author: DENNIS R. BAGNERIS, SR., Judge. TOBIAS, J.,

text:
    Carmelita LAFONTA and Pedro Lafonta, Individually and on Behalf of Iola M. Lafonta v. HOTARD COACHES, INC. and Crescent City Health Care Center, Inc.
    No. 2007-CA-0454.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 2007.
    Chester C. Stetfelt, Jr., Charles C. Stet-felt, Jr., a PLC, Metairie, LA, for Plaintiffs/Appellants.
    Jeremy D. Goux, Wynne, Goux and Lo-bello, Attorneys at Law, LLC, Covington, LA, for Crescent City Health Care, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

11 The Appellants, Carmelita and Pedro Lafonta, appeal the judgment of the district court in favor of the Appellee, Crescent City Health Care granting its Exception of Prematurity. We reverse the judgment of the district court and remand for further proceedings.

The Lafontas are the adult children of Iola M. Lafonta. Iola Lafonta was admitted to Crescent City Health Care Center, Inc. (hereinafter “Crescent City”) on June 29, 2005. She remained a patient in the nursing home until Hurricane Katrina hit the City of New Orleans.

On or about August 31, 2005, Crescent City hired Hotard Coaches, Inc. to serve as transportation for the nursing home residents. The Hotard bus was to take the residents to Shreveport, Louisiana. Carmelita Lafonta requested that she be able to ride on the bus with her mother, but her request was denied. She alleges that there was no nursing home staff on the bus and that her mother was tied to a seat with her legs hanging into the aisle. Carmelita Lafonta alleges that the bus driver stopped at a truck stop in Sorrento, Louisiana. Carmelita Lafonta caught up with the bus in her [¡.personal vehicle at which time she found her mother dead on the bus with her dentures and her eye glasses on the floor of the bus.

Carmelita and Pedro Lafonta filed a Petition for Damages on behalf of their mother against Hotard and Crescent City. The Lafonta’s alleged six specific causes of action against the appellants: (1) failing to evacuate decedent before the hurricane’s arrival; (2) failing to timely obey a mandatory evacuation order of government authorities; (3) failing to implement a safe and effective evacuation of decedent; (4) failing to have an effective evacuation plan or emergency preparedness plan in place before the hurricane’s arrival; (5) failing to timely notify petitioners of the inadequacy or nonexistence of an effective evacuation plan or emergency preparedness plan; and (6) negligently hiring of defendant, Hotard Coaches, Inc., to perform the transport of decedent.

Crescent City filed Peremptory Exceptions of No Cause of Action and Exceptions of Prematurity and Vagueness. Hotard filed an Answer to the Lafonta’s Petition for Damages. Judgment was rendered by the district court granting Crescent City’s exception of prematurity and dismissing the Lafonta’s case without prejudice.

On appeal, the Lafontas assert that the district court erred in finding that their six causes of action arise out of medical malpractice.

The Lafontas maintain that the district court erred in “bundling” all of their causes of action and placing them under medical malpractice which would need to be reviewed by a medical malpractice panel before they could proceed.

Crescent City maintains that they are afforded the protection of the |SMMA as qualified healthcare providers. Further, Crescent City maintains that the Appellant’s have admitted the exact allegations to the LPCF which contradicts the instant argument.

The district court relied on LaCoste v. Methodist Hospital LLC, 2006-CA-1268 (La.App. 4 Cir.2006), 947 So.2d 150 in its Reasons for Judgment finding:

At first blush, the allegations in the present case do not appear to sound in medical malpractice. However, after having reviewed the case law, the court finds that LaCoste is applicable; and, based upon the reasoning in LaCoste, the court finds that plaintiffs’ negligence claims do not sound in medical malpractice. For this reason, the court maintains the Exception of Prematurity and dismisses plaintiffs’ claims against the defendant without prejudice.

Since the rendering of the district court’s judgment, the Supreme Court has reversed this Court’s finding and reinstated the judgment of the district court in LaCoste. Just as the district court was bound by our decision in LaCoste, we are now bound by that of the Supreme Court and respectfully rely on the language below:

This court has steadfastly emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice,” and that all other tort liability on the part of the qualified health care provider is governed by general tort law. Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315 (finding claim for alleged wrongful transfer from one emergency room to another of a patient whose left arm was later amputated sounded in medical malpractice); Williamson, 04-0451 at p. 5, 888 So.2d at 786. This is so because, as we have oft repeated, the LMMA’s limitations on the liability of health care providers were created by special legislation in derogation of the rights of tort victims. Williamson, 04-0451 at p. 5, 888 So.2d at 786; Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992) (finding strict liability for defects in hospital bed that collapsed resulting in injury to patient was not included within definition of medical malpractice under the LMMA). In keeping with this concept, any ambiguity should be resolved in favor of the plaintiff and against finding that [4the tort alleged sounds in medical malpractice. The limitations of the LMMA, therefore, apply strictly to cases of malpractice as defined in the LMMA. Williamson, 04-0451 at p. 5, 888 So.2d at 786.
The LMMA defines “malpractice” as: any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.Rev.Stat. 40:1299.41(A)(8).

The LMMA further defines “tort” and “health care” as follows:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

Stephen B. Lacoste v. Pendelton Methodist Hospital, 2007-0008 (La.9/5/07) 966 So.2d 519.

This court in Coleman v. Deno, pp. 17-18, 813 So.2d at 315-16, set forth six factors to assist a court in determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel:
(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
|fi(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Id.

The Supreme Court concluded:

Accordingly, because the claims need not be submitted to a medical review panel, the district court correctly overruled the defendant’s dilatory exception of prematurity. Therefore, the ruling of the court of appeal is reversed, and the ruling of the district court is reinstated. The case is remanded to the district court for further proceedings.

Id.

The Lafonta’s alleged that Crescent City failed to evacuate Ms. Iola before the hurricane’s arrival; failed to timely obey a mandatory evacuation order of government authorities; failed to implement a safe and effective evacuation of decedent; failed to have an effective evacuation plan or emergency preparedness plan in place before the hurricane’s arrival; failed to timely notify petitioners of the inadequacy or nonexistence of an effective evacuation plan or emergency preparedness plan; and negligently hired Hotard Coaches, Inc., to perform the transport of decedent. There is no need to individually address the La-fonta’s six allegations; we only need to determine whether, in light of Coleman v. Deno, 01-1517, (La.1/25/02), 813 So.2d 303, a medical review board needs to examine the matter.

The evacuation issues presented by the Lafontas are not “treatment related,” therefore we need not go into detail as to whether the acts alleged require expert medical evidence, because they do not.

Although we recognize that the district court relied on this Court’s ruling in La-Coste, in light of the recent legal developments, we now find that there was manifest error by the district court.

| (¡Decree

For the reasons stated herein, we reverse the judgment of the district court in favor of Crescent City Health Care and remand this matter to the district court for further proceedings.

REVERSED AND REMANDED.

TOBIAS, J.,

concurs and assigns reasons.

hi respectfully concur. I am bound by LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La.9/5/07), 966 So.2d 519, which is, as of the date this concurrence is drafted, not yet a final, definitive judgment of the Louisiana Supreme Court. I still adhere to this court’s opinion in LaCoste v. Pendleton Methodist Hosp., L.L.C., 06-1268 (La.App. 4 Cir. 12/6/06), 947 So.2d. 150, until such time as the Supreme Court’s decision is final. To me, the decision to transport a nursing home resident involves a minute by minute assessment of a resident’s medical condition and what was reasonable under the circumstances in the transportation decision. How did the decedent present on the date of the evacuation? That of necessity requires medical expert testimony and sounds within the ambit of medical malpractice.

      . This case has not been decided on the merits in district court, therefore the facts are taken from the allegations in the record and the parties' briefs.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brian GANN.
    No. 07-459.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    James E. Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Brian Gann.
    Charles A. Riddle, III, District Attorney, Miehé Moreau, Assistant District Attorney, Marksville, Louisiana, for State of Louisiana.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| defendant, Brian Gann, appeals his conviction of aggravated rape, asserting that the evidence was not sufficient to convict him of aggravated rape or any responsive verdict thereto. We affirm.

Facts

After not having seen him for many years, the victim’s mother met Defendant at a rodeo on April 9, 2006. The following week, Defendant visited the victim’s mother and her three children daily. On April 15, 2006, the evening before Easter, the seven-year-old victim and her brother and sister went to Taco Bell with Defendant while their mother prepared their Easter baskets.

The victim fell asleep in Defendant’s truck on the way home. She testified that upon arriving at home, Defendant carried her to her bedroom, laid her on her bed, removed her pants, pulled down her underwear, and performed oral sex on her. She immediately reported the offense to her mother, and her mother reported the matter to the authorities.

Defendant testified that when they returned from Taco Bell, he carried the victim to her bedroom, laid her on her bed, and removed her sandals and shorts. He stated that the victim’s panties came down a little when he removed her shorts. He next testified that he asked the victim’s sister to turn on the night light, but she could not, so he went to turn it on. When he returned to the victim, he removed her glasses, reached down and pulled up her panties, covered her, kissed her good night, then left the room. Defendant testified that the victim’s sister was next to him when he removed the victim’s shorts. He stated that he was in the victim’s bedroom two to |athree minutes. He also testified that he had been convicted of a sexual offense against another minor and that he was not supposed to be around children.

Defendant was indicted for aggravated rape, a violation of La.R.S. 14:42. He waived his right to a jury trial. After a bench trial, the trial court found him guilty as charged. He filed a Motion for Post Verdict Judgment of Acquittal/Motion for a New Trial which was denied. He was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Review of the record revealed no errors patent. We note, however, that La.R.S. 15:537(A) requires all offenders convicted of aggravated rape be denied diminution of sentence. See also State v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244. The trial court informed Defendant that he was denied diminution of sentence, but the sentencing minutes do not reflect that he was so informed. Accordingly, the trial court is instructed to amend the sentencing minutes to reflect that Defendant was denied diminution of sentence as provided in La.R.S. 15:537(A) and that he was informed of the denial as provided in La. Code Crim.P. art. 890.1(B).

Sufficiency of the Evidence

In his sole assignment of error, Defendant argues that the evidence was not sufficient to convict him of aggravated rape or any other responsive verdict. Specifically, he maintains that the victim’s testimony was inconsistent with prior statements and that the physical evidence did not support her allegations.

The analysis for a claim of insufficient evidence is well-settled:

|,.¡When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, re hearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of aggravated rape are set forth in La.R.S. 14:42, which provides, in pertinent part:

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

Defendant does not dispute that the victim was seven years old at the time of the offense. Therefore, the sole issue is whether the evidence supports the victim’s claim that Defendant performed oral sexual intercourse on her.

Defendant contends that the State failed to satisfy its burden of proof, arguing that there are inconsistencies between the victim’s trial testimony and statements she made when she was interviewed shortly after the alleged incident occurred. He also Lpoints to the lack of physical evidence as support for his claim that the State did not prove its case.

At the conclusion of the trial, the trial court found the victim to be credible, finding that her story was the same throughout the investigation and the trial. Conversely, the trial court questioned Defendant’s actions with the victim and her family, in light of his previous conviction of a sexual offense against another child and his parole restriction that he not be around children. The trial court carefully reviewed Defendant’s version of what occurred that evening and concluded that it made “no sense.”

It is the role of the trier of fact to make credibility determinations. Kennerson, 695 So.2d 1367. If the trier of fact’s credibility determinations are within the bounds of rationality, we cannot question those determinations unless it is “necessary to guarantee the fundamental due process of law.” State v. Kennedy, 05-1981, p. 24 (La.5/22/07), 957 So.2d 757, 793, quoting State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Defendant contends that there are inconsistencies between a pre-trial statement given by the victim and her trial testimony which establish reasonable doubt. The victim’s statement given two days after the incident and her trial testimony are essentially the same. She stated that she went to Taco Bell with Defendant and her brother and sister and fell asleep on the way home. Once home, Defendant carried her to her bedroom where he laid her on her bed, pulled off her shorts, folded them, put them on the floor, then pulled her panties down on her legs. He then touched her vagina with his tongue while kneeling on the floor by her bed. She testified that his tongue went inside her vagina and that he moved it around, causing her some | Rdiscomfort. She further explained that she was laying with her eyes “kinda closed” and that she could see Defendant when it happened. She testified that her legs were never completely apart and that she remained still during the offense because she was scared to move. She stated that Defendant stopped when he heard her brother and sister coming toward her room, pulled up her panties, then left the room. She continued pretending to be asleep.

After Defendant left her room, the victim went to her mother in the living room and reported the offense by whispering in her ear. The victim’s mother spoke with Defendant, and he left their home. She then reported the incident to the authorities.

Defendant first points to the victim’s response when questioned whether he had licked her vagina one or more times that “he did it to another kid.” The record establishes that the victim’s mother told her that Defendant had done this after someone else had related that information to her. However, the victim clarified that Defendant had only done this to her once and admitted that she had never seen Defendant do this to another person.

Defendant argues that the victim’s testimony that she had discussed this in advance with her mother and that her mother had told her to tell her if Defendant ever touched her also creates reasonable doubt as to the victim’s claim. The victim’s testimony makes it clear that her mother told her these things at different times. She testified that her mother had taught her the difference between good touch and bad touch and instructed her to tell her if anyone touched her inappropriately before she met Defendant She also testified that after the family met Defendant and he began going to their home, her mother told her to report if he touched her inappropriately.

| ^Defendant next urges that the victim’s affirmative response when questioned whether her mother told her to say Defendant licked her indicates that the victim’s mother told her what to say and is inconsistent with her other testimony. This argument overlooks the victim’s clarification that her mother gave her this instruction prior to the incident as explained above. Furthermore, the victim’s mother testified that the victim told her Defendant touched her vagina with something wet and that she did not know Defendant licked her until after the victim was interviewed by a child advocacy counselor three days after the incident.

Defendant points to the mother’s testimony that he denied the victim’s allegations when she confronted him after the victim reported his actions to her as support for his innocence. We view Defendant’s denial of the victim’s accusation as an attempt to exonerate himself, not as being “inconsistent” with the victim’s testimony.

• Defendant also relies on the testimony of a justice of the peace called to the scene shortly after the incident as support for his attack on his conviction. The justice of the peace testified that the victim’s mother told him she could see Defendant when he was in the victim’s room and that she had not seen anything. The evidence established that the justice of the peace was a friend of Defendant’s parents and that the victim’s mother was not questioned concerning this statement. Accordingly, we do not find the statement inconsistent with other evidence, and we find no error with the trial court’s disregard of the implication of the statement.

Defendant next argues that the DNA evidence positively excluded him as the donor of any DNA found on the victim’s panties. He maintains that the victim’s testimony that her panties became wet during the process of him licking her and 17pulling her panties back up could not be true because his DNA would have been in the wet spot on the panties. He contends that this establishes that a reasonable doubt exists as to whether he committed oral sex on the victim immediately prior to her moist panties being taken for testing.

The State points out that the DNA results were not submitted into evidence at trial; therefore, the trial court did not compare the DNA results with the victim’s testimony. Additionally, we note that although the results are in the record, they were not introduced into evidence and cannot be considered on appeal. State v. Vallot, 05-532 (La.App. 3 Cir. 4/5/06), 926 So.2d 98. See also State v. Crockharn, 99-2367 (La.App. 4 Cir. 2/7/01), 780 So.2d 1079. Furthermore, the testimony of the victim alone is sufficient to prove the elements of sexual offenses, including rape, despite the lack of physical evidence. State v. R.W.W., 06-1253 (La.App. 3 Cir. 3/7/07), 953 So.2d 131; State v. Fanguy, 94-143 (La.App. 3 Cir. 10/5/94), 643 So.2d 860, writ denied, 94-2726 (La.4/21/95), 653 So.2d 563.

The only evidence regarding what occurred the evening of April 15, 2006 is the testimony of the victim and Defendant. The trial court believed the victim. We have reviewed the record and find no error with the trial court’s credibility assessments. Therefore, we find no merit in Defendant’s arguments.

Disposition

Defendant’s conviction is affirmed. The trial court is ordered to amend the sentencing minutes to accurately reflect that Defendant is not eligible for diminution of sentence pursuant to La.R.S. 15:537 and that he was so informed by the trial court, as provided in La.Code Crim.P. art. 890.1(B).

AFFIRMED WITH INSTRUCTIONS.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Robert Thomas SMITH.
    No. 07-468.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Robert Thomas Smith.
    James C. Downs, District Attorney-Ninth Judicial District, ADA Michael W. Shannon, Alexandria, Louisiana, for Appel-lee, State of Louisiana.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

L Defendant, Robert Thomas Smith, appeals his second degree murder conviction and life sentence. For the following reasons, we affirm Defendant’s conviction and sentence.

CASE HISTORY

On October 19, 2000, the Defendant, Robert Thomas Smith, was charged by bill of indictment with second degree murder, a violation of La.R.S. 14:30.1, to which the Defendant entered a plea of not guilty. The indictment was amended on September 7, 2001, charging the Defendant with first degree murder, a violation of La.R.S. 14:30. The indictment was amended again on January 28, 2002, charging the Defendant with second degree murder. On August 14, 2003, the indictment was amended for the third time, charging the Defendant with manslaughter, a violation of La.R.S. 14:31. On the same date, the Defendant entered a combined plea of guilty to manslaughter as well as aggravated robbery, which was found in docket number 270,559, and the State agreed to a sentencing cap of sixty years at hard labor. On October 21, 2003, the Defendant was sentenced to twenty years on the aggravated robbery charge and to forty years on the manslaughter charge. The sentence for manslaughter was ordered to run consecutively with the sentence for aggravated robbery.

In State v. Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505, this court vacated and set aside the Defendant’s guilty pleas to both aggravated robbery and manslaughter because the crime of aggravated robbery was nonexistent at the time of the commission of the offenses. The matter was remanded to the trial court for further proceedings.

[j-The Defendant subsequently proceeded to trial on the charge of second degree murder. Jury selection commenced on October 18, 2005, and on October 20, 2005, the jury returned a verdict of guilty. On October 26, 2005, the Defendant was sentenced to life imprisonment to be served without benefit of probation, parole, or suspension of sentence.

A Motion for Appeal was filed and subsequently granted on March 1, 2006. The Defendant’s appeal was lodged with this court under docket number 06-722 on June 2, 2006. In State v. Smith, 06-722 (La.App. 3 Cir. 8/2/06), 936 So.2d 314, this court dismissed the Defendant’s appeal because the motion for appeal was untimely filed and remanded the case to the trial court for further proceedings.

On November 30, 2006, the Defendant filed an “Application for Post-Conviction Relief for an Out of Time Appeal” and various other documents. An out-of-time appeal was granted on February 27, 2007. The Defendant is now before this court asserting four assignments of error through counsel and three pro se assignments of error. Therein, the Defendant contends that the trial court erred in denying his motion for mistrial, that the trial court abused its discretion in allowing the introduction of cumulative and gruesome photographs of the victim’s body, that his sentence is excessive, and that his defense counsel was ineffective for failing to file a motion to reconsider sentence. We find that these assignments of error lack merit. The Defendant additionally asserts that his trial counsel was ineffective for failing to object to erroneous jury instructions, failing to investigate his mental history, and failing to call several witnesses. All claims regarding ineffective assistance of counsel, except the claim involving the definition of manslaughter, are relegated to post-conviction relief. The Defendant’s claim that the trial court |simproperly instructed the jury regarding the definition of manslaughter likewise lacks merit.

FACTS

On October 1, 2001, the Defendant, along with Joseph Loyd Ward, kidnapped, robbed, and murdered the Defendant’s sister.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the Defendant contends that the trial court abused its discretion in denying his motion for mistrial, which was brought on the ground that five of the twelve jurors heard or read about the case during trial. In brief to this court, the Defendant asserts that a mistrial should have been granted under La.Code Crim.P. art. 775 because he suffered substantial prejudice and was denied a fair trial when five of the seated jurors violated the trial court’s instructions not to read or listen to any outside information about the trial.

On the third day of trial, defense counsel informed the trial court that there was an article in the newspaper regarding the Defendant’s case and that the article set forth details about opening statements, remarks about the facts the State intended to prove, and the fact that the Defendant had previously pled guilty to manslaughter. The trial court addressed the jury and inquired as to whether they had read the newspaper article or saw anything on the television news regarding the Defendant’s case. Five jurors responded in the affirmative. The trial court then conducted an individual voir dire with those five jurors.

Juror Walker testified that her husband turned on the television that morning, heard the victim’s name, and then turned off the television. Juror Burks testified that on the 6:00 p.m. news the previous day, she heard something about a murder trial, | ¿then walked out of the room. Juror Gistrob testified that she was in the kitchen cooking and heard a 6:00 p.m. news report which indicated the Defendant shot his sister. Juror Smith testified that she heard the Defendant’s last name on the 10:00 p.m. news report, and, at that time, she put her hands over her ears, started hollering, and left the room. Juror Tudor testified that he read the newspaper and saw a headline that looked like it might pertain to the ease but avoided that article.

After questioning the jurors, the trial court stated that none of the jurors had seen or heard anything pertaining to the fact that the Defendant had previously entered into a plea agreement. The trial court informed the attorneys that it had someone speak to the local television station and that the television station indicated that there were no reports regarding the case on the 5:00 or 6:00 p.m news. However, the matter was reported on the 10:00 p.m. news, but there was no mention of the Defendant’s prior guilty plea. The trial court noted that Burks and Gistrob testified that they heard reports about the case on the 6:00 p.m. news.

Defense counsel subsequently moved for a mistrial, stating the following:

But because I didn’t see the 6:00 or the 10:00 o’clock news last night, I didn’t see the paper this morning. I am going to ask for a mistrial based on the confusion by those two by Ms. Burks and Ms. Gistrob, after the Court has gotten it from Channel 5 that they didn’t air anything at 6:00, but in fact at 10:00, because there may be just as much confusion on what they heard. And out of an abundance of caution, I would request a mistrial.

The trial court took the matter under advisement, indicating it would review the reports presented at the 5:00, 6:00, and 10:00 p.m news.

At the sentencing hearing, the State informed the trial court that the motion for mistrial was ruled on at trial, but that the ruling was probably not on the record. The trial court then denied the motion, finding that none of the jurors had any knowledge Rof the Defendant’s prior guilty plea.

The record indicates that defense counsel limited her basis for mistrial to the confusion regarding statements made by jurors Burks and Gistrob. Accordingly, whether the five jurors questioned by the trial court were influenced or tainted by pre-trial publicity is not properly before this court, as it was not the basis for a mistrial presented in the trial court.

The Defendant also questioned Gistrob’s credibility. The Defendant argues that although Gistrob claimed she did not pay attention to the news report, her claim is simply not credible. The Defendant asserts that if Gistrob was untruthful to the court on the subject of whether she paid attention to the news report, she was very possibly untruthful about whether the news report had any effect on her ability to be impartial.

Defense counsel moved for a mistrial based on the issue of whether Gistrob heard a news report at 6:00 p.m. and the confusion surrounding the issue of what she might have heard. The trial court indicated it would watch the pertinent news reports, but did not later state for the record whether it had watched the reports and whether Gistrob’s testimony was accurate. Therefore, there is no definitive answer in the record regarding whether there was a news report pertaining to the Defendant’s case on the 6:00 p.m. news. Based on the record, we cannot say Gistrob’s testimony was not credible. Therefore, the Defendant’s argument is not supported by the record.

For these reasons, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the Defendant contends that the trial court abused its discretion in allowing the State to introduce, over objections from defense | ^counsel, cumulative and gruesome photographs of the victim’s body.

At trial, defense counsel objected to State Exhibits 14 through 22 on the basis of their potential to shock the jury and because they were repetitious. After reviewing the photographs, the trial court found that the probative value of the photographs clearly exceeded any prejudicial effect and were, therefore, admissible.

The Defendant argues that the trial court erred in concluding that the probative value of the photographs outweighed the prejudicial effect they would have on the jury. The Defendant argues that the cumulative, gruesome photographs served to inflame the jury.

This Court held in State v. Letulier, that even where the cause of death is not at issue, the State is entitled to the moral force of its evidence. State v. Letulier, 97-1360, (La.7/8/98), 750 So.2d 784, 795. Therefore, postmortem photographs of murder victims are admissible to prove corpus delicti to corroborate other evidence establishing cause of death, location, placement of wounds, as well as to provide positive identification of the victim. Id. In Letulier, the defendant stabbed an elderly man to death, robbed him of his social security income, and dumped his body in a local levee. Id. at 787. The State introduced pictures of the victim during the testimony of his daughter for identification purposes, as well as during the testimony of Det. Scott Haydel, a detective with the St. Martin Sheriffs Office, to explain the condition of the body when it was found. Id. at 795. Photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient evidence, or, as explained in La. C.E. art. 403, when the prejudicial effect of the photographs substantially outweighs their probative value. Id. See also State v. Koon, 96-1208, (La.5/20/97); 704 So.2d 756; State v. Maxie, 93-2158, (La.4/10/95); 653 So.2d 526; State v. Martin, 93-0285, (La.10/17/94); 645 So.2d 190.

State v. Robinson, 02-1869, p. 28 (La.4/14/04), 874 So.2d 66, 85-86, cert. denied, 543 U.S. 1023, 125 S.Ct. 658 (2004). The photographs at issue are as follows:

1.a photograph of the victim in the position in which she was found. The victim’s breasts are exposed, and there is little visible blood. Exhibit S-14.
2. a photograph of the victim taken from a different 17position than Exhibit S-14. There is little, if any, visible blood. Exhibit S-15.
3. a photograph of the victim from the top of her head to the bottom of her feet. The victim’s breasts are exposed, and there is visible blood on her face and chest area. Exhibit S-16.
4. a close-up of the victim’s face. There is visible blood on the face and shirt. Exhibit S-17.
5. a photograph of the victim from a different angle than Exhibit S-17. The victim’s breasts are exposed, and there is visible blood on the face, shirt, and chest. Exhibit S-18.
6. a medium range photograph of the victim’s legs and feet. There is no visible blood. Exhibit S-19.
7. a photograph of the victim’s torso and head taken at a ninety degree angle. There is visible blood on the victim’s face and shirt. This photograph is very similar to Exhibit S-17. Exhibit S-20.
8. an intermediate photograph of a gunshot wound to the victim’s lower left breast. The breasts are exposed, and there is little visible blood. Exhibit S-21.
9. a photograph of a second gunshot wound. The gunshot wound depicted in Exhibit S-21 is also visible. The breasts are exposed, and there is visible blood. Exhibit S-22.

We find that while the photographs do depict some blood and nudity, none of the photographs complained of are particularly gruesome. We also find that although some of these photographs do depict the same area of the body, they are not merely repetitive or cumulative. Each photograph was taken from a different angle and depicted a different view of the victim’s body. Moreover, the photographs are relevant to show the location of the victim’s wounds and the condition and location of her body. The record supports the trial court’s determination that the probative value of these photographs is outweighed by their prejudicial effect. Accordingly, we |sfind this assignment of error lacks merit.

ASSIGNMENT OF ERRORS NOS. 3 & 4

In his third assignment of error, the Defendant contends that his life imprisonment sentence is excessive under the circumstances of this case because he is exceptional. In his fourth assignment of error, the Defendant claims ineffective assistance of counsel in that his trial counsel failed to file a motion to reconsider sentence. As these two assignments of error pertain to the Defendant’s sentence, they will be addressed at the same time.

Louisiana Code of Criminal Procedure Article 881.1 states that within thirty days of the imposition of a sentence, a defendant may make or file a motion to reconsider that sentence. Generally, the failure to make or file a timely motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal. State v. Williams, 01-998 (La. App. 3 Cir. 2/6/02), 815 So.2d 908, unit denied, 02-578 (La.1/31/03), 836 So.2d 59. The Defendant did not orally object to his sentence and failed to file a written motion to reconsider sentence. However, the Defendant argues that defense counsel’s failure to file a motion to reconsider sentence constituted ineffective assistance of counsel and should not bar appellate review of his sentence.

This court discussed ineffective assistance of counsel for failure to file a motion to reconsider sentence in State v. Findlay, 06-1050, p. 4 (La.App. 3 Cir. 2/7/07), 949 So.2d 609, 611-12, as follows:

This court considered a similar issue in State v. Prudhomme, 02-511, p. 16 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324, stating:

Failure to file a motion to reconsider the sentence does not necessarily constitute ineffective assistance of counsel. State v. Texada, 98-1647 (La.pp. 3 Cir. 5/5/99); 734 So.2d 854. Nevertheless, the defendant may have a 13basis to claim ineffective assistance of counsel when he can show a reasonable probability, but for defense counsel’s error, his sentence would have been different. Id. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99); 748 So.2d 484, writ denied, 00-0544 (La.11/13/00); 773 So.2d 156, this court stated:
A claim of ineffective assistance of counsel is properly raised in an application for post conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.

We find that there is sufficient evidence in the record to address the Defendant’s claim of ineffective assistance of counsel and determine whether there was a reasonable probability that the trial court would have reduced his sentence had a motion to reconsider sentence been filed.

The Defendant was convicted of second degree murder and sentenced to the mandatory term of life imprisonment. La.R.S. 14:30.1.

Louisiana courts have consistently held that a mandatory sentence of life imprisonment for second degree murder does not constitute cruel and unusual punishment. State v. Graham, 422 So.2d 123 (La.1982), appeal dismissed, Graham v. Louisiana, 461 U.S. 950, 103 S.Ct. 2419, 77 L.Ed.2d 1309 (1983); State v. Pendelton, 96-367 (La.App. 5 Cir. 5/28/97), 696 So.2d 144, writ denied, 97-1714 (La.12/19/97), 706 So.2d 450; State v. Hill, 98-1087 (La.App. 5 Cir. 8/31/99), 742 So.2d 690, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147.

State v. Lovick, 00-1833, p. 15 (La.App. 5 Cir. 5/16/01), 788 So.2d 565, 573, unit denied, 01-1836 (La.5/10/02), 815 So.2d 833; see also State v. Adams, 04-77 (La.App. 3 Cir. 9/29/04), 884 So.2d 694, unit denied, 04-2709 (La.2/25/05), 894 So.2d 1131, writ denied, 04-2880 (La.2/25/05), 894 So.2d 1132; State v. Paddio, 02-722 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, unit denied, 03-402 (La.2/13/04), 867 So.2d 682. Therefore, we find that the Defendant’s life sentence is not excessive. Accordingly, there was no reasonable probability that the trial court would have reduced the Defendant’s sentence had defense counsel filed a motion to reconsider sentence.

The Defendant also asserts that his sentence is excessive because he is exceptional.

[A] court may depart from mandatory penalties provided by the legislature for an offense upon a showing by the defendant that he is “exceptional, which in this context means that because of unusual circumstances [he] is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677 (internal quotation marks and citation omitted); see also State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993) (holding that a trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment,” or is nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”).

State v. Lemons, 06-1051, p. 1 (La.11/17/06), 942 So.2d 33, 33-34.

The Defendant argues that he is exceptional, that the trial court failed to consider that he was only eighteen years of age at the time of the offense, that he was suffering from post-traumatic stress disorder, that he had been treated for serious emotional problems since childhood, and that his problems were exacerbated by his experiences within the juvenile justice system. A review of the record indicates that the Defendant did not present these factors to the trial court at the sentencing hearing and did not argue that he was exceptional. Accordingly, the trial court did not abuse its discretion in sentencing the Defendant to life imprisonment.

For these reasons, we find that assignments of error three and four lack merit.

_ypRO SE ASSIGNMENT OF ERROR NO. 1

In his first pro se assignment of error, the Defendant contends that his counsel’s failure to make objections to erroneous jury instructions established ineffective assistance of counsel.

“Initially we note that ineffective assistance of counsel claims are usually addressed in post-conviction proceedings, rather than on direct appeal.” State v. Deruise, 1998-0541[,] p. 35 (La.4/3/01), 802 So.2d 1224, 1247-1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). The post-conviction proceeding allows the trial court to conduct a full evidentiary hearing, if one is warranted. State v. Howard, 1998 — 0064[,] p. 15 (La.4/23/99), 751 So.2d 783, 802, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). Where the record, however, contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy. State v. Smith, 1998-1417 (La.6/29/01), 793 So.2d 1199 (Appendix, p. 10), cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002); State v. Ratcliff, 416 So.2d 528 (La. 1982).

State v. Leger, 05-11, p. 44 (La.7/10/06), 936 So.2d 108, 142, cert. denied, — U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Manslaughter

The Defendant contends that the trial court erred by charging the jury under the wrong element of manslaughter in that the trial court instructed the jury that “specific intent to kill or inflict great bodily harm” was an essential element of manslaughter. The Defendant contends that his trial counsel faded to object; therefore, counsel was ineffective.

The trial court instructed the jury regarding manslaughter as follows:

Manslaughter is a responsive lesser offense. Manslaughter is the killing of a human being when the defendant has specific intent to kill, but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled or that an average person’s blood would have cooled |1Pat the time the offense was committed. Thus, in order to convict the defendant of manslaughter, you must find beyond a reasonable doubt that the defendant killed the victim, that the defendant had specific intent to kill, and that the killing was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection.
Manslaughter is defined as;
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed....

La.R.S. 14:31.

Both first and second degree murder are defined, in part, as the killing of a human being when the offender has specific intent to kill. La.R.S. 14:30 and La.R.S. 14:30.1. Additionally, the general comment to La.R.S. 14:31 provides, in pertinent part, that:

The former Louisiana statutes made no distinction between voluntary and involuntary manslaughter. The Criminal Code has continued this policy by including only one section on manslaughter. Subdivision (1) is identical with the offense which is usually labelled [sic] voluntary manslaughter. It covers intentional killings, which would otherwise come within subdivision (1) of R.S. 14:30 (murder section).

We find that the trial court’s jury instructions at issue were proper; therefore, there was no basis for defense counsel to object. Accordingly, this pro se claim lacks merit.

Law of Principals

The Defendant also contends that defense counsel was ineffective because she allowed the trial court to instruct the jury using an incorrect definition of the law of 1 ^principals. The Defendant argues that not all principals are automatically guilty of the same offense. He further asserts that the charge of second degree murder requires specific criminal intent and that the principal must have the requisite mental state, since intent cannot be transferred to the accused.

The trial court instructed the jury regarding the law of principals as follows:

All persons concerned in the commission of a crime are principals and are guilty of the crime charged if whether present or absent, they directly commit the act constituting the crime, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.
Under Louisiana law, a person may be convicted of intentional murder even if he has not personally struck the fatal blows. Only those persons however who knowingly participate in the planning or execution of a crime are principals. It is sufficient encouragement that the accomplice is standing by the scene of the crime ready to give some aid if needed. Thus, in order to convict the defendant of second degree murder, you must find that the defendant had specific intent to kill or do great bodily harm to Ora Christina Smith, or he was a principal to that crime, that the defendant was engaged in the commission or attempted commission of second degree kidnapping, even though he had no intent to kill or inflict great bodily harm.

We find that, if this instruction was incorrect, counsel’s failure to object may have involved matters of trial strategy. See State v. Smith, 06-820 (La.App. 1 Cir. 12/28/06), 952 So.2d 1. Therefore, we find that the record before the court is insufficient to make definitive findings as to this claim of ineffective assistance of counsel. Accordingly, the Defendant’s claim is relegated to post-conviction relief proceedings where, if warranted, a full evidentiary hearing may be conducted to develop a sufficient record on the issue raised.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment of error, the Defendant contends that his trial counsel violated his due process right and right to a fair trial when he failed to | investigate the Defendant’s mental history and failed to call Dr. Sautter, a psychiatrist, as a witness to assist in his theory of being diagnosed as suffering from post-traumatic stress disorder before and at the time of the crime.

It cannot be determined from the record what matters counsel investigated, and whom he spoke to regarding the Defendant’s mental history. Additionally, this claim may likewise involve matters of trial strategy. The record before the court is insufficient to make definitive findings as to this claim of ineffective assistance of counsel. Thus, the Defendant’s claim in this regard is relegated to post-conviction relief proceedings where, if warranted, a full evidentiary hearing may be conducted to develop a sufficient record on the issue raised.

PRO SE ASSIGNMENT OF ERROR NO. 3

In his third pro se assignment of error, the Defendant contends that his counsel failed to investigate and subpoena material witnesses who could have proven that he was incompetent to proceed. The Defendant asserts that his trial counsel did not speak to his mother about his behavioral problems, and he sets forth a list of “psychiatric experts” who diagnosed or saw him.

It cannot be determined from the record whom counsel spoke to about the Defendant’s mental history, and what matters counsel investigated. Again, the record before the court is insufficient to make any definitive findings as to the Defendant’s claim of ineffective assistance of counsel in that regard. Thus, the Defendant’s claim is relegated to post-conviction relief proceedings where, if warranted, a full eviden-tiary hearing may be conducted to develop a sufficient record on the issue raised.

I ^CONCLUSION

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Chad Everette BATISTE.
    No. 07-482.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, Louisiana, for State of Louisiana.
    James E. Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Chad Everette Batiste.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| defendant, Chad Everette Batiste, was charged by bill of indictment with second degree murder, in violation of La.R.S. 14:30.1. Defendant waived his right to trial by jury and, after a bench trial, was found guilty of the responsive verdict of manslaughter, in violation of La.R.S. 14:31. Defendant was sentenced to twenty years at hard labor. He filed a Motion to Reconsider Sentence which was denied. Defendant is now before this court asserting one assignment of error, that his sentence is excessive. For the following reasons, we affirm.

FACTS

On June 28, 2005, Defendant and Tyra Dale Hicks got into an argument. At some point, Defendant got into his truck and Hicks approached the passenger window, leaning in to tell Defendant “he would f_k him up.” Defendant then got out of the truck and hit Hicks in the head with a stick. Three days later, Hicks died.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant contends the trial court failed to give sufficient consideration to the mitigating factors in fashioning a sentence, such that a twenty-year sentence is excessive for this offender in this case.

Defendant was found guilty of manslaughter. The maximum sentence for manslaughter as set forth in La.R.S. 14:31 is forty years at hard labor. Defendant was sentenced to serve twenty years at hard labor. He argues that a twenty-year hard labor sentence is excessive for a thirty-three-year-old first offender who has no criminal record. Additionally, he argues that there is no evidence in the record that a less harsh sentence or a period of supervised release would not be appropriate.

I ^STANDARD OF REVIEW
The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-diseretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La. 1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court has provided a list of several factors that appellate courts are to consider in ascertaining whether a sentence, by its excessive duration or severity, is grossly disproportionate to the underlying offense. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, citing State v. Telsee, 425 So.2d 1251, 1253 (La.1983). The appellate court’s analysis of the sentence is cumulative and centers on an amalgam of relevant factors. Id. Among these factors the supreme court notes, are “the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at 1253-54.

State v. Wilturner, 03-719, pp. 5-6 (La. App. 3 Cir. 11/5/03), 858 So.2d 743, 746.

ANALYSIS

The trial court stated the following at Defendant’s sentencing hearing:

The Court found that the defendant in this case had the last opportunity to either drive off to avoid the victim and not exit from his vehicle but instead the defendant exited his vehicle, walked around to the other side of the vehicle where the victim was and struck him in the head with one blow to the head.
The mitigating circumstances show that the victim had been taunting the defendant and had been picking at Chad to fight him the entire evening of the incident in question. The victim entered the ^vehicle from the passenger side with a forty (40) ounce beer in his hand and threatened to do harm to the defendant.
The medical evidence showed that the victim, Tyra Dale Hicks had ingested cocaine, marijuana, alcohol and some unknown substance captioned Benzu ... in his system at the time of his death.
The defendant was charged with Second Degree Murder and the Court found him guilty of Manslaughter. The Court did [not] accept the defense of self-defense or did not accept that theory by the defense in this case at this trial.
The defendant, Chad Batiste[,] has no prior record whatsoever other than the instant offense. No juvenile. No adult record....

At the hearing on Defendant’s Motion to Reconsider Sentence, defense counsel argued that Defendant’s sentence was excessive based on the following: Defendant was a first offender; Defendant did not contemplate his conduct would cause or threaten serious harm; Defendant acted under strong provocation; and, there were substantial grounds tending to justify the criminal conduct of Defendant.

The trial court reminded the parties that Defendant was convicted and sentenced after a bench trial and that all of the grounds argued by Defendant in his motion to reconsider sentence, especially Defendant’s lack of criminal record, had been taken into consideration. In denying the motion, however, the trial court focused on the fact that Defendant could have walked away but did not, and a man’s life was taken as a result.

In State v. Griffin, 06-543 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, writ denied, 07-2 (La.9/14/07), 963 So.2d 995, this court was called upon to decide, among other issues, whether the defendant’s sentence of thirty-five years at hard labor after being convicted of manslaughter was excessive. At the sentencing hearing, the trial court stated the following:

14You can’t have someone come over and mouth off to you and there’s not a weapon, he’s just mouthing off. And you can’t ... there can’t be precedent which would allow you to stick them ... stab them with a 3.5 inch knife of that type or any kind of a knife in the gut. There are too many other methods of retreat.

Id. at 856-857. In affirming the sentence imposed by the trial court, we noted that this court has upheld lengthy sentences for manslaughter.

In State v. Batiste, 06-875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, the defendant was convicted of manslaughter for shooting the victim once over a twenty-dollar bet on a domino game. During the game, the defendant and the victim argued and the victim told the defendant to go to his truck and get his “s* * meaning his gun. Defendant retrieved his gun and returned to the domino table. He and the victim continued to argue, and the victim grabbed the defendant in a bear hug. The men scuffled and the defendant shot the victim. The fourth circuit noted that:

[T]he fight resulting in the victim’s death arose from “trash talking” that ultimately provoked the shooting. Nonetheless, the [trial] court noted that the altercation resulted in the death of one person. The [trial] court stated that if the [defendant] had not armed himself, he would not be standing before the court convicted of shooting someone. The [trial] court reiterated that it had taken into consideration the [defendant’s] age and physical condition,[] but the [trial] court believed that the sentence of twenty years was warranted even though the [defendant] was a first offender.

Id. at 820.

It is clear that the trial court carefully considered the circumstances surrounding the offense and Defendant’s lack of criminal record. Defendant faced a sentence of no more than forty years at hard labor after being convicted of manslaughter. La.R.S. 14:31. Based on our review of the record and the cases cited herein, we find that the trial court did not abuse its discretion when sentencing | {¡Defendant and that Defendant’s mid-range sentence is not grossly disproportionate to the severity of the offense.

CONCLUSION

Defendant’s claim that his sentence is excessive lacks merit, and his sentence is affirmed.

AFFIRMED.

      . The defendant was in his seventies at the time of the crime.


author: PETERS, J.

text:
    STATE of Louisiana v. Raymond ROGERS.
    No. 07-0427.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      John F. DeRosier, District Attorney, Paul P. Reggie, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee State of Louisiana.
    Eugene A. Bouquet, Attorney at Law, Lake Charles, LA, for Defendant/Appellant Raymond Rogers.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

hThe defendant, Raymond Rogers, was convicted of the offense of aggravated battery, a violation of La.R.S. 14:34, and was sentenced by the trial court to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence, asserting six assignments of error. For the following reasons, we affirm the conviction in all respects, but vacate the sentence and remand the matter to the trial court for resentencing.

DISCUSSION OF THE RECORD

The criminal charge against the defendant arises from a prior ongoing property dispute between him and David Gilley. On August 18, 2005, Mr. Gilley was using his tractor to destroy a fence constructed by the defendant on the land whose ownership was in dispute between the two men. As Mr. Gilley operated his tractor, the defendant began firing a pistol at him. One of the several bullets fired by the defendant struck Mr. Gilley in the head.

The State of Louisiana (state) charged the defendant by grand jury indictment with attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1. However, after trial, the jury found the defendant guilty of the responsive verdict of aggravated battery. Thereafter, the trial court sentenced the defendant as stated above. The defendant then filed a motion to reconsider his sentence, and, after a hearing, the trial court denied that motion. The defendant then perfected this appeal.

OPINION

The first two assignments of error address the merits of the conviction. The remaining assignments of error relate to the imposition of sentence.

| «Merits Issues

The defendant phrased the first two assignments of error in the following language:

1. Was the failure of the trier of fact to return a not guilty verdict on the issue of self defense not supported by the evidence?
2. Considering the nature of self defense presented on behalf of the defendant did the trial court err in denying the admission to the trier of fact testimony of prior threatening and harmful action of the alleged victim in the use of his tractor as a weapon toward others?

In support of the first assignment of error, the defendant states that “[a] defense of self defense is well applicable,” and cites State v. Lejeune, 487 So.2d 1243 (La.App. 3 Cir.1986), but makes no other reference to self-defense and does not discuss the particulars of the Lejeune decision. That is to say, he fails to set forth any basis for his theory of self-defense or how it applies to the facts of this case. Because the defendant has failed to properly brief this issue, it will not be considered by this court. Uniform Rules— Courts of Appeal, Rule 2-12.4.

For the same reason, and pursuant to the same authority, Uniform Rules— Courts of Appeal, Rule 2-12.4, we will not consider the second assignment of error. In that assignment of error, the defendant states that Mr. Gilley had used his tractor in the past as a weapon against another person, and that the trial court erred in not allowing him to present that evidence. He asserts that the significance of the testimony is profound in consideration of the defense of self-defense. But the defendant has failed to properly brief this issue because he has presented no authority to suggest on what basis the evidence at issue should have been admissible.

| ^Sentencing Issues

The defendant phrased his remaining assignments of error in the following language:

3. Was the sentence against the defendant excessive?
4. Did the trial court err at sentencing by dismissing without consideration the presentence Investigation Report?
5. Did the trial court err in determining that he had absolutely no discretion under the provision of Louisiana Code of Criminal Procedure Article 893.1?
6. Did the trial court err in failing to apply exceptional circumstances under the provisions Code of Criminal Procedure Article 893.3?

As stated by the supreme court in State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16, “[t]he trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion.” In this matter, the trial court sentenced the defendant to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence.

Because we find merit in the defendant’s fifth assignment of error, we need not consider the remaining assignments that address the sentencing process. Instead, for the following reasons, we vacate the sentence imposed and remand the matter to the trial court for resentencing.

In reaching this disposition, we first note that La.R.S. 14:34 provides for a maximum incarceration sentence of ten years, but makes no mention of probation, Lparole, or suspension restrictions. Thus, the sentence imposed exceeds the maximum incarceration sentence that may be imposed under that statute. However, sentences that may be imposed for felonies or certain enumerated misdemeanors wherein a firearm is used are also subject to the enhancement provisions of La.Code Crim.P. arts. 893.1-893.3. In the matter now before us, the trial court relied on the provisions of La.Code Crim.P. art. 893.3(D), (F), and (G) in sentencing the defendant. Louisiana Code of Criminal Procedure Article 893.3(D) provides:

If the court finds by clear and convincing evidence that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of fifteen years; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence.

Louisiana Code of Criminal Procedure Article 893.3(F) provides that a sentence imposed under La.Code Crim.P. art. 893.3(D) shall be without the benefit of suspension of sentence, and La.Code Crim.P. art. 893.3(G) provides that during service of the mandatory minimum sentence imposed under La.Code Crim.P. art. 893.3(D) a defendant shall not be eligible for parole. Thus, the trial court imposed the mandatory minimum sentence required by La.Code Crim.P. art. 893.3(D). A mandatory minimum sentence is presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

Notwithstanding the fact that the record establishes by clear and convincing evidence that the defendant discharged a firearm while committing the offense for which he was convicted and caused bodily injury to the victim, he asserts that the trial |Bcourt erred in concluding that it had no discretion in imposing any sentence other than that found in La.Code Crim.P. art. 893.3(D). Specifically, the defendant relies on the language of La.Code Crim.P. art. 893.3(H) which specifically provides that “[i]f the court finds that a sentence imposed under provisions of this Article would be excessive, the court shall state for the record the reasons for such finding and shall impose the most severe sentence which is not excessive.” Thus, the trial court clearly has discretion to deviate from the sentencing requirements of La.Code Crim.P. art. 893.3(D).

In sentencing the defendant, the trial court first advised him of the provisions of La.Code Crim.P. art. 893.3(D), including specifically the mandatory ten-year sentence provision. Immediately thereafter, the trial court informed the defendant that while it was required to consider the sentencing guidelines found in La.Code Crim.P. art. 894.1, those guidelines were of little use in this matter because of the mandatory minimum sentence provision of La.Code Crim.P. art. 893.3(D). Then in sentencing the defendant the trial court stated the following:

[TJhere are rare circumstances where the Court can deviate from [the mandatory minimum sentencing requirements]. I would suggest that the one factor that is the most I guess difficult for the Court is your age. You’ve lived basically a crime-free life for 82 years and you have lived — not caused anyone any trouble. And this particular incident has caused a tremendous amount of problems and certainly it causes problems for the Court, and the Court had the discretion to sentence you, and I listened to the jurors who were in the back who also gave me some input on their feelings on this case also, the Court would go meticulously over 894.1 and there would be a sentence imposed that would be appropriate considering the offense as well as your history and that type of thing. However, the Court is bound by 893.3. 893.3 is pretty clear, that the Court is required to sentence you to the term of 10 years with the Department of Corrections, it’s a mandatory sentence. And Judges around the state are- — there are a lot of mandatory sentences in a lot of | (-.different matters. The use of a firearm — the discharge of a firearm is what causes that sentence, and that will be the sentence of the Court.

(Emphasis added.)

We interpret the trial court’s statements to mean that it found that its discretion under La.Code Crim.P. art 894.1, to consider the defendant’s age and crime-free life in formulating an appropriate sentence, was precluded by the language of La.Code Crim.P. art. 893.3(D).

At the hearing on the defendant’s motion to reconsider his sentence, the issue of discretion was addressed directly. In his argument to the trial court at the hearing on his motion to reconsider his sentence, the defendant relied primarily on this court’s decision in State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324, in which this court noted that a mandatory minimum sentence was constitutional and specifically addressed the application of La.Code Crim.P. art. 893.3(H) to such a sentence. Specifically, this court stated that in order to rebut the constitutional presumption of a mandatory minimum sentence, “the defendant must carry the burden to show that he is exceptional.” Id. at 1177. This court went on to state:

Specifically, the defendant must show that, due to unusual circumstances, he is “a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” [State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676] (quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95); 663 So.2d 525, 528, unit denied, 95-3010 (La.3/22/96); 669 So.2d 1223).

Id. at 1177.

After considering the argument of both the defendant and the state, the trial court recognized the specific authority granted under La.Code Crim.P. art. 893.3(H), as well as the application of the language cited above from Prudhomme, but |7concluded that it did not have the “power” to consider health and age issues under La.Code Crim.P. art. 893.3(H). Specifically, the trial court interpreted the phrase “circumstances of the case” to apply only to the facts which were presented at trial and concluded that it could not be extended to consideration of the defendant’s mitigating factors of age, crime-free life, and health. Thus, the trial court denied the motion to reconsider. We find the trial court’s interpretation to be in error, the effect of which was to deny the defendant any consideration of the discretion provided the trial court in La.Code Crim.P. art. 893.1(H). That is to say, the trial court’s erroneous legal conclusion that it had no discretion constituted an abuse of discretion.

Our determination in this regard is further supported by the fact that the trial court, in reaching the conclusion that it could not consider the defendant’s mitigating factors, also concluded that were it able to do so, those same factors “would be factors that would allow the Court to deviate from the ten-year sentence,” and that the trial court “certainly ... would consider those factors in the sentencing” if it had discretion to do so. Thus, the trial court clearly suggested that but for the language of La.Code Crim.P. art. 893.3(D) and its interpretation of “circumstances of the ease,” it may well have sentenced the defendant to a lesser sentence.

We further note that this court recognized in Prudhomme that the trial court had clearly considered whether the mandatory minimum sentence applicable therein was excessive, and in doing so, “assessed] the circumstances of the case before imposing the sentence.” Prudhomme, 829 So.2d at 1178. During the sentencing proceedings in Prudhomme, the trial court considered letters submitted on behalf of the defendant and recognized the first felony offender status of the defendant— clearly facts that were not necessarily presented at trial. Additionally, | «this court stated that “[w]hen imposing a sentence that is suited to a defendant, the trial court is required to look to the circumstances of the case and the defendant’s background.” Id. at 1178 (emphasis added).

In vacating the sentence and remanding this matter for resentencing, this court does not instruct the trial court to sentence the defendant to a lesser sentence. Rather, this court instructs the trial court to, within its discretion, make a determination whether the mandatory minimum sentence required by La.Code Crim.P. art. 893.3(D) is excessive. If the trial court determines that the mandatory minimum sentence is not excessive given the circumstances of this case, it is to impose that sentence. If the trial court determines that the sentence is excessive, the trial court is instructed to state for the record the reasons it finds the sentence to be excessive and to sentence the defendant to “the most severe sentence which is not excessive” in accordance with the provisions of La.Code Crim.P. art. 893.3(H).

DISPOSITION

We affirm the defendant’s conviction in all respects. We vacate the defendant’s sentence and remand the matter for resen-tencing.

CONVICTION AFFIRMED; SENTENCE VACATED, AND THE MATTER REMANDED FOR RESENTENC-ING.

      . We interpret this assignment of error to refer to La.Code Crim.P. art. 893.3 and not La.Code Crim.P. art. 893.1. The latter refers to the procedure by which the state must bring the enhancement issue to the trial court's attention while the former relates to the particulars of the sentence that may be imposed.

      . The trial court also stated that the sentence was not subject to probation. While La.Code Crim.P. art. 893.3 makes no mention of probation requirements as it applies to La.Code Crim.P. art. 893.3(D), because the ten-year sentence is a mandatory minimum, the trial court was precluded from considering probation.


text:
    Lynn BOUTIN v. George RODRIGUE.
    No. 07-566.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Peter J. Losavio, Jr., - Christopher W. Nielson, Ronald J. Savoie, Kent S. DeJean, Losavio & DeJean, L.L.C., Baton Rouge, Louisiana, for Plaintiff/Appellant, Lynn Boutin.
    Maria Garcia Marks, Joelle F. Evans, Kyle Schonekas, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, Louisiana, for Defendant/Appellee, George Rodrigue.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this suit for breach of contract, Plaintiff, Lynn Boutin (Boutin), appeals the trial court’s judgment in favor of Defendant, George Rodrigue (Rodrigue), finding that Rodrigue was not the primary obligor on the contract. Rodrigue answered the appeal seeking additional costs incurred during post-trial proceedings and on appeal. For the following reasons, we affirm.

FACTS

The instant litigation was the subject of a previous appeal to this court wherein we summarized the facts as follows:

There is little dispute concerning the facts giving rise to the execution of the contract at issue. In 1996, Boutin and Rodrigue joined with Scott Louck to form RBL Enterprises[, Inc. (RBL Enterprises) ] through which they operated Café Tee George in Lafayette, Louisiana. Although the corporation never issued stock certificates, the three men divided the corporate ownership as follows: Rodrigue, sixty percent; Boutin, twenty-five percent; and Louck, fifteen percent. Rodrigue served as president of the corporation, Boutin as vice-president, and Louck as secretary. Additionally, Boutin initially functioned as the restaurant manager.
On December 22, [1997,] Boutin' met with Rodrigue and [Bradford Cohen, the corporation’s accountant,] in Cohen’s office and discussed the issue of Boutin’s ownership in the corporation. While the particulars of this discussion are in dispute, the litigants do agree that the meeting resulted in the hand-written agreement at issue. That agreement is reproduced as follows:
RBL Inc Purchase of Stock from Lynn Boutin.
Purchase of shares from Lynn Bout-in—
Representing 25% of RBL Enterprises, Inc.
Down payment — 7500 Down
[ ¡^Monthly Pmts 3000 for eight months starting Feb 1,1998.
Payments will be guaranteed by the corporation (RBL Enterprises, Inc.)
Boutin and Rodrigue acknowledge that the two illegible signatures that follow this language are their signatures.
Contemporaneous with the contract execution, Rodrigue gave Boutin a $2,500.00 check drawn on the checking account of Café Tee George. Thereafter, Rodrigue paid Boutin $5,000.00 by a check dated April 3, 1998, and $3,000.00 by a check dated June 1, 1998. Both of these checks were drawn on the checking account of Rodrigue Studios, LLC, a limited partnership solely owned by Ro-drigue and his wife.

Boutin v. Rodrigue, 01-1235, pp. 2-4 (La. App. 3 Cir. 2/6/02), 815 So.2d 988, 989-990, writ denied, 02-699 (La.5/3/02), 815 So.2d 823.

On June 5, 1998, Café Tee George was destroyed by a fire, and the business ceased to exist. Boutin did not receive any additional payments from then insolvent RBL Enterprises. As a result, Bout-in instituted the instant litigation against Rodrigue, asserting that Rodrigue was personally liable under the contract for the remaining balance of $21,000.00.

As noted, this matter was previously before this court following the trial court’s grant of a summary judgment in favor of Rodrigue. Rodrigue asserted, in support of his motion for summary judgment, that it was RBL Enterprises, as opposed to Rodrigue in his personal capacity, that agreed to purchase Boutin’s stock. “The trial court found that there existed no issue of material fact and that the contract was ‘between solely the corporation and Mr. Boutin.’ ” Id. at 990. On appeal, this court found the contract to be ambiguous; consequently, we held that there were genuine issues of material fact precluding summary judgment. This court, therefore, reversed |sthe trial court’s grant of summary judgment in favor of Rodrigue, which dismissed Boutin’s suit, and remanded the matter to the trial court for further proceedings.

Following a trial on the merits, the trial court found in favor of Rodrigue and signed a judgment consistent therewith on November 28, 2006. It is from this judgment that Boutin appeals. Rodrigue answered the appeal “to request the award of additional costs incurred in the post-trial and appellate proceedings.” For the following reasons, we affirm.

ISSUE

The sole issue presented for our review is whether the trial court erred in finding that George Rodrigue was not the primary obligor on the contract.

LAW AND DISCUSSION

Appellate courts apply the following standard of review when interpreting contracts:

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect, (citations omitted).
Evangeline Parish Sch. [Bd.] v. Energy Contr., 617 So.2d 1259, 1265 (La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La. 1993) (quoting Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied, 545 So.2d 1041 (La.1989)).

Rogers v. Restructure Petroleum Mktg. Serv., 01-1396, p. 4 (La.App. 3 Cir. 3/6/02), 811 So.2d 1154,1158.

In the prior proceedings before this court, we found that the trial court erred in finding, as a matter of law, that the contract at issue was clear and unambiguous. |4SpecificaIly, we found that:

the contract does not clearly designate the parties. The language of the contract suggests that a party other than the corporation is the obligor. In fact, the terms of the contract provide that payment of the obligation would be guaranteed by the corporation. Furthermore, the contract does not provide evidence of corporate authorization for Rodrigue to bind the corporation to the stock repurchase.

Boutin, 815 So.2d at 991.

Boutin argues that the contract provides that Rodrigue, as opposed to RBL Enterprises, is the primary obligor on the contract. According to Boutin, Ro-drigue signed the document to purchase Boutin’s shares of stock in RBL Enterprises in his personal capacity; consequently, he is personally liable for the remaining balance of $21,000.00. We find that the evidence in the record does not support Boutin’s contention.

The document signed by the parties begins with the words “RBL Inc Purchase of Stock from Lynn Boutin.” No other purchaser is identified therein. Subsequently, the document provides that “[p]ayments will be guaranteed by the Corporation (RBL Enterprises, Inc.).” No other guarantor is expressly named therein. Notably absent from the signed document is any reference to Rodrigue. Rodrigue is neither named nor identified in any capacity whatsoever. Moreover, nowhere in the document are there provisions imposing any obligations on Rodrigue. While acknowledging ambiguity in the contract, it is Boutin, as the plaintiff in this lawsuit, who bears the burden of proof in this case, and we agree with the trial court that Boutin failed to meet this burden. The record is void of any evidence that Ro-drigue personally agreed to buy Boutin’s stock or that he was personally guaranteeing RBL Enterprise’s payment of that obligation.

In addition to the express contractual provisions, this finding is supported by |fithe testimony and additional documentary evidence introduced at trial. Bradford Cohen (Cohen), the corporate accountant, testified that Rodrigue never expressed that he was personally buying the stock from Boutin. Further, Cohen, who was the author of the document, testified that the document’s contents were to confirm the agreement that RBL Enterprises was purchasing the stock from Boutin and, by indicating therein that payments were to be guaranteed by RBL Enterprises, Cohen was confirming that Rodrigue was not guaranteeing the debt of the corporation.

Rodrigue’s testimony was consistent with that of Cohen. He testified that it was RBL Enterprises that was buying the stock and that the payments were to be guaranteed by the corporation. Rodrigue explained at trial that he was the owner of sixty-percent of the stock in RBL Enterprises, that he had no need to purchase any additional stock, and that he never expressed to Boutin that he intended to do so. According to Rodrigue, Boutin’s stock was being purchased by the corporation so that it could be resold to the chef of Café Tee George. Finally, Rodrigue testified that after the contract in dispute was executed, he did not receive any evidence of an additional ownership interest by him in RBL Enterprises.

The corporate income tax returns of RBL Enterprises also do not reflect a purchase of stock by Rodrigue from Bout-in. The corporate income tax returns prepared subsequent to the sale likewise do not reflect a change in Rodrigue’s ownership interest in Café Tee George. As explained by Cohen at trial, had Rodrigue been the purchaser of Boutin’s stock, the delineation of his ownership interest as shown on the tax returns would have reflected an increase in said ownership.

Contrary to the evidence discussed above, the only evidence in support of Boutin’s assertion that Rodrigue is personally liable under the terms of the contract Ifiis the testimony of Boutin himself. However, Boutin’s testimony as to the identity of the purchaser of stock, and the guarantor of the obligation therefor, is unclear and at times contradictory. Although Boutin testified that when the December 22, 1997 meeting was concluded, it was his understanding that Rodrigue was buying his stock, he later stated that it was RBL Enterprises that was “going to pay [him] the payments[,]” and that it was the corporation that guaranteed the payment. Inconsistently, Boutin later testified at trial that “the restaurant was going to send [him] the check but [Rodrigue] was guaranteeing.” However, Boutin admitted that the express contractual provisions do not provide that Rodrigue was the guarantor of the payments. To the contrary, the document provides that “RBL [Enterprises] was guaranteeing the payments but George Rodrigue bought the stock.”

We also note that Boutin contends that the payments made by Rodrigue in his personal capacity support his contentions herein. However, this assertion lacks merit. None of the payments made to Boutin for the purchase of his stock were made by Rodrigue in his personal capacity. It is undisputed that the first payment to Boutin of $2,500.00 was drawn on the account of Café Tee George, not a personal account of Rodrigue. The two subsequent payments of $5,000.00 and $3,000.00 were made by Rodrigue Studios, L.L.C., which is also a separate legal entity, and not by Rodrigue in his personal capacity. Thus, Boutin’s contention that “the majority of the payment for the stock came from Ro-drigue’s personal funds” is factually inaccurate.

Boutin also argues in his appellate brief that the articles of incorporation of RBL Enterprises require that stock redemp-tions be authorized by the shareholders and that this corporate formality was not followed. He concludes, therefore, that Rodrigue did not have the requisite corporate authorization to bind RBL Enterprises, |7and, consequently, Rodrigue must be the primary obligor on the contract. We disagree. Even assuming, arguendo, that corporate authorization was lacking, that in and of itself does not lead to the inevitable conclusion that Rodrigue was the primary obligor on the contract, or that he was bound by its terms in his personal capacity.

Louisiana Civil Code Article 3019 provides that “[a] mandatary who exceeds his authority is personally bound to the third person with whom he contracts, unless that person knew at the time the contract was made that the mandatary had exceeded his authority or unless the principal ratifies the contract.” In the instant case, Boutin was a shareholder of RBL Enterprises who had knowledge of the scope of Rodrigue’s corporate authority and that Rodrigue lacked the authority to enter into the contract on behalf of RBL Enterprises. Additionally, or alternatively, RBL Enterprises, as principal, subsequently ratified the contract by making the initial payment to Boutin for $2,500.00, thereby discharging Rodrigue, the agent, from personal liability. La.Civ.Code art. 1843.

We also find no merit in Boutin’s assertion that RBL Enterprises was legally unable to purchase Boutin’s stock due to its insolvency. First, Boutin, in fact, did receive a payment of $2,500.00 on December 22, 1997 from RBL Enterprises. More importantly, according to the testimony of Cohen, RBL Enterprises was able to pay the debt at the time the transaction took place, and it did not become insolvent until June 1998, nearly six months after the execution of the contract at issue, when a fire destroyed Café Tee George. Thus, Boutin failed to prove that RBL Enterprises was insolvent at the time the contract in dispute was executed.

Based upon the evidence in the record, we find that Boutin failed to prove that Rodrigue, in his personal capacity, was an obligor under the contract. Accordingly, Lwe affirm the judgment of the trial court in favor of George Rodrigue and against Lynn Boutin.

ANSWER TO APPEAL

In addition to rendering judgment in favor of Rodrigue, the trial court assessed Boutin with costs of the trial court proceedings. In response, Rodrigue, filed a motion to tax costs. The hearing on the motion for costs was continued by the trial court, without date, pending the outcome of the present appeal. Rodrigue now asserts in his answer to appeal that he “reserved his right to recover additional costs incurred subsequent to the trial of this matter” and requests “the award of additional costs incurred in the post-trial and appellate proceedings.” It is within the province of this court to cast a party or parties with costs incurred on appeal, and we do so herein.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court in favor of appellee, George Rodrigue.

Costs of this appeal are assessed against appellant, Lynn Boutin.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 2164 provides as follows:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.