author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. John DUNCAN.
    Nos. 2006-KA-1029, 2007-K-0317.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2007.
    Rehearing Denied May 23, 2007.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Michael G. Morales, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellant.
    Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

_j£This matter by the order of this Court has been consolidated with State of Louisiana v. John Duncan, 2007-K0317. After a careful review of the record this Court finds that the trial court improvidently granted the defendant’s motion for new trial as it had been divested jurisdiction when the defendant requested and was granted an appeal. La.C.Cr.Pro. art. 916. Furthermore, the State’s Appeal is dismissed as the State failed to timely move for an appeal. The defendant’s motion to quash indictment is denied, as the time limitations on the prosecution of the matter have not run. La.C.Cr. Pro. art. 578 et seq.

FACTS AND PROCEDURE

The State indicted Kelvin Atkins (Atkins), John Duncan (Duncan), Cedric Curtis (Curtis) and Gerone Walls (Walls) for second-degree murder for the shooting death of Daniel Breaux.

Atkins pled guilty to attempted armed robbery, in exchange for a five-year sentence and agreement to testify against Duncan, Curtis and Walls.

At Duncan’s trial, Atkins testified that at the time of the shooting, he was wearing a white tee shirt and that Duncan, Curtis and Walls were dressed in black tee shirts. Atkins further testified that Duncan shot Daniel Breaux.

l2The jury convicted Duncan of second-degree murder, and on March 31, 2005, the trial judge sentenced him to sixteen years, two months, and one day at hard labor in the Department of Corrections. On this day, the defendant filed a motion for new trial that was denied.

On April 13, 2005, the defendant’s motion for appeal was granted and a return date, June 13, 2005, was set.

On May 16, 2005, the State filed a Notice of Newly Discovered Information, documenting the existence of a previously undisclosed child witness to the shooting. Based upon this development, Duncan filed a Motion for New Trial, and following a hearing on the motion the trial judge ordered the District Attorney and Duncan’s counsel to take a statement from the child. The child gave a statement on June 10, 2005. On August 19, 2005, trial judge, based on the evidence, granted Duncan a new trial. The State moved for an appeal from this ruling on February 17, 2006.

ASSIGNMENT OF ERROR NUMBER

The State maintains that the trial court erred in granting Duncan a new trial.

The defendant argues that the State was untimely in prosecuting the matter pursuant to La.C.Cr. Pro. art. 582 and argues as such that the defendant’s grand jury indictment should be quashed.

The record in this case shows that the Motion for New Trial was granted August 19, 2005. At that time, the trial court set the case for status hearing on September 19, 2005. In its Motion for Out of Time Appeal, the State maintains that the status hearing was set for the State to advise whether it would seek an | ¡¡appeal. However, the transcript of the hearing on the motion for new trial indicates that the trial judge set a status hearing for the State to announce its intention to seek review by writ.

The State faces a timeliness problem in this matter. See La.C.Cr.P. art. 914; State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291. The State failed to move for appeal or indicate its intention to seek supervisory review at the time the trial judge granted the Motion for New Trial. Although Governor Blanco issued executive orders suspending “all deadlines applicable to legal proceedings, including prescription and peremption, in all Louisiana state courts, administrative agencies and boards”, the period of suspension ended in December 2005. The State did not file a motion for appeal, or any other request for review until February 17, 2006. La. C.Cr.P. art. 914 mandates that a motion for appeal must be made no later than thirty days after the rendition of the judgment or ruling from which the appeal is taken. Therefore, we find that the State’s motion for appeal is untimely.

MOTION TO QUASH INDICTMENT IN 2007-K-0317

For the purpose of judicial economy we have ordered that this writ be consolidated with the defendant’s appeal in the above captioned matter.

On November 2, 2006, the defendant filed a motion to quash indictment due to prescription. On February 2, 2007, the trial court denied the defendant’s motion to quash, noting that the merits and timeliness of the State’s appeal of the trial court’s granting of the defendant’s motion for new trial was still pending before this Court.

4In the writ before this Court, the defendant seeks to quash the indictment on the basis that the time limitation for the commencement of trial in this matter has expired. La.C.Cr.P. art. 532(7).

The trial court granted the defendant a new trial on August 19, 2005. La.C.Cr.P. art. 582 provides:

Time limitations; effect of new trial

When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.

According to the certificate on defense counsel’s motion to dismiss appeal and motion to quash indictment, counsel mailed a copy of the motions to the State on November 1, 2006.

In this matter, it is clear from the record that the trial court granted the defendant’s original motion for appeal of his conviction and sentence on April 13, 2005, with a return date of June 13, 2005. No action was taken by either the defense or the State to relieve this Court of its jurisdiction. Therefore, the trial court was still divested of jurisdiction over the matter at the time it granted the new trial. See. La.C.Cr.P. art. 916. Therefore, we dismiss the State’s appeal and remand the matter to the trial court for further proceedings including a hearing on the motion for new trial. Furthermore, we deny the defendant’s motion to quash as the trial court improvidently granted the motion for new trial.

APPEAL DISMISSED; WRIT DENIED AND THE MATTER REMANDED.

      . Duncan was only fourteen years old at the time of the murder. The sentence he received was the maximum that could be imposed— imprisonment until his thirty-first birthday.

      . The earliest post-Katrina minute entry in this case is February 2, 2006. Criminal District Court resumed operations in January 2006.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge. WICKER, J.,

license: Public Domain

text:
    Kenneth M. GEORGE, et al. v. Linda PAFFEN, et al.
    No. 06-CA-890.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.
    Rehearing Denied June 12, 2007.

      Pelleteri, Wiedorn & Copper, Raymond A. Pelleteri, Jr., New Orleans, LA, Stephen K. Faulkner, Jr., Harahan, LA, for Plaintiff/Appellant.
    Harold G. Toscano Law Firm, James A. Stapp, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On September 4, 2002, Kenneth George filed a Petition for Injuries and Damages on behalf of himself and his minor son, Kyle George, seeking to recover damages for injuries Kyle received from a dog bite by a pit bull. Plaintiffs named Linda Paf-fen and her son, Joseph Sandoval, as defendants and owners of the fourteen month old pit bull named Kane. George alleged that on August 21, 2002, Kyle was playing at a friend’s home next door to the house rented by Paffen on Green Acres Road in Jefferson Parish. On the day of the incident, Sandoval was a passenger in a van which also contained Kane. The van arrived at the Paffen’s residence and Sandoval attempted to unload the dog when the dog broke free and ran towards the boys playing next door. Kyle was pulled to the ground by the dog and attacked. As a result, Kyle sustained severe injuries to his leg requiring medical attention and surgeries.

On October 1, 2002, George filed a First Supplemental and Amending Petition adding Kyle’s mother, Robin George, as a plaintiff, and adding Gregory Lamarre, Diane Lipps, and other unknown individuals, as defendants. Lamarre lived with Paffen and was believed to also be an owner of the dog. Lipps owns the property and house which was leased to Paffen. Plaintiffs alleged that Lipps knewjjPaffen kept pit bulls on the property, knew they escaped regularly, and were allowed to roam free in the neighborhood unsupervised. Plaintiffs also claimed that neighbors complained but Lipps took no action.

On December 16, 2002, Lipps filed an Answer denying the allegations. On August 18, 2005, Lipps filed a motion for summary judgment arguing she should not be held liable for the injuries caused by her tenant’s dog. In her motion, Lipps argued a landlord cannot be held strictly liable for the actions of a tenant’s dog, she didn’t have actual knowledge of the dog’s vicious propensity and she committed no violation of a duty that was a cause in fact of the injury, and the bite didn’t take place on Lipps’ property or as a result of it escaping the property. Lipps argued she knew the dog existed, but did not know of any vicious propensities. She claims she received complaints of barking and safety concerns, but there were some neighbors that had no complaints when asked. Animal Control had been called and investigated, but found no reason to cite Paffen. Lipps further argues that even if she did know of the vicious propensities, she committed no act which was a cause in fact of the dog escaping the grasp of the owner and biting the child. Lipps claims there was nothing she could have done to prevent the incident and as a landlord, she had no duty to monitor the comings and goings of the tenant when the tenant takes the dog off the property.

Plaintiffs filed an opposition to the motion on May 15, 2006 arguing that a landlord may be liable for negligence if there is a violation of a duty and that violation was a cause in fact of the injury. Plaintiffs claim the record shows Lipps had actual knowledge of the vicious propensities of the dog, knew the breed of dog and had received numerous complaints regarding the dog and the safety of the neighborhood. Animal Control had been called because the dogs were roaming free and not kept on leashes. Plaintiffs also claim that Lipps knew the dog had) ¿previously killed a neighborhood cat, but she continued to do nothing to protect the neighborhood. Plaintiffs argue Lipps could have had the tenant remove the dog from the property, or warned the tenant to keep the dog on a leash or she would be evicted. Plaintiffs claim Lipps had grounds for eviction because the tenant had two dogs on the property, contrary to the lease agreement, and insurance didn’t cover these dogs. Lipps tore up the lease agreement, so the plaintiffs are unable to determine exactly what it said.

A hearing on the motion for summary judgment was held on June 30, 2006 and the trial court issued a Judgment on August 2, 2006 granting the motion and dismissing plaintiffs claims against Lipps with prejudice. The trial court also issued Reasons for Judgment on August 3, 2006 finding no evidence that Lipps had actual knowledge of the dog’s vicious propensities and finding no genuine issues of material fact. Therefore, Lipps was entitled to judgment as a matter of law.

Plaintiffs now appeal the trial court’s judgment. For the reasons which follow, we affirm the trial court’s judgment.

DISCUSSION

This is an appeal from the granting of a motion for summary judgment. La. C.C.P. art. 966(B) provides that summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

As the trial court noted in its Reasons for Judgment, this Court addressed the issue of a landlord’s liability for injuries resulting from a dog bite from a tenant’s dog in Murillo v. Hernandez, 00-1065 (La. App. 5 Cir. 10/31/00), 772 So.2d 868. In that case, this Court stated that although a landlord is strictly liable for injuries | r,caused by vices or defects of his building, he is not liable to a third person for injuries caused by his lessee’s animal. Id. This Court further noted that the strict liability of the animal owner under C.C. art. 2321 cannot be imputed to a non-owner. Id., citing Parr v. Head, 442 So.2d 1234 (La.App. 5 Cir.1983). However, the landlord may still be liable for negligence under La. C.C. arts. 2315 and 2316 if there is a violation of duty and that violation is a cause-in-fact of an injury. Id. This Court further stated that this has been interpreted by this Court to mean that the record must show the landlord had actual knowledge of the dog’s vicious propensity. Id., citing Compagno v. Monson, 580 So.2d 962, 966.

Lipps testified in her deposition that before Paffen moved in, Paffen told her she had two Staffordshire terriers and that was written on the lease agreement. Lipps testified that when she first saw the dog in question she was confused by his appearance because she thought a Staf-fordshire terrier looked different. She asked Paffen what kind of dog it was and Paffen again said it was a Staffordshire terrier. Lipps testified that on that occasion the dog walked up and licked her on the hand. Lipps admitted she received calls from Laurie Hall, a neighbor, complaining about the dogs barking and disturbing neighbors and Lipps testified she received these phone calls on a regular basis.

Lipps also acknowledged that Animal Control had been called to the property after neighbors complained about the dogs. Animal Control called Lipps to let her know that they found no problems and were not citing Paffen for anything. Lipps stated she learned the dogs were pit bulls from Laurie Hall and Robin George. Lipps asked Paffen about the dogs being pit bulls and Paffen just laughed. Lipps checked with other neighbors, besides Hall and George, and none had complaints.

RWe agree 'with the trial court and find that there is no evidence in the record that Lipps had actual knowledge of the dog’s vicious propensities. Therefore, Lipps, as landlord, will not be held liable for negligence under either La. C.C. art. 2315 or 2316. She had seen the dog and witnessed it being gentle. She had been told by Animal Control that no citations were issued to Paffen after an inspection of the property and the animals, following complaints from neighbors. Further, the only neighbors who registered complaints with Lipps were Hall and George and the complaints were mostly about the dogs barking and getting out of the yard.

Accordingly, we affirm the judgment of the trial court granting summary judgment in favor of Lipps.

AFFIRMED.

WICKER, J., dissents.

WICKER, J.,

dissents:

Li dissent from the majority opinion. Although strict liability imposed on an animal owner cannot be imputed to a non-owner, Parr v. Head, 442 So.2d 1234, 1235 (La.App. 5 Cir.1983), a landlord can be held liable in negligence if the record shows that the landlord has actual knowledge of the dog’s vicious propensity. Compagno v. Monson, 580 So.2d 962 (La. App. 5th Cir.1991); Murillo v. Hernandez, 00-1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868.

Given the procedural posture of this case, the grant of summary judgment, the plaintiff is not required to prove Diane Lipps had actual knowledge of the dog’s vicious propensity. It is only necessary for plaintiff to show that material facts regarding the issue of knowledge remain to be decided. In my view, plaintiffs have made such a showing.

Ms. Lipps admits in her deposition that she received continued complaints from two of the neighbors, Laurie Hall and Robin George (Kyle’s mother), about the dogs. The complaints were mostly regarding the constant barking, although Ms. Lipps admitted that one of the neighbors expressed safety concerns about the dogs. Ms. Lipps stated that she was informed by Ms. Hall that the dogs were Pit Bulls not Staffordshire Terriers, and that Robin George called to say that she was concerned about the safety of the neighborhood.

2Ms. Lipps also testified that Jefferson Parish Animal Control representatives were called several times to investigate, although Ms. Paffen was not cited for any violation. Ms. Lipps expressed her disappointment at that decision, stating that she wished to break the lease with Ms. Paffen. Further, plaintiffs have offered evidence to show that Ms. Lipps knew the dogs were Pit Bulls running free through the neighborhood and one of them had killed a cat.

Given that presentation of evidence, I believe this matter is not ripe for summary judgment. Consequently, I would vacate the summary judgment and remand the matter for further proceedings.


author: GREG G. GUIDRY, Judge.

text:
    Corinne W. LABORDE v. ROSER’S CLEANERS, LLC.
    No. 07-CA-78.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.
    Rehearing Denied June 12, 2007.

      Leo R. McAloon, III, Brendan P. Doherty, New Orleans, Louisiana, for Plain-tiffiAppellee.
    Leonard L. Levenson, Christian W. Helmke, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, WALTER J, ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡¡The Defendant, Roser’s Cleaners, L.L.C., appeals from a judgment in favor of the Plaintiffs, Corinne and Kenneth La-borde, for- the value of a ball gown damaged in the dry cleaning process. We affirm.

In 20.00, Corinne Laborde purchased a ball gown from a dressmaker for her daughter, Adrienne, to wear at a December debutante ball. The day after the ball, Mrs. Laborde took the gown to the Defendant for dry cleaning. According to her, the dress did not have any stains, but was dirty along the hem. The dress was made of smooth, shiny silk/satin, with rhinestones clustered at the bodice on the front and attached to the train on the back. Mrs. Laborde chose the Defendant because it was a specialist in cleaning heirloom wedding dresses, and other upscale clothing. The Defendant accepted the dress unconditionally.

LWhen Mrs. Laborde returned for the dress, she discovered the satin smooth white gown was yellowish, the dress was torn in places, and the material was no longer satin smooth. Rhinestones were also missing from the front and back. When she complained, the Defendant replaced the rhinestones. He unsuccessfully attempted to repair the rest of the damage by using wet cleaning with Mrs. Laborde’s consent. This is a process which is not normally used on this type of material. The Defendant did not charge for the cleaning, but refused to pay the Plaintiffs for the value of the dress.

Mrs. Laborde filed suit in May of 2001 to recover the value of the dress. Mr. Laborde and Adrienne Laborde were added later as Plaintiffs. Prior to trial on May 8, 2006, Adrienne Laborde was dismissed with prejudice. After the trial in May of 2006, a judgment was rendered in favor of the Plaintiffs. The trial judge found the Defendant had a duty of diligent care of a prudent administrator, the dress was damaged by the Defendant’s negligence, and Mrs. Laborde purchased the dress for $1,800. Noting that it had been worn only once, she depreciated the value of the gown by 30%, and awarded the Plaintiffs $1,200.

On appeal, the Defendant argues that the trial judge erred in denying the motion for new trial because the Plaintiffs are not the proper parties. It further asserts that the trial judge erred in finding the Plaintiffs met their burden of proof on liability and damages.

PARTIES

The Defendant contends that the Plaintiffs purchased the dress for their daughter, and consequently, Adrienne La-borde as the owner of the dress, is the proper party plaintiff to recover damages. Since Adrienne was dismissed from the lawsuit prior to trial, the Defendant contends that the trial judge should have | ¿dismissed the case. The trial judge concluded that the Plaintiffs are the proper parties since Mrs. Laborde testified that she paid for the dress from community funds. Thus, the Plaintiffs suffered the financial loss and are the parties with a real and actual interest in the outcome of this lawsuit. See: La.C.C. art. 681. We agree. The Plaintiffs are the proper parties under these circumstances.

LIABILITY

On appellate review, the court’s function is to determine whether the findings of the trier-of-fact were clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Himel v. State ex rel. Dept. of Transp. and Development, 04-274, p. 8 (La.App. 5th Cir.1/12/04), 887 So.2d 131, 137, writ denied, 04-2802 (La.3/18/05), 896 So.2d 999. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844; Himel, 04-274 at p. 8, 887 So.2d at 137-138. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Himel, 04-274 at p. 8, 887 So.2d at 138; LeBlanc v. Baxter, 05-33 (La.App. 5th Cir.5/31/05), 905 So.2d 415, 426. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Himel, 04-274 at p. 8, 887 So.2d at 138. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding | Rpurportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45; Himel, 04-274 at p. 8, 887 So.2d at 138.

The Defendant argues that the Plaintiffs failed to prove it was at fault for the damages to the dress, and failed to prove that the dress fabric was not defective. It argues the Plaintiffs presented no evidence of the proper cleaning method, both Plaintiffs were unaware of any steps the Defendant could have taken to ensure the dress would be properly cared for while in the custody of the Defendant, and they did not have the dress examined by a dry cleaning expert, or tested to determine the cause of the damage.

Conversely, the Defendant points out that Todd Roser testified that the dry cleaning method was the proper and effective cleaning method for this dress, in the absence of label instructions. He stated the dress was cleaned in accordance with the standards of the dry cleaning industry, and that defective fabric could cause a problem in the cleaning process.

The trial judge applied the general law of depository to the duty of the dry cleaning business in this case. La.C.C. arts. 2926-2940. The Civil Code articles on deposit were amended, effective January 1, 2004. Article 2926, in effect at the time of this incident, defines deposit as “an act by which a person receives the property of another, binding himself to preserve it and return it in kind.”

Although there are only a few cases involving property damaged by a dry cleaning establishment, prior to the amendments, the depositary articles were held applicable to dry cleaners, as well as missing, stolen, damaged or destroyed merchandise, parking lots, garages and stolen or damaged automobiles. See: Holmgard v. First Nat. Bank of Commerce, 96-0853, p. 4 (La.App. 4th Cir. 1/15/97), 687 So.2d 583, 586, citing Rubin, M.H., “Bailment and Deposit in Louisiana,” 35 La. L.Rev. 825, 845-850 (1975); Axelrod v.Wardrobe Cleaners, Inc., 289 So.2d 6847, 850 (La.App. 4th Cir.1974); Addison v. St. Claude O.H.M., Inc., 299 So.2d 813, 814 (La.App. 4th 1974). The depositary must use the same diligence in preserving the deposit that he uses in preserving his own property. La.C.C. art. 2937.

In the comments following the 2004 revision of La.C.C. art. 2928, the commentator states that the deposit articles have been applied “without good reason” to contracts for services or repairs, and that those should be determined under the general law of obligations. See: Comment (b).

An obligation is a legal relationship whereby the obligor is bound to render a performance in favor of the obligee. Performance may consist of giving, doing, or not doing something. La.C.C. art. 1756. In this case, the parties had an oral agreement in which the Defendant accepted the gown from the Plaintiffs’ for cleaning in exchange for monetary remuneration. As the obligor, the Defendant would be liable for the damages resulting from his nonperformance, defective performance, or delay in performance. See: La.C.C. art. 1994.

We need not determine whether to apply the law of deposits or obligations in this case. Under either the depository law, or under conventional obligations, we find that the trial judge did not err in finding liability.

Mr. Roser, claimed that when he saw the dress before it was cleaned, the gown had water or alcohol stains on the front. Mrs. Laborde denies that the dress was stained. Mr. Roser also asserts that he spoke with Mrs. Laborde on the telephone before cleaning the dress and told her that he had to use the dry cleaning method, because the dress did not have an instruction label. She also denied that claim, stating that she did not talk to him until after she retrieved the dress and discovered it was damaged. However, it was uncontested that he did not warn her that the cleaning process could harm the material, or provide her |7with alternative cleaning methods, or ask her to sign a release. Neither Plaintiff is a dry cleaning expert.

Although Mr. Roser agrees that the dress is not wearable, he believes that the fabric was defective. He claims he offered to send the dress to an independent laboratory to determine whether his cleaning methods caused the problem. Mrs. La-borde denied that he made the offer.

Mrs. Laborde chose the Defendant to clean the gown because it holds itself out as an expert in cleaning delicate clothing. The gown was soiled from normal use when taken to the Defendant, but was wearable. Even if the gown had stains, the Defendant accepted the gown unconditionally, thereby implying that the gown would withstand the cleaning process. The dress is no longer in a condition to be worn. In light of the fact that the dress was handmade and had no label, the Defendant, an expert in the field, should have foreseen the possibility that the fabric could be defective, and warned Mrs. La-borde that the gown might be damaged in the cleaning process. Consequently, we find that the trial judge was not manifestly erroneous in finding the Defendant liable.

DAMAGES

The Defendant contends that the Plaintiffs failed to prove the purchase price of the gown because two of four documented installment payments were made by cash, as opposed to checks.

Mrs. Laborde testified that she personally paid for the gown in installments which are documented on the dressmaker’s invoice. Two payments were by check. The other two were paid by cash. The total cost of the dress was $1,850. We find that the evidence was competent to prove the purchase price, and thus, the trial judge did not err in considering the cash payments reflected on the invoice in determining the purchase price.

\ ¿DECREE

Accordingly, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by the Defendant.

AFFIRMED.


author: GASKINS, J. STEWART, J.

text:
    STATE of Louisiana on behalf of Terri Leigh MURPHY, Plaintiff-Respondent v. Agga L. HAREN, Defendant-Applicant.
    No. 42,098-JWC.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Seabaugh, Benson, Keene, Denny & Gerhardt, by J. Todd Benson, Bryce Denny, Shreveport, for Defendant-Applicant Agga L. Harén.
    Robert Randall Smith, Assistant District Attorney, for Plaintiff-Respondent State of Louisiana and Terri Leigh Murphy.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

Bin this suit seeking child support, the defendant, Agga L. Harén, sought supervisory writs from a trial court ruling denying his peremptory exception of res judica-ta in which he asserted that the matter of his possible paternity of the child had been previously litigated in Georgia. The writ was granted, and the matter was docketed. The judgment of the trial court is affirmed. The writ is recalled, and the matter is remanded for further proceedings.

FACTS

In 1995, Terri Leigh Daniel gave birth to a daughter, BND , in Colorado. At the time of BND’s birth, the mother was unmarried. In 1998, she married Sean Murphy.

In April 1999, Harén filed a suit for legitimation and child custody of BND in Georgia where the mother and the child resided. In this suit, Harén declared that he acknowledged the child and that he had regularly paid child support to the mother. He alleged that the mother had made “unwarranted accusations of misconduct” against him to keep him away from the child. He requested sole custody of the child or, alternatively, reasonable visitation.

The mother answered, requesting genetic testing to determine if Harén was BND’s father. She acknowledged that Harén had provided some support for the child; however, she alleged that he had “mistreated and sexually abused” the child and should be denied contact with BND. The Lmother made a counterclaim seeking child support if Harén was determined to be the child’s father.

The mother subpoenaed records pertaining to Haren’s alleged abuse of BND from the Georgia Department of Family and Children Services. In response to the department’s motion to quash the subpoena, the court ordered production of the records for an in camera inspection, after which the court would decide what part of the records to give to the parties.

Following trial in March 2000, the Georgia trial court denied Haren’s petition for legitimation and the mother’s request for child support. In the judgment of the Georgia trial court, which was signed in April 2000, the court found that granting the petition to legitimate was not in the best interest of BND, “a minor child of the parties born out of wedlock.” Neither party appealed.

In 2005, the mother initiated an IV-D application with the Office of Child Support Enforcement in Georgia, seeking child support from Harén, an air force officer then stationed at Barksdale Air Force Base in Louisiana. The mother asserted that Harén is the biological father of BND. She sought to establish paternity and obtain child support. Among other things, her application claimed that she and Harén lived together from 1995 to 1996; she told him that he was the father; he admitted that he was the father; he paid for birth-related expenses; he lived with the child; he claimed the child on tax returns; and he provided food, clothing, gifts or financial support for | sthe child. A copy of the child’s birth certificate shows that the name of the father is not given. The mother alleged in the application that Har-én sexually molested BND.

In June 2006, the mother’s initial request was filed in Louisiana with the Bossier Parish District Attorney’s Office acting on her behalf. In July 2006, Harén filed a peremptory exception of res judica-ta. He argued that the Georgia judgment, which is final, effectively held that he was not the child’s father. He asserted that the Georgia judgment was entitled to full faith and credit and, consequently, his exception should be granted and the mother’s claims should be dismissed with prejudice.

On August 8, 2006, the hearing officer in Bossier Parish recommended that the exception of res judicata be denied and that support be made retroactive. At the hearing, Harén testified that, to the best of his knowledge, BND is his biological child. However, he stated that there had been no DNA testing to establish this.

Harén filed an exception to the hearing officer’s recommendation. On August 22, 2006, the exception was argued in the district court; the court passed the exception, directing that Haren’s counsel obtain the transcript from the Georgia ruling and the Georgia statutes. However, Haren’s counsel stated in brief to the trial court that it had been told by the Georgia court that no transcript existed.

On November 7, 2006, the matter was before the district court again for argument. Counsel for the State argued that, under Georgia law,, legitimation and paternity are separate matters. Relying upon the portion of |4the Georgia judgment that stated that BND was the child of the parties, the court denied the exception of res judicata. The matter was remanded back to the hearing officer.

Harén sought review of the denial of his exception of res judicata. Pending disposition of the writ application, the district court stayed the proceedings. On January 18, 2007, this court granted Haren’s writ and ordered the matter docketed.

ARGUMENTS

In brief, Harén argues that the instant Louisiana suit and the previous Georgia suit involved litigation of the same issues— paternity and child support. He insists that the Georgia judgment denying his petition for legitimation effectively held that he was not the child’s father. To bolster his contention that paternity was actually litigated in those proceedings, he notes that the Georgia court denied the mother’s request for child support. Harén asserts that the Georgia judgment is entitled to full faith and credit. He also argues that it would be unfair to burden him with a child support obligation on the child, who is now almost 12 years old, when he was denied access to her during her formative years.

The State asserts that, contrary to Haren’s contention, under Georgia law, legitimation is not synonymous with paternity. The matters are handled under different statutes. (Legitimation falls under OCGA § 19-7-22, while paternity is covered in OCGA § 19-7-43.) According to the State, the Georgia jurisprudence indicates that while a biological parent can receive recognition of paternity, as the Georgia judgment apparently did in |sthe instant case, the court may find that it is not in the best interest of the child to be legitimated. In support of its position, the State notes that an order signed by the Georgia trial judge on the day the Georgia proceedings were heard provided for an in camera inspection of records of the Houston County Department of Family and Children Services containing child abuse reports.

RES JUDICATA

La. R.S. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The doctrine of res judicata is strictly construed. Any doubt regarding compliance with its requirements is to be resolved in favor of maintaining the plaintiffs action. Thurston v. Thurston, 31,895 (La.App.2d Cir.8/20/99), 740 So.2d 268. The party urging the exception has the burden of proving each essential element by a preponderance of the evidence. Welker v. Welker, 41,945 (La.App.2d Cir.3/7/07), 954 So.2d 225.

[ r,The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192; Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993.

GEORGIA JUDGMENT

The Georgia judgment, which was signed on April 6, 2000, reads as follows in its entirety:

The above matter came on to be heard before the Honorable Edward D. Luk-emire on March 24, 2000. Plaintiff and Defendant were present in Court and represented by counsel. After consideration of evidence presented in the case and argument of counsel, the Court did find that it is not in the best interests of [BND], a minor child of the parties born out of wedlock, that Plaintiffs Petition to Legitimate said child be granted.
IT IS THEREFORE ORDERED AND ADJUDGED as follows:
The Petition of Plaintiff to legitimate [BND], a minor child born June 21, 1995, and all of the other prayers of the Plaintiffs Complaint are hereby denied. IT IS FURTHER ORDERED that no child support is awarded to the Defendant.

The judgement was approved as to form by counsel for both parties.

DISCUSSION

According to the Georgia jurisprudence, the “best interests of the child” standard is generally applicable to legitimation actions. Matter of J.M.S., 257 Ga. 630, 362 S.E.2d 56 (1987); Davis v. La-Brec, 274 Ga. 5, 549 S.E.2d 76 (2001); Smith v. Soligon, 254 Ga.App. 172, 561 S.E.2d 850 (2002); Pritchett v. Merritt, 263 Ga.App. 252, 587 S.E.2d 324 (2003). In |7fact, the “best interests of the child” standard has been applied to actions to effectively “delegitimize” a child by the mother. Baker v. Baker, 276 Ga. 778, 582 S.E.2d 102 (2003).

In Ghrist v. Fricks, 219 Ga.App. 415, 465 S.E.2d 501 (1995), a Georgia appellate court stated:

Paternity and legitimation are not the same thing. Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father. Instead, we have held time and time again that the court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents. [Citations omitted.]

A review of the applicable Georgia statutes shows that a petition to legitimize a child falls under OCGA § 19-7-22. In relevant part, Subsection (g)(1) of that statute provides now, as it did in 1999 when Harén filed his petition:

Upon the determination of paternity or if a voluntary acknowledgment of paternity has been made and has not been rescinded pursuant to Code Section 19-7-46.1, the court or trier of fact as a matter of law and pursuant to the provisions of Code Section 19-7-51 may enter an order or decree legitimating a child born out of wedlock, provided that such is in the best interest of the child. [Emphasis added.]

Harén contends that, under Petersen v. Tyson, 253 Ga.App. 431, 559 S.E.2d 164 (2002), his legitimation action was converted into a paternity action by the mother’s request for genetic testing and her counterclaim for child support if Harén was found to be BND’s father; he further asserts that the Georgia court must have denied his petition for legitimation because it found that he was not BND’s father. He argues that this court should disregard the recitation in the Georgia judgment that BND is the “minor |schild of the parties born out of wedlock” as simply being part of the judgment’s “preamble.” However, it appears to be at least a finding of fact by the Georgia court which is stated in the context of that court’s reasons for judgment in denying Haren’s petition to legitimate. Because there is no transcript available, it is not possible to discern the basis for the Georgia court’s decision that legitimation by Harén was not in BND’s best interests. The State argues that the Georgia court found that Harén was BND’s father but for some reason, possibly the allegations of abuse, determined that it was not in the child’s best interest to allow Harén to legitimate her. Likewise, we have no information about the resolution of the child support issue beyond the mere fact that it was denied.

On the record before us, we are unable to say what was actually litigated and, most importantly, adjudicated in the Georgia proceedings. The issue of whether Harén was the father of BND was key to his petition to legitimate her. However, given the wording of the Georgia judgment, we cannot say that the issue of BND’s paternity was resolved as Harén asserts. To the contrary, the judgment language indicates that Harén was found to be the child’s father but that his petition to legitimate her was denied for other reasons. Res judicata is strictly construed, and the party urging such an | ¡¡exception bears the burden of proof. Any doubt is to be resolved in favor of maintaining the action. Like the trial court, we are constrained to find that Har-én failed to carry his burden of proof in the instant ease.

CONCLUSION

The judgment of the trial court denying the defendant’s exception of res judicata is affirmed. The writ granted by this court is recalled, and the matter is remanded for further proceedings. Costs in this court are assessed against the defendant/applicant, Agga L. Harén.

WRIT RECALLED; JUDGMENT AFFIRMED; CASE REMANDED.

STEWART, J., dissents with written reasons.

STEWART, J.

[, Pursuant to La. R.S. 13:4231, a valid final judgment bars a subsequent suit where both involved the same parties and where the causes of action asserted in the second suit existed at the time of the first suit and arose out of the same transaction or occurrence. Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049. These requirements are met in this instance.

In the Georgia suit filed in 1999, Mr. Harén petitioned the court to legitimate the minor child and award him custody and child support. Ms. Murphy answered the petition to request genetic testing to determine paternity and to request child support if Mr. Harén was determined to be the child’s father. By requesting testing to determine paternity and seeking child support, Ms. Murphy converted Mr. Haran’s legitimation action into a paternity suit. Petersen v. Tyson, 253 Ga.App. 431, 559 S.E.2d 164 (2002), citing Holcomb v. Ellis, 259 Ga. 625, 385 S.E.2d 670 (1989). Under Georgia law, the purpose of determining paternity is to establish a duty to support the child. Banks v. Hopson, 275 Ga. 758, 571 S.E.2d 730 (2002); Palmer v. Bertrand, 273 Ga. 475, 541 S.E.2d 360 (2001), cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001).

Though we do not have the benefit of the Georgia court’s reasons for its judgment, we do have a final judgment that denied the relief sought, including legitimation of the child by Mr. Harén and the award of child support sought by Ms. Murphy. Considering the purpose of determining paternity and the great societal importance of providing support for children, the judgment can only mean that the court did not find Mr. Harén |2to be the child’s father despite its initial reference to her as “a minor child of the parties born out of wedlock.” In light of the judgment’s denial of support for a minor child, I find this description to be nothing more than a reiteration of the Mr. Haren’s allegation of paternity and the fact that the child was born out of wedlock.

The present case brought by Ms. Murphy again seeks a determination of paternity and an award of child support. Ms. Murphy and Mr. Harén are the same parties in both suits. The causes of action, namely determination of the minor child’s paternity and support due, asserted by Ms. Murphy in this case existed at the time of the prior suit and were asserted by her in that prior suit. They also arise from the same transaction or occurrence that was the subject matter of the prior litigation. The requirements of res judicata are clearly met. In State in the Interest of Sterling v. Coleman, 616 So.2d 844 (La. App. 3d Cir.1993), a prior judgment rendered in a paternity proceeding brought by the child’s mother barred a later , paternity proceeding brought by the state to establish paternity of the child and obtain support payments from the alleged father. The same result applies here. The prior judgment bars this suit.

For these reasons,! respectfully dissent.

      . Due to allegations of sexual abuse, we use only the child's initials in this opinion.

      . However, on the paternity affidavit, the mother also asserted that her sexual relationship with Harén began in 1994, and that they resided together on the weekends from 1994 to 1995 when he attended the U.S. Air Force Academy in Colorado Springs, Colorado.

      . A standard of parental fitness may be applied to determine the father's right to legitimate the child if state action interfered with the father’s rights to the child. See Bowers v. Pearson, 271 Ga.App. 266, 609 S.E.2d 174 (2005).

      . Harén testified at the hearing on the exception of res judicata that, “as explained to me by the judge and by my lawyer,” he petitioned for paternity in Georgia, which was denied, and that his petition for custody was irrelevant because he was not the father. However, in the mother’s paternity affidavit in her IV-D application, she stated: “Court ordered no parental rights.”

      . We note that the court in Smith v. Soligon, supra, described OCGA § 19-7-22(g) as allowing an order legitimating a child if such was in the child's best interest after the issue of paternity was resolved. The wording of the judgment in the instant case indicates that paternity was resolved to the effect that Har-én was the father and that the court then considered the best interest of the child on the issue of legitimation.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee v. Thomas H. CRITTON, Appellant.
    No. 42,053-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Brady D. O’Callaghan, Assistant District Attorney, for Ap-pellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   WILLIAMS, Judge.

hThe defendant, Thomas H. Critton, was charged by bill of information with one count of sexual battery, a violation of LSA-R.S. 14:43.1, and one count of attempted sexual battery, a violation of LSA-R.S. 14:27 & 14:43.1. After a jury trial, defendant was found guilty as charged. The trial court adjudicated the defendant a fourth felony habitual offender and imposed a sentence of 50 years at hard labor without benefit of parole, probation, or suspension of sentence for the offense of sexual battery. The trial court sentenced defendant to serve five years hard labor without benefits for the attempted sexual battery conviction, with the sentences to run concurrently. Defendant’s timely motion to reconsider sentence was denied. Defendant appeals his sentences as excessive. For the following reasons, we affirm.

FACTS

On the evening of January 24, 2005, defendant went to the home of his aunt, who allowed him to sleep on the kitchen floor because he was too intoxicated to drive home. After everyone had gone to bed, the 43-year-old defendant approached his 17-year-old female cousin, C.S., who was sleeping on one of the couches in the living room. C.S. testified that during the night, defendant entered the living room, climbed on top of her, pulled her shorts to the side and then she could feel defendant’s penis against her vagina. C.S. stated that although her 23-year-old sister, A.S., was sleeping on the other couch in the living room, she did not cry out because she knew defendant to be violent when intoxicated. C.S. testified that this sexual contact occurred without her consent.

A.S. awoke to see defendant on top of C.S., but testified that she was 12also afraid of defendant because she knew he could be violent when drunk and because he was much bigger than her. After defendant left C.S., he approached the couch where A.S. was lying and he began touching her thigh near her pubic area. A.S. testified that she kicked him until he stopped and that she did not consent to defendant’s touching.

The next day, C.S. was taken to the hospital for a sexual assault examination, and the physical evidence was delivered to the North Louisiana Criminalistics Laboratory (“N.L.C.L.”) for analysis. The police interviewed defendant and a buccal swab from defendant was taken to N.L.C.L. Kelly Langley, a forensic biologist with the N.L.C.L., testified that the combination of DNA found in the vaginal washings of C.S. was 25.1 million times more likely to be that of C.S. and the defendant than C.S. and any other unknown male in existence.

Defendant was charged with sexual battery of C.S. and attempted sexual battery of A.S. A jury found defendant guilty as charged and the trial court adjudicated the defendant a fourth felony offender. Defendant was sentenced to serve 50 years at hard labor without benefit of parole, probation, or suspension of sentence for the offense of sexual battery and to serve five years at hard labor without benefits for the attempted sexual battery conviction, with the sentences to run concurrently.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the court abused its discretion in sentencing him without sufficiently considering his background.

pin 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 LSA-C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of Article 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Landos, 419 So.2d 475 (La.1982). 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. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 904 So.2d 728.

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 infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are Lviewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.03/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. The trial court shall exercise its 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). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710.

LSA-R.S. 14:43.1(0 provides that the sentence for sexual battery is imprisonment, with or without hard labor, for not more than 10 years without benefit of parole, probation, or suspension of sentence. Pursuant to LSA-R.S. 14:43.1 and 14:27(D)(3), the sentence for attempted sexual battery is imprisonment, with or without hard labor, for not more than five years without benefit of parole, probation, or suspension of sentence. Thus, according to LSA-R.S. 15:529.l(A)(l)(c)(i), the sentencing range for defendant as a fourth felony offender convicted of sexual battery was 20 years to life without benefit of parole, probation, or suspension of sentence. Therefore, a sentence of 50 years for sexual battery falls within the mi-drange of sentence that the trial court could have imposed.

Prior to imposing sentence in the present case, the trial court noted |5that the defendant was a fourth felony offender based upon his prior convictions for second offense possession of marijuana, illegal possession of stolen things, and simple burglary. Applying the sentencing guidelines of Article 894.1, the trial court found that there was an undue risk of defendant committing another crime if given a suspended sentence or probation, that defendant was in need of correctional treatment that could be provided at an institution and that a lesser sentence would deprecate the seriousness of the defendant’s crimes. Thus, the record indicates that the trial court was cognizant of the sentencing criteria of Article 894.1.

In imposing hard labor sentences of 50 years for sexual battery and 5 years for attempted sexual battery, the trial court considered the factual circumstances of this case, finding that the defendant’s acts of sexually exploiting his young female cousins were “unconscionable.” Although defendant asserts in his brief that the court should have considered his age, personal history and employment in imposing sentence, he does not specify any factors which may have persuaded the court to impose a less severe sentence. However, through the evidence presented, the trial court was aware that defendant took advantage of his aunt’s kindness in order to commit his crimes against family members.

After reviewing the record, we conclude the trial court provided adequate reasons for imposition of these sentences, which are within the sentencing range for the offenses of conviction. The sentences imposed are justified by the record and are neither grossly disproportionate to the seriousness of the offenses, nor shocking to the sense of justice. There is no | fishowing that the trial court abused its discretion in sentencing this defendant. Thus, we cannot say that the sentences are constitutionally excessive. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that at sentencing the trial court improperly advised defendant that “you have two years to file” an application for post-conviction relief. Pursuant to LSA-C.Cr.P. art. 930.8, the defendant should have been advised, and by way of this court’s opinion is hereby advised, that any application for post-conviction relief must be filed within two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Raymond FULLER, Appellant.
    No. 42,050-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Louisiana Appellate Project, by Christopher A. Aberle, Mandeville, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Mike 0. Craig, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

hThe defendant, Raymond Fuller, was convicted as charged of the taking of contraband to a state-owned and administered hospital or related facility. The trial court sentenced him to two years’ imprisonment at hard labor, suspended the sentence, and placed him on active probation for two years with special conditions. The defendant now appeals. For the reasons more fully explained herein, we reverse the defendant’s conviction and sentence.

FACTS

Raymond Fuller was admitted as a patient to Willis-Knighton Hospital in Bossier City for treatment of severe pancreati-tis. Nurse Nicole Rowell testified that the defendant was her patient for two days during his four-day hospitalization and that he was administered narcotic medication for pain management of his illness. Although Nurse Rowell had no trouble with Fuller during her first day with him, she noted that he began exhibiting strange behavior during her second day caring for him. Nurse Rowell testified that Fuller wanted to leave the floor of his hospital room, that he pulled out his IV, that he was hollering out the window to someone when no one appeared to be there, and that he was smoking in his room after being told not to do so. As a result of the smoking, Nurse Rowell confiscated defendant’s pack of cigarettes and lighter, which she placed in a drawer in the medicine room. Because of his strange behavior, Fuller was transferred to the Intensive Care Unit for closer monitoring. However, after being given additional sedating medication, the defendant’s behavior became more erratic.

| ?.Nurse Rowell and her supervisor then searched the defendant’s hospital room to see if he might have ingested anything that could have caused his erratic behavior. Nurse Rowell found an empty bottle of “Blaejk Velvet,” a brand of bourbon, another pint of “Black Velvet,” and cigarette butts all over the room. Nurse Ro-well then went to check the confiscated cigarettes, dumped them out of their container, and saw what appeared to be a rolled marijuana joint. Nurse Rowell also testified that defendant’s room smelled of smoke and aerosol spray meant to conceal the odor. Nurse Rowell called Deputy Robbie Roberson, a Bossier Parish Sheriff Deputy who was working as a security officer at the hospital that evening. He placed the suspected marijuana joint in a sealed evidence bag, which was later taken to the North Louisiana Criminalistics Laboratory for testing. Deputy Roberson testified that the rolled cigarette appeared to be a marijuana joint and that the ashes on the window sill of defendant’s hospital room smelled of marijuana. At trial, the state presented a laboratory certificate indicating that the North Louisiana Crimi-nalistics Laboratory had determined that the rolled cigarette did contain marijuana. While Fuller was still in the hospital, Deputy Roberson issued him a citation for contraband in a hospital and possession.

At trial, Fuller denied bringing marijuana into the hospital and testified that he rarely drank alcohol. On cross-examination, he testified that he tested positive for marijuana because he tried smoking marijuana before he came into the hospital in an effort to relieve the pain from the pan-creatitis and to calm his upset stomach. Following the trial, the jury |sconvicted Fuller of taking contraband into a state-owned hospital. He now appeals, assigning as error that there was insufficient evidence to support the conviction. Specifically, the state failed to prove that Willis-Knighton Hospital is a state-owned and administered hospital.

DISCUSSION

Sufficiency of Evidence

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The state charged the defendant through bill of information with taking contraband, specifically marijuana, to “Willis Knighton [sic ] Hospital in Bossier Parish,” under La. R.S. 14:402.1. After the state rested its case at trial, defense counsel filed a motion to quash the indictment, wherein it alleged that-. Willis-Knighton Hospital is not a state-owned and administered . hospital or related facility as required by La. R.S. 14:402.1. Defense counsel attached documents downloaded from the Louisiana Secretary of State’s website, which indicated the following: that “Willis-Knighton Bossier Health Center” is a registered trade name for the non-profit corporation of “Willis-Knighton Medical Center”; that its type of business is a hospital; that “Willis-Knighton Medical Center” was originally incorporated in 1949; and, that the-registered agents for “Willis-Knighton LMedical Center” are James K. Elrod, president of the corporation, and Robert D. Huie, executive vice president of the corporation.

In response to the motion to quash, the state argued that Willis-Knighton is a “related facility” because LSU Hospital, which is a state-owned and administered hospital, shares programs with Willis-Knighton, because LSU medical residents are taught at Willis-Knighton, and because Willis-Knighton accepts payment from Medicaid. Further, the state argued that “the purpose of the legislature in the caveat of related facilities, it includes and protects the privately owned [sic ] hospitals or privately run [sic ] hospitals that are associated with the state and that also have contracts with the state, teach their doctors, provide for their surgeries and share responsibilities.” Defense counsel responded by arguing that the term “related facility” meant that it is a facility that is also state-owned and administered, not that it provides services to other state agencies.

After hearing the arguments, the trial judge denied the motion on the basis that Willis-Knighton Hospital is a “related facility” due to its shared programs with LSU Hospital, the fact that LSU medical residents are trained there, and because, “I(the judge) know for a fact that LSU would also share with some federally owned [sic] and operated hospitals that are in another parish.”

The defendant now argues on appeal that the trial court erred in denying his motion to quash because the term “related facility” refers to out-patient clinics or outpatient facilities that are stated-owned and administered, not other facilities that merely have a relationship with a state-_jowned5 and administered hospital. The defendant argues that the relationship between Willis-Knighton Hospital and LSU Hospital does not make Willis-Knighton a “state-owned and administered hospital or related facility” as required by La. R.S. 14:402.1. The State argues that the logical meaning of “related facility” in La. R.S. 14:402.1 includes Willis-Knighton Hospital.

According to La. R.S. 14:402.1, the offense of “Taking of contraband to state-owned hospitals unlawful” is defined in pertinent part as follows:

A. It shall be unlawful for any person to introduce or attempt to introduce into or upon the grounds or buildings of any state owned and administered hospital or related facility, except through regular channels as authorized by the administrator of the hospital, any of the following articles which are hereby declared contraband for the purposes of this Part, namely: Any intoxicating beverage or beverage which causes or may cause an intoxicating effect; any narcotic or hypnotic or exciting drug of whatever kind or nature including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally; and any firearm or other instrumentality customarily considered a dangerous weapon.

There is no question that marijuana and liquor would be considered contraband under this statute. The relevant question in this case, however, is whether Willis-Knighton Hospital is a “state-owned and administered hospital or related facility” as required by La. R.S. 14:402.1.

The documentation presented by the defendant to the trial court clearly indicates that Willis-Knighton is a private non-profit corporation and, thus, not a “state-owned and administered hospital.” The state acknowledged as much in its oral response to the motion to quash and alleged that it was relying upon Willis-Knighton Hospital being a “related | ^facility.” However, the state presented no evidence to the trial court or to the jury regarding whether Willis-Knighton Hospital is a “state-owned and administered hospital or related facility.” Instead, the state presented only non-supported anecdotal information through the prosecutor’s arguments to the trial court:

It’s well known that LSU Hospital which is a state owned and administered hospital. It kind of has its fingers on all of our local hospitals. It shares programs, teaches doctors, sends doctors and residents over for a teaching as well as they do at the VA Hospital. They take Medicaid. There’s lots of ways the state is involved in the administration at Willis Knighton Hospital. And Willis Knigh-ton is involved in teaching students and residents at LSU. So I think the purpose of the legislature in the caveat of related facilities, it includes and protects the privately owned hospitals or privately run hospitals that are associated with the state and that also have contracts with the state, teach their doctors, provide for their surgeries and share responsibilities.

Hence, because it was agreed by the defendant and the state that Willis-Knighton Hospital is not a “stated-owned and administered hospital,” the question of whether it qualifies under La. R.S. 14:402.1 as a “related facility” is an issue of statutory interpretation. Because there are no published eases related to this statute, this is also an issue of first impression.

According to La. R.S. 14:3, Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” State v. Spears, 39,302 (La.App.2d Cir.09/27/06), 940 So.2d 135, 141; State v. Ruffins, 41,033 (La.App.2d Cir.09/20/06), 940 So.2d 45, 50. According to Webster’s New College | ./Dictionary, the word “related” is an adjective defined as connected or associated. Within the context of' “state-owned and administered hospital or related facility,” a plain reading of the statute would indicate that a “related facility” would be another state-owned and administered facility, such as a clinic, nursing home, or entity that administers outpatient medical treatment.

The state argues that a related facility may include a medical facility that simply has a relationship with a state-owned and administered hospital or accepts state funding such as Medicaid. The state’s proffered interpretation of “related facility” does not appear to be the most logical construction of this statutory language for two reasons.

First, if having any relationship with a state-owned and administered hospital or the acceptance of state funds makes one a “related facility,” then every hospital would qualify as a “related facility.” If it had been the intention of the Louisiana Legislature to proscribe this conduct at all hospitals or medical facilities, then the statute would have simply stated that it was illegal to take contraband into a hospital or medical facility. There would be no need for such a complicated interpretation of what constitutes a “related facility.”

Second, because working relationships between public and private agencies do not transform those private agencies into public agencies, it cannot be assumed that the legislature intended for this statute to apply to all hospitals or medical facilities. As noted by this court in State v. Duque, 42,074 (La.App.2d Cir.01/18/07), 946 So.2d 760, a private, non-profit corporation can provide public services, and even administer state funds, [^without losing its identity as a private, non-profit corporation. In that case, this court discussed whether an employee of a private, non-profit corporation performing the duties of a community action agency could be charged with malfeasance in office pursuant to La. R.S. 14:134, which is a criminal statute applicable only to public officers and public employees. In so doing, this court looked at the factors set out in State v. Smith, 357 So.2d 505, 507 (La.1978), to determine whether an entity is a public or private agency: (1) the entity was created by the legislature; (2) the powers were specifically defined by the legislature; (3) the property of the entity belonged to the public; and (4) the entity’s functions were exclusively of a' public character and performed solely for the public benefit. State v. Duque, 946 So.2d at 762. Given that Willis-Knighton was not created by the legislature, that its powers are' not defined by the legislature, and that its property does not belong to the state, the fact that it accepts state-funding through Medicaid to provide medical services to the poor does* not change its status as a private, non-profit corporation. Further, because Willis-Knighton is not a public agency, it does not qualify as a state-owned and administered hospital or related facility. Therefore, it cannot be assumed that Willis-Knighton is a “related facility” under La. R.S. 14:402.1 because it is a private, nonprofit corporation operating a hospital.

This court has previously stated that “those who are not clearly included by the terms of a criminal statute are excluded.” State v. Duque, 946 So.2d at 762, quoting State v. Smith, 357 So.2d at 508. A plain reading of the phrase “state-owned and administered hospital or related | ^facility” indicates that the “related facility” must also be state-owned and administered, such as a state-owned and administered clinic or nursing home. Thus, privately-owned hospitals are not clearly included within the terms of La. R.S. 14:402.1. If the legislature had intended for this statute to apply to all hospitals or medical facilities, it would have simply stated that it was unlawful to take contraband into all hospitals or medical facilities. Therefore, a plain reading of this statute indicates that the defendant cannot be convicted of taking contraband into a state-owned and administered hospital or related facility under La. R.S. 14:402.1 when these actions clearly occurred at a private hospital. Thus, the trial court erred when it denied defendant’s motion to quash the bill of information. This assignment therefore has merit.

The defendant argues that the state presented no evidence to the jury that Willis-Knighton is a “state-owned and administered hospital or related facility.” The state argues that it presented evidence that defendant introduced marijuana into the hospital, because it was found in his hospital room while he was a patient at Willis-Knighton. However, we find that Willis-Knighton is not a state-owned and administered hospital or related facility as required by La. R.S. 14:402.1 and, therefore, the defendant cannot be prosecuted under this statute because the alleged action did not take place at a state-owned and administered hospital or related facility. Moreover, the defendant is correct in his allegation that the state failed to present any evidence before the jury to prove that Willis-Knighton is a state-owned and administered hospital or related facility. In arguing the motion |into quash, the state presented only non-supported anecdotal information through the prosecutor’s arguments to the trial court.

Given that the state failed to present any evidence before the jury on the element of state ownership or operation of Willis Knighton, the defendant would have prevailed on the claim that the state failed to present sufficient evidence of this charge, even if the issue was not already moot.

Further, the jury’s verdict does not reflect that it made a factual finding regarding whether Willis-Knighton is a state-owned and administered hospital or related facility. Most telling is the fact that the trial court’s instructions to the jury omitted that the jury must find that defendant committed the alleged actions on the premises of a state-owned and administered hospital or related facility:

The defendant is charged with introducing or attempting to introduce a narcotic or hypnotic or excited drug, namely marijuana, upon the premises of a state owned or administered hospital or related facility. In order to convict the defendant of introducing or attempting to introduce contraband, namely marijuana, upon the premises of the hospital you must find: (1) That the defendant knowingly and intentionally introduced a substance which was marijuana; and (2) That at the time of his possession the defendant was upon the premises of a hospital.

In response to the jury’s questions, the trial court issued the following supplemental instruction, wherein it again omitted the need for finding that the defendant had committed the alleged actions on the premises of a state-owned and administered hospital or related facility:

In order to convict the defendant of introducing or attempting to introduce contraband, namely marijuana, upon the premises of the hospital you must find: (1) That the defendant knowingly and intentionally introduced or attempted to introduce a substance which was marijuana and (2) That at the time of the possession the defendant was upon the premises of the hospital.

| ^Further, in its opening and closing statements, the state referred to the charged offense as “introducing contraband into a hospital” or introducing contraband into Willis-Knighton Hospital. In its rebuttal arguments, the state simply told the jury that the issue of whether Willis-Knighton is a state-owned and administered hospital or related facility had already been addressed and resolved.

The jury’s verdict does reflect, however, that it believed the defendant was in possession of marijuana. Possession of marijuana is a criminal offense defined by La. R.S. 40:966(E), wherein the grade of offense and penalty depend upon whether this is a first or subsequent conviction for possession of marijuana. Therefore, the defendant’s alleged conduct of possession of marijuana was illegal conduct under La. R.S. 40:966(E), and the state could have chosen to charge defendant with this offense rather than the offense of taking contraband into a state-owned hospital.

According to La. C. Cr. P. art. 821(E), the appellate court may take corrective action if it finds that the evidence supports a conviction for a lesser included responsive offense:

E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, m lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

Particular responsive verdicts are contained for specific charged offenses in La. C. Cr. P. 814. Because a responsive verdict for the offense of taking contraband into a state-owned hospital is not contained in La. C. Cr. P. art. 112814, any possible responsive verdict for that offense is governed by La. C. Cr. P. art. 915:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense is a misdemeanor; or
(3) Not Guilty.

The offense of “possession of marijuana” is not a statutory “lesser and included grade of the offense” of the offense of “taking contraband into a state-owned hospital.” Thus, this court is precluded from exercising its discretion under Article 821(E) to modify the defendant’s verdict to guilty of possession of marijuana. Therefore, not only would the evidence be insufficient to support a conviction of taking contraband into a state-owned hospital, this court cannot modify the verdict to possession of marijuana.

CONCLUSION

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

REVERSED.


text:
    Kim SMITH and Marty Smith, Plaintiff-Appellant v. Mr. & Mrs. Patrick J. ROCKS and Allstate Insurance Company, Defendant-Appellee.
    No. 42,021-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Sam N. Gregorio, Roy S. Payne, Shreveport, for Appellant.
    Craig 0. Marcotte, Shreveport, for Ap-pellee, Louisiana Farm Bureau Casualty Insurance Company.
    Before BROWN, WILLIAMS and-CARAWAY, JJ.
   WILLIAMS, Judge.

| tThe plaintiffs, Kim Smith and Marty Smith, appeal a summary judgment rendered in favor of the defendant, Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”). The district court found that the Farm Bureau insurance policy did not provide coverage for plaintiffs’ damages. For the following reasons, we reverse in part, affirm in part and remand.

FACTS

On May 16, 2003, an automobile accident occurred when Sara Cockrell, a minor, attempted to turn left from U.S. Highway 79 onto Panther Drive in Bossier Parish and collided with a vehicle driven by Kim Smith. Sara, whose parents were divorced, was driving a 1997 Toyota Camry owned by her mother, Linda Rocks, and her step-father, Patrick Rocks. The automobile was covered by an insurance policy issued by Allstate Insurance Company (“Allstate”) and Sara was an insured under the policy. As a result of the accident, Kim Smith sustained physical injuries, including a fracture of the left hip, which required surgery.

The plaintiffs, Kim Smith and her husband, Marty Smith, filed a petition for damages against the defendants, Linda and Patrick Rocks and Allstate. Sara’s father, Kevin Cockrell, owned an automobile insured by Farm Bureau. The policy provided coverage to Kevin Cockrell as the named insured and to any relative “while a resident of the named insured’s household.” Subsequently, the plaintiffs amended their petition to add Farm Bureau as a party defendant, alleging that its policy provided coverage to Sara for the accident. Later, the plaintiffs dismissed their action against 12Linda and Patrick Rocks and Allstate.

In September 2004, the plaintiffs filed a motion for partial summary judgment asserting insurance coverage under the Farm Bureau policy on the grounds that Sara was a resident of her father’s household. In response, Farm Bureau filed a motion for summary judgment denying coverage on the basis that Sara was not a resident of Kevin Cockrell’s household.

After a hearing, the district court denied plaintiffs’ motion and granted summary judgment in favor of Farm Bureau, dismissing the insurer from the lawsuit. In its written reasons, the court found that Sara was not a resident of her father’s household and was not covered under the Farm Bureau insurance policy. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting Farm Bureau’s motion for summary judgment. In three assignments of error, plaintiffs argue that a genuine issue of material fact exists as to whether Sara was a resident of her father’s household for the purpose of insurance coverage considering the contradictory deposition testimony and the ambiguous policy language.

Appellate courts conduct a de novo review of summary judgment under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material hfact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App.2d Cir.1/24/01), 778 So.2d 728, writ denied, 01-0512 (La.6/15/01), 793 So.2d 1232. The burden of proof remains with the mover. LSA-C.C.P. art. 966(C)(2). However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment and points out an absence of factual support for one or more elements essential to the adverse party’s claim, the non-moving party must produce factual support sufficient to show that he will be able to satisfy his evidentiary burden at trial. Otherwise, there is no genuine issue of material fact for trial, and summary judgment is appropriate. LSA-C.C.P. arts. 966 and 967; Welch, supra.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation set forth in the Civil Code. Louisiana Insurance Guaranty Assoc. (“LIGA”) v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. LSA-C.C. art. 2045; LIGA supra. Such intent is to be determined in accordance with the general, ordinary and plain meaning of the words used in the policy, unless the words have acquired a technical meaning. Gedward v. Sonnier, 98-1688 (La.3/2/99), 728 So.2d 1265.

If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the drafter, or in the insurance context, in favor of the insured. This rule of Rstrict construction requires that ambiguous policy provisions be construed against the insurer who issued the policy and in favor of coverage to the insured. LSA-C.C. art.2056; LIGA supra.

If a term, such as “resident,” is not defined in the policy, then the term has no absolute or precise meaning. Gedward, supra. Whether or not a person is a resident of a particular place is a question of law and fact to be determined from all of the facts of each particular case. Gedward, supra; Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981)(on rehearing); Jones v. Crane Co., 26,781 (La. App.2d Cir.4/5/95), 653 So.2d 822. In determining whether a person is a resident of a particular household with respect to insurance coverage, the emphasis is upon whether there remains membership in a group or a relationship with a person, rather than an attachment to a building; the issue is a matter of intention and choice, not one of location. Gedward, supra; Bearden v. Rucker, 437 So.2d 1116 (La.1983); Jones, supra.

In the present case, the Farm Bureau policy provided that under coverages A and B (bodily injury and property damage), the word “insured” means “the named insured and any resident of the same household.” In the section titled “Use of Other Automobiles,” the policy further provided that the same insurance afforded by the policy for the covered automobile applied with respect to “the use of any other automobile with permission of the owner, subject to the following provisions: (a) under Coverages A and B only, the unqualified word ‘insured’ includes: (1) such named insured and spouse ... and a relative of the named insured or spouse while a resident of [ 5the named insured’s household.” The policy did not define the words resident or household.

In his deposition, Kevin Cockrell testified that Sara’s mother had been given sole custody of their daughters and that he lived approximately five miles from the mother’s home. Cockrell stated that there was no set visitation schedule and that Sara was “free to come over whenever.” Cockrell testified that from January 1, 2003 through May 2003, Sara had spent the night at his house and on those occasions she slept in a guest room which was provided for “whoever comes and stays with us.” He stated that Sara did not keep clothing or any other personal items at his house, she did not have a key to the house and did not receive mail there. Cockrell testified that although he tried to have dinner with Sara at least once a week, several weeks could pass by when he did not see her at all because of her busy schedule. Cockrell stated that he paid child support and occasionally purchased various items for Sara.

In her deposition, Sara testified that she was 16 years old and lived with her mother, sister and step-father in Haughton, approximately a ten-minute drive from her father’s house. Sara stated that she was not sure of her father’s address in Bossier Parish, that she did not have a key to his house and did not receive mail there. Sara testified that her father did not have a specific schedule of visitation, that they have a good relationship and that she was “not as close as I would like to be to him, but we are kind of close, I guess.” Sara estimated that she visited her father once or twice each month and said that during the visits she might play games or watch ^television with her father’s daughter from his second marriage. Sara stated that she sometimes spent the night when visiting her father, but not every time. Sara testified that she did not have her own bedroom at her father’s, but stayed in a guest room and that she did not keep any clothes or personal items there. Sara recalled that in the summer of 2003 she traveled with her father to Arkansas and that two years earlier they had traveled to Washington, D.C. Sara testified that her father had attended many of her performances with the high school dance line, but that she did not participate in any activities with just her father.

Linda Rocks testified in her deposition that she exercised sole custody of Sara, who resided with her in Haughton. Rocks stated that there was no written plan of visitation and that Kevin Cockrell had never sought a formal visitation schedule. She recalled that the custody agreement allowed Cockrell “liberal visitation rights” with his daughters. Rocks estimated that from January 1, 2003 through May 2003, Sara might have stayed over at her father’s house for two nights during the holiday vacation and maybe one or two other nights during that five-month period. Rocks stated that Sara visited her father more often, approximately one or two times per month on average, when she did not spend the night. Rocks testified that Cockrell had recently changed jobs and they had agreed he could pay less child support for a period of time.

An insured bears the burden of proving that an insurance policy affords coverage for an incident. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119. Summary judgment declaring a lack of coverage |7under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Davis v. American Heritage Life Insurance Co., 35,153 (La.App.2d Cir.10/31/01), 799 So.2d 705.

In Gedward, supra, the supreme court found that a child was a resident of his father’s dwelling because the parents exercised joint custody and the father generally saw his child every other weekend. The court reasoned that the child’s relationship with his father was not divested when his parents divorced and that the residency status of an unemancipated minor is tied to that of his parents. In addition, the court found that facts such as the child did not have a bedroom at the father’s house, did not keep clothing at the house or receive mail there were not dispositive of the residency issue since such factors focused on attachment to a building.

In Bearden, supra, the supreme court found that a wife who had been physically separated from her husband for nine months at the time of the accident was a resident of the husband’s household where they had not divorced, they retained joint ownership of community assets, she retained keys to the family home and occasionally ate meals with her children. In the Bond case, on rehearing, the supreme court found that a 30-year-old divorced man, who worked off-shore and rented an apartment in Lafayette before his death, had been a resident of his father’s household in Alexandria and was covered under the father’s insurance policy. The father testified | sthat his son lived with him in the Alexandria home when not on call for work and kept personal property there.

In this case, the plaintiffs carried the burden of proving at trial that Sara was a resident of Kevin Cockrell’s household in order to extend coverage under the insurance policy. In moving for summary judgment, Farm Bureau alleged that plaintiffs could not show that Sara was a resident of Cockrell’s household based on the facts that Sara did not have her own bedroom at her father’s house, she did not keep clothing at the house, she did not have a key and never received mail there. However, in Gedward, the supreme court stated that those factors are not determinative of the residency issue.

The plaintiffs also moved for summary judgment and presented evidence showing that after her parents divorced in 1993, Sara had maintained a relationship with her father through communication, visits of varying frequency and summer travel together. Plaintiffs submitted the deposition testimony of Cockrell, who stated that he and Sara tried to meet for dinner each week and that they did have weekly visits for some periods of time. Although Cock-rell acknowledged that in the six months prior to the accident he and Sara had not seen each other as often as in the past, he said Sara was welcome at his home whenever she could visit and he described their relationship as good. Sara and her mother testified that Sara visited her father approximately once or twice each month and that she sometimes stayed overnight at his house.

In considering whether summary judgment was appropriate in this l9case, we note that Farm Bureau’s insurance policy used undefined terms and that this ambiguous language is construed in its most inclusive sense in favor of coverage. After reviewing the record and the applicable law concerning whether a person is a resident of a place, we conclude that the evidence submitted in this case demonstrated a factual situation under which the insurance policy could reasonably be interpreted to afford coverage. The deposition testimony showed that for a period of almost ten years, Sara visited with her father at least on a monthly basis, she periodically stayed overnight at his house and she joined her father for summer trips. Thus, the plaintiffs produced sufficient evidence to establish a genuine issue of material fact as to whether Sara, a minor child, was a resident of her father’s household in the most inclusive reasonable sense of that term. Consequently, the district court erred in granting Farm Bureau’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment granting Farm Bureau’s motion for summary judgment and dismissing plaintiffs’ claims is reversed. The judgment is otherwise affirmed and this matter is remanded to the district court for further proceedings. Costs of this appeal are assessed to the appellee, Louisiana Farm Bureau Casualty Insurance Company.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.


text:
    STATE of Louisiana, Appellee v. Marlow GREEN, Appellant.
    No. 41,977-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, Ron C. Stamps, Scott Chafin, Jr., Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

_JjThe defendant, Marlow Green, was convicted of aggravated rape. He was sentenced to life imprisonment, plus one day in jail in the event of default on the payment of court costs. His appeal is based on alleged error in the indictment. Finding no reversible error, we affirm his conviction and life sentence, which we amend to delete the additional day of imprisonment.

FACTS

By way of secret indictment filed on January 20, 2005, the defendant was charged with aggravated rape. The indictment reads as follows:

On this the 20th day of January, the Grand Jury of the Parish of Caddo, State of Louisiana, charges that during October and November 2003, inclusive, at and in the Parish, District and State aforesaid,

MARLOW GREEN, b/m, DOB 9-1-85

Committed AGGRAVATED RAPE

In violation of R.S. 14:42(A)(4) in that

He had vaginal intercourse with ... b/f, DOB 8-13-92, without the lawful consent of the victim because she was under the age of twelve at the time.
CONTRARY TO THE LAWS OF THE STATE OF LOUISIANA and against the peace and dignity of same.

Evidence adduced at trial proved conclusively that the defendant committed the charged offense, and the jury returned a unanimous verdict of guilt. The defendant filed motions for new trial and for post-verdict judgment of acquittal, both of which were denied. The trial court imposed the mandatory life sentence without benefits of probation, parole, or suspension of sentence. It was to run concurrently with any other sentence he was required to serve. The trial court also ordered the defendant to pay | p.court costs within one day and imposed an additional day in jail in default of payment. This appeal followed.

DISCUSSION

Appellate counsel assigns as error deficiency in the indictment due to failure to comply with La. C. Cr. P. art. 462. Counsel asserts that the indictment’s failure to state the specific date on which the grand jury met is fatal error. Counsel argues that the absence of the date deprives the defendant of knowledge as to which grand jury panel returned the indictment and prevents him from assessing whether the panel was properly constituted or whether the foreman was properly selected according to law.

The state’s response is that the defendant’s failure to file a motion to quash the indictment prior to trial waived any objection thereto. Moreover, the state asserts that the filing date on the secret indictment is sufficient to allow the defendant to identify the date on which the grand jury action was taken.

An indictment is required to be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” La. C. Cr. P. art. 464. The form of a grand jury indictment is prescribed by La. C. Cr. P. art. 462 as follows:

The indictment by a grand jury may be in substantially the following form:
In the (Here state the name of the court.) on the_day of_, 19_ State of Louisiana v. A.B. (Here state the name or description of the accused.)
The grand jury of the Parish of _, charges that A.B. (Here state the name or description of the accused.) committed the offense of_, in that (Here set forth the offense and transaction according to the rules stated in this Title. The ^particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the State of Louisiana and against the peace and dignity of the same.

An indictment shall not be invalid or insufficient due to any defect or imperfection in, or omission of any matter of form only. La. C. Cr. P. art. 487(A).

The primary purpose of the dating requirement in La. C. Cr. P. art. 462, according to Official Revision Comment (b), is to establish the date prosecution was initiated in the event there is a time limitation for same. As to this issue, the courts have held that the filing date of the indictment is sufficient to establish when the prosecution was initiated. State v. Davis, 614 So.2d 270 (La.App. 3d Cir.1993), reversed on other grounds, 634 So.2d 1168 (La.1994), citing State v. Sepulvado, 342 So.2d 630 (La.1977). Logically, the filing date would also be sufficient to inform defense counsel of which grand jury returned the indictment so that he may assess whether its composition or selection provided any basis for quashing the indictment.

The time for testing the sufficiency of an indictment or the validity of the composition or selection of the grand jury is before the trial by way of a motion to quash. State v. Gainey, 376 So.2d 1240 (La.1979); State v. Lee, 340 So.2d 180 (La.1976). A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Gainey, supra.

No motion to quash the grand jury indictment was filed in this matter. The failure to have filed a motion to quash based on the alleged defect in the Rindictment bars relief on appeal. Nevertheless, the defendant’s claim is without merit. The copy of the secret indictment in the record shows that it was formally filed by the grand jury on January 20, 2005, this being the same day of the month which the body of the indictment indicates the grand jury charged the defendant. This information would have sufficed to allow defense counsel to determine under which grand jury term the indictment was handed down. The defendant’s assignment of error is without merit.

On error patent review, we find that the trial court erred in ordering the defendant to serve one day in jail in default of payment of court costs. An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs, or restitution. State v. Mack, 30,-832 (La.App.2d Cir.6/24/98), 715 So.2d 126; State v. Hughes, 587 So.2d 31 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1197 (La.1992). Indigence may be discerned from the record. State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992), writ denied, 610 So.2d 797 (La.1993). The defendant was represented at trial by the indigent defenders’ office and on appeal by the Louisiana Appellate Project, thus we may conclude that he was and is indigent. Considering the defendant’s indigency, we find that the sentence in lieu of payment of court costs was illegal, and we amend the sentence to delete that portion providing for the additional day.

CONCLUSION

For the reasons expressed, the defendant’s conviction is affirmed. His life sentence is also affirmed with the amendment deleting the additional day in default of the payment of court costs.

AFFIRMED AS AMENDED.