author: KUHN, J.

text:
    STATE of Louisiana v. Daniel A. CAPLES.
    No. 2005 KA 2517.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy A. Pendergast, Metairie, Counsel for Appellee State of Louisiana.
    Katherine M. Franks, Slidell, Counsel for Defendant/Appellant Daniel A. Capíes.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

2The defendant, Daniel A. Capíes, was charged by bill of information with one count of first degree robbery, a violation of La. R.S. 14:64.1, and pled not guilty. He moved to suppress his identification by the victim, his statement, and the evidence, but after a hearing, these motions were denied. Following a jury trial, he was found guilty as charged. He moved for a new trial and for a post verdict judgment of acquittal, but the motions were denied. He was sentenced to seven years at hard labor without benefit of probation, parole, or suspension of execution of sentence. He moved for reconsideration of sentence, but the motion was denied. He now appeals, designating five assignments of error. We affirm the conviction and sentence.

FACTS

The victim, Todd Reynolds, testified at trial and gave the following account of the offense. On December 9, 2004, he had a 7:00 a.m. meeting with United States Representative Tim Burns at the Holiday Inn at 1-12 in Slidell, Louisiana. The victim arrived for the meeting at approximately 6:50 a.m. and waited in his car, reading some papers. Approximately five minutes later, he exited his vehicle, leaving his wallet in the vehicle, but taking two twenty-dollar bills from the wallet with which to pay for breakfast. As he stepped out of his vehicle, the defendant confronted him. The defendant said, “Give me your money.” The victim replied, “What,” and the defendant stated, “Give me your money. I have a knife.” The defendant’s right hand was underneath his sweater. The victim surrendered his two twenty-dollar bills to the defendant because he felt threatened by him. The victim then ran around to the back of his vehicle. The defendant began briskly walking in 3the direction of a Race Trac gas station and Burger King restaurant. The victim got into his vehicle, dialed 911 on his telephone, and tried to follow the defendant, but lost sight of him after getting stuck in traffic. The defendant was subsequently stopped by police, returned to the crime scene, identified by the victim, and arrested.

The victim indicated he did not fight back because he was afraid the defendant had a knife, thought the defendant might have HIV, and did not want to take the chance of exchanging bodily fluids with the defendant during a fight. The victim believed the defendant had a knife because of the threat he had made and due to a hand motion he had made underneath his sweater.

The defendant also testified at trial. He conceded he had criminal convictions for burglary and theft. He claimed on the day of the offense he was “Getting money for Christmas.” He claimed he was approaching people and telling them he needed twenty-two dollars to repair his car at Auto Zone and, if they could help him and his family, he would gladly repay them. He claimed he approached the victim’s vehicle and the victim rolled his window down. The defendant claimed he told the victim the story about needing twenty-two dollars, and the victim gave him two twenty-dollar bills. The defendant claimed he thanked the victim and asked if there was anyway he could repay the money, but the victim stated, “No, that’s okay. You know, get your car fixed and get home for Christmas and have a Merry Christmas.” The defendant claimed he thanked the victim again and walked away. He claimed he then told his story to a man stopped at a red light, and that man gave him ten dollars.

The defendant conceded he lied to the police in his initial statement but claimed he did so because he did not feel he had done anything wrong and was 4afraid he would be arrested in connection with a misdemeanor theft he had committed at an area Wal-Mart in 1992. He denied robbing the victim, denied ever having a knife, and denied ever saying he had a knife. He conceded, however, he had disposable razors in his pocket when he was arrested, but claimed the razors were left over from a package of razors he had purchased for his wife three days earlier.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 5, the defendant contends there was insufficient credible evidence introduced to support the verdict of first degree robbery. He argues that the victim gave him forty dollars and then changed his mind after following him and realizing that he had been swindled.

In reviewing claims challenging the sufficiency of the evidence, this Court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Crim. P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. La. R.S. 14:64.1(A).

The first degree robbery statute has objective and subjective components. The State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim’s belief was objectively [¡^reasonable under the circumstances. The statute thus excludes unreasonable panic reactions by the victim, but otherwise allows the victim’s subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery in violation of La. R.S. 14:65. Direct testimony by the victim that he believed the defendant was armed, or circumstantial inferences arising from the victim’s immediate surrender of his personal possessions in response to the defendant’s threats, may support a conviction for first degree robbery. State v. Gaines, 633 So.2d 293, 300 (La.App. 1st Cir.1993), writ denied, 93-3164 (La.3/11/94), 634 So.2d 839 (citing State v. Fortune, 608 So.2d 148, 149 (La.1992) (per curiam)).

After a thorough review of the record, we are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of first degree robbery of the victim. The evidence thus viewed, established that the defendant induced a subjective belief in the victim that the defendant was armed with a dangerous weapon and that the victim’s belief was objectively reasonable under the circumstances. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La.App.6lst Cir.3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331.

This assignment of error is without merit.

MOTIONS TO SUPPRESS

In assignment of error number 1, the defendant contends the trial court erred in not suppressing the identification of the defendant, the statement he gave, and “the evidence seized from him where the legality of the initial detention was not established and the identification at the scene, the statement, and the evidence were not attenuated from the initial illegal detention.”

On the second day of trial, the defense moved to suppress the identification of the defendant as improper and unconstitutional, moved to suppress the defendant’s statement as obtained as a result of an unlawful arrest, not freely and voluntarily given, and obtained without the proper advice concerning the rights of the accused, and moved to suppress the evidence as obtained without the authority of a valid search warrant. Following a hearing, the motions were denied.

IDENTIFICATION

A defendant who seeks to suppress an identification must prove two things. Firstly, he must prove that the identification itself was suggestive. Secondly, he must show that there was a likelihood of misidentification as a result of the identification procedure. State v. Fugler, 97-1936, p. 11 (La.App. 1st Cir.9/25/98), 721 So.2d 1, 11, rehearing granted and amended in part on other grounds, 97-1936 (La.App. 1st Cir.5/14/99), 737 So.2d 894, writ denied, 99-1686 (La.11/19/99), 749 So.2d 668. The factors to be considered in assessing reliability are: (1) the opportunity of the witness to view the criminal at the time of j7the crime, (2) the witness’s degree of attention, (3) the accuracy of his prior description of the criminal, (4) the witness’s level of certainty, and (5) the time between the crime and the confrontation. Fugler, 97-1936 at p. 11, 721 So.2d at 11-12 (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

The victim testified at the hearing on the motions to suppress and at trial. He stepped out of his vehicle and was confronted by the defendant. According to the victim, the defendant said, “Give me your money.” The victim replied, “What,” and the defendant stated, “Give me your money. I have a knife.” The defendant’s right hand was underneath his shirt. The victim gave the defendant two twenty-dollar bills. It was daytime, and the defendant was only three or four feet away during the robbery. The victim had a clear view of the defendant’s face and clothing. The robbery lasted between one and two minutes, and the victim also viewed the defendant from his car while attempting to follow the victim after the robbery.

Within minutes of the victim reporting the robbery, and within twenty minutes of the robbery, the police brought the defendant to the scene and asked the victim if the defendant was the perpetrator. The defendant was not in a police car when he was presented to the victim, and the police did not suggest to the victim that the defendant was the perpetrator. The victim recognized the defendant as the perpetrator on the basis of his distinctive hat (camouflage LSU baseball cap) his mustache, blondish hair and blue eyes. The victim was absolutely sure of his 8identification at the scene and also identified the defendant in court as the perpetrator.

A thorough review of the record reveals the procedure surrounding the identification made herein was neither suggestive nor likely to lead to misidentification. Moreover, the victim’s identification of the defendant as the perpetrator was reliable. The victim had an excellent opportunity to view the perpetrator at the time of the incident. The robbery was at close range during daylight. The victim also had a high degree of attention and was able to provide details concerning the perpetrator’s physical appearance and clothing. Additionally, the victim was absolutely sure of his identification and less than twenty minutes passed between the robbery and the victim’s identification of the defendant as the perpetrator.

STATEMENTS

It is well settled that for a confession or inculpatory statement to be admissible into evidence, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451. Additionally, the State must show that an accused who makes a statement or confession during custodial interrogation was first advised of his Miranda rights. State v. Plain, 99-1112, p. 5 (La.App. 1st Cir.2/18/00), 752 So.2d 337, 342.

9The admissibility of a confession is, in the first instance, a question for the trial court; its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence. Whether a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. The trial court must consider the totality of the circumstances in deciding whether or not a confession is admissible. Plain, 99-1112 at p. 6, 752 So.2d at 342.

Deputy Lance Toups also testified at the hearing on the motions to suppress and at trial. Deputy Toups broadcasted the description of the perpetrator given by the victim. A responding deputy made contact with the defendant, who fit the description, and brought him to the scene for the victim to view. The victim identified the defendant as the perpetrator, and Deputy Toups advised him of his Miranda rights and placed him under arrest. Deputy Toups conducted a protective pat-down search of the outer clothing of the defendant and discovered two disposable razors in the left front pocket of the defendant’s pants, seized them as weapons, and placed them in an evidence bag. Deputy Toups then transported the defendant to Detective Hall at the Investigations Bureau.

Detective Hall also testified at the hearing on the motions to suppress and at trial. He also searched the defendant for weapons and then told the defendant to empty out his pockets. Detective Hall seized the defendant’s clothing, hat, and wallet as evidence. The wallet contained ninety-five dollars cash, including three twenty-dollar bills. He also advised the defendant of his Miranda rights. Detective Hall did not force or coerce the defendant to make a statement. Nor did he offer the 10defendant anything of value in return for a statement or compel a statement from the defendant with threats. The defendant freely and voluntarily gave Detective Hall a statement.

The defendant initially denied taking any money from anyone. He then conceded, however, the victim had given him forty dollars after he asked the victim for money.

There was no abuse of discretion in the trial court’s denial of the motion to suppress the statements. The evidence presented at the hearing on the motion to suppress supported the court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant’s statements.

EVIDENCE

A three-tiered analysis governs the Fourth Amendment’s application to interactions between citizens and police. At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. State v. Pennison, 99-0466, pp. 7-8 (La.App. 1st Cir.12/28/99), 763 So.2d 671, 676, writs denied, 2000-1105 (La.10/27/00), 772 So.2d 122, 2000-2308 (La.10/27/00), 772 So.2d 658, 2000-0298 (La.11/3/00), 772 So.2d 663.

At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articu-lable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Louisiana Code of Criminal Procedure article 215.1(A) provides that an officer’s 1 nreasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is insufficient to justify custodial interrogation even though the interrogation is investigative. Pennison, 99-0466 at p. 8, 763 So.2d at 676.

Lastly, at the third tier, a custodial “arrest,” the officer must have “probable cause” to believe that the person has committed a crime. Louisiana Code of Criminal Procedure article 213(3) uses the phrase “reasonable cause.” The “probable cause” or “reasonable cause” needed to make a full custodial arrest requires more than the “reasonable suspicion” needed for a brief investigatory stop. Pennison, 99-0466 at pp. 8-9, 763 So.2d at 676.

The Louisiana Supreme Court has recognized that in regard to brief investigatory stops, the level of suspicion required to justify the stop need only rise to the level of some minimal level of objective justification. In determining whether sufficient suspicion existed for the stop, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might well elude an untrained person, while also weighing the circumstances known to the police, not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. See State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049 (per curiam).

There was also no abuse of discretion in the trial court’s denial of the motion to suppress evidence. There was at least a minimal level of objective justification for the Terry stop of the defendant, and thus, the stop was constitutional. The stop 12was founded upon objectively reasonable suspicion supported by specific and articu-lable facts, i.e., the description of the robber and his distinctive clothing, and that the defendant was wanted for the robbery of the victim. In a diligent attempt to pursue a means of investigation that was likely to quickly confirm or dispel the suspicions of the police that the defendant was the robber, the defendant was taken to the crime scene for the victim to view. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). The objectively reasonable suspicion ripened into probable cause to arrest when the victim identified the defendant as the robber. Thereafter, the evidence in the defendant’s pockets was discovered in connection with a search incident to a lawful arrest. See State v. Howard, 2001-1487, pp. 8-9 (La.App. 1st Cir.3/28/02), 814 So.2d 47, 52-53, writ denied, 2002-1485 (La.5/16/03), 843 So.2d 1120.

This assignment of error is without merit.

SIMULTANEOUS PEREMPTORY CHALLENGES AND EQUAL PROTECTION

In assignment of error number 2, the defendant contends the trial court erred in using simultaneous challenges, urging that the Twenty-Second Judicial District Court had not established a single method of challenging jurors in accordance with La.Code Crim. P. art. 788. The defendant contends the court’s erroneous use of a simultaneous challenge procedure deprived him of the twelve peremptory challenges allowed by La.Code Crim. P. art. 799 when two prospective jurors were challenged by both the defense and the State and “counted” as a peremptory challenge to both. In assignment of error number 3, the defendant contends the lack of a system of exercising peremptory challenges denies criminal defendants 18equal protection in the Twenty-Second Judicial District Court. The State contends that the Twenty-Second Judicial District Court had indeed adopted a system of simultaneous exercise of peremptory exceptions.

Louisiana Code of Criminal Procedure article 788 provides:

A. After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When the state and the defendant accept a prospective juror, he shall be sworn immediately as a juror. This Article is subject to the provisions of Articles 795 and 796.
B. If the court does not require tendering of jurors, it shall by local rule provide for a system of simultaneous exercise of challenges.

Effective July 1, 2003, Rules for Louisiana District Courts and Numbering Systems for Louisiana Family and Domestic Relations Courts and Juvenile Courts, Rules for Criminal Proceedings in District Courts, Rule 19 provided:

As authorized by La.Code of Crim. Proc. art. 788, a system of simultaneous exercise of peremptory challenges is hereby adopted for those district courts shown in Appendix 18. At the conclusion of the examination of prospective jurors as provided in La.Code of Crim. Proc. art. 786, those prospective jurors who have not been excused for cause shall be tendered to the state and the defendant or defendants for simultaneous exercise of peremptory challenge in writing. State and defense challenges of same prospective juror(s), will be considered an exercise of a challenge by both the state and the defense.

Appendix 18 provides that simultaneous peremptory exceptions are allowed in the Twenty-Second Judicial District Court at the trial judge’s discretion.

During voir-dire examination of the first panel of prospective jurors, defense counsel objected to simultaneous challenges, arguing that the challenges required him to use a challenge even though the State may have used the same 14challenge. The trial court noted the Louisiana Code of Criminal Procedure allowed simultaneous challenges, and in the Twenty-Second Judicial District Court, by vote, they were permitted in each trial judge’s discretion. The court indicated simultaneous challenges would be used in the instant case. The peremptory challenge sheets of the State and the defense both challenged prospective juror # 143, Ginger Latour, and prospective juror # 177, Richard Norris.

During voir-dire examination of the second panel of prospective jurors, defense counsel re-urged his objection to simultaneous challenges, arguing that letting each judge decide whether to use simultaneous challenges violated the equal protection of the law in that defendants randomly assigned to different court divisions received different standards. The court indicated it had noted the objection, but disagreed with defense counsel. The defense exhausted its peremptory challenges prior to the completion of jury selection.

There was no error in overruling the defense objections to use of simultaneous peremptory challenges in this case. Pursuant to La.Code Crim. P. art. 788(B), the Twenty-Second Judicial District Court provided for a system of simultaneous exercise of challenges and the trial court used that system in this ease.

15These assignments of error are without merit.

CONVICTION BY NON-UNANIMOUS VERDICT

In assignment of error number 4, the defendant contends he was convicted by a non-unanimous verdict in violation of the United States Constitution. He argues La. Const. art. I, § 17 and La.Code Crim. P. art. 782(A) are unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

La. Const. art. I, § 17(A) and La.Code Crim. P. article 782(A) provide that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. The punishment for first degree robbery is necessarily confinement at hard labor. La. R.S. 14:64.1(B). The instant case was tried before a twelve person jury, ten of whom voted to convict the defendant of the offense.

Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1st Cir.6/29/98), 715 So.2d 157, 164-165.

The defendant’s reliance upon Blakely, Ring, Apprendi and Jones is misplaced. Those decisions do not address the issue of the constitutionality of a 16finon-unanimous jury verdict; rather, they address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the trial judge, sitting alone. They stand for the proposition that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. at 2362-2363. Nothing in the referenced decisions suggests that the jury’s verdict must be unanimous for a defendant’s sentence to be increased. Accordingly, Louisiana Constitution article I, § 17(A) and La.Code Crim. P. art. 782(A) are not unconstitutional and, hence, not violative of the defendant’s Sixth Amendment right to trial by jury.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . In determining whether the rulings on the defendant’s motions to suppress were correct, we are not limited to the evidence adduced at the hearing on the motions. We may also consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The "reasonable cause” standard of Article 213(3) is equivalent to "probable cause” under the general federal constitutional standard. To read Article 213 as allowing an arrest on less than probable cause would put the article afoul of the Fourth Amendment. Pennison, 99-0466 at p. 8 n. 5, 763 So.2d at 676 n. 5.

      . See also State v. Lockhart, 629 So.2d 1195, 1201 (La.App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132 (“Although the Louisiana Constitution grants to a criminal defendant the right to challenge jurors peremptorily, it does not give him the right to a specified number of challenges. The discretion to fix the number of challenges has been given to the legislature. State v. Bennett, 454 So.2d 1165, 1174 (La.App. 1st Cir.), writ denied, 460 So.2d 604 (La. 1984). See also La. Code Crim. P. art. 799. Accordingly, we find that a system of exercising simultaneous peremptory challenges specifically provided in a local rule pursuant to Article 788 B does not violate Louisiana Constitution Article 1, § 17.”)


source: Caselaw Access Project

author: CLARENCE E. McMANUS Judge Ad Hoc.

license: Public Domain

text:
    TROLLY CORPORATION v. Boolus BOOHAKER.
    No. 2005-CA-1595.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Jacques F. Bezou, the Bezou Law Firm, Covington, Counsel for Plaintiff/Appellant.
    Alfred B. Shapiro, Shapiro & Shapiro, Baton Rouge, Counsel for Defendant/Ap-pellee.
    Panel composed of Judges Ad Hoc THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS Judge Ad Hoc.

2Plaintiff, Trolly Corporation, appeals from a decision of the trial court granting summary judgment in favor of defendant, Boolus Boohaker, dismissing plaintiffs suit against him. For the reasons that follow, we affirm the decision of the trial court.

Trolly Corporation hired Mr. Boohaker, an attorney, for the purpose of confecting a transaction in which two investors bought into the corporation and an earlier investor was bought out. The deal was closed on October 31, 2001. Shortly after the closing, Troy McCullen, vice president of Trolly Corporation, learned that Trolly was subject to adverse tax consequences as a result of the deal. In November of 2001, Trolley Corporation hired an accounting firm to work with defendant to eliminate or reduce the tax liability. In the spring of 2002, Trolly obtained an extension for the filing of its tax return. Trolly filed its tax return in September of 2002, and received its final determination of tax liability, including penalties and interest, in March of 2003.

This suit was filed on September 15, 2003, Defendant filed a motion for summary judgment, alleging that plaintiffs cause of action was perempted by LSA-R.S. 9:5605. After the hearing, the trial court ruled in favor of defendant, and plaintiff appealed.

3On appeal, plaintiff argues that the trial court erred in holding that its suit was perempted by LSA-R.S. 9:5605 A for its failure to timely institute suit.

The defendant raised the issue of prescription in a motion for summary judgment. In Alcorn v. City of Baton Rouge, 03-2682 (La.1/16/04), 863 So.2d 517, the Louisiana Supreme Court found error in the appellate court’s refusal to consider the issue of prescription raised in a motion for summary judgment. The Court relied in part on Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1 Cir.1977), writ denied 349 So.2d 1269 (La.1977), in which this Court had stated that where the motion for summary judgment states all the essential allegations for an exception of prescription, and the relief sought is dismissal of the suit on the basis that the suit is prescribed, the motion should be characterized and considered as a peremptory exception of prescription.

The date on which prescription begins to run is a factual issue to be determined by the trier of fact. We review that determination under the clearly wrong standard. Webb v. Blue Cross Blue Shield of Louisiana, 97-0681 (La.App. 1 Cir. 4/8/98), 711 So.2d 788.

Trolly Corporation filed this suit alleging that the structure of the transaction confected by defendant caused it to suffer adverse tax consequences and that there were other structures which would have minimize its tax liability. Therefore, contends plaintiff, defendant committed legal malpractice for which he is liable. LSA-R.S. 9:5605 provides for the peremptive period to initiate an action for legal malpractice. LSA-R.S. 9:5605 A provides:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within 4one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Pursuant to Subsection A of La. R.S. 9:5605, the peremptive period for all legal malpractice claims is one year from the date of the alleged negligence is or should have been discovered, coupled with a mandatory three-year peremptive period from the date of the alleged negligence, regardless of when it was discovered. Turnbull v. Thensted, 99-0025 (La.App. 4 Cir. 3/1/00), 757 So.2d 145.

Subsection B of La. R.S. 9:5605 clearly states that the one-year and three-year periods of limitation provided in Subsection A are both peremptive periods. Peremption cannot be renounced, interrupted, or suspended. La. Civ.Code art. 3461. The latest one can file a legal malpractice action is three years from the date of the alleged act of malpractice, or one year from the date of discovery of the alleged act of malpractice, whichever occurs first. Paternostro v. LaRocca, 01-0333 (La.App. 1 Cir. 3/28/02), 813 So.2d 630.

Prescription commences to run when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. Id. The standard imposed is that of a reasonable man — any plaintiff who had knowledge of facts that would place a reasonable man on notice that malpractice may have been committed shall be held to have been subject to the 5scommencement of prescription by virtue of such knowledge even though he asserts a limited ability to comprehend and evaluate the facts. Id., Carroll v. Wolfe, 98-1910, p. 6 (La.App. 1 Cir. 9/24/99), 754 So.2d 1038, 1041. The focus is on the appropriateness of the claimant’s actions or inactions, and therefore, the inquiry becomes when would a reasonable man have been on notice that malpractice may have been committed. Paternostro, supra.

In this appeal, Trolly Corporation argues that peremption did not begin to accrue until the filing of its tax return, because it was “impossible ... to make any assessment of the full effect of any possible loss (damage) Trolly would sustain until the date IRS (sic) made its determination.” However, a reasonable man would have known, and plaintiff admits that it did know, that it would suffer adverse tax consequences as a result of the transaction structured by defendant as early as November 2001. Plaintiff further admits that not only did it know of the alleged malpractice in November, but it also “retained the services of an accounting firm and with the help of Boohaker began the process of amending the closing documents in an effort to eliminate and/or reduce the potential tax liability.” The amount of taxes owed could have been calculated prior to the filing of the return with the IRS. Therefore plaintiffs suit, filed almost two years after the alleged malpractice, is perempted.

The plaintiff argued in brief that “Consequently, until such time as Trolly was able to fully quantify the damages that flowed from Boohaker’s mistakes, its claims against Boohaker were not cognizable.” This argument has previously been rejected by this Court. In Vaughn v. Slaughter, 94 0552 (La.App. 1 Cir. 3/3/95), 653 So.2d 36, writ denied, 95-0828 (La.5/5/95), 654 So.2d 339, plaintiff retained the services of defendant attorney to incorporate his business as Subchapter-S corporation, and to handle matters incidental to the incorporation of the business. In connection with the representation, defendant was to prepare the necessary | ¿paperwork for the United States Internal Revenue Service. On September 15, 1989, plaintiff was advised by the IRS that defendant failed to file the necessary paperwork. Thereafter, plaintiffs business was reformed to regular corporation status. Plaintiff was required to submit corporate returns, and incurred additional tax liability as a result. Plaintiff filed suit on July 17, 1992. Defendant filed an exception of prescription, which was granted by the trial court. On appeal, defendant argued in part that his cause of action had not prescribed because the extent of his damages was not known until January of 1993. The court disagreed, stating that:

Neither are we persuaded that the plaintiffs lawsuit was timely filed under La.R.S. 9:5605 because the extent of damages was not known until January, 1993. Prescription commences to run when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. Olivier v. Poirier, 563 So.2d 1227 (La.App. 1st Cir.), writ. denied, 568 So.2d 1054 (La.1990). See also Citizens Nat. Bank v. Gilsbar, Inc., 581 So.2d 719 (La.App. 1st Cir.1991), and Red River Valley Bank v. Home Ins. Co., 607 So.2d 892 (La.App. 2nd Cir.1992). The plaintiff knew that the requisite documentation was missing from the I.R.S. file on September 15, 1989 and, therefore, had knowledge of the existence of the facts underlying his malpractice claim as of that date.

At page 39-40.

In this case, the plaintiff knew of or should have known of the potential tax liability as early as November of 2001. The trial court did not err in finding that this suit, instituted on September 15, 2003, was untimely and perempted under LSA-R.S. 9:5605.

Accordingly, the trial court’s judgment granting defendant’s motion and dismissing plaintiffs suit is affirmed. All costs are assessed against appellant.

AFFIRMED.


author: GUIDRY, J.

text:
    STATE of Louisiana v. Christopher COLBERT.
    No. 2005 KA 2330.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Doug Moreau, District Attorney, Dylan Alge, Assistant District Attorney, Baton Rouge, Counsel for Plaintiff/Appellant State of Louisiana.
    Hillar C. Moore, III, Baton Rouge, Counsel for Defendant/Appellee Christopher Colbert.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

2The defendant, Christopher Colbert, was charged by bill of information with one count of unauthorized use of an access card as theft, a violation of La. R.S. 14:67.3. The defendant filed a motion to quash based on improper venue. Following a hearing on the issue, the trial court granted the motion. The State now appeals, asserting one assignment of error. We affirm the ruling of the trial court.

FACTS

On June 27, 2003, Allen Hodgkins contracted with the defendant’s moving company, Compass Moving and Storage, a business entity doing business in Texas and Louisiana. The company was hired to move Hodgkins’s belongings from a storage facility in Baton Rouge to Virginia. As a down payment, Hodgkins authorized the defendant to charge $100 to his American Express credit card. During these communications via telephone and fax, the defendant was in Texas and Hodgkins was in Virginia. Hodgkins signed the contract in Virginia.

On July 22, an agent of the moving company arrived at the storage facility to load Hodgkins’s goods and deliver them to Virginia. A dispute arose because the moving truck was not the type of truck Hodgkins had agreed to. Also, the truck was partially loaded with some other person’s contents. While in Virginia, Hodg-kins contacted the defendant in Texas and told him this was unacceptable. The truck driver returned the next day with a completely empty truck, loaded Hodgkins’s belongings, and took them to Virginia.

On July 25, Hodgkins, while in Virginia, contacted the defendant in Texas. The defendant told Hodgkins that he wanted the payment for moving in cash. Hodg-kins insisted that the defendant honor his contract and accept his credit card as a form of payment. Hodgkins discovered on approximately August 1 that the defendant had charged his credit card on July 25 for $5,283, the initially agreed upon amount for the moving expenses. Hodgkins testified that even after his credit 3card was charged, the defendant’s company continued asking for a cash payment for the delivery of his goods. Following an investigation by American Express and the federal government, an agreement was reached between the parties. Hodgkins wired the defendant $4,000 in cash, and American Express credited the $5,283 charge to Hodgkins’s card.

ASSIGNMENT OF ERROR

In its sole assignment of error, the State avers the trial court erred in granting the defendant’s motion to quash. Specifically, the State asserts that East Baton Rouge Parish is an appropriate venue under the “acts or elements” test.

Article I, § 16 of the Louisiana Constitution guarantees the right of the accused to a fair trial “in the parish where the offense or an element of the offense occurred.” Louisiana Code of Criminal Procedure article 611 provides in pertinent part:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

In the instant matter, the defendant was charged with unauthorized use of an access card as theft pursuant to La. R.S. 14:67.3. The relevant portion of Article 14:67.3 is paragraph B, which provides in pertinent part:

Whoever, directly or indirectly, by agent or otherwise, with intent to defraud, ... uses an Access Card belonging to another person without authority of said person; thereby obtaining, whether contemporaneously or not, credit, money, goods, services or anything of value shall be guilty of theft and shall be subject to the penalties provided for the crime of theft in La. R.S. 14:67.

4The State argues that the crime of unauthorized use of an access card, while considered a theft, is also a form of embezzlement. In support of this argument, the State relies principally on two Louisiana Supreme Court decisions, State v. Hayes, 01-3193 (La.1/28/03), 837 So.2d 1195 (per curiam) and State v. Joshlin, 99-1004 (La.1/19/00), 752 So.2d 834. We find that the State’s assertion that unauthorized use of an access card is a form of embezzlement is without support, and that its reliance on both Hayes and Joshlin is misplaced.

In Hayes, the defendant was employed by Lake Charles Diesel, which was located in Calcasieu Parish. Outfitted with company equipment, tools, and uniforms in Calcasieu Parish, the defendant was dispatched to repair a vessel engine in La-fourche Parish, pursuant to a contract entered via facsimile transmissions to and from Lafourche and Calcasieu Parishes. While in Lafourche, the defendant reported to Lake Charles Diesel that he had received a cashier’s check from the owner of the vessel in the amount of $15,000. Instead of bringing the check back to Cal-casieu Parish, as he was told, the defendant reported that the check had been stolen from his truck. That was the last time the defendant was heard from. Hayes, 01-3193 at pp. 1-2, 837 So.2d at 1196.

The defendant was charged in Calcasieu Parish with theft of currency valued over $500, in violation of La. R.S. 14:67(A). The defendant moved to quash the information based on improper venue, claiming the alleged criminal activities could have occurred only in Lafourche Parish, not Calcasieu Parish. The trial court ruled that venue was proper in Calcasieu Parish. The Third Circuit reversed the trial court, finding that the State failed to show the defendant had formed the intent to permanently deprive his employer of the tools and uniforms at the time of the taking. The Third Circuit also found the State did not prove that, while in IsCalcasieu Parish, the defendant had formed the requisite intent to permanently deprive his employer of the $15,000, which he received as payment from a customer in Lafourche Parish. Hayes, 01-3193 at pp. 2-3, 837 So.2d at 1196-1197.

The supreme court reversed the third circuit and found that venue in Calcasieu Parish was proper. The supreme court noted that the locus delicti of a crime is determined from the nature of the crime alleged and the location of the act or acts constituting it. The court observed that theft is broadly defined in La. R.S. 14:67(A), and that the statute combines the common law crime of larceny with the offense of embezzlement. In the offense of embezzlement, the court explained, the felonious conversion or misappropriation takes place after the lawful receipt of the goods or property by the accused in the course of a fiduciary relationship with the victim that he then breaches in the act of conversion. The intent to deprive the owner of his property permanently, therefore, need not coincide with the actual taking. The court found that the crime of theft charged against the defendant was in the nature of an embezzlement offense. Hayes, 01-3193 at pp. 3-5, 837 So.2d at 1197-1198.

The charged crime in the instant matter is unauthorized use of an access card (La. R.S. 14:67.3), which is a narrowly defined, specific type of theft. The Hayes court interpreted and expanded on the meaning of theft under La. R.S. 14:67 and found theft to be “in the nature of’ an embezzlement offense. It does not follow, however, that unauthorized use of an access card, a particularized species of theft, is also an “embezzlement-type crime,” as asserted by the State. The proscribed conduct in La. R.S. 14:67.3 is the use of an access card of another person without 6his authority. There is no similarly proscribed conduct in Hayes. Where it may have been appropriate for the Hayes court to liken the defendant’s crime to embezzlement because of the particular facts of the case, no such comparison of the defendant’s alleged crime in the instant matter to embezzlement is warranted. In Hayes, there was an employment relationship between Lake Charles Diesel and the defendant. Thus, by the defendant’s fiduciary relation with Lake Charles Diesel, the defendant was entrusted with Lake Charles Diesel’s property. In the instant matter, there was no employment relationship between Hodg-kins and the defendant. The only connection between these parties was through a moving contract. We fail to see how the defendant’s charging several thousand dollars to Hodgkins’s credit card without his consent is, in any meaningful way, an embezzlement-type offense.

Even assuming, arguendo, that unauthorized use of an access card was an embezzlement-type crime, venue would still not be proper in East Baton Rouge Parish under the Hayes rationale. The Hayes court noted that under Article 611, “If acts constituting an offense ... occurred in more than one place ... the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.” The court found that, while the defendant may have formed the intent to convert the diesel parts and uniforms to his own use in La-fourche Parish, venue in Calcasieu Parish was proper because the defendant took possession of the diesel parts and uniforms in Calcasieu Parish. In support of this proposition, the court cited State v. Wells, 195 La. 758, 764, 197 So. 420, 422 (1940): “In a case of embezzlement of property received in trust in the parish in which it is to be returned, but disposed of in another parish, the venue is in the parish in which the property was to be returned.” Hayes, 01-3193 at p. 5, 837 So.2d at 1198.

7In the instant matter, under the Hayes rationale, the embezzled property would be the several thousand dollars charged to Hodgkins’s credit card. At the time the defendant charged the credit card, presumably without the consent of Hodgkins, the defendant was in Texas, and Hodgkins was living in Virginia. Thus, since Hodg-kins would have received a credit to his credit card while he was living in Virginia, proper venue, under Hayes, would be in Virginia.

With respect to the missing money, the Hayes court found that, while it was not proved that the defendant converted the $15,000 to his own use in Calcasieu Parish or formed the intent to do so, Lake Charles Diesel had, nevertheless, imposed upon him the duty to return to the company in Calcasieu Parish with the payment. In finding venue proper in Calcasieu Parish, the court noted that Louisiana was one of several jurisdictions that followed the jurisprudential rule 8that venue in embezzlement was proper where the accused was under obligation to account. In citing State v. Cason, 198 La. 828, 836, 5 So.2d 121, 123 (1941) for support of this rule, the Hayes court stated that “in the absence of proof where the act of conversion occurred, ‘it will be presumed that the illegal conversion was accomplished in the jurisdiction of the court where the money was entrusted to the accused or at the place at which an accounting is to be made ....”’ Hayes, 01-3193 at p. 6, 837 So.2d at 1198.

Assuming these presumptions applied to the instant matter, venue would be proper either in Texas, where the money was entrusted to the defendant, or in Virginia, where the defendant would be under obligation to Hodgkins to account for the money charged to his credit card. However, since there is no absence of proof as to where the ostensible conversion took place in the instant matter, these presumptions do not apply. As discussed in Cason, 198 La. at 836, 5 So.2d at 123:

[TJhese presumptions can be indulged in only in the absence of proof showing that the conversion of the monies took place within another jurisdiction — for, inasmuch as the essence of the unlawful offense is a conversion of the entrusted property, the parish in which the conversion took place determines the court’s jurisdiction.

In the instant matter, the defendant was, at all times, in Texas, including the moment he charged several thousand dollars to Hodgkins’s credit card. Thus, the conversion, assuming there was one, could have taken place only in Texas. As such, proper venue would be in Texas.

The Hayes court further found that, even had it been shown that the defendant converted the money in Lafourche Parish, the court would still be inclined to find venue proper in Calcasieu Parish. The court explained that the place where the effect of the criminal conduct occurred was an important consideration in determining whether the criminal acts had substantial contacts with the venue chosen for prosecution. The court noted that the force of the defendant’s alleged criminal acts were felt nowhere else than in Calcasieu Parish | nwhere Lake Charles Diesel had lost its parts and uniforms, as well as the cash payment made by the vessel owner in La-fourche Parish to the defendant. Hayes, 01-3193 at p. 7, 837 So.2d at 1198-1199.

Applying this impact analysis under Hayes to the instant matter, we do not find that the force of the defendant’s alleged unauthorized use of Hodgkins’s credit card was felt in East Baton Rouge Parish. At the time of the alleged unauthorized use, the defendant was in Texas. Hodgkins’s goods, at that time, were already in Virginia, and Hodgkins was already relocated and living in Virginia. Thus, given the minimal, if not non-existent, contact that any of the parties had with Louisiana at the time of the alleged conversion, venue would not be proper in Louisiana under the Hayes impact analysis.

The State asserts in its brief that the theory of the prosecution is that the defendant constructed a plan whereby he would be able to embezzle funds from Hodgkins. The defendant’s intent to defraud, according to the State, can only be inferred from looking at the preparatory acts occurring in Louisiana. Thus, while the actual use of the credit card occurred outside of Louisiana, the acts facilitating the unauthorized use of Hodgkins’s credit card, such as the defendant’s moving company coming to Louisiana and loading a truck with Hodg-kins’s goods pursuant to a contract, occurred in Baton Rouge. In support of this preparatory acts theory, the State relies on Joshlin.

The State’s reliance on Joshlin is misplaced. In Joshlin, the Louisiana Supreme Court found venue proper in the prosecuting jurisdiction because certain preparatory acts for the charged crime of insurance fraud occurred within that jurisdiction. The court determined that, pursuant to the specific language of La. 10R.S. 22:1243, the legislature “intended to punish preliminary acts which are the foundation for the statements defendant made in the allegedly fraudulent claim he presented to the life insurance company.” Joshlin, 99-1004 at p. 5, 752 So.2d at 837.

There is no similar language with regard to preparatory acts found in La. R.S. 14:67.3. The Joshlin court analyzed venue in terms of the defendant’s preparatory acts because such acts constituted a fraudulent insurance act. We find the result reached in Joshlin specific to the crime charged in that case and, as such, inapplicable to the instant matter. Any attempt to superimpose a preparatory acts element onto La. R.S. 14:67.3, so as to bring within its purview any activity in Louisiana related to, and especially prior to, the move, is improper.

We do not find venue to be proper in East Baton Rouge Parish under Hayes or Joshlin. The trial court did not abuse its discretion in granting the defendant’s motion to quash.

The assignment of error is without merit.

TRIAL COURT’S RULING GRANTING THE MOTION TO QUASH AFFIRMED.

      . Apparently, Hodgkins’s items were taken to a storage facility in Virginia, and were not going to be moved from there to Hodgkins's residence in Virginia until Hodgkins paid for the moving expenses in cash.

      . In Article 611, the "act or element" test is adopted in preference to the "substantial element” test. The act or element that confers venue must be one of several, which as a whole and united together constitute an offense. See Official Revision Comment (b) to Article 611.

      . A cashier's check never existed. At the defendant's insistence, the owner of the vessel obtained $15,000 in cash and gave it to the defendant in return for a receipt. Hayes, 01-3193 at p. 2, 837 So.2d at 1196.

      . The court explained that the crime of embezzlement is a fraudulent and felonious appropriation of another’s property by the person to whom it has been entrusted or into whose hands it has lawfully come. The gist of the offense is the conversion of the property. It is an essential element of embezzlement that the property charged to be embezzled was lawfully in the accused’s possession by fiduciary relation with the owner. Embezzlement differs from larceny in that the original taking is lawful. The gravamen of the offense is the subsequent felonious conversion of the property with the intent to convert it to the accused's own use. Hayes, 01-3193 at p. 4, 837 So.2d at 1197.

      . Hodgkins was also in Virginia when he insisted that the defendant charge his credit card for the move. At the March 14, 2005, hearing (wherein the facts were used for both the preliminary exam and the motion to quash), the following exchange took place between defense counsel and Hodgkins:
      Q. And on the 26th ... Let me back up. You had no conversation with anyone on his behalf at his company on the 25th advising them that you were not going to — or you were going to contest any credit card debit that had been made with regard to the five thousand dollars that had been contracted?
      A. No, ... Mr. Colbert at that point was insisting upon a cash payment, and I had not made arrangements for a cash payment. Their contract spelled out that I could use a credit card as a form of payment.... They, therefore, then began to refuse to accept the credit card. I was insisting that they honor the contract and accept my credit card as a form of payment. That was the only discussions we had on that date regarding American Express.
      Q. So you wanted them to accept your credit card on that date on the 25th, correct?
      A. That’s correct. They refused.

      Q. And where were you when you had this conversation?
      A. I was at my new residence in Virginia.
      Q. And where was Chris when you had this conversation with him?
      A. To the best of my knowledge, he was at their office.

      Q. So at the time that — on the 25th of July, 03, you had requested that Chris accept a credit card payment and deliver your items; is that correct?
      A. That's correct.
      Q. And in fact you later learned that on the 25th your credit card had been debited five thousand two hundred eighty-three dollars and thirty-eight cents?
      A. I didn’t learn of that until August the 1st, and there was never — they never stopped asking for a cash payment for the delivery of my goods. They continued to refuse to accept any charges to my credit card as acceptance for the payment.
      Q. Now, did you later — did you learn that your items on the 25th or the 26th of July were in Virginia in a storage facility?
      A. I was told the driver was in Virginia, yes.

      . See Hayes (J. Weimer dissenting), 01-3193 at p. 4, 837 So.2d at 1201, where Justice Weimer notes that Article 611 "has absolutely nothing within its language which speaks to a consideration of the impact of a crime.”

      . Under La. R.S. 22:1242, a "Fraudulent insurance act” is defined, in pertinent part, as "acts or omissions committed by any person who, knowingly and with intent to defraud: (a) Presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by any insurer, ... any oral or written statement which he knows to contain materially false information .... ” Joshlin, 99-1004 at p. 5, 752 So.2d at 838.

      .The Joshlin court stated:
      The locus delicti of the charged offense "must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” In effectuating this inquiry, a court must first identify the conduct of the offense and then discern the location of the commission of the criminal acts. In the identification of the relevant conduct, a court may look to the verbs used in the statute to determine the nature of the substantive offense.

        Joshlin, 99-1004 at p. 4, 752 So.2d at 837 (citations omitted).


author: PETTIGREW, J.

text:
    STATE of Louisiana v. James THOMAS.
    No. 2005 KA 2210.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Aug. 22, 2006.

      Camille A. Morvant, II, District Attorney, Steven M. Miller, Assistant District Attorney, Thibodaux, for the State of Louisiana.
    Mary E. Roper, Baton Rouge, for Defendant-Appellant James Thomas.

      Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

2The defendant, James Thomas, was charged by bill of information with vehicular homicide (count one) and fourth or subsequent offense DWI (count two), violations of La. R.S. 14:32.1 and La. R.S. 14:98. The defendant entered a plea of not guilty. The charges were severed, and count two was ultimately nol prossed by the State. After a trial by jury, the defendant was found guilty of vehicular homicide. The defendant was sentenced to 20 year's imprisonment at hard labor. The trial court ordered that the first year of the sentence be served without the benefit of parole. The defendant was then adjudicated a fourth felony habitual offender. The trial court vacated the previously imposed sentence and sentenced the defendant to 40 years imprisonment at hard labor. The trial court denied the defendant’s motion for reconsideration of sentence. The defendant now appeals, arguing that the evidence is insufficient to support the conviction and that La. R.S. 15:529.1 is unconstitutionally vague. For the following reasons, we affirm the conviction of vehicular homicide, reverse the habitual offender adjudication, vacate the habitual offender sentence, reinstate the sentence on vehicular homicide, and remand for further proceedings on the habitual offender bill.

STATEMENT OF FACTS

On or about February 14, 2004, at approximately 8:30 p.m., Officers Brook An-gelette and Kurt Landry (both of the Greater Lafourche Port Commission Harbor Police) left their office in separate police units to conduct street patrol. The two officers were responding to an electrical power outage that had just occurred in the area. After receiving a dispatch regarding a utility pole, the officers headed toward Louisiana Highway 1 in Lafourche Parish. The officers promptly arrived at the scene of a downed utility pole and electrical wires lying across the highway. Traffic was stalled due to the downed pole and wires. The officers observed an overturned (upside down) 1985 GMC Jimmy utility-style vehicle in a body of water located off the shoulder of Louisiana Highway 1, just south of Louisiana Highway 39. An adult male and a male child (the defendant and his eight-year-old son) walked up the bank toward the highway. The officers asked the defendant if anyone else was in the vehicle, and the defendant 3niformed them that his daughter (the eight-year-old victim) was still in the vehicle. The officers ran into the water toward the vehicle. They ultimately pulled the victim, who was restrained in the front passenger seat at the time of their approach, out of the vehicle and took her to the shoulder of the highway.

Officer Angelette attempted to perform CPR on the victim but could not detect any vital signs. The autopsy revealed the victim’s cause of death to be a broken neck and severed spinal column, injuries consistent with the victim having been a restrained guest passenger in a vehicle that was involved in a high-impact collision. The defendant’s blood-alcohol concentration, determined from a blood sample taken at 10:50 p.m. (on the night of the accident) at Terrebonne General Medical Center, was .24 grams percent.

ASSIGNMENT OF ERROR NUMBER ONE

In the first assignment of error, the defendant avers that the evidence pre-sented herein was insufficient to support the conviction. The defendant concedes that he drove his vehicle off the highway and that the accident resulted in the death of the victim. The defendant argues, however, that the causation element of the offense was not proven. The defendant notes that the traversed area was under construction and argues that posted signs did not provide adequate response time to a bump in the highway. The defendant avers had he been sober, due to the road conditions, the accident still could have occurred. The defendant further notes that the accident occurred on a windy night and that his vehicle, a sports utility vehicle, was “top heavy.” The defendant concludes that the circumstances indicated that forces other than the defendant’s intoxication could have caused the accident.

In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 4That standard of appellate review, adopted by the Legislature in enacting La.Code Crim. P. art. 821 (pertaining to motions for post verdict judgment of acquittal based on insufficiency of evidence), is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 420.

Vehicular homicide is defined in La. R.S. 14:32.1, in pertinent part, as follows:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

In State v. Taylor, 463 So.2d 1274, 1275 (La.1985), the Louisiana Supreme Court concluded that, under the vehicular homicide statute, “the [S]tate ... must prove that an offender’s unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being.” See also State v. Ritchie, 590 So.2d 1139, 1149 (La.1991) (on rehearing). It is insufficient for the State to prove merely that the alcohol consumption “coincides” with the accident. Taylor, 463 So.2d at 1275. The vehicular homicide statute does not impose criminal liability based solely on the coincidental fact that the fatal accident occurred (without fault on the part of the accused) while the accused was operating a vehicle under the influence of alcohol. 5Ritchie, 590 So.2d at 1149. Compare State v. Archer, 619 So.2d 1071, 1074 (La.App. 1 Cir.), writ denied, 626 So.2d 1178 (La.1993). Causation is a question of fact that should be considered in light of the totality of circumstances surrounding the ultimate harm and its relation to the actor’s conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990); State v. Trahan, 93-1116, p. 11 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 701.

State witness J.T. (the defendant’s eight-year-old son) and the victim, were the occupants of the vehicle being driven by the defendant. J.T. indicated that at the time of the accident, the defendant was driving them from Gulfport, Mississippi, to Grand Isle, Louisiana. J.T. further testified that after initially leaving their home in Gulfport, the defendant returned home to retrieve his vodka before recommencing the trip. J.T. had fallen asleep in the back of the vehicle before the accident took place. He woke up after the vehicle overturned. J.T. indicated that the defendant assisted him out of the vehicle.

State witnesses Sergeant Richard Blanchard, an expert in accident reconstruction, and Louisiana State Trooper Donald R. Calíais, Jr., reconstructed the instant accident. The scene of the accident consisted of a curved roadway located just past Louisiana Highway 39 (Fourchon Road). The officers examined the point of the departure of the vehicle from the highway and found no evidence of an abrupt exit. Sergeant Blanchard confirmed that the manner of departure from the highway was consistent with the driver being asleep or inattentive. The accident was reconstructed as follows.

The defendant was traveling in the southbound lane. The defendant traversed a milled section of the highway. The milled section, located along a curve, was an area that was being resurfaced. The surface of that particular portion of the highway had been grinded and chopped by a machine. A tapered area of joint or asphalt was located at the end of the milled area to provide a smooth transition to the normally surfaced portion of the highway. The milled area was approximately 93 feet long. After traversing the milled section of the highway, the defendant continued his travel in the southbound lane for approximately 115 feet. The defendant’s vehicle then veered off Ifithe highway. After the vehicle exited the roadway, it began spinning or traveling sideways counterclockwise, consistent with abrupt steering. The vehicle ultimately crashed into a utility pole. The distance traveled after the departure from the highway to the point of impact was approximately 103 feet. After the vehicle struck the utility pole, it overturned and came to rest in the body of water.

During the cross-examination of Sergeant Blanchard and Trooper Calíais, the defendant elicited testimony to show that an end construction sign was located north of a bump sign and the actual bump or tapered area leading to the normally surfaced portion of the highway. The bump sign was located approximately 22 feet pri- or to the bump. Assuming that the driver was traveling at 55 miles per hour and would be able to see the sign ten feet before approaching it, Sergeant Blanchard estimated a driver would have one-half of a second to react before the actual bump. Sergeant Blanchard testified that the average response time for a driver confronted with an unforeseen event was three-fourths of a second. Sergeant Blanchard performed test runs of the area with a police unit, a large sedan, while the defendant traveled in a sports utility vehicle. Sergeant Blanchard confirmed that sports utility vehicles are “top-heavy” or more difficult to control in certain situations.

Sergeant Blanchard indicated there was no evidence that the defendant used or attempted to use his brakes before the point of impact. During re-direct examination, Sergeant Blanchard confirmed that the milled section of the highway, the placement of the signs, or the defendant’s vehicle being top-heavy did not contribute to the instant accident.

Upon his arrival at the scene, Lieutenant David Landry (the shift scene supervisor) stepped into the ambulance in which the defendant had been placed. Lieutenant Landry indicated that he smelled the scent of alcohol coming from the defendant’s body. The defendant was asleep when Lieutenant Landry was in the ambulance. Lieutenant Landry contacted Trooper Frank Besson and instructed him to travel to Terrebonne General Medical Center to obtain a blood sample from the defendant. When Trooper Besson arrived at the hospital, he informed the defendant of 7his Miranda rights and collected the blood sample drawn by Melody Luke, a registered nurse. Trooper Besson also noted the scent of alcohol emanating from the defendant.

After being advised of his rights, the defendant stated that he was traveling at 65 miles per hour at the time of the accident. The defendant informed Trooper Besson that an 18-wheeler had run him off the roadway. In an apparent attempt to rebut the defendant’s claim regarding an 18-wheeler, the State elicited testimony from Ray J. Cheramie, who was traveling north on Louisiana Highway 1 at approximately 8:15 p.m. on the night in question when he approached the scene of the accident. Cheramie stated that before he reached the scene, a white pickup truck, also traveling northbound, passed him. Cheramie observed the same truck at the scene of the accident.

Dr. William George, an expert in pharmacology and toxicology, testified that the defendant’s blood-alcohol concentration was higher than .24 grams percent at the time of the accident. Dr. George explained that the alcohol level peaks at about forty-two minutes to one hour following the last drink. The level then begins to dissipate at a rate between 15 and 20 milligrams percent per hour. Thus, Dr. George indicated that during the approximate two hours between the defendant’s accident and the drawing of his blood, his alcohol level would have been decreasing. Dr. George indicated that the effects of a .2 grams percent dose of alcohol include changes in confidence, personality, mood, and reaction time. He further indicated that such alcohol consumption causes confusion and visual disturbances like blurred and double vision. The likelihood of being in a fatal automobile accident would be forty to fifty times that of a non-drinking driver.

On cross-examination, Dr. George conceded that it was possible that the defendant’s blood-alcohol concentration was lower than the .24 grams percent at the time of the accident, but it was not probable. On re-direct, Dr. George reiterated that in his opinion and based on his review of the case, the defendant’s blood-alcohol concentration was greater than .24 grams percent at the time of the accident.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is | sone of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La.App. 1 Cir.1984). Accordingly, our role is not to assess credibility or reweigh evidence. State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Higgins, 2003-1980, p. 6 (La.4/1/05), 898 So.2d 1219, 1226, cert. denied, — U.S. -, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

An appellate court is constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir.1993), writ denied, 94-0141 (La.4/29/94), 637 So.2d 460; State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir. 1985). When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La.1987).

We find that there was sufficient evidence of a causal relationship between defendant’s blood-alcohol concentration and the victim’s death to support the conviction. The evidence showed that the defendant was highly intoxicated at the time of the accident. Dr. George testified that the defendant’s blood-alcohol concentration would have impaired defendant’s judgment and vision and slowed his reaction ability. It was reasonable for the jury to infer that defendant’s blood-alcohol concentration contributed to his lack of judgment. The jury could have reasonably disregarded the hypothesis that, even sober, the defendant could not have avoided the accident. Thus, the defendant’s intoxication combined with his operation of his automobile was the cause of the victim’s death. This assignment of error lacks merit.

9ASSIGNMENT OF ERROR NUMBER TWO

In the second and final assignment of error, the defendant avers that La. R.S. 15:529.1 is unconstitutionally vague. The defendant cites Chief Justice Calogero’s concurrence (although referred to by the defendant as a dissent) in State v. Everett, 2000-2998 (La.5/14/02), 816 So.2d 1272. The defendant contends that the Louisiana Supreme Court attested to the ambiguity of the statute. The defendant notes his objection below to the inclusion of a simple burglary conviction on the basis of La. R.S. 15:529.1 C, claiming that section C is ambiguous. The defendant concludes that the ambiguity of the statute renders it void for vagueness and mandates that it be held unconstitutional. The defendant requests that his original 20 sentence be reinstated.

Statutes are presumed to be valid; whenever possible, the constitutionality of a statute should be upheld. Because a statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. Attacks on the constitutionality of a statute may be made by two methods. The statute itself can be challenged, or the State’s application to a particular defendant can be the basis of the attack. State v. Gamberella, 633 So.2d 595, 601-602 (La.App. 1 Cir.1993), writ denied, 94-0200 (La.6/24/94), 640 So.2d 1341. Constitutional challenges may be based upon vagueness. State v. Griffin, 495 So.2d 1306, 1308 (La.1986).

A statute is vague if its meaning is not clear to the average citizen or if an ordinary person of reasonable intelligence is incapable of discerning its meaning and conforming his conduct to it. State v. Barthelemy, 545 So.2d 531, 532-533 (La.1989); Gamberella, 633 So.2d at 602. Further, a statute must provide adequate standards by which guilt or innocence may be determined so that an individual’s fate is not left to the unfettered discretion of law enforcement. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858-1859, 75 L.Ed.2d 903 (1983).

The particular portion of La. R.S. 15:529.1 referenced by the defendant herein as unconstitutionally vague is section C. At the time of the Louisiana Supreme Court’s decision in Everett, La. R.S. 15:529.1 C provided, in pertinent part, as follows:

10This Section [the Habitual Offender Law] shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, and the time of the commission of the last felony for which he has been convicted.

The Everett court held that the defendant therein could be adjudicated a third offender notwithstanding the fact that previously he could not have been adjudicated a second offender (because the so-called “cleansing period” of La. R.S. 15:529.1 C in effect at the time of the commission of the defendant’s second felony had elapsed at the time of that second felony).

The current version of La. R.S. 15:529.1 C provides (on this date and at the time of the offense) as follows:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

The statutory revision makes it clear that each step of the defendant’s multiple offender ladder must be examined to determine whether the State may link his first conviction to his second, his second conviction to his third, and his third conviction to his fourth to charge the defendant as a fourth felony offender. Considering the drastic revision of La. R.S. 15:529.1 C since the Louisiana Supreme Court’s decision in Everett, the court’s interpretation is inapplicable herein. We find that the legislature has cured any ambiguity that may have been in existence at the time of the Everett decision.

On appeal, the defendant particularly notes his objection below to the inclusion of a 1979 simple burglary predicate conviction in his habitual offender adjudication. We will examine the inclusion of this predicate for compliance with La. R.S. 15:529.1 C.

11Any period of servitude by a person in a penal institution shall not be included in the computation of the ten-year period. La. R.S. 15:529.1 C. The State has the burden of proving that ten years has not elapsed between the defendant’s release from custody on the prior offense and the new offense. State v. Smith, 2004-0800, p. 4 (La.App. 1 Cir. 12/17/04), 897 So.2d 710, 713; State v. Williams, 2002-1815, p. 4 (La.App. 4 Cir. 11/20/02), 833 So.2d 428, 432, writ denied, 2003-0036 (La.10/3/03), 855 So.2d 307. The Louisiana Supreme Court has stated that the expiration of a previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections. State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La.1982). See also Smith, 2004-0800 at p. 4, 897 So.2d at 713. “Discharge from supervision can take place earlier than the theoretical date on which the initial sentence would have terminated, because of a pardon, commutation, or good time credit. Or it can take place later because of parole revocation.” Maggio, 422 So.2d at 1123.

In adjudicating the defendant a fourth felony habitual offender, the trial court, in pertinent part, relied on its interpretation of the Louisiana Supreme Court’s decision in Everett. However, because section C of the statute has been drastically amended since the Everett decision, we need not determine whether the trial court’s interpretation of the case is correct. Nonetheless, we find herein the State failed to prove that the ten-year “cleansing period” between the 1979 conviction and the 1995 predicate offense had not lapsed, such that the defendant’s habitual offender adjudication must be reversed and the sentence vacated.

The defendant committed the simple burglary offense on May 8, 1978 and was convicted pursuant to a January 8, 1979 guilty plea. The sentence received by the defendant for the simple burglary conviction was two years imprisonment at hard labor, suspended with five years active probation. The next offense used by the State to establish the defendant’s habitual offender status is a Texas criminal mischief over $1500 offense committed on September 22, 1995. The date of conviction for that offense is October 4, 1996. Thus, the 1995 offense was committed well after the ten-year cleansing period elapsed. As the State did not produce any evidence otherwise, 12the trial court erred in adjudicating the defendant a fourth felony habitual offender. Therefore, the multiple offender adjudication is hereby reversed, and the sentence is vacated. Of course, the State would have the option of once again attempting to prove that the defendant is an habitual offender, as double jeopardy does not apply to habitual offender adjudications. State v. Richardson, 91-2339, p. 9 (La.App. 1 Cir. 5/20/94), 637 So.2d 709, 715. Therefore, the defendant’s conviction of vehicular homicide is affirmed, his habitual offender adjudication is reversed, the habitual offender sentence is vacated, the original sentence for vehicular homicide is reinstated, and the case is remanded to the trial court for further proceedings. In the event the defendant is again prosecuted for and adjudicated an habitual offender, then the trial court should again vacate the original sentence and resentence the defendant on the habitual offender adjudication.

CONVICTION FOR VEHICLE HOMICIDE AFFIRMED; HABITUAL OFFENDER ADJUDICATION REVERSED; HABITUAL OFFENDER SENTENCE VACATED; ORIGINAL SENTENCE FOR VEHICLE HOMICIDE REINSTATED; REMANDED.

GUIDRY, J., concurs.

KUHN, J., concurs.

      . The identity of the victim will not be disclosed herein. See La. R.S. 46:1844 W.


author: WALTER J. ROTHSCHILD, Judge, Ad Hoc.

text:
    ARMELISE PLANTING COMPANY v. LIBERTY OIL AND GAS CORPORATION, BP Amoco, et al.
    No. 2005-CW-1250.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Victor L. Marcello, Donald T. Car-mouehe, John H. Carmouche, Gonzales, Counsel for Plaintiff/Appellee.
    Dale R. Baringer, Benjamin J.B. Klein, Baton Rouge, Counsel for Defendani/Ap-pellant.
    Panel composed of Ad Hoc Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge, Ad Hoc.

2This is an appeal from a trial court judgment denying defendant’s motion for sanctions. For the reasons stated herein, we convert the appeal to an application for supervisory writs and affirm the trial court’s judgment.

Facts and Procedural History

Armelise Planting Company filed the original petition for damages on May 31, 2000 naming 65 defendants. The petition alleges generally that the defendants conducted, directed and participated in various oil and gas exploration and productions activities which have caused toxic waste-related property damage on or near plaintiffs property. The petition was amended several times to supplement and add to the list of defendants. The Third Amending Petition, filed on September 26, 2003, added another plaintiff and an additional 36 defendants, including appellant, Builders Center Real Estate Co., LLC (hereinafter “Builders Center.”) In this amending petition, plaintiffs renewed and reiterated all of the allegations and the prayer of the original petition and the first and second supplemental and amending petitions.

3On January 12, 2004, Builders Center responded to this petition with an Exception of Vagueness on the basis that the petition failed to make a specific allegation against Builders Center and did not allege any wrongful conduct on the part of this defendant. Builders Center argues that it has never operated a well located on or near plaintiffs’ property, nor has it conducted, directed or participated in oil and gas activities as alleged by plaintiffs in the original petition against other defendants.

On March 2, 2004, on motion of plaintiffs, Builders Center was dismissed with prejudice from these proceedings. Thereafter, Builders Center moved for the imposition of sanctions against plaintiffs’ attorneys for violating the duty to perform reasonable inquiry into the facts and information upon which the petition was based. This matter was heard by the trial court on September 29, 2004. By judgment signed on January 27, 2005, the motion for sanctions was denied. On February 14, 2005, Builders Center moved for devolu-tive appeal from this judgment, and the trial court granted the order of appeal on February 16, 2005.

Law and Discussion

At the outset we note that the denial of a motion for sanctions is a judgment that does not determine the merits of the case. Therefore, it is an interlocutory judgment. LSA-C.C.P. art. 1841. The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See, LSA-C.C.P. arts. 2087 and 2201. However, we have authority to exercise our supervisory jurisdiction and treat the appeal of this interlocutory judgment as an application for supervisory writs. See, State, Dept. of Social Services v. Howard, 03-2865 (La.App. 1 Cir. 12/30/04), 898 So.2d 443; CITGO 4Petroleum Corp. v. State ex rel. Dept. of Revenue and Taxation, 02-0999 (La.App. 1 Cir. 4/2/03), 845 So.2d 558, 563, writ denied, 03-1243 (La.6/27/03), 847 So.2d 1274; City of Baton Rouge/Parish of Baton Rouge v. Johnca Properties, L.L.C., 99-2230 (La.App. 1 Cir. 6/23/00), 764 So.2d 1221, 1223-24; Trahan v. Prudential Property & Casualty Ins. Co., 97-2470 (La.App. 1 Cir. 5/14/99), 739 So.2d 811, 813.

In the present case, the motion for appeal was filed within the 30 day period applicable to supervisory writs contained Uniform Rule 4-3 and thus an application for supervisory writs would have been timely. In the interest of judicial economy, we exercise our discretion and convert this appeal to an application for supervisory writs.

In its brief filed in this court, Builders Center contends that plaintiffs’ counsel failed to conduct a reasonable inquiry into the facts upon which the third amending petition was based and that the allegations of this petition were not well grounded in fact. Builders Center contends that it was damaged by incurring attorneys’ fees and costs to defend a claim against it that plaintiffs’ attorneys should have known had no connection to the facts of the present case, and it is therefore entitled to a judgment imposing sanctions.

In support of its motion for sanctions, Builders Center relies on the provisions of La. C.C.P. art. 863, which authorizes the imposition of sanctions based only on the signing and certification of pleadings. This 5article authorizes a court to impose sanctions upon an attorney who signs pleadings without making an objectively reasonable inquiry into the facts and law. The penalties provided for in article 863 shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction. LSA-C.C.P. art. 863(E). Lafourche Parish Council v. Breaux, 02-1565 (La.App. 1 Cir. 5/9/03), 845 So.2d 645, 648.

In order to impose sanctions, a trial court must first find that one of the affirmative duties imposed by article 863(B) has been violated. LSA-C.C.P. art. 863(D). The first part of the certification is that an attorney has read the pleading. The second part is that to the best of the attorney’s knowledge, information, and belief formed after reasonable inquiry, the pleading is well grounded in fact. Thirdly, the attorney must certify that the pleading is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Fourth, and lastly, the attorney certifies that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Sanchez v. Liberty Lloyds, 95-956 (La.App. 1 Cir. 4/4/96), 672 So.2d 268, 272.

6A. trial court’s factual determination that LSA-C.C.P. art. 863 was, or was not, violated is reviewed on appeal pursuant to the “manifest error” or “clearly wrong” standard. Maxie v. McCormick, 95-1105 (La.App. 1 Cir. 2/23/96), 669 So.2d 562, 565; Lafourche Parish Council v. Breaux, 02-1565 (La.App. 1 Cir. 5/9/03), 845 So.2d 645, 648.

The record in this case shows that after the third amending petition naming Builders Center as defendant was filed in September of 2003, counsel for defendant contacted plaintiffs’ attorney, but was unable to obtain clarification or substantive information as to why Builders Center had been brought into the suit. Counsel for Builders Center then attended an exception hearing in January of 2004, and subsequently filed its exception of vagueness. In February of 2004, plaintiffs’ counsel sent counsel for Builders Center information which showed that a company by the name of Plymouth, Inc. was designated as operator of the oil wells in controversy in 1998. Further, plaintiffs’ counsel presented information from the Louisiana Secretary of State’s website that Plymouth, Inc was merged into Builders Center in 1975. It was subsequently determined that although the two corporations share the same name, the corporation which merged with Builders Center in 1975 ceased to exist upon the merger and was not the same entity as the entity which operated the oil wells in 1998. After receiving this information, plaintiffs moved to dismiss Builders Center from this litigation on March 4, 2004.

Defendant contends that if plaintiffs’ counsel had done further inquiry into this matter by further researching records in the Louisiana Secretary of State’s office, plaintiffs’ counsel would have discovered that Builders Center was not a proper defendant in this case. However, the trial court found that this was complex litigation involving many defendants where the property 7records indicated that ownership of the oil fields in question changed hands many times. The trial court found that although plaintiffs’ counsel made a mistake by naming Builders Center as a defendant, counsel used reasonable care in inquiring into the facts of this case, and he took action to dismiss Builders Center from the suit once he was informed of the mistake.

In this case, the record below contains sufficient evidence to support the trial court’s decision. Based on the record before us, we fail to find that the judgment was clearly wrong or manifestly erroneous. Accordingly, we grant the writ and affirm the trial court’s judgment denying defendant’s motion for sanctions.

WRIT GRANTED; JUDGMENT AFFIRMED.

      . A judgment that imposes sanctions pursuant to LSA-C.C.P. art. 863 is a final judgment for purposes of appeal. See LSA-C.C.P. art. 1915(A)(6).

      . Art. 863. Signing of pleadings, effect
      A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
      B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
      C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
      D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.