author: EZELL, Judge.

text:
    STATE of Louisiana v. Gregory Anderson COUTEE.
    No. KA 2007-568.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      James C. Downs, District Attorney, Monique Yvette Metoyer, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for De-fendanVAppellant, Gregory Anderson Cou-tee.
    Gregory Anderson Coutee, Louisiana State Penitentiary, Angola, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hOn March 22, 2006, the Defendant, Gregory Anderson Coutee, was originally charged with armed robbery. The bill of information was amended on June 21, 2006, charging the Defendant with first degree robbery, a violation of La.R.S. 14:64.1. A jury trial began on October 17, 2006, and the jury returned a guilty verdict on October 18, 2006. The Defendant was sentenced on October 27, 2006, to serve forty years at hard labor without benefit of probation, parole, or suspension of sentence. The Defendant is now before this court on appeal, asserting that the evidence is insufficient to convict him of first degree robbery, and that the trial court erred in denying his motion to suppress.

FACTS

On January 23, 2006, the Defendant entered the Lexington Self Storage and robbed the owner, David Paulk, who was working that day. The Defendant was found that same day at the residence of Nicole Howard and was subsequently arrested on outstanding warrants. After the Defendant was read his Miranda rights, he confessed to the robbery and informed officers where the stolen items, a wallet and checkbook, could be found in the residence. Ms. Howard gave her consent to search the residence, and the stolen items were retrieved.

ASSIGNMENT OF ERROR

By this assignment of error, the Defendant argues that the evidence was insufficient to convict him of first degree robbery. 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 (1979), rehearing 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 Cciting 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.

First degree robbery is defined in La. R.S. 14:64.1, which states, in pertinent part:

A. First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.

Thus, the State had the burden of showing that: 1. an object was taken; 2. the object had value; 3. the object belonged to another or was in the immediate control of another; 4. force or intimidation was used to take the object; and, 5. the victim believed the offender was armed with a dangerous weapon. In the instant case, the Defendant questions whether the State proved the element of force or intimidation to commit the taking while leading Mr. Paulk to believe he was armed with a dangerous weapon.

The victim, David Paulk, testified that he was working at his business, Lexington Self Storage, on the morning of January 23, 2006. He explained that around 10:00 a.m., the Defendant entered the business and inquired about renting a storage space. Mr. Paulk informed the Defendant that he did not have any of the size requested available. The Defendant left the building, and Mr. Paulk assumed that the Defendant had driven out the parking lot. Instead, the Defendant drove back behind |sthe storage buildings and parked his vehicle between the buildings, out of Mr. Paulk’s sight.

Next, the Defendant entered the business again and asked Mr. Paulk to loan him twenty dollars. Mr. Paulk refused, and the Defendant asked him again. When Mr. Paulk refused the second time, Mr. Paulk testified that the Defendant jumped at him, grabbed him, pulled him up out of his chair and threw him in a storage closet. Mr. Paulk was fearful from the moment' the Defendant first grabbed him because the Defendant was a much larger man and was a stranger to him. Mr. Paulk testified that he was 5'6" tall and weighed 170 pounds, whereas he believed the Defendant to be about 6'2" tall and weighing 240 pounds. At the time the Defendant was booked, he measured 6'0" tall and 245 pounds.

According to Mr. Paulk, the storage room was very well lit. Mr. Paulk hit the wall in the storage room with enough force to bust a hole in the sheetrock. Photographs of the storage closet and damage to the sheetrock were submitted into evidence as exhibits 6, 7, 11, 28, and 29. The Defendant subsequently got Mr. Paulk down on the floor and tied Mr. Paulk’s hands behind his back with speaker wire he pulled off an old computer in the storage room. Mr. Paulk was able to break loose and the Defendant pulled the speaker wire off another computer and tied Mr. Paulk up again. As the men continued to fight in the closet, the Defendant got Mr. Paulk down on the floor and tied him up again with a piece of electrical wiring. The Defendant was on Mr. Paulk’s back with Mr. Paulk’s face down and his head against the floor. At that time, Mr. Paulk saw the Defendant reach behind himself and pull something from his waistband or a pocket. At that time, Mr. Paulk believed, without a doubt, that the Defendant was armed with a weapon. Mr. Paulk could not identify the object, only that it was brown colored. He thought the object was either the butt |4of a gun or a knife. Mr. Paulk was unable to look up and exactly identify the object. Mr. Paulk stated that the Defendant did not touch him with the object, such as touching him with the tip of a gun or holding a knife against his neck. Additionally, nothing was demanded of Mr. Paulk during the time the Defendant was holding the object and the Defendant never said that he had a weapon while they were in the storage room.

Mr. Paulk stated that he believed that the Defendant was going to kill him, so he decided to stop fighting in hopes that the Defendant would take what he wanted and leave the building. He was not sure what the Defendant did with the object, but speculated that the Defendant put it back in his pocket or waistband.

Mr. Paulk testified that, at that time, the Defendant took his wallet and checkbook from his pocket and some cash that was on his desk. Next, the Defendant told Mr. Paulk that he was getting his gun and was going to kill him, then ran out of the door. Mr. Paulk believed at that time that the Defendant had the power to execute the threat. Mr. Paulk explained that the Defendant went back behind the building, got in his truck, and drove away. After freeing himself, Mr. Paulk observed the direction in which the Defendant was driving and called 911 and reported the crime.

Corporal Kenneth Rachal of the Alexandria Police Department was dispatched to the crime scene and interviewed Mr. Panlk. Upon learning that the assailant left the scene in a brown Suburban and the direction it was headed, Corporal Rachal instructed Officer Ducote to see if he could locate the vehicle. Corporal Rachal joined Officer Ducote after locating the vehicle at a residence of Nicole Howard and the officers learned that the vehicle belonged to the Defendant and that the Defendant was inside the residence. The Defendant came out of the house, was informed of his Miranda rights, arrested for outstanding warrants, and placed in the back of a police | ¡¡unit. At that time, the Defendant told the officers where the stolen items were located. After officers were given consent by Ms. Howard to search the residence, the items were retrieved from the exact locations as reported by the Defendant. Corporal Rachal testified that, when searching the residence for the stolen items, he did not look for a weapon at that time.

Officer Douglas Prestridge of the Alexandria Police Department testified that he was dispatched to the scene of the crime around 10:00 a.m. Officer Prestridge did not find a weapon at the crime scene. Detective Stephen Constantino testified that the Defendant’s vehicle was thoroughly searched and a weapon was not found. Officer James David King was present when the Defendant disrobed at the hospital, and he testified that no weapon was found.

In his brief to this court, the Defendant maintains that under a traditional strict interpretation of this statute, the jury could not have concluded beyond a reasonable doubt that the Defendant used force or intimidation to commit the taking while leading the victim to believe he was armed with a dangerous weapon. The Defendant explains that the statute makes no mention of the use of force or intimidation to retain the property or effect escape. In support of his argument, the Defendant refers this court to State v. Fortune, 608 So.2d 148 (La.1992). In Fortune, the court provided the following interpretation of the first degree robbery statute, La.R.S. 14:64.1:

The statute has objective and subjective components. It requires the state to prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon, and that the victim’s belief was objectively reasonable under the circumstances. The statute thus excludes unreasonable panic reactions by the victim but otherwise allows the victim’s subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery in violation of La.R.S. 14:65. Cf. State v. Byrd, 385 So.2d 248 (La.1980). To this extent, La.R.S. 14:64.1 differs from other robbery statutes in which the threat of force alone constitutes a violation of the statute despite its failure to place an atypical victim in actual fear. See Commonwealth v. Mays, 248 Pa.Super. 318, 375 A.2d 116 (1977); State v. Birch, 479 N.W.2d 284 (Iowa 1991).

Id. at 149.

In the instant case, the Defendant argues that Mr. Paulk only stated that the Defendant said he had a gun as he was leaving and that Mr. Paulk was already tied up and his possessions taken. The Defendant concludes that because there was no mention of a weapon, nor was one alluded to at the time of the taking, his conviction should be reversed, or this court should enter a conviction for simple robbery. Lastly, the Defendant complains that Mr. Paulk never identified the Defendant at trial as the individual who assaulted him and stole his wallet and checkbook.

The court finds, using the analysis set forth in Fortune, the evidence in the record clearly supports the jury’s verdict of first degree robbery. Mr. Paulk’s testimony demonstrated the subjective belief that the Defendant was armed with a dangerous weapon at the time Mr. Paulk’s possessions were taken. First, the Defendant was extremely physical with Mr. Paulk, smashing him into a wall and tying his hands behind his back several times. Then, during the time of this physical altercation with the Defendant, a man much larger than Mr. Paulk, Mr. Paulk saw the Defendant remove from his back pocket or waistband a brown object which could have been the butt of a gun or a knife.

Further, the objective components of the crime also support Mr. Paulk’s belief that the Defendant was armed with a dangerous weapon. Considering Mr. Paulk’s position, face down on the floor with the Defendant on his back at the time the Defendant pulled out the object seen by Mr. Paulk, one could conclude it was reasonable for him to believe that the object he saw was a possible weapon. Mr. Paulk expressed his fear of the Defendant from the outset of the crime and, as mentioned above, the Defendant was extremely physical with Mr. Paulk and the |7Pefendant was much larger thán he. Considering same, we find that these facts exclude any possibility that Mr. Paulk experienced an unreasonable panic reaction as described in Fortune with regard to his belief that the Defendant was armed with a dangerous weapon.

Next, the Defendant complains that Mr. Paulk never identified the Defendant at trial as the individual who assaulted him and stole his wallet and checkbook. The record confirms that Mr. Paulk did not identify the Defendant at trial. Mr. Paulk did, however, identify the Defendant in a photograph taken at Ms. Howard’s residence on the day of the crime when shown the photograph at trial. Mr. Paulk also identified the Defendant’s getaway vehicle in a photograph. Additionally, Officer Radial identified the Defendant in the courtroom as the person who told him where the wallet and checkbook were located. Further, Sergeant Gleason, the officer that placed the Defendant in handcuffs at the time of his arrest, identified the Defendant in the courtroom as the same person he had arrested that day. Considering Mr. Paulk’s identification of the Defendant in the photograph submitted into evidence, as well as the identification of the Defendant by the officers involved in the investigation, we find that the identification of the Defendant as Mr. Paulk’s assailant was sufficiently proven at trial.

SUPPLEMENTAL ASSIGNMENT OF ERROR AND PRO SE SUPPLEMENTAL ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

Counsel for the Defendant filed a supplement brief setting forth a supplemental assignment of error. Additionally, the Defendant filed, pro se, a supplemental brief alleging the same assignment of error in supplemental assignments of error number two and three.

|sCounsel for the Defendant argues that the trial court erred in denying his motion to suppress the Defendant’s statement wherein he told officers where to locate Mr. Paulk’s wallet and checkbook inside Ms. Howard’s residence. The Defendant, pro se, asserts that his statement was not given freely and voluntarily because he was unable to understand his rights in his intoxicated condition. Further, the Defendant maintains that he was not properly advised of his Miranda rights because he was in a state of incapacitation.

In his motion to suppress filed on June 12, 2006, the Defendant asserted to the trial court that he was visibly sick and ill, and after being arrested, he had to be rushed to the emergency room. The Defendant maintained that he “was in a sick state of drug substance abuse state of mental illness and did not know what he was doing or saying due to his being sick for drugs.” [sic]. Accordingly, the Defendant maintained that the evidence obtained as a result of questions the Defendant answered following his arrest is fruit of the poisonous tree. The Defendant averred that he was not in his right state of mind and could not give voluntary consent to be questioned. Further, the Defendant complained that he was arrested for a non-related violation, and therefore, the officers did not have probable cause to search Ms. Howard’s residence. The Defendant concludes that the officers found the robbery evidence through improper questioning of the Defendant and the illegal search of Ms. Howard’s residence without probable cause or proper consent.

The trial court denied the Defendant’s motion without a hearing on June 15, 2006. In its handwritten reason for denying the motion, the trial court stated, “Motion denied; the motion is so grammatically incorrect that it lacks merit on its face.”

A second motion to suppress was filed by the Defendant on June 26, 2006, and a contradictory hearing was held on August 28, 2006. In denying the Defendant’s |flmotion, the trial court stated:

I find that the statements that he made to Officer Rachal and Gleason were free and voluntary. The evidence is that there was a robbery reported, that they had information to believe that he may have been the defendant and they knew of the approximate location where they could find him. They went to that location. Officer Rachal said that he asked him some questions-well, he advised him of his rights. That at the time that he was discussing his rights with him and the evidence about this crime, that he did not appear to be in any distress whatsoever, that he understood the rights, he did not appear to be under the influence of drugs, that he made his statement, that he consented freely and voluntarily. And it was only after he was placed in the police car that he complained of chest pains. That was after the statements were made. I have no evidence before me today to show that he had recently ingested crack cocaine. And even if he had ingested crack cocaine, the law says, “Likewise, intoxication does not vitiate a confession unless it is to the degree of nullifying the accused’s comprehension and renders him unconscious of the consequences of what he is saying.” State v. Fugler, which is 721 So.2d 1 [(La.App. 1 Cir.1998)], State v. Ouzts, 777 So.2d 1286 [(La.App. 2 Cir.2001)], State v. Toney, 796 So.2d 1 [(La.App. 4 Cir. 2000)], and State v. Barthe, 806 So.2d 53 [(La.App. 4 Cir.2001)]. And there’s other cases that are listed. I’m not going to cite all those. But I don’t believe that there was any intoxication to the degree to nullify his comprehension or render him unconscious. Obviously, that was not present. I believe that he knew what was going on, he was responsive to the questions, he answered their questions and only after answering those questions and being arrested on the charge did he complain about chest pains. So — and I don’t know if that was a valid complaint or not about whether or not he had chest pains — so I am going to order that the motion to suppress be denied.

In his brief to this court, the Defendant asserts that he was taken to the hospital immediately after giving his statement due to complaints of chest pains and his admission of having just smoked crack cocaine. According to the Defendant, he was unable to sign his advice of rights form at 10:45 a.m. Further, the Defendant refers this court to the hospital discharge summary which allegedly states that the Defendant’s hands and fingers appeared to be sooty and burned and his lips blistered from smoking crack cocaine. The Defendant asserts that he was given Ativan and Morphine until his condition improved and that he was diagnosed with rhabdomyolysis secondary to cocaine. In his pro se brief to this court, the Defendant complains that the trial court erred because it chose to ignore the medical reports and |infindings of the treating physician which he maintains clearly show that he had ingested a large quantity of crack cocaine. The Defendant also contends that greater weight should have been given to his medical records than to the testimony of the “admission worker/intake officer’s” comments.

' With' regard to the advice of rights form, the document' reflects the signatures of Officer Rachal and Sergeant Gleason as witnesses and indicates that the Defendant was unable- to sign, but gave his verbal understanding of his rights. At the hearing, Detective Darrell Thiels testified that he was dispatched to the location where the Defendant was apprehended. Detective Thiels stated that the Defendant was unable to sign the advice of rights form because he was at the hospital at the time the form was completed. Detective Thiels explained that the advice of rights form, as well as the booking sheet and felony bond sheet, were filled out as they are in all normal arrests and they were presented to the booking officer so the Defendant could be booked. Thus, Detective Thiel’s testimony suggests that the lack of the Defendant’s signature was due to his absence, not because he did not understand his rights.

Further, Detective Thiels stated that he had the chance to speak to the Defendant before he went to the hospital and the Defendant did not appear disoriented or to be under the influence of drugs or alcohol. Further, the Defendant appeared to be able to understand everything that was going' on. Detective Thiels also testified that the Defendant was sweating profusely but did not indicate to any of the officers that he had used drugs or alcohol. On cross-examination, Detective Thiels stated that in his seventeen years of being on the force, he would recognize if someone was on crack cocaine and that the Defendant did not appear to be on crack cocaine. Detective Thiels attributed the Defendant’s sweating to the unseasonably warm temperature and because the Defendant was very nervous.

In Officers Rachal and Gleason also testified at the hearing regarding the Defendant’s mental orientation at the time of his statement. Officer Rachal stated that he verbally advised, the Defendant of his rights prior to putting him in the police unit, but he did not have an advice of rights form with him at that time. In Officer Rachal’s opinion, he believed that the Defendant appeared to understand his rights, and based on his knowledge, training, and experience, the Defendant did not appear to be under the influence of alcohol or drugs. Officer Rachal stated that he has arrested people under the influence of crack cocaine and other .illegal-narcotics and would recognize a person disoriented because of drugs. The Defendant was able to coherently convey his thoughts to the officers, speak in good English, and in complete sentences and his words were not slurred. The Defendant did not appear to be in any physical duress. Officer Rachal did admit, however, that the Defendant appeared nervous from the officers’ presence and his wanting to know why the officers were there and the source of the problem. The Defendant was also sweating which Officer Rachal attributed to nervousness.

Officer Rachal also testified that, prior to reading the Defendant his rights, the Defendant wanted to say something. At that time, Officer Rachal stopped the Defendant and told him that the officers had to advise him of his rights first before he could say anything. After the Defendant was advised of his rights, he was asked if he wanted to make a statement which is when the Defendant told officers where the items were located in the residence. At no time did the Defendant tell Officer Rachal that he did not want to make a statement or invoke his right to counsel. Additionally, Officer Rachal stated that he did not threaten the Defendant in any way or promise him anything to induce his statement. According to Officer Rachal, the Defendant made his statement freely and voluntarily. Lastly, Officer Rachal testified that, prior 112to giving his statement, the Defendant said nothing about being on crack or that he felt he was having a heart attack, nor did the Defendant complain of having chest pain before he was Mirandized. The Defendant did not tell Officer Rachal that he had ingested crack cocaine, nor did Officer Ra-chal ask the Defendant if he had been smoking crack cocaine. Officer Rachal estimated that the Defendant began complaining of chest pain fifteen to twenty minutes after he sat in the police unit. Officer Gleason testified that the Defendant did not appear to be in any physical duress when he was approached on the porch of the residence. Also, Officer Gleason was standing next to Officer Rachal when the Defendant was verbally Miran-dized by Officer Rachal, and the Defendant did not appear to be in any physical duress at that time. In Officer Gleason’s opinion, based on his knowledge, training, and experience, the Defendant appeared to understand his rights and did not appear to be under the influence of any alcohol or drugs, nor was he disoriented. The Defendant was able to respond in a manner that the officers could understand. Based on what Officer Gleason witnessed, the Defendant appeared to make his statement freely and voluntarily.

Officer Gleason testified further that the Defendant did not appear nervous at first, but started sweating once he was put in the back of Officer Gleason’s unit to secure him. He did not appear to have any health problems prior to the time Officer Gleason placed the Defendant in his unit. When the Defendant started to appear distressed, Officer Gleason got the Defendant out of the vehicle and removed the handcuffs securing his hands behind his back. Officer Gleason felt that the stress put on the Defendant with his arms behind his back may have added to his discomfort. The Defendant was then complaining of chest pain, but he did not tell the officers that he had smoked crack before their arrival.

|13To prove that the Defendant was not coherent or lucid at the time of his confession, the Defendant’s medical records from L.S.U. Huey P. Long Charity Hospital, where he was admitted following his arrest, were submitted into evidence. The trial court reviewed the medical records, and defense counsel directed the court to the pertinent pages pertaining to the Defendant’s mental condition during his stay. Next, as part of the Defendant’s argument, he maintained that his statement was made under physical and mental duress because he had ingested crack cocaine. The trial court asked for evidence that the Defendant had ingested cocaine. The Defendant referred the trial court to the medical records. The trial court asked defense counsel to show him one page that supported the Defendant’s argument and was unable to do so other than references made to traces of crack cocaine and other illegal substances in the Defendant’s urine. Thus, other than the Defendant’s own statement to defense counsel and/or the hospital that he had ingested cocaine prior to being questioned and the medical records submitted, the Defendant offered no other evidence at the hearing that the Defendant’s cocaine use interfered with the understanding of his rights and his subsequent confession. The Defendant did not testify at the hearing that he used cocaine prior to making his statement or, as a result of same, that he was incoherent at the time of his confession.

A review of the Defendant’s medical records indicates that he was admitted to the emergency room and seen by a triage nurse at 1:01 p.m. with the chief complaint of chest pain, sudden onset, after smoking crack that morning. He also complained of a burn to his right middle finger from a crack pipe. The triage nurse noted that the Defendant was alert and in no acute distress, his breathing pattern was normal, his skin was dry, pink, and warm, and he was awake, alert, and oriented to person, place, and time. The Defendant was described as calm and cooperative.

|uAt 1:06 p.m., Dr. William Clark examined the Defendant. The Defendant reported to Dr. Clark that the burns to his finger were from chronic crack use. Dr. Clark’s examination revealed no significant abnormality in any of his body systems, including his neurological functioning. Dr. Clark reported that the Defendant was in no acute change from his baseline condition, appearance, and health, and was nontoxic and in no apparent distress. The Defendant’s cranial nerves were intact, he was active neurologically, had no extremity weakness, ambulated without difficulty, and his mental status was baseline for his age, gender, and conditions. The Defendant had no sensory deficits and was awake, alert, and oriented as to person, place, and time.

A patient rights/advance directive acknowledgment statement was given to the Defendant by the admit clerk who advised the Defendant of his patient rights and responsibilities. The Defendant acknowledged that he had received the information by signing and dating the top portion of the form. The bottom portion of the form was to be completed by the Defendant’s admitting nurse who indicated that the Defendant was falling asleep during the interview, and she was unable to discuss whether he desired to establish an advance directive at that time. We note that the time the form was completed by the admit clerk or admitting nurse is not indicated on the document and, thus, it is not possible to determine whether the form was completed at the time of his arrival at the emergency room or when he was transferred from the emergency room to the hospital unit at 5:40 p.m. for further observation. The Defendant could have been medicated prior to receiving the form. The medical records indicate that the Defendant was given 2 mg of Ativan IV at 1:27 p.m. Also, the Defendant was given 6 mg of Morphine IV at 4:03 p.m. after complaining at 3:55 p.m. of a throbbing sensation to his left index finger.

|15The Defendant’s hospital discharge summary reflects an admitting diagnosis of “rhabdomyolysis secondary to cocaine; rule out acute coronary syndrome.” He was discharged on January 26, 2006, and no discharge diagnosis is noted. The history of his present illness indicates that he presented with left-sided chest pain and left arm pain, no diaphoresis, and pain at the left index finger. The Defendant reported a myocardial infarction at age 21 which the physician found questionable. In his social history, the Defendant admitted to smoking cocaine. During the course of his hospitalization, the Defendant’s cardiac status improved as reflected in the cardiac lab results. The focus of his stay turned to his left index finger which had an abscess and to a cyst on his neck located in the upper right side of the neck. During his stay, the Defendant underwent an incision and drainage of an abscess on his left index finger and the subcutaneous cyst on his neck was removed.

As noted by this court in State v. Brooks, 505 So.2d 245, 247 (La.App. 3 Cir. 1987),

Before a confession can be introduced into evidence, the state has the burden of proving that the confession was free and voluntary. La.R.S. 15:451. Where the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Robinson, 384 So.2d 332, 335 (La.1980).

Additionally, the supreme court noted in State v. Manning, 03-1982, p. 26 (La.10/19/04), 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005). that “the mere fact of drug or alcohol intoxication is insufficient standing alone to ^render a confession involuntary. See State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994)(confession voluntary although defendant had smoked three or four cocaine rocks the night before his 11 p.m. statement, as well as consumed several beers the day he confessed).”

In the instant case, we find that the evidence adduced at the hearing on the Defendant’s motion to suppress clearly indicates that the Defendant used crack cocaine. However, there was no evidence that the Defendant was under the influence of crack cocaine at the time of his confession to the extent that it negated his comprehension and rendered him unaware of the consequences of what he was saying.

The Defendant correctly asserts that he was taken to the hospital immediately after giving his statement due to complaints of chest pains. However, there is no evidence, as alleged by the Defendant, that he admitted or reported to the arresting officers that he had just smoked crack cocaine which was allegedly causing his chest pain. Further, the testimonies of Officers Rachal and Gleason and Detective Thiels indicate that the Defendant did not appear to be under the influence of drugs and appeared to understand his rights. All three officers had experience with identifying drug intoxication and disorientation. The Defendant did not report cocaine use until he presented to the hospital, and even then, the physical assessment by the emergency room nurse and physician both indicate that the Defendant was in no acute or apparent distress, was oriented to person, place, and time, was neurologically intact and had no sensory deficits.

As to the Defendant’s allegation that he was unable to sign his advise of rights form at 10:45 a.m., Officers Rachal and Gleason and Detective Thiels explained that the Defendant had gone to the hospital before they had the chance to present the form |17to the Defendant for his signature. Thus, the lack of a signature was due to the Defendant’s absence, not because of his inability to sign the document. The Defendant’s hospital discharge summary supports his contention that he abuses cocaine and reflects a diagnosis of Rhabdomyolysis secondary to cocaine. However, the document does not reflect that the Defendant was incoherent from cocaine ingestion at the time he was Mir-andized. The Defendant was given Ativan and Morphine as stated in his brief. We note, however, that the Morphine was given to relieve pain in his left index finger and was not related to cocaine ingestion.

As to the Defendant’s sleepiness during the interview upon his admission to the hospital, we mentioned above that the time the form was filled out is unknown. Further, the form could have been filled out up his arrival at the emergency room or at the time of his admission to the hospital. The Defendant was medicated on two separate occasions, either of which could have caused the Defendant’s drowsiness. Without any additional information, the fact that the Defendant was falling asleep at the time his admit nurse was completing the lower portion of the patient rights/advance directive acknowledgment statement does not prove that the Defendant was incapacitated from cocaine at the time he was Mirandized.

Considering the evidence presented at the hearing, we find that the State met its burden of proving that the Defendant’s confession was free and voluntary. The evidence supports the State’s contention that Defendant was properly advised of his Miranda rights as he has not shown that he was in a state of incapacitation at that time. Accordingly, we find that these assignments of error are without merit.

CONCLUSION

The Defendant’s conviction is affirmed.

AFFIRMED.

      . Diaphoresis is defined as profuse sweating.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lloyd FUSLIER.
    No. 07-572.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      James E. Burks, Lake Charles, LA, for Defendant/Appellant Lloyd Fuslier.
    Douglas L. Hebert, Jr., District Attorney-Thirty-third Judicial District, Oberlin, LA, for Appellee State of Louisiana.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

k The Defendant, Lloyd Fuslier, was previously before this court appealing two of his three misdemeanor convictions and his felony conviction of first degree vehicular negligent injuring. This court, finding that the evidence was sufficient to sustain the two misdemeanor convictions, affirmed those convictions and sentences. However, in its error patent review, this court found it impossible to determine from the record whether the Defendant’s waiver of jury trial on the felony charge was knowingly and voluntarily made. The record contained a written motion requesting a bench trial, but the motion was not signed by the Defendant. The motion was granted, but there was no indication that this was done in open court. The record contained no minute entries concerning the waiver of the Defendant’s right to a jury trial. Moreover, the lower court informed this court that a review of all recordings and notes revealed no “testimonial evidence” regarding the waiver of this right. Thus, this court remanded the case to the trial court for an evidentiary hearing on the issue of whether the Defendant knowingly and intelligently waived his right to a jury trial. This court further ruled that the “Defendant’s appeal of his felony conviction and all issues pertinent thereto” were to be addressed after the hearing was held, and the record was relodged in this court. State v. Fuslier, 06-1438, p. 16 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, 876.

On April 24, 2007, the trial court held the required evidentiary hearing. Defense counsel and the Defendant testified at the hearing, and the judge found that the Defendant had knowingly and intelligently waived his right to a jury trial. For the following reasons, we now affirm the Defendant’s conviction for first degree vehicular negligent injuring, and we remand the case to the trial court for establishment of a payment plan for the fine and costs ordered as conditions of probation.

FACTS

On a rainy evening, December 3, 2004, at approximately ten o’clock, Defendant, alone at the time, was driving his truck in a westerly direction on Highway 190 toward Kinder, Louisiana. The victims, A.C. and L.F., both fifteen years of age at the time, were traveling in a Chevrolet Impala in an easterly direction toward Elton, Louisiana, with A.C. driving. It is alleged that Defendant’s truck crossed the centerline of the roadway and struck the victims’ car. A.C. received severe injuries. L.F. received minor injuries. It was later determined that, at the time of the accident, Defendant’s blood/alcohol concentration was 0.12 percent.

ERRORS PATENT

As previously set forth in the original appeal, it was unclear from the record whether the Defendant knowingly and intelligently waived his right to a jury trial on the felony charge of first degree vehicular negligent injuring. For that reason, we remanded the case for an evidentiary hearing on that issue. A review of the transcript of the hearing now makes it clear that the Defendant did knowingly and intelligently | ¡¡waive this right.

Upon Defendant’s conviction of first degree vehicular negligent injuring, the trial court imposed a $1,000.00 fine and all court costs, including $100.00 to the DARE Program and $50.00 to the Drug Education Program, as conditions of the Defendant’s probation. However, the trial court did not establish a plan for payment of these fees. “This court has found error patent when the trial court fails to establish a payment plan for fees ordered as conditions of probation.” State v. Theriot, 04-897, p. 7 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021 (citations omitted). Therefore, wé remand this case to the trial court with the instruction that the trial court impose a payment plan for these fees. The plan may either be determined by the trial court or formulated by Probation and Parole and approved by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

ASSIGNMENT OF ERROR

The Defendant claims that the evidence was insufficient to sustain his convictions of first degree vehicular negligent injuring, vehicular negligent injuring, and driving left of center. Specifically, the Defendant argues there was not sufficient evidence that it was his vehicle that crossed over the centerline of the roadway. As noted above, this court previously upheld the Defendant’s convictions and sentences for vehicular negligent injuring and driving left of center, but it pretermitted adjudication as to the Defendant’s felony conviction of first degree vehicular negligent injuring pending the evidentiary hearing. Complying with the direction provided by this court in State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental filing, 98-1180 (La.9/25/98), 726 So.2d 2, on remand, 97-1064 (La.App. 3 Cir. 11/25/98), 735 So.2d 649, and the supreme court in State v. Morris, 615 So.2d 327 (La.1993), we conducted a review of the sufficiency of the evidence on Defendant’s felony conviction of first degree vehicular negligent injuring. Specifically, Defendant argues there was not sufficient evidence that it was his vehicle that crossed over the centerline of the roadway.

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, rehearing 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.

Defendant was charged with first degree vehicular negligent injuring. This offense is described, in pertinent part, as follows:

A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or | Bmore by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
C. For purpose of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ or a mental faculty, or a substantial risk of death.

La.R.S. 14:39.2.

Vehicular negligent injuring is defined as:

A. Vehicular negligent injuring is the inflicting of any injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

La.R.S. 14:89.1.

The offense of operating a vehicle while intoxicated occurs when the operator of a vehicle “is under the influence of alcoholic beverages; or (b) [when] [t]he operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.” La.R.S. 14:98(A).

Finally, a driver is mandated to drive on the right side of the roadway unless “passing another vehicle proceeding the same direction under the rules governing such movement,” or “[w]hen the right half of a roadway is closed to traffic,” or “[u]pon a roadway designated and signposted for one-way traffic.” La.R.S. 32:71(A). The State alleged that Defendant illegally drove his vehicle into the left lane.

Both victims testified at trial. A.C., who was eighteen years of age at the time |fiof trial, testified that she was driving her mother’s Chevrolet Impala. She stated that she and her best friend, L.F., had gone to a church function in Kinder. At approximately 9:30 p.m., they left and went to Market Basket for a few minutes. She then drove along Highway 190 toward Elton to take L.F. home. A.C. has no recollection of the accident. Although she recalled it being a rainy night and seeing oncoming traffic, she did not recall seeing Defendant’s truck. A.C. testified that one moment she was talking with L.F., and the next moment she woke up in the hospital. She testified that the orbital bones in her face were broken in several places, and her jaw was crushed. She had to have a tracheotomy in order to breathe. She has had at least ten operations to reconstruct her face. A.C. identified pictures taken of her shortly after the accident. She stated that, in addition to being permanently scarred, she had to have a shunt placed from her left eye to her nose to allow drainage because her eye no longer drains properly, and she appears to be crying all the time.

L.F.’s testimony corroborated A.C.’s testimony. L.F., who was seventeen years of age at the time of trial, also did not see Defendant’s truck. She stated that she was looking out the passenger side window when the accident occurred. She said that she suffered a bruised hip and knee and that she has had no continuing problems from her injuries.

At the time of the accident, Roy Dean Strother, since retired, was a “Master Trooper” with the Allen Parish Sheriffs Office. He was an accident investigator and was the lead investigator in this case. Since retirement, he has worked as a consultant for the sheriffs office in accident reconstruction. He was accepted by the trial court as an expert in crash scene investigations. Strother testified that it had been raining on and off all day and into the evening on December 3, 2004. He was called to the |7scene about 10:09 p.m. He identified pictures he had taken that night of the condition of the roadway and of the truck and the car. He testified that the truck had crossed the centerline and struck the victims’ car. He explained that the two vehicles impacted approximately two feet south of the centerline, which would have made the point of impact in the eastbound lane. He stated that he determined where the point of impact occurred by the distribution of the debris left from the car and truck as a result of the impact, the type of damage done to the two vehicles, the final resting place of the vehicles, and from what he identified as a gouge in the roadway, which was approximately two feet south of the centerline.

Strother stated that, after he took pictures that night, he went to the hospital to see if he could speak with the Defendant and the victims. He said that, upon encountering Defendant, he detected a strong odor of alcohol and had the nurse take a sample of Defendant’s blood for a blood/alcohol concentration test. The results of the laboratory examination indicated that at the time of the extraction of the sample, Defendant’s blood contained “0.12 gram percent of ethyl alcohol.”

Strother testified that he did not ask either the Defendant or the victims what had happened, that the Defendant would not speak to him, and that the victims could not recall the accident. He stated he did not mark the point of impact or the final resting places of the vehicles with paint the night of the accident because the paint would have been washed away by the rain. He admitted a gouge in the roadway could not be seen in any of the pictures he took the evening of the accident. Moreover, he did not return to the accident site the next day to take pictures. He stated that he had marked the location by noting in his report that the point of impact was at the mile post marker seventy-four.

Is Jason Fontenot, a patrolman with the Kinder Police Department, was one of the first officers to arrive at the accident scene. His testimony essentially corroborated Strother’s. He described the position of the vehicles in relation to the roadway and the debris field left from the collision that was located in the middle of the eastbound lane.

Roger Thomas, an accident reconstruc-tionist for the Calcasieu Parish Sheriffs Office, testified as to how, in his opinion, the accident occurred. He was accepted as an expert in accident reconstruction. Thomas testified that on April 25, 2006, he visited the crash site with Roy Strother, who described for him the scene on the night of the accident. He reviewed Strother’s reports, diagrams of the site, and photographs. He stated that Strother pointed out to him the gouge mark in the roadway at the supposed point of impact in the eastbound lane.

After long and somewhat confusing testimony, Thomas concluded that Defendant’s truck crossed the centerline at approximately nine degrees off the central axis of the westbound lane and struck the victim’s car.

Okay. So, number one [Defendant’s truck] is at a greater speed, heavier vehicle, going much further after post impact distance than vehicle two [victims’ car] did, westbound, veers slightly, about approximately ten degrees, nine or ten degrees, across the yellow line, into the — partially into the eastbound lane of 190 at which time the left front area — and I haven’t looked at photo on number one, — but from looking at this one I can almost tell you where this one would be — but, left from area, okay of vehicle one impacted the right there at the front, the left front, right behind the bumper area, left front side car panel of number two at initial impact. And of course I can tell that by, again, by the angle, and again by the — where the vehicles ended up, they would have come out of the eastbound lane of 190.

Thomas arrived at this conclusion after considering the assumed point of impact, the weight of the two vehicles, the final resting place of the two vehicles after impact, and the distance of each vehicle from the point of impact. The truck ended 19up in the ditch off the south side of the eastbound lane, and the car stopped part of the way off the road in the westbound lane. He considered the damage done to the vehicles. The truck had damage to its left front bumper and fender, while the damage to the car extended from its left front bumper and fender along the driver’s side door panel. He also considered the location of the debris on the roadway, which was scattered in a southwesterly manner from the point of impact.

On cross-examination, Thomas admitted that he did not see a photograph of the damage done to the truck, but relied only on Strother’s description. He further agreed that there was no way to know for certain whether the gouge he saw in the eastbound lane at the alleged position of the point of impact was the gouge left by this particular event.

Finally, Zachary J. Lee, a private investigator from Lake Charles, Louisiana, testified on behalf of the Defendant as an accident reconstructionist. He stated that he went to the accident site in March 2005. He stated that he visited the crash site using, as a guide, Strother’s report indicating the point of impact at mile post seventy-four. He testified that he saw nothing to indicate that the accident had occurred in the location Roy Thomas’s report indicated. Lee primarily addressed inconsistency in Thomas’s report. He pointed out, as inconsistent, certain distances of the vehicles from the alleged point of impact to where each vehicle was alleged to have come to rest. He stated that there was no way to conclusively establish a point of impact from the photographs or Strother’s report and Thomas’s report. He stated, “Mr. Thomas, he makes several statements to irrefutable facts and provable facts, but I have not seen any proof.”

On cross-examination, Lee admitted that he never talked with Strother |inregarding the accident scene on the night of the accident. He stated that he did not do an accident reconstruction. However, he testified that he did not agree with Thomas’s hypothesis that, if the truck hit the car at a nine-degree angle from the central axis of the westbound lane, the vehicles would have come to rest in the positions shown in the photographs. Nevertheless, Lee stated that the damage to the car was indicative of another vehicle “coming in at a nine degree angle.”

Defendant’s entire argument of insufficient evidence is premised on his assertion that there was no conclusive evidence that it was Defendant who crossed the center-line. We find that the evidence was sufficient to allow the trier of fact to conclude beyond a reasonable doubt that Defendant did cross the centerline, thereby causing the collision between his truck and the victims’ vehicle. Patrolman Fontenot and Roy Strother both testified as to the position of the vehicles after the accident and that the debris field which resulted from the collision was located in the eastbound lane, indicating that Defendant left his lane of travel and entered the victims’ lane. Pictures of the damage to the car were submitted, which indicated that the truck turned into the car. Moreover, the evidence that Defendant was under the influence of alcohol at the time of the collision was not refuted.

While Defendant’s expert witness testified that there was no evidence to suggest that it was Defendant who crossed the centerline, he did not do an accident reconstruction, and he agreed that the damage sustained by the car as depicted in the photograph was consistent with the truck coming into the eastbound lane of travel and hitting the car at a nine-degree angle.

Consequently, the record reveals that the State did meet its burden of proving all of the necessary elements of first degree vehicular negligent injuring.

11 ¶ CONCLUSION

The Defendant’s conviction for first degree vehicular negligent injuring is affirmed. This case is remanded to the trial court with instructions to impose a payment plan for the fíne and costs imposed as conditions of the Defendant’s probation. The plan may either be determined by the trial court or formulated by his probation officer and approved by the trial court.

AFFIRMED AND REMANDED.

      . This court notes that throughout the record, Defendant’s name. is alternately spelled "Fuselier” and "Fuslier.” For consistency with a prior opinion concerning this Defendant, his name will be spelled “Fuslier.”

      . This court ordered that "[t]he appellate record, supplemented with a transcript of the hearing, shall be re-lodged within fifteen days of the hearing. The State and Defendant shall be given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing.” State v. Fuslier, 06-1438, p. 16 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, 876. This court received the record containing the transcript of the evidentiary hearing. Per instruction of the Clerk of Court, the record was filed under a new docket number with the original record, 06-1438, being filed as an exhibit. No new briefs have been received from either party.

      . As required by La.R.S. 46:1844(W), the victims’ names are replaced with initials to protect their identity.

      . The record also indicates that the judge ordered restitution of $2,283.89 to be paid within three months of his release from jail.


author: AMY, Judge.

text:
    Freddie MOUTON, et al. v. MORTON INTERNATIONAL, INC., et al.
    No. 07-575.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Scott R. Bickford, Martzell & Bickford, New Orleans, LA, for Defendant/Appellee Martzell & Bickford.
    Edward Paul Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Defendant/Appellee Continental Casualty Company.
    Patrick J. Hanna, Rabalais, Hanna & Hebert, Lafayette, LA, for Defendants/Ap-pellees Vernon Langlinais, Sidney Martin, Estate of Nelson Stelly.
    Michael C. Piccione, Sr., Barry & Pic-cione, New Orleans, LA, for Defendants/Appellees Samuel Wright (Mouton), Darían Mouton.
    Scott C. Seiler, Charles B. Wilmore, Lis-kow & Lewis, New Orleans, LA, for Defendant/Appellee Morton International, Inc.
    George H. Robinson, Jr., Kyle P. Polozo-la, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee Morton International, Inc.
    M. Suzanne Montero, New Orleans, LA, for Defendants/Appellees Succession of Freddie Mouton, Dorothy Charles, Executrix.

      L. Clayton Burgess, Lafayette, LA, for Plaintiffs/Appellants Teryha Mouton, Terrell Mouton.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

I,The original plaintiff in this case settled his case against the defendants prior to his death. After his death, his succession entered the litigation as the proper party plaintiff and caused the matter to be dismissed. Subsequently, two of the plaintiffs adult children had themselves substituted as proper party plaintiffs and filed a motion to vacate the dismissal. After a hearing, the trial court denied the motion to vacate the dismissal. The two adult children appeal. For the foregoing reasons, we affirm.

Factual and Procedural Background

Freddie Mouton filed this suit for damages alleging that he contracted mesotheli-oma as a result of his previous work as a laborer and leak sealer at a Morton International, Inc. facility in the 1970s. Mr. Mouton named various Morton entities (Morton) as defendants. He also named Vernon Langlinais, Sidney Martin, and the Estate of Nelson Stelly, in their role as executive officers, as defendants, as well as their insurer, Continental Casualty Company (the executive defendants).

The record indicates that Mr. Mouton executed a “Receipt, Release, and Indemnification Agreement with Morton on August 2, 2006, in which Mr. Mouton agreed to release and discharge Morton from all liability, claims, and causes of action in exchange for a lump sum payment and future uninsured medical expenses. On August 31, 2006, Mr. Mouton executed a similar, “Full and Final Release and Indemnity Agreement” with the executive defendants.

Mr. Mouton died September 1, 2006. Although the receipts and releases had been signed by Mr. Mouton, the lawsuit had not been dismissed by the date of his death. On September 15, 2006, Dorothy Charles, as executrix of Mr. Mouton’s succession filed an Ex Parte Motion to Substitute Parties in order to be named as Mr. | aMouton’s legal successor. The motion provides that: “Freddie Mouton settled his lawsuit against Morton International, Inc., Vernon Langlinais, Sidney Martin, The Estate of Nelson Stelly and Continental Casualty Company and Dorothy Charles desires to be substituted as the proper party to conclude the matters, including filing motions to dismiss, pursuant to the settlement agreement.” The trial court signed the order substituting Ms. Charles as the proper party plaintiff on September 19, 2006.

On September 20, 2006, the trial court entered orders granting motions to dismiss the matter with prejudice. Although the matter was not dismissed until after Ms. Charles was substituted as the proper party plaintiff, the motions and related orders, which were filed a few days prior to the September 19, 2006 substitution of parties, listed Mr. Mouton as the moving party rather than Ms. Charles. Notably, however, the motions for dismissal included the orders naming Ms. Charles as executrix of the succession.

After the dismissals, on October 11, 2006, two of Mr. Moutoris adult children, Terrell and Teryha Mouton, filed an Ex Parte Motion to Substitute Parties, asserting that Mr. Mouton had no surviving spouse and that they were “the beneficiaries and proper parties to pursue his survival action by operation of law under La.Civil Code art. 2315.1 and La.Code Civ. Proc. art. 801.” The trial court signed the order | Ssubstituting them as the proper party plaintiffs. Terrell and Teryha also filed a Motion to Vacate Dismissal, Request for Sanctions, and Request for Injunction.

Subsequently, Ms. Charles filed a Petition for Intervention reiterating her right to execute “the dismissals of this action following the settlement of same and to receive any settlement funds due pursuant to the settlement agreements executed by Freddie Mouton prior to his death.” She further advanced the succession’s interest, arguing that: “[w]hen Freddie Mouton died, this captioned matter had been settled and compromised and any La.C.C. art. 2315 tort action had been novated to a contractual right of Freddie Mouton to receive the settlement funds and a contractual obligation for Freddie Mouton to dismiss this above captioned cause of action.” Terrell and Teryha responded to the Petition for Intervention with the filing of Peremptory Exceptions of No Right of Action and/or No Cause of Action.

The trial court heard Terrell and Ter-yha’s motions and exceptions in December 2006 and ultimately denied the Motion to Vacate Dismissal, reviewing various articles of the Louisiana Civil Code and Louisiana Code of Civil Procedure. The trial court further found the Motion to Set Aside Receipt and Release and the Exception of No Right/No Cause of Action to be moot. The trial court denied the Request for Preliminary Injunction and dismissed the Request for Sanctions.

Terrell and Teryha appeal the denial of their Motion to Vacate Dismissal, assigning the following as error:

1. The trial court committed an error of law in relying on La.C.C.P. art. 685 instead of La. C.C. art. 2315.1 and La. C.C.P. art. 801 to determine whether or not Freddie Mouton’s case was still pending at the time of his death and to determine the proper party plaintiff to proceed in that action.
2. The trial court committed an error of law in ruling that Freddie Mouton’s case was not still pending at the time of the death ^because the receipt and releases he signed were transactions and compromises under the law.
3. The trial court committed an error of law in upholding the dismissals that were filed by Freddie Mouton, a deceased person.

Discussion

Terrell and Teryha argue that the dismissals entered in this case were invalid and should have been dismissed as they are the proper party plaintiffs to pursue their father’s tort suit pursuant to La. Civ.Code art. 2315.1 and La.Code Civ. P. art. 801.

Louisiana Civil Code Article 2315.1 provides, in part, as follows with regard to a survival action:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

Furthermore, Louisiana Code of Civil Procedure Article 801 provides:

When a party dies during the 'pen-dency of an action which is not extinguished by his death, his legal successor may have himself | ^substituted for the deceased party, on ex parte written motion supported by proof of his quality.
As used in Article 801 and 804, “legal successor” means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.

(Emphasis added). Terrell and Teryha reference the emphasized language and argue that Mr. Mouton’s action remained pending as it had not been dismissed at the time of his death. They also note Article 801(l)’s preferential ranking of the survivors designated in La. Civ.Code art. 2315.1 before the succession representative in defining legal successor. This argument lacks merit.

Article 801(1) requires that the action survive Mr. Mouton’s death in their favor. In this case, it did not. Rather, the record indicates that Mr. Mouton’s suit against Morton and the executive defendants was settled prior to his death. Additionally, given these settlements, the trial court had substituted the succession representative as the party plaintiff and, subsequently, entered dismissals in favor of the defendants.

Terrell and Teryha point to Rainey v. Entergy Gulf States, Inc., 01-2414 (La.App. 1 Cir. 6/25/04), 885 So.2d 1193, writs denied, 04-1883, 04-1884 (La.11/15/04), 887 So.2d 479 for the proposition that their father’s action survived as it had not been dismissed at the time of his death. However, Rainey involved the distinctly different question of whether surviving children or a succession representative was the proper party plaintiff under Article 801 when a litigant died during the appeal of her personal injury suit. The first circuit was not faced with a ^situation where a litigant’s cause of action had been extinguished prior to his death due to a settlement.

Having considered Terrell and Teryha’s arguments in light of the record, we find no error in the trial court’s denial of the Motion to Vacate Dismissal.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellants, Terrell and Teryha Mouton.

AFFIRMED.

      . Mr. Mouton's Last Will and Testament, entered into the record as an exhibit, lists Darí-an Mouton and Samuel Mouton as Mr. Mouton’s two minor children, and designates that they are to receive "their forced portion" of his estate in trust. Mr. Mouton’s testament distributes the remainder of the estate as follows:
      I make the following special bequest from my disposable estate to my daughter TER-YHA, I give my interest in the family home I shared with my former wife, her mother.
      I give the rest of my estate to the following individuals in the percentages indicated: my daughter TERYHA MOUTON (20%), my son TERRELL MOUTON (20%) my mother, AMELIA MOUTON (20%), my sister, DOROTHY CHARLES (20%); and my children, LO-VONNE HEARST, and DEMARCUS BROWN (10% each).


author: SULLIVAN, Judge.

text:
    Harry John WALSH, Jr., et al. v. Dr. Jason MORRIS, et al.
    No. 07-579.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Jean Walsh, In Proper Person Meridian, Mississippi, for Plaintiff/Appellant, Jean Walsh.
    David R. Sobel, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, Louisiana, for Defendants/Appellees, Dr. Jason Morris, Louisiana State University Medical Center — Family Practice Clinic.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

11 Jean Walsh appeals the dismissal of the medical malpractice lawsuit filed by her and her husband. For the following reasons, we reverse.

Facts and Procedural Background

Harry Walsh was a patient of the LSUHSC Family Practice Medical Center (Medical Center) in Alexandria, Louisiana, for a period of time beginning in 2001. Pertinent to this matter are visits he made to the Medical Center on April 30 and May 5 and 6, 2003. On April 30, Mr. Walsh presented to the Medical Center with complaints of dizziness and stated that he had been doing yard work without drinking enough liquids. Mr. Walsh was being treated by the Medical Center for high blood pressure, and he related recent blood pressure readings he had obtained when visiting Wal-Mart. The staff physician, Dr. Brian Morris, recommended that Mr. Walsh remain adequately hydrated and to return if his symptoms persisted.

Mr. Walsh returned to the clinic on May 6, complaining of dizziness and some chest discomfort, which Dr. Morris believed were related to his heart beating rapidly. Mr. Walsh told Dr. Morris that he had been working in his yard despite his chest discomfort. Dr. Morris ordered an EKG, which revealed that Mr. Walsh was in atrial fibrillation. According to Mr. Walsh’s chart, Dr. Morris wanted to admit Mr. Walsh into the hospital and/or wanted him to consult with a cardiologist, but Mr. Walsh refused.

Mr. Walsh returned the next day as recommended by Dr. Morris. Another EKG was performed, which revealed that he was still in atrial fibrillation. Mr. Walsh told Dr. Morris that he felt better, explaining that his heart still was beating fast but Knot as fast as the previous day. Dr. Morris made changes in Mr. Walsh’s medication and scheduled him to return in one month.

On May 11, 2003, Mr. Walsh suffered a massive stroke which caused partial paralysis and brain damage. He was hospitalized for some time at Christas St. Francis Cabrini Hospital and was then transferred to a rehabilitation facility. In June 2003, he returned home where his wife cared for him until his death on November 19, 2006.

Believing Dr. Morris committed malpractice in his medical treatment of Mr. Walsh, the Walshes filed a complaint against him and LSUHSC Family Practice Center with the Patient’s Compensation Fund. The medical review panel rendered a unanimous opinion that Dr. Morris’s treatment of Mr. Walsh did not fall below the standard of care.

On May 9, 2006, Mrs. Walsh filed this medical malpractice suit pro se. Defendants sought and were granted a thirty-day extension of time within which to file an answer. On August 7, Defendants filed a Dilatory Exception of Vagueness, Motion to Strike and Exception of No Cause of Action and Request for Attorneys Fees and a Motion to Dismiss. The Motion to Dismiss was based on La.R.S. 40:1299.47(I) (2) (c), which requires the plaintiff in a medical malpractice suit to post cash or a bond if the medical review panel renders a unanimous opinion in favor of the health care provider. Mrs. Walsh deposited the sum of $2,981.30 as specified in Defendants’ Motion to Dismiss with the Clerk of Court by check dated August 11.

A hearing was set on Defendants’ Exceptions and Motion for September 11. The parties appeared for the hearing as scheduled; however, the hearing was rescheduled for October 2. Mrs. Walsh did not attend the October 2 hearing, and the | atrial court granted the relief sought by Defendants in their Dilatory Exception of Vagueness, Motion to Strike and Exception of No Cause of Action, and Request for Attorneys Fees, ordering Mrs. Walsh to amend her Petition within thirty days or face dismissal of her claráis, to strike the request for a specific damage award from the Petition, and to pay attorney fees in the amount of $500.00 to defense counsel. On October 9, Mrs. Walsh filed a Revised Petition as ordered by the trial court.

Defendants then filed an Answer and, on October 19, filed a Motion for Summary Judgment, seeking dismissal of all claims against them. By order dated October 28, a hearing on the Motion for Summary Judgment was scheduled for November 13.

On October 20, Mrs. Walsh wrote a letter to the Clerk of Court, indicating that she had filed a request for a continuance of the matter on September 18. The September 18 letter is not in the record, but Mrs. Walsh attached a copy of her September 18 letter to her October 20 letter. In her September 18 letter, Mrs. Walsh requested a one-year continuance to allow her time to find legal representation. On October 26, the trial court issued an order continuing the matter from October 9 until January 8, 2007. The record does not contain an order setting a hearing for October 9.

On November 4, Mrs. Walsh wrote another letter, asking for a continuance of the November 13, 2006 and January 8, 2007 hearings until sometime in June 2007, stating her “husband’s health had taken a turn for the worse.” The trial court denied the request. On November 13, Defendants filed a Motion to Continue and Reset Hearing Date of its motion for summary judgment because service had not been effected on the Walshes, as prescribed in La.Code Civ.P. art. 966(B). Defense |4counsel appeared in court for the scheduled hearing, and the trial court reset the hearing for January 8, 2007. Mrs. Walsh did not attend the hearing.

By letter written November 29, Mrs. Walsh notified the trial court that Mr. Walsh died on November 19. She did not specifically request a continuance of the hearing scheduled for January 8, 2007, but asked for “time in which to go through the grieving process so that my mind will be able to focus on what I need to do.” A handwritten notation on the letter reads: “File into record.” The initials “G.M.” and the date “12-5-06” appear under the notation.

Defendants’ Motion for Summary Judgment was heard January 8 as scheduled. Mrs. Walsh did not attend, and the trial court granted judgment, dismissing all claims against Defendants. On February 22, 2007, Mrs. Walsh filed a letter appealing the judgment.

Assignments of Error

Mrs. Walsh directed a letter to this court concerning her appeal in which she asserts that she was unable to attend the hearing on Defendants’ Motion for Summary Judgment due to her husband’s illness. She further states: “I requested an extension and that request was denied.” We read Mrs. Walsh’s letter as assigning error with the trial court’s denial of her request for a continuance of the hearing on Defendant’s Motion for Summary Judgment and its grant of summary judgment in favor of Defendants.

Motion to Continue

“[A] continuance may be granted in any case if there is good ground therefor.” La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying a motion for a continuance, and denial of a continuance will not be disturbed on appeal, unless the trial court is shown to have abused its discretion. Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424. Whether a trial court should grant or deny a continuance depends on the particular facts of each case.

Some factors to consider in denying or granting a continuance are diligence, good faith, and reasonable grounds. Demopulos v. Jackson, 33,560 (La.App. 2 Cir. 6/21/00), 765 So.2d 480. Fairness to both parties and the need for orderly administration of justice are additional considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647 So.2d 1219, writ denied, 95-421 (La.3/30/95), 651 So.2d 845.

Mrs. Walsh requested three continuances in her correspondence: 1) a one-year continuance in her September 18, 2006 letter which was attached to her October 20, 2006 letter; 2) a continuance of the November 13, 2006 hearing on Defendants’ Motion for Summary Judgment, and 3) a continuance of the January 8, 2007 rescheduled hearing on Defendants’ Motion for Summary Judgment. The trial court may have thought that it had granted her continuances of two hearings, one scheduled for October 9 and one scheduled for November 13; however, it only granted a continuance of the November 13 hearing on Defendants’ Motion for Summary Judgment because no hearing was scheduled for October 9. Furthermore, the November 13 hearing date was premature because Defendants’ Motion for Summary Judgment had not been effected on the Walshes fifteen days before that date. Therefore, Mrs. Walsh had not actually been granted any continuance when she requested a continuance of the January 8, 2007 hearing in her November 4 letter.

We recognize that the trial court may not have realized these facts when it denied Mrs. Walsh’s November 4 and November 29 requests for a continuance | ^because Defendants did not file their Motion to Continue the November 13 hearing date until the day of the hearing. Nevertheless, we find the trial court’s denial of a continuance of the January 8, 2007 hearing to be an abuse of process in light of the facts preceding the November 13 hearing date and the death of Mr. Walsh on November 19.

This conclusion is based in part on Mrs. Walsh’s diligence and good faith in attempting to proceed with this litigation, which is evidenced by prompt payment of costs for the medical review panel, attendance in court on September 11, and amendment of the Petition after being ordered to do so. Furthermore, we find that her request for a continuance of the January 8 hearing was reasonable in light of Mr. Walsh’s death on November 19.

Our conclusion is also based on Defendants having been granted a thirty-day extension of time to file an answer and a continuance of the November 13 hearing which was necessitated by their failure to obtain service on the Walshes in a timely fashion. Additionally, the Walshes’ complaint was filed with the Division of Administration in March 2004, and a medical review panel was appointed but did not render an opinion until February 16, 2006. There is no indication that the medical review panel’s delay in rendering an opinion is the fault of the Walshes. Under the circumstances presented herein, continuance of the January 8 hearing would have been fair and would not have unduly delayed this litigation which had been pending for only eight months.

Disposition

The trial court’s grant of summary judgment in favor of Defendants is reversed. Mrs. Walsh is given ninety days from the rendition date of this opinion within which |7to secure counsel or proceed pro se. After said ninety-day period has lapsed, then either party may proceed as desired.

REVERSED.


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Johnnie M. LEFEAR.
    No. 07-621.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Paul J. Carmouche, District Attorney, Damon Kervin, Assistant District Attorney, John Ford McWilliams, Jr., Assistant District Attorney, Shreveport, LA, for Ap-pellee State of Louisiana.
    Anthony Hollis, Attorney at Law, Shreveport, LA, for DefendanVAppellant Johnnie M. Lefear.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

hThe Defendant, Johnnie M. Lefear, was charged by bill of information with filing a false public record, a violation of La.R.S. 14:133. Following a bench trial held on December 5, 2006, the Defendant was found guilty as charged. On January 10, 2007, the Defendant was sentenced to fifteen months at hard labor, to be served concurrently with any other sentence and with credit for time served. The Defendant was also ordered to pay costs, or in default thereof, to serve one day in the parish jail. The Defendant appealed to the second circuit, but the court recused itself en banc from hearing the appeal. By order of the supreme court, the Defendant is now before this court on appeal, asserting that the evidence was insufficient to find him guilty of filing a false public record.

The record before us illustrates the following facts: The Defendant, a homosexual inmate at Caddo Correctional Center, participated in oral sexual acts on October 10, 2005, with Deputy Herbert Paul Si-mons, an employee of the prison. Shortly thereafter, the Defendant completed a form, entitled “Administrative Remedy Request” and dated October 10, 2005, wherein he asserted that he was forced to perform oral sex on the deputy, and he requested financial compensation and removal from the prison facility. In the ensuing investigation, recordings of the Defendant’s telephone conversations immediately before and after the sexual acts took place were discovered. The recordings led investigators to believe that the Defendant was not forced into having sex with the deputy; rather, the telephone conversations indicated that the Defendant planned or at least agreed to the sexual conduct so that he could sue the prison and collect a significant sum of money as damages. Consequently, the Defendant was charged with filing a false public record based on the allegation of forced sexual acts in the Administrative Remedy Request.

|2The State admits that the Defendant and Deputy Simons engaged in oral sexual acts. Indeed, Deputy Simons immediately lost his job and was prosecuted for sexual misconduct with inmates. The basis of the charge against the Defendant, and the question before this court on appeal, however, is whether the sexual conduct was forced or whether it was consensual. The Defendant contends the evidence presented at trial was insufficient to establish beyond a reasonable doubt that the allegation of forced sexual conduct was false.

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, rehearing 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 filing a false public record are set forth in La.R.S. 14:133 which reads, in pertinent part, “A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following: ... (3) Any document containing a false statement or false representation of a material fact.”

| a At trial, the State offered into evidence the original Administrative Remedy Request completed by the Defendant, as well as the transcript and recording of two telephone conversations between the Defendant and an unidentified male who was, apparently from the language used in the conversations, an intimate friend of the Defendant. In the first conversation of October 10, 2005, the Defendant began by saying, “I’m probably fixing to cheat on you.” He described an encounter with Deputy Simons wherein the deputy looked at him naked, touched him, and commented that they would see each other at a later time “to do what we need to do.” The Defendant explained that he thought he could file a suit against the jail for sexual harassment and could win perhaps $250,000.00 to $500,000.00; he asked his friend to confirm this by calling a few lawyers.

Later in the conversation, the Defendant asked if he should proceed with this plan and have sex with the deputy. He also gave instructions to have someone call the jail and report the sexual misconduct by the deputy. In response to questions by the unidentified friend and a third party who had joined in the conversation, the Defendant said that he was scared but that he did not know what would happen if he refused the deputy’s advances. The three men discussed what type of evidence he should try to gather and whether there might be any witnesses to corroborate his story.

The second conversation took place between the same parties later that day. The Defendant described the sexual acts which had just taken place and explained that he had the evidence “all over my suit.” He wanted someone to call the jail to report the incident immediately. The Defendant was put on a three-way call with his probation officer whom he informed of the deputy’s conduct. The Defendant once again discussed the money he would receive as a result of this incident and Renvisioned how he would spend the money. The callers agreed that they would report the incident and contact a lawyer first thing in the morning.

Based on this evidence, the trial court found the Defendant had not been forced into having sex with the deputy and, therefore, the allegations in the Administrative Remedy Request were false:

It is clear to the Court based upon the evidence that the defendant clearly had a purpose of obtaining financial gains in connection with this matter. He purposely discussed the plan and how he would execute this matter, how he would withhold the evidence in connection with this matter in order to receive financial gains. He even discussed an amount that he wished to receive in connection with this matter. Clearly, the report indicates that he was forced to perform this act. And then on the CD, the defendant stated that he was unaware of what the consequences would be if he did not go through with it, because he was asked that question by one of the parties engaged in the three-way conversation. So in the opinion of the Court, clearly the report is false, and the Court will find the defendant guilty as charged.

The evidence in the record demonstrates that Deputy Simons initiated the sexual activity with the Defendant. However, the Defendant clearly noticed the advances, responded to them, and willingly proceeded to engage in oral sex. Rather than a forced encounter, the Defendant had the opportunity to consider the situation, discuss it with friends, and formulate a plan for a successful lawsuit.

Having reviewed the evidence in the record before us, we conclude the State satisfied its burden of proving the elements of the crime charged beyond a reasonable doubt. We find no error in the judgment rendered by the trial court and no errors patent on the face of the record. We therefore affirm the Defendant’s conviction and sentence.

AFFIRMED.


text:
    Gary BALDWIN v. NORTH AMERICAN ENERGY SERVICES.
    No. WCA 07-667.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Douglas Lee Bryan, The Bryan Law Firm, LLC, Marksville, LA, for Plaintiff/Appellant Gary Baldwin.

      Kirk Lindsay Landry, Keogh, Cox, & Wilson, Ltd., Baton Rouge, LA, for Defendant/Appellee North American Energy Services.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|! Gary Baldwin appeals a judgment from the Office of Workers’ Compensation which dismissed his claim against North American Energy Services Company for lack of subject-matter jurisdiction. Mr. Baldwin was injured in an automobile accident in Las Vegas, Nevada while working for North American Energy Services. He argues that he was working under a “contract of hire” formed in Louisiana, so jurisdiction is proper here.

Louisiana Revised Statutes 23:1035.1 provides for subject-matter jurisdiction in Louisiana when an accident occurs outside the state as follows:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

The workers’ compensation judge ruled that there was no solicitation in Louisiana by North American Energy Services so that a contract of hire was not formed in Louisiana. He granted the exception of subject-matter jurisdiction and dismissed Mr. Baldwin’s claim for workers’ compensation benefits.

The facts surrounding Mr. Baldwin’s employment were not in dispute at trial. Initial contact with North American Energy Services was made by a friend of Mr. Baldwin, Justin Wells. Mr. Wells contacted Dominick Giametta, a supervisor with North American Energy Services, in Texas regarding employment. Mr. Wells testified that he was hired on the phone and paperwork was sent to him in Louisiana to fill out. Mr. Giametta asked him if he knew of six other people to fill the crew.

| ?Mr. Wells informed Mr. Baldwin and another friend, Clint Ainsworth, about the job. Mr. Ainsworth stated that he called Mr. Giametta because the company was looking for help in Las Vegas. He testified that he was hired on the phone. Mr. Giametta mailed employment forms to him at his home in Louisiana. Mr. Giametta informed both Mr. Wells and Mr. Baldwin that they had the job as long as the drug screens were negative. The drug screens were performed in Louisiana. The men then flew from Alexandria to Las Vegas, where they were reimbursed for the cost of the flight and began work. There was no testimony from Mr. Baldwin at the hearing because, as Mr. Baldwin’s attorney explained, Mr. Baldwin has no direct recollection as to how he was hired since he sustained a head injury in the accident.

The conclusion as to whether a claimant was working under a contract of hire made in Louisiana is a factual determination which may not be disturbed on appeal in the absence of showing manifest error. Hanks v. Kinetics Group, Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878 So.2d 782, writs denied, 04-1517, 04-1693 (La.10/1/04), 883 So.2d 990, 994.

The parties’ intent is paramount in determining whether a contract should be regarded as a Louisiana contract or that of another state in a workers’ compensation case. Offord v. Border to Border Trucking, 00-1201 (La.App. 3 Cir. 2/7/01), 779 So.2d 1090; Hurtado v. CJC Service, Inc., 05-736 (La.App. 5 Cir. 3/14/06), 926 So.2d 624.

It appears the only reason the workers’ compensation judge declined to find a contract of hire in Louisiana is because the men themselves initiated contact with Mr. Giametta. However, we find that it was manifest error for the workers’ compensation judge to rely on this one fact. In reviewing all the facts regarding the hiring of the men, one can only conclude that a contract of hire was formed in Louisiana.

In Harvey v. B E & K Construction, 30,825 (La.App. 2 Cir. 8/19/98), 716 So.2d 514, the court recognized the holding in Ohlausen v. Sternberg Dredging Co., 218 La. 677, 50 So.2d 803 (1951), in which the supreme court held that the determining factor that an employment contract was entered into in Louisiana was the existence of a definitive agreement prior to the plaintiff leaving his home in Louisiana and traveling to another state where a job awaited him. In Harvey the court found that a contract of hire was formed in Louisiana based on a verbal agreement even though paperwork had to be completed in Virginia.

In Sigler v. Rand, 04-1138 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, writ denied, 05-278 (La.4/1/05), 897 So.2d 611, this court agreed with the workers’ compensation judge’s finding that a contract of hire was formed in Louisiana where the employer telephoned the claimant at his home in Louisiana, the claimant was hired over the telephone in Louisiana, the employer mailed him a contract at his home in Louisiana, and the claimant signed the contract at his home in Louisiana and mailed it back to the employer’s Houston office.

This court held in Granger v. F.F.E. Transportation Service, 98-127 (La.App. 3 Cir. 5/13/98), 713 So.2d 667, that a claimant had a reasonable and legitimate expectation that she was hired in Louisiana before traveling to Texas for orientation training, regardless of whether the recruiter had actual authority to hire recruits.

These cases are unlike the case of Parr v. U.S. Express Enterprises, Inc., 06-320 (La.App. 5 Cir. 10/31/06), 946 So.2d 178, in which a contract of hire was not formed in Louisiana when the claimant admitted that she knew before leaving Louisiana that she had to complete orientation, pass her physical, and pass a road test before she could be hired as a driver.

Clearly there was an understanding that these men had been hired prior to leaving Louisiana. While the phone call may not have been initiated by North American Energy Services, all negotiations, paperwork, testing, and agreements were performed and finalized in Louisiana. Mr. Giametta even requested that Mr. Wells find other workers in Louisiana to the fill the crew needed for the job; one of the people hired per this request was Mr. Baldwin. We find that the workers’ compensation judge erred in not finding a contract of hire had been made in Louisiana and that subject-matter jurisdiction was proper in Louisiana.

The judgment of the Office of Workers’ Compensation is reversed, and this case is remanded for further proceedings. All costs of this appeal are assessed to North American Energy Services.

REVERSED AND REMANDED.


text:
    James J. CONVY, III v. Karen Ann LOFTIN.
    No. 07-668.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Alex D. Chapman, Jr., Attorney at Law, Ville Platte, LA, for Plaintiff/Appellant, James J. Convy III.
    Kathy Fontenofc-Meyers, Attorney at Law, Ville Platte, LA, for Defendant/Ap-pellee, Karen Ann Loftin.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| ¶ James Convy III (James III) and his wife, Beth, appeal a judgment of the trial court finding no basis for revocation of their inter vivos donation to their son, James Convy IV (James IV), and his fiancee, Karen Loftin.

FACTS

In anticipation of the wedding of James TV and Loftin, James III and Beth gave the couple $20,000.00 for a down payment and furnishings for a house. On June 23, 2005, the young couple purchased a home in Ville Platte, Louisiana. On August 13, 2005, James IV and Loftin were married in an elaborate ceremony at Nottaway Plantation. After the wedding, the couple lived in the home in Ville Platte.

Some seven weeks later, for reasons not described in detail, James IV moved out of the home and left the state. Loftin continued to reside in the home. In due course, the couple was divorced.

James III and Beth were understandably dismayed by this turn of events and subsequently filed suit against Loftin to revoke the donation made for the purchase of the home. James IV was not made a party to the suit. The trial court, while sympathetic to their plight, concluded that James III and Beth failed to establish grounds for revocation of the donation. This appeal ensued.

DISCUSSION

James III and Beth argue that the trial court erred in law and fact by concluding that the were not entitled to revoke the donation. We disagree.

Louisiana Civil Code Article 1559 provides that an inter vivos donation may only be revoked due to ingratitude of the donee, the non-fulfillment of a suspensive condition, the non-performance of a potestative condition, or the legal or conventional return.

In order to revoke a donation for ingratitude, the donor must show that the donee attempted to take the donor’s life, has refused the donor food when he was in | ^distress, or the donee has been guilty of cruel treatment, crimes, or grievous injuries toward the donor. La.Civ.Code Art. 1560. After reviewing the record, we find no error in the trial court’s conclusion that there is no basis for revocation based on ingratitude.

Appellants next contend that the donation should be revoked because the donation was subject to the suspensive condition that the parties would remain married. Clearly, the donation was not subject to a suspensive condition of a long marriage, because the donation was made prior to the actual marriage and, thus, could not be the basis for revocation. See La.Civ.Code art. 1565.

Finally, James III and Beth contend that the donation should be revoked because it was subject to the potestative condition that the couples remain married. The evidence in the record does not support this contention. The donation was made before the parties were married. Even assuming arguendo that the donation was with the condition that the couple use the funds to purchase and furnish a house for their marital home, the condition would be fulfilled. The couple did in fact purchase a house with the funds and subsequently married and resided in the home as their marital domicile. Moreover, James III and Beth, by their own testimony, acknowledge that they never contemplated that the couple would not stay married. Thus, on the record before us, we find no error in the trial court’s conclusion that James III and Beth failed to establish grounds for revocation of the donation.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to appellants, James Convy, III and Beth Convy.

AFFIRMED.