003. When this, [what] I’m going to call [the] ultimate aggravation occurred, his pay was higher because he was doing a different job; but the aggravation here seems to be a direct result of the primary accident.
The average weekly wage is calculated using as a base the amount of money being paid at the time the injury occurred which caused his incapacitation or inability to work. An aggravation should be treated substantively as an injury in the unique — singularly unique fact pattern in which we are dealing with here. When the injury becomes fullblown 14an a person works as long as possible — he worked as long as possible, he was being paid as a full-time employee.

The defense argues that the proper rate of compensation should be based upon the wages the claimant was earning at the time of the original accident, October 29, 2001. Counsel for the claimant argues that the last day the claimant worked, September 2, 2003, constitutes a new accident, so the proper rate of pay should be base upon what he was earning at that time.

We agree with the WCJ. In a situation such as the one presented here, there is no need for a finding of a “second” accident. As the Louisiana Supreme Court explained in Sevin v. Schwegmann Giant Supermarkets, 94-1859, pp. 4-5 (La.4/10/95); 652 So.2d 1323, 1325-26 (second emphasis ours):

Workers’ compensation laws are to be liberally interpreted in favor of protecting workers from the economic burden of work-related injuries. Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985); Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976). In furthering that policy, this court has construed La.Rev.Stat. 23:1209 A’s term “the time the injury develops” liberally in cases in which the worker attempts to continue working until no longer able to perform his or her employment duties. Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise—Workers’ Compensation § 384 (3d ed.1994). This court has consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disabling injury, rather than from the first appearance of symptoms or from the first date of treatment. Swearingen v. Air Prod. & Chem., Inc., 481 So.2d 122, 124 (La.1986); Bolden v. Georgia Casualty & Sur. Co., 363 So.2d 419, 422 (La.1978); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (1956); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2, 5 (1955); Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 219 (1952). The “time the injury develops,” [i]s interpreted to mean the date the disability develops, [and] is usually determined as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Swearingen v. Air Prod. & Chem., Inc., 481 So.2d at 124; Wallace v. Remington Rand, Inc., 86 So.2d at 525. Thus, the “developing injury” rule has been applied not only when the injury does not manifest itself immediately, but also when the employee, after an accident in which injury is | ¡¡immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so.
The underlying rationale for this interpretation is that an injured employee who continues to work, despite a work-related medical condition which is painful but not then disabling, should not be penalized for attempting to remain in the work force in order to support his or her family or in the hope that the condition will improve. Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise — Workers’ Compensation § 384 (3d ed.1994). Requiring any injured employee, who is not yet disabled, to assert his or her claim within one year of the accident (or one year of the last payment of benefits) in order to preserve the cause of action would encourage needless litigation.

In the case sub judice the claimant continued to work “despite a work-related medical condition which [was] painful but not then disabling.” Id. He took on new duties and began working 40 hours per week before the time when it became clear that he could no longer perform his employment duties. We will not penalize the claimant for attempting to remain in the work force in order to earn enough money to pay for the medication he needed to take because of his lung transplant.

Accordingly, for the reasons stated, the judgment of the WCJ is affirmed in so far as it awards the plaintiff benefits based upon a 40-hour work week. The judgment is reversed in so far as it awards the plaintiff costs, as the award was previously disposed of by the judgment rendered March 22, 2006. However, the defendant, will bear the costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART.

PETERS, J., dissents and assigns written reasons.

PETERS, J.,

dissenting.

Lin affirming the workers’ compensation judge’s judgment, the majority concludes that the weekly benefit should be calculated, not as of the date of the accident, but as of the date the injuries sustained in the accident developed into a disabling injury. I respectfully disagree with this conclusion.

Louisiana Revised Statutes 23:1021, which sets forth the definitions to be applied to the terms at issue in this litigation, contains an apparent conflict between calculation of benefits for full-time versus part-time employment. Both La.R.S. 23:1021(12)(a)(i) and (ii), which apply to full-time employees and those who were offered full-time employment, use the “date of the accident” as the reference point in calculating the weekly benefit due an injured employee. On the other hand, La.R.S. 23:1021(12)(a)(iii) provides that “[i]f the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury” |gshall be used to calculate the weekly benefit. (Emphasis added). While the legislature was not consistent in its statutory language, a reading of the other definitions found in La.R.S. 23:1021 causes me to conclude that this inconsistency in language does not change the fact that, in this case, the day of the accident is the date to be used for calculation of benefits.

Louisiana Revised Statutes 23:1021(1) defines an accident for workers’ compensation purposes as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” (Emphasis added). Additionally, La.R.S. 23:1021(8)(a) states that “ ‘[ijnjury’ and ‘personal injuries’ include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom.” (Emphasis added). In this case, the injury to Mr. Hinnard was caused by the violence associated with the accident of October 29, 2001. His ultimate disability arose later as a result of that injury.

I would reverse the workers’ compensation judge’s judgment and would calculate the benefits due based on Mr. Hinnard’s wages for the last four weeks before the accident of October 29, 2001.

      . Louisiana Revised Statutes 23:102 l(12)(a)(i) refers to the situation where the employee is paid on an hourly basis and is employed for forty or more hours per week. Louisiana Revised Statutes 23:1021(12)(a)(ii) refers to the situation where the employee is paid on an hourly basis, is offered forty or more hours per week, and chooses to work less than forty hours per week.

      . It is not disputed that Mr. Hinnard was a part-time worker at the time of the October 29, 2001 accident.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Voohries J. THERIOT.
    No. 07-KA-71.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.

      John M. Crum, Jr., District Attorney, Fortieth Judicial District, Parish of St. John the Baptist, Edgard, Louisiana, Rodney A. Brignac, Leandre M. Millet, Assistant District Attorneys, LaPlace, Louisiana, for Plaintiff/Appellee.
    Thomas C. Damico, Baton Rouge, Louisiana, for Defendani/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

IpThe defendant/appellant, Voohries J. Theriot (“Theriot”), appeals his conviction for the second degree murder of his son, Lawrence J. Theriot (“Lawrence”). Theri-ot was convicted after a two-day trial and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. We affirm.

The day before trial, Theriot stipulated that he fired shots resulting in the death of Lawrence. On the first day of trial, the stipulation was read in court before the jury as follows:

It is hereby stipulated between the State of Louisiana and the defendant, Vohries [sic] J. Theriot, as follows: Defendant shot and killed Lawrence J. Theriot on September 1st, 2005 using a .22 caliber Colt Huntsman pistol taken into evidence, serial number 174171-C. At |3the trial of this matter the State shall not be required to produce expert testimony to establish the cause of death and that the projectiles causing death were discharged from the weapon described above or that the defendant fired said weapon causing the death of Lawrence J. Theriot.

At trial, Alvine Theriot (“Mrs. Theriot”), mother of the victim and Theriot’s ex-wife, testified that, prior to Hurricane Katrina, she and Theriot (to whom she was married at the time of the killing) lived at the house with Lawrence, the victim and her only son. During Hurricane Katrina, her son took her to Baton Rouge, in part because he was afraid to leave her alone with Theriot. She subsequently returned home without her son. On September 1, 2005, her son called to check on the operation of the home’s utilities and inquired why he had not received a cell phone call from his father about the utilities. He told Mrs. Theriot that he was coming home. She went into the mudroom in the back of the house and informed her husband about the conversation. Then, she asked Theriot why he had not called their son. At first, Theriot did not reply, but then he responded, “If he comes home and he tells me one word I’m going to shoot him,” referring to the victim. She told her husband that he was talking like a “crazy man,” and that he could not do that to their son because Lawrence just asked him to call as a favor. Mrs. Theriot admitted that, even though Theriot’s statement bothered and concerned her, she did not call the police because she did not believe that he would kill their son. She also expected their son to come into the house first, as he normally did, when he arrived.

Mrs. Theriot went inside to lie down and wait for her son, and the next thing she heard was a single shot. She ran onto the back porch, saw her husband with a gun in his hand, and asked him what he was doing. Theriot replied, “I wanted to try the pistol to see if it works.... So I shot it on the concrete.” When she asked |4him why he was testing the gun at that time, “he said because he wanted to see if it would work when he use [sic] it.” When questioned about what Theriot meant by the statement, Mrs. Theriot responded, “What he said he was going to do.” Mrs. Theriot did not call her son to tell him about his father having a gun. Instead, she returned to her room to await Lawrence, because she did not want to be in the mudroom with Theriot while he had a gun in his hand. The victim came home about 45 minutes later and, uncharacteristically, did not come in and greet her first, but went straight to the mudroom. Mrs. Theriot did not hear her husband and son talking, as she usually did. ■ Rather, she immediately heard two gunshots and said to herself, “Oh, my God, he did it,” as she ran to the back of the house. According to Mrs. Theriot, her son was shot “the minute he walked in.” She found her son lying in the corner of the shower with his head in the corner on the wall. She screamed, “Vohries [sic], what in the world did you do?” Theriot responded, “I shot him.”

Mrs. Theriot got down on the floor to comfort her son and as she asked him to get up, he was moaning and groaning. Theriot stood behind her with the gun still in his hand and directly over her head. She saw a bullet hole in her son’s head and blood everywhere. Mrs. Theriot knew her son was dying and so did Theriot because in response to her actions, he said to her, “He’s not going to get up_He’s dead. You can’t get him up.... I shot him three times. I shot him three times in the head.” Mrs. Theriot testified that her husband ■ showed no remorse at all, and was not upset, did not cry, nor did he explain why he did it. Theriot just told her to go inside and call 911, but she refused to leave the victim. Ultimately, Theriot called 911. When the police arrived and she spoke to them, she was hysterical. In fact, an ambulance had to be called to take her to the hospital, because she could not stop crying and screaming. She denied telling the deputies |Bthat she knew her son had arrived and was outside with the defendant, or that the defendant came into her bedroom to tell her that he shot their son. If her husband and son talked after her return from Baton Rouge, Mrs. Theriot was not aware of it, and she never told any of the deputies that night that he did.

Detective Kenneth Mitchell (“Detective Mitchell”) of the St. John the Baptist Sheriffs Office testified that when he arrived at the scene, he observed a white male lying in the doorway of the utility room with his feet inside a shower stall. The victim had sustained three gunshot wounds to his body — one in the chest, one in the head, and one in his right hand. There had been necessary personnel on the scene prior to his arrival, including five police officers, a supervisor, the Acadian Ambulance service, and an assistant coroner. Detective Mitchell later learned that Mrs. Theriot, the victim’s mother, had moved the body after she ran to- the utility room upon hearing the gunshots. Detective Mitchell observed that in the shower stall there was a large pool of blood on the floor and blood spatter against the wall. Especially because there was no blood splatter and very little blood outside the stall, the detective opined that the victim had been shot while in the shower stall. However, he admitted that it was possible that the victim could have been shot outside the shower and then fallen into the stall. That scenario could have caused the right-side of the victim’s head to hit the shower, which would have resulted in the pool of blood on the shower floor. However, based on his observations, it was his professional opinion the victim was in the shower stall when at least one of the fatal wounds was inflicted. Considering that the victim was approximately the same height as his father and the “projectory” of the head wound was almost to the top of the victim’s head, that there was a bullet hole in the north wall of the shower, and that there was a defensive wound in the | (¡victim’s hand, Detective Mitchell further opined that victim was in a crouched or lower position when he was shot.

Detective Mitchell attempted to interview Mrs. Theriot, but she was crying and upset, “very hysterical. She needed to be transported by ambulance to the hospital from the crime scene, because she was very nervous and out of control.” Three weeks after the shooting, Detective Mitchell was able to obtain a statement from her. He reviewed the statement, which was not introduced into evidence but which does appear in the record, in court. There, Mrs. Theriot had stated that she knew her son had come home, because she saw his truck. She did not go outside because the victim was outside with his father, and she had no idea his father was going to shoot him.

On the day of the shooting, Detective Mitchell interviewed Theriot at the sheriffs office. As Detective Mitchell was completing an “Interrogation Advice of Right” form, Theriot blurted out, “I killed him.” Detective Mitchell advised Theriot not to speak until he was advised of his rights. Nevertheless, as the detective was gathering other information to complete the form, Theriot stated, “I had to kill him, he swung at me, he didn’t hit me but he swung at me.” Detective Mitchell arrested Theriot after he completed the form. The detective opined that, during the interview, Theriot’s voice was calm and normal, and he did not display any degree of emotion, remorse, or hysteria.

As part of the investigation, Detective Mitchell also interviewed Jason Blanchard (“Blanchard”), the Theriots’ neighbor who called in the initial complaint. At trial, Blanchard testified that his home was situated directly behind the Theriots’ house. On September 1, 2005, while he was barbecuing outside at approximately 4:00 p.m., Blanchard heard a man and a woman talking loud and animatedly. He noted that this had happened a lot in the past, so that he really did|7not pay that much attention. However, later that day, at approximately 8:00 or 9:00 p.m., he and a friend were outside when they heard a pop they did not recognize and then, after a couple of seconds, two more consecutive pops. Pri- or to these sounds, Blanchard did not hear anybody talking, arguing, or yelling. Blachard did not hear anyone or anything happening on the porch other than the three shots. Following those sounds, Blanchard heard the back door of the Theriot home open, and a woman say, “Where’s Larry, what happened to Larry.” In reply, he heard Theriot say, “He’s dead, I shot him,” in a monotone, matter of fact manner. According to Blanchard, Theriot did not sound angry or shocked, but rather calm. Blanchard and his friend called 911.

Dr. Collie Michael Trant (“Dr. Trant”), a forensic pathologist with the Lafayette Parish Corner’s Office, testified that he performed the autopsy on Lawrence. The victim had gunshot wounds to his head, chest, and one hand, with the wounds to his head and chest being independently fatal. The gunshot to the head entered front to back and slightly right to left, in a slightly downward direction of approximately 10 degrees. Dr. Trant opined that the muzzle of the gun was at least two feet away when the victim was shot in the head, because there was no soot or stippling (marks caused by powder particles) on the wound. However, the soot without stippling found on the hand and chest wounds indicated that the gun was less than 12 inches from the victim when those shots were fired. A toxicology test run on the victim revealed that he had a normal therapeutic or prescribed level of hydroco-done in his blood, but this would not have altered his behavior. Additional toxicology tests were negative for illegal substances.

Michael Stephen Davis (“Davis”), a crime scene technician with the St. John Parish Sheriffs Office, testified that he was dispatched to the scene on the night of the incident. At the scene, he located evidence including a .22 caliber Colt | ^Huntsman pistol from the utility room, along with a magazine that had been previously removed from the pistol by an officer, with seven live rounds in it. Davis also collected three casings in the utility room, two of which were recovered next to the victim’s body and the third from underneath the body. In photographs taken by Davis, one photograph depicted the victim in the utility room doorway, and another depicted the doorway and part of the 3 foot by 3 foot shower stall. Other photographs submitted into evidence depicted casing number two near the shower stall, an inside shot of the shower stall plus the lower half of the victim’s' torso, and the victim’s right hand with a wound to the palm area. The photograph of the victim’s right hand and chest showed blackened areas around the wounds that Davis felt might indicate that the victim and the person who shot the gun were in close proximity when the shots were fired. Davis opined that one bullet caused the injury to the victim’s right hand as it passed through, and then went into the wall of the shower stall. He agreed that the picture taken of the bullet hole in the shower wall indicated that it entered at an angle, but measurements were not taken either of the angle of the bullet’s trajectory or of its exact location on the shower wall. Another of the photographs depicted a large pool of blood in the shower stall, which, in Davis’ expert opinion, indicated that the victim was shot in , there, even though other pictures of the victim’s body depicted it outside the shower. Blood spatters were found in the stall two to four inches above the floor, indicating that the victim may have fallen all or partially out of the shower stall after being shot. Davis could not say if the victim’s body, the gun, or the casings and shells had been moved prior to his taking the pictures, although patches depicted on the victim’s right arm and leg may have indicated that ambulance personnel treated the victim or tried to get a pulse. Davis also admitted that he did not know the order in which the shots wounded the victim.

|9Pr. Andrew St. Martin (“Dr. Martin”), a family practice physician, testified that Theriot became his patient in 2003. Almost eight months before the shooting, Theriot sought treatment for a bruised rib. He told Dr. St. Martin that his son struck him in the left flank four days ago with a closed fist. Dr. St. Martin diagnosed and treated the defendant for a left lower chest contusion, although he testified that his physical examination could not determine with certainty whether someone struck Theriot. In addition, he noted no previous indication of prior injuries or pattern of contusions. Almost six months before the shooting, Dr. St. Martin diagnosed Theriot with anxiety and prescribed some medicine, but the physician did not determine a cause for the anxiety.

Roslyn Joseph (“Joseph”) of the St. John the Baptist Clerk’s Office testified that, in response to defense counsel’s request, she obtained from the public records a certified copy of a petition for protective order and a protective order from abuse, in the case of “V.J. Theriot verses Lawrence Theriot,” filed on January 26, 2005. The documents were not introduced into evidence but, according to the court minutes read into the record by Joseph, the protective order was dismissed with the proviso that Lawrence would “go get some help and may return home after he receive [sic] help.”

Deputy Monica Swinney (“Deputy Swin-ney”) of the St. John the Baptist Sheriffs Office testified that, at the scene of the shooting, Mrs. Theriot told her that Theri-ot loaded a gun and waited in the backyard after the victim telephoned. Mrs. Theriot stated that she heard two shots and then went outside to see her son. She did not mention hearing a practice shot. Mrs. Theriot also told the deputy that Theriot walked into her bedroom and told her to call the police, because he shot their son. Deputy Swinney admitted that Theriot was crying and upset when she spoke to her.

I INSUFFICIENCY OF THE EVIDENCE

On appeal, in addition to another trial error, Theriot argues that, based on the evidence provided by the State, the jury could not have found beyond a reasonable doubt that the he did not act in self-defense. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. Specifically, he contends that the State provided no direct evidence that addressed or disproved his self-defense claim and that no witnesses were called to testify about the events they observed as they happened. Theriot avers that Mrs. Theriot’s testimony, provided by the State to show his pre-meditated intent, lacked credibility. He claims that she was confused about his response to the victim’s telephone call, at first claiming that he did not say anything, then later claiming that he planned to shoot the victim. He points out that Mrs. Theriot did not mention the practice shot in her police statement. Regarding the practice shot, Theriot points out that Blanchard testified he heard nothing at least an hour before the shooting, until the three shots were fired. Theriot further urges that, instead of doing what a mother would do when he allegedly threatened to kill Lawrence, i.e. call the police or her son to warn him, Mrs. Theriot watched television. He contends that the contradictions in Mrs. Theriot’s testimony should have raised questions about whether he ever made a threat against the victim’s life.

In addition, Theriot argues that evidence provided by the various law enforcement officials failed to exclude all reasonable hypotheses of innocence by failing to exclude his claim that he fired the gun in self-defense. Theriot contends that no conclusions can be drawn based on the position of the body, because both Officer Davis and Detective Mitchell admitted that the body had been moved and, [^therefore, was not in its original position. Officer Davis failed to explain how the shower stall, and not the floor, was the only place a large amount of blood was found if the victim fell out of the shower immediately after being shot.

Finally, Theriot argues that the investigation was incomplete. He claims that the bullet was not removed from the shower wall, nor was its angle of entry measured. The crime scene investigators were confused about the hand in which the victim was shot, which was important because of the size of the room. He contends that the State’s theory that the victim was cowering in the shower and shielding himself with his hand does not match with the wound in the victim’s right hand and the position of the bullet hole in the shower stall wall. Theriot claims that the blood evidence is inconclusive. Officer Davis admitted that the defense theory that the victim was shot outside the shower and then fell in was logical and just as possible as the State’s theory. Theriot argues that the positioning of the victim’s body when shot is important, because if he was not shot in the shower there is nothing to indicate where he was in the room. Therefore, there is nothing to prove that Theriot did not act in self-defense. Theri-ot claims that his statement that he had to kill his son because he was attempting to hit him, Dr. Martin’s testimony about his son’s violent acts toward him, and his filing of a protective order establishes a reasonable hypotheses of self-defense.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. The evidence may be either direct or circumstantial. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude |1?every reasonable hypothesis of innocence. LSA-R.S. 15:438. In cases involving circumstantial evidence, the reviewing court' does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, the reviewing court must evaluate the evidence in the light most favorable to the prosecution and determine. whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia.

Second degree murder is defined, in pertinent part, by LSA-R.S. 14:30.1 A(l) as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.... ” Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. The issue of specific intent is a question of fact.

Theriot does not dispute that the State proved the elements of the offense. Rather, he claims that the killing was justified because it was committed in self-defense.

The determination of a defendant’s culpability rests on a two-fold test: (1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and (2) whether deadly force was necessary to prevent the danger. When a defendant claims self-defense, the State must prove |1sbeyond a reasonable doubt that the defendant did not act in self-defense. “[T]he lack of a weapon is not dispositive of the issue of self-defense, because it is the reasonableness of apprehension and not the actuality of danger that determines the question of self-defense.” While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt.

In the present case, the jury was presented with two versions of the events on the day of the shooting. Theriot argued that he killed the victim in self-defense, claiming that the victim attempted to strike him immediately after arriving at his home. He presented evidence that the victim allegedly previously abused him through the testimony of Dr. St. Martin and Joseph. Theriot suggests that, because the victim previously abused him, he was in imminent fear of the loss of his life or of receiving great bodily harm.

The jury evidently found the State’s version of events as presented by its witnesses more credible. According to Mrs. Theriot’s testimony, Theriot expressed his intent to kill the victim and later test fired his gun to make sure it would work. Neither Mrs. Theriot, the only person in the house besides the victim and Theriot, nor Blanchard, heard any noise including talking, arguing, or fighting before the three shots were fired killing the victim. There was no evidence of any prior physical or verbal altercation between the victim and Theriot that night that |14imght have caused Theriot to believe that he was in imminent danger so as to necessitate his shooting the victim three times and inflicting two mortal wounds. Mrs. Theriot testified that her husband stood behind her with the gun still in his hand and told her without remorse that their son was dead because he shot him.

The jury was made aware of any inconsistencies in Mrs. Theriot’s statements to the deputies and her trial testimony and could have reasonably determined that these inconsistencies were a result of her grief. The jury chose to believe Mrs. Theriot’s trial testimony concerning her husband’s statements and actions before or after he shot their son. The jury also had the benefit of the testimony and forensic evidence provided by Davis and Detective Mitchell, who both opined that the victim was shot while he was in the shower. The shots were fired into the victim’s head and chest from a distance of two feet or less, and Detective Mitchell opined that the victim was in a crouched position when he was shot, using his right hand to shield himself.

It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. When presented with all the evidence, the jury could have reasonably determined that Theriot did not have a reasonable belief that he was in imminent danger and could have found beyond a reasonable doubt that Theriot had the specific intent to kill his son.

This assignment of error is without merit.

IMPROPER COMMENT BY DISTRICT ATTORNEY

Theriot also argues that the trial court erred by failing to grant a mistrial based on a comment made by the district attorney during rebuttal. | ^Theriot urges that the comment was impermissible as an indirect reference to his failure to testify and, thus, a mistrial was mandated.

In its closing argument, defense counsel reminded the jury that the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense and that the State never met its burden of proof. Defense counsel reminded the jury that the State had not met its burden to explain why the shooting happened, stating “[the district attorney] doesn’t know what happened in that room. We don’t know what happened in that room. And it’s his job to tell us that whatever happened in that room wasn’t self-defense.” The defense argued that Mrs. Theriot did not know what happened in the utility room. Counsel contended that Theriot had to kill the victim, as he told Detective Mitchell, because Lawrence was swinging and hitting at him. According to defense counsel, the evidence showed that Theriot feared the victim, because the victim hit him on at least one occasion, which required medical attention. Counsel suggested that, if Theriot had not killed the victim, then the victim would have killed him.

In his rebuttal argument, the district attorney remarked:

Counsel is correct. He says we don’t know what happened in that room, nobody was there. Well, I mean, there were two people in that room. There were two people that knew what happened in that room. Larry Theriot was one of them and he couldn’t testify today thanks to what his father did to him. So, I’m sorry if I can’t produce direct evidence.

During the bench conference, after the jury was retired, defense counsel objected, stating that the district attorney could not comment on Theriot’s decision not to testify. The district attorney replied that the comment was not directed at Theriot’s lack of testimony, but, rather, “I said there were two people that knew what went on in that room and one of them is dead. I didn’t say anything about testifying.” The trial judge denied the defense motion for a mistrial.

|1fi“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney ... in argument, refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense[.]” LSA-C.Cr.P. art. 770(3). When a direct reference is made by the State regarding the defendant’s failure to take the stand, a mistrial should be declared regardless of whether the State intended for the jury to draw unfavorable inferences from the defendant’s silence. However, when the State makes an indirect reference to the defendant’s failure to testify, the trial court must determine whether the remark’s intended effect on the jury was an impermissible reference to the defendant’s failure to testify or a permissible reference in a general statement that the State’s case was unrebutted. An indirect reference only requires a mistrial if the comment was intended to draw the jury’s attention to the defendant’s failure to testify. Indirect references which are intended to focus on a defendant’s failure to testify are those cases where the defendant is the only witness who can rebut the state’s evidence.

In cases where the prosecutor simply emphasized that the state’s evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, we have held that the prosecutor’s argument did not constitute an indirect reference to the defendant’s failure to take the stand....
On the other hand, where the defendant is the only witness who could have rebutted the state’s evidence, “a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify” and mandates a mistrial....

|17In the present case, our inquiry compels us to find that the prosecutor’s remark was impermissible. What began as a comment on the defense’s case culminated in an unmistakable focus on Theriot’s failure to testify because, as the State pointed out, Theriot was the only witness who could rebut the State’s evidence. Therefore, we find the court erred in failing to declare a mistrial. However, our inquiry does not end there.

As a matter of Louisiana law, the mandatory mistrial provisions of LSA-C.Cr.P. art. 770, which encompass a prosecutor’s direct or indirect comment on the defendant’s failure to testify, are directives to the trial judge and do not preclude an appellate court from conducting harmless-error analysis.

A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. In making its determination, the appellate court should give credit the good sense and fairmindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence.

Our review convinces us that the guilty verdict was not attributable to the prosecutor’s remark but, rather, to the evidence presented at trial. Theriot vowed to kill his son, test fired the weapon he ultimately used, and shot three times, inflicting two mortal wounds. There was more than sufficient evidence to convict Theriot of second degree murder. This assignment of error is without merit.

We have conducted an error patent review and find none.

AFFIRMED.

      . State v. Hearold, 603 So.2d 731, 734 (La. 1992).

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

        . State v. Johnson, 01-1362 (La.App. 5 Cir. 5/29/02), 820 So.2d 604, writ denied, 2002-2200 (La.3/14/03), 839 So.2d 32.

      . State v. Johnson, supra.

        . State v. Garcia, 483 So.2d 953, 956 (La.1986); State v. Barnes, 98-932 (La.App. 5 Cir.2/10/99), 729 So.2d 44, 46, writs denied, 99-1018 (La.9/17/99), 747 So.2d 1099, 01-0519 (La.10/12/01), 799 So.2d 499.

      . State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 148. See also, State v. Griffin, 2006-543 (La.App. 3 Cir. 9/27/06), 940 So.2d 845.

      . State v. Barnes, supra.

      . State v. Styles, 96-897 (La.App. 5 Cir.3/25/97), 692 So.2d 1222, 1233, writs denied, 97-1069 (La.10/13/97), 703 So.2d 609, 00-3460 (La.10/12/01), 799 So.2d 496.

      . State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 764, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88.

      . Id.

      . State v. Lai, 04-1053, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 560, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175.

      . State v. Mims, supra.

      . State v. Lai, supra (citing State v. Johnson, 541 So.2d 818, 822 (La.1989)).

      . State v. Thomas, 2005-2373 (La.4/17/06), 926 So.2d 490.

      . State v. Jackson, 04-293, p. 4 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094.

      . Id.


text:
    STATE of Louisiana v. John J. KESTLE.
    No. 07-KA-49.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Laura Schneidau, Assistant District Attorneys, Gretna, LA, for PlaintifflAppellee.
    John Hall Thomas, Karla M. Baker, Re-gan & Associates, P.L.C., New Orleans, LA, for Defendani/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| yDefendant/appellant, John J. Kestle (“Kestle”), appeals his conviction as a third offender under LSA-R.S. 14:98(D), operating a vehicle while intoxicated. Because we find that the evidence at trial was insufficient to prove that Kestle was intoxicated under that statute, we reverse his conviction.

Kestle was charged in a bill of information with third offense driving while intoxicated (DWI) and pled not guilty. Following a bench trial, Kestle was found guilty as charged and sentenced to two and one half years at hard labor. All but thirty days of the sentence was suspended, and Kestle was ordered to serve the balance of the sentence on home incarceration under active probation.

At trial, the parties stipulated that Kes-tie had two previous DWI convictions and that Kestle’s intoxilyzer test results showed he had .000 blood alcohol on the |adate of the incident. The only testimony at trial was that of the arresting officer, Trooper Wayne Coates (“Trooper Coates”) of the Louisiana State Police. At approximately 7:35 p.m. on October 12, 2004, Trooper Coates was dispatched to an accident in Metairie on the 1-10 eastbound at Bonnabel. When he arrived, he saw a truck on the side of the road at the foot of the Bonnabel overpass with its left front tire deflated. Trooper Coates approached the vehicle to speak to the driver, Kestle, who was sitting behind the wheel of the car, when he noticed the driver appeared intoxicated. Trooper Coates advised Kes-tle of his Miranda rights and questioned him about the crash. Kestle stated that an unknown vehicle swerved into his lane, causing him to strike the bridge railing. Trooper Coates asked Kestle to exit the vehicle. According to Trooper Coates, Kestle appeared to be extremely impaired. He noted that Kestle’s speech was very slurred and that he was unsteady on his feet and had to maintain his balance by keeping contact with the car. Although Trooper Coates did not detect an alcohol smell or any indication of alcohol use, he proceeded to conduct a field sobriety test, believing Kestle was impaired on narcotics. Kestle’s pupils were constricted and he was not in control of his bodily movements. The field test revealed that Kestle did not have nystagmus, which indicated he did not have blood alcohol in his system, although Kestle had admitted to having had three beers. He denied having taken narcotics. Kestle performed very poorly on the walk and turn test and the one-leg stand test. Trooper Coates testified Kes-tle could not follow directions even though he repeated them several times. Kestle could not maintain his balance during the tests and, at one point, fell to where his hands touched the pavement.

According to Trooper Coates, Kestle claimed he had disc problems that prevented him from performing the one-leg stand test and indicated that his shoes, which were sandals/flip flops, prevented him from adequately performing the walk 14and turn test because the ground consisted of gravel. Kestle denied taking any medication within the past twenty-four hours and indicated he had worked a ten-hour day. Trooper Coates discounted all these explanations, stating they did not explain Kestle’s poor performance on the field sobriety test.

The entire field test was captured on videotape which was entered into evidence. Trooper Coates testified that Kestle’s performance on the field test and his behavior during the entire investigation indicated some form of intoxication and classified his level of impairment as extreme. The trooper did not search Kestle’s vehicle.

Kestle was subsequently taken to the Jefferson Parish East Bank Lockup where a breathalyzer was administered. He blew .000, which indicated there was no blood alcohol in his system. Kestle declined a urine test that was requested by Trooper Coates. Trooper Coates did not ask him to submit to a blood test. Kestle was subsequently charged with reckless operation and driving while intoxicated. In Trooper Coates’ opinion, Kestle was under the influence of some narcotic.

On appeal, Kestle argues that the evidence was insufficient to convict him of third offense DWI because the State failed to prove he was under the influence of a scheduled narcotic, a key element of LSA-R.S. 14:98(A)(l)(c). Kestle asserts the arresting officer was not certified to determine whether he was under the influence of a narcotic and was not certified to articulate what type of narcotic under which he believed Kestle to be impaired. Kestle contends the State failed to exclude every reasonable hypothesis of innocence for his behavior such as his fatigue, his back injury, and/or the conditions surrounding the field sobriety tests.

The constitutional standard for evaluating the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the State proved the essential elements of | ¡¡the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of an offense, LSA-R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction.

In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Instead, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard.

LSA-R.S. 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when:
(a) The operator is under the influence of alcoholic beverages; or
(c)The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or
(d)(i) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
(e) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

Un order to convict an accused of driving while intoxicated, the prosecution must prove that the defendant was operating a vehicle and was under the influence of alcohol or drugs. To convict a defendant of third offense driving while intoxicated, the State must also show that the defendant had two other valid convictions. LSA-R.S. 14:98(D). In the present case, there was no dispute that Kestle was operating a vehicle or that he had two prior DWI convictions. Because of the stipulations prior to trial, the State only needed to prove that Kestle was under the influence of drugs. With no evidence that Kestle consumed a drug obtainable with or without a prescription under section (e), the State necessarily proceeded under section (c).

[T]he terms “intoxicated” and “under the influence of alcoholic beverages” have a certain and well-understood meaning, i.e., a person is intoxicated within the provisions of the statute when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an automobile in a manner in which an ordinary prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions.

Intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. It is not necessary that a DWI conviction be based upon a breath or blood alcohol test; the observations of the arresting officer may be sufficient to establish the defendant’s guilt. The vast majority of the cases under LSA-R.S. 14:98 involve intoxication by alcohol. In each of them, in addition to the behavior of the defendant, the arresting officers observed the odor of alcohol and most of the defendants admitted to having |7consumed alcohol and some had alcoholic beverages or bottles in the vehicles.

Here, Trooper Coates was the sole witness against Kestle. Trooper Coates testified he could tell if a person was on a narcotic based on his experience as a police officer of approximately fifteen years, of which four were with the Jefferson Parish Sheriffs Office Street Crimes Division. There he was involved with narcotics arrests. Concerning Kestle, Trooper Coates noted the lack of an alcoholic odor and Kestle’s constricted pupils and found that Kestle’s behavior was consistent with his observation of people on narcotics. However, Trooper Coates stated he did not have any formal training in detecting the difference between alcohol and drug impairment, apparently known as “DRE” training. He testified the horizontal gaze nystagmus (HGN) test could detect drug intoxication if the administrator was DRE certified, which he was not. He explained he would have to go to a school to get certified and then maintain his certification. Trooper Coates’ certification was limited to the field sobriety tests, which detects general intoxication, and the intoxi-lyzer, which is specific to alcohol intoxication.

Even in cases involving narcotic intoxication, failure to pass a field sobriety test has been held by this Court to be sufficient evidence to support a conviction of driving while intoxicated. An officer’s “subjective” opinion determines whether a suspect has passed the “objective” field sobriety test. The defendant admitted she had taken pain medication and pill bottles containing Vieodin and Soma were found in her car. In concluding there was sufficient evidence of drug intoxication, this Court considered the defendant’s failure of the field sobriety test, her glassy and dilated eyes, her admission of taking pain medications, and the pill bottles found in the car.

|sAlthough Kestle’s failure to submit to a urine test does not automatically establish that he was under the influence of drugs, the weight of the refusal is left to the trier of fact. We find that Kestle’s refusal to submit to the chemical test, coupled with his failure of the field sobriety tests, could have led a rational trier of fact to conclude he was under the influence of a substance.

The key issue in this case is whether the State proved Kestle’s behavior or intoxication was caused by a drug specified in the statute. Controlled dangerous substances referred to in LSA-R.S. 14:98(C) are expressly enumerated in R.S. 40:964. These include several references to narcotic drugs. In the present case, Trooper' Coates admitted that he could never testify as to the type of narcotic which Kestle may have ingested and that that is the purpose of the chemical test. R.S. 14:98(A)(l)(c) requires proof of intoxication by a specific scheduled drug. Certain behaviors and a distinctive odor make alcohol intoxication readily observable by the average person. The same cannot be said of most drugs. The opinion of an officer regarding whether a person is under the influence of certain drugs is circumstantial evidence that may be considered sufficient, provided that the officer has the relevant skills, experience, or training to render such an opinion. Here, while Trooper Coates had some experience with persons on narcotics, he was not trained or qualified as an expert in narcotic detection.

Kestle denied having taken any drugs, and no search of his car was made. There is no notation in the record that any search of his person revealed the presence of drugs, pills, bottles, or any drug paraphernalia. Under all the circumstances presented here, we are unable to conclude that Trooper Coates’ | (Identification of the intoxicating substance as a narcotic, without more, was sufficient under the statute to support a conviction.

For the foregoing reasons, the conviction is reversed.

REVERSED.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Johnson, 05-425 (La.App. 5 Cir. 12/27/05), 920 So.2d 878, 880.

      . Id.

      . State v. Cowden, 04-707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La.4/8/05), 899 So.2d 2.

      . State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959).

      . State v. Johnson 05-425 (La.App. 5 Cir. 12/27/05), 920 So.2d 878, 881, writ not considered, 2006-0809 (La. 10/13/06), 939 So.2d 354.

      . State v. Conner, 02-363 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 402, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

      . State v. Richoux, 98-374 (La.App. 5 Cir. 5/26/98), 714 So.2d 241.

        .Id.

      . See, State v. Washington, 498 So.2d 136, 138 (La.App. 5 Cir. 1986).


text:
    STATE of Louisiana v. Darrell M. DURAND.
    No. 07-KA-4.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Donald A. Rowan, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for PlaintiffiAppel-lee.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| ?In this criminal matter, defendant/appellant, Darrell M. Durand (“Durand”) appeals his conviction for second degree murder. For the reasons that follow, Du-rand’s conviction is affirmed, and we remand for the correction of errors patent on the face of the record.

On October 13, 2005, a grand jury in Jefferson Parish returned an indictment against Durand, charging him with second degree murder in violation of LSA-R.S. 14:30.1. Durand pled not guilty at his arraignment on January 25, 2006.

On September 13, 2006, the trial court denied Durand’s motion to suppress statements. Also on this date, Durand proceeded to trial before a twelve-person jury, which found him guilty as charged. Two days later, Durand filed a motion for post-verdict judgment of acquittal, which was denied. On September 15, 2006, Durand was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Durand orally gave his notice of intent to Lappeal and then filed a written motion for appeal on September 18, 2006. Durand’s motion for appeal was granted on September 25, 2006.

Durand was arrested on August 17, 2005 for the murder of Ivory Hill. Durand was questioned about his involvement in the case and gave two statements to Detective Eddie Klein (“Detective Klein”) of the Jefferson Parish Sheriffs Office Homicide Section. These statements were played for the jury.

In Durand’s first taped statement, he stated the following: On August 15, 2005, an incident took place on Terrace Street involving Joseph Buchert, Jr., Peter Aick-lin (“Peter”), Todd Strickland (“Todd”), and himself. A black male pulled in the driveway on a motorcycle. Durand and the man had words. The man swung his helmet at Durand but did not hit him since he moved out of the way. Durand grabbed him in a headlock, and they went to the ground. Durand grabbed the man in a choke hold to try to stop the man from hurting him since his hands were broken. Durand said that he could not see anything else and did not know what others around him were doing at the time. Believing the man passed out, Durand stood back up and went to Peter’s house with blood on his hat. Durand then went home. Also, during this statement the following exchange took place between Detective Klein and defendant:

DET. E. KLEIN: Okay so earlier but clarify one more thing, earlier you had told me that y’all were gonna take the victims [sic] dope from him is that correct?
D. DURAND: He was coming over there to bring drugs yes sir.
DET. E. KLEIN: And y’all were just gonna take it and walk away from him?
D. DURAND: Well he I, I had no intention of, of fighting the man at all no sir.
IJDET. E. KLEIN: Right but what I meant was y’all just were gonna um, take the drugs from him and not pay him and walk away?
D. DURAND: Well I didn’t have any money, I don’t know if, I don’t know exactly what would have happened but that, that was pretty much, that’s I couldn’t paid him for it.
DET. E. KLEIN: So you was gonna just try to take 'em?
D. DURAND: If he had anything one [sic] him I guess that was the you know, I’m trying to do this the best I can, I’m just telling you I’m really ah
DET. E. KLEIN: ... okay ...
D. DURAND: ... in a bad frame of mind I can’t believe this guy’s dead.
DET. E. KLEIN: Okay.
D. DURAND: And I had anything to do with it. Oh man (sigh)

In Durand’s second statement, he remembered what happened to the clothes he and Todd had taken off at Peter’s house. He stated that they put them in a plastic bag and either defendant or Todd put the bag in a drain on the street. He said his orange hat was in the bag.

Durand also testified at trial, stating the following: He was on Terrace Street on his way to a friend’s house when he saw Todd, a man Durand knew only as “Jodie”, Peter, and another older gentleman sitting and talking outside. He stayed to drink beer and talk. The victim, who Peter and Jodie knew sold crack cocaine, came down the street on a motorcycle. Peter and Jodie met the victim on the curb and talked to him. The victim asked Durand if he had a problem with him and asked why he was looking at him. The victim and Durand exchanged words and the victim cursed at Durand. The victim left, but Jodie and Peter said he was Dooming back. Although Durand wanted to leave before he got back, the victim came back about twenty or thirty minutes later, pulled into the driveway, and got off of his motorcycle. The victim said, “I got you now bitch” and swung his helmet at Durand. Durand ducked, grabbed the victim around his neck, and they went to the ground.

Durand admitted that he did choke the victim but stated he was in fear. Durand hurt his wrists in June of 2005 when he was installing siding on a friend’s house. He had surgery and had to wear braces or “soft casts.” Because of his shattered wrists, Durand said that he did not want to take a chance of hurting himself and all he knew to do was to choke him. Durand said that he let the victim go when he stopped moving.

Durand said he did not hit the victim but only put him in a choke hold and held him for about a minute. Although Durand said he did not see who was hitting the victim or what they were hitting him with, he admitted that he could feel someone beating him as he held him in a choke hold. Durand agreed this is how he got blood on his body and on his clothes. When Du-rand left, he did not know the victim was dead.

Durand left, and when he went down the street he saw Peter on his porch. Peter told Durand he had blood on him, and Durand asked Peter if he could go inside to wash it off. Peter gave Durand a shirt to go home in. While he was at Peter’s house, Jodie and Todd came. Durand and Todd put clothes in a bag and the bag was put in a drain so he would not get caught with it on the way home. He did not remember who put it there. Durand said he and Todd split up and then he went home.

| fiDurand stated he did not smoke crack and denied robbing the victim of any crack. He denied taking anything from the victim. Durand said he told the detective it was not “his deal to rip him [the victim] off.”

An autopsy of the victim was performed on August 16, 2005. According to Dr. Karen Ross (“Dr. Ross”), an expert in the field of forensic pathology, the victim’s cause of death was traumatic asphyxia due to neck compression, associated with blunt force injuries. She explained that she believed the neck compression could singularly have caused his death, but the blunt force injuries to the head may have contributed by making him more susceptible to being placed in a choke hold or by making him die faster from asphyxia. She testified that the neck compression was consistent with someone putting the victim in a choke hold.

Dr. Ross identified State’s Exhibits 42-54 as photographs taken during the victim’s autopsy. With these exhibits, Dr. Ross explained the bruises and lacerations found on the victim’s face and head. She explained that the skin lacerations were caused by the striking of an object. From the photographs, she pointed out petechia, little hemorrhages usually associated with cells not getting enough oxygen. She stated there was more petechia on his neck than there was in his eye, indicating the force applied there. She also acknowledged there was hemorrhaging in his neck muscles, his neck organs, and the base of his tongue. She also noted there were teeth impressions on the victim’s tongue. She demonstrated there was hemorrhage underneath the scalp and concluded there were at least five impacts to the head. Dr. Ross testified that the arm braces would not prohibit putting a choke hold on someone. Instead, they could stabilize the wrist and may have allowed more force to be applied. She testified that the extensive hemorrhage indicated that a significant amount of force was applied to the victim’s neck.

\ .ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Durand argues the trial court erred in denying his motion for post-verdict judgment of acquittal. He contends that his conviction is based on insufficient evidence and that the evidence presented did not support either theory of second degree murder. He argues the only evidence presented by the State to implicate him in the victim’s death was his statement which provided that the victim, unprovoked, attacked him with a motorcycle helmet while he had casts on both arms due to recent surgery on his shattered wrists. Durand contends he defended himself by placing the victim in a choke hold and that the State failed to prove he did not act in self-defense.

The State responds that the trial court properly denied the defendant’s motion for post-verdict judgment of acquittal because any rational trier of fact could have found that defendant committed second degree murder and that he was not acting in self-defense at the time of the killing. The State contends the jury reasonably concluded that the evidence demonstrated that the killing resulted from defendant’s specific intent to kill or to inflict great bodily harm and/or while the defendant was engaged in the perpetration or attempted perpetration of a robbery.

A post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. If the trial court or the appellate court “finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post-verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.” An appellate review of the denial of the motion for post-verdict judgment of acquittal is controlled by the standards set forth in Jackson v. Virginia. The Jackson standard for testing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Ultimately, both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal.

| ¡¡Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including simple robbery, even though he has no intent to kill or to inflict great bodily harm.

In order to prove second degree murder under the first theory, the State must prove the killing and that the defendant had specific intent to kill or inflict great bodily harm. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” The determination of specific criminal intent is a question of fact. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries.

On appeal, Durand claims the State failed to prove that he did not act in self-defense, citing LSA-R.S. 14:20. Although Durand stated at trial he was trying to defend himself, the jury instructions did not contain instructions on self-defense or justifiable homicide. Durand’s focus on appeal, however, is that his actions in defending himself were a mitigating factor in determining specific intent.

On September 15, 2006, defense counsel argued the State failed to prove beyond a reasonable doubt the elements of second degree murder; however, the trial court denied defendant’s motion for post-verdict judgment of acquittal. In |indoing so, the trial court recognized that the case was close on the evidence presented and acknowledged that in defendant’s statements he found the detective asking him questions and trying to put words into his mouth; however, he stated that defendant had denied just about every one of the detective’s prompts. The trial court denied the motion, viewing the case in the light most favorable to the State.

After viewing the evidence in the light most favorable to the State, we find that any rational trier of fact could have found that the State proved the essential elements of second degree murder beyond a reasonable doubt.

Durand admits that he placed the victim in a choke hold and held the victim for about a minute while someone hit the victim. Durand admitted the choke hold was “pretty hard” and agreed he was really bearing down on the victim. According to Dr. Ross’ testimony, the victim died from traumatic asphyxia due to neck compression, associated with blunt force injuries. Dr. Ross testified that she believed the neck compression could have singularly caused the death. She testified that the victim’s injuries were consistent with the victim being placed in a choke hold. She also explained significant force was used to cause such injuries to the victim.

We find the evidence presented was constitutionally sufficient to support the jury’s finding that defendant had the specific intent to kill or inflict great bodily harm to the victim. This specific intent could be inferred from the extent and severity of the victim’s injuries. Dr. Ross testified that it was possible for someone to be put in a choke hold and have no hemorrhaging at all. Therefore, the jury could have reasonably rejected defendant’s version of the events that his actions were in self-defense.

In Durand testified that he was trying to defend himself and was in fear for his safety and panicked. Durand believed the victim was bigger than him. Durand testified that he let the victim go when the victim stopped trying to get away from him and stopped moving. Durand believed the victim was passed out. When asked why he did not call the police to say he was attacked, he claimed it was because of his record. Durand claimed he had never seen the victim before, he was not familiar with the neighborhood, and had no idea if the victim had a weapon.

Although both of Durand’s wrists were broken, the victim was outnumbered. The victim’s head was being hit with an object by another while Durand held the victim in a choke hold. The record does not reflect that Durand suffered any injuries from the victim and only reveals that the victim swung his helmet at him but missed. The testimony of Dr. Ross reveals the significant force used to produce such injuries and defendant himself admitted that the choke hold was “pretty hard.” Therefore, the jury could have not believed defendant’s claim of self-defense and found beyond a reasonable doubt the defendant did have the requisite intent to commit second degree murder.

As such, we find that the trial court did not err in denying defendant’s motion for post-verdict judgment of acquittal.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Durand argues the State was allowed to admit five objectionably gruesome photographs, State’s Exhibits 50-54. Durand argues the photographs were more prejudicial than probative. Finally, Durand notes that the trial judge told the jurors they did not have to look at the photographs, recognizing they were graphic. Durand argues if the jurors had the choice of not looking at the evidence, then the evidence could not possibly be so relevant and probative that admission was required.

|1PThe State responds that while the autopsy photographs it introduced were graphic, the record demonstrates that their probative value outweighed any prejudicial effect. The State argues that the contested photographs were necessary for the State to establish the cause of death and to demonstrate the multiple, substantial injuries inflicted upon the victim in order to meet not only the burden of proof for second degree murder but to help refute defendant’s contention that he acted in self-defense. Further, the State argues the photographs were specifically selected by Dr. Ross to use to assist her in explaining her testimony to the jury. The State argues that because the photographs were not so gruesome as to overwhelm the jurors’ reason and lead them to convict defendant without sufficient evidence, relief is not warranted.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Generally, photographs are admissible if they illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, subject to the test that their probative value outweighs any prejudicial effect. The State is entitled to the moral force of its evidence and post mor-tem photographs of murder victims are admissible to prove corpus delicti, to | ^corroborate other evidence establishing cause of death, location, placement, and number of wounds, as well as to provide positive identification of the victim.

In general, an appellate court places great weight upon a trial court’s ruling on the relevancy of evidence and such a determination will not be reversed absent a clear abuse of discretion. Photographic evidence is properly admitted unless it is so gruesome as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient evidence, i.e., when the prejudicial effect of the photographs substantially outweighs their probative value.

After a review of the record, we find that the trial court did not err in admitting the photographs into evidence.

Prior to the introduction of the photographs, defense counsel objected to certain autopsy photographs that would be used by Dr. Ross. Defense counsel argued the photographs were “vile, and grotesque and disgusting” and that Dr. Ross did not need the photographs to accompany her testimony. The trial judge stated he thought they were “probably more probative than prejudicial.”

Before State’s Exhibits 50-54 were discussed, the trial court made the following comments to the jury: ‘You’re about to see some photographs that the Doctor needs to explain what she actually did. Some of the photographs are very gross, but they’re necessary for the explanation, so if you see something you don’t like, close your eyes. It’s just a warning.”

Dr. Ross explained that State’s Exhibit 50 was taken after the body was opened, and admitted it was graphic. She pointed out the petechia on the victim’s neck, which were larger than the ones seen in the victim’s eye, indicating some |14force was applied to the neck. She pointed out that some of the blood vessels were broken.

Dr. Ross explained State’s Exhibit 51, another photograph taken after the body was opened which she admitted was graphic. She explained to examine the victim’s head, she had to open the scalp and pull it forward to see any hemorrhage underneath the scalp. Underneath the areas of abrasions and contusions on the victim’s head, there were five discrete areas of hemorrhage, which indicated at least five impacts to the victim’s head.

Dr. Ross used State’s Exhibit 52, a photograph of the front of the victim’s neck, to demonstrate the hemorrhages to the neck muscles and the thyroid cartilage of the voice box. This photograph was used to show hemorrhage, indicating significant force applied there.

Dr. Ross explained that State’s Exhibit 53 was taken after she took the neck organs, tongue to trachea, out of the victim’s body. She showed the victim’s tongue and the floor of his mouth. She explained the photograph tried to document the hemorrhaging and the evidence of injuries. She testified that looking inside his mouth showed teeth impressions on his tongue and hemorrhaging, lacerations, and bruising. The teeth impressions on the tongue were also present in State’s Exhibit 54. The epiglottis was shown as well.

Defendant argues that the fact that the victim died as a result of being choked to death by defendant is not at issue, and the only issue was whether defendant was defending himself or if he intended to kill the victim. One of the elements comprising the State’s burden of proof was whether defendant had the intent to kill, which can be illustrated by circumstantial evidence. In the present case, the severity of the injuries and the amount of force applied to cause the injuries to the victim were clearly probative and relevant to the issue of whether |1sdefendant possessed the requisite intent to kill. These autopsy photographs illustrated Dr. Ross’ testimony while she described the location and severity of the victim’s injuries.

Given defendant’s claim he did not intend to kill the victim and instead had acted in self-defense, the photographs are relevant to demonstrate the cause of death, placement of wounds, and to establish his specific intent to kill. Dr. Ross specifically pulled the photographs necessary to assist her in her testimony which presented her findings to the jury. It does not appear that it would have been difficult for the jury to distinguish the injuries inflicted by defendant from what was done to the victim’s body during the autopsy. During trial, it was clear that defendant had placed the victim in a choke hold. Moreover, the trial court initially stated the photographs were necessary to explain what Dr. Ross did.

In light of the foregoing, we find that, although the photographs were gruesome, the probative value of the photographs outweighed any prejudicial effect against defendant and, therefore, the trial court did not err in admitting the photographs into evidence.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment, Durand argues that the record indicates that a motion for new trial was granted, but a new trial was never scheduled. Defendant argues his motion for new trial was granted and, therefore, the case should be remanded either for a new trial or for the trial judge to clarify his intentions in signing both the order for the appeal and for a new trial.

The State responds that a ministerial error occurred and the trial court did not intend to grant a new trial. It contends that, on February 12, 2007, the trial court vacated the order granting defendant a new trial since the order was signed in error, making this assignment of error now moot.

|1f;On September 15, 2006, the trial court denied defendant’s motion for post-verdict judgment of acquittal and sentenced defendant. Defendant orally gave his notice of intent to appeal and then filed a written motion for appeal on September 18, 2006. On September 20, 2006, defendant filed a motion for new trial. Defendant’s motions for appeal and for a new trial were granted on September 25, 2006.

On February 21, 2007, the State filed a motion to supplement the record to include the State’s Motion for Clarification filed February 9, 2007 and the February 12, 2007 minute entry in which the trial court vacated the order granting defendant a new trial. Supplementation was granted by this Court.

The February 12, 2007 minute entry explains that the trial court assumed the order was to “show cause” for a hearing when it was signed. As such, the trial court ordered that the order granting a motion for new trial be vacated and marked denied.

LSA-C.Cr.P. art. 916 provides in pertinent part,

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(2) Correct an error or deficiency in the record.

We find that the trial court retained jurisdiction to rescind the order granting the new trial motion pursuant to LSA-C.Cr.P. art. 916 and State v. Williams. In State v. Williams, the Louisiana Supreme Court determined the granting of the new trial in that case was a ministerial error and held that the error could be corrected to have the record accurately reflect the district court proceedings.

| ^Moreover, defendant filed his motion for new trial after his sentence was imposed, arguing that the verdict was contrary to the law and the evidence and that the ends of justice would.be served by the granting of a new trial. As provided in LSA-C.Cr.P. art. 853, a motion for new trial on these grounds must be filed and disposed of before sentencing. Even though the motion for new trial was inadvertently granted, we find the motion for new trial was untimely filed since it was filed after sentencing.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland regardless of whether defendant makes such a request. The following matter is noted:

It does not appear Durand was notified of the two-year prescriptive period for filing an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. Accordingly, we remand and instruct the trial court to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received said notice.

Accordingly, for the foregoing reasons, defendant’s conviction is affirmed, and we remand for further proceedings consistent with this opinion.

AFFIRMED; REMANDED.

      . LSA-C.Cr.P. art. 821(B).

      . LSA-C.Cr.P. art. 821(C) and (E).

      .443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833 (citation omitted).

      . Id.

      . Id. (quotation omitted).

      . State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208 (citations omitted).

      . State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056 (citation omitted).

      . LSA-R.S. 14:30.1(A).

      . State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111 (citation omitted).

      . LSA-R.S. 14:10(1).

      . Id. (citation omitted).

      . Id. (citation omitted).

      . A defendant can claim the murder was committed in self-defense, i.e., that the homicide was justifiable ‘‘[w]hen committed ... by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” LSA-R.S. 14:20. In a homicide case, when a defendant claims self-defense the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Gant, 942 So.2d at 1111 (citation omitted).

      . LSA-C.E. art. 401.

      . LSA-C.E. art. 402.

      . LSA-C.E. art. 403.

      . State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 710, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058 (citation omitted).

      . State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 892-893, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163 (citations omitted).

      . State v. Battaglia, 861 So.2d at 711 (citation omitted).

      . State v. Jones, 99-798 (La.App. 5 Cir. 11/10/99), 748 So.2d 1176, 1179, writ denied, 00-0306 (La. 12/8/00), 775 So.2d 1076 (citation omitted).

      . 01-0554 (La.5/14/02), 817 So.2d 40.

      . Id. at 47-48.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, State v. Vance, 06-465 (La.App. 5 Cir. 12/12/06), 948 So.2d 1106, 1112.


author: COOKS, J.,

text:
    Celia Jane CURETON v. James Howard CURETON.
    No. 2006-1030.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2007.
    COOKS, J., dissents and assigns reasons.
   COOKS, J.,

dissents.

Li respectfully dissent from the writ denial which found no error in the judgment of the trial court. Calcasieu Parish assigns domestic and juvenile matters exclusively to only two judges in the district, in effect granting them exclusive jurisdiction over these cases. As authority for this method of assigning cases, Calcasieu Parish relies on La.R.S. 13:587, which provides as follows:

A. The judges of the Fourteenth Judicial District Court may, by rule adopted by a majority vote of the judges sitting en banc, designate and assign to one or more divisions of the court any or all types of juvenile matters of which the court has jurisdiction and any or all types of domestic relations matters of which the court has jurisdiction.

I am convinced that Calcasieu Parish’s method of assignment, which effectively limits the jurisdictional authority of the remaining elected judges, violates Louisiana Constitution Article V, Section 16(A), which grants general jurisdiction over all cases, including juvenile and domestic, to all elected judges in the district. Louisiana Constitution Article V, Section 16(A) provides as follows:

Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

While the legislature may create family and juvenile courts within a district, no such court has been created in Calcasieu Parish and the Parish may not rely on |2La.R.S. 13:587 to limit the jurisdictional authority of a district or city court judge over juvenile matters. Honorable Charles Schrumpt, city court judge in Sulphur sought an opinion from the Louisiana Attorney General as to whether La.R.S. 13:587 limits his authority to hear juvenile cases. In an opinion rendered October 20, 2006, the Louisiana Attorney General stated:

This office is in receipt of your opinion request wherein you made the following inquiry:
1) Can Sulphur City Court exercise jurisdiction over juvenile matters?
Both the Louisiana Constitution and the Louisiana Children’s Code expressly provide for the administration of jurisdiction over juvenile matters. Generally, district, parish, or city courts will have jurisdiction over juvenile matters, unless a special juvenile court has been created by law. In that case, the juvenile court, which has been created, has exclusive jurisdiction over matters involving juveniles. Article 302(1) of the Children’s Code expressly recognizes only four such juvenile courts that have been created.
La.R.S. 13:587, Juvenile and Domestic Relations Division, is of particular concern regarding this issue because it states in part that the judges of the Fourteenth Judicial District Court may designate and assign to one or more divisions of the court any or all types of juvenile matters of which the court has jurisdiction. This statute, however, does not expressly or implicitly designate the creation of a juvenile court such as those mentioned in La. Ch. C. 302(1) within Calcasieu Parish.
It is the opinion of this office that Sulphur City Court has not been divested of jurisdiction over juvenile matters by La.R.S. 13:587.
The Louisiana Constitution and the Louisiana Children’s Code expressly vest jurisdiction with city courts, unless a juvenile court has been created by law. No such court has been created in Cal-casieu Parish. The only parishes for which the legislature has granted permission to create juvenile courts are Caddo, Orleans, Jefferson, and East Baton Rouge, as expressly evidenced by La.Ch.C. art 302(1).
In conclusion, it is the opinion of this office that district, parish, or city courts outside of the territorial jurisdiction of Caddo, Orleans, Jefferson, and East Baton Rouge Parishes have authority to exercise jurisdiction over juvenile matters within its respective jurisdiction.

Op.Atty.Gen., No. 06-0203 (October 20, 2006).

| ¡¡Absent a legislatively created domestic and juvenile court, Calcasieu Parish may not strip a duly elected judge of his constitutional jurisdictional authority to hear domestic and juvenile cases. Moreover, the practice in Calcasieu Parish of manipulating the assignment of certain types of cases to particular judges is specifically prohibited by Louisiana Code of Civil Procedure Article 253.1.

All pleadings filed shall be randomly assigned to a particular section or division of the court by either of the following methods:
(1) By drawing indiscriminately from a pool containing designations of all sections or divisions of court in the particular jurisdiction in which the case is filed.
(2) By use of a properly programmed electronic device or computer programmed to randomly assign cases to any one of the sections or divisions of court in the particular jurisdiction in which the case is filed.

The Louisiana Supreme Court has held “that transfers that permit judges to circumvent the random allotment process to funnel particular types of cases to one judge violates the spirit and purpose of La.Code Civ. Proc. art. 253.1.” State v. Sprint Communications Company, L.P., 96-3094 (La.9/9/97), 699 So.2d 1058, 1062.

I respectfully submit Calcasieu Parish’s method of designating particular types of cases to only two judges within the district violates the Louisiana Constitution Article V, Section 16(A) and La.Code Civ.Proc. art. 253.1.