author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Jerry W. WILLIAMS, Jr., Appellant.
    No. 42,803-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Edward K. Bauman, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, John Ford McWilliams, Jr., Lea R. Hall, Jr., Assistant District Attorneys, for Ap-pellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| t This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, where a jury convicted defendant, Jerry W. Williams, Jr., of second degree murder, a violation of La; R.S. 14:30.1. He was sentenced to mandatory life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Williams now appeals. For the following reasons, the conviction and sentence are affirmed.

FACTS

On February 24, 2005, the victim, Mickel Shane Howard (“Shane”), was shot and killed in the stairwell of his apartment in Shreveport, Louisiana. He was shot multiple times in the back with a 9mm handgun. In the hours leading up to the shooting, there was a series of telephone calls between Jerry Williams (also known as “G-Wayne”) and Cherie Hudson, the victim’s live-in girlfriend. The cell phone records also reveal that Williams called Shane’s cell phone numerous times.

The phone calls concerned a drug transaction. On several prior occasions, Cherie purchased crack cocaine from Williams in exchange for Lortabs, another Schedule II controlled dangerous substance. At or around 9:00 p.m. on February 23, 2005, Williams, Cherie, and Shane were arguing about another drug transaction. Although the facts are in dispute as to the content of their discussion, the evidence is clear that there was a heated argument. It is also undisputed that Cherie and Shane began to argue amongst themselves.

LCherie’s then 15-year-old daughter, Brittany, placed a 911 call to the police concerning the domestic situation at the apartment. Shortly thereafter, the police received another 911 call concerning a shooting at the apartment. When the police arrived at the scene, they found Shane dead.

Both Cherie and Brittany identified Williams as the shooter. Based on their interviews and through additional information received from their investigation, the police arrested and charged Williams with second degree murder. On February 15, 2007, after a trial, the jury found Williams guilty as charged. The trial court sentenced Williams to mandatory life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Williams filed a Motion for Post Verdict of Acquittal which was denied. This appeal ensued.

LAW AND DISCUSSION

Sufficiency of the evidence

In his first assignment of error, Williams argues that there is insufficient evidence that he was the shooter. Specifically Williams asserts that there were no fingerprints, ballistics or DNA evidence linking him to the crime. When sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most | ¡¡favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency claim, as set forth in Jackson v. Virginia, supra, is now legislatively embodied in La. C. Cr. P. art. 821. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

As a rule, in cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App. 2 Cir. 4/12/96), 677 So.2d 1008, unit denied, 96-1807 (La.2/21/97), 688 So.2d 520. A witness’ failure to identify the suspect at a pretrial lineup is not grounds to bar an in-court identification; rather, it affects the weight of the testimony. State v. Long, 408 So.2d 1221 |4(La.l982); State v. Ford, 26,422 (La.App.2d Cir.09/21/94), 643 So.2d 293. Evidence may be introduced to explain any discrepancy. Id. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 1997-0383 (La.10/31/97), 703 So.2d 12.

Relative to the facts of this case, in order to prove the crime of second degree murder, the state must prove beyond a reasonable doubt that Williams acted in accordance with the circumstances listed in La. R.S. 14:30.1(A), which provides in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.

The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 1995-0305 (La.l1/25/96), 684 So.2d 368, cert, denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Dooley, 38,763 (La.App.2d Cir.09/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.02/18/05), 896 So.2d 30.

Here, the issue raised is not whether the crime of second degree murder was committed, but whether Williams was the person who committed it. While Williams is correct that there were no fingerprints, ballistics or DNA evidence linking him to the crime, the testimony of Brittany and Cherie, Williams’ cellular phone records, and Williams’ statement made in the presence of Aaron Dobbins, a cell mate, were more |sthan sufficient to support the jury’s conclusion beyond a reasonable doubt that Williams was the person who shot and killed Mickel Shane Howard.

Brittany Hudson testified that she followed Shane down the stairs toward the front door of the apartment where she saw Williams with a gun in his hand seconds before Shane was shot. Brittany identified Williams as the shooter during the first photo lineup with a high degree of certainty as well as identifying Williams at trial. Because Brittany heard several phone calls on speaker phone the evening of the shooting, Brittany was able to identify Williams as the shooter based on her recognition of his voice. In addition, Brittany was able to recognize Williams’ phone number on Caller ID. When Williams called Cherie shortly after the shooting, a police officer was standing next to Brittany at the apartment when the phone rang. Brittany answered the phone and told the officer: “This is the guy, this is the guy who did this.” Caller ID and the cellular phone revealed that the call was placed from Williams’ cell phone — a number which he admitted was his during his recorded statement to police.

Further, Cherie and Brittany testified that there was a heated argument over the phone between Shane and “G-Wayne” in the hours leading up to the shooting. The cellular phone records confirmed that there were numerous calls between the apartment telephone line and Williams, and between Shane and Williams. The phone records also reveal that the last call placed to Shane’s cell phone from Williams was moments before Shane was shot, which is consistent with the testimony that Shane answered [fia call from Williams as he was heading down the stairs to confront Williams, stating, “I’m on my way.”

Finally, the record reveals that Williams fabricated his alibi. The state presented two witnesses who directly contradicted Williams’ recorded statement as to his whereabouts during the early morning hours of February 24, 2005. According to Williams, he was intoxicated that night and did not leave his friend Shontelle Smith’s house until approximately 10:00 a.m. on February 24, at which time he called for a taxicab. However, Shontelle testified the last time she saw him was around 10:00 p.m. on February 23, 2005, and that when she woke up for work around 6:00 a.m. the next morning, Williams was gone. Williams’ mother testified that she saw her son return home in the early morning hours of February 24, 2005. Indeed, the police could not verify a single fact of Williams’ alibi, not even the supposed name of the taxi cab driver, “Rudy.” Williams did not present any alibi witnesses on his behalf. Fabrication is evidence of consciousness of guilt. State v. King, 41,084 (La.App.2d Cir.06/30/06), 935 So.2d 815, writ denied, 2006-1803 (La.02/16/07), 949 So.2d 411.

It is clear that the state negated any reasonable probability of misidentification. The evidence viewed in the light most favorable to the prosecution proves beyond a reasonable doubt that Williams committed the offense, for which he was convicted. This assignment is, therefore, without merit.

1^Motion for Mistrial

In his second assignment of error, Williams argues that the trial court erred by failing to grant a mistrial based on Aaron Dobbins’ testimony concerning a purported inculpatory statement that Williams made while being held for the instant charges implicating him in Shane’s murder. Specifically, Williams argues that the state failed to disclose the existence of this discoverable statement in violation of La..C. Cr. P. art. 716.

On March 11, 2005, Williams filed a Motion for Discovery seeking, among other things, information about the “existence of, in writing, any oral statement of [sic ] confession of any nature, made by the defendant which the District Attorney intends to offer as evidence at the trial” pursuant to La. C. Cr.- P. art. 716(B). At trial, the state called Aaron Dobbins as a witness. Dobbins testified that while he was incarcerated with Williams who was being held on charges for the instant matter, Williams told two other inmates, in Dobbins’ presence, that “[Dobbins] is the dude that’s in my paperwork on that m* * * * * f* * * * * I murced.” Defense counsel immediately objected and after a bench conference, the trial court overruled the objection. Immediately upon the conclusion of the state’s case-in-chief and outside the presence of the jury, the defense moved for a mistrial.

The basis of the mistrial motion was the state’s failure to disclose the statement that Williams allegedly made in Dobbins’ presence. The state contended that it first became aware of the statement in February 2006, and that according to its notations in the file, the Assistant District Attorney _J¿orally discussed with defense counsel the existence (but not the content) of the statement shortly thereafter. The state also asserted that before the trial commenced, it showed defense counsel every exhibit and walked through every witness that was going to be introduced, including the fact that “Aaron Dobbins is going to come in and talk about his initial contact with the police and statements he made at [Caddo Correctional Center] with your client.”

Louisiana C. Cr. P. art. 716(B) states: Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
Louisiana C. Cr. P. art. 768 provides:
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

As noted by the trial court, the rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony, to permit the defense to meet the state’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Thomas, 39,194 (La.App.2d. Cir.01/26/05), 892 So.2d 161, writ denied, 2005-0646 (La.06/03/05), 903 So.2d 455. However, the failure of the state to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. Id.; State v. Harris, 2000-3459 (La.02/26/02), 812 So.2d 612. IflDetermining whether such prejudice has resulted is within the sound discretion of the trial judge. State v. Matthews, 552 So.2d 590 (La.App.2d Cir.1989), writ denied, 559 So.2d 137 (La.1990); State v. Brown, 557 So.2d 1085 (La.App. 2d Cir. 1990).

When the defendant is lulled into misapprehension of the strength of the state’s case through the failure of the district attorney to timely or fully disclose and the defendant suffers prejudice, basic unfairness results which constitutes reversible error. State v. Harris, swpra. Although a mistrial is among sanctions which the trial court may choose if it views the circumstances in a case as a discovery violation, a mistrial is a drastic remedy and, except in instances where the mistrial is mandatory, is warranted-only when a trial court error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. Id. Moreover, as provided in La. C. Cr. P. art. 729.5, the article which details the arsenal of sanctions available for discovery violations, no particular remedy is mandated.

The trial court denied the motion for mistrial, finding that while it would have been better practice for the state to have advised Williams of the existence of the statement in writing, the state met its obligation when it orally advised the defense on two separate occasions of the existence of Williams’ statement to Dobbins before trial. Further, the trial court found that Williams failed to show that he was substantially prejudiced by any failure by the state to disclose the existence of the statement. We agree.

|inIn the case at hand, Williams is correct that the state failed to disclose in writing the existence of his statement to Dobbins, prior to Dobbins’ testimony at trial notwithstanding a formal discovery request for the same. Not considering whether or not the state orally advised the defense of the existence of the statement, we find that Williams has failed to demonstrate that he was prejudiced by the perceived error.

First, the state presented other evidence which was sufficient to prove that defendant committed the offense for which he was convicted. Both Cherie and Brittany described a heated argument over the telephone between Shane and Williams in the hours leading up to the shooting, as evidenced by Williams’ own cell phone records. Brittany further testified that she accompanied Shane as he confronted Williams and that she saw Williams with a gun in his hand immediately before she turned away in fear and heard multiple gunshots. Even without Dobbins’ testimony about Williams’ alleged “murced” statement at the Caddo Correctional Center, the evidence proved beyond a reasonable doubt that Williams was the perpetrator. Second, a review of the record shows that the element of surprise, often an aspect of the determination of prejudice, is greatly diminished in this case.. The statement was made in the presence of a person that Williams admittedly knew was a state’s witness in his case.

Finally, given that Dobbins’ testimony occurred on February 14, 2007, Williams had almost 24 hours to provide his lawyer with the names of the other two inmates who Dobbins claimed were present so that they could be brought to court to deny the statement. However, Williams did not InPresent any witnesses. After a thorough review of the record, we find that Williams failed to establish that he was substantially prejudiced in the presentation of his defense, and thus, this assignment lacks merit.

ERROR PATENT

At sentencing the trial court partially advised Williams that he had “two years” to file for any post-conviction relief pursuant to La. C. Cr. P. art. 930.8. We advise by this opinion, as a matter of clarification, that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Jerry W. Williams, Jr.

AFFIRMED.

      . As explained by Dobbins during his testimony, "paperwork” refers to the discovery materials Williams received and “murced” is street slang for murder.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Latosha K. CHISLEY, Plaintiff-Appellee v. Antoney D. COLEMAN and USAgencies Casualty Insurance Company, Defendant-Appellant. Shantae Chisley, Plaintiff-Appellee v. Antoney D. Coleman and USAgencies Casualty Insurance Company, Defendant-Appellant.
    Nos. 42,750-CA, 42,751-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Mark J. Neal, Monroe, for Appellant, USAgencies Casualty Insurance Company.
    James R. Pierre, Monroe, for Appellees.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

_|jln these consolidated cases, plaintiffs, LaTosha Chisley and Shantae Chisely, filed lawsuits against defendants, Antoney D. Coleman (“Coleman”) and USAgencies Insurance Company (“USAgencies”), seeking damages for injuries they sustained in an automobile accident. Following a bench trial, the trial court entered judgment in favor of plaintiffs and awarded damages. For the reasons set forth herein, we reverse the trial court’s judgment and render judgment in favor of defendant, USAgencies, dismissing plaintiffs’ demands.

FACTS

This suit arises out of an automobile accident that occurred on September 20, 2005 on Winnsboro Road in Monroe, Louisiana. Plaintiffs filed separate lawsuits, naming Coleman and USAgencies as defendants, alleging that the vehicle driven by LaTosha Chisley (“LaTosha”) collided with a vehicle driven by Coleman. Shan-tae Chisley (“Shantae”) was riding as a passenger in LaTosha’s vehicle. Plaintiffs further alleged that the vehicle driven by Coleman was owned by Shon J. Mckoin and insured by USAgencies. Plaintiffs asserted that the accident was caused solely by | ^Coleman’s negligence, and Coleman and USAgencies were liable in solido for plaintiffs’ damages and losses. However, in the prayers of the petitions, plaintiffs stated, “Wherefore, petitioner prays ... there be judgment against SHON J. MCKOIN AND USAGENCIES ... m solido .... ”

USAgencies filed a dilatory exception of vagueness or ambiguity of the petition, arguing, inter alia, that its insured, Shon J. Mckoin, was not named as a defendant in the action. Plaintiffs filed amended petitions, amending the prayers to state, “Wherefore, petitioner prays ... there be judgment against ANTONEY D. COLEMAN AND USAGENCIES ...in solido ....” Thereafter, USAgencies answered the petitions, admitting that it “provided a liability insurance policy in favor of Shon J. McKoin”- and denying liability. The matters were later consolidated for trial.

Neither Coleman nor Mckoin was ever served or cited to appear. They were not subpoenaed for trial and did not appear.

A bench trial was held on March 20, 2007. Plaintiffs conceded that Coleman and Mckoin had not been served or cited and elected to proceed to trial against USAgencies under the direct action statute. During the trial, plaintiffs offered the testimony of Corporal Robert Crowder of the Monroe | ^Police Department, Dr. Gary Mayfield, LaTosha and Shantae. Plaintiffs also introduced into evidence a certified copy of the USAgencies policy issued to Mckoin, insuring two vehicles, and plaintiffs’ medical records. At the conclusion of the trial, the trial court found Coleman at fault for causing the accident. The court awarded LaTosha $8,500 in general damages, $2,958.49 in medicals and $750 in expert witness fees. With regard to Shan-tae, the trial court awarded $8,500 in general damages, $2,554 in medicals and $750 in expert witness fees.

DISCUSSION

It is well settled that the burden is on the plaintiff to make a prima facie showing that one is an insured under an insurance policy. Turner v. Ewing, 255 La. 659, 232 So.2d 468 (La.1970); Alexander v. Cornett, 42,147 (La.App.2d Cir.7/11/07), 961 So.2d 622; C.L. Morris, Inc. v. Southern American Ins. Co., 550 So.2d 828 (La.App. 2d Cir.1989). While a plaintiff may proceed to trial against an insurer without the insured, the direct action statute does not create an independent cause of action against an insurer, but merely grants a procedural right of action against an insurer when the plaintiff establishes a substantive cause of action against an insured. Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94), 639 So.2d 246. In addition to having the burden of proving negligence on the part of the tortfeasor, a plaintiff suing under the direct action statute must prove the existence of the policy and coverage under that policy. Tunstall v. Stierwald, 2001-1765 (La.2/26/02), 809 So.2d 916.

The party claiming coverage has the burden of proving express or | implied permission to use the vehicle. Perkins v. McDow, 615 So.2d 312 (La.1993); Jones v. Foster, 41,619 (La.App.2d Cir.12/13/06), 945 So.2d 262; Wade v. Autoland Inc., 32,903 (La.App.2d Cir.5/26/00), 767 So.2d 766, writ denied, 2000-2180 (La.10/13/00), 771 So.2d 651. The plaintiff must prove express or implied permission of the insured in order to obtain coverage under the omnibus clause. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398; Jones, supra.

In the instant case, the trial testimony established that plaintiffs were involved in an automobile accident on September 20, 2005. The testimony also established that plaintiffs sustained injuries for which they underwent chiropractic treatment.

Corporal Robert Crowder of the Monroe Police Department testified that he investigated an accident on Winnsboro Road on September 20, 2005. He stated that he prepared an accident report in connection with the accident and had reviewed the report in preparation for his testimony. Cpl. Crowder testified that after investigating the accident, he issued a traffic citation to the driver of “vehicle # 1” for improper turn. He also testified that La-Tosha Coleman was listed as the driver of “vehicle #2” and Shantae Coleman was listed as the passenger. However, the officer did not name the driver of “vehicle # 1” and did not describe the make, model and year of that vehicle.

Dr. Gary Mayfield, the chiropractor who treated both plaintiffs, testified with regard to plaintiffs’ injuries and subsequent treatment. | .¡According to Dr. Mayfield’s testimony and medical reports, plaintiffs’ injuries were associated with the instant accident.

Both plaintiffs also testified at trial. LaTosha testified that on the day of the accident, she was driving east on Winns-boro Road when a vehicle traveling west made a left turn in front of her, causing a collision. Shantae’s testimony corroborated LaTosha’s testimony. However, although plaintiffs described the vehicle driven by LaTosha as a “white Taurus,” neither plaintiff identified the driver of the other vehicle, and no description of the other vehicle was offered.

The USAgencies application for insurance admitted into evidence listed Shon J. Mckoin as the “owner/applicant.” The USAgencies insurance policy listed Mckoin as the named insured and provided insurance coverage for two vehicles: a 1994 Oldsmobile Achieva and a 1997 Chevrolet Lumina.

After reviewing the record, we find that plaintiffs failed to prove that USAgencies provided insurance coverage with regard to this accident. It is clear from the record that plaintiffs were involved in an automobile accident with another vehicle on September 20, 2005 and suffered injuries and underwent treatment as a result of that accident. The record also established that USAgencies had issued a policy to Mckoin, insuring two automobiles. However, there was nothing in the record to establish Coleman as the driver of the vehicle that struck plaintiffs’ vehicle. Likewise, there is nothing in the testimony or record to establish that the offending vehicle was owned by Mckoin and insured by USAgencies. Moreover, Coleman was not a named insured under the USAgen-cies policy, and plaintiffs did not allege or prove | fithat Coleman was a resident of Mckoin’s household or that he was driving Mckoin’s vehicle with Mckoin’s express or implied permission. Accordingly, the judgment in favor of plaintiffs is hereby reversed, and we render judgment in favor of defendant, USAgencies, dismissing plaintiffs’ claims.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment in favor of plaintiffs and render judgment in favor of defendant, USAgencies, dismissing plaintiffs’ demands. Costs are assessed to plaintiffs.

REVERSED AND RENDERED.

      . In their petitions for damages, plaintiffs alleged:

      5.
      The petitioner alleges on information and belief, that at the time of the collision described above, the vehicle driven by ANTO-NEY D. COLEMAN and owned by SHON J. MCKOIN was covered by an automobile liability insurance policy, which had been sold and delivered by U.S. Agencies Casualty Insurance Company, which policy was then in full force and effect by virtue of the payment of premiums in coverage.

        6.

      The petitioner further alleges on information and belief that under the terms of said policy, U.S. Agencies Casualty Insurance Company obligated itself to pay any and all damages caused to others as a result of the negligence of ANTONEY D. COLEMAN herein described as the vehicle being driven by ANTONEY D. COLEMAN and owned by SHON J. MCKOIN, described above, was covered by said policy as the time of said collision.

      . The diagram that Cpl. Crowder made depicting the location of the vehicles during the accident was introduced into evidence; however, the police report was not introduced into evidence. The drivers of the vehicles were not named in the diagram, and the diagram did not contain a description of the vehicles involved.

      . Due to our ruling herein, we pretermit consideration of USAgencies’ argument with regard to damages in excess of the policy limits.


author: GASKINS, J.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SUPPORT In the Interest of T.M.A., Minor Child of Angela Allums, Plaintiff-Appellant v. Roger PICKINS, Defendant-Appellee.
    No. 42,721-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Melissa A. Capella, for Appellant.
    Roger Pickins, In Proper Person.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hThe Louisiana Department of Social Services (DSS) filed a rule to show cause why the defendant, Roger Pickins, should not be held in contempt for failure to pay child support for his minor child, Q.Q.A. The trial court held that the default judgment finding the defendant to be the father of Q.Q.A. and ordering him to pay child support, was null. Accordingly, the trial court denied the motion by the DSS to hold the defendant in contempt for failure to pay child support. The DSS appealed. For .the following reasons, we affirm the trial court judgment and remand for further proceedings.

FACTS. AND PROCEDURAL HISTORY

In February 1997, the DSS filed a petition against the defendant for determination of paternity and to establish child support. The petition claimed that Angela Allums had a relationship with the defendant and it was suspected that the defendant was the father of T.M.A., born September 22, 1994. In October 1999, an amending and supplemental petition was filed urging that the defendant was also the father of Angela Allums’ other child, Q.Q.A., born January 16, 1998. On December 23, 1999, a default judgment was entered against the defendant. In March 2000, a joint motion and order was entered for paternity testing of the mother, the children, and the defendant. The results of the paternity test showed that the defendant was not the father of T.M.A., but that there was a 99.97 percent probability that he was the father of Q.Q.A.

hOn November 28, 2000, the DSS filed a motion and order of dismissal setting forth that it was appearing on behalf of the minor children T.M.A. and Q.Q.A. The DSS pled as follows:

That Plaintiff no longer desires to pursue this matter and that mover desires to dismiss this cause without prejudice because the defendant, ROGER PIC-KINS, has been excluded through paternity blood testing as the natural father of the minor child, [T.M.A.]
WHEREFORE, PETITIONER MOVES that the above-entitled cause be dismissed without prejudice. [Emphasis original.]

On December 6, 2000, the district court hearing officer signed an order of dismissal ordering that the “above-entitled cause be and is hereby dismissed without prejudice.” The defendant was mailed notice of the dismissal.

The DSS then realized that it erred in dismissing the entire matter. Rather, it should have dismissed the case only as to T.M.A. On December 18, 2000, the DSS filed an amended motion and order for dismissal stating:

That on November 28, 2000 the State filed a motion and order for dismissal based on the results of DNA testing. The order was signed on December 6, 2000 dismissing the action. 'However, the dismissal pertained only to the minor child, [T.M.A.] The defendant was not excluded as the father of the minor child, [Q.Q.A.]
That the dismissal be amended to the extent that it applies only to the minor child, [T.M.A.]

The hearing officer signed the amended motion and order for dismissal, specifying that the action for paternity and support for the minor child, Q.Q.A., remained open. The amended motion and order for dismissal was not served on the defendant.

UThe DSS proceeded to confirm a default judgment against the defendant. The DSS established the defendant’s obligation to support Q.Q.A. The hearing officer found that the defendant was the' father of Q.Q.A. and recommended to the trial court that he pay $244.63 per month in child support effective February 2001. On February 8, 2001, the trial court signed a judgment adopting the findings of fact and recommendations of the hearing officer.

In October 2006, the DSS filed a rule to show cause why the defendant should not be held in contempt of court for failure to pay child support and to set the amount of the arrearage. The DSS contended that the defendant was in arrears for child support and administrative costs in the amount of $18,405.17.

The defendant was represented by counsel at the rule to show cause hearing. He argued that the DSS never had a valid judgment for support. According to the defendant, the error in the original order of dismissal could not be corrected with an amended order for dismissal. Therefore, the defendant contends that the entire matter was dismissed and there was no valid order of support against the defendant for Q.Q.A.

The trial court ruled in favor of the defendant. The court reasoned that the order dismissing the entire suit was a substantive ruling which could not be corrected by the amending dismissal and recognized that the defendant was not served with the amended order of dismissal. The court noted that the DSS was required to refile the suit on behalf of Q.Q.A. in order to collect 14child support for her. Therefore, the trial court found that the confirmation of default judgment ordering the defendant to pay child support was not a valid judgment and could not serve as the basis for a contempt judgment. The trial court dismissed the rule for contempt, without prejudice.

The DSS filed a motion for new trial claiming that the trial court’s decision was contrary to the law and evidence. The trial court denied the motion and the DSS appealed.

VALIDITY OF DISMISSALS

On appeal, the DSS argues that the original dismissal and the amended dismissal were without effect because they were signed only by the hearing officer and not by the trial court judge. The DSS cites La. R.S. 46:236.5 which states that the hearing officer shall act as the finder of fact and shall make written recommendations to the court. The DSS contends that hearing officers do not have authority to sign or issue judgments or make final determinations in proceedings. They can only make recommendations to the district court judge, who then has the authority to sign an order or judgment. The DSS notes that the hearing officer never made a recommendation to the court for dismissal and no valid order of dismissal was ever entered in this case by the trial court. Therefore, the DSS urges that the dismissals were not valid. Because the dismissals were without effect, the DSS urges that the original petition against the defendant for paternity and child support remained viable and served as the valid basis for the confirmation of default and for the rule for contempt.

IfiLa. R.S. 46:236.5 governs the authority of hearing officers to act in paternity and support matters. The statute specifies that the hearing officer shall make written recommendations to the trial court setting forth the pleadings, findings of fact, findings of law, and a proposed judgment. If the parties object to the written recommendation, the objections will be heard by the judge of the district court to whom the case is assigned. If no written objection is filed within the applicable time limit, the order becomes the final judgment of the court, is signed by the judge, and becomes an appealable final judgment.

This statute is implemented in the First Judicial District Court through the local court rules. Neither the statute nor the local rules give the hearing officer the authority to sign any judgment including a dismissal. The hearing officer is given authority simply to hear a matter, make findings of fact, and then submit written recommendations to the trial court. Actual judgments are to be signed by the trial court. Therefore, the hearing officer in this matter did not have the authority to dismiss the original action or to sign the amended dismissal which sought to resurrect the pleading by the DSS to establish the defendant’s paternity of Q.Q.A. and to set child support.

However, as will be discussed below, we find that the deficiencies in service of process render void the preliminary default and confirmation of default. Accordingly, for reasons other than those found by the trial court, the initial judgment obtained through a flawed procedure for confirmation of default is set aside.

| ^SERVICE OF PROCESS

At the contempt hearing, the defendant was present and was represented by court-appointed counsel. In arguing that the default judgment was null, defense counsel pointed out that the defendant was not served with notice of the amended' motion and order of dismissal which purported to resurrect the proceedings against the defendant for paternity of and child support for Q.Q.A. Our examination of the record reveals numerous flaws in service of process which render the confirmation of default null.

La. C.C.P. art. 1201 provides, in pertinent part:

A. Citation and service thereof are. essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.

La. C.C.P. art. 1312 specifies that, except in limited, specified instances, every pleading subsequent to the original petition shall be served on the adverse party by mail, delivery, or facsimile.

La. C.C.P. art. 1701 provides, in relevant part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

La. C.C.P. art. 1702 specifies, in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is 17filed timely, this confirmation may be made after two days, exclusive of holidays,, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

La. C.C.P. art. 2002 provides, in relevant part:

A. A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

In the present case, at the contempt hearing, the trial court stated that the defendant was personally served with the original petition and amended petition on November 17, 1999. However, in the record, there is no showing that the defendant received citation and service of these documents. A default judgment was entered against the defendant on December 23, 1999. Without service of process, the default was invalid.

Thereafter, the defendant joined in a motion and order for blood testing. If this was an appearance of record, the defendant would be entitled to notice before confirmation of default under La. C.C.P. art. 1702. On March 29, 2000, he was served with the results of the blood tests showing | sthat he was the father of Q.Q.A., but not T.M.A. On December 6, 2000, the hearing officer signed the purported dismissal of the entire matter and the defendant was served with the notice of the dismissal. The defendant was not served with the amended motion and order of dismissal or the setting of the hearing for confirmation of default in 2001. At the time of the hearing in which the hearing officer determined that the defendant was the father of Q.Q.A., and recommended that he pay child support, the defendant had no notice that any proceedings in this matter were still ongoing.

An attempted default judgment can be reversed as a nullity on direct appeal where the ground for the nullity is apparent on the face of the record. See Rando v. Rando, 31,366 (La.App.2d Cir.12/9/98), 722 So.2d 1165. Where there is no proof of service of citation, the default judgment is an absolute nullity under La. C.C.P. art. 2002(A)(2). Summit Construction, Inc. v. Robinson Contracting and Equipment Rental, Inc., 40,029 (La.App.2d Cir.8/17/05), 909 So.2d 684; Mitchell v. Bass, 2001-2217 (La.App. 1st Cir.11/8/02), 835 So.2d 778. Even if the original pleading in this case had been served on the defendant, under the facts presented here, where the defendant was served with what purported to be a complete dismissal of the proceedings and then was not served with any notice of the filing of the purported amended motion and order for dismissal, the confirmation of default was irrevocably tainted. This is similar to the situation in Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991), in which a motion to transfer a proceeding to another parish was not served on the defendant. This court 19found that, due to that failure, the subsequent default judgment was tainted and required reversal.

Based upon the numerous procedural flaws in this case, we affirm the finding of the trial court that the default judgment of February 8, 2001, was null and could not serve as the basis for the rule for contempt brought by the DSS. We disagree, however, with the trial court’s reasons, and find that the original and amended petitions remain viable and subject to further proceedings in the trial court.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court, dismissing the contempt proceeding filed by the DSS against the defendant, Roger Pickins.

AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.

      . As will be discussed below, the default was confirmed at a later date.

      . We make no finding as to whether this amended motion could have been considered as a motion for new trial since it was filed outside the time limit for such a motion.

      . The defendant is unrepresented on appeal and has not filed a brief.

      . In the alternative, the DSS argues that it clearly intended to dismiss only those claims regarding the defendant’s obligation to support T.M.A. The DSS urges that the pleading should be read and construed to dismiss the action only as to T.M.A. The DSS argues that this court is required to look through the caption, style, and form of the motion for dismissal and to do substantial justice. Because we find that the entire proceeding was fatally flawed, we do not reach this argument.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Nathaniel JOSEPH v. ENTERGY, et al.
    No. 2007-CA-0688.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.

      Philip C: Ciaccio, Jr., Gretna, LA, for Third Party Defendants/Appellants. Tris-tem, Ltd. and Joe Seeber.
    Marcus V. Brown, Entergy Services, Inc., New Orleans, LA, and Marc D. Wins-berg, William P. Gibbens, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for DefendanVAppellee, En-tergy New Orleans, Inc.
    (Court composed of Judge PATRICIA-RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

11 This appeal arises out of a contempt judgment. The trial court found the third party defendant, TriStem, Ltd., and its president, Joe Seeber, in contempt for a second time; ordered them to pay $1,000 in attorney’s fees to the defendant, Enter-gy; and imposed a suspended forty-eight hour incarceration sentence on Mr. Seeber. We affirm the finding of contempt, but vacate the award of attorney’s fees.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying suit out of which the contempt judgment arises is a tort suit that was filed by Nathaniel Joseph against Entergy and the City of New Orleans. In that suit, Mr. Joseph sought to recover for injuries he sustained on March 18, 1996, when a light pole fell and hit him on his head. In that suit, Entergy filed a third party demand for indemnification against, among others, TriStem, a Texas consulting company. Entergy asserted in the third party demand that TriStem, while acting as a consultant to the City, performed an audit of the streetlights and failed to discover that the light pole in question was in disrepair. The trial court severed the third party demand and tried the case against Entergy and the City. A judgment was rendered finding only Entergy liable. This court affirmed the finding of liability on the part of Entergy in Joseph v. Entergy, 00-2213 (La.App. 24 Cir. 2/13/02), 811 So.2d 54. Entergy then proceeded with the third party indemnity action.

On June 22, 2004, Entergy filed a motion for protective order and contempt against TriStem alleging that its president, Mr. Seeber, sent correspondence to Enter-gy’s audit committee making allegations of fraud against Entergy. Entergy also claimed that Mr. Seeber made inappropriate contact with the trial court judge, making unfounded allegations against Entergy. On August 5, 2004, the trial court granted Entergy’s motion for protective order and ordered that “neither TriStem, Ltd. nor Joe Seeber shall have any contact with Entergy or its representatives other than its counsel of record in this action outside of a formal setting such as a deposition or judicial forum.” TriStem and Mr. Seeber neither appealed nor collaterally attacked the August 5, 2004 protective order.

On September 30, 2004, Entergy filed its first contempt motion against TriStem and Mr. Seeber. Entergy alleged that Mr. Seeber had continued sending correspondence to representatives of Entergy making allegations against Entergy of fraud and mismanagement in violation of the trial court’s August 5, 2004 protective order. On October 25, 2004, the trial court rendered judgment holding TriStem and Mr. Seeber in contempt and ordering them to pay Entergy $5,000.00 in attorney’s fees. We affirmed the trial court’s earlier finding of contempt, but remanded on the issue of attorney’s fees, reasoning that “we can find no authority for allowing a court to order payment of attorney fees in lieu of a contempt fine. As it is unclear from the record before this Court as to the intent of the trial court, | awe remand the matter for clarification.” Joseph v. Entergy, 05-0263 (La.App. 4 Cir. 8/3/05), 918 So.2d 47.

On May 4, 2005, the trial court granted TriStem’s motion for summary judgment, dismissing it from the underlying suit. On June 4, 2005, Entergy took a devolutive appeal from that judgment, which is still pending.

On July 21, 2005, Entergy filed a second contempt motion. This motion was based on correspondence dated June 23, 2005 that Mr. Seeber sent to Entergy’s audit committee. Enclosed with the correspondence was a copy , of the prologue to the Mr. Seeber’s then soon to be published book entitled “Wired for Greed.” In the prologue to the book, Mr. Seeber recites the facts of the Joseph case.

As noted above, on August 3, 2005, we rendered our decision affirming the trial court’s judgment granting Entergy first contempt motion, but remanding for a clarification of the attorney’s fee award. On August 29, 2005, Hurricane Katrina struck the New Orleans area.

On October 25, 2006, Entergy filed a third contempt motion in which it incorporated the arguments it raised in its pending second motion. In addition, Entergy asserted that Mr. Seeber had sent correspondence dated October 3, 2006 to Enter-gy audit committee members in which he referenced the Joseph litigation; particularly, the letter states:

To help inform the Court how Entergy is capable of such a malevolent act, we will advise them of the lawsuit Entergy has filed against TriStem. TriStem has never had any contractual obligation to do anything for Entergy. TriStem has never contracted with anyone to assess the structural integrity of street light poles. None-the-less, Entergy filed suit against TriStem because of a street light that fell on a man in New Orleans. A clear case of legal harassment.

14At the February 9, 2007 hearing on the third contempt motion, Mr. Seeber acknowledged in his testimony that the above-quoted excerpt from his October 3, 2006 letter was a reference to the Joseph case.

Following the hearing, the trial court found the actions of TriStem and Mr. See-ber to be in violation of its August 5, 2004 protective order and to be acts of constructive contempt under La. C.C.P. art. 224(2). The trial court further ordered in its judgment that TriStem and Mr. Seeber pay to Entergy $1,000 in attorney’s fees, and pursuant to La. R.S. 13:4611, that Mr. Seeber serve forty-eight hours of incarceration. However, the trial court suspended the order of incarceration. The trial court also addressed in its judgment this court’s August 3, 2005 order remanding for clarification of the trial court’s October 25, 2004 award of attorney’s fees. Pursuant to La. R.S. 13:4611, the trial court fined TriStem and Mr. Seeber $500 for that prior finding of contempt. This appeal followed.

DISCUSSION

On appeal, TriStem and Mr. Seeber raise three assignments of error: (i) the trial court lacked jurisdiction to enforce the protective order; (n) the trial court erred in finding the actions of TriStem and Mr. Seeber constituted constructive contempt; and (in) the trial court erred in awarding attorney’s fees to Entergy. We separately address each issue.

\R(i) trial court’s jurisdiction to enforce protective order

TriStem and Mr. Seeber argue that the trial court’s judgment granting TriS-tem’s motion for summary judgment, from which Entergy took a devolutive appeal, divested the trial court of jurisdiction to entertain Entergy’s third contempt motion. In support they cite La. C.C.P. art. 2088, which provides that a trial court is divested of jurisdiction over “all matters in the ease reviewable under the appeal.” La. C.C.P. art.2088. They contend that because the trial court’s judgment granting TriStem’s motion for summary judg-merit had the effect of dismissing it from the case, the enforcement of the protective order against TriStem and its president, Mr. Seeber, is a matter reviewable on appeal.

| ^Entergy counters that the appeal involves only the summary judgment. It points out that TriStem and Mr. Seeber never appealed the granting of the protective order. Entergy further points out that although they appealed the trial court’s grant of Entergy first contempt motion, this court affirmed the finding of contempt and remanded only for a clarification regarding the attorney’s fees award. Entergy still further points out that the protective order is still in effect because this litigation is still pending, and TriStem and its president, Mr. Seeber, are still parties to this litigation. Lastly, Entergy contends that the trial court retains the inherent authority to enforce its orders and to punish for contempt of court.

We have construed the phrase “not reviewable on appeal” in Article 2088 to mean that the trial court has continuing jurisdiction over all matters that are “unaffected by the appeal,” even if the matter is not specifically enumerated in Article 2088. State Through Dep’t. of Social Services on Behalf of Harden v. Southern Baptist Hosp., 94-2228, 94-2229 (La.App. 4 Cir. 10/12/95), 663 So.2d 443. Indeed, the preamble to Article 2088 expressly refers to the listing therein of the matters over which the trial court has continuing jurisdiction and which are not reviewable on appeal as “including” the right to take any of those listed actions. “The participle including typically indicates a partial list.” Bryan A. Garner, Black’s Law Dictionary, 111 (8th ed.2004). The listing in Article 2088 thus has been characterized as “illustrative, but not exclusive.” Roger A. Stet-ter, et al., Louisiana Appellate Practice Handbook § 5.2 (1989). This characterization is supported by the existence of other statutory provisions that contain particular reservations of the trial court’s jurisdiction while an appeal is pending.

_JjAlthough there is no express provision in Article 2088 for the trial court to retain jurisdiction over the enforcement of a protective order, we find that this case falls within the scope of a matter not reviewable on appeal. We thus find that the trial court had continuing jurisdiction to entertain Entergy’s third contempt motion. In so finding, we note, as Entergy points out, that a trial court has inherent power to enforce its orders.

(ii) constructive contempt

In our prior decision in this case we summarized the applicable principles regarding contempt as follows:

Contempt of court proceedings in civil cases are governed by La. C.C.P. art. 221, et seq., which define contempt as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” The Code of Civil Procedure provides for two kinds of contempt, direct and constructive. Direct contempt of court is defined in La. C.C.P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” Constructive contempt of court is any contempt other than a direct one, including the “[w]willful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224(2).
A trial court is vested with great discretion to determine whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. art. 224 for willful disobedience of a court order. Lang v. Asten, Inc., 04-1665, p. 12 (La.App. 4 Cir. 3/30/05), 900 So.2d 1031, 1039. Moreover, a trial court must find that the party’s violation was willful in order to hold that party in contempt, meaning that the party must have “ ‘intentionally, knowingly and purposely acted or failed to act.’ ” Id. A court may not hold a party in contempt unless it finds that the party’s reasons . for violating the order were without justifiable excuse. Id.

| ^Entergy, 05-0263 at pp. 4-5, 918 So.2d at 50-51. Characterizing the contempt proceeding in this case as civil in nature, we reasoned that “it is clear that this was a civil contempt proceeding because the object was to- force the appellants’ compliance with the court order and put a stop to [Mr.] Seeber’s conduct in contacting representatives of Entergy in violation of the protective order.” Entergy, 05-0263 at pp. 6, 918 So.2d at 51. We thus found it appropriate to apply a preponderance of the evidence standard in reviewing the trial court’s contempt ruling. We also noted that “[t]he manifest error rule is used when appellate courts are called to review the propriety of civil contempt orders.” Id. We find these same principles apply to the present appeal.

On appeal, TriStem and Mr. Seeber argue that the trial court’s finding of contempt was erroneous because the correspondence on which the finding of contempt is based did not refer to the Joseph case. This argument, however, is belied by Mr. Seeber’s own testimony at the hearing acknowledging that the reference in the October 3, 2006 letter was to the Joseph case. The other correspondence sent on June 23, 2005 was the cover letter that was sent with a copy of the prologue to Mr. Seeber’s book. As noted, the prologue to the book included a discussion of the Joseph ease. The trial court’s factual finding that there was a violation of the protective order as a result of Mr. Seeber sending the June 2005 and October 2006 correspondence, which both refer to the Joseph ease, is not manifestly erroneous.

TriStem and Mr. Seeber further argue that the correspondence at issue was not within the ambit of the protective order because TriStem, as part of its consulting business, is required to communicate regularly with Entergy in serving its clients and negotiating for reimbursement of utility overcharges. They further |9contend that the correspondence at issue was sent solely for the purpose of “TriStem’s business of auditing utility companies.” Again, this argument is belied by the express reference in the correspondence and attachments thereto in the Joseph case.

TriStem and Mr. Seeber still further argue that enforcing the protective order will result in a violation of Mr. Seeber’s First Amendment right to free speech. They contend that Entergy is attempting to prevent them from revealing information set forth in Mr. Seeber’s book to the individuals responsible for overseeing En-tergy’s finances. Entergy counters that the trial court did not preclude Mr. Seeber from publishing his book or making allegations of fraud to anyone other than Enter-gy or its representatives. As Entergy points out, the trial court simply ordered that Mr. Seeber comply with the rule that prohibits communication with a person represented by counsel other than through that person’s counsel. See Rule 4.2 of La. Rules of Professional Conduct. Indeed, this was the basis for the issuance of the protective order.

Finally, TriStem and Mr. Seeber emphasize that when the correspondence at issue was sent TriStem had been dismissed from the suit on summary judgment. Giving the timing of the correspondence, they suggest that the protective order was no longer binding. Entergy counters that TriStem and its president, Mr. Seeber, remain parties to this litigation pending the appeal and that the protective order remains in effect. We agree.

Based on the circumstances of this case, we find no abuse of discretion in the trial court’s finding that under these facts TriS-tem and Mr. Seeber willfully disobeyed the protective order. We thus affirm the trial court’s finding of constructive contempt.

|in (in) attorney’s fees award

TriStem and Mr. Seeber argue that the trial court abused its discretion in ordering them to pay Entergy $1,000 in attorney’s fees in a contempt proceeding. We agree. Attorney fees are generally not recoverable unless expressly provided for by statute or contract. Rivet v. State, 96-0145 (La.9/5/96), 680 So.2d 1154; Huddleston v. Bossier Bank & Trust Co., 475 So.2d 1082 (La.1985). The applicable contempt statute does not provide for attorney fees. La. R.S. 13:4611. Indeed, “[n]o statutory provision provides for the allowance of attorney’s fees in a contempt action.” Reeves v. Thompson, 95-0321, p. 10 (La.App. 4 Cir. 12/11/96), 685 So.2d 575, 580 (citing Kelly v. Terrebonne Parish Police Jury, 449 So.2d 568, 571 (La.App. 1st Cir.1984) and Gwatney v. Miller, 386 So.2d 198, 199 (La.App. 3rd Cir.1980)); see also Maggio v. Robinson, 31,913, pp. 4-5 (La. App. 2 Cir. 5/5/99), 741 So.2d 103, 107. We thus reverse the portion of the trial court judgment awarding $1,000 in attorney’s fees to Entergy.

DECREE

For the foregoing reasons, the judgment of the trial court awarding $1,000 in attorney’s fees to Entergy is reversed. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . The trial court also imposed on TriStem and Mr. Seeber attorney’s fees in the amount of $250.

      . The trial court provided that "upon a future finding by this Court that TriStem and/or Joe Seeber has violated the Protective Order, the portion of this Order requiring Joe Seeber to be incarcerated for 48 hours is reinstated.”

      . Although the trial court’s judgment also orders that TriStem and Mr. Seeber pay Enter-gy the $250 in attorney's fees that was awarded on August 5, 2004 when the protective order was issued plus legal interest from August 5, 2004, no one raises that part of the judgment on appeal. We thus do not address it.

      . La. C.C.P. art.2088 states:
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
      (1) Allow the taking of a deposition, as provided in Article 1433;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;

        (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
      (10) Set and tax costs and expert witness fees.

      . For example, La. C.C.P. art. 2163 provides that a trial court has jurisdiction to try a peremptory exception of prescription that is pleaded for the first time on appeal if the plaintiff so requests. Id. Likewise, La. C.C.P. art.2005 contains a particular reservation of the trial court’s jurisdiction, providing that "[a]n action of nullity does not affect the right to appeal” and that ''[a] judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.” La. C.C.P. art.2005. See Assensoh v. Diamond Nails, 04-1130 (La.App. 4 Cir. 2/16/05), 897 So.2d 806.


author: EDWIN A. LOMBARD, Judge.

text:
    Ammon L. MILLER, Jr. v. Desiree CHARBONNET as Recorder of Mortgages for Orleans Parish and Henderson Condominium Association, Inc.
    No. 2007-CA-0646.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.

      John 0. Pieksen, Jr., John Pieksen & Associates, LLC, Ammon L. Miller, Jr., Law Office of Ammon L. Miller, Jr., New Orleans, LA, for Plaintiff/Appellee.
    T. Gregory Schafer, Schafer & Schafer, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11 This appeal by defendant/appellant Henderson Condominium Association, Inc. (“the condominium association”), is from the trial court judgment granting the petition for a writ of mandamus filed by plaintiff/appellee Ammon L. Miller and ordering Desiree Charbonnet, as recorder of mortgages for the Parish of Orleans, to cancel the lien obtained by the defendants on the plaintiffs property. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

In June 1996, the plaintiff purchased a condominium, Unit 312 at 700 Commerce Street in New Orleans, Louisiana. A dispute arose over payment of association dues between the plaintiff and the association and, in June 2006, without written notice to the plaintiff, the association filed a claim of privilege on the plaintiffs condominium which was recorded on June 28, 2006 in the mortgage records of Orleans Parish. On February 1, 2007, the plaintiff filed a petition for a writ of mandamus, seeking cancellation of the privilege, alleging that it was invalid ^because the defendant association knowingly filed an inaccurate statement of lien, ignored the plaintiffs repeated requests of an accounting and continued dispute of the amount allegedly owed, failed to provide prior notice of the filing of the lien as required by La.Rev.Stat. 9:1123.115, and never afforded the plaintiff an opportunity to formally dispute the amount allegedly due.

After a hearing held on February 16, 2007, the trial judge issued a written judgment signed on March 5, 2007, granting the plaintiffs petition for a writ of mandamus, ordering the recorder of mortgages to cancel the defendant’s statement of lien on the plaintiffs property but deferring the issues of cost and attorney fees pending further proceedings by the defendant. On April 13, 2007, the defendant filed a timely petition for a suspensive appeal which was granted on April 16, 2007.

On May 29, 2007, the plaintiff/appellee filed a motion in this court to dismiss the appeal, arguing that the appeal was not timely filed within the delays provided for in La.Code Civ. Proc. art. 2123. On June 19, 2007, the plaintiffs motion was denied.

Discussion

On appeal, the defendant/appellant argues that the trial judge erred in finding that preservation of the privilege set forth in La.Rev.Stat. 9:1123.115 is dependent upon the condominium association serving upon the delinquent unit owner a sworn detailed statement of its claim at least seven days before the filing into the registry of privilege. However, nothing in the record indicates that the trial judge made | Ssuch a finding. Specifically, no written reasons for judgment were issued and, although the appellant alleges that the trial judge cited its failure to comply with the written notice requirement of La.Rev.Stat. 9:1123.115(A)(3) as the basis for her judgment, there is nothing in the record to support the defendant’s allegation. Thus, the only issue before the court is whether the trial judge was clearly wrong in granting the plaintiffs petition for a writ of mandamus and ordering the recorder of mortgages to cancel the defendant’s statement of lien on the plaintiffs property.

Clearly, Lambert Bros., Inc. v. Ziegler, 361 So.2d 948 (La.App. 4 Cir.1978), the case cited by the defendant as authority, is not persuasive to the issue before the court. In Lambert, the question before the court was “whether the materialman has sufficiently followed the procedure of R.S. 9:4802 so as to preserve the privilege which the law expressly granted.” Lambert, 361 So.2d at 950 (emphasis added). Because the materialman in Lambert served the property owner by certified mail rather than registered mail as required by the statute, the court found in favor of the materialman, reasoning in dicta that the statute did “not purport to make preservation of the privilege depend upon service upon the owner” and, in any event, under La.Rev.Stat. 9:4802 recording the claim “is, apparently, a prerequisite only to the owner’s personal liability [because] § 4806 provides that, if the bond is successfully objected to (but the contract was timely recorded), the owner is personally liable to claimants ‘who Recorded and served their claims as ^provided in R.S. 9:4802 ...’” Lambert Bros., 361 So.2d at 951. Notably, this reasoning has never been cited or adopted by any court.

The statute at issue in this case, the Louisiana Condominium Act of 1974, provides that a condominium association shall have a privilege on a condominium parcel for all unpaid sums assessed by the association but that, at least seven days prior to filing a claim of privilege for registry in the mortgage record office, “[t]he association shall ... serve upon the delinquent unit owner a sworn detailed statement of its claim for the delinquent assessment, which service shall be effected by personal service, or registered or certified mail.” La.Rev.Stat. 9:1123.115(A)(3). The defendant association does not dispute that it failed to comply with this provision, arguing only that an examination of the statute “exhibits” that recordation of the claim is sufficient because the court in Lambert Brothers reasoned in dicta that recordation of a claim suffices to preserve a mate-rialman’s privilege.

First, as previously noted, there is nothing in the record to indicate the specific basis of the trial judge’s judgment. The defendant does not dispute its failure to comply with the provision of the relevant statute which clearly requires service upon a delinquent unit owner of the association’s claim prior to filing a claim of privilege with the recorder of mortgages. Moreover, unlike Lambert where notice had been served by certified mail, the lack of any written notice to the property owner prior to an action that could result in a deprivation of his property rights must raise a due process concern. Accordingly, under the circumstances of |Rthis case, we find no error in the trial court judgment granting the plaintiffs petition for a writ of mandamus.

Finally, the plaintiff/appellee contends in his brief that this appeal is moot because the defendant filed a second lien in the mortgage records on March 26, 2007, after the trial court issued the writ canceling the first lien but before this appeal was filed. A review of the record indicates that the plaintiff made reference to the filing of the second lien but did not raise it as an issue in his motion to dismiss the appeal which was denied by this court. Moreover, although a copy of the second lien is attached to the plaintiffs brief, it is not a part of the record on appeal and, accordingly, the issue is not properly before this court.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . “Privilege is a right, which the nature of the debt gives to the creditor, and which entitles him to be preferred before other creditors, even those who have mortgages.” La.Civ. Code art. 3186.


text:
    STATE of Louisiana v. Brian K. BOYD.
    No. 2007-KA-0534.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.
    Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Mary Constance Hanes, Louisiana Appellate Project New Orleans, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe defendant/appellant, Brian K. Boyd, challenges his conviction for armed robbery. After review of the record in light of the applicable law and arguments of the parties, the defendant’s conviction is affirmed.

Procedural History

In December 2005, the defendant was charged by bill of information with armed robbery, a violation of La.Rev.Stat. 14:64. On January 18, 2006, he pleaded not guilty. The trial court found probable cause to support the charge after a preliminary hearing on February 3, 2006, and, after a subsequent hearing on October 16, 2006, the trial court denied the defendant’s motion to suppress the identification as to both victims.

The defendant’s first trial ended with a hung jury on October 18, 2006. On November 30, 2006, at the end of the defendant’s second trial, the jury found the defendant guilty as charged. A multiple bill hearing was set for January 5, 2007, but was continued on the State’s motion. On January 26, 2007 the State failed to produce the evidence necessary to go forward with the multiple bill hearing and the [gtrial court sentenced the defendant to thirty years at hard labor without benefit of probation, parole, or suspension of sentence.

The defendant filed a timely appeal, challenging the sufficiency of the evidence underlying his conviction for armed robbery.

Law and Discussion

In his sole assignment of error, the defendant contends that the evidence is insufficient to support his conviction for armed robbery because the State failed to negate any reasonable probability of mis-identification. The defendant asserts that the identification was unreliable because (1) there is no physical evidence linking him to the crime; (2) the victims and witness were told by police officers that he had been arrested for the crime before having them identify him sitting in the back seat of a police vehicle; and (3) one of the witnesses (Mr. Campagna) identified him at the second trial after failing to identify him at his first trial.

To convict a defendant of armed robbery, the State must prove beyond a reasonable doubt that defendant took something of value belonging to another from the person of another or that was in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon. La.Rev.Stat. 14:64

We review the sufficiency of the evidence to support a conviction under the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). Accordingly, the court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984). The determination of the weight of evidence is a question of fact which rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of |aany witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. Thus, it is not the function of an appellate court to assess credibility or re-weigh the evidence and we may only impinge on the factfinding function of the jury to the extent necessary under Jackson. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. Finally, we review the reliability of an identification in accordance with the factors set out Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977):(1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. State v. Stewart, 2004-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639.

The following evidence was adduced at trial. In the early morning hours of August, 6, 2005, three police officers (Officers David Gaines, Patrick Schneider and Dwayne Breaux) were patrolling Governor Nicholls Street on horseback when, as they neared the Bourbon Street intersection, they saw a man run past them. Less than 30 seconds later, the three police officers were flagged down by three pedestrians (John Bozant, Ronald Campagna, and Michael Hatchett) who informed them that a robbery had just occurred and that the perpetrator, a white male wearing shorts and a blue shirt, ran down Governor Nic-holls Street. Officers Schneider and Breaux immediately turned around in pursuit of the man who had just run past them. Officer Gaines paused briefly to discover if anyone needed medical attention and. to call the dispatch office of the New Orleans Police Department (NOPD) of the incident before joining the pursuit. The defendant, now pursued by the officers, ran down Governor Nicholls, turned right on Dauphine for one block, and then turned left onto Barracks Street where the | ¿officers subsequently found him hiding underneath a Nissan Xterra in the 900 block of Barracks Street. Because the defendant refused to comply with Officer Schneider’s orders to come out from underneath the vehicle, the officers dismounted and physically removed him as he resisted. Nothing about the defendant’s appearance or odor indicated that he was intoxicated.

Shortly thereafter, the two robbery victims (Mr. Bozant and Mr. Campagna) and the witness (Mr. Hatchett) to the robbery arrived and positively identified the defendant as the man who had just committed battery and armed robbery. In addition, Officer Schneider found a broken green bottleneck near the front right wheel of the Nissan Xterra, which matched the col- or and texture of five pieces of broken glass recovered in the 1100 block of Bourbon Street. The wallet seized from the victims, containing approximately $15.00, was not found on the defendant nor recovered in a brief (10 to 15 minute) search of the two and one-half block area between the robbery site and arrest site.

The two victims (Mr. Bozant and Mr. Campagna), the witness (Mr. Hatchett), and two of the police officers (Officers Gaines and Schneider) testified at the trial. Officer Gaines identified the defendant in court, stating that he got a full view of the man running down Governor Nicholls but conceding that, because of parked cars obstructing his view, he did not see the defendant’s hands and, therefore, did not see a bottleneck in the defendant’s hands or stop him as he ran down the street. He did not recall seeing any other people were on the street. When questioned whether the defendant could have been asleep under the car when the officers ordered him to come out, Officer Gaines testified that defendant appeared to be awake as he resisted the officers, who were pulling him out. 1 sAccording to Officer Gaines, the defendant told the officers that he did not know what they were talking about. The officer explained that the defendant’s clothing, which normally would have been collected from the sheriff to be put into the property room as evidence in this case, was not immediately collected from the sheriffs office and therefore was lost in the aftermath of Hurricane Katrina which came through New Orleans less than two weeks after the robbery.

Officer Gaines testified that, after the defendant was secured, he headed back to the crime scene and met the victims and witness who were walking toward the arrest location. He told them that there had been an arrest and escorted them to the arrest location. Officer Gaines stated that he took the defendant out of the police car and asked the three men if they recognized the defendant from the incident. In response to defense counsel questioning, Officer Gaines conceded that this information was not in the police report and that he did not “recall everything I testified to before [but] I recall the incident and I believe I got him out of the car so they could view him for identification.” According to Officer Gaines, the two victims and the witness were about twenty feet from the defendant when they made their identifications. When shown the defendant’s black and white booking photograph by defense counsel, Officer Gaines conceded that it appeared that there was some white in the blue shirt and that, as indicated by the scabs on the defendant’s forehead and cheek, force was used to pull the defendant from underneath the vehicle.

Further, Officer Gaines recalled that Mr. Bozant told him that he fell backward on top of the perpetrator, and both of them fell onto the ground. | (¡Although that area was his usual area to patrol, the officer stated that he had never seen anyone sleeping underneath a car and that homeless people sleep on sidewalks, in doorways, and in parks. When asked if the person he saw running was the same person he pulled from under the vehicle, Officer Gaines answered: “Same person, no doubt.” On recross-examination, however, the officer admitted that he personally lost sight of the person running on Governor Nicholls Street.

Mr. Bozant, a retired podiatrist, testified that in the early morning hours of August 6, 2005 he and his friend, Mr. Campagna, were walking along Bourbon Street heading east toward the Faubourg Marigny. There were not many people around, but he noticed a couple walking on the other side of the street in the opposite direction. Between Ursuline and Governor Nicholls, Mr. Bozant turned and noticed a man walking behind him. Moments later he was attacked. The man broke something or created some noise behind Mr. Bozant. Then the perpetrator’s right arm came over Mr. Bozant’s shoulder and grabbed him around his neck. Mr. Bozant said he knew the perpetrator had a weapon in his left hand. The perpetrator then told Mr. Campagna to give him everything or he would kill Mr. Bozant. In order to protect his neck (he had serious spine problems there), Mr. Bozant tilted backward, and the two men fell backward. Mr. Bozant fell on top of the attacker. During the commotion Mr. Bozant used his right hand to block the weapon at the left side of his neck, and his hand was cut by a broken beer bottle. Meanwhile Mr. Campagna had tried to hand or throw his wallet to the perpetrator who was getting out from under Mr. Bozant. The perpetrator picked up the wallet as Mr. Bozant was getting up, ran across the street diagonally to the intersection and turned left on Governor Nicholls. When asked about the moments before the attack when he saw the attacker, Mr. Bozant said: “At the moment that I looked he was crossing |7the street and stepping up onto the curb that we had just passed. And there was either a street lamp or a light from a building in a doorway enough to illuminate his face.” Mr. Bozant stated that the perpetrator was a white man with a receding hairline and thin combed back black hair and that he was wearing shorts and a button shirt. Mr. Bozant explained that he was in “close intimate contact” with the perpetrator. Mr. Bozant said: “I had a very good view of the profile of his face. It clearly matched the view I had from a distance for moments prior to the attack.” He said he then became aware of a witness walking toward him from the opposite direction and a pair of mounted police. He described the attack and the attacker and pointed in the direction the man had run. Mr. Bozant stated that he saw his attacker again when he walked about three blocks to “the dog park” between Governor Nic-holls and Barracks where there was police activity. At some point, one of the officers asked Mr. Bozant to survey the scene and see if he could pick out the attacker. Mr. Bozant said that he picked out the defendant, who was seated in the back seat of an unmarked car. Mr. Bozant stated: “And it was very clearly the same man.” He “was absolutely certain.” Very little time had transpired. The mounted officers were there within minutes of the attack, and he and Mr. Campagna walked only about three blocks before they found the police activity. An officer showed him the weapon, and he knew it was the same weapon. He identified the broken neck of a green beer bottle, and he identified the defendant as his attacker. Mr. Bozant stated that he was “absolutely certain.”

On cross-examination Mr. Bozant said that the attacker may have hurt his head as they fell backward. He had previously testified that the attacker ran with a limp after the fall. When asked about a goatee, Mr. Bozant indicated that the defendant had a goatee at the last hearing, but he did not recall a goatee at the time |sof the attack. He recalled telling someone that the attacker was wearing a button shirt, but he was not sure that it was Officer Gaines. He confirmed that he identified the defendant when the defendant was sitting in the back seat of a car. He said that he did not recall the color of the perpetrator’s eyes or his shoes. Mr. Bo-zant did not recall saying that the attacker’s shirt was blue; he thought it was a button shirt with some type of design. He noted that the only blood was from the cut on his hand, and he did not recall any blood on his neck.

Mr. Hatchett, a bartender at the Cajun Pub, testified that on the night of the robbery he was walking on Governor Nic-holls and nearing Bourbon Street when a man ran around the corner and down Governor Nicholls. He could hear people screaming as he approached the corner. When asked if he got a good look at the man, Mr. Hatchett stated: “I saw the back of him. I saw the clothes he was wearing. I did not get a look at his face at all.” Mr. Hatchett said the man was of average height and average build with dark hair. He could not recall the clothes the attacker was wearing; it had been too long since the event. Mr. Hatchett said that when he turned the corner onto Bourbon, there were two men who told him they had been mugged. As he was about to call the police, two mounted officers rode up. He and the two victims gave the officers a description, and the officers rode off to pursue the attacker.

Officer Patrick Schneider testified that he was patrolling on horseback oh Governor Nicholls heading toward Bourbon Street. A subject ran by the officers on the sidewalk; he was running very fast. Although that seemed suspicious Officer Schneider stated that he had no reason to chase the man. Officer Gaines, who was riding a little ahead of him, was talking to three males who were saying that they had just been robbed. Officer Schneider turned and pursued the man he |9had just seen running down Governor Nicholls. The subject took a right at Dauphine and the officers briefly lost sight of him but some people on the street pointed to Barracks Street, and the officers turned left there. They did not see the subject, but certain that he could not have outrun the horses and therefore must be hiding somewhere, the officers searched for him. After approximately ten or fifteen minutes, the officers located the defendant hiding underneath a vehicle in the middle of the block on Barracks Street. After the defendant failed to comply with the order to come out from under the vehicle, Officer Schneider dismounted and pulled him out, handling the man cautiously because a broken bottle had been involved in the robbery. When asked if the officer recognized the subject when he emerged from underneath the vehicle as the man being pursued, Officer Schneider answered: “Yes.” He clarified: “The same outfit that he had on, it just happened, so, it was the same outfit and the same guy I saw running on the sidewalk. That was him.”

After handcuffing the defendant, Officer Schneider and the other officers searched for the victim’s wallet which was not found on the defendant’s person. Officer Schneider said he looked underneath the vehicle and “found just this one piece of a bottleneck near the tire hiding on the inside underneath the vehicle.” Later, the officers went back to the 1100 block of Bourbon Street where Officer Breaux retrieved pieces of the same bottle, “same texture, green bottle, everything.” Officer Schneider could not recall whether the defendant appeared intoxicated. Officer Schneider explained that it is difficult to get crime lab technicians out to a crime scene and, in any event, the officers knew they had the right guy because he ran past them and then they found him hiding. He identified the defendant in court.

|1flOn cross-examination Officer Schneider admitted that the running subject was almost a block ahead. When he reached the corner of Dauphine and Barracks, a bystander helped and showed the way. He said that he could not see the defendant’s hand because cars were parked along the street. He admitted further that from a block away he could not see clothing details. However, Officer Schneider stated that he saw what the perpetrator was wearing when he ran past them He said: “He was just clad in blue. I just saw — it was almost like a blue shadow running past you.” The officer admitted testifying before in the case, and he admitted that he described the clothing as a blue shirt. Officer Schneider stated that the defendant said nothing when he emerged from--under the vehicle. When questioned about not having the crime lab match the bottleneck and the pieces of green glass, the officer stated that the block on Barracks is not a tourist area, and there was no broken glass around. He admitted that he did not use gloves to pick up the broken bottle.' He felt that this case did not warrant the crime lab because the officers retrieved the broken bottleneck -from underneath the vehicle where the defendant was hiding and the pieces of glass from the crime scene. He did not recall whether the defendant was sweating or short of breath from running. On redirect examination Officer Schneider was asked if he had any doubt that the man under the car was the same man who ran past him fifteens minutes before, and he answered: “No doubt whatsoever, no.”

Mr. Campagna, a retail manager, testified that he and Mr. Bozant were walking on Bourbon Street heading toward Mr. Bozant’s place in the Marigny. He looked over his shoulder and saw a man walking behind him. A few minutes later he heard a glass bottle break and then saw the defendant holding the glass bottle to Mr. Bozant’s neck and threatening to kill him unless Mr. Campagna gave him | neverything. Mr. Bozant fell backward and both men tumbled to the ground. Mr. Campagna stated that he tried to hand the wallet to the attacker, but it dropped to the ground. He stated that the street lighting was good and that he saw the attacker’s face. He saw the robber pick up the wallet, head east on Bourbon Street for half a block, and then head north. Mr. Campagna stated that Mr. Bozant had a cut on the back of his right hand. He described the weapon as “the broken off top of a green beer bottle.” There was no indication that the attacker was intoxicated. Once the attacker ran away, Mr. Campagna said he helped Mr. Bozant up and looked for a wound because there was a good amount of blood. He vaguely recalled police officers coming from the intersection. He remembered that Mr. Hatchett came from around the corner, and he gave the officers a description of the robber. According to Mr. Campagna, the attacker was wearing a “blue button up shirt, blue shorts.” A few minutes later, one of the officers made' his way back toward the crime scene and asked the three men to accompany him to the place where the attacker had been found.

Mr. Campagna said the three men were asked to give statements and then to take a look at the person who had been apprehended. He said: “And at the time I was sure beyond doubt that that — that the two people that we’re speaking of were the same person. The person who attacked me was the same person who the police had in custody.” The robber was apprehended about three blocks from the crime scene. When shown the black and white booking photo of the defendant, Mr. Cam-pagna said that was the attacker. He stated that he had never seen that photo before. He also identified the defendant in the courtroom. He explained that the man in the courtroom did not look as he did on the night of the robbery. Mr. Campagna said: “Well, I remember him being heavier, which is evident in the | ^picture I was just shown. There was very little facial hair.... I think I said there might have been a five o’clock shadow, more or less, maybe one or two days growth. And I believe he had a lot more hair at the time.”

On cross-examination Mr. Campagna was asked if he had been asked in court previously to identify the defendant. Mr. Campagna asked whether counsel was referring to the first trial or the hearing on the motion to suppress the identification. Counsel responded that he was referring to the first time and said: “You were asked, right? You weren’t asked at trial. You were asked at the Motion to Suppress, right?” After a bench conference defense counsel asked if Mr. Campagna had failed to make an identification in the courtroom. Mr. Campagna admitted that he had not identified the defendant at that hearing. Counsel noted that Mr. Campagna had said the facial hair on the defendant had caused his inability to identify the robber. Mr. Campagna conceded that the defendant had a goatee in the booking photo, but he said there were only a couple days of growth of hair. When asked if the defendant had a goatee the last time Mr. Campagna saw him, the witness answered affirmatively, but qualified that it was “significantly more” growth. Mr. Campagna stated: “Enough certainly to change the physical appearance to false recognition, especially after not seeing him for fourteen months.” He thought he had told the police officers about the facial hair. He claimed that he told police officers that he had a few dollars in the wallet, not fifteen dollars.

On redirect examination Mr. Campagna again stated that he was “absolutely certain” when he identified the defendant twenty minutes after the attack. On recross-examination he admitted that he had never given this explanation before. He explained that he felt more comfortable on the stand. On redirect examination |1sMr. Campagna answered affirmatively when asked if he always answered honestly.

Officer Gaines was recalled to the stand by defense counsel to state that he wrote the police report and to identify the report. Officer Gaines did not recall information from Mr. Bozant and Mr. Campagna relating to the perpetrator’s facial hair. He did not recall a description that the shirt was button up, and although he did not ask the victims to identify the broken bottle, another officer may have asked them to identify it. Officer Gaines noted that the description section of the report noted a blue button shirt but on redirect conceded that the report was written after the defendant had been apprehended and that the information about white tennis shoes came from his observation of the attacker.

The defendant concedes that an armed robbery occurred, but claims that he was not involved, arguing on appeal that the jurors should have had a reasonable doubt that he committed the armed robbery because Mr. Campagna and Mr. Bozant saw the attacker only briefly at night during a struggle, Mr. Campagna had been was unable to identify him at his first trial (which ended in a hung jury), Mr. Hatchett had only seen him primarily from the back, the police officers lost sight of the assailant during the chase, and Mr. Hatchett, Mr. Bozant, and Mr. Campagna identified him fifteen minutes after the robbery after he had been handcuffed and placed in the back seat of a car for the show-up. The defendant also points to the lack of physical evidence tying him to the crime (Mr. Campagna’s wallet was never found) and the fact that the beer bottle found under the vehicle and the pieces of glass from the 1100 block of Bourbon Street were never tested for blood or fingerprints.

| ^Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all of the essential elements of the crime of armed robbery were proven beyond a reasonable doubt and that the State negated any reasonable probability of misidentification. Mr. Bozant testified that a man broke a beer bottle behind him as he walked on the sidewalk and placed it at his neck threatening to kill him if Mr. Cam-pagna did not turn over everything he had. Mr. Campagna testified that he handed over his wallet, and the attacker ran down Bourbon Street onto Governor Nicholls. Thus, the State proved beyond a reasonable doubt the elements of the crime of armed robbery. Officers Gaines and Schneider, the mounted officers, testified that the robber ran past them as they were patrolling on horseback. Within minutes Officer Schneider was in pursuit, and Officer Gaines followed. Although he lost sight of the running assailant at one point and eventually had to search for the hiding suspect, Officer Schneider testified that the man he pulled from underneath the Nissan Xterra was the man who had run past him on Governor Nicholls Street. Both officers stated that they clearly saw the defendant as he ran past them, and they identified the defendant in court. Mr. Bozant, who was attacked from behind, stated that he saw the assailant under a streetlight moments before the attack. Mr. Bozant said he was also very close to the attacker’s face as they fell backward. Mr. Bozant identified the defendant about fifteen minutes after the robbery in a show-up after the officers apprehended the robber. Although the defendant was seated in the back seat of a car at the time, Mr. Bozant was absolutely certain the defendant was the man who had attacked him. He also identified the defendant in court at the pretrial hearing and at trial. Mr. Campagna testified that he saw the armed robber’s face as the assailant held the broken bottle to Mr. Bozant’s neck. He identified the defendant 115at the show-up fifteen minutes after the robbery and was absolutely certain of that identification. At the motion to suppress hearing which was held over a year after the robbery, Mr. Campagna was not able to identify the defendant. He explained at the trial, however, that the defendant was much heavier with very little facial hair at the time of the crime but at the hearing was thinner and had a goatee with a lot of facial hair. At trial, Mr. Campagna identified the defendant’s booking photo because the photo looked like the robber without the physical changes. He also identified the defendant at trial.

Accordingly, the jurors heard that the robbery happened very quickly at night, but that Mr. Bozant saw the defendant before the attack. They heard that Mr. Campagna was looking at the assailant as he held Mr. Bozant. They were told that Mr. Campagna did not identify the defendant at the motion to suppress hearing, but also heard his explanation. The jurors heard Mr. Hatchett’s testimony that he saw the perpetrator running past him. Mr. Bozant, Mr. Campagna, and Mr. Hatchett identified the defendant right after the crime in a show-up and at trial. The jurors were aware that the officers lost sight of the robber for a time, but they also heard the officers testify that they saw the robber as he ran past them. Officers Gaines and Schneider testified that they were sure that the defendant was the man who ran past them on Governor Nic-holls.

Conclusion

For the foregoing reasons, the defendant’s argument on appeal is without merit. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact-could have found all of the essential elements of the crime of armed robbery were proven beyond a reasonable doubt and that the State negated |1fiany reasonable probability of misidentifieation. Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The pieces of glass and bottleneck, which were not tested for fingerprints, were introduced into evidence.

      . On. redirect examination, however, Officer Gaines stated that the discoloration on the cheek and forehead could have been bruises or grease marks.