text:
    STATE of Louisiana, Appellee v. Mondrell Laron WILSON, Appellant.
    No. 42,440-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Mondrell Laron Wilson, Pro Se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Dhn Thompson, William J. Edwards, Assistant District Attorney, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ^his criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Mondrell Lar-on Wilson, was convicted of second degree murder and attempted second degree murder. He was sentenced to life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence for the second degree murder conviction and 18 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence for the attempted second degree murder conviction. The trial court ordered the two sentences to run concurrently with credit for time served. Wilson now appeals, and, for the following reasons, we affirm his convictions and sentences.

Facts

In the early morning hours of March 25, 2005, Shamichael Milton was shot and killed while driving his vehicle south on Interstate 49 in Shreveport, Louisiana. His passenger, Gavilin Fields, also suffered several gunshot wounds causing serious bodily injuries, among them the loss of his right eye. Wilson, a paraplegic confined to a wheelchair, was arrested as the suspected shooter and originally indicted by a grand jury for the first degree murder of Milton. Subsequently, the indictment was amended to charge Wilson with one count of second degree murder and one count of attempted second degree murder. Following his trial, the jury returned verdicts of guilty as charged of second degree murder and of attempted second degree murder. Wilson filed a motion for post-verdict judgment of acquittal which was denied. The trial court then imposed the mandatory sentence of life imprisonment at hard labor without the benefit of probation, parole or [ ^suspension of sentence on the second degree murder conviction. On the conviction for attempted second degree murder, Wilson was sentenced to 18 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. His sentences were ordered to run concurrently, and Wilson was given credit for time served. This appeal by Wilson ensued.

Discussion

On appeal, Wilson submits only one assignment of error, arguing that the evidence presented at his trial was insufficient to establish that he had the specific intent to kill or cause serious bodily injury necessary to support the convictions for second degree murder and attempted second degree murder. In support of this argument, Wilson references his own testimony that he was in fear of his life and only intended to fire shots at the victims’ tires and Cleo Bohannon’s testimony that the victims were making threatening gestures and swerving towards Wilson’s vehicle on the interstate. Wilson argues that his actions were in self-defense and the trial court erred in determining otherwise. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 336,137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, 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. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. 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. A 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, 36,188 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 1998-2723 (La,02/05/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the ^witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Mosby, 42,519 (La.App.2d Cir.05/18/07), 956 So.2d 843. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35.

Second degree murder may be defined as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). In order to prove second degree murder-under this theory, the state must prove the killing and that the defendant had specific intent to kill or inflict great bodily harm. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d Cir.04/05/02), 813 So.2d 1262, writ denied, 2002-1564 (La.05/09/03), 843 So.2d 389.

[.¡Specific intent is a state of mind and need not be proved as a fact; it may be interred from the circumstances of the transaction and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R,S. 14:27; 14:30.1.

Here, Wilson argues that he lacked the requisite specific intent to kill, because his actions were taken in self-defense. However, self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.03/30/94), 634 So.2d 937.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was |¿not perpetrated in self-defense. State ex rel. D.P.B., 2002-1742 (La.05/20/03), 846 So.2d 753; State v. Gaddis, 36,661 (La.App. 2d Cir.03/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.05/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005). When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

It is undisputed that on the morning in question, Milton and Fields’ vehicle was fired upon by Wilson at least 16 times as he passed it in his pick-up. Wilson testified at trial and admitted to shooting at the vehicle driven by Milton. It is also undisputed that Milton was killed and that Fields was. seriously injured (he lost his right eye) by several of those gunshots.

In support of the specific intent element, the state offered the testimony of Cleo Bohannon, a female friend who was with Wilson prior to and during the shooting of the victims. Bohannon testified that: Wilson had been agitated about a disagreement he had been having with the victims’ 17relative just prior to the shooting; he had pointed out the victims in a nightclub parking lot just prior to the shooting; and, he had followed the victims after they had left the nightclub parking lot. Notably, as regarding the attempted second degree charge, “searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.” La. R.S. 14:27 B(l).

Fields, who survived the shooting, testified that when he looked out the window upon hearing the gunfire he saw Wilson looking, in his direction while shooting a handgun. This testimony was in direct contradiction to Wilson’s testimony that he was not looking where he was shooting. Notably, 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.11/25/96), 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.

Wilson’s actions after the shooting also support the jury’s determination that the shooting of the two victims was not accidental, as he claimed. According to Bohannon, Wilson tried to conceal evidence of the shooting by disposing of the shell casings in his truck and by having her hide the handgun in her apartment. Further, by Wilson’s own admission, he fled Shreveport shortly after the shooting and spent two days in Dallas, Texas. When he' did return' ■ from Dallas and. turned himself in to law enforcement, he denied any involvement in the shooting. Flight and attempt | ato avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience.' State v. Durden, 36,842 (La.App.2d Cir.04/09/03), 842 So.2d 1244, writ denied, 2003-1350 (La.11/26/03), 860 So.2d 1131. Clearly, the jury was presented sufficient evidence indicating that Wilson had the specific intent necessary to kill his victims.

We also conclude that the jury did not err in disbelieving Wilson’s claim of self-defense. The jury was presented- with Wilson’s version of the events — i.e., that he was in fear of his life- due to the fact that the victims’ vehicle was swerving into the path of his truck just prior to the shooting. He also testified that he only intended to shoot the victims’ tires but missed because he had to keep his eyes on the road. However, that testimony was directly contradicted by Fields who testified that he saw Wilson looking at the victims as he fired the gun. The jury was within its province to believe Fields and reject Wilson. Moreover, the physical evidence also showed that two of the shots hit the front windshield, suggesting that Wilson not only shot at the vehicle as he drove by it, but he also shot after he had already passed the victims’ vehicle. This required the very intentional act of Wilson aiming backwards out of the driver’s side window — seemingly not a defensive tactic. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness and where there was conflicting testimony about factual matters, the matter was one of the weight of the evidence, not its sufficiency. This jury was not in error in rejecting Wilson’s claim of self-defense and concluding he had .possessed the requisite specific intent- to kill.

| gWe note that overcoming Wilson’s sufficiency argument on the attempted second degree murder conviction requires a finding that the evidence was sufficient to establish that he had a specific intent to kill Fields, not just to inflict great bodily harm. See State v. Huizar, supra. Deliberately pointing and firing a deadly weapon at close range are circumstances which support a finding of specific intent to kill. State v. Brown, 2003-0897 (La.04/12/05), 907 -So.2d 1. So considering, we conclude that the evidence was sufficient to support the conviction for attempted second degree murder. The guilty verdicts returned herein clearly indicated the jury accepted the testimony of the state’s witnesses and rejected Wilson’s claims. On appeal, this court should not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. Here, the evidence reflected by the record was clearly sufficient to support the jury’s.finding that Wilson had the specific intent to kill or inflict great bodily harm to the victims. Accordingly, this assignment is without merit.

ConclusioN

For the foregoing reasons, Mondrell Laron Wilson’s convictions and sentences are affirmed.

AFFIRMED.

      . Because Wilson, a paraplegic, admits to shooting at the victims’ vehicle, it is actually unnecessary to explain and discuss in great detail how he was able to shoot out of his truck’s window into the victim's vehicle while keeping pace with and surpassing that vehicle. However, due to the testimony by various witnesses that Wilson accelerated and stopped his vehicle by use of a handheld cane with a shoe duct-taped to one end, a reasonable question is presented as to how he could shoot, accelerate and steer all at the same time. To answer this question, the state presented the testimony of a GMC truck salesman, who testified that available on the 2004 GMC Canyon truck was a cruise control feature which allowed the driver to set the speed of the vehicle — freeing the driver from having to press on the accelerator. He also testified that once the cruise control was set, the driver could use the hand controls to further accelerate the vehicle. A Shreveport police detective who examined Wilson’s truck testified that his truck was in fact equipped with the aforementioned cruise control feature.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Dorothy RIDDLE, Plaintiff-Appellant v. Gaylon D. SIMMONS, Defendant-Appellee.
    No. 42,501-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.
    See also 922 So.2d 1267.

      Sentell Law Firm, L.L.C., by C. Sher-burne Sentell, Jr., C. Sherburne Sentell, III, Minden, for Appellant.
    Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., by Ewell E. “Tim” Eagan, Jr., Donna Phillips Currault, New Orleans, for Appellee, Gaylon D. Simmons.
    Usry, Weeks ■ & Matthews, by John F. Weeks, II, New Orleans, for Appellee, Lincoln Parish Sheriff, Mike Stone.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

| tThis appeal concerns the commission a sheriff is entitled to charge and who must pay it when the judgment debtor paid the judgment in full shortly after he was served notice of the writ of fieri facias (hereinafter “fifa”)and thereby eliminated the need for a sheriffs sale. In this case, the trial court held that the sheriff was entitled by statute to collect $67,618.40 from the judgment creditor, Dorothy Riddle, that sum being 3% of the pay-off of the $2.3 million judgment including interest. Riddle appeals this ruling, contending that the amount of the commission is unconscionable arid should be reduced. She also contends that the judgment debtor, Gaylon D. Simmons, should pay the sheriffs commission arid fees since it was his failure to promptly pay the judgment that precipitated the need to obtain a writ of fifa. For the following reasons, we affirm.

Facts

The plaintiff, Dorothy Riddle, obtained a judgment from this court for the following two sums: $130,998.00, with judicial interest from May 1, 2003, and $707,625.00 with judicial interest from September 25, 1983. Riddle v. Simmons, 40,000 (La.App. 2 Cir. 2/16/06), 922 So.2d 1267, writ denied, 2006-0793 (La.6/2/06), 929 So.2d 1259. Riddle, as the judgment creditor, filed judicial mortgages in several parishes including Lincoln Parish, where Simmons resided. Simmons did not immediately pay the judgment. Two months later, on August 9, 2006, Riddle filed an action in Lincoln Parish to make the judgment executory.

On September 18, 2006, she filed a motion for a writ of fifa and obtained an order issuing the writ which authorized Lincoln Parish Sheriff RMike Stone to seize certain immovable property in Lincoln Parish for sheriffs sale, with benefit of appraisal. The property consisted of six lots, which included the defendant’s home, four rent houses and a vacant lot.

According to the sheriffs ledger in the record, notices to appoint. an appraiser were served on the defendant, and notices of seizure were posted at the property locations on October 3, 2006. The sale was scheduled for November 29, 2006 (See Exhibit A); however, before the sheriffs sale was advertised, the defendant paid off the judgment plus $1,880.00 in court costs that included a $1,200.00 deposit paid by plaintiff against costs incurred in the (writ) proceeding plus approximately $680.00 in costs advanced to the clerk’s office. The pay-off of the judgment ultimately amounted to $2,306,052.9o.

After receiving the money, on October 10, 2006, Riddle executed an affidavit styled “Affidavit, Request for Cancellation and Satisfaction of Judgment.” Paragraph 2 of the affidavit reads:

2. I hereby acknowledge that I have received the sum of received [sic ] TWO MILLION THREE . HUNDRED EIGHT THOUSAND FOUR HUNDRED NINETY-EIGHT AND 12/100 ($2,308,498.12) Dollars from Defendant Gaylon D., Simmons, and accept such in full payment of principal, interest, costs, attorney fees, and otherwise in full satisfaction of that certain Judgment, dated June 30, 2004, and Judgment on New Trial, dated September 8, 2004, issued in the captioned matter and which Judgment was reversed in part and affirmed in part, as amended in Riddle v. Simmons et al, No. 40,000 (La.Ct.App.2d Cir.2/16/06), 922 So.2d 1267, rehearing denied, (La.Ct.App.2d Cir.3/9/06), 922 So.2d 1267, writ denied, 929 So.2d 1259-60, 2006-0793 (La.6/2/06), as reflected in that certain Condensed Judgment, dated June 19, 2006 (hereinafter, the “Judgment”), and do hereby declare that said Judgment is | .EXTINGUISHED, PAID AND SATISFIED IN FULL. Accordingly, I hereby consent and move this Court to mark the docket of this matter “EXTINGUISHED, PAID AND SATISFIED IN FULL.” (Emphasis in original)

After the judgment was paid and the Satisfaction of Judgment above was executed, the sheriff contacted the appellant about his commission on the pay-off. There was some discussion between the sheriff and Riddle’s counsel and Riddle’s counsel requested the sheriff to reduce his 3% commission. The sheriff subsequently submitted to counsel a bill for his commission for $34,200.00, which was approximately 1.5% of the pay-off or 50% of the statutory rate, which is 3%, plus $374.40 in additional costs.

Riddle refused to pay the reduced commission; instead, she filed a motion to fix the sheriffs fee, complaining that the sheriffs $34,574.40 fees, commission and charges were excessive and unreasonable. She asked the court to intervene and reduce the commission. ' She included with her motion a rule to show cause why these costs should not be taxed as costs and paid by the defendant pursuant to La. R.S. 33:1428(C), which permits the trial court to tax as costs the sheriffs fees or commissions pursuant to Code of Civil Procedure Article 1920.

The sheriff filed a cross-motion for payment of the fees and costs, including the full 3% commission (approximately $68,400.00 plus costs), but less the $1,200.00 paid in advance, which came to a total of $67,618.40.

After a hearing on December 14, 2006, the court took the matter under advisement. It subsequently issued an oral ruling on January 23, 2007, dismissing Riddle’s motion and granting the sheriffs cross-motion. The court held that the judgment creditor and not the judgment debtor, is pliable for the sheriffs fee or commission in this case. The court rendered judgment in favor of the sheriff for $67,618.40 against Riddle.

Plaintiff filed the instant appeal alleging nine assignments of error which can be summarized as follows:

(1) The trial court erred in holding the judgment creditor responsible for the sheriffs commission although the sheriff only served the seizure notices and the sale did not take place.
(2) The sheriff did not present evidence that he “possessed” or served the fífa.
(3) The court abused its discretion in failing to reduce the sheriffs fee.
(4) The court erred in finding that the judgment creditor was responsible for the sheriffs fees since the judgment debtor’s failure to promptly pay precipitated the seizure.
(5) The court failed to recognize conflicting provisions in the statute and that the fee schedules were not fixed, but simply a maximum allowable charge.
(6) The court erred in construing the Affidavit and Satisfaction of Judgment document to work as a release of liability of the Judgment Debtor for all liability for the judgment.
(7) The court erred by allowing the sheriff to double the $34,574.40 bill he originally sent to the judgment debtor.
(8) The court erred in finding that the bill for $34,574.40 originally sent by the sheriff was an offer to compromise that the judgment debtor rejected. Appellant contends that this finding is based on facts not in the record.
(9) The trial court failed to properly apply the law.

Sheriff Stone and Simmons have each filed briefs defending the judgment.

| ^Discussion

The issues raised by plaintiffs assignments of error essentially focus on (1) who is responsible for payment of the sheriffs fees or commission (Assignments 4 and 6); (2) whether a court has the authority to intervene and reduce the statutorily authorized commission rate charged by a sheriff (Assignments 3 and 5); (3) when does the right to collect the commission attach (Assignments 1 and 2); and, (4) how much can the sheriff charge as commission in this case (Assignments 7 and 8).

Who Pays the Sheriff’s Commission?

Counsel for Riddle contends that Simmons, the judgment debtor, should be required to pay the sheriffs commission, and the trial court erred in finding that by executing the “Satisfaction of Judgment,” Riddle could not subsequently move the court to tax the sheriffs commission as costs against Simmons. The following statutes are relevant to these issues.

Louisiana Code of Civil Procedure Article 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party as it may consider equitable.

Louisiana Revised Statutes 13:4533 provides:

The costs of the clerk, sheriff, witness fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

Louisiana Revised Statutes 33:1428(A) provides, in pertinent part:

(13)(a) In all cases where the sheriffs have in their possession for execution a writ of fieri facias, a writ of seizure and sale, or 16any conservatory or other writ under which property is or may be seized:
(i) When there has been an adjudication which is not completed as a result of instructions given by the plaintiff in writ or for any other reason, or
(ii) When the plaintiff in writ receives cash, other consideration, or both pursuant to judgment rendered in suit in which the writ issued without the necessity of judicial sale, or
(iii) When the suit in which the writ issued is discontinued by the plaintiff in writ, or
(iv) When at the request of the plaintiff in writ the writ is recalled or dissolved or its further execution discontinued, or
(v) When the parties in interest make an amicable settlement or compromise or enter into any other agreement under the terms of which the writ is recalled or dissolved or its further execution discontinued, the sheriffs shall be entitled to receive a fee or commission as in the case of a sale.
(b) But in the discretion of the sheriffs and under circumstances satisfactory to them, they may modify or reduce any fee or commission due and payable under the provisions of this Paragraph. However, if the property is the debtor’s homestead exempt residence and there has been a settlement or compromise between the parties, the fee or commission shall be calculated on the amount of the settlement or compromise.
(c) The fees or commission provided for in this Paragraph shall be due and payable in every case by the plaintiff in writ and shall be due and payable under the circumstances above set forth even though there has only been a constructive seizure or where property seized under any of the writs herein-above enumerated has been released on bond.

(Emphasis Supplied).

However, La. R.S. 33:1428 was amended by Acts 1999, No. 428, § 1, to provide:

|7“The fees or commissions provided for in this Section may be taxed as costs of court pursuant to Code of Civil Procedure Article 1920.”

In Tucker v. Fowler, 95-1649 (La.2/28/96); 668 So.2d 718, the Louisiana Supreme Court held that the judgment creditor, rather than judgment debtor, was responsible for paying the sheriffs commission and fees on issuance of writ of fifa. The traditional rule was that the plaintiff in the suit or in the writ is primarily responsible for costs at all times, even though the judgment has been rendered in his favor. Houssiere-Latreille Oil Co. v. Jennings-Heywood Oil Syndicate, 116 La. 347, 40 So. 727(La.l905). This rule was abrogated by La. C.C. P. art.1920, which states that the party cast in judgment is responsible for costs, unless the judgment states otherwise. However, the Tucker court observed that La. R.S. 33:1428(A)(13)(c) supplies the rule for writs, stating that the plaintiff in writ is responsible for payment of the sheriffs commission.

Tucker was decided in 1996 prior to the addition of section “C” to the statute which permits a court to tax the sheriffs fees as costs pursuant to La. C.C.P. art.1920. Accordingly, a plaintiff can file a motion or rule to have the sheriffs commission taxed as costs against the defendant.

In Abuan ex rel. Valdez v. Smedvig Tankships, Ltd., 2000-1120 (La.App. 4 Cir. 4/11/01), 786 So.2d 827, writ denied, 2001-1752 (La.9/28/01), 798 So.2d 117, cert denied, Smedvig Tankships, Ltd. v. Hingle, 534 U.S. 1134, 122 S.Ct. 1079, 151 L.Ed.2d 979 (U.S.2002), the trial court taxed the sheriffs commission as costs against the defendant. Defendant appealed, complaining that the plaintiff in writ|swas responsible for the commission, citing Tucker v. Fowler, supra. The Fourth Circuit affirmed the trial court’s ruling taxing the costs against the defendant, holding that Tucker was distinguishable because the plaintiff in Tucker had executed a satisfaction of judgment before the sheriff in that case moved to tax costs against the plaintiff. In Abuan, the plaintiff and sheriff moved to tax costs against the defendant before the defendant executed a satisfaction of judgment.

Riddle asserts that the trial court in this instance and the Abuan court erroneously relied on the factual distinction in Tucker that the plaintiff in Tucker had executed a satisfaction of judgment before the sheriff moved to tax costs against the plaintiff. Rather, Riddle contends that the judgment was based on the “old statute,” i.e. subsection 13(c), that the plaintiff in writ must pay the sheriffs commission or fees.

Nevertheless, the facts recited in Tucker establish that the plaintiff did indeed execute a “Satisfaction of Judgment” prior to refusing to pay the sheriffs commission, which prompted the sheriff to rule him into court. We do not know if this fact is of any consequence in Tucker inasmuch as the Supreme Court expressly relied on subsection 13(c). of R.S. 33:1428(A) to require the plaintiff to. pay the commission. However, we observe in this instance that Riddle signed a Satisfaction of Judgment that expressly stated that Riddle accepted the payment as full payment of the judgment, including costs, and we agree with the trial court that this fact is dispositive of the case.

|gWe also agree with the courts in Tucker, supra and Abuan, supra, that La. R.S. 33:1428 is not ambiguous. Nor does it lead to absurd results as applied in this case. When statutes are clear and unambiguous, no further inquiry may be made into legislative intent. Courts must apply the law as written, unless the application would lead to absurd consequences. La. Civil Code Article 9; Tarver v. E.I. Du Pont De Nemours and Company, 93-1005 (La.3/24/94), 634 So.2d 356, 358. Section C of La. R.S. 33:1428 provides that a plaintiff may move to have the sheriffs fees or commission taxed as costs against the defendant. Otherwise, the plaintiff in writ is responsible for payment of the commission. La. R.S. 33:1428(A)(13)(c). Riddle did include such a motion in her motion to fix the sheriffs fee; however, the motion was filed after she executed the Satisfaction of Judgment. The trial court concluded that the Satisfaction released Simmons from liability for any further costs.

Riddle contends that trial court incorrectly concluded that she had released the judgment debtor by accepting the pay-off as satisfaction of the judgment. The court considered two documents: a letter in which the plaintiff sent the judgment debt- or the calculation of the judgment that included $1,200.00 for the fees associated with the writ of fifa that the appellant had paid, and the “Affidavit, Request for Cancellation and Satisfaction of Judgment” (“Satisfaction of Judgment”) which states that, after acknowledgment of receipt of the $2.3 million as payment of the | ¶ ^judgment, interest and costs, “the Judgment is extinguished, paid and satisfied in full.” The court concluded that this language included everything related to the judgment, including the sheriffs commission.

The plaintiff objects to the trial court’s consideration of the letter she or her attorney sent the defendant regarding the calculation of the judgment, interest and fees associated with the pay-off. While we agree that the letter constitutes parol evidence with regard to the contents of the Satisfaction of Judgment, we conclude that the plaintiffs execution of the Satisfaction of Judgment alone is sufficient to defeat her motion.

In this case, Riddle, as plaintiff in writ, moved to tax costs against the defendant as part of her motion to fix the sheriffs commission. The motion was not filed until after she executed the Satisfaction of Judgment that included an acknowledgment of satisfaction of the payment of costs. Accordingly, we find no error in the trial court’s decision to deny her motion to tax the sheriffs commission as costs to be paid by the defendant. Acadian Bank of Thibodaux v. Bates, 470 So.2d 898 (La.App. 2 Cir.1985). (After obtaining a judgment in its suit on promissory notes plus interest and attorney fees less than the 25% called for in the notes, plaintiff bank signed a Satisfaction of Judgment upon receipt of payment of the judgment. Held: Once the Satisfaction of the Judgment was signed, bank could not go back into court to collect additional attorney fees called for in the notes.)

Does the Trial Court Have the Authority to Intervene and Reduce the Sheriffs Commission?

L(Riddle also strenuously argues that the trial court had a duty to intervene in this case and modify the rate or amount of the sheriffs commission. His argument is based on the trial court’s power to determine “reasonable” attorney fees. Specifically, he contends that the sheriff is an officer of the court just as attorneys are deemed to be officers of the court. Since the court has the authority to determine and award reasonable attorney fees in some cases, counsel contends that the court can also determine what constitutes a reasonable sheriffs commission.

We do not think that the center holds in this argument. Counsel’s major premise is that trial courts have authority to regulate the fees of all officers of the court, even in cases where the legislature has provided a certain fee or rate. This generalization is based solely on the court’s authority to regulate in some instancés what constitutes reasonable attorney fees, which is a power derived from the Supreme Court’s constitutional authority to regulate the practice of law. The cases cited by counsel pertain solely to attorney fees.

The maximum fees and commission a sheriff may charge after a writ of fifa is issued is established by statute. If the legislature had wanted courts to have the power to intervene and modify these fees or commissions, it would have expressly provided so in the statute. Hence, it is not, as appellant urges, because attorneys are officers of the court that a court may determine if the fees an attorney charges are reasonable, but because of the power granted to courts to regulate the practice of law.

h Nor do we construe the statute as impliedly granting the power to modify the sheriffs commission at its own discretion. (La. R.S. 33:1428 establishes the fees and commission a sheriff is entitled to charge and also states the decision to modify that fee or commission downward appears to be at the sheriffs discretion.) Counsel for Riddle contends that the language in the statute simply sets a cap on what the sheriff may charge, which he claims infers that the amount is not fixed and further infers courts have authority to intervene to set the amount a sheriff may charge. He notes that the statute says that the sheriff may adjust his commission with approval of the court. Hence, he argues, the fees are not set in stone and the court could intervene and set the fee.

The problem with this argument is that the statute appears to give solely to the sheriff the discretion regarding lowering fees or commissions, not the court. The provision in question is section 7(b) of R.S. 33:1428(A), which the appellant contends gives the court, not the sheriff, authority to intervene. The provision reads:

(b) When the amount necessary to be realized to satisfy any writ under which the property, movable or immovable, is to be offered for sale by the sheriffs is in excess of fifty thousand dollars, including interest and costs, the sheriffs and the seizing creditor may, with the approval of the court, agree upon the fee or commission to be paid to the sheriffs for making the sale, irrespective of the rates hereinabove set forth, prior to the offer and adjudication of the property by the sheriffs.

There is simply no jurisprudential authority for appellant’s argument, and we construe the statute to give only the sheriff the discretion to modify his commission.

| uWhen Does the Right to Collect the Commission Attach?

Counsel for Riddle complains that the sheriff is not entitled to collect the commission because the property never went to sheriffs sale. La. R.S. 33:1428(A)(13)(a)(v) states:

13)(a) In all cases where the sheriffs have in their possession for execution a writ of fieri facias, a writ of seizure and sale, or any conservatory or other writ under which property is or may be seized:
(i) Wfien there has been an adjudication which is not completed as a result of instructions given by the plaintiff in writ or for any other reason, or
(ii) When the plaintiff in unit receives cash, other consideration, or both pursuant to judgment rendered in suit in which the writ issued without the necessity of judicial sale, or
(iii) Wfiien the suit in which the writ issued is discontinued by the plaintiff in writ, or
(iv) Wfiien at the request of the plaintiff in writ the writ is recalled or dissolved or its further execution discontinued, or
(v) When the parties in interest make an amicable settlement or compromise or enter into any other agreement under the terms of which the writ is recalled or dissolved or its further execution discontinued, the sheriffs shall be entitled to receive a fee or commission as in the case of a sale.

(Emphasis Supplied).

The statute, clearly states that once the sheriff is in possession of the writ-of fifa and the plaintiff receives cash pursuant to the judgment such that the sheriffs sale is no longer necessary, the sheriff is nevertheless entitled to his commission as in the case of a sale.

|uAppellant argues, however, that the sheriff never presented evidence that proved that he had. “possession” of the writ, although this is not a fact that was contested at the hearing on the, motion. He. contends that the sheriff should have offered a “service return” as .proof he served the judgment debtor. The sheriff did present his bill as evidence, and the judgment refers to “oral stipulations” at the hearing on the matter.

Inasmuch as the court issued the writ of fifa to the sheriff to seize the defendant’s property, we have no difficulty concluding that the trial court committed no error in recognizing that the sheriff was in possession of the writ of fifa. Accordingly, the trial court did not err in concluding that the sheriff was entitled to his commission.

How Much Commission Can the Sheriff Charge in this Case?

Counsel for Riddle put the sheriffs initial “half-price” bill into the record while the sheriff put his full bill in the record. According to argument, there was some discussion between the sheriff and the appellant’s attorney regarding the sheriffs commission. The sheriff sent a bill for an amount that constituted half of what the statute allows. Instead of paying that amount, counsel instead filed a motion to fix the fee at a much lower amount. He protests that the court considered the sheriffs reduced bill an offer to settle or compromise the dispute and contends that the offer was the actual bill which the sheriff subsequently doubled.

We find no merit in counsel’s argument. The writ court correctly considered the half-price bill as a compromise offer and Riddle’s subsequent filing of a motion to fix the sheriffs fee as a rejection of that 11fioffer. Accordingly, the sheriff was entitled to charge the full amount allowed by statute. Because the property seized was immovable property, the rate of commission is 3% of the amount received. La. R.S. 33:1428(A)(7)(a).

Conclusion

For the reasons stated herein above, we find no error of law nor manifest error in the findings and rulings of the court in requiring the plaintiff in writ to pay the sheriffs commission. The judgment is therefore affirmed.

AFFIRMED.

      . As of September 29, 2006, the pay-off was $2,304,172.90 with a daily increase of $185.02 thereafter until paid and not including the $1,880.00 in court costs.

      . Riddle argues that the trial court's construction of statute could lead to absurd results. For example, if a judgment creditor caused several writs of fifa to issue to the sheriffs of several parishes and the judgment debtor thereafter paid the judgment, then each sheriff would be entitled to 3% of the pay-off, which he contends would be an absurd application of the statute.


author: PEATROSS, J.

text:
    Mack CLINTON and Rose Clinton, Plaintiffs-Appellants v. REIGEL BY-PRODUCTS, INC., et al, Defendant-Appellee.
    No. 42,497-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.
    Rehearing Denied Oct. 18, 2007.

      Sam Jenkins, Jr., W. James Singleton, Shreveport, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, by Penny N. Nowell, Shreveport, for Ap-pellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

|! This appeal arises from the death of Kenneth Clinton at a plant operated by Defendant, Louisiana Proteins, d/b/a Reig-el By-Products Company. Plaintiffs, Mack and Rose Clinton, are the parents of Kenneth. Pursuant to granting Defendant’s motion for summary judgment, the trial court dismissed the suit. Plaintiffs appeal. For the reasons set forth below, we affirm.

FACTS

On March 30, 2005, Kenneth was working at Louisiana Proteins, Inc, a chicken processing plant operated by Defendant. He was an inmate at Caddo Correction Center working at the plant as part of a work-release program under the Caddo Parish Sheriffs Department. At the time of his death, he had been working as a general laborer at the plant for approximately two weeks.

Defendant’s plant processes animal byproducts into a meal-like substance which is used in the manufacture of animal feed. During the processing, this substance escapes from the equipment and gathers on the plant floor. This excess must be gathered up and reintroduced into the production line. The meal is conveyed through the production line by augers in enclosed troughs. The troughs can be accessed by a rectangular door through which the meal from the floors is reintroduced. The manufacturer made the trough door with bolts that had to be unscrewed to open the door. At Defendant’s plant, the door had been altered, in the distant past, with hinges and could be lifted open.

| ¡¡Kenneth’s task the day of the accident was to sweep up the meal and reintroduce it into the production line with a shovel through the hinged door. Although there were no eyewitnesses to the accident, Kenneth’s arm apparently got trapped in the auger which twisted his arm, causing his neck to break which caused his death. A line operator heard the safety device on the machine trip and an alarm sound.. Responding immediately, the operator found Kenneth trapped in the machine. Kenneth was pronounced dead at the scene when help arrived.

The accident was investigated by the Caddo Parish Sheriffs Office. The investigators found one of Kenneth’s gloves in a chute adjacent to the auger, and Defendant suggests that Kenneth dropped his glove in the auger while performing his work and instinctively reached for it. The investigators concluded that the incident was accidental.

Kenneth’s parents brought this suit for wrongful death against Defendant, Caddo Parish Sheriff'Steve Prator and the manufacturer of the auger apparatus. Plaintiffs appear to have reached a settlement with the manufacturer. Sheriff Prator was dismissed pursuant to a joint motion to dismiss. Defendant filed a motion for summary judgment. At the hearing on the motion, the trial court appears to, have assumed that Kenneth was an employee of Defendant and it found that the accident was neither intentional nor substantially certain to occur. The trial court, therefore, found that there was no genuine issue of material fact as to whether Plaintiffs could establish an exception to Workers’ Compensation, granted Defendant’s motion for summary judgment and dismissed the suit.

^discussion

The standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate-(l) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue is a triable issue on which reasonable persons could disagree. Jones, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Further, a fact is material when “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Jones, supra, quoting Smith, supra.

In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966(C)(2). The movant’s burden does not require him to negate all essential elements of the adverse party’s claim; but, rather, the burden on the mov-ant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the non-movant fails to produce sufficient factual 14support to show he can meet his eviden-tiary burden at trial, there is no genuine issue of material fact. Id.

Employers are not liable in tort for an employee’s injuries which occur within the scope and during the course of employee’s duties, and the employee’s exclusive remedy for workplace injuries is in Workers’ Compensation. La. R.S. 23:1032(A). In determining whether an employment relationship exists, the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Savoie v. Fireman’s Fund Insurance Company, 347 So.2d 188 (La.1977); Cassey v. Stewart, 31,437 (La.App.2d Cir.1/20/99), 727 So.2d 655, writ denied, 99-0811(La.4/30/99), 743 So.2d 209; Fuller v. United States Aircraft Insurance Group, 530 So.2d 1282 (La.App. 2d Cir. 1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Savoie v. Fireman’s Fund Insurance Company, supra.

For personal injuries sustained in the course and scope of employment, an employee is generally not allowed to recover tort damages against his employer and any co-workers. La. R.S. 23:1032(A); Evans v. Bossier Parish School Board, 39,718 (La.App.2d . Cir.5/11/05), 903 So.2d 600. This immunity from tort actions, however, does not apply when the employee’s injuries are as the result of an intentional act. La. |sR.S. 23:1032(B). In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court determined that an act is considered intentional whenever it is shown that the defendant either “consciously desired” the physical results of his conduct or was “substantially certain” that those physical results would follow from his actions. Gross negligence is insufficient for the intentional act exception. Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208. Violations of regulatory guidelines likewise do not meet the strict requirements of the exception. Reeves, supra.

The Louisiana Supreme Court has also set a high standard to satisfy the substantially certain aspect of the intentional act exception. “Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” Reeves, supra. The term has been interpreted as being equivalent to “inevitable,” “virtually sure” and “incapable of failing.” Reeves, supra, quoting Jasmin v. HNV Central Riverfront Corp., 94-1497 (La.App. 4th Cir.8/30/94), 642 So.2d 311, writ denied, 94-2445 (La.12/9/94), 647 So.2d 1110; Ev ans, supra. This court has further recognized that the injured party’s own negligence prevents an incident from being substantially certain. Evans, supra.

Plaintiffs assert that their claim is not preempted by Workers’ Compensation because Kenneth was not an employee of Defendant, but was an employee of the Department of Corrections. We disagree. As evidenced | fiby the work release agreement, Kenneth was considered an employee of Defendant. Defendant supervised him while at the job site and paid him directly. While particular conditions applied to both Kenneth and Defendant as part of the work release agreement, none of those requirements removed Kenneth from the employment relationship with Defendant. We consider, therefore, Kenneth to be an employee of Defendant.

Plaintiffs further argue that the incident falls under the intentional act exception to Workers’ Compensation because the incident was substantially certain to occur. The fact that it was possible for a worker to get his arm trapped in the auger does not make it substantially certain to occur. Defendant points out that the same task had been performed in the same manner for at least the past 20 years and had been performed by Kenneth for the two weeks prior without incident. Given its rigorous requirements, we disagree that this incident was substantially certain to occur. It, therefore, does not meet the intentional act exception to Workers’ Compensation, nor does the fact that, at some point in the distant past, a former owner of the facility had modified the entry mechanism for easier access. While this modification violated an OSHA safety guideline, that fact alone does not meet the intentional act exception. Reeves, supra. We find, therefore, that no genuine issue of material fact exists as to whether the incident was intentional or substantially certain to occur. The trial court correctly granted Defendant’s motion for summary judgment.

| .CONCLUSION

For the reasons set forth above, we affirm the trial court’s grant of Defendant’s motion for summary judgment and its dismissal of the suit. Costs of appeal are assessed to Plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS & MOORE, JJ.

Rehearing denied.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Michael Ray EISKINA, Appellant.
    No. 42,492-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

| t This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, where the defendant, Michael Ray Eiskina, was found guilty by a unanimous jury for one count of DWI Third Offense, in violation of La. R.S. 14:98(A) and (D). Eiskina was sentenced to one year imprisonment at hard labor, of which 30 days was without benefits. For the following reasons, we affirm Eiskina’s conviction and sentence.

FACTS

On November 25, 2005, Deputy Thomas Kerley was dispatched in response to a disturbance call from the Eiskina residence located at 7817 Singleton Road in Caddo Parish. Deputy Kerley testified he was familiar with the vehicle the defendant, Mike Eiskina, normally drove. While en route to the residence, Dep. Ker-ley spotted Eiskina in his vehicle traveling away from the location of the disturbance call and decided to follow him while another deputy went to the residence. Deputy Kerley observed that Eiskina was speeding and swerved off the road more than once. At this time, Dep. Kerley pulled Eiskina over. Deputy Kerley smelled a strong odor of alcohol on Eiskina’s breath and it also appeared that he had urinated on himself. After administering several sobriety tests, Dep. Kerley placed Eiskina under arrest for driving while intoxicated (“DWI”), and advised him of his Miranda rights.

Prior to the jury, Eiskina, his attorney, and the assistant district attorney announced to the trial court that the parties had reached a stipulation with regard to Eiskina’s prior DWI offenses. At the end of trial, [2Eiskina was found guilty by a unanimous jury of one count of DWI Third Offense. A Motion for Post Verdict Judgment of Acquittal was filed timely and denied. Subsequently, after waiving delays for sentencing, Eiskina was sentenced to one year imprisonment at hard labor, 30 days of which was without benefit of probation, parole, or suspension of sentence. A Motion for Out of Time Appeal was filed and granted. This appeal ensued.

LAW AND DISCUSSION

Eiskina first argues his defense counsel should not have stipulated to the two predicate offenses that subjected Ei-skina to the DWI Third Offense. Eiskina argues that one of his predicate offense, namely a 1996 DWI offense, was insufficient for enhancing his sentence because the only documentation presented by the state was the bill of information and court minutes. Therefore, Eiskina asks that the matter be remanded for re-sentencing as a first offender. In effect, Eiskina raises a claim of ineffective assistance of counsel.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Lane, 40,816 (La.App.2d Cir.04/12/06), 927 So.2d 659, 669, writ denied, 2006-1453 (La.12/15/06), 944 So.2d 1283. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra. Therefore, in the interest of judicial economy, the portions of Eiskina’s claims of ]¿neffective assistance for which the record is sufficient will be addressed on appeal.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. See State v. Wry, 591 So.2d 774, 778 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his counsel was ineffective, Eiskina first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as' the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. See State v. Moore, 575 So.2d 928, 931 (La.App. 2d Cir.1991).

Second, Eiskina must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. See Strickland, supra. The defendant must prove actual prejudice | ¿before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. See Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 653 So.2d 174, 178, writ denied, 1995-1398 (La.11/03/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. See Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, 1134, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067.

Eiskina essentially argues that the state is required to present a perfect record when using a predicate offense to enhance a sentence. Accordingly, Eiskina argues that his trial counsel was ineffective for failing to challenge a predicate DWI offense. This court has previously rejected the argument that the state is required to present a “perfect record” before using a predicate offense in a multiple-offender DWI prosecution. See State v. Watson, 40,059 (La.App.2d Cir.09/21/05), 911 So.2d 396, 402-03; See also State v. Ouzts, 34,154 (La.App.2d Cir.02/07/01), 777 So.2d 1286, 1289, writ denied, 2001-0990 (La.12/14/01), 804 So.2d 630, citing State v. Ignot, 29,745 (La.App.2d Cir.09/24/97), 701 So.2d 1001, writ denied 1999-0336 (La.06/18/99), 745 So.2d 618 (the state is not required to present “perfect transcripts” of guilty pleas to prove defendant was advised of Boykin rights in prior guilty plea when it met its initial burden of proving that defendant was [¿represented by counsel when he pleaded guilty and when defendant presented no affirmative evidence of a procedural irregularity or infringement of his rights.)

Accordingly, because the state is not required to present a “perfect record” to prove a prior conviction once it meets its initial burden of proof by showing that defendant was represented by counsel when he pleaded guilty, counsel cannot be ineffective for failing to challenge a predicate offense on the ground that the state failed to present a perfect record. Nor, was counsel ineffective for stipulating to the prior offenses for which Eiskina readily admitted during his testimony at trial. Here, according to the court minutes corresponding with the 1996 DWI offense that Eiskina challenges, Eiskina was represented by counsel when h.e pled guilty to his first DWI. Thus, Eiskina’s counsel was not ineffective .for failing to challenge this predicate offense simply on the ground that the state failed to present a perfect record because there was no error or prejudice in this decision. Without error on defense counsel’s part, Eiskina cannot prove ineffective assistance of counsel using the Strickland test. This argument is without merit.

In his second assignment of error, Eiskina argues that the trial court erred in giving a written copy of the jury instructions to the jury during their deliberations. Again, the state argues that a contemporaneous objection was not made and therefore this argument is not properly before this court on appeal. After reviewing the record, we agree that no objection was made at any point nor was the issue brought to the attention of the trial court to [ ¿remedy the issue at the time. However, because there is another ineffective assistance of counsel intimated in this argument we will evaluate this issue for the sake of judicial economy.

Louisiana C. Cr. P. Art. 801 states:

A. The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury. (2) The lack of consent by either the defendant or the state to the delivery of the written charge to the jury shall not be communicated to the jury.
C. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The' nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

After a review of the record, we agree that the trial court did not follow the procedure outlined by La. C. Cr. P. art. 801 when allowing the jury, a copy of the jury instructions; however, this error is harmless. Here, the jury instructions were read in their entirety in open court in the presence of Eiskina and his counsel prior to the jury retiring to deliberate with the written copy of the identical jury charge delivered to them. No objections were raised by the state nor defense counsel. In State v. Joseph, 2003-1445 (La.App. 5 Cir. 05/26/04), 875 So.2d 1011, the trial court was also found |7to have wrongly provided the jury instructions; however, that court held that it did not constitute a reversal and instead was considered harmless error. The Joseph court explained that upon certain conditions, “the apparent intent of the legislature in amending Articles 801 and 808 was to overrule longstanding jurisprudence that prohibited jurors from being given a copy of the written jury instructions.” Id. at 1016. In the instant case, as in Joseph, we do not find that this error affected Eiskina’s substantial rights. See La. C. Cr. P. art. 921. Because this error is harmless, it is clear that the introduction of the jury instructions to the jury did not prejudice Eiskina at trial ultimately failing the second prong of the Strickland test to establish inefficient assistance of counsel. See 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.

Eiskina would not have been entitled to relief on any of the previous claims, even if they had been preserved for appellate review. In light of these meritless claims, we note that Eiskina is prohibited from bringing these arguments in "an application for post-conviction relief. Although Eiski-na received proper La. C. Cr. P. art. 930.8 advice at his sentencing, in an abundance of caution, by way of this opinion, we now re-advise Wilson that no application for post-conviction relief, including applications which seek an out-of-time appeal, 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 and 922.

I «CONCLUSION

For the foregoing reasons, the conviction and sentence for Michael Ray Eiskina is affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Richard COTTON, Appellant.
    No. 42,509-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady O’Callaghan, Assistant District Attorney, for Appellee.
    . Before STEWART, GASKINS and PEATROSS, JJ.
   GASKINS, J.

LThe defendant, Richard Cotton, was convicted by a jury of one count of sexual battery. A motion for post-verdict judgment of acquittal was denied and the defendant was sentenced to serve five years at hard labor without benefit of parole, probation, or suspension of sentence. A motion to reconsider the sentence was also denied. The defendant then appealed his conviction and sentence. For the following reasons, we affirm.

FACTS

In January 200.4, the seven-year-old victim, R.A., was being bathed by her mother at their home in Arizona. The mother discussed with the child that people were not allowed to touch her private parts. R.A. told the mother that the defendant, her step-grandfather, had touched her inappropriately during a family gathering in Louisiana in March 2003, when the victim was six years old. The child stated that while the family was gathered at the mobile home'of a family member, the defendant, who was seated at the kitchen table, called her over to him and touched her private parts through her clothing.

The mother, the defendant’s step-daughter, had also been molested by the defendant when she was six to nine years old. The mother contacted the authorities in Louisiana and an investigation was conducted. During the investigation, the defendant’s niece ■ stated that she also had been molested by the defendant between the ages of seven and 14. The defendant admitted the molestation of the mother, but denied that he intentionally touched R.A. |ain an inappropriate manner. He also denied molesting his niece. The defendant was arrested and charged by bill of information with sexual battery of R.A.

The defendant was tried by a jury on June 20, 2006. Deputy Dorothy Brooks of the Caddo Parish Sheriffs office stated that in January 2004, that agency was contacted by the mother who reported the molestation of R.A. by the defendant. Deputy Brooks talked to the mother and the niece. R.A was taken to Gingerbread ' House and interviewed by a forensic interviewer. Deputy Brooks took a statement from the defendant in which he admitted molesting the mother in the past, but denied the present offense against R.A.

The niece testified that the defendant began molesting her when she was seven years old and the abuse continued until she was approximately 14. She stated that the defendant would approach her outside at her grandparents’ house. The defendant touched her through her clothing, under her clothing, and made her perform oral sex on him. He threatened her, saying that he would kill her and her parents and that no one would believe her if she reported the offenses.

The mother testified about her own molestation by the defendant when she lived in. his household. Her mother had been married to the defendant, but abandoned her and her two brothers, leaving them in the care of the defendant. Eventually her biological father obtained custody of her and the abuse stopped when she left the defendant’s household. She stated that in subsequent years, in order to see her brothers, she was forced to see|sthe defendant. The mother stated that at the time the present offense against R.A. occurred, the family was seated in the living room of her brother’s mobile home.

■The court found R.A. to be a credible witness and she testified at trial, corroborating the information given during her Gingerbread House interview.

Marshall Nolan Cotton, the defendant’s son, testified that on the date of the offense in March 2003, the family was gathered in the living room of his mobile home and the defendant was seated at the kitchen table, in full view of everyone. He stated that he did not observe any inappropriate behavior by the defendant with R.A. and that he has no reservations about his own children being around the defendant. He admitted that at the family gathering, he did not watch the defendant constantly and that if the child was standing at the table where the defendant was seated, she would have had her back to the rest of the group in the living room.

Anthony Cotton, also the defendant’s son, testified that on the day of this offense, he was not aware of the defendant engaging in any improper behavior with R.A. He stated that he has two children and has no misgivings about the- defendant being in their presence. He said that he had a conversation with the mother when she was about 12 years old regarding the defendant’s molestation of her. He stated that he now knows that the mother was telling the truth about her experiences.

RMary Melissa Thomas, Anthony Cotton’s fiancée, testified that on the day of this incident, the defendant was visible to the adults in the living room and that she did not see anything improper occur.

The defendant testified on his own behalf. He admitted molesting the mother when she was a child. He stated that he has been in counseling since 1979 for that and for post-traumatic stress disorder as a result of his experiences in Vietnam. He denied any intentionally inappropriate behavior with R.A. He claimed that if he touched the child in any way, it occurred as a result of picking her up. He stated, “As I picked her up and if she was falling, I may have grabbed her to keep her from falling.” He continued, “I’m saying, if- if it did happen, that’s the way it could have happened.”

The defendant also denied molesting his-niece when she was a child. He claimed that when she was 14 or 15, the back of his hand touched her breast once when he was hugging her good-bye.

The jury unanimously found the defendant guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal claiming insufficiency of the evidence to support his conviction. The motion was denied by the trial court. The defendant appeared before the court for sentencing on October 11, 2006. He was ordered to serve five years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appealed his conviction and sentence.

OTHER CRIMES EVIDENCE

The defendant argues that the verdict was contrary to law and was a violation of due process because of the use of highly prejudicial “lustful [ ¡^disposition” evidence which violated the provisions of La. C.E. art. 403 by outweighing any other factor in the case and luring the jury into finding a verdict based on facts other than evidence of the offense charged.

La. C.E. art. 412.2 provides:

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

In determining whether such evidence will be admitted at trial, La. C.E. art. 403 states:

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

In the present case, defense counsel filed a request, pursuant to La. C.E. art. 412.2(B), concerning the state’s intent to use evidence of similar crimes, wrongs, or acts in sex offense cases. ' The prosecution responded with written notice that it intended to use evidence of other crimes evidence concerning the mother and the niece. The notice stated that the purpose of using this evidence was to show the defendant’s intent to commit the | ^present offense, as well as the fact that the charged offense was part of a system of crimes committed by the defendant and to demonstrate his lustful disposition toward children.

The state gave notice to the defendant of the intent to use such information. Under the facts of this case, the probative nature of the evidence outweighs any prejudice. Further, the trial court gave the appropriate jury instruction regarding such evidence. The jury was instructed as follows:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show that the defendant had the intent, motive, and/or lustful disposition to commit the crime charged. In addition, the evidence may be considered to show that the commission of the offense for which defendant is on trial was not a mistake and/or accident. Remember the accused is on trial only for the offense charged. You may not find him guilty for this offense merely because he may have committed another offense. [Emphasis supplied.]

The evidence was properly admitted and the jury was instructed not to convict the defendant solely because of the commission of other offenses. The defendant’s argument to the contrary is without merit.

JjEXCESSIVE SENTENCE

The defendant argues that his sentence to serve five years at hard labor without benefit of parole, probation, or suspension of sentence is constitutionally excessive because the trial court based the sentence, not on the present offense, but on “lustful disposition” evidence. According to the defendant, the conduct at issue was a groping, but the court was more concerned with the “lustful disposition” evidence and found the defendant to be a serial sex offender who is dangerous to others. The defendant contended that this was not a proper consideration for sentencing. The defendant claims that there was no showing of a “lustful disposition” for more than 20 years and that the use of the prior offenses in sentencing was arbitrary and an abuse of discretion. These arguments are without merit.

As discussed above, evidence of other sex offenses toward children was admissible in this case. Further, under La.C.Cr.P. art. 894.1(B)(12), in pronouncing sentence, a trial court may consider that the offender was persistently involved in similar offenses not already considered as criminal history or as part of a multiple offender adjudication. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). The defendant’s argument to the contrary is without merit.

|RWe also note that in filing his motion to reconsider sentence, the defendant argued only that the sentence was excessive due to the individual circumstances of this case and the background of the defendant. Accordingly, we will review his sentence for excessiveness.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record,- seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless |sinfliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

At the sentencing hearing, several members of the defendant’s family testified on his behalf regarding his poor health, which included a history of seizures, a brain tumor, stroke, heart attack, diabetes, liver damage, and loss of vision. The court also reviewed a letter from the mother and a presentence investigation (PSI) report.

The court observed that R.A. was six years old at the time of this offense. After recounting the witnesses that testified at the trial, the court noted that the jury had to make credibility determinations and that it found the victim to be credible and found the defendant not to be credible. According to the court, the defendant denied any wrongdoing, but then said, if it did happen, it was accidental. The jury unanimously found the defendant guilty as charged. The court stated that it agreed with the determinations made by the jury.

The court noted that it had before it for sentencing a 56-year-old admitted sex offender who was lucky not to have been caught sooner, h (According to the court, the defendant’s health problems did not warrant any leniency in his sentence. The court stated that the sentencing range for this offense was up to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The court found there was an undue risk that the defendant would commit other crimes if not incarcerated. The court sentenced the defendant to serve five years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served.

The defendant’s sentence is not excessive. In addition to the offense for which the defendant was convicted in this case, the defendant admitted that he had previously molested the mother, his stepdaughter. The record showed that the defendant also molested his niece. At the time of the commission of this offense, the maximum sentence for sexual battery was ten years at hard labor, without benefit of parole, probation, or suspension of sentence. The court was well within its discretion in imposing a midjrangen sentence in this case. The sentence is tailored to both the offender and the offense and does not shock the sense of justice.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Richard Cotton.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the initials of the victim are used throughout this opinion.

      . We note that there was no objection in the trial court to the use of such evidence. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841; State v. Jones, 41,299 (La.App.2d Cir. 11/9/06), 942 So.2d 1215; State v. Smith, 39,698 (La. App.2d Cir.6/29/05), 907 So.2d 192. However, even if an objection had been properly raised in the trial court to the use of evidence reflecting the defendant's lustful disposition toward children, the objection would have been properly denied.

      . Although not applicable to this case, we note that La. R.S. 14:43.1(C) was amended by Acts 2006; No. 103, § 1 to increase the penalty for sexual battery of a victim under the age of 13, if the offender is 17 years of age or older. The statute now provides, in pertinent part:
      (2) Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
      (3) Upon completion of the term of imprisonment imposed in accordance with Paragraph (2) of this Subsection, the offender shall be monitored by the Department of Public Safety and Corrections through the use of electronic monitoring equipment for the remainder of his natural life.