text:
    STATE of Louisiana v. Vincent Ray VERRET.
    No. 2006 KA 1337.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Carlos E. Lazarus, Jr., Ellen Daigle Doskey, Assistant District Attorneys, Hou-ma, Counsel for Appellee State of Louisiana.
    Douglas H. Greenburg, Houma, Counsel for Defendant/Appellant Vincent Ray Ver-ret.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| ¡.Defendant, Vincent Ray Verret, was charged by grand jury indictment with one count of aggravated rape, a violation of LSA-R.S. 14:42, and pled not guilty. Following a jury trial, he was found guilty as charged. Defendant moved for a new trial and a post-verdict judgment of acquittal, but the motions were denied. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant then moved for reconsideration of sentence, but the motion was denied. He now appeals, designating six assignments of error. We affirm the conviction and sentence; we also issue a protective order.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting the State’s motion requesting that the court order defendant to undergo examination by an expert psychologist chosen by the State.

2. The trial court committed reversible error in allowing the State to admit defendant’s confession into evidence over the objection of defendant.

3. The trial court erred in admitting evidence of other offenses which were the subject of pending indictments against defendant.

4. The trial court erred in overruling defendant’s motion for post-verdict judgment of acquittal because no rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt.

5. The trial court erred in failing to grant a mistrial following the late production by the State of the report of the Lafourche Parish Sheriffs Office.

6. Defendant was denied the effective assistance of counsel in the preparation and presentation of his defense.

1 .FACTUAL BACKGROUND

The victim, M.T.,- whose date of birth is May 16, 1993, testified at trial. When she was eight years old, she lived with defendant, her father, for approximately one and one-half years. M.T. testified that during that time, defendant raped her. M.T. defined rape as when defendant would put his “private” in her “private parts” “in the front and in the back.” She also testified that defendant would make her suck his private.

M.T. discussed the first time defendant raped her. While she was washing dishes in the kitchen, defendant called her into the bathroom. Defendant told M.T. that she needed to clean the bathroom. While M.T. was picking up clothes, defendant told her to pull down her pants. M.T. initially refused, but after defendant repeated the demand, she pulled down her pants. Defendant forced the victim to get on her hands and knees and then “stuck his private in [M.T.’s] butt.” The rape hurt M.T., and she cried and told defendant “to stop loud.” Defendant, however, continued for approximately five minutes.

After the first rape, defendant told M.T. he was sorry -and promised never to “do it” again. However, “another time” defendant did the “same thing” to M.T. He also made M.T. suck his private and put his private in her front private. The additional rapes occurred in the living room, the bathroom, M.T.’s room, defendant’s wife’s room, the victim’s brother’s room, and the hallway. While defendant raped M.T., he told her “everything he did to little girls[,]” and mentioned the names of “Summer, Tonia, Toni, Shenequea, and Caylie.” Defendant told M.T. that she did not want to see him go to jail because she would not have anything. M.T." interpreted defendant’s statement to mean that if he were ever released from jail, he would kill her.

|4On cross-examination, M.T. testified that “Mario” and “Roberto” lived with her mother before she went to live with her father. M.T. could not pronounce Roberto’s "last name because it was Mexican. She stated that Roberto was her mother’s husband and lived with them when M.T. was three or four years old. M.T. did not remember if a public agency had investigated abuse against her by Roberto or any other person before she went to live with defendant. She denied that Roberto or anyone else abused her before she went to live with defendant.

M.T. conceded she saw a psychologist after the rapes, but denied that the psychologist said she was a compulsive liar. M.T. denied telling people in her family .that she had been “messed with” by some Mexican or Mexicans prior to going to live with defendant.

The State also played a videotaped statement given by M.T. on March 25, 2003. In the statement, M.T. stated she lived with defendant for the last year and one-half and he had “messed with [her].” M.T. stated that defendant told her never to tell anyone that he “did it to [M.T.].” She indicated the incidents had occurred in the kitchen, the hallway, the victim’s room, and defendant’s room. She stated that defendant’s wife, Stacy, had been shopping, sleeping, at work, or at Bingo during the incidents.

M.T. gave a similar account during her testimony at trial concerning the first rape. She testified that approximately a month after the first rape, defendant began putting his private in her private after making her lay down in her room or in his room: Defendant made M.T. pull her pants down and stood up during the rapes. Defendant would rape her “until white stuff came out,” and then would “put it in [M.T.’s] butt.” Defendant told M.T. not to tell anyone about the rapes, and M.T. did not tell anyone because she was scared of defendant. She testified that defendant raped her more than one hundred | Rtimes, and raped her every day except Sunday, because on Sunday they went to church and then to her grandmother’s house. M.T. denied that anyone other than defendant did what defendant had done to her.

The State also played an audiotaped statement given by defendant to Terre-bonne Parish Sheriffs Detective Dawn Bergeron on March 26, 2003. Defendant claimed M.T. lived with him for eight or nine months in 2000. Detective Bergeron told defendant that his daughter had made allegations that he had touched her inappropriately and asked him if he knew what that meant. Defendant replied, “touched her privates.” He confessed to four incidents involving M.T. when she was eight or nine years old. He claimed the first incident occurred in the living room of his house, and he put his private in M.T.’s butt. He also stated that M.T. gave him oral sex. Defendant initially denied also vaginally raping M.T., but then conceded his private parts had touched M.T.’s vagina twice. He initially denied ejaculating during the rapes, but after Detective Ber-geron told him that M.T. indicated that he did ejaculate, he stated he ejaculated as he exited M.T.’s body. Defendant claimed he told the victim to “help him pray so that he wouldn’t do it.” He denied raping any other children.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 4, defendant argues that M.T.’s testimony was unsupported by physical evidence and was insufficient to prove guilt beyond a reasonable doubt. He claims that M.T. had a history of making allegations against adult males, which lacked credibility. In regard to what he calls his “purported” confession, defendant claims the evidence of his mental disability and the inconsistency of the confession with M.T.’s statement were sufficient to create a reasonable doubt in the mind of any rational trier of fact.

| fiIn 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 LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988).

Louisiana Revised Statute 14:41, prior to amendment by 2001 La. Acts, No. 301, § 1, in pertinent part, provided:

A. Rape is the act of anal or vaginal sexual intercourse with a ... female person committed without the person’s lawful consent.
B. Emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

Louisiana Revised Statute 14:42, prior to amendment by 2001 La. Acts, No. 301, § 1, and 2003 La. Acts, No. 795, § 1, in pertinent part, provided:

A. Aggravated rape is a rape ... where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

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 defendant was guilty of the aggravated rape of M.T. The verdict rendered against defendant indicates the jury accepted the testimony of the State’s witnesses, including M.T.’s account of the incident. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The 17testimony 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. 1 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.-

EXAMINATION OF THE DEFENDANT BY A STATE EXPERT

In assignment of error number 1, defendant argues that the trial court erred in ordering him to undergo psychological evaluation by an expert chosen by the State where there was no statutory authority for such an examination, and he had not pled insanity at the time of the offense or lack of capacity to understand the proceedings against him or assist in his defense.

Prior to trial, the defense moved to suppress defendant’s confession, alleging, inter alia, that defendant was “mentally handicapped and therefore was not of sound mind and did not have the mental capacity to adequately understand and appreciate his rights or to be able to intelligently and voluntarily waive same.”

The State moved for a contradictory hearing. The State set forth that defendant had put at issue his mental condition and capacity by alleging that he was retarded, and that retardation prevented him from knowingly and voluntarily waiving his rights when he made an inculpatory statement to law enforcement. The State further set forth that defendant had engaged an expert psychologist to provide expert testimony at the hearing on the motion to suppress the confession. The State moved to have defendant examined by an expert psychologist of its choice.

Is At the hearing on the motion, the defense argued that it had not placed defendant’s mental condition at issue, and thus, the State had no right to engage in discovery of defendant’s mental condition for purposes of a motion to suppress a confession. Additionally, the defense argued that the examination of defendant sought by the State would violate defendant’s rights against self-incrimination and the effective assistance of counsel.

The trial court granted the motion to have defendant examined by an expert psychologist chosen by the State for the purpose of assessing defendant’s level of intelligence or mental ability. The court noted:

It seems that a resolution of the issue raised by the [S]tate in this case should be resolved by reference to the procedural articles dealing with discovery and inspection. Although Louisiana Code of Criminal Procedure article 726 grants the [Sjtate a limited right to inspect and reproduce reports of mental and physical examinations the defendant intends to use at trial, it does not grant the [S]tate the right to a physical or mental examination of the defendant by experts.
This court believes it would be fundamentally unfair to permit the defendant to present at the hearing on his motion to suppress his confession, expert testimony about his diminished mental capacity, and yet deny the [SJtate the opportunity to have its own expert examine the defendant and testify about the same matter. The discovery sought by the [SJtate is not designed to obtain and will not result in the obtaining of admissible testimonial evidence at trial. The discovery is designed to obtain evidence to resolve the issue of the defendant’s level of intelligence, an issue raised by the defendant in connection with his attempt to resolve the pre-trial issue of the admissibility of his confession or other inculpa-tory statements.
The court considers the evidence the [SJtate intends to obtain by way of the requested examination of the defendant, as non-testimonial evidence, akin to other types of evidence that a defendant may be compelled to produce without violation of his privilege against self-incrimination. These include bodily fluids, handwriting samples, and exhibition of physical traits such as voice, scars, height, and physical appearance. State v. Tillett, 351 So.2d 1153 (La.[ J1977). In this case, although the defendant may be required by the professional examiner to answer questions, that does not render the evidence obtained, i.e., the level of his intelligence, “testimonial.” The answers to the questions will not constitute the evidence. Rather the evidence 13will be the level of his mental abilities as reflected by the answers to the questions.

Defendant moved this court to issue supervisory writs and reverse the ruling of the trial court. Writs were denied. State of Louisiana ex rel. Vincent Ray Verret v. State of Louisiana, 04-0921 (La.App. 1 Cir. 5/4/04) (unpublished writ action).

In an appeal of an issue of this nature, judicial efficiency demands that this court accord great deference to its pretrial decision on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. State v. Haynes, 99-1973, p. 9 (La. App. 1 Cir. 6/23/00), 762 So.2d 1247, 1253, writ denied, 00-2243 (La.6/15/01), 793 So.2d 1236. A thorough review of the record indicates the pretrial determination of this court concerning the challenged trial court ruling was not patently erroneous and did not produce an unjust result. In his motion to suppress his statement, defendant raised the issue of his mental condition and capacity at the time of his inculpatory statement and further sought to introduce his own expert testimony on this issue. There was no abuse of discretion in granting the State the opportunity to have its own expert examine defendant so that the State could challenge the testimony of the defense expert that retardation prevented defendant from knowingly and voluntarily waiving his rights when he made his inculpatory statement. See Commonwealth v. Ostrander, 441 Mass. 344, 354, 805 N.E.2d 497, 505-06, cert. denied, 543 U.S. 867, 125 S.Ct. 210, 160 L.Ed.2d 113 (2004) (“We reject the defendant’s narrow interpretation of the relevant case law, because it does not take into account that it is the defendant who is placing his mental state at issue, and the challenged mental state does not concern a collateral issue, but rather a defense set forth by the defendant. Furthermore, such an interpretation would be |infundamentally unfair to the Commonwealth, permitting a one-sided presentation of expert evidence not only to the motion judge, but also to the jury who must find that the confession was voluntary beyond a reasonable doubt. Permitting only one party to introduce expert testimony on a crucial issue would have a ‘distorting effect on the fact finder’s role,’ and undermine ‘society’s conduct of a fair inquiry.’ It' would be both ‘unfair and improper to allow a defendant to introduce favorable psychological testimony and then prevent the prosecution from resorting to the most effective and in most instances the only means of rebuttal: other psychological testimony. The principle also rests on ‘the need to prevent fraudulent mental defenses.’ ” (Citations omitted)).

There was also no abuse of discretion in the trial court’s rejection of defendants claims that granting the State’s motion violated his rights against self-incrimination and the effective assistance of counsel. See State v. Breaux, 337 So.2d 182, 186 (La.1976) (on rehearing) (“Likewise, we reject appellant’s claim of a constitutional right to have an attorney present at. the psychiatric examination since that might defeat the purpose of the examination and since the examination is not the kind of critical stage at which assistance of counsel is needed or even useful. There would be no need for counsel to instruct the accused not to answer questions for fear of factual self-incrimination, for any such matter is subject to suppression; and interference with the examination by counsel on other grounds would be improper.”) (quoting United States v. Cohen, 530 F.2d 43, 48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976)).

This assignment of error is without merit.

J^MOTION TO SUPPRESS CONFESSION

In assignment of error nümber 2, defendant contends he was incapable of giving a knowing and intelligent waiver of his rights and equally incapable of giving a free and voluntary confession.

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. LSA-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. 1 Cir. 2/18/00), 752 So.2d 337, 342.

The 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 or not 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.

Prior to trial, defendant moved to suppress for use as evidence his confession. He alleged he was mentally handicapped, and therefore, not of sound mind, and did not have the mental capacity to adequately understand and appreciate his rights or to be able to intelligently and voluntarily waive those rights. Following a hearing, the motion was denied.

Terrebonne Parish Sheriffs Office Detective Dawn Bergeron testified at the motion to suppress. She testified that on March 26, 2003, she went to the h ¿residence of defendant and, at her request, he accompanied her back to the sheriffs office. Detective Bergeron advised defendant of M.T.’s allegations against him, specifically that he had anally raped her, had oral sex with her against her will, and had vaginal sex with her against her will. Defendant denied he had committed any of the alleged acts. Detective Bergeron asked defendant to take a lie-detector test and he agreed. However, Detective Bergeron learned that the test could not be performed at that time and advised defendant of that fact. In response to questioning from Detective Ber-geron, defendant indicated that the highest grade he had completed was the sixth grade and he could not read or write. He indicated that he was not a smart person and that sometimes things were difficult for him to understand. He also indicated he had been receiving social security disability payments for a learning disability.

Detective Bergeron read each of defendant’s Miranda rights to him and, additionally, explained each right in simpler terms. She advised defendant that he had the right to remain silent, meaning he did not have to speak to her. She further advised defendant that anything he said can, and would, be used against him, meaning anything he told her, she could tell to a judge. Detective Bergeron advised defendant that he had a right to talk to a lawyer for advice before the police asked defendant any questions and to have a lawyer with him during questioning, meaning if he would like an attorney or someone there to represent him, the police could arrange that. She further advised defendant that if he could not afford a lawyer, one would be appointed for him before questioning if he wished, meaning if defendant did not have enough money to get an attorney, that was not a problem because the court would give him an attorney. Detective Bergeron advised defendant that if he decided to answer questions now without a lawyer present, defendant still had | isthe right to stop answering at any time. She also advised defendant that he had the right to stop answering at any time until he talked to a lawyer. She explained those rights further by telling defendant that he did not have to answer questions now and if he would like to get an attorney or would like the police to get him an attorney, and wait to talk to the police later, he could do that. Defendant initialed the advice of rights form after Detective Bergeron read and explained each of his rights to him. He also signed the form, indicating that he understood the entire set of rights. Detective Bergeron also read and explained the waiver of rights portion of the advice of rights form to defendant and he also signed that section, which stated:

I HAVE READ OR HAD READ TO ME, THIS STATEMENT OF MY RIGHTS. I UNDERSTAND WHAT MY RIGHTS ARE. I AM WILLING TO MAKE A STATEMENT AND ANSWER QUESTIONS. I DO NOT WANT A LAWYER AT THIS TIME. I UNDERSTAND AND KNOW WHAT I AM DOING. NO PROMISES OR THREATS HAVE BEEN MADE TO ME AND NO PRESSURE OR COERCION OF ANY KIND HAS BEEN USED AGAINST ME.

Detective Bergeron testified that while explaining defendant’s rights to him, she never threatened defendant, put him under duress in any way, or promised him anything. She also denied giving defendant any inducement to make a statement. Detective Bergeron indicated the statement given by the defendant was completely and fully voluntary.

Detective Bergeron also testified at trial. At trial, she gave a similar account of advising and explaining defendant’s rights to him. She added she began using the waiver of rights form at 9:22 a.m. and finished at 9:25 a.m. She also added that when the defendant told her he was not smart, his exact words were that he was “stupid.”

Dr. F.T. Friedberg, an expert in the field of clinical psychology, also testified at the suppression hearing. He indicated that defendant had taken the |14Wexler Intelligence Scale for Children in 1985 and 1988, and both of those tests found him to be functioning in the mild range of mental retardation, where IQs are below 70. Dr. Friedberg tested defendant with an adult intelligence test in May of 2003, and found defendant to have a full-scale IQ of 53.

Dr. Friedberg also administered memory and design tests to defendant. Defendant had “significant deficit” doing basic geometric figures, which was consistent with his level of retardation. Defendant also did not write in script, which indicated a deficit level in his ability to do academic things and his ability to understand and comprehend. Dr. Friedberg found defendant to be functioning at a first or second grade level and testified that defendant could not read words. Dr. Friedberg stated that the only work defendant had done was simple labor and that defendant did not have a driver’s license. Dr. Friedberg indicated that even if someone read to a mentally retarded person, the retarded person still would not understand what had been read to him or her. He also indicated that mentally retarded people had a tendency to want to please people and to acquiesce.

Dr. Friedberg further testified that Dr. Clarence Bergeron, the State’s expert, had administered a test to defendant designed to measure a defendant’s level of comprehension of individual rights. Defendant scored a zero in regard to the right to remain silent, and thought that if he were asked questions, he had to answer them. Defendant also exhibited less than the mentally retarded person’s average ability to understand his right to counsel. Dr. Friedberg opined that defendant did not have the ability to understand his Miranda rights or to knowingly or intelligently execute a waiver of those rights.

When asked if Detective Bergeron’s explanation of defendant’s rights to him was sufficient to explain those rights so' that defendant would understand |1sthe rights, Dr. Friedberg replied, “I don’t know. Certainly!,] that would not appear to be enough time to be able to do that. I don’t know if there would be enough time to do that.”

Dr. Friedberg conceded that in his statement, defendant had corrected the police officer questioning him concerning the truth. He also conceded that the comprehension of the individual rights test administered to defendant had tested defendant’s understanding of the terms in the waiver form and not the terms used by Detective Bergeron.

Dr. Friedberg also testified at trial and gave testimony similar to the testimony he gave at the suppression hearing. He added that it was “certainly highly improbable” that defendant understood his Miranda rights as explained by Detective Bergeron, if the explanations were given in two minutes. On cross-examination, Dr. Friedberg conceded, however, that defendant should be able to understand “[Y]ou don’t have to talk to me.” On redirect examination, Dr. Friedberg indicated, because of defendant’s mental retardation, that there was a possibility that his confession was false.

Dr. Clarence M. Bergeron, an expert in the field of counseling psychology, also testified at the suppression hearing. He evaluated the defendant and found him to be functioning in the mildly retarded area. Dr. Bergeron indicated that absent an explanation, he did not think that defendant would fully comprehend the rights-waiver form. However, if the form were read and explained to defendant as testified to by Detective Bergeron, defendant would understand the explanation.

Dr. Bergeron administered the Assessing, Understanding, and Appreciation of the Miranda Rights test to defendant. The test covered the language used on the Mirandctrrights form, but not the language used by Detective Bergeron in explaining the Miranda rights. The test was also ¡^designed for adolescents. Dr. Bergeron indicated that defendant basically exercised his right to remain silent during testing. Defendant would try to do his best on ability tests, but when asked specific questions about the abuse of M.T., he did not want to talk about that topic.

Based on the testimony of Detective Bergeron, a review of defendant’s statement, and the testing of defendant, Dr. Bergeron felt that defendant understood that he did not have to talk. Dr. Bergeron also felt that defendant understood his rights when he made his statement.

On cross-examination, Dr. Bergeron conceded that defendant had scored a zero on the ability to understand the right to remain silent portion of the Miranda-rights test. Dr. Bergeron also concluded that defendant had a little less than average ability to understand his right to counsel. He further testified that defendant claimed not to remember placing his initials on the rights-waiver form.

Dr. Bergeron also testified at trial. He gave similar testimony to the testimony he gave at the suppression hearing. He specifically stated that he felt that defendant had voluntarily waived his rights when he made his statement. On cross-examination, Dr. Bergeron indicated it would be very difficult for Detective Bergeron to read and explain the Miranda rights to an illiterate, mentally retarded person in two minutes. On redirect examination, Dr. Bergeron indicated his answer concerning Detective Bergeron reading and explaining Miranda rights would change if the time were four minutes, rather than two minutes.

The trial court denied the motion to suppress the confession. The court listened to the audiotape of defendant’s confession and found that nothing on the audiotape indicated that defendant had been mistreated in any way during the interview or had not understood the questions asked of him. To the 117contrary, the court noted that Detective Bergeron’s manner of questioning defendant, her tone, and her reaction to his responses, confirmed that she remained calm and was courteous to defendant during the interview, and that defendant obviously understood her questions.

The trial court determined that defendant’s March 26, 2003 statement was voluntary under both constitutional and statutory standards. The court found no evidence to suggest that Detective Berger-on’s actions in obtaining the confession were coercive or that defendant’s statements were made while he was under the influence of fear, duress, intimidation, menaces, inducements, or promises.

The court also found that defendant knowingly and intelligently waived his Miranda rights. The trial court noted that defendant had been classified as mildly mentally retarded, but felt the significance of that classification was questionable. The court felt that the designation “mildly mentally retarded” reflected the level of one’s academic abilities, but did not necessarily reflect an assessment of one’s abilities to function, or to comprehend or appreciate particular episodes or events faced during life.

The court noted the fact that initialing and signing the rights-waiver form was not evidence that defendant understood anything reflected on the form. The court was, however, “heavily influenced” by the fact that Detective Bergeron had not simply read the rights-waiver form to defendant, or given the form to defendant to read, but had explained defendant’s rights to him in basic terms.

The trial court determined that the totality of the circumstances indicated that defendant had knowingly and intelligently waived his rights. The court noted that when Detective Bergeron began to explain defendant’s rights to him, he advised her that he was not very smart, which indicated he | ^understood and appreciated the importance of what Detective Bergeron had to say to him. The court further noted that defendant had initially denied the allegations against him. The court also noted that the audiotape of defendant’s confession revealed that defendant was not easily led to respond predictably by leading questions, but to the contrary, his responses appeared to be those of a thinking individual who understood the questions, who responded appropriately, and who was willing to correct any misim-pression created by a leading question.

Furthermore, the court did not believe that the amount of time Detective Berger-on devoted to her task with defendant was either so brief, or so drawn out, that in light of all the circumstances of the case, defendant’s waiver of rights was constitutionally tainted.

The trial court concluded:

Considering all of the facts described above, this court is satisfied that [defendant], during his interview with Detective Bergeron, exhibited sufficient intelligence, mental agility and adaptability, and reasoning that he easily could have made a knowing and intelligent waiver of his Miranda rights. That factor, together with Detective Bergeron’s simple explanation of those rights and the option to waive those rights, convince this court that [defendant] did, in fact, make a knowing and intelligent waiver of his Miranda rights.

Defendant then moved this court to issue supervisory writs and reverse the ruling of the trial court. Writs were denied. State of Louisiana v. Vincent Ray Verret, 05-0605 (La.App. 1 Cir. 4/7/05) (unpublished writ action).

As previously noted, judicial efficiency demands that this court accord great deference to its pretrial decision on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. Haynes, 99-1973 at p. 9, 762 So.2d at 1253. A thorough review of the record indicates the pretrial determination of this court concerning the denial of the motion to suppress the confession l19was not patently erroneous and did not produce an unjust result. There was no abuse of discretion in the trial court’s denial of the motion to suppress the confession.

This assignment of error is without merit.

OTHER CRIMES EVIDENCE

In assignment of error number 3, defendant argues that evidence of an alleged offense against another victim, T.L., was inadmissible under LSA-C.E. art. 412.2, because its probative value was outweighed by the danger of unfair prejudice under LSA-C.E. art. 403.

Louisiana Code of Evidence article 412.2 provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

Louisiana Code of Evidence article 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Prior to trial, the State gave the defense notice that the State intended to use evidence in the instant ease, pursuant to LSA-C.E. art. 412.2, of other crimes, including similar sexual assault offenses committed by defendant |anagainst T.L., whose date of birth was August 4, 1990. Following the selection of the jury, but prior to the presentation of testimony at trial, a hearing was held on the LSA-C.E. art. 412.2 motion. The State presented testimony from T.L.

T.L. testified that she was fifteen years old and that defendant was her cousin. She stated that she was at the hearing because defendant had raped her. The rape occurred in the bathroom of defendant’s house when T.L. was approximately ten years old. She thought it occurred during the summer. Defendant repeatedly came into the bathroom while T.L. was taking a bath. Defendant then came into the bathroom and told T.L. she could get out. As T.L. got out of the bathtub, a shampoo bottle fell, and T.L. bent down to pick up the bottle. Defendant touched T.L.’s “butt.” T.L. was scared by defendant’s action. Defendant asked her to get on the toilet, and T.L. got on her knees. She was crying and asked the defendant, “[Pjlease, no.” Defendant told T.L., “[I]t’s only going to take five minutes.” T.L. cried out for help, but defendant covered her mouth with his hand and told her he would kill her. Defendant told T.L. to kneel on the toilet. Defendant then pushed his “private part” into T.L.’s butt. He then forced T.L. to sit on the bathtub and suck his private.

. The trial court held that evidence with regard to the incident described by T.L. would be permitted, subject to whatever cross-examination or other evidence defendant wished to offer. The defense objected to the court’s ruling.

The court found that the evidence concerning the incident involving T.L. was relevant, because it involved evidence of defendant’s lustful disposition toward a young child, which was relevant to a disposition of the present charge of aggravated rape of a young child. The court noted the | ⅞1 charged offense against M.T. occurred shortly before the incident involving T.L. At that time, defendant was an adult.

The court also found that the evidence concerning the incident with T.L. was not unfairly prejudicial and that the admission of the evidence would not confuse the issues or mislead the jury or amount to an undue delay or waste of time. The court noted the incidents involving M.T. and T.L. were separate incidents involving separate children, and the court did not believe there was any risk the jury would be misled or confused as a result of the testimony regarding either incident.

There was no error in the trial court’s ruling on the LSA-C.E. art. 412.2 motion. The evidence concerning the incident with T.L. was admissible under LSA-C.E. art. 412.2, and the probative value of the evidence was not outweighed by the danger of unfair prejudice under LSA-C.E. art. 403.

This assignment of error is without merit.

BRADY VIOLATION; DENIAL OF MISTRIAL

In assignment of error number 5, defendant argues the trial court erred in denying a mistrial on the basis of the State’s failure to disclose Brady material until after the defense had rested.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that 1 ¡.¿witness may be determinative of defendant’s guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

As is pertinent here, LSA-C.Cr.P. art. 775 provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. However, a mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that 1..¡¡discretion. State v. Berry, 95-1610, p. 7 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603.

During the recess following the presentation of testimony from the defense, the State advised the trial court that it had received some information from the La-fourche Parish Sheriffs Office regarding an interview by that office with [M.T.] on August 8, 2000. The State advised the trial court that the State did not have the information until after defendant’s wife, Stacy Verret, testified after being called by the defense. The State furnished the information to the defense, and the State and the defense reached both an “agreement” and a “disagreement” concerning the report in question.

Pursuant to the “agreement,” the court instructed the jury as follows:

[A]fter we recessed, I was advised by the Terrebonne Parish District Attorney’s Office that it had received a report from the Lafourche Parish Sheriffs [Ojffice regarding an interview that was conducted by the Lafourche Parish Sheriffs [0]ffice with [M.T.] on August the 8th, 2000.
The attorney for [defendant] and the prosecutors in this case have agreed to a stipulation. A stipulation is nothing more than an agreement that’s been reached by the-parties and you are to consider the stipulation as evidence in this case. So even though you have heard all of the evidence by way of the testimony of the witnesses and the other documents and items that might have been introduced into evidence,- and even though I told you that was all the evidence you would hear, you will hear now one additional bit of evidence and it is this stipulation or this agreement that the attorneys have agreed should be revealed to you.
They have also agreed that I am to advise you that this information that is being furnished to you in just a minute, by way of this stipulation, is information that came to the attention of the District Attorney’s office only this morning. In fact it did not come to the attention of the District Attorney’s office until after Stacy Verret testified.
So, that being said, I’m going to read to you from a Lafourche Parish Sheriffs [Ojffice police report dated August the 8th, 2000. It is a report of an interview conducted by a Detective Tullís with [M.T.],
124And this is what the police report says in part. “At 10:45 a.m. Detective Tullís asked [M.T.] if she knew the difference between a good touch and a bad touch. [M.T.] was able to establish the difference by saying that if someone was to .touch her on her “lu-lu” it would be a bad touch. Detective Tullís asked [M.T.] if anyone has ever touched her on her “lu-lu[.]” [M.T.] stated that Eric[a]’s husband, Roberto, had touched her there a long time ago but he was shipped back to Mexico. [M.T.] stated that he stuck his finger in her private and then put his private in her butt. [M.T.] stated that her sister, [J.], lied and told her dad Joseph that somebody did something to her. [M.T.] stated that Erica was the one who told her that [J.] lied when she talked to her on the phone last night. [M.T.] denies that anything happened to her or [J.] [M.T.] stated that Chemino doesn’t live with them. He just sleeps there because they don’t have enough room in his house. [M.T.] state[d] [J.] told Erica that Chemino had touched her. [M.T.] stated that she did tell Erica when Roberto had touched her but told Erica that she did not want to go to the hospital. After [M.T.] told Erica about Roberto, Erica made him leave. [M.T.] stated that “I wish my real daddy would go back with my momma so she’ll stop dating Mexicans because I doesn’t even know how to speak English any more.”

The disagreement concerned the following two paragraphs from the police report, which the defense asked to be revealed to the jury, but the trial court refused to reveal absent an agreement between the State and the defense:

ON August 8, 2000, AT 8:30 AM, MS. CROCHET STATED THAT [J.] WAS USING THE BATHROOM WHEN SHE STATED THAT IT BURNED WHILE SHE URINATED. MS. CROCHET STATED THAT SHE THEN ASKED [J.] IF ANY THING HAD HAPPENED TO HER OR IF ANY ONE HAD HURT HER. [J.] ADVISED HER THAT WHILE AT HER MOTHER’S HOUSE, CHIMINO WENT INTO THE BATHROOM WITH HER SISTER [M.T.]. [M.T.] WAS USING THE BATHROOM WHEN [J.] OBSERVED CHIMINO MESSING WITH HER AND [M.T.] WAS TELLING HIM TO STOP. [J.] THEN STATED THAT CHIMINO TOLD HER TO GO IN THE LIVING ROOM. [J.] STATED THAT WHEN CHIMINO CAME INTO THE LIVING ROOM HE MADE HER LAY ON THE FLOOR AND HE PULLED DOWN HER PANTIES AND STUCK HIS FINGER IN HER VAGINA.
[J.] STATED THAT CHIMINO TOUCHED HER ONE TIME, BUT TOUCHED HER SISTER, [M.T.], TWO TIMES WHILE [M.T.] WAS IN THE BATHTUB. [J.] STATED THAT CHIMINO TOUCHED HER AND [M.T.] WHILE HER MOTHER, ERICKA, WAS AT WORK. [J.] STATED THAT SHE CRIED WHEN CHIMINO TOUCHED HER AND SHEJ^TOLD HIM TO STOP. [J.] STATED THAT HE THEN STOPPED. [J.] ALSO STATED THAT CHIMINO TOUCHED [M.T.] IN A BAD SPOT WITH HIS FINGERS. [J.] SAID THAT WHEN ERICKA FOUND OUT WHAT HAPPENED AFTER RETURNING FROM WORK, SHE HIT CHIMINO.

Defense counsel indicated he believed the police report was obvious Brady material, and “... I have no reason to disbelieve it was just received by the District Attorney’s office and supplied to us once received, even thought [sic] it’s at a late time, the defense would move for a mistrial at this point based on this issue right here alone.” The trial court denied the motion for mistrial and permitted the State to respond to the motion.

The State set forth that during her testimony, Stacy Verret indicated M.T. had been taken to the Lafourche Parish Sheriffs Office where she gave a statement and Verret then described the contents of that statement. Following Verret’s testimony, the State contacted the Lafourche Parish Sheriffs Office to determine whether, in fact, the referenced report was made, and if the report was made, to request that a copy of the report be faxed to the State immediately. The report was received by the State shortly before the defense rested, and the State did not finish reviewing the report until the recess after the defense rested. Upon learning that the report contained possible Brady material, the State disclosed the report to the court and to the defense.

In the instant case, there was no abuse of discretion in the denial of the motion for mistrial.. Defendant did not. suffer such substantial prejudice that he was deprived of any reasonable probability of a fair trial. The State did not suppress evidence favorable to defendant. Pursuant to the “agreement” between the State and the defense, the trial court, instructed the jury that on August 8, 2000, M.T. reported being anally raped by “Roberto.”

This assignment of error is without merit.

^INEFFECTIVE ASSISTANCE OF COUNSEL

In assignment of error number 6, defendant argues “the cumulative acts of omission by trial counsel, which are evident on the face of the record and cannot be explained as indicative of trial strategy,” denied him the effective assistance of counsel. Defendant complains: trial counsel did not call him to testify at the hearing on the motion to suppress; trial counsel failed to cross-examine Detective Bergeron about the pre-interview she conducted with him; trial counsel failed to object to the testimony of Terri Francis and Emily Liner; trial counsel failed to object to certain testimony from Dr. Bergeron; and trial counsel failed to request that the entire report from the Lafourche Parish Sheriffs Office be introduced into evidence and failed to ask for a recess to obtain a copy of the audiotaped interview of M.T. referenced in the report.

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).

A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that, counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that defendant was , deprived of a fair trial; the defendant must prove actual prejudice before | p,7relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

In the instant case, an evidentiary hearing would be required to determine whether or not defendant’s trial counsel’s allegedly deficient performance was strategic. See State v. Allen, 94-1941, p. 8 (La.App. 1 Cir. 11/9/95), 664 So.2d 1264, 1271, writ denied, 95-2946 (La.3/15/96), 669 So.2d 433. Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse, 623 So.2d 59, 71 (La.App. 1 Cir.1993).

This assignment of error is without merit or is otherwise not subject to appellate review.

PROTECTIVE ORDER

Louisiana Revised Statute 15:440.6 requires that a videotape of a child’s statement admitted under LSA-R.S. 15:440.5 be preserved under a protective order of the court to protect the privacy of the child. The trial court failed to issue such an order in this case. Accordingly, it is hereby | ^ordered that State Exhibit # 1, the videotaped statement of M.T., and any copies thereof be placed under a protective order. See State v. Ledet, 96-0142, p. 19 (La.App. 1 Cir. 11/8/96), 694 So.2d 336, 347, writ denied, 96-3029 (La.9/19/97), 701 So.2d 163.

CONVICTION AND SENTENCE AFFIRMED. PROTECTIVE ORDER ISSUED.

      . The victim is referenced herein only by her initials. See LSA-R.S. 46:1844(W).

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

      . T.Li was the victim in State v. Vincent Ray Verret, Thirty-second Judicial District Court,. Docket # 411,019 and # 410,994.

      . In contrast, the trial court held that testimony from C.L. that defendant touched her "bottom area” when she was four or five years old and when he was approximately eleven years old was inadmissible because, at most, the evidence showed defendant’s lustful disposition toward young girls when he was a child.

      . Defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., in order to receive such a hearing.

      . The appellate record contains State Exhibit #2, a DVD-R disc containing a copy of the videotaped statement of M.T., which is also subject to the protective order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Karen DARBY v. SENTRY INSURANCE AUTOMOBILE MUTUAL CO., Bruce J. Amond, and Lakeshore Chrysler, Dodge, Jeep, Inc.
    No. 2007 CW 0407.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.
    Writ Denied March 28, 2007.

      W. Kenneth Klien, Slidell, for Plaintiff— Respondent Karen Darby.
    Keith L. Richardson, Dale Cronin, Gu-glielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, for Defendants — Applicants Sentry Insurance Automobile Mutual Company, Bruce J. Amond and Lakeshore Chrysler, Dodge, Jeep, Inc.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   PER CURIAM.

IsThe defendants, Sentry Insurance Automobile Mutual Company, Bruce J. Amond and Lakeshore Chrysler, Dodge, Jeep, Inc. (“Lakeshore”), seek review of the trial court’s judgment denying Lake-shore’s motion in limine to exclude evidence of Lakeshore’s financial condition and the trial court’s conclusion that under theories of vicarious liability, civil conspiracy and negligent entrustment, Lakeshore could be found liable for exemplary damages.

This litigation arises out of a September 30, 2001 collision involving vehicles operated by the plaintiff, Karen Darby, and Bruce Amond. At the time of the accident, Lakeshore employed Amond as a car salesman and he was driving a vehicle owned by Lakeshore and insured by Sentry Insurance Automobile Co. (“Sentry”).

Darby alleges Amond caused the collision and her injuries when he failed to stop at a red light, collided with another vehicle, and then struck and demolished the car she was driving. Darby alleges that Amond was intoxicated at the time of the accident and that Amond has a long history of alcohol abuse and driving while intoxicated, which Lakeshore either knew or should have known prior to the September 30, 2001 accident.

Darby alleges that when Lakeshore employed Amond in 1998, his driving privileges were suspended as a result of a July 7, 1995 accident, which was Amond’s third-offense DWI. Darby contends Lakeshore knew or should have known of the July 7, 1995 DWI and suspension as Louisiana law requires an annual inquiry in order to obtain licensure for new and used car salespersons and Amond’s driving privileges were suspended until August 25, 1999. In addition, Darby contends that Lakeshore had actual knowledge of Amond’s serious alcohol abuse problem and history of driving while intoxicated as Amond lived in an ^apartment with Lake-shore’s sales manager for about a year after Lakeshore employed him. Also, Darby alleges that Lakeshore had actual knowledge that Amond had his fourth-offense DWI on February 8, 2000, while driving a vehicle owned by Lakeshore. The fourth-offense DWI resulted in another suspension of Amond’s driving privileges, which was in effect at the time of the instant September 30, 2001 accident.

In September 2003, Darby filed suit against Amond, Lakeshore and Sentry seeking general compensatory damages and La. Civ. C. art. 2315.4 punitive damages against all three defendants. On June 24, 2005, Lakeshore moved for partial summary judgment on Darby’s negligent entrustment claim. Subsequently, Darby filed a “Motion for Partial Dismissal Without Prejudice and With Full Reservation of Rights,” in which she conceded that Amond was not in the course and scope of his employment at the time of the accident and she asked that her respondeat superi- or claims against Lakeshore be dismissed without prejudice. On July 11, 2005, the trial court signed an order dismissing •without prejudice Darby’s respondeat superior claims and reserving all of Darby’s other rights and claims against the defendants.

Lakeshore filed the instant motion in limine on September 28, 2006. The trial court heard the motion and deferred judgment on the motion until the trial on the merits. Motions for reconsideration were filed and heard; and, on March 8, 2007, the trial court entered judgment permitting Darby to “introduce evidence concerning the income, assets, and net worth of Lakeshore Chrysler, Dodge, Jeep, Inc. provided that plaintiff lays a prima facie case for punitive damages against Lake-shore Chrysler, Dodge, Jeep, Inc.” In its reasons for judgment, the trial court found “that, under the facts as alleged by the plaintiff, the defendant can be held liable for punitive damages.” The trial court further explained that a jury could find Lakeshore liable for punitive damages under La. Civ. C. art. 2320 because |4“the employee was in the course and scope of his employment, and/or that the employer is liable under respondeat superior,” “the employer could arguably be found solidarily liable under a theory of civil conspiracy” or also “under the theory of negligent entrustment.”

The trial court’s evidentiary ruling was premised on its conclusion that Lakeshore could be liable for exemplary damages. Thus, the issue to be determined in this writ is whether the trial court correctly concluded that an employer/non-driver could be found liable for La. Civ. C. art. 2315.4 exemplary damages under theories of civil conspiracy, vicarious liability or negligent entrustment when the employee/driver was not in the course and scope of his employment at the time of the accident.

Louisiana Civil Code 2315.4 allows a plaintiff to seek exemplary damages when a driver who is intoxicated causes her injuries. Louisiana Civil Code article 2315.4 reads:

Additional damages; intoxicated defendant
In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

Employer’s Liability for Exemplary Damages Under La. Civ. C. art. 2320

The defendants challenge the trial court’s conclusion that Lakeshore could be liable for exemplary damages under the vicarious liability provisions of Lá. Civ. C. art. 2320. In pertinent parts, La. Civ. C. art. 2320 reads:

Acts of servants, students or apprentices
Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have |sprevented the act which caused the damage, and have not done it.

Under La. Civ. C. art. 2320, this Court has held that a plaintiff must show that (1) a master-servant relationship existed between the tortfeasor and the employer, and (2) the tortious act of the tortfeasor was committed within the scope and during the course of his employment with the employer. Hughes v. Goodreau, 2001-2107 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 656, writ denied, 2003-0232 (La.4/21/03), 841 So.2d 793. The trial court determined that a jury could find that Amond acted within the “course and scope” of his employment and therefore, Lakeshore could be found vicariously liable under the theory of respondeat superior for exemplary damages. We disagree. Darby has conceded the “course and scope” requirement of her respondeat superior claim and the trial court has entered a prior ruling dismissing Darby’s respondeat superior claims without prejudice. Therefore, this Court finds that the trial court erred in concluding that a jury could find Amond acted within the “course and scope of his employment” and that Lakeshore could be liable for damages under La. Civ. C. art. 2320.

Our finding pretermits a discussion as to whether an employer who is vicariously liable under 2320 is liable for exemplary as well as compensatory damages.

Employer’s Liability for Exemplary Damages Under Civil Conspiracy Theory

Using La. Civ. C. art. 2324 as a starting point, the trial court reasoned that a jury could find that Lakeshore and Amond conspired to violate La. R.S. 32:417, which prohibits an employer from employing a driver who does not have a current | fiand valid license, which conspiracy then allowed Amond to engage in the prohibited 2315.4 conduct. In part, La. Civ. C. art. 2324 reads:

Liability as solidary or joint and divisible obligation
A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault,

In essence, it appears that the trial court determined that Lakeshore’s solidary/joint liability under La. Civ. C, art. 2324 extends not only to the alleged conspiracy to violate the prohibition found in La. R.S. 32:417 of employing someone as a driver who does not have a current and valid license, but also to Amond’s subsequent La. Civ. C. art. 2315.4 conduct. The trial court cited Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546, as support for its conclusion. However, we find the trial court’s reliance on Ross is misplaced as Ross stands for the proposition that the in solido liability provision of La. Civ. C. art. 2324 only extends to compensatory type damages and does not extend to punitive or exemplary damages. While Ross relies on liability for exemplary damages imposed by former La. Civ. C. art. 2315.3, the Supreme Court’s analysis of the scope of a co-conspirator’s in solido liability, including whether such scope includes exemplary damages is instructive in this matter.

|7In Ross, the family members of deceased chemical workers sued the workers’ employers and other non-employer defendants alleging that the defendants conspired to commit the “intentional tort of battery by overexposing” the decedents to vinyl chloride. Ross, 828 So.2d at 549. In addition to seeking compensatory damages, the plaintiffs sought exemplary damages under former La. Civ. C. art. 2315.3. Under former La. Civ. C. art. 2315.3, • a jury could award exemplary damages to a plaintiff who could prove that his injury was “caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling or transportation of hazardous or toxic substances.” Ross, 828 So.2d at 549.

The Ross plaintiffs alleged that, although the non-employer defendants did not themselves physically possess the hazardous vinyl chloride that harmed the decedents, they can, nonetheless, be held liable for exemplary damages based on the actual physical handling by their co-conspirators, the employer defendants. The Ross plaintiffs contended that “[o]nce a conspiracy is successfully proved, the act of one co-conspirator is deemed to be the act of all co-conspirators.” Id. The plaintiffs argued “actual possession or control on the part of the non-employer defendants is irrelevant because under the law of , conspiracy, the act of handling by the employer defendants is treated as handling by all conspiring defendants.” Ross, 828 So.2d at 551.

Alternatively, the plaintiffs contended that “the individual acts of the non-employer defendants, including misrepresentation of the effects of vinyl chloride and failure to warn, amount to ‘storage, handling, or transportation’ under the meaning of repealed La. Civ. C. art. 2315.3.” Ross, 828 So.2d at 549. In other words, the plaintiffs contended, “these non-employer defendants are subject to | «being cast for punitive damages in their own right, not based on the acts of the employer defendants.” Id.

In deciding whether La. Civ. C. art. 2324 could be the basis for casting the non-employer defendants for the. exemplary damages of their co-conspirators, the Supreme Court stated “[ajrticle 2324 ... does not by itself impose liability for a civil conspiracy. The actionable element in a claim under this Article is not the conspiracy itself, but rather the tort the conspirators agreed to perpetrate and which they actually commit in whole or in part.” Ross, 828 So.2d at 552. The Supreme Court stated that the Ross “plaintiffs have not alleged a conspiracy to store, handle, or transport vinyl chloride in a wanton or reckless manner. The underlying torts plaintiffs allege that the defendants agreed to perpetrate and actually committed were battery upon and failure to warn the two workers.” Id.

The Supreme Court determined that a “conspiracy to commit battery and a corresponding failure to warn are not targeted by former La. Civ. C. art. 2315.3, which punishes only defendants involved in storage, handling and transportation of a hazardous or toxic substance.” Id. Therefore, the Supreme Court found that “former Article 2315.3 does not support the imposition of punitive damages against parties based solely on the physical acts of their co-conspirators.” Id.

As part of its reasoning, the Supreme Court stated that the “purpose of solidary liability is to compel any tortfeasor to pay an entire judgment.” Id. The Supreme Court added that the “purpose of punitive damages, on the other hand, are to punish defendants and deter similar conduct.” Id. Citing to a First Circuit analysis in another decision, the Supreme Court agreed with this Court’s statement “that punitive damages cannot be assessed against co-defendants in solido because, to accomplish their purpose of punishment and deterrence, punitive damages are assessed against an individual defendant based on his individual culpability, not on the acts of others.” Id. The Supreme Court added “the language of Article 2324 19that co-conspirators are answerable in solido ‘for the damage caused by such act’ indicates that the Article imposes solidary liability only for compensatory damages.” Id. As such, the Supreme Court concluded in Ross:

[T]he solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator’s individual conduct must fall within the scope of the applicable penal statute. Ross, 828 So.2d 553.

As to whether the non-employer defendant’s conduct was included in the scope of former La. Civ. C. art. 2315.3’s prohibited behavior, the Supreme Court looked at the “plain language of former Article 2315.3” and concluded that the plain language “does not indicate that the legislature intended for parties engaged in activities beyond direct storage, handling, or transportation of a hazardous or toxic substance to fall within the ambit of the Article.” Id. The Supreme Court also concluded, “[c]on-sidering that this court’s policy is to construe punitive statutes strictly, we see no reason to infer a legislative intent beyond the plain language of the statute.” Id. The Supreme Court also included a brief summary of the legislative history of La. Civ. C. art. 2315.3 and corresponding committee meeting minutes and further concluded that the history “gives no indication that our legislature was concerned with targeting the remote conspiratorial conduct, as is urged by the plaintiffs in this suit.” Id.

The Ross decision also addressed the plaintiffs’ alternative argument that the non-employer defendants’ conduct constitutes storage, handling or transportation, which exposes the non-defendant employers to former La. Civ. C. art. 2315.3 damages in their own right, which we also find instructive in the instant matter. Again, the Supreme Court cited the rule of strict construction for penal statutes and declined “to adopt a rule expanding the reach of Article 2315.3.” Ross, 828 So.2d at 556. Accordingly, the Supreme Court held “because the non-employer defendants did not have actual possession or control of the vinyl chloride that injured the workers, and did not then handle or otherwise deal with the substance, they cannot be cast with punitive damages based on their actions purportedly ‘integrally related’ to the storage, handling, or transportation of vinyl chloride.” Ross, 828 So.2d at 557.

Considering Louisiana law requires exemplary statutes to be strictly construed and considering the Supreme Court’s conclusion in Ross that “punitive damages cannot be assessed against co-defendants in solido,” this Court concludes that even if a jury finds that Lakeshore conspired with Amond to violate La. R.S. 32:417, it cannot be held liable, in solido for its alleged co-conspirator’s prohibited La.' Civ: C. art. 2315.4 conduct and, therefore, La. Civ. C. art. 2315.4 exemplary damages. See Ross, 828 So.2d at 552.

Employer’s Liability for Punitive Damages Under Negligent Entrustment

Under the negligent entrustment theory, “the lender of a ■ vehicle is not responsible for the negligence of the borrower, unless he had or should have had knowledge that the borrower was physically or mentally incompetent to drive.” Stokes v. Stewart, 1999-0878 (La.App. 1 Cir. 12/22/00), 774 So.2d 1215, 1219 (citations omitted). However, “an owner of an automobile who knowingly entrusts it to an intoxicated, or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle.” Id. This Court has not directly addressed whether La. Civ. C. art. 2315.4 damages can be imposed on a negligent entrustment employer/defendant when the employee/driver was not in the course and scope of his employment at the time of the accident.

In However, as previously discussed, Louisiana law requires exemplary statutes to be strictly construed. With that principle in mind, La. Civ. C. art. 2315.4’s explicit language requires proof that the “injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” La. Civ. C. art. 2315.4. (emphasis added). Arguably, a jury could find that Lakeshore acted in “wanton or reckless disregard for the rights and safety of others” by providing Amond with its vehicle. However, such a finding would not fulfill all of the requirements the legislature set out in La. Civ. C. art. 2315.4 and would require an interpretation that ignores the provision, “by a defendant whose intoxication while operating the vehicle was a cause in fact of the. resulting injuries.” The Supreme Court has stated, “[cjourts should give effect to,all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless if that result can be avoided.” Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181, 194. It is dear that La. Civ. C. art. 2315.4 requires more than a showing of “wanton or reckless disregard for the rights and safety of others” by a defendant. Accordingly, .this Court finds that Lakeshore’s potential liability for damages under the theory of negligent entrustment does not extend to La. Civ. C. art. 2315.4 exemplary-damages.

While we find that the plain language of La. Civ. C. art. 2315.4 does not impose exemplary damages on Lakeshore as a non-driver defendant, out of an abundance of caution we address the alternative argument posed in Ross of whether Lake-shore’s conduct arguably falls within the scope of conduct that La. Civ. C. art. 2315.4seeks to punish. Once again, we find that the principle of strict | ^construction of punitive statutes prohibits such a conclusion. Moreover, the Supreme Court has stated “[w]e will not construe penal statutes as extending powers not authorized by the letter of the law even if such powers would be arguably within its spirit.” Gibbs Const. Co., Inc. v. State, Dept. of Labor, 540 So.2d 268, 269 (La.1989); see also In the Matter of Woodrow Wilson Const. Co., Inc., 563 So.2d 385, 391 (La.App. 1 Cir. 1990). Therefore, this Court finds that Louisiana law prohibits an expansive interpretation of La. Civ. C. art. 2315.4so as to impose exemplary damages on Lakeshore for entrusting its vehicle to a driver who became intoxicated and caused an accident.

Conclusion

When liability for exemplary damages is an issue at trial, evidence as to the defendant-tortfeasor’s current financial condition is relevant and may be considered by the trier of fact in determining the appropriateness of exemplary damages. Bienvenu v. Dudley, 95-0547 (La.App. 1 Cir. 10/3/96), 682 So.2d 281, 285, writ denied, 96-2661 (La.12/13/96), 692 So.2d 1069, and writ denied, 96-2673 (La.12/13/96), 692 So.2d 1070. The district court judge has great discretion in determining the relevancy and probative value of evidence, and his determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. Entergy Gulf States, Inc. v. Louisiana Public Service Commission, 1998-1235 (La.4/16/99), 730 So.2d 890, 928.

The court holds that under the facts, circumstances and procedural history submitted by the parties, the defendants, Sentry Insurance Automobile Mutual Company, Bruce J. Amond and Lakeshore Chrysler, Dodge, Jeep, Inc., have met their burden of proving that Lakeshore Chrysler, Dodge, Jeep, Inc.’s financial condition is not relevant since there are no viable claims by the plaintiff for exemplary damages pursuant to La. Civ. C. art. 2315.4against Lakeshore. See La. |iaC.E. art. 402. Therefore, this Court concludes that the trial court abused its discretion in allowing evidence of Lakeshore Chrysler, Dodge, Jeep, Inc.’s financial condition to be presented at trial. Accordingly, the writ is granted, the trial court’s judgment denying the defendants’ motion in limine is reversed and the defendants’ motion in limine is granted.

WRIT GRANTED. STAY DENIED.

      . Citing two Fourth Circuit cases, the trial court concluded that pursuant to La. Civ. C. arts. 2320 and 2315.4, an employer's vicarious liability includes punitive and compensatory damages. See, Lacoste v. Crochet, 1999-0602 (La.App. 4 Cir. 1/5/00), 751 So.2d 998, 1004; and Curtis v. Rome, 1998-0966 (La. App. 4 Cir. 5/5/99), 735 So.2d 822, 825, writ denied, Rambo v. Rome, 1999-1617 (La. 10/1/99), 748 So.2d 441. However, as this Court is not bound by the decision of our colleagues on this issue and such a conclusion may be contrary to the principle of strict construction of punitive statutes, we leave that analysis for another day.

      . La. R.S. 32:417(C) and (E)
      It shall be unlawful for any person or entity to employ any person as a driver of a motor vehicle if said person being employed does not have a current, valid license issued by the department in accordance with the provisions of this Chapter.

      The following penalties shall be imposed for a violation of this Section:
      (1) The person shall be fined not less than one hundred dollars and not more than five hundred dollars for each offense, or imprisoned for not more than six months, or both.

      . La. Civ. C. art. 2315.3 was added by La. Acts 1984, No. 335 § 1, and repealed by La. Acts 1996, No. 2, § 1, effective April 16, 1996. Ross, 828 So.2d at FN3.

      . James v. Formosa Plastic Corp., 95-1794, p. 4 (La.App. 1 Cir. 4/4/96), 672 So.2d 319, 322, writ denied., 96-1091 (La. 11/22/96), 683 So.2d 285.

      . In Stokes, the plaintiff sued a non-driver defendant for both compensatory and La. Civ. C. art. 2315.4 damages under theories of vicarious liability and negligent entrustment. The trial court rejected the negligent entrustment claim because the plaintiff failed to. produce proof that the non-driver defendant had reason to know on the morning of the accident that the driver defendant was incompetent-to drive. On appeal, this Court found that the trial court correctly rejected the negligent entrustment claim. Therefore, the issue of punitive damages under the theory of negligent entrustment was not addressed. Stokes, 774 So.2d at 1220.

      . La. C.E. art. 402. Relevant evidence generally admissible; irrelevant evidence inadmissible
      All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Ephraim WILLIAMS.
    No. 06-KA-947.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.
    John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, Fortieth Judicial District, Edgard, Louisiana, for Defendant/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

Lin this criminal matter, defendant appeals his conviction for being a principal to the distribution of cocaine. For the reasons that follow, the defendant’s sentence is vacated and we remand the matter for further proceedings.

Defendant, Ephraim Williams (“Williams”), was charged in a bill of information on May 1, 2003 with being a principal to the distribution of cocaine in violation of LSA-R.S. 14:24 and 40:967(A)(1). Williams pled not guilty and filed several pre-trial motions. He proceeded to a bench trial on November 8, 2005 and was found guilty as charged. Williams subsequently filed a motion for new trial challenging the validity of his jury trial waiver. The trial court denied his motion for new trial and sentenced Williams to twelve years at hard labor with the first |stwo years to be served without the benefit of parole, probation, or suspension of sentence.

On May 15, 2002, Agent Mamie Pelleg-rin (“Agent Pellegrin”) was working undercover for the St. John the Baptist Sheriffs Office conducting drug buys throughout the parish. According to Agent Pellegrin, she and a confidential informant were riding around a certain area of the parish when they came to a house where two black males were sitting on a car. One of the subjects motioned for them to “go a little farther.” Agent Pellegrin drove another fifteen feet and a man, introduced to Agent Pellegrin as “Pops,” approached the passenger-side door. They told Pops they wanted “forty,” which meant they wanted $40 worth of crack cocaine. Agent Pellegrin gave Pops $40, and he told them to wait.

Pops then walked behind a nearby house and to a fence where he met one of the subjects who had been sitting on the car. The subject was later identified as Williams. According to Agent Pellegrin, there was a hand-to-hand transaction between Pops and Williams whereby Pops gave Williams money. Agent Pellegrin stated she did not see what Williams handed Pops. Thereafter, Pops returned to Agent Pellegrin and gave her two rock-like substances that subsequently tested positive for cocaine. The transaction between Agent Pellegrin and Pops was recorded on videotape but the transaction between Pops and Williams was not.

Agent Pellegrin relayed information about the transaction to the surveillance team through the KEL audio system. She described Williams as having kinky hair or dreadlocks and wearing a black shirt. Lieutenant Clarence Gray (“Lt.Gray”) passed by the area shortly after the transaction and observed defendant in the area. He identified Williams as the principal involved based on Agent Pellegrin’s ^description. Lt. Gray, who knew Williams from previous encounters, also identified Williams on the videotape.

In his third assignment of error, Williams asserts that the trial court erred in proceeding to sentencing without issuing a ruling on his motion for post-verdict judgment of acquittal, in contravention of the specific mandate of LSA-C.Cr.P. art. 821. Williams does not allege any specific prejudice from this failure but notes that the failure requires his sentence be vacated and the matter remanded for a ruling. After a review of the record, we agree.

After he was convicted, Williams timely filed both a motion for a new trial and a motion for post-verdict judgment of acquittal. His motion for new trial was based on the validity of his jury trial waiver, and his motion for post-verdict judgment of acquittal was based on the sufficiency of the evidence. Williams raises both of these issues on appeal. The trial court denied his motion for a new trial but never ruled on his motion for post-verdict judgment of acquittal.

LSA-C.Cr.P. art. 821 requires a motion for post-verdict judgment of acquittal be made and disposed of before sentencing. The failure of the trial court to rule on a motion for post-verdict judgment of acquittal is recognized as an error patent that requires the defendant’s sentence be vacated and the matter remanded for a ruling.

Therefore, we vacate Williams’ sentence and remand the case to the trial court for a hearing and disposition of the motion for post-verdict judgment of acquittal. The defendant’s right to appeal his conviction and sentence is also reserved. In light of our ruling, we will not address defendant’s remaining assignments of error.

| ^Accordingly, for the foregoing reasons, the defendant’s sentence is vacated, and we remand the matter for further proceedings consistent with this opinion.

SENTENCE VACATED; REMANDED.

      . The record reveals that Pops' real name was Norman Ellis.

      . Assignment of error number three is addressed out of order due to its procedural irregularity and impact on this appeal.

      . State v. Christian, 05-635 (La.App. 5 Cir. 2/3/06), 924 So.2d 266.


text:
    STATE of Louisiana v. Damond J. STAMPS.
    No. 06-KA-971.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.
    Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Laura S. Schneidau, Assistant District Attorneys, Gretna, LA, Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

12Pefendant/appellant, Damond J. Stamps (“Stamps”), was charged and convicted of committing public intimidation upon Deputy Douglas H. Graffeo (“Deputy Graffeo”) of the Jefferson Parish Sheriffs Office, a violation of LSA-R.S. 14:122. The bill was amended to add an additional victim, Sergeant Joe Ragas (“Sergeant Ragas”). Stamps filed a motion for post-verdict judgment of acquittal, arguing that the jury misapplied the law and facts and that the State failed to prove specific intent. Stamps also filed a motion for new trial. The motions were denied and, thereafter, Stamps was sentenced to two years of imprisonment at hard labor. Stamps appeals, alleging the evidence was insufficient to support the verdict. We affirm.

At trial, Deputy Graffeo of the Jefferson Parish Sheriffs Office testified that, on July 6, 2005 at approximately 9:50 p.m., he responded to a call at 1256 ^Aberdeen in Harvey involving an altercation. Defendant’s brother, Dalton Stamps (“Dalton”), had been accused of domestic battery by the victim, Syreeta Leslie (“Ms.Leslie”). According to Deputy Graffeo, Dalton was no.t at the scene, although several parties were yelling at one another. Stamps kept interjecting himself into the investigation while the deputy was attempting to interview Ms. Leslie. Deputy Graffeo testified that Stamps was using profanity and yelling, telling Ms. Leslie that she was making a mistake; that she was making things worse for herself; that she was going to pay; and that she should not cooperate with the investigation. Deputy Graffeo stated he told Stamps to leave or he would be arrested for interfering with the investigation. As Stamps left, he put up his hand in a motion imitating a firearm and said, “[Y]ou screwing up, we gonna get you” and imitated a hammer falling.

Deputy Graffeo testified he then told Stamps he was under arrest and to go to the patrol car. He stated that Stamps responded, “[Y]ou don’t tell me what to do bitch, you don’t know who I am.” According to Deputy Graffeo, Stamps started to puff out his chest and held his arms out as if he was preparing to fight but became compliant after Deputy Graffeo pulled out his Taser. Deputy Graffeo testified Stamps yelled, “[Yja’ll [sic] f* * *ing up, you don’t know who I am. My uncle’s a representative. Ya’ll [sic] fired. I’m going to have your jobs for this. Ya’ll [sic] fired.” Deputy Graffeo testified he then placed Stamps in the rear of his patrol car and began to advise him of his rights but was interrupted with Stamps stating, “[Yjou don’t tell me my rights. I know my rights. I’ve been arrested like a thousand times. I’m a bad mother f* * *er.” Thereafter, Stamps repeated his rights to Deputy Graffeo.

According to Deputy Graffeo, while Stamps was in the car and they began to drive away, Stamps then made several threats against Sergeant Ragas, indicating [4he had allowed Sergeant Ragas to live on three separate occasions previously and that would no longer be the case. Although Sergeant Ragas was by the car at this time, he did not know if Sergeant Ragas heard these threats against him because he was engaged in a discussion with someone on the scene.

Deputy Graffeo testified that had he not drawn his Taser, he would have had to physically fight Stamps. He further stated that he felt Stamps would most likely file a complaint with internal affairs, that he believed Stamps could conceivably carry out his threat, and that he thought his job could be in danger. Deputy Graffeo testified he believed Stamps’ statements were made to influence him to “un-arrest” him or go with a lower charge. Deputy Graffeo believed Stamps meant he was going to have their jobs because they were arresting him. On cross-examination, Deputy Graffeo testified that Stamps did not specifically state that “I am going to have your job if you don’t release me from arrest,” although it was implied.

During the course of the interview with Ms. Leslie, Sergeant Ragas of the Jefferson Parish Sheriffs Office had positioned himself between Stamps and Ms. Leslie. Sergeant Ragas testified that he arrived shortly before Deputy Graffeo and, while talking to the victim, Stamps was interfering by threatening the victim and so Stamps was asked to step away from Ms. Leslie. After asking him to leave several times, Sergeant Ragas and Deputy Graffeo directed Stamps to the police vehicle, to get him away from the victim. When Stamps didn’t comply, Deputy Graffeo drew his Taser to diffuse the aggression. Sergeant Ragas testified that, while he was trying to get Stamps to keep his hands on the patrol car and pat him down, Stamps made threats against the officers’ jobs because someone in his family was a representative. Sergeant Ragas had personal knowledge this might be true and was intimidated, believing he might be in internal affairs the next day. He believed that Stamps made these statements to get out of going to jail and that he was trying to lRinfluence them to release him or not arrest him. At one point, Sergeant Ragas testified that he believed that the threats toward him were made after the arrest but then stated that Stamps did intimidate him prior to the arrest until the time they “affected the arrest.”

Ms. Leslie testified she called the police because of an altercation with Dalton. Stamps had asked Dalton to leave the house before the police arrived. Stamps did not yell at her, threaten her, or make a gun-like motion to her. According to Ms. Leslie, it sounded like the police did not like Stamps from the comments she heard the officers saying, indicating that they knew who he was. She testified Stamps only asked the officers to move their cars because he was blocked in and that he did not intimidate the officers. She never heard Stamps make any threatening or belligerent remarks to the police. No one in Stamps’ family has intimidated her with regard to her testimony at trial, and Ms. Leslie had even phoned the District Attorney’s Office to see if the charges against Stamps could be dropped.

Theo Stamps (“Theo”), Stamps’ brother, testified that Stamps was parked in the driveway and was blocked in by the police. Stamps asked them to let him go. Theo testified that he did not hear Stamps yell at Ms. Leslie. He also stated he heard one officer say, “[H]ey, wasn’t that the guy we sprayed with the mace and we kicked in the door?” Then, he heard the officers say, “[Ljet’s get him.” Theo denied hearing Stamps say anything about being related to a representative or the officers being fired. He also denied hearing threats against Sergeant Ragas.

Stamps’ mother, Sharon Edmonson, testified that she was on the phone with Stamps at the time, and he told her his car was blocked in by the police. She heard when the police said to her son, “[S]tep over here and get on the car.” Then Stamps told her “they got the guns on me.” She testified she did not hear threats or | (¡cursing at the police officers. She also testified, as did her son, Theo, that no relative is a representative.

Leshanone Burrle (“Burrle”) testified that Stamps, her children’s father, did not threaten or curse at Ms. Leslie. At the time of the incident, Burrle lived next door to Ms. Leslie. Stamps was leaving the house to go to his mother’s when the altercation occurred between Ms. Leslie and Dalton. As Stamps went to get into his car, he asked the police to move their cars, and they refused. Stamps was told to get on the police car, and she heard them state they knew who Stamps was. She testified that she did not hear him curse or threaten either Ms. Leslie or the police, or say he would get their jobs. She later stated she was not outside the whole time.

Stamps himself testified that he saw Dalton outside arguing with Ms. Leslie and told his brother to leave. When he came back outside, Stamps saw a number of police cars and when he asked Deputy Graffeo to move, he was told the officer was conducting an investigation. He then admitted to the police that he had told Ms. Leslie to “take her business inside.” Sergeant Ragas grabbed him and twisted him. “I was like hey you ain’t touch me to talk to me, I guess that’s when he kept saying that I was brushing up to him.... ” He denied threatening the officers, including making threats that they would be fired if they did not let him go as well as other threats against Sergeant Ragas.

ASSIGNMENT OF ERROR NUMBER ONE

Stamps argues on appeal that, even if the threats are believed, the testimony did not support the verdict. He urges that the idle threats came after he had been taken into custody and never contained a “quid pro quo,” in that there was never an “or else” designed specifically to influence the officers’ performance of their duties. Further, he argues the statements were simply threats of retaliation or revenge made after the fact.

|7Under Jackson, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, and the discretion of the jury should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

LSA-R.S. 14:122, in pertinent part, provides the following: “A. Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty: (1) Public officer or public employee.”

The offense of public intimidation requires specific criminal intent. Public intimidation is not the intentional use of force or threats upon a public employee, but rather the use of force or threats upon the employee with the specific intent to influence the employee’s conduct in relation to the employee’s duties. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent is a state of | smind and, as such, need not be proven as a fact but may be inferred from the circumstances and actions of the defendant. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard.

Despite the testimony of Stamps’ witnesses, the jury chose to believe the threats were made, and it is not our function to second-guess the credibility of witnesses as determined by the trier of fact, or to re-weigh the evidence. The issue before us is whether the evidence was sufficient to establish Stamps’ specific intent to influence the officers’ conduct.

Stamps relies on State v. Love and State v. Hall in support of his position. The cases are distinguishable on their facts. In Love, the facts, as outlined in the opinion, supported the conclusion that the comments were made out of anger and in retaliation after the defendant fought with an officer, escaped apprehension, and then was being transported to the police station. The court held that the defendant did not indicate in any way that his threats were intended to influence the officer’s behavior, and lacked an “or else” meaning. In Hall, the defendant continued to threaten the witness even after the defendant entered a guilty plea, which supported the Hall court’s conclusion that the evidence failed to exclude the reasonable hypothesis that the defendant acted with a purpose other than to influence the witness’ conduct.

This Court has previously reviewed the eases cited above and found that the common thread running through them is the consideration of whether the threats are made in anger as revenge or retaliation, or whether they are made in an attempt 19to influence the conduct of the public officer in relation to his or her duties. Each case turns on the facts presented. In Jones, the defendant threatened a deputy and was then instructed to get into the police car. He continued making threats in the backseat until another deputy arrived on the scene. The defendant was then arrested. We found that the defendant made the threats of physical violence and employment termination before he was arrested, with the intent to persuade the officer not to arrest him, and that the circumstantial evidence was sufficient to support the defendant’s public intimidation conviction.

Although Stamps’ argument focuses on the timing of the threats as being made after he was arrested, the public intimidation statute does not have an arrest element, but more broadly includes “conduct in relation to his position, employment, or duty[.]” LSA-R.S. 14:122. In the present case, Deputy Graffeo testified that, when he asked Stamps to step away, Stamps imitated pointing a firearm, saying, “[Y]ou screwing up, we gonna get you,” prior to Stamps being taken into custody. Thus, at least some of the threats against the officers were made pri- or to Stamps being physically apprehended, being placed in the rear of the patrol car, and read his Miranda rights. Even if Stamps was arrested at the time the threats were made, he threatened the officers before he was transported and booked.

The jury could have believed that the officers’ duties did not end with the arrest. Once in custody, a defendant must be transported and booked. Even thereafter, the officers’ duties could continue, requiring them to testify as a witness at Stamps’ trial. The content of Stamps’ threats reflect that he thought he had a political connection which could be used to benefit him in this situation by influencing the officers’ conduct. Even if Stamps made the threats to avoid arrest 11flwhen he had actually already been arrested, the jury could have believed that Stamps felt he could still influence the officers’ conduct since, at the time, he had not yet been handcuffed, read his rights, put in the patrol car, or taken to the station and booked. Sergeant Ragas testified he believed Stamps was trying to influence their decision and to release him or not arrest him. Also, he testified Stamps intimidated him prior to the arrest until the time they “affected the arrest.” Deputy Graffeo testified he believed Stamps’ statements were made to influence him to “un-arrest” him or to go with a lower charge.

On the evidence presented, the jury could have found that the threats were made not in retaliation or revenge but, rather, were made to influence the officers’ conduct by means of a political connection. A rational trier of fact could have inferred the requisite specific intent to influence the officers’ conduct from Stamps’ threats. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Although this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920, Stamps requests an error patent review. On our review, we find no errors patent requiring corrective action.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

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

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

      . State v. Wooten, supra.

      . State v. Meyers, 94-231 (La.App. 5 Cir. 9/14/94), 643 So.2d 1275.

      . Id.

      . State v. Graham, 420 So.2d 1126, 1127 (La. 1982) (citations omitted); State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 559, writ denied, 99-2818 (La.4/20/00), 760 So.2d 334 (citation omitted).

      . State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363.

      . 602 So.2d 1014 (La.App. 3 Cir. 1992).

      . 441 So.2d 429 (La.App. 2 Cir. 1983).

      . State v. Jones, 00-980 (La.App. 5 Cir. 10/18/00), 772 So.2d 788.

      . Id.