author: LOLLEY, J.

text:
    Delores June ALLEN, Plaintiff-Appellant v. Vivian FINLEY, Defendant-Appellee.
    No. 41,967-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      William H. Hallack, Jr., West Monroe, for Appellant.
    Kenneth L. Harper, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

|! Dolores June Allen (“June”) appeals from a judgment of the Fourth Judicial District Court, Parish of Ouachita, Louisiana, recognizing her right to a servitude of passage across Vivian Finley’s (“Vivian”) property, but limiting the servitude to a road that is 15-feet wide. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Facts

June Allen is the owner of a piece of landlocked property in western Ouachita Parish, Louisiana. This dispute between former sisters-in-law concerns a servitude of passage across Vivian’s property that allows June access to her property from nearby Highway 80. All of the property in question was at one time owned by James Allen and his wife, Vivian’s parents. Since at least 1964 when James Allen bought a portion of the property from an ancestor in title, a 15-foot wide gravel road has provided access to the interior of the tract. The road is shown on a 1964 deed conveying adjoining property to James Allen but not on the 1961 deed where he bought the portion of the property upon which the road now sits.

In 1971, June and Adrian Allen, who subsequently divorced, moved onto a 0.31 acre portion of the tract to use as a site for their home. They bought the property from James Allen in 1976. This tract was less than 400 feet to the south of Highway 80, and this site’s only access to Highway 80 was by the gravel road running north-south, colloquially known as Allen Lane; the property was otherwise landlocked. From the time June and Adrian moved onto the property in 1971, they used Allen Lane to access 12their property. However, the deed to June and Adrian did not mention a servitude of passage. Over the years, James Allen widened Allen Lane and it may have been as much as 30 feet wide at one point, but little gravel remains on the road; its surface is now mostly dirt.

In 2003 James Allen donated a 1.51 acre tract in the interior of the property to Vivian. Included in this donation was an “ingress/egress and/or utility servitude” over Allen Lane. In 2005 James Allen donated the ownership of much of the remainder of the tract to Vivian including the portion of the tract across which Allen Lane runs.

After Vivian obtained ownership of Allen Lane, she ordered one of her employees to build a fence down the middle of the length of Allen Lane. This fence is 17 feet or less to the west of and parallel to the boundary line between Vivian’s and June’s property. This fence is constructed from wooden 4x4 posts with a row of boards and tin at the bottom. Photos of the fence show that it was not erected in the center of the road; rather, it is offset by an uncertain distance toward the eastern edge of Allen Lane. Past the portion of the Allen Lane roadbed on June’s (east) side is an unimproved area thinly covered with grass that comprises the servitude of passage as it now exists.

Subsequently, Vivian ordered the construction of a smaller fence made from small metal posts and one strand of barbed wire, parallel to the first fence, to mark the boundary between the property. Vivian then ordered the construction of yet a third fence, this one between the outer and inner fences. Like the second fence, the third fence was made from small metal lsposts and barbed wire. According to Vivian, the third (middle) fence allows June a passage (between the middle fence and the property line fence) on Allen Lane that is approximately 13 feet wide to get to Highway 80. This middle fence blocks access to virtually all of the established roadbed of Allen Lane that is on June’s side of the first fence. It was estimated that this width of the blocked area of Allen Lane was three to five feet.

According to June and her daughter, Lori Edwards, the addition of the inner fence made the road too narrow, forcing them to drive on the property of an adjacent neighbor to reach the highway. In addition, what is left of the road becomes very muddy when it gets wet. In fact, photos of the road depict a muddy and deeply rutted turn near June’s home. According to June, the road is currently too narrow to bring in a gravel truck despite her stated willingness to improve the road at her own expense.

After Vivian refused to remove the fences, June filed a lawsuit seeking a declaratory judgment, preliminary and permanent injunctive relief and money damages. Among other things, June asked for a 15-foot wide passage from her home to Highway 80, the right to construct a roadbed sufficient to provide access to Highway 80, and damages. After hearing evidence and viewing photos of the fences, the trial court granted the preliminary injunction and ordered Vivian to remove the middle fence, determining that the fence did not serve any useful purpose and unduly restricted June’s passage to her home. The trial court also ordered the removal of a small part of the more substantial fence near the road because Lit impaired access. The trial court did not order Vivian to pay any damages, or improve the servitude. From this judgment, June appeals.

DISCUSSION

On appeal, June argues that the court erred by not ordering a permanent injunction and by allowing Vivian to relocate June’s access at her expense, without a determination that the relocated access was equal to what she had before. Vivian concedes on appeal that June is entitled to a permanent injunction but argues that the trial court’s ruling now provides June with adequate access.

Louisiana C.C. art. 694 currently provides:

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.

In 1976, former La. C.C. art. 701 of the 1870 Civil Code provided:

It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.

Louisiana C.C. art. 695 provides:

The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the ser-vient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.

|fiThus, pursuant to former La. C.C. art. 701, which was in effect at the time when James Allen sold the 0.31 acre tract to June in 1976, a gratuitous servitude of passage was created along what was then Allen Lane, the portion of the land on which the passage was previously exercised. Vivian has relocated the servitude of passage to include only a portion of one half of Allen Lane, and she has failed to provide June the same facility as she had before. Vivian may have the right to relocate the passageway, but she is bound to provide June with an equivalent passageway to access her land. Mercer v. Daws, 186 So. 877 (La.App. 2d Cir.1939).

June proved at trial, and the trial court found, that the relocation did not afford her the same facility that she had with the road as it had been. In fact, the photos included as evidence show a very narrow passageway between the middle and property-line fences; only the extreme western edge of the passageway has any of the Allen Lane roadbed. The trial court chose the simplest and most practical solution to the problem by requiring Vivian to remove the middle (third) fence from the road. That fence narrowed the passageway by approximately four feet and, as the trial court found, served no meaningful purpose. However, the evidence — in particular the photos — shows that even when this middle fence is removed, June only has a portion of the Allen Lane roadbed to drive on. Although Allen Lane is now primarily a dirt road, it is a hard-packed and established dirt road. The portion of the servitude between the eastern edge of Allen Lane (on June’s side of the permanent fence) and the property line fence, i.e. the passageway that is left pursuant to the trial court’s ruling, is not an established road and | ⅜⅛ subject to flooding and very muddy conditions. The trial court was clearly wrong in finding that the removal of the middle fence was alone sufficient to “afford the same facility to the owner of the enclosed estate.” Clearly some improvement will have to be made to the road on June’s side to make its use equivalent to what it was before the erection of the fences.

Vivian concedes that June is entitled to a gratuitous right of passage and to a permanent injunction. We agree with the trial court’s ruling granting June a gratuitous right of passage but disagree with its finding that the removal of the middle fence was sufficient under La. C.C. art. 695. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Cosby v. Holcomb Trucking, Inc., 2005-0470 (La.09/06/06), 942 So.2d 471. The record plainly shows that the servitude, even as modified by the removal of the middle fence, remains unsuitable for routine vehicular travel. To the extent that the trial court found otherwise, it was clearly wrong. However, we decline to dictate the terms of the permanent injunction on appeal. Instead, we remand this matter to the trial court to fashion a remedy in accordance with La. C.C. art. 695 providing June a right of passage which “affords the same facility” to her as before. Even though June only requests fifteen feet of passageway, it is incumbent |7upon Vivian to provide June with fifteen feet that is as roadworthy as the passage she had before.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part and remanded to the trial court for further proceedings. Costs of this appeal are assessed to Vivian Finley.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Joseph McCOY, Plaintiff-Appellee v. Patricia BROCK, Defendant-Appellant.
    No. 41,948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Law Office of Snell and Robinson, by A. Richard Snell, Bossier City, for Appellant.
    J. Spencer Hays, Bossier City, for Ap-pellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

h Following the death of the mother, two children born out of wedlock became the subject of a custody dispute between the father of the children and the maternal grandparents. By agreement between the parties and consent rulings of the court, the father received custody with significant visitation provided the grandparents. After two years of this custody arrangement, the grandparents filed pleadings seeking paternity testing regarding one of the two children. The court denied the request for paternity testing and this appeal followed. We affirm.

Facts and Procedural History

Patricia and Odell Brock are the grandparents of their deceased daughter’s children, W.M. and K.M., ages 10 and 8. When the Brocks’ daughter, Kendra Brock, died in February 2004, the children remained with the grandparents.

On May 21, 2004, Joseph McCoy filed this suit against the Brocks for custody of W.M. and K.M., alleging his status as their biological father and the existence of formal acknowledgments of paternity. Attached to his petition were the birth certificates of the children listing him as the father. An ex parte order was obtained directing the sheriff to take the minor children into custody and deliver them to McCoy the same day.

Less than three weeks later, the Brocks filed a rule alleging that McCoy’s “Petition for Return of Children” was “procedurally defective and ^without legal basis” and that his right to custody could not be established by name placement on a birth certificate. The Brocks alleged that W.M. and K.M. lived with them for most of their lives and were enrolled in Benton Elementary School. They alleged McCoy, who lived in Shreveport, visited them irregularly and had paid monthly child support only after it was obtained by their daughter through support enforcement services. A preliminary hearing on the custody issue occurred on September 23, 2004, and produced an interim order by consent on October 25, 2004. The trial court awarded the Brocks visitation on alternating weekends and appointed a mental health professional to evaluate the children.

The matter was delayed pending receipt of Dr. Susan Vigen’s mental health evaluations of the children. After Dr. Vigen’s reports were filed in the record on April 11, 2005, the custody dispute was fixed for trial on July 28, 2005. The court’s minute entry for that hearing reflected the following:

Case is called. Spencer Hays was present in open court with plaintiff, Joseph McCoy. Darrell R. Sims is present with defendant, Patricia Brock. Ms. Brock will have continued visitation. The interim order will be the final judgment. Ms. Brock will have the children 5 weeks during the summer break, thereafter every other weekend, with shared holidays. Ms. Brock will have phone communication with children. The point of exchange of the children will be changed from Dairy Queen, and will be decided by the parties. Judgment will be submitted by Spencer Hays. See decree.

The judgment of July 28, 2005, was later admitted in the pleadings by the Brocks to have resulted from the parties’ consent and compromise. Nevertheless, a signed judgment specifying the custody arrangement was not signed immediately. With such consent judgment still unexecuted by March 2006, the Brocks petitioned the court, citing the parties’ failure to | shave reached agreement on the “shared holidays” portion of the July 28, 2005 consent judgment. The pleading asked for relief that would clarify this aspect of the custody ruling. Additionally, in this March 20, 2006 pleading, the Brocks made the following allegations:

9.
That just prior to her death the daughter of petitioners and mother of the children questioned the paternity of JOSEPH MCCOY as concerns the child [K.M.] (seven years old).
10.
That your petitioners desire that an order issue compelling the defendant-in-rule to show cause why he should not provide his DNA/Blood for the purposes of establishing the paternity of the minor child [K.M.].

As a result of the Brocks’ petition, a hearing was held on April 27, 2006. Although there is no transcript of this hearing in the record, the minutes reflect:

Agreement is read into the record. Judgment to be prepared and signed by May 26, 2006 and any authority needs to be submitted by that date for DNA testing. Case is set for ruling on June 22, 2006.

On June 12, 2006, a “Judgment of Custody” was signed by the trial court. The judgment reflects that it was “rendered” on July 28, 2005, obviously in reference to the prior custody agreement which was specified in writing for the first time. The judgment detailed McCoy’s award of custody in relation to the Brocks’ visitation rights, including the holiday schedule. The final paragraph of the June 12, 2006 judgment states that “the issue of paternity of the minor child, [K.M.], is reserved for ruling on June 22, 2006, on which date all parties are ordered to return.”

|,tOn June 22, 2006, the trial court heard argument on paternity testing for McCoy. The Brocks’ argument rested on the authority of La. R.S. 9:396. The trial court ruled from the bench as follows:

... I think the Court would have the authority to order this, but I’m not going to do that. I would just simply note that the original petition in this case now before the Court was filed on May 21, 2004. Of course that was over two years ago. I think prior to that, from what I understand, Ms. Brock’s daughter, the mother of the children sought and was awarded child support against Mr. McCoy, never questioning that he was the father of the children. So I just don’t believe that at this late date I’m going to order that Mr. McCoy submit to paternity testing. I think he was recognized in the birth certificate as the father. It’s my understanding it’s never been questioned until this late date. So the request by Ms. Brock for the paternity testing is denied by the court. I will note your objection to the Court’s ruling.

The judgment formally denying the grandparents’ request was signed on July 6, 2006. In the motion for appeal filed in August 2006, the July 6, 2006 judgment denying the paternity test was listed as the judgment which is the subject of this appeal.

Discussion

The Brocks’ sole assignment of error is that “[t]he Trial Court erred in failing to order the person claiming to be the natural father of an illegitimate minor child whose mother had died to submit to a paternity test and thereafter a trial on the issue of filiation at the request of the maternal grandparents.”

In view of the prior consent judgment recognizing McCoy’s custody, the Brocks do not seek to appeal the prior determination of custody. The |..¡findings of Dr. Vigen’s report were never the subject of a contested hearing because of the parties’ consent agreement, and the Brocks correctly raise no issue in brief regarding the existing custody award or McCoy’s actions as the custodian of the children.

The Brocks’ argument principally rests on La. R.S. 9:396(A) which provides as follows:

Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaven, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedure. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interest of justice so require.

(Emphasis supplied). The question therefore presented under this statute is whether the issue of paternity is relevant as the sole ground for modification of KM.’s custody.

Custody is, and has been, the focus of contention for these parties. The Brocks, as grandparents, have standing for seeking visitation or custody of K.M. from the implications of various Louisiana statutes. La. R.S. 9:344; La. C.C. art. 256(B); La. C.C. art. 133. While existing implementation of a “nonconsidered” custody decree has governed and is presumed to be in the best interest of K.M. and her sister, the grandparents are not precluded from | (¡seeking a modification of such custody. Because of the need for flexibility in this area, the law grants courts continuing jurisdiction for modification of prior awards, upon the appropriate showing and according to the best interest of the child. Street v. May, 35,589 (La.App. 2d Cir.12/5/01), 803 So.2d 312, 319; La. C.C. art. 131. After a court’s initial award of custody, however, one key factor weighing against further modification of custody is the continuity of the child’s established living environment. See generally, Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986), and Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. Where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Id. at 738.

Importantly, even assuming that a paternity test may reveal that McCoy is not K.M.’s father, he remains the parental custodian of her sister and the nonparent custodian of KM. under court orders that have established the child’s living environment for over two years. Moreover, any prospective custody fight, post-testing of McCoy, would still involve the (nonparent) grandparents against the now-alleged non-parent custodian, who has been obligated with providing KM. and her sibling with a wholesome and stable environment for over two years. Yet, the Brocks make no charge that a material change of circumstances has affected the established living environment of KM., i.e., the custodial arrangement to which they consented. Their narrow argument of the paternity issue ^suggests that if McCoy is shown by testing to be the father, nothing in the existing custody arrangement is detrimental to KM.’s best interest so as to warrant a change in custody.

Instructive for this dispute is our prior ruling in Hill v. Hill, 602 So.2d 287 (La. App. 2d Cir.1992). In that case, the aunt and uncle of the child had challenged the mother’s custody of their niece. By consent judgment, the aunt and uncle had previously been awarded sole custody with the mother agreeing to restricted visitation. Eighteen months later, the mother unsuccessfully challenged the custody of the nonparents in the trial court. Addressing the mother’s burden of proof against the nonparent on appeal, we ruled:

... at a subsequent hearing to change custody awarded by a “nonconsidered” decree we find that the burden of proof should be on the party seeking the change and the standard should be the same as is applicable in custody disputes between parents. Thus the natural mother who is seeking a modification of the consent judgment must show a material change in circumstances and that a change in custody is in the best interests of the child.

Id. at 289. The mother failed to show that a material change in circumstances had occurred, and the nonparents’ custody was maintained.

The holding in Hill shows that after custody is initially awarded to a non-parent over a parent, parental primacy may no longer carry the same weight due to the accrual of factors in the custodial environment that develop with the nonpar-ent. Likewise in this case, even assuming nonparents are involved on both sides of this dispute, the Brocks will have to allege a material change in circumstances affecting the best interest of [SKM. under the existing custody arrangement, apart from any issue of paternity, to effect any modification of the child’s custody.

Conclusion

The trial court’s succinct reaction to the Brocks’ claim was correct, as its ruling went to the relevance of paternity testing at “this late date” when the pending consensual custody arrangement was not otherwise challenged. Accordingly, we affirm the trial court’s ruling. Costs of appeal are assessed to the Brocks.

AFFIRMED.

      . We will refer to the party at interest as the Brocks even though some of the pleadings were filed solely in the name of Patricia Brock.

      . Their younger sister, T.B., is six years old and not involved in these proceedings.

      . In Hill v. Hill, 471 So.2d 1130 (La.App. 3d Cir.1985), the court held that a judgment recognizing the parties’ stipulated plan for custody was an unappealable judgment under La. C.C.P. art. 2085.

      . The mention of "filiation” in the Brocks’ assignment of error is not explained in brief, and we assume that the Brocks would contest custody if paternity testing established that McCoy is not the father of K.M.


author: SEXTON, J.

text:
    STATE of Louisiana, Appellee v. Paul G. LATHAN, Jr., Appellant.
    No. 41,855-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    Robert W. Levy, District Attorney, Clifford R. Strider, III, Assistant District Attorney, for Appellee.
    Before DREW, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| defendant, Paul G. Lathan, appeals his conviction and sentence for manslaughter. He was indicted for second degree murder, but the jury convicted him of the responsive verdict of manslaughter. The trial court sentenced Defendant to 27 years at hard labor with credit for time served. Defendant now appeals. For the reasons set forth below, Defendant’s conviction and sentence are affirmed.

FACTS

Defendant approached his neighbor, Roy Jenkins, at his workplace and told him that he thought the victim, Ricky Lyons, had broken into his house. Mr. Jenkins confirmed that the victim probably had done it because he was known for doing things like that. Defendant responded that he was going to kill the victim the next time he saw him. Mr. Jenkins did not think Defendant was serious, so he did not repeat what Defendant had said to anyone.

The next day, a few minutes after 8:00 p.m. on the evening of July 9, 2003, Betty Crawford was taking her daughter home when she saw the victim, whom she knew, walking down Highway 146 outside the Ruston city limits. She dropped off her daughter and intended to come back to give the victim a ride. Ms. Crawford was waiting at the intersection of Highway 146 and South Chatham Spur as the victim walked toward her car. Before he could get there, however, a black Volvo driving down Highway 146 slammed on its brakes, swerving to a stop between the victim and Ms. Crawford’s car. Ms. Crawford recognized the driver of the black Volvo as Defendant.

li>Ms. Crawford saw Defendant get out of the car with what she originally believed was a long stick, which she eventually realized was actually a “long gun.” The victim had nothing in his hands, appearing to be unarmed. She rolled down her window so she could hear what they were saying, but she could only hear Defendant talking. Defendant said, “Where’s my s* * *? You’re gonna tell me where my s* * * is. You think I’m playing with you, don’t you?” At that point, Defendant raised up the gun. Ms. Crawford drove away, and as she did so, she heard two shots fired.

Mr. Jenkins was in his kitchen when he heard the shots fired. He went out on his front porch to see what had happened and saw Defendant in his yard with a gun. Defendant walked to the corner of his house, bent over by a bush, walked back to his car and then drove away in his black Volvo. At the time, Mr. Jenkins could not see the victim’s body because it was in the grass and surrounded by high weeds.

When paramedics arrived on the scene, the victim had an obvious gunshot wound to the head. Although the victim was breathing and had a pulse when treated by paramedics at the scene, he was later placed on life support at the hospital and eventually died. According to Dr. Frank Peretti, the forensic pathologist, it was a close contact gunshot wound just above the victim’s right eyelid. Dr. Peretti testified that the muzzle of the gun was approximately one-half to three-fourths inches away from the victim at the time the gun was fired.

Investigators found two spent shells at the scene, which were later identified by a firearms expert as having been fired from the same weapon |.,and as being of a caliber typically fired from a semi-automatic rifle. Although Defendant voluntarily gave a statement and showed investigators where he abandoned the weapon after the shooting, investigators were unable to find the weapon.

The grand jury returned a bill of indictment on August 25, 2003, charging Defendant with second-degree murder. The trial court denied Defendant’s motion to quash filed October 24, 2005, the date this matter was set for trial. Defendant was tried by a jury commencing on October 25, 2005. The jury returned a responsive verdict of manslaughter on October 28, 2005. The trial judge ordered a pre-sentence investigation, and, after a sentencing hearing, sentenced Defendant to 27 years at hard labor with credit for time served. Defendant appeals both the conviction and the sentence.

DISCUSSION

Defendant argues that the trial court erred in denying his motion to quash based upon the State’s failure to bring the case to trial within two years of instituting proceedings. The State has two years from the institution of prosecution to commence trial for a non-capital felony. La. C. Cr. P. art. 578(A)(2); State v. Allen, 03-2815 (La.4/23/04), 871 So.2d 1097. In the context of this case, “institution of prosecution” occurred upon the finding of an indictment pursuant to La. C. Cr. P. art. 934(7). State v. Harris, 29,574 (La.App. 2d Cir.5/7/97), 694 So.2d 626, citing State v. Butler, 302 So.2d 585 (La.1974). A motion to quash is the proper procedural vehicle when a defendant alleges that the time limitation for the | commencement of trial has expired. La. C. Cr. P. art. 532(7); State v. Harris, supra; State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284. When a defendant has brought an apparently meritorious motion to quash based upon prescription, the State bears a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended so that the time limitation has not yet expired. State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205, citing State v. Joseph, 93-2734 (La.6/3/94), 637 So.2d 1032; State v. Rome, supra; see also State v. Harris, supra.

The purpose of Article 578 is to enforce a defendant’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. McDonald, 30,854 (La.App. 2d Cir.8/19/98), 718 So.2d 542, citing State v. Rome, supra; State v. Barley, 29,482 (La. App. 2d Cir.6/18/97), 698 So.2d 36. When a defendant files a preliminary plea, however, the two-year time period established by La. C. Cr. P. art. 579 is suspended. La. C. Cr. P. art. 580; State v. Harris, supra; State v. Evans, 627 So.2d 664 (La. App. 2d Cir.1993). A preliminary plea is any pleading or motion filed by the defense that delays trial, which includes motions to quash, motions to suppress, applications for discovery, bills of particulars and motions for continuances. State v. Allen, supra, citing State v. Brooks, 02-0792 (La.2/14/03), 838 So.2d 778; State v. Brooks, 505 So.2d 714 (La.1987), cert denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975); State v. Elfert, 247 La. 1047, 175 So.2d 826 (1965). The | ^suspension lasts from the date the motion is filed until the date the trial court rules on the motion and that relevant time period is not counted towards the two-year time limitation. State v. Harris, supra, citing State v. Cranmer, supra. After the trial court rules on the motion, the State has either the remainder of the time limitations or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580; State v. Jackson, 40,376 (La.App. 2d Cir.12/14/05), 916 So.2d 1274, writ denied, 06-0442 (La.9/22/06), 937 So.2d 376.

In the case sub judice, based on Defendant’s August 25, 2003 indictment, the State had until August 24, 2005, to commence trial. Even so, the minutes indicate that Defendant filed a series of motions for continuance, the latest one being filed on February 28, 2005. As a preliminary pleading, the motion for continuance suspended the limitation period and the State had an additional year from the trial court’s ruling on the motion to commence trial. Jury selection in the case began on October 25, 2005, which was well within the time limitation period. See La. C. Cr. P. art. 761. Accordingly, the trial court properly denied Defendant’s motion to quash the indictment based upon prescription.

Defendant contends that his motions for continuance should not toll the prescription period because they were not in writing, as required by La. C. Cr. P. art. 707:

A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his ^affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

The requirement that a motion for continuance be made in writing can be waived under extenuating circumstances. State v. Overton, 337 So.2d 1058 (La.1976); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747; see also, State v. Washington, 407 So.2d 1138 (La.1981). For this reason, the fifth and third circuits have held that an oral motion for continuance suspends the limitations period. State v. Watts, 99-57 (La.App. 5th Cir.5/19/99), 738 So.2d 628; State v. Fanguy, 94-143 (La. App. 3d Cir.10/5/94), 643 So.2d 860, writ denied, 94-2726 (La.4/21/95), 653 So.2d 563; State v. Jones, 620 So.2d 341 (La. App. 5th Cir.1993). We agree.

To allow Defendant to delay the trial with oral motions for continuance, but penalize the State for not commencing trial within two years because Defendant failed to make those motions in writing would only give Defendant the benefit of his own failure to comply with the rules. “To now allow the defendant to make use of his own oral motion to continue ... to allege a prejudicial delay in the start of trial is absurd. The defendant cannot now capitalize on his own request.” State v. Fanguy, supra. The State commenced trial within one year of Defendant’s last motion for continuance. Therefore, the trial court properly denied Defendant’s motion to quash the indictment because the State properly |7commenced trial in accordance with La. C. Cr. P. arts. 578 and 580. This assignment of error is, therefore, without merit.

In addition, Defendant assigns error to the trial court in granting the State’s motion in limine to exclude evidence that the victim was HTV positive, that he was under the influence of cocaine at the time of his death and that he had a reputation for burglarizing houses in the neighborhood. Defendant claims that this violated his right to present a defense so that he could explain the following: (1) that he was confronting the victim over the burglaries; (2) that he was carrying the gun with him to confront the victim because he wanted to avoid a physical confrontation that may expose him to HIV; and, (3) that the presence of cocaine in the victim’s body at death could explain the victim’s demeanor at the time of the confrontation.

When a defendant attempts to present evidence of a victim’s character, it must be for a relevant purpose, such as self-defense. La. C.E. art. 401. La. C.E. art. 404(A)(2) further governs the admissibility of character evidence of a victim. It provides, in pertinent part:

A. Character evidence generally. Evidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of a victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible;

IsThis article prohibits character evidence that simply paints the victim as a bad person deserving his fate of death at the hands of the defendant State v. Wade, 33,121 (La.App. 2d Cir.5/15/00), 758 So.2d 987, writ denied, 00-2160 (La.9/28/01), 797 So.2d 684.

In addition, under La. C.E. art. 404, evidence of the dangerous character of the victim is admissible only if the accused first produces evidence that, at the time of the incident, the victim made a hostile demonstration or committed an overt act against the accused of such character that would have created in the mind of a reasonable person a belief that he was in immediate danger of losing his life or suffering great bodily harm. State v. Scott, 31,379 (La.App. 2d Cir.10/28/98), 720 So.2d 415, writ denied, 99-0170 (La.5/14/99), 741 So.2d 664, citing State v. Gantt, 616 So.2d 1300 (La.App. 2d Cir. 1993), writ denied, 623 So.2d 1302 (La.1993). An “overt act” within the meaning of La. C.E. art. 404 is “any act of the victim which manifests in the mind of a reasonable person a present intention on his part to kill or do great bodily harm.” State v. Scott, supra, quoting State v. Demery, 28,396 (La.App. 2d Cir.8/21/96), 679 So.2d 518, writ denied, 96-2346 (La.2/7/97), 688 So.2d 497. Before being entitled to present evidence of the victim’s character, a defendant must present “appreciable evidence” of the overt act. La. C. Cr. P. art. 404; State v. Edwards, 420 So.2d 663 (La.1982); State v. Woodhead, 03-1036 (La.App. 5th Cir.1/27/04), 866 So.2d 995, writ denied, 04-0598 (La.7/2/04), 877 So.2d 144. Once a defendant has presented appreciable evidence of the overt act, “the trial court cannot exercise its discretion to | sinfringe on the fact-determination function of the jury by disbelieving this defense testimony and, thus, deny the accused a defense permitted by law.” State v. Woodhead, supra, quoting State v. Lee, 331 So.2d 455 (La.1975).

The admissibility of evidence regarding the victim being HIV positive, under the influence of cocaine at the time of his death and having a reputation for burglary is, therefore, contingent on Defendant’s presentation of a viable self-defense claim to make the proffered evidence relevant under La. C.E. art. 401 and evidence of an overt or hostile act to be admissible under La. C.E. art. 404.

First, Defendant’s self-defense claim fails, as the undisputed evidence shows he was the aggressor. According to La. R.S. 14:21, “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” See State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371.

In the case sub judice, the victim was walking along the road when Defendant got out of his car with a rifle and angrily questioned him about the whereabouts of his belongings. The evidence presented does not suggest that the victim was armed. As the aggressor, Defendant is precluded from arguing self-defense. Thus, we conclude that the proffered evidence is inadmissible as irrelevant.

Further, Defendant has failed to produce any evidence that the victim made an overt act or otherwise put him in reasonable fear of immediate loss |10of life or great bodily injury as required by La. C.E. art. 404(A)(2)(a). The trial court correctly rejected Defendant’s assertion that the mere fact that a person has HIV justifies physical aggression out of the fear of contracting the virus. To agree with Defendant’s argument would sanction unprovoked violence against those with HIV and contradict the statutory requirements of La. C.E. art. 404(A)(2)(a) in regard to evidence of the victim’s character. Without evidence of an overt act or hostile act by the victim toward Defendant, the trial court properly excluded the proffered evidence of victim’s HIV positivity, cocaine use and reputation of a thief, as required by La. C.E. art. 404(A)(2)(a).

Furthermore, Defendant claims that he should have been allowed to present evidence that the victim had HIV because the coroner noted in the death certificate that HIV was a contributing cause of death, along with the gunshot wound. Such an argument is disingenuous. The forensic pathologist who performed the autopsy testified that HIV did not cause or contribute to the victim’s death because he died of a gunshot wound to the head. Also, the coroner, who is a family practice physician who does not perform autopsies, testified that HIV was not an immediate cause of death and that he did not know if HIV could have contributed to the victim’s death. Rather, the coroner testified that he listed it on the death certificate simply because it is a significant disease. Thus, the fact that HIV was listed on the death certificate is irrelevant.

|nIn addition, Defendant argues that the exclusion of the proffered evidence violated his right to present a defense. Both the Sixth Amendment of the United States Constitution and Louisiana Constitution, Art. 1, Section 16, provide that a criminal defendant has the right to present a defense and that all relevant evidence necessary to that defense must be presented for a full adjudication. State v. Johnson, 553 So.2d 865 (La.App. 1st Cir.1989), writ denied, 558 So.2d 600 (La.1990), citing State v. Vigee, 518 So.2d 501 (La.1988). Evidentiary rules may not supersede the fundamental right to present a defense. Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198; and State v. Gremillion, 542 So.2d 1074 (La.1989). This right to present a defense, however, does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Mosby, 595 So.2d 1135 (La.1992); State v. Pugh, 02-171 (La.App. 5th Cir.10/16/02), 831 So.2d 341, citing State v. Mosby, supra; State v. Carter, 96-358 (La.App. 5th Cir.11/26/96), 685 So.2d 346; and La. C.E. art. 403.

In support, Defendant cites Chambers, supra; State v. Van Winkle, supra; and State v. Gremillion, supra. In those cases, however, the excluded evidence was highly relevant in proving that someone else was responsible for the offense. However, the supreme court has distinguished Chambers and upheld the exclusion of relevant evidence despite a [ ^defendant’s claim that it violated his right to present a defense. In State v. Mosby, supra, while acknowledging a defendant’s right to present a defense, the supreme court excluded relevant evidence when the probative value of the evidence was substantially outweighed by the danger of confusing and misleading the jury, undue delay and unfair prejudice under La. C.E. art. 403. While in the present case, the evidence was excluded under La. C.E. art. 404(A)(2)(a) and as irrelevant under La. C.E. art. 401, it also creates a danger of unfair prejudice, confusion of the issues, misleading of the jury or an undue waste of time that substantially outweighs any probative value. To exclude such evidence does not violate Defendant’s right to present a defense. This assignment is, therefore, without merit.

Finally, Defendant challenges his 27-year sentence as excessive under the circumstances of this case. He highlights his age of 51, his work history and a criminal history of misdemeanors committed 20 years ago during the breakup of his marriage. He characterizes the crime as confronting someone who was high on cocaine and whom he feared due to his belief that the victim had burglarized his house and taken almost all of his belongings. He also argues that he had no intent to kill the victim and that his actions are not likely to occur again.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The |13trial 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.6/24/98), 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 La. C. Cr. P. art. 894.1. State v. Lanclos, 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.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 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 viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

No requirement exists that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App. 2d Cir.3/1/00), |14754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to imposé 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.1/26/05), 892 So.2d 710.

According to La. R.S. 14:31(B), the sentence for manslaughter is imprisonment at hard labor for not more than 40 years. Therefore, a sentence of 27 years falls within the midrange of the sentence that may be imposed. At the sentencing hearing, Defendant testified regarding the shooting and the burglary of his house prior to the shooting, including his assertions that he only brandished the gun because he feared the victim might try to infect him with HIV and that the gun accidentally discharged when the victim ran into the gun. The trial court found that the evidence at trial proved that Defendant was mad at the victim because of two possible burglaries of his house and that Defendant made statements the day before the homicide indicating that he was going to kill the victim. The trial court further found that Defendant’s statements at the sentencing hearing were not supported by the facts because the uncontro-verted evidence at trial showed that Defendant confronted the victim in anger with a gun and that there was no evidence of the victim acting in an erratic or violent manner. It further noted that the law does not give people the right to kill over theft and that it |1swas concerned that Defendant appeared to think his actions were justified simply because the victim was HIV positive and under the influence of cocaine.

The trial court considered several circumstances in regard to Defendant’s sentence. It considered Defendant’s age, that this was his first felony conviction, his work history, that his criminal history showed only convictions for misdemeanors that occurred several years ago, the pre-sentence investigation report, that the community expressed support for Defendant and his family and that he had been a model prisoner during the time he had been incarcerated. Further, the trial court found that there would be an undue risk of Defendant committing another crime during a period of suspended sentence or probation; that he was in need of correctional treatment or a custodial environment; that a lesser sentence would deprecate the severity of the crime; that he manifested deliberate cruelty by shooting the victim and leaving him and that he created a risk of death or great bodily harm to others by shooting someone in a neighborhood with houses and people. Thus, review of the record shows that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1. The trial court further noted that it looked to other cases for sentencing guidance, particularly cases of manslaughter in which defendants felt victimized by their victims and had planned to kill based upon those feelings.

By sentencing Defendant to 27 years, the trial court was more lenient than recommended by the pre-sentence investigation, which urged the trial |1ficourt to impose the harshest penalty allowed. This is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering. Considering the manner in which Defendant killed the victim, a 27-year sentence for manslaughter does not shock the sense of justice. In light of these circumstances, the trial court did not abuse its discretion, and the 27-year sentence is not constitutionally excessive. This assignment is, therefore, without merit.

We review the record for patent error pursuant to La. C. Cr. P. art. 920, and State v. Oliveaux, 312 So.2d 337 (La.1975). We note that the trial court failed to rule upon Defendant’s pro se motion for reconsideration of sentence, which was timely filed. At the sentencing hearing, counsel for Defendant made an oral motion for reconsideration of sentence, and the trial court initially denied the motion. Defense counsel then asked the trial court to reserve ruling on the motion until conducting a hearing. After asking the State if it was amenable to that request, the State indicated that it would be if such a motion for reconsideration was timely filed. The trial court reserved its ruling on the motion until a written motion is filed and Defendant’s right to make a timely written motion for reconsideration of sentence. Within 30 days of sentencing, Defendant filed a pro se motion for reconsideration of sentence, wherein he alleged only that his sentence was excessive. The record contains no indication that the trial court ruled upon this motion.

According to La. C. Cr. P. art. 916(3), the trial court retains jurisdiction to “take other appropriate action pursuant to a properly made or 117filed motion to reconsider sentence” even after an order of appeal is entered. Further, La. C. Cr. P. art. 881.1(C) states that “the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of that sentence.” In addition, no provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court’s failure to rule on a motion to reconsider sentence. Further, an appellate court may review a sentence for constitutional excessiveness even if the defendant fails to file a motion to reconsider sentence. Therefore, this court may review Defendant’s sentence for constitutional ex-cessiveness in spite of the pending motion to reconsider sentence. Should the trial court later rule upon Defendant’s motion to reconsider sentence, Defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2).

CONCLUSION

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Although the trial court excluded Defendant’s evidence regarding the victim’s reputation for burglarizing homes in that area, the jury did hear this evidence through the testimony of Roy Jenkins.

      . In Chambers and State v. Gremillion, the evidence was excluded as hearsay; and, in State v. Van Winkle, a variety of testimony was excluded as irrelevant.


author: STEWART, J.

text:
    Randi CANTERBERRY, Individually and as Natural Tutrix of Her Minor Son, Vincent Russell, Plaintiffs-Appellants v. Kelly CHAMBLEE, as Natural Tutrix on Behalf of Her Minor Son, Dustin W. Spruell and Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellees.
    No. 41,940-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Hudson, Potts & Bernstein by Charles W. Herold, III, Monroe, for Appellants Randi Canterberry and Vincent Russell.
    Nelson, Zentner, Sartor & Snelling by Thomas G. Zentner, Jr., Allison M. Jarrell, Monroe, Counsel for Appellee Louisiana Farm Bureau Casualty Ins. Co.
    Crawford & Joyce, by Jefferson B. Joyce, Monroe, for Appellee Dustin W. Spruell.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

h Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau) obtained a summary judgment dismissing all claims of the plaintiff, Randi Canterberry, on the basis of an intentional act exclusion in the homeowner’s policy. On appeal, Canter-berry asserts there are genuine issues of material fact concerning applicability of the exclusion, which she also argues is ambiguous. For the following reasons, we affirm the trial court’s judgment.

FACTS

In May 2004, Randi Canterberry, individually and as tutrix of her minor son, Vincent Russell, filed suit against Kelly Chamblee, individually and as tutrix of her minor son, Dustin Spruell, as well as against Farm Bureau, for injuries received by Russell in an unprovoked attack by Spruell. Farm Bureau provided homeowner’s liability insurance coverage to Chamblee and residents of her home, including Spruell. The original petition asserted negligent injury by Spruell, but a supplemental petition alternatively alleged Spruell’s actions were intentional, willful, and malicious. A second supplemental petition added Spruell’s father as a defendant, and a third added Spruell, who had become a major by then.

In March 2006, Farm Bureau filed a motion for summary judgment asserting that the homeowner’s policy did not provide coverage for bodily injury or property damage resulting from intentional acts. The policy’s personal liability coverage exclusion relied upon by Farm Bureau provided that the coverage did not apply to “bodily injury or property damage resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.” | ¡Acknowledging the dispute as to whether Spruell’s punches or kick caused Russell’s injuries, Farm Bureau asserted the dispute did not create a material issue of fact. Regardless of whether the punches or the kick broke Russell’s nose, there was no question that Spruell intentionally struck Russell and caused the resulting injury.

Canterberry opposed the motion for summary judgment, arguing that a factual dispute existed as to how Russell’s injury occurred. Canterberry asserted the injury could have been caused by either a kick or a punch. She further asserted that the kick was the more likely cause of the injury, that Spruell did not intend to injure Russell, and that the kick was not intentional but was an attempt by Spruell to gain his balance after being grabbed from behind and pulled away from Russell.

Exhibits offered by the parties included a copy of the Farm Bureau policy, as well as excerpts from the depositions of Spruell, Russell, and Jacob Ford, who witnessed the incident. Counsel for Canter-berry and Russell admitted in argument that Spruell indicated in his deposition that he intended to punch Russell, but counsel argued that Spruell never stated he intended to kick him. Canterberry’s counsel also argued that ambiguity in the policy language and the dispute as to whether the kick or punch caused the injury created a material issue of fact as to whether Spruell intentionally injured Russell.

On the other hand, Farm Bureau’s counsel argued that the unambiguous policy language excluded coverage regardless of whether the injury was caused by the punch or the kick. Moreover, counsel pointed out | ¡¡that Spruell never said in his deposition that he did not intend to kick Russell; rather, Spruell admitted kicking Russell. Counsel argued that even if the resulting injury was from the kick, the policy still did not provide coverage.

After taking the matter under advisement, the trial court granted Farm Bureau’s motion for summary judgment. The court stated in a written ruling that exclusions like the one at issue are designed to prevent an insured from acting wrongfully with the security of knowing that the insurance company will pay the bill for the damages. The court further found it clear that Spruell “intended” to both punch and kick Russell. The court pointed out that nowhere in his deposition did Spruell suggest the kick was “unintended.,” but that the contrary was indicated. The court concluded that Spruell’s intentional acts of hitting and kicking Russell were sufficient to trigger the policy’s exclusion.

DISCUSSION

A summary judgment is subject to de novo review on appeal under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Goins v. Wall-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783; Debrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App. 2d Cir.04/06/05), 900 So.2d 253. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “if the pleadings, Ldepositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Material facts are those with the potential to insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the dispute. Hooper v. State Farm Mutual Automobile Ins. Co., 00-1509 (La.App. 5th Cir.1/23/01), 782 So.2d 1029. Summary judgment declaring lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Wester-field v. LaFleur, 493 So.2d 600, 605 (La. 1986).

Insurance policies are contracts between the parties and should be interpreted using the general rules of interpretation of contracts set forth in the Civil Code; if the words of the policy are clear and explicit and lead to no absurd consequences, the policy must be enforced as written. Hill v. Shelter Mutual Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691. Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Herzog Contracting Corp. v. Oliver, 40,342 (La.App. 2d Cir.12/16/05), 918 So.2d 516, writ denied, 06-0154 (La.4/24/06), 926 So.2d 542. However, insurance companies may limit coverage in any manner they choose, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds, supra; Norwood v. Van Veckhoven, 34,891 (La.App. 2d CirJ6/22/01),B 792 So.2d 836. The insurer has the burden of proving that a loss is subject to a policy exclusion. Norwood, supra.

In this appeal, the parties argue along the same lines as they did in the trial court. Counsel for Canterberry argues that the intentional act exclusion in the personal liability section of the policy is ambiguous, because the term “intentional acts” is not defined to specify whether subjective intent, objective intent, or both is required. Counsel refers us to the definition of “intentional loss” contained elsewhere in the policy. However, that term applies only in Section I of the policy pertaining to property coverages and is not used in the section of the policy pertaining to liability coverages. In arguing ambiguity in the policy, counsel cites Breland v. Schilling, 550 So.2d 609 (La.1989), Pique v. Saia, 450 So.2d 654 (La.1984), and Norwood v. Van Veckhoven, supra, all of which involved policies with language excluding liability coverage for bodily injury “either expected or intended from the standpoint of the Insured.” These cases are distinguishable in that the applicable policy language in this instance is wholly different from that in the cases relied on by counsel.

Here, the exclusion at issue is found under Section II of the policy pertaining to liability coverages and provides:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.

| (¡Although the policy does not define “intentional acts,” the clear language of the exclusion applies to both expected or unexpected results of such acts. The plain intent of this language is to exclude coverage for intentional acts of an insured, even when the results of the acts may be unexpected. Thus, even if Spruell did not intend to break Russell’s nose, the fact that he intentionally instigated an attack by hitting him numerous times and kicking him as he was being pulled away excludes coverage for the resulting injury. Having reviewed the deposition excerpts, we find no support for the description of the kick as the unintentional result of Spruell losing his balance while being pulled away from Russell. Spruell’s deposition clearly indicates the kick was intentional rather than involuntary.

Moreover, our review of the policy reveals an additional exclusionary provision not pointed out or discussed by either party or the trial court. This pertinent provision in the exclusions under Section II of the policy pertaining to liability coverage likewise excludes coverage for personal liability and medical payments to others for bodily injury or property damage:

i. arising out of any acts, attempts, coercion, or threats of sexual or physical molestation, abuse, assault, or harassment caused, instigated or directed by any insured.

The deposition excerpts herein plainly show that Spruell instigated a physical assault on Russell and that Russell’s injuries arose out of Spruell’s acts. Thus, the trial court correctly granted summary judgment for Farm Bureau.

^CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed at appellants’ costs.

AFFIRMED.


text:
    Fred L. HOUSTON, Plaintiff-Appellant v. SPRINGVILLE CEMETERY ASSOCIATION, INC., Defendant-Appellee.
    No. 41,869-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Lemle & Kelleher, L.L.P., by Jerald N. Jones, Brad E. Wilkerson, Shreveport, for Appellant.
    Bethard & Bethard, L.L.P., by Robert E. Bethard, Coushatta, for Appellee.
    Before GASKINS, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

11 This dispute involves a conflict between a corporation which owns and maintains a historic cemetery and the relative of family members buried in the cemetery. The corporation took action to require the plaintiff to remove certain structures from his family’s gravesite, and he sued to enjoin such removal. The trial court ruled in favor of the corporation’s action and this appeal followed. Finding the corporation’s actions authorized under Title 8 of the Revised Statutes, we affirm.

Facts

On August 15, 2005, appellant Fred L. Houston (“Houston”) sued Springville Cemetery Association, Inc. (“SCA”) to enjoin it from removing structural items he placed around his wife’s grave in 2002, and from relocating a water hydrant which he utilized for the grave site. It was undisputed that Houston received verbal permission from a SCA board member before placing an arbor and canopy-like structure on the grave in 2002. Nevertheless, in July 2005, the SCA’s board, citing complaints, directed Houston to remove the structure because “it is best for the cemetery that you not be permitted to continue to have your tent erected in the cemetery.” The same letter notified Houston that the water hydrant was to be relocated.

The SCA’s second letter dated August 2, 2005, was sent to Houston by certified mail and warned him that “unless your tent and appurtenance are removed ... on or before August 15, 2005,” the SCA would “cause it to be removed.” Houston obtained a temporary restraining order enjoining the |2board from acting on August 15, 2005. The day before the hearing was scheduled and the temporary restraining order expired, the trial court issued the following preliminary injunction based upon the parties’ consent:

Springville Cemetery Association, Inc. is hereby enjoined and prohibited from (1) removing the canopy and arbor constructed by Petitioner in the Springville Cemetery in Coushatta, Louisiana, over the gravesite of his wife, Eleanor Holley Houston, and (2) moving to another location or removing the water hydrant presently located in the proximity of the gravesite of Eleanor Holley Houston.

A few days later, SCA answered Houston’s petition and reconvened. SCA alleged that under La. R.S. 8:204 it had the authority to make rules and regulations to prohibit the erection or installation of structures like the ones placed over and around the grave of appellant’s wife.

At the trial, three members of SCA’s board testified concerning the history of the cemetery and maintenance issues. Two other witnesses, a woman whose family plot was near Houston’s, and the person responsible for mowing and trimming the cemetery grounds, each testified.

SCA’s Chairman of the Board, Henry Bethard, testified that Springville Cemetery Association, Inc. was incorporated as a non-profit corporation in 1974. This coincided with the creation of the State Cemetery Board, under which SCA became licensed. Before its incorporation, Mr. Bethard had been involved with the association of interested persons governing the cemetery since 1952. He testified as follows concerning the evolution of rules promulgated by SCA:

A. The cemetery was there ... in the early 1800’s. Back then people used to put various things on their lots. We even had one where the little boy died and they put, this was before I came on, where they put a bird cage, a huge bird cage on his lslot, so his pet bird could be with him. Well, when I came to the cemetery around 1952 those things had begun to cause problems, because using mowers and what not the fences were such that it was practically impossible to keep the cemetery. So, we established rules at that time, I assume that was around 1950, sometime like that, in order to try to get the cemetery some kind of regulations so that the cemetery would be easier to keep....

The cemetery plot in question is described as “12-Grave plot of W.W. Holley in ‘Old Section’ of the Springville Cemetery.” Houston and his now-deceased wife, Eleanor Holley Houston, purchased perpetual care for the plot from SCA in 1999 for $1,500. The family plot measures about eighteen feet deep and thirty-two feet wide. Mrs. Houston’s parents, W.W. and Ela Holley, and a niece are buried in the family plot. Eleanor Houston died in November 2001. The disputed canopy-like structure covered three of these graves entirely. The testimony indicates that the tent blew down on prior occasions and that no other graves or plots had such structures.

At the conclusion of the trial, the matter was taken under advisement. The trial court’s written ruling denied Houston’s petition for relief, ordered that the preliminary injunction be dissolved 45 days after the rendition of a signed judgment, and further ordered that “all of the structure (arbor and canopy) shall be removed no later than the foregoing forty-five day period.”

Houston now suspensively appeals. He presents the following three assignments of error based upon his assertion that SCA is a “quasi-governmental” body:

1. The district court erred by determining that the SCA is a private entity, and, therefore, not subject to the constitutional and statutory jurisprudence requiring established standards for the uniform exercise of its power, such as the power to grant or 14deny permission for the construction of structures such as Mr. Houston’s canopy and arbor.
2. The district court erred by not concluding that the decision of the Defendant’s Board of Directors to remove Mr. Houston’s arbor and canopy was an unconstitutional violation of equal protection due to a complete lack of standards.
3. The district court erred by not concluding that the decision of the Defendant’s Board of Directors to remove Mr. Houston’s arbor and canopy was per se arbitrary and capricious due to a complete lack of standards, and is therefore invalid.

Discussion

By Act No. 417 of 1974, the legislature amended and reenacted laws pertaining to cemeteries and created the Louisiana Cemetery Board. La. R.S. 8:1, et seq. (hereinafter “Title 8”). The Louisiana Cemetery Board regulates authorities engaged in the cemetery business, which may encompass the sale of a right of use for interment or charging fees for maintaining cemetery space. See, La. R.S. 8:67, 8:71, 8:74 and 8:78. As a part of the 1974 legislation, Section 201 of Title 8 was added to our law:

It is unlawful for any corporation, partnership, firm, trust, association, or individual to engage in or transact any of the businesses of a cemetery within this state except by means of a corporation authorized to operate a cemetery. Such corporation shall only engage in the cemetery business in this state if it has received a certificate of authority from the board pursuant to the provisions of Chapter 2 of this title.

La. R.S. 8:201.

Title 8 further addresses these cemetery associations as follows:

Section 202. Any private corporation authorized by its articles so to do may establish, maintain, manage, improve, or operate a cemetery, and conduct any or all of the businesses of a cemetery either for or without profit to its members or stockholders. A nonprofit corporation or a profit corporation may be organized in the manner provided in the general corporation laws of this state.
| ^Section 204. A cemetery authority may make, adopt, amend, add to, revise, repeal or modify, and enforce rules and regulations for the use, care, control, management, restriction and protection of all or any part of its cemetery, including without limitation the following:
(1) It may restrict and limit the use of all property within its cemetery;
(2) It may regulate the uniformity, class and kind of all markers, monuments and other structures within the cemetery and its subdivisions;
(3) It may regulate or prohibit the erection and/or installation of monuments, markers, effigies, structures and foundations within the cemetery;
(4) It may regulate or prevent the introduction or care of plants or shrubs within the cemetery;
(5) It may prevent interment in any part of the cemetery of human remains not entitled to interment and prevent the use of interment spaces for purposes violative of its restrictions or rules and regulations;
(6) It may regulate the conduct of persons and prevent improper assemblages in the cemetery, and
(7) It may make and enforce rules and regulations for all other purposes deemed necessary by the cemetery authority for the proper conduct of the business of the cemetery, for the transfer of any interment space or the right of interment, and the protection and safeguarding of the premises, and the principles, plans, and ideals on which the cemetery is conducted.

SCA has asserted in defense its “ownership” of the cemetery. Houston’s arguments concerning the quasi-governmental nature of SCA’s incorporation do not assert that the nature of the land in question was public when burials began on the property. Under these circumstances, the Civil Code and the jurisprudence indicate and the record supports that Springville Cemetery is private property subject to the special public use involving cemeteries.

| ^Louisiana Civil Code Article 455 provides:

Private things may be subject to public use in accordance with law or by dedication.

The jurisprudence supports the view that land privately owned by individuals or entities other than the state or its political subdivisions may be conveyed, dedicated or allowed to be used for cemetery purposes. Humphreys v. Bennett Oil Corp., 195 La. 531, 197 So. 222 (1940); Vidrine v. Vidrine, 225 So.2d 691 (La.App. 3d Cir. 1969), writ denied, 227 So.2d 594 (La. 1969); Faust v. Mitchell Energy Corp., 437 So.2d 339 (La.App. 2d Cir.1983). This court in Faust, supra, observed that when such dedication occurs:

The precise nature of the right of the public or individuals or entities using and maintaining property for cemetery purposes is not clear. However, it is clear from the reported cases that such right, although a real right, is not ownership of the property but is more in the nature of a right of use or servitude or covenant running with the land.

437 So.2d at 342.

In Humphreys, supra, the underlying owner of the land and the church owning the right to use the land as a cemetery granted a mineral lease, and surprisingly, two oil and gas wells were drilled in the small cemetery. The heirs of persons buried on the property sued the mineral lessee in tort for “profanation of the entire cemetery.” Id. Finding the plaintiffs’ claims actionable, our supreme court ruled:

The one-acre plot of ground having been set apart for a cemetery and its use for that purpose having been accepted by these plaintiffs and many others, neither the fee owners nor the churches could later use, or empower another to use, it for any purpose inconsistent with the use for which it was dedicated.

_[¡¡Humphreys, supra, at 546, 197 So. 222. Similarly, jurisprudence recognizes the standing of a relative of a decedent buried in the cemetery to bring an action for trespass or encroachment upon the cemetery property. Locke v. Lester, 78 So.2d 14 (La.App. 2d Cir.1955); Vidrine, supra; Riverie v. Mills, 481 So.2d 1050 (La.App. 1st Cir.1985).

With this unique property regime for cemetery land, Title 8’s provisions specifically provide for private corporations that own cemeteries and define their rights for cemetery maintenance and operations that are in keeping with the public use for cemeteries. La. C.C. art. 455. Section 202 expressly addresses the “private corporation” operating a cemetery which is governed by the “general corporation laws of this state.” La. R.S. 8:202. Section 204 then enumerates the special authority that such private corporations have over the “use, care, control, management, restriction and protection” of the cemetery as private property subject to public use. La. R.S. 8:204. In particular, SCA’s authority to “regulate the uniformity, class and kind of all markers, monuments and other structures within the cemetery” is recognized. La. R.S. 8:204(2).

From this view of our law for cemeteries, we reject Houston’s contention that SCA is not a private corporation. SCA’s actions in July and August of 2005 were taken in a reasonable manner with advance notice provided to Houston. The decision to require removal of the structures from the Houston family gravesite was not arbitrary and capricious since it represents action specifically enumerated under Title 8, compatible with both the public use and the Houston family use and enjoyment of the |scemetery. Houston’s special right in the property as a relative of those buried in Springville Cemetery was therefore subject to SCA’s maintenance authority and was not violated by its actions.

Conclusion

The trial court having determined that SCA acted within its authority, we affirm the ruling. Costs of appeal are assessed to appellant.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Johnny JERRED, Appellant.
    No. 41,622-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project, by Christopher A. Aberle, Mandeville, for Appellant.
    Walter E. May, Jr., District Attorney, James R. Hatch, Douglas L. Stokes, Jr., Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

| ]The defendant, Johnny Jerred, entered a Crosby plea to the charge of possession of marijuana, second offense. He was sentenced to serve three years imprisonment at hard labor, which was suspended, and he was placed on supervised probation for a term of three years. The trial court also sentenced the defendant to a fine of $500 and to pay all costs. The defendant now appeals. For the reasons that follow we affirm the defendant’s conviction and sentence.

FACTS

On July 12, 2006, the defendant was charged by bill of information with possession of marijuana, second offense. A motion to quash the first conviction (predicate offense) of possession of marijuana was filed on February 16, 2006. After a hearing on May 2, 2006, the trial court denied the defendant’s motion to quash. Thereafter, the defendant entered a Crosby plea on May 2, 2006, to possession of marijuana second offense, preserving his right to seek an appeal of the trial court’s denial of his motion to quash. The trial court sentenced the defendant to serve three years imprisonment at hard labor, which was suspended, and the defendant was placed on three years supervised probation. He was ordered to pay all costs, and, as a condition of probation, to pay a $500 fine, plus other fines and fees.

The basis for the motion to quash was that the state had not demonstrated that the defendant had made a knowing and voluntary waiver of his constitutional rights in his predicate offense of possession of | ¡¿marijuana in district court docket number 38,575 on December 8, 2004. Specifically, the defense noted that the trial court went over the defendant’s constitutional rights, but there was no colloquy between the trial court and the defendant to determine whether or not he understood those rights. It also noted that there was no colloquy between the trial court and the defendant to determine his ability to understand the proceedings. The defendant urged that the predicate offense should not be used for the instant conviction of second offense possession of marijuana. After hearing brief arguments at the motion to suppress proceeding, the trial court cited and adopted the language in State v. Simmons, infra, and then denied the motion to suppress.

During the predicate offense guilty plea proceeding held December 8, 2004, the trial court addressed a group of defendants, including Johnny Jerred, who were charged with a variety of offenses. The trial court collectively advised the group of the nature of the different charges and the respective penalties and possible use as penalty enhancements, the trial rights including the Jackson-Boykin three right articulation rule, and the right to representation by an attorney at no charge. The trial court then personally addressed the defendant:

The Court: Give us your Ml name, Mr. Jerred?
Mr. Jerred: Johnny Ency (phonetic) Jerred.
The Court: Okay, Mr. Jerred, you’re here today charged with possession of marijuana, first offense, how do you plead?
| sMr. Jerred: Guilty.
The Court: You hear all the rights I went over with you?
Mr. Jerred: Yes sir.
The Court: Any questions?
Mr. Jerred: No sir.
The Court: You understand you have the right to an attorney?
Mr. Jerred: Yes.
The Court: You want to give up that right and proceed with your case and represent yourself?
Mr. Jerred: Yes sir.
The Court: You understand if you plead guilty you give up the right to trial, the right to confront witnesses against you, the right to compel witnesses to testify on your behalf, the right not to incriminate yourself and the right to require the State to prove your guilt beyond a reasonable doubt, you understand all those rights?
Mr. Jerred: Yes sir.
The Court: You understand if you plead guilty you give them up, is that what you want to do?
Mr. Jerred: Yes sir.
The Court: All right. Date of birth?
Mr. Jerred: January 15th, '82.
The Court: And your social security number?
The Court: All right. You got any questions?
Mr. Jerred: No sir.
|4The Court: I feel that Mr. Jerred’s plea is knowingly, intelligently and voluntarily entered and made as to possession of marijuana, first offense. I file the written judgment....

DISCUSSION

Waiver of Counsel

In brief, the defense frames the issue as whether, in addition to advising a pleading pro se defendant of his right to counsel, the trial court must also determine on the record from the circumstances that the waiver of counsel is knowing and intelligent. It questions whether it was error for the trial court in the predicate offense to make no inquiry into the defendant’s ability to understand that waiver.

The defense cites State v. Strain, 585 So.2d 540 (La.1991) and State v. Stevison, 1997-3132 (La.10/30/98), 721 So.2d 843. The defense contends that a review of the transcript of the uncounseled guilty plea in the predicate offense reveals an inadequate inquiry into whether the waiver of counsel was knowing and intelligent. The defense describes the guilty plea proceeding as a “cattle call,” and notes that the defendant’s date of birth and social security number were apparently requested for record-keeping purposes. It observes that no inquiry was made into the defendant’s education, experience, background, mental competency, or facts underlying the offense. Furthermore, the defense argues that, although the trial court determined that the defendant’s guilty plea was knowing and voluntary, it failed to make a similar finding regarding the waiver of counsel. Finally, the defense contends that nothing in the record supports the conclusion that the defendant adequately understood the important right he was giving up. | RAccordingIy, the defense asserts that the record fails to adequately establish an effective knowing and intelligent waiver of the right to counsel.

The state reproduces the guilty plea colloquy for the predicate offense and cites the applicable law. The state argues that the trial court went through a complete Boykin examination and the defendant indicated that he understood all of his constitutional rights. The state cites State v. Gipson, infra, arguing that the appellate record shows that the defendant in the case at bar likewise had previous experience in the judicial system. It notes that the defendant had an 11th grade education and obtained his GED after dropping out of high school. The state observes that the defendant correctly recited his birth date and social security number during the guilty plea colloquy in the predicate offense. The state observes that the defendant obviously knew what marijuana was and asserts that the charge of possession is not difficult to understand. It concludes that the trial court correctly concluded that the guilty plea in the predicate offense was knowingly, intelligently, and voluntarily made and, therefore, the motion to suppress was properly denied.

La. C. Cr. P. art. 556 sets forth the duty of the court when accepting a guilty plea in misdemeanor cases. It provides:

A. Except as otherwise provided in Paragraph B of this Article or in R.S. 32:57 or in any other applicable law, in a misdemeanor case, if the defendant is not represented by counsel of record, the court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary and is made with an understanding of the nature of the charge and of his right to be represented by counsel.
B. In a misdemeanor case in which the court determines that a sentence of imprisonment will actually be imposed or in which | Bthe conviction can be used to enhance the grade or statutory penalty for a subsequent offense, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to have a trial, and if the maximum penalty provided for the offense exceeds imprisonment for six months or a fíne of one thousand dollars, a right to trial by a jury or by the court, at his option.
(4) At that trial he has the right to confront and cross-examine witnesses against him and the right not to be compelled to incriminate himself.
(5) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
C.The court shall require either:
(1) That a verbatim record of the proceedings at which the defendant enters a plea be made.
(2) That a form reflecting the court’s advice to the defendant and the court’s inquiry into the voluntariness of the plea be signed by the court and the defendant and filed in the record at the time of the plea.
D. Any variance from the procedures required by this Article which does not affect substantial rights of the defendant shall not invalidate the plea.

The court in State v. Strain, supra held:

|7The judge, in accepting a waiver of counsel at trial, should advise the accused of the nature of the charges and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver. See Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). While the judge need not inquire into each and every factor stated in the Von Moltke plurality opinion in order to establish a valid waiver of the right to counsel at trial, there must be a sufficient inquiry (preferably by an interchange with the accused that elicits more than “yes” and “no” responses) to establish on the record a knowing and intelligent waiver under the overall circumstances.

State v. Stevison, supra at p. 844, added: Although Strain observed that “[f]actors bearing on the validity of [the waiver] include the age, education, experience, background, competency and conduct of the accused,” id., 585 So.2d at 543, we did not thereby establish inflexible criteria or a magic word formula for determining the voluntariness of a waiver. The inquiry into the validity of the accused’s waiver of counsel must take into account the totality of the circumstances in each case. Id.

In the recent case of State v. Simmons, 2005-1462 (La.3/17/06), 924 So.2d 137, the supreme court held that the court of appeal erred in reversing the district court judgment denying the defendant’s motion to quash the bill of information for second offense DWI on grounds that the record of the predicate 1995 DWI conviction did not affirmatively demonstrate a knowing and intelligent waiver of the right to counsel. It reasoned:

The present record reveals that the district judge in 1995 complied with State v. Strain, 585 So.2d 540, 543 (La.1991) by conducting an examination of various “[f]actors bearing on the validity of [the waiver] including the age, education, experience, background, competency and conduct of the accused,” before accepting defendant’s waiver of counsel and ensuing plea of no contest. Strain otherwise did not establish a rigid set of criteria for determining the voluntariness of a Dplea in misdemeanor cases and an accompanying waiver of counsel because a trial judge who personally addresses the accused during the colloquy (in the present case via satellite video, see La. C. Cr. P. art. 551(B)) is in a position “to assess the extent of inquiry necessary to determine the knowing, intelligent and voluntary nature of the waiver of counsel as well as of the guilty plea.” Id., 585 So.2d at 543; cf. Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 1387, 158 L.Ed.2d 209 (2004)(‘We have not ... prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.”). (Emphasis added.)

This court has upheld predicate offenses where the Boykin advisements were given to a group of defendants. State v. Hight, 35,621 (La.App. 2d Cir.3/1/02), 810 So.2d 1250, writ denied, 2002-1181 (La.11/22/02), 829 So.2d 1036, citing State v. Burford, 32,099 (La.App. 2d Cir.6/16/99), 738 So.2d 1158; State v. Franks, 31,641 (La.App. 2d Cir.2/24/99), 730 So.2d 998. Additionally, in Hight, the transcript of the guilty plea indicated that Hight and the other defendants were collectively advised of their right to an attorney.

Finally, the state cites State v. Gipson, 514 So.2d 646 (La.App. 2d Cir.1987), writ granted in part, judgment amended , 521 So.2d 1143 (La.1988), which held:

It is, of course, the better practice to advise the defendant, in detail, of the dangers and disadvantages of self-representation. The question here is whether, in the absence of that specific advice, the record provides a basis for concluding the defendant was aware of this danger and disadvantage.
| sIt is apparent from these facts that prior to these offenses the defendant had extensive experience with the judicial process and criminal justice system. Consequently, under the circumstances existing in these particular cases there is a sound basis for concluding defendant was, at the time of waiving legal counsel, aware of the danger and disadvantage of self-representation.

A review of the record, including the transcript of the guilty plea colloquy in the predicate offense, reveals that the trial court properly advised the defendant, both collectively and personally, of the Jacksoiv-Boykin three-right articulation rule and the right to representation by an attorney at no charge, thereby complying with the requirements of La. C. Cr. P. art. 556 and the constitutional mandates of the pertinent jurisprudence. Furthermore, the trial judge in the case sub judice personally addressed the defendant during the colloquy and was in a position “to assess the extent of inquiry necessary to determine the knowing, intelligent and voluntary nature of the waiver of counsel as well as of the guilty plea.” State v. Simmons, supra, citing Strain, supra, 585 So.2d at 543. The record supports the finding that the trial court’s inquiry was sufficient, considering the easily grasped nature of the charge of possession of marijuana first offense and other case-specific factors. On this record, it cannot be said the trial court erred in denying the motion to suppress. These arguments are meritless.

This assignment is therefore without merit.

CONCLUSION

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

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

      . The comments to paragraph D state that it is the “Harmless error” provision, which follows a recent Louisiana Supreme Court ruling applying the "harmless error” provisions of La. C. Cr. P. art. 921 to determine whether a technical violation of La. C. Cr. P. art. 556.1 should result in setting aside a guilty plea. See State v. Guzman, 769 So.2d 1158 (La. 2000).

      . The sentence was amended to provide for concurrent sentences.