text:
    STATE of Louisiana v. Ziguards Stanislauvs KOKORISS.
    No. 2007-728.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Cecil R. Sanner, District Attorney, Jennifer Jones, Assistant District Attorney, Cameron, LA, for Plaintiff/Appellee-State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant-Ziguards Stanislauvs Kokoriss.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| j Defendant, Ziguards Stanislauvs Ko-koriss, appeals his conviction before a six-person jury for failing to register as a sex offender, a violation of La.R.S. 15:542(B). He also appeals his maximum sentence of five years. We affirm.

FACTS

On October 6, 1994, Defendant Ziguards Stanislauvs Kokoriss pled guilty to indecent behavior with a juvenile and molestation of a juvenile. The court explained to Defendant the sex-offender registration requirements.

After Defendant served his term of imprisonment, the federal immigration and customs enforcement service (ICE) took him into custody. ICE released Defendant on July 27, 2004. By letter, ICE reported to Cameron Parish authorities that Defendant listed his permanent address as being in that parish as of August 10, 2004.

In October of 2004, police arrested Defendant for failure to register. He registered as a sex offender on October 10, 2004, the day he was arrested.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant argues the evidence adduced at trial was insufficient to support his conviction, because the State failed to prove that he was the same individual as the one originally convicted for a sex offense. He observes that the bill of information listed his date of birth as “January 11, 1987,” but that the minutes of his earlier conviction showed the date of birth as “January 11, 1924.” Defendant, however, effectively conceded his identity at trial, as he acknowledged his duty to register. He contends that he simply misunderstood the registration requirements.

| ^During the State’s case-in-chief, defense counsel introduced a series of forms for registration as a sex offender, “sex offender vehicle information,” and acknowledgments of his duty to register, as D-l in globo. Those documents referred to Defendant’s October 6, 1994, conviction.

Defendant also argues the State failed to prove that he had a duty to register at the time he was arrested. He observes that, at the time of his arrest, La.R.S. 15:542 required that an offender register within twenty-one days after establishing residency. He contends the State failed to show the date he established residency and therefore failed to prove when his duty to register was triggered. The record indicates Defendant registered as a sex offender on October 10, 2004. That was also the date he was arrested, then released, from jail. As the State points out, it introduced into evidence a letter from ICE to the Cameron Parish Sheriffs Office that indicated Defendant was released from ICE custody on July 27, 2004. According to the letter, he reported to ICE telephonically on August 4. On instructions from ICE, he reported again on August 10 to inform immigration officials that he had secured a permanent address: 259 Roger’s Lane, Cameron, Louisiana.

Since more than twenty-one days elapsed between August 10 and October 10, 2004, Defendant failed to meet his obligation to register as a sex offender. The evidence was clearly sufficient to sustain a verdict of guilty.

Hearsay

Defendant argues the letter from ICE, notifying the Cameron Parish Sheriffs Office of Defendant’s release date and permanent address, was inadmissible hearsay.

The controlling law is set forth in La. Code Evid. art. 803, which states in pertinent part:

| oThe following are not excluded by the hearsay rule, even though the de-clarant is available as a witness:
(8) Public records and reports, (a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
(i) Its regularly conducted and regularly recorded activities;
(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or
(iii) Factual findings resulting from an investigation made pursuant to authority granted by law. Factual findings are conclusions of fact reached by a governmental agency and may be based upon information furnished to it by persons other than agents and employees of that agency.
(b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
(i) Investigative reports by police and other law enforcement personnel.
(ii) Investigative reports prepared by or for any government, public office, or public agency when offered by that or any other government, public office, or public agency in a case in which it is a party.
(iii) Factual findings offered by the prosecution in a criminal case.
(iv) Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

The State cites State v. McCullough, 566 So.2d 635 (La.App. 5 Cir.), writ denied, 571 So.2d 645 (La.1990), writ denied, 584 So.2d 1141 (La.1991), a murder case, in which the trial court allowed the State to introduce thirteen teletype messages from Alabama law enforcement agencies to their Louisiana counterparts, | regarding the defendant’s possible location. On appeal, the fifth circuit held the teletypes were properly admitted. The court explained:

Historically, trustworthiness has been recognized as the foundation of the public records exception, which existed in this state prior to 1989. See State v. Nicholas, 359 So.2d 965 (La.1978), and State v. Dewhirst, 527 So.2d 475 (La.App. 5 Cir.1988). Art. 803(8) ensures the trustworthiness of public records sought to be introduced as evidence in a criminal proceeding by distinguishing between those records reflecting basic factual information and prepared during the course of a government agency’s regular activities or duties, and those records which reflect conclusions or inferences drawn from such basic factual information. The former category of records is admissible as evidence in a criminal proceeding, while the latter category is not admissible. This distinction further safeguards the criminal defendant’s confrontation rights as guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 16 of the Louisiana Constitution of 1974.
A careful study of the 13 teletypes from Alabama challenged by McCullough suggests that these teletypes, while constituting hearsay evidence, are subject to the public records exception to the rule excluding hearsay. The teletypes were prepared by Alabama law enforcement personnel whose duty assignments include locating and extraditing persons wanted by other jurisdictions. The issuance of the teletypes was effected as part of the regularly conducted and regularly recorded activities of these law enforcement personnel. There are no factual findings or investigative conclusions in the teletypes. The material is limited to basic or primary facts. Accordingly, the teletypes forming the basis of this error assignment are subject to the public records exception to the rule excluding hearsay evidence.

Id. at 637-38.

The fifth circuit cited McCullough and used similar reasoning in State v. Shaw, 00-1051 (La.App. 5 Cir. 2/14/01), 785 So.2d 34, writ denied, 01-969 (La.2/8/02), 807 So.2d 861. In Shaw, the trial court and the appellate court excluded documents that were deemed untrustworthy. The State cites other fifth circuit jurisprudence and State v. Lee, 577 So.2d 1193 (La.App. 2 Cir.1991). These cases 1 Rdid not employ the same reasoning as McCullough and Shaw. We have found no third circuit or supreme court jurisprudence on point, but suggest that McCullough is persuasive. Law enforcement documents which report basic or primary facts are admissible while documents which report opinion, conjecture, or investigative conclusions should not be admissible.

In the present case, the letter at issue reported a basic fact gathered as part of the routine course of business for the law enforcement agencies involved. Thus, it was properly admitted.

Further, even if we were to conclude that the letter was erroneously admitted, such an error would have been harmless. Defendant effectively conceded the issue of his residency in the course of his defense.

For the reasons discussed, this assignment lacks merit.

Excessiveness of Sentence

Defendant argues that his five-year sentence — the maximum at the time of the offense — was excessive. Defendant argues that he is elderly; that his failure to register did not cause any harm; that no weapons were involved in this offense; that he spent approximately 10 years in prison and immigration detention, due to his conviction for the original sex offense; that he cooperated with police and has maintained his registration since his arrest; and that he has maintained employment since his arrest.

This court has explained the analysis for excessive-sentence claims:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still,J^the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in Lisotta, 726 So.2d at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.

At the sentencing hearing, the trial judge made the following statements:

The Court is familiar with the matter, and the Court will consider that he has served his time for the underlying charge; however, there are some characteristics or some elements in that charge which are affecting the Court’s decision today, and it is this. Mr. Ko-koriss operated under an assumed name. Took a position of using that assumed name in this Court for a period of time before his true identify was revealed. So, he has demonstrated an ability to masquerade as someone else.
The crime for which he was convicted not only was an offense based upon improper behavior with little ones, but they were little ones that were under his guidance, under his care and custody.
The combination is such that his failure to properly register this time makes it a much more serious crime than the normal inadvertence or misunderstanding. The Court reads into this a design to again enable him to pursue crimes of pedofilia. And for that reason, the Court feels |7that incarceration is proper, custodial incarceration is proper, that the seriousness of this crime must be reflected in the sentence. And I think if ever there’s a reason for imposing the maximum, this is one of them. And so the Court will, in fact, impose five years DOC and remand Mr. Kokoriss [to] the Sheriffs office.

At the hearing on the motion to reconsider sentence, the judge stated:

I don’t have to give reasons for denying the motion, but they are the same reasons that he got the maximum, which is just a — probably an unusual thing for judges to give, but the secrecy and surreptitious way that Mr. Kokoriss has operated in the past is consistent with his failure to register, and consequently, the Court feels like the sentence was correct under those circumstances.

The trial judge gave sufficient and adequate reasons for his imposition of the five years at hard labor sentence. The provisions of La.Code Crim.P. art. 894.1 were complied with, and there was no abuse of the trial court’s discretion. This assignment also lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PETERS, Judge.

license: Public Domain

text:
    SUCCESSION OF Achille BIJEAUX v. Mildred Bourque BROYLES, et al.
    No. 2007-1342.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      See also 951 So.2d 490.
    Stanford B. Gauthier, II, Kristi D. Husher, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Succession of Achille Bijeaux.
    James Patrick MacManus, Attorney at Law, Lafayette, LA, for Defendant/Appel-lee, Mildred Bourque Broyles.
    George Phillip Shuler, III, Michael D. Spencer, Chaffe McCall, LLP, New Orleans, LA, for Defendant/Appellee, John Hancock Life Insurance (U.S.A.).
    Thomas A. Roberts, Barrasso Usdin, Kupperman, New Orleans, LA, for Defendants/Appellants, Citigroup Global Market, Inc. and David Alford.
    Gabriel A. Crowson, McGlinchey Stafford, New Orleans, LA, for Defendants/Appellants, Citigroup Global Market, Inc. and David Alford.
    Court composed of, JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, Judge.

_JjOn October 31, 2007, this court issued a rule for the appellants, Citigroup Corporate and Investment Banking, Inc. d/b/a Smith Barney and David Anderson Alford, to show cause why the appeal in the instant case should not be dismissed as having been taken from a non-appealable interlocutory ruling. For the reasons below, we dismiss the appeal.

Appellee, Succession of Achille Bijeaux, filed the instant action claiming that defendant, Mildred Bourque Broyles, with the assistance of the other defendants to this action, had fraudulently purchased two annuities with the decedent’s funds. The appellants responded to the action claiming that the succession’s claims must first be submitted to arbitration in accordance with the contracts executed by the decedent. Following a hearing on the motion seeking to compel arbitration, the trial court denied the demand for arbitration, citing the relators’ failure to introduce the agreements containing the arbitration clauses into evidence.

Appellants filed both an application for supervisory review of this ruling denying the arbitration and an appeal. This court denied the application for writs and separately affirmed the trial court’s ruling on appeal. See Succession of Bijeaux v. Broyles, 2006-1172 (La.App. 3 Cir. 2/7/07), 951 So.2d 490.

Meanwhile, in addition to seeking appellate review of the trial court’s ruling, appellants filed in the trial court a Motion to Reconsider Dilatory Exception of Prematurity and Motion to Compel Arbitration and Stay Proceeding. Consideration of this motion was delayed pending this court’s review of the above-referenced supervisory writ application and appeal. Once this court rendered its rulings, though, the trial court set the motion for reconsideration for hearing. At the hearing, the trial hcourt denied the motion for reconsideration. Once again, appellants have filed an application for supervisory writs and an appeal from the trial court’s ruling.

Appellants argue that the agreements at issue in this litigation are subject to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Appellants assert that since the result of the trial court’s ruling denying the motion to reconsider is to deny the appellants’ demand for arbitration, federal law mandates that an appeal be permitted from this ruling. We disagree.

The Louisiana Code of Civil Procedure does not expressly provide for a motion to reconsider. However, La.Code Civ.P. art. 865 provides that “[ejvery pleading shall be so construed as to do substantial justice. In La.Code Civ.P. art. 5051, the code further provides that “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” In light of the jurisprudential philosophy of liberal construction of pleadings, in Clement v. American Motorist Ins. Co., 98-504 (La.App. 3 Cir. 2/3/99), 735 So.2d 670, 672, this court set forth the standard for review of a trial court’s ruling on a motion to reconsider as follows:

Accordingly, the sole issue before us is whether the trial court abused its discretion in declining to grant the motion to reconsider. As an interlocutory order, a motion to reconsider is like a motion for new trial. The denial of a motion for new trial is renewable only under our supervisory jurisdiction for abuse of discretion. Cormier v. McDonough, 96-305 (La.App. 3 Cir. 10/23/96); 682 So.2d 814.

Thus, like the denial of a motion for new trial, the review of a denial of a motion to reconsider is an interlocutory ruling.

The ruling at issue in this appeal is the refusal of the trial court to reconsider its prior ruling which was affirmed by this court on appeal. Thus, we hold that this judgment is not a ruling denying a request to compel arbitration and, therefore, is not subject to the federal law regarding judgments on demands for arbitration.

1 ¡¡Louisiana Code of Civil Procedure Article 2083, recently amended, now provides the following, “[a]n interlocutory judgment is appealable only when expressly provided by law.” Under the revised article, a judgment denying a motion to reconsider is not appealable because it has not expressly been provided by law. Therefore, this court lacks appellate jurisdiction of this matter. Accordingly, the appeal is dismissed.

APPEAL DISMISSED.


author: AMY, Judge.

text:
    STATE of Louisiana v. P.T., Sr.
    No. 2007-665.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      John F. DeRosier District Attorney Lake Charles, LA for Appellee State of Louisiana.
    Annette Fuller Roach Louisiana Appellate Project Lake Charles, LA for Defendant/Appellant P.T., Sr.
    P.T., Sr., Angie, LA, pro se.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

| factual and Procedural Background

T.S., the stepdaughter of the defendant, P.T., Sr., alleged that over a two-year period, she and the defendant engaged in various sexual acts, including sexual intercourse. The defendant was charged by bill of indictment with aggravated incest in violation of La.R.S. 14:78.1. Following a bench trial, the trial court found the defendant guilty as charged and sentenced him to twelve years at hard labor, to be served without benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating the following as error:

1. The trial court abused its discretion in refusing to require the State’s witness, T.C., to be placed under the rule of sequestration.
2. The trial court denied P.T., Sr. due process of law and the right to present witnesses in his defense when it permitted Steven James Reinholdt to enter a blanket Fifth Amendment privilege against self-incrimination.
3. The trial court erred in allowing the State’s witness to testify to “other crimes” evidence beyond the scope of discovery and further erred in denying defense counsel’s [m]otion for mistrial.
4. The trial court erred in failing to sufficiently consider P.T., Sr.’s request to either act as co-counsel in his own defense or to be allowed to represent himself at trial.
5. The trial court erred in not assuring that P.T., Sr.’s waiver of his right to a jury trial was voluntarily entered.
6. The trial court erred in imposing the restriction against parole upon P.T., Sr.’s twelve year sentence, resulting in the imposition of an illegal sentence.

For the following reasons, we affirm as amended and remand with instructions.

1 ^Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find four errors patent.

First, the defendant received an illegally lenient sentence for aggravated incest in that the trial court did not make any finding as to the defendant’s ability to pay the victim’s reasonable costs of counseling pursuant to La.R.S. 14:78.1(E), which provides in pertinent part: “In addition to any sentence imposed under Subsection D, the court shall, after determining the financial resources and future ability of the offender to pay, require the offender, if able, to pay the victim’s reasonable costs of counseling that result from the offense.” Thus, we remand the matter for the trial court to make a determination as to whether the defendant is able to pay, if any, “the victim’s reasonable costs of counseling that result from the offense.” If the trial court finds that the defendant has the ability to pay and that sums are owed, it shall amend the sentence for aggravated incest.

Second, the defendant’s sentence is also illegally lenient because the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A), which requires that diminution of sentence be denied to all persons who are convicted of or plead guilty to sex offenses, including aggravated incest. Therefore, we amend the defendant’s sentence to reflect that he is not eligible for diminution eligibility pursuant to La.R.S. 15:537(A). The trial court is instructed to make a notation in the minutes reflecting the amendment.

|sThird, the trial court imposed an illegal sentence when it denied the defendant the benefit of parole, probation or suspension of sentence. Louisiana Revised Statutes 14:78.1 does not require or authorize the denial of these benefits for the offense of aggravated incest. Thus, pursuant to La.Code Crim.P. art. 882, we amend the defendant’s sentence by deleting the denial of parole, probation, or suspension of sentence. The trial court is instructed to make an entry in the minutes reflecting this change.

Fourth, the record does not indicate that the trial court advised the defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is instructed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of its opinion and to file written proof that the defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Rule of Sequestration

The defendant alleges that the trial court abused its discretion in failing to require, T.S.’s mother, T.C., to comply with the rule of sequestration. He argues that although T.S. was a minor at the time the offense occurred, she had obtained the age of majority before the trial proceedings began. Thus, according to the defendant, there was no need for T.C. to be present in the courtroom as a registered victim.

Louisiana Constitution Article I, § 25 states in pertinent part that “[a]s defined by law, a victim of crime shall have the right to reasonable notice and to be present and heard during all critical stages of preconviction and postconviction |4proceedings[.]” Louisiana Code of Evidence Article 615 provides in pertinent part:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
(4) The victim of the offense or the family of the victim.

After reviewing the record, we find that the trial court did not abuse its discretion in not putting T.C. under the rule of sequestration. Pursuant to La.R.S. 46:1844(T) and La.Code Evid. art. 615(B)(4), T.C.’s presence in the courtroom was not a violation of the rule of sequestration. Although the defendant alleges in his brief that his “ability to properly cross-examine [T.S.] during her testimony was hampered by the court’s ruling[,]” he later concedes that “[i]t is impossible to look in hind-sight and evaluate what affect T.C.’s presence in the courtroom had on her own testimony as well as on the testimony of others, including her daughter T.S.” UThe defendant has not shown that he was substantially prejudiced by T.C.’s presence in the courtroom during T.S.’s testimony; therefore, this assignment has no merit. Privilege Against Self-Incrimination

The defendant contends that the “trial court denied [him] due process of law and the right to present witnesses in his defense when it permitted Steven James Reinholdt to enter a blanket Fifth Amendment privilege against self-incrimination.”

In State v. Darby, 403 So.2d 44, 48 (La.1981), cert. denied, 454 U.S. 1152, 102 S.Ct. 1022, 71 L.Ed.2d 308 (1982), the supreme court held that “[i]t is reversible error to allow a witness to claim a blanket privilege [against self-incrimination].” However, the supreme court concluded that given the facts and circumstances of the case, “no purpose would have been served in requiring a question-by-question assertion of [the defendant’s] privilege.” Id. at 49. Moreover, in State v. Haddad, 99-1272, p. 5 (La.2/29/00), 767 So.2d 682, 686, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001), the supreme court held that “[a]s a general proposition, when faced with resolving the tension between a witness’ Fifth Amendment privilege against self-incrimination and a defendant’s Sixth Amendment right to present a defense, this court has consistently recognized the witness’s right not to incriminate himself.”

The record shows that on the last day of trial, the defendant called Reinholdt as a witness. At that point, Ronald Ware, Re-inholdt’s attorney, informed the trial Court that his client was incarcerated on allegations of sexual battery, and that he was under investigation for other sexual offenses including aggravated rape. Ware explained that he advised Reinholdt to invoke his Fifth Amendment privilege against self-incrimination and that if called, Reinholdt intended to invoke that right.

In response, the trial- court articulated:

|fiI was informed that at least from a very basic standpoint that Mr. Reinholdt was possibly to be called in relation to some testimony from the alleged victim in this case. Her testimony, when questioned regarding whether or not she knew Mr. Reinholdt, was that she did not know Mr. Reinholdt. Quite honestly, Mr. Bouquet [defense counsel] indicated to me that I believe, and, Mr. Bouquet, please elaborate, I was informed that he wanted Mr. Reinholdt here to disprove that statement. With that proviso, do you still have your concerns, Mr. Ware?

Ware stated that given the seriousness of the charges that Reinholdt was possibly facing and his concern that Reinholdt may open the door to matters that could undermine his defense when he went to trial, he did not want Reinholdt testifying. He pointed out that if Reinholdt was found guilty of those charges, he could receive multiple life sentences.

Despite Reinholdt’s and Ware’s concerns, the defendant called Reinholdt to the stand. After asking Reinholdt to state his name and address for the record, defense counsel asked him if he knew T.S., to which he responded, “I plead the 5th.” The trial court stated that it was not going to require Reinholdt to testify.

Given the circumstances, we find that the trial court did not err in permitting Reinholdt to invoke his Fifth Amendment privilege against- self-incrimination. Although Reinholdt’s testimony may have impeached T.S.’s testimony, thus raising the issue of her credibility, it does not offer any exculpatory testimony that would show that the defendant did not engage in sexual conduct with T.S. Moreover, the defendant did not allege that the scope of questioning would have gone beyond the issue of whether or not Reinholdt knew T.S. We note that while the defendant references the trial court’s granting of a blanket Fifth Amendment privilege, the record indicates that there was only one issue on which Reinholdt was to be questioned and that he was invoking his privilege for that particular matter. Accordingly, the trial court did not err in recognizing Reinholdt’s right to not Mncriminate himself over the defendant’s right to present a defense.

This assignment is without merit.

Motion for Mistrial

The defendant contends that the trial court erred in allowing testimony beyond the scope of discovery in that T.S. described an incident that occurred after September 28, 2003, the last date specified in the bill of indictment. According to the defendant, this constitutes an error in the substance of the indictment, for which the trial court should have granted a mistrial.

“The date of [the] offense is not a specific element of aggravated incest[.]” State v. Foshee, 99-1423, p. 6 (La.App. 3 Cir. 4/5/00), 756 So.2d 693, 696. Pursuant to La.Code Crim.P. art. 487, there was no substantive defect in the indictment and thus, no basis for a mistrial. Moreover, we note that the trial court did not take into consideration any conduct that occurred outside the time frame referenced in the indictment. Therefore, we find that the defendant’s motion for a mistrial was Isproperly denied by the trial court. Accordingly, this assignment has no merit.

Representation

The defendant argues that the trial court erred in failing to consider his request to act as co-counsel or to be allowed to proceed pro se at trial.

In State v. Brown, 03-897, p. 28 (La.4/12/05), 907 So.2d 1, 22, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006), the supreme court stated that “a defendant may elect to represent himself if the choice is ‘knowingly and intelligently made’ and the assertion of the right is ‘clear and unequivocal.’ ” Both the defendant and his court appointed attorney were present at the hearing held on January 10, 2007. A discussion was held on the record regarding the defendant’s motion to enter as co-counsel and/or as pro-se:

[THE DEFENDANT]:
I have just numerous case law that states that I have that right to have an 19attorney and be listed as co[-]counsel. Now, my understanding of the law Pro Se would mean that I would be my own attorney, period, without counsel, but co[-]counsel would be where I would be considered co[-]counsel to the main counsel....
And it is, of course, under your discretion to allow me to be co[-] counsel, providing that, you know, I follow the rules of the Court, and I intend to do that, Your Honor, with your approval to this motion.
THE COURT:
I think you’re right, but I’m not going to allow you to proceed totally without an attorney.
[THE DEFENDANT]:
No, sir.
THE COURT:
These charges are too serious.
[THE DEFENDANT]:
I’m not asking that. Pro Se would be that motion.
THE COURT:
The way I would propose it, and I’m going to make sure we understand each other. We have several motions to address here today, some of them you have filed yourself, some that Mr. Bouquet has filed.
[THE DEFENDANT]:
Yes, sir.
THE COURT:
Those that you have filed I’m going to allow you to argue. And you’re going to follow the rules—
[THE DEFENDANT]:
Yes, sir.
THE COURT:
—of procedure. Then I’m going to allow him to assist you. Are you going to let him help you?
[THE DEFENDANT]:
Yes, sir.
THE COURT:
The ones that he’s filed he’s going to take care of. Okay?
JjgtTHE DEFENDANT]:
Okay, sir.

This colloquy indicates that the defendant did not intend to represent himself. Rather, it shows that the defendant acquiesced in the trial court’s ruling that defense counsel would be allowed to assist him and argue the motions filed by defense counsel.

On January 29, 2007, the date that his trial was set to begin, the trial court clarified its prior ruling regarding the defendant’s request to act as co-counsel:

MRS. COCHRAN [Assistant District Attorney]:
Your Honor, as it relates to that [waiver of jury trial] I believe that his voicing of that request at the last hearing was in relation to his request to be co-counsel, and we had offered some objections. I’m not sure if that’s still his — you did not rule on that. You had indicated that you don’t want him representing himself, that he wanted co-counsel, and you did not rule on that.
THE COURT:
I just — Do you have an attorney at this time? ... [Y]ou’re very intelligent, I don’t dispute that. I’m going to suggest that you give that intelligence — let that intelligence assist you with Mr. Bouquet.
[THE DEFENDANT]:
And I will, Your Honor.
THE COURT:
I’m not going to let you start questioning witnesses, and we’ll set out the rules—
[THE DEFENDANT]:
Right.
THE COURT:
—but basically Mr. Bouquet’s your attorney from now on.
[THE DEFENDANT]:
Well, that’s another thing, we got to get some witnesses here for being questioned, and I think that’s going to be a problem for the state, as far as the victim goes.
THE CLERK:
Your Honor, you’re denying his request to be co-counsel?
lnTHE COURT:
Yes.

As the above colloquy illustrates, the defendant did not make a clear and unequivocal request to represent himself. Furthermore, when the trial court denied the defendant’s motion on the day of trial, he did not lodge an objection. This assignment lacks merit insofar as the record demonstrates that the trial court considered the defendant’s motion to enter as co-counsel and/or pro-se.

Right to Jury Trial

In this assignment of error, the defendant alleges that the “trial court erred in not assuring that [his] waiver of his right to a jury trial was voluntarily entered.”

In State v. Fuslier, 06-1438, p. 13 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, 874 (quoting State v. Morris, 607 So.2d 1000, 1001 (La.App. 3 Cir.1992), judgment set aside on other grounds, 615 So.2d 327 (La.1993)), this court explained that, “[w]hile one who is entitled to a jury trial may waive that right, such waiver shall not be presumed but must be established by a contemporaneous record setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the accused.”

A review of the record reveals that the defendant initially requested a jury trial; however, he waived that right at the January 10, 2007 hearing. He stated that he was electing a bench trial so that he would be able to proceed as co-counsel. A bench trial, according to the defendant, would eliminate any potential confusion or manipulation of the jury. The defendant reiterated his position on the date that his trial was set to begin:

|1?THE COURT:
I understand. Again, Mr. Bouquet, do you know what your client wishes to do at this point, jury or non-jury?
MR. BOUQUET:
I think he can answer, but he’s advised me he wishes—
[THE DEFENDANT]:
—a trial by judge.
THE COURT:
By judge only?
[THE DEFENDANT]:
Yes, sir.
THE COURT:
So you’re waiving your right to a trial by jury?
[THE DEFENDANT]:
That’s correct.

The record supports the trial court’s determination that the defendant knowingly and intelligently waived his right to a jury trial. Accordingly, this assignment of error is without merit.

DECREE

For the above reasons, the defendant’s conviction and sentence are affirmed. The defendant’s sentence is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). Additionally, the defendant’s sentence is amended to delete the denial of probation, parole, or suspension of sentence. The trial court is instructed to note these amendments in the minutes. This matter is remanded to the trial court for its compliance with the provisions of La.R.S. 14:78.1(E) and amendment to the sentence for aggravated incest, if required. Lastly, the trial court is instructed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition |1sof its opinion and to file written proof that the defendant received the notice in the record of the proceedings.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844(W), the initials of the victim and the defendant have been used.

      . Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court can recognize and correct illegally lenient sentences.

      . Louisiana Revised Statutes 46:1844(T) provides in pertinent part:
      (1) In order for a victim or designated family member to be eligible to receive notices hereunder and exercise the rights provided in this Chapter, the victim or designated family member must complete a form promulgated by the Louisiana Commission on Law Enforcement. The form shall be completed by the victim or designated family member and shall be filed with the law enforcement agency investigating the offense of which the person is a victim, as defined in this Chapter. The completed victim notice and registration form shall be included in the documents sent by the law enforcement agency to the district attorney for prosecution. The district attorney shall include the completed victim notice and registration form with any subsequent bill of information or indictment that is filed with the clerk of court.

      (3) The victim and designated family member shall have the right to register with the appropriate agency at any time and exercise prospectively the rights guaranteed by this Chapter.

      . Louisiana Code of Criminal Procedure Article 487 provides in pertinent part:
      A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
      Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

      . In its oral ruling, the trial court stated:
      Now, [there's] been much to do regarding whether or not the only sexual behavior that might have taken place between these two people took place after this young lady turned the age of 17. Well, I believe the evidence reflects that that date, magical mystical date, was September 28th, 2003. The incident that brought this all to a head was November 9th or 10th, 2003. So, if I am to understand the quote, unquote, defense, as it would be, is that all of the sex that took place, all of the inappropriate behavior that took place, between these two people happened in about a six-week period. And I just don’t believe that’s what happened. I recall for everyone here that one of the things that the defense put into evidence, in fact the only thing that was submitted into the evidence by the defense, was the matter of the offense report dated May 2003. [T.S.] testified unequivocally that inappropriate behavior was happening between these parties at that time. She was 16. There’s no doubt in my mind that this man is guilty of the charge of aggravated incest, and I’m finding [him] guilty at this time.
      Furthermore, when the defendant commented, during his sentencing hearing, that T.S. was seventeen when he engaged in sexual activity with her, the trial court reiterated:
      I made it very clear in my ruling that I determine that there was no — I did not find any sexual behavior at the age of 17. Okay? So let’s go over that one more time.

      I’ve made it perfectly clear in my ruling and determination of your guilt that I did not take [that] into consideration for several reasons. One, because I didn’t feel there was any evidence. And secondly, the Bill did not include that.

        And Mr. Bouquet made it perfectly clear. And that’s another thing he aptly pointed out to the Court was that’s something I could not take into consideration, and I did not.

      . As addressed above, the defendant failed to unequivocally express his desire to act as co-counsel.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Paul S. HOLLAND.
    No. 07-695.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for State of Louisiana.
    Walter M. Sanchez, Lorenzi, Sanchez & Barnatt, LLP, Lake Charles, LA, for Defendant/Appellant, Paul S. Holland.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

|TIn trial court Docket Number 5887-06, our Docket Number 07-695, Defendant, Paul S. Holland, was indicted for indecent behavior with a juvenile. The charge was later amended to sexual battery, a violation of La.R.S. 14:43.1, to which Defendant pled guilty. In trial court Docket Number 12247-06, our Docket Number 07-696, Defendant was indicted for six counts of sexual battery. He pled guilty to one of the six counts and the remaining counts were dismissed. Defendant was sentenced to four years at hard labor in each case, the sentences to run consecutively to one another and consecutively to the sentence Defendant had received and was then serving in Cameron Parish. Defendant filed a Motion to Reconsider Sentence, which the trial court denied without reasons. He is now before this court on appeal, asserting that the sentences imposed by the trial court are cruel, unusual, and excessive. For the following reasons, we amend, affirm as amended, and remand with instructions.

FACTS

The following facts were taken from the factual basis set forth by the State at Defendant’s guilty plea hearing. In trial court Docket Number 5887-06, the juvenile victim went camping with Defendant, and they shared a tent. The victim awoke to Defendant touching his penis. Defendant then placed the victim’s hand on his penis and began to masturbate himself. After the victim removed his hand, Defendant continued to masturbate himself and then got on top of the victim and humped him until Defendant’s sexual urges were satisfied. The victim felt threatened by the fact that a shotgun was next to Defendant’s sleeping bag, as they were going hunting in the morning, and he felt that he was unable to stop Defendant.

|aIn trial court Docket Number 12247-06, the juvenile victim spent the night at Defendant’s home while he was helping Defendant remodel and paint his home. The victim knew Defendant from church and, along with his family, was friends of Defendant. The victim awoke to Defendant pulling the victim’s pants down to his knees, touching his penis and masturbating him.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals that the minutes of sentencing are in need of correction.

The court minutes fail to reflect that the trial court imposed the sentences without benefit of parole as provided by La.R.S. 14:43.1. Therefore, the trial court is ordered to correct the minutes to reflect that the sentences are without the benefit of parole.

In addition, although the trial court advised Defendant that his sentences were not eligible for diminution, the minutes fail to reflect this fact. Consequently, we amend Defendant’s sentences to specifically reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537, and the trial court is instructed to note the amendment in the court minutes.

ASSIGNMENT OF ERROR

Defendant argues that the sentences imposed by the trial court were cruel, unusual, and excessive. Defendant sums up his argument as follows:

Given the interrelated nature of the offenses of conviction in these proceedings and those in Cameron Parish; the concurrence in the sentencing recommendation by both District Attorneys’ Offices and the families of all victims; the substantial time to be served by Mr. Holland as part of the recommendation submitted; his lack of prior criminal history and the overwhelming number of letters submitted to the court ^relating both his positive attributes and impact on his community, the original sentence imposed in these proceedings is excessive.

At the start of Defendant’s guilty plea hearing, the trial court was told that the parties had agreed to a joint sentencing recommendation. The trial court then informed Defendant that the recommendation would not be binding on the court, and that the court could impose any of the penalties listed in the sexual battery statute. Following the State’s recitation of the factual bases of the offenses, the trial court was presented with the joint sentencing recommendation wherein the State and Defendant agreed to a recommended sentence of five years at hard labor in Docket Number 5887-06 and ten years at hard labor in Docket Number 12247-06, for a total of fifteen years, to run concurrently with the twenty-two year sentence he had already received in Cameron Parish. The joint sentencing recommendation had been approved by the District Attorney’s Offices of both Calcasieu and Cameron Parishes, as well as by the families of the boys involved in the charges.

Following the acceptance of Defendant’s guilty pleas, the mother of one of the victims testified as to the anguish the victims and their families were experiencing, stating, “So, I’m asking you today to have mercy on them [the victims], not on him, and when you do sentence him make it according to the law, not because of the recommendation, even though we agree to it, because we don’t want our children to face him again and go through a trial.” The trial court noted that although the victim’s families had initially agreed with the recommendation, it appeared that they no longer felt that the sentence was appropriate. At the conclusion of the hearing, the trial court stated that it would review the matter in greater detail before deciding whether to accept the sentencing recommendation. Formal sentencing was set for hearing a little over one month later.

\ ¿STANDARD OF REVIEW

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

ANALYSIS

Defendant pled guilty to two counts of sexual battery, a violation of La.R.S. 14:43.1, which at the time of the offenses, provided for imprisonment not to exceed ten years. The four-year sentence imposed on Defendant on each count of sexual battery was less than one half of the possible sentence Defendant could have received. Defendant also derived significant benefit from his plea agreement. In trial court Docket Number 12247-06, Defendant was originally charged with six counts of sexual battery, but as part of his plea agreement, five of the counts were dismissed.

We have reviewed the record in its entirety and we conclude that the trial court paid significant attention to the mitigating and aggravating factors herein, and that Defendant’s sentences are not grossly disproportionate to the severity of the crimes. ^Defendant did not raise any mitigating factors in his Motion to Reconsider Sentence that were not considered by the trial court in fashioning Defendant’s sentences. Accordingly, Defendant’s argument in this regard is without merit.

Defendant argues that because the two instant convictions involve the same victims as in the Cameron Parish proceedings and because the offenses took place contemporaneously in both parishes, the sentences imposed herein should run concurrently with his Cameron Parish sentences as was agreed to in the joint sentencing recommendation.

Although the identity of the victims in Cameron Parish is not clearly reflected in the record, the State does not deny that the instant offenses involved the same victims for which Defendant was sentenced in Cameron Parish. Instead, the State counters that because Defendant’s convictions in both parishes are not based on the same act or transaction or a common scheme or plan as required by La.Code Crim.P. art. 88B, Defendant’s claim that he should have received concurrent sentences is misplaced.

In State v. Thibodeaux, 05-1187, pp. 8-9 (La.App. 8 Cir. 3/1/06), 924 So.2d 1205, 1211 (citations omitted), writ denied, 06-700 (La.10/6/06), 938 So.2d 65, this court reviewed the factors which could justify the imposition of consecutive sentences:

Imposition of consecutive sentences requires particular justification. “[T]he trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La. C.Cr.P. art. 894.1.”
Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, ... the potential for the defendant’s | firehabilitation, and whether the defendant has received a benefit from a plea bargain.

The discretion afforded a trial court in sentencing a defendant cannot be limited by a joint sentencing recommendation. State v. Higginbotham, 03-49 (La.App. 3 Cir. 4/30/03), 843 So.2d 1230. At his guilty plea hearing, Defendant acknowledged this fact; nonetheless, he went forward with his guilty pleas. Given the unique circumstances involved in this case, the trial court chose to reject the joint sentencing recommendation. In sentencing Defendant, the trial court touched on several of the factors set forth in Thibo-deaux, i.e., the gravity or dangerousness of the offense, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain. Moreover, it was within the trial court’s discretion to require that Defendant’s sentences run consecutive to the Cameron Parish sentences because the offenses were not based on the same act or transaction. We conclude that the trial court demonstrated particular justification for ordering that Defendant’s sentences run consecutively to the Cameron Parish sentences, and thus, its doing so was not an abuse of discretion.

Defendant maintains that the trial court made a substantial factual error in finding that he used threats in the commission of the offense because he did not possess a weapon at any point in any of the offenses for which he was sentenced. Defendant asserts that this fact was acknowledged by the trial court when it found that the sentencing enhancements under La.Code Crim.P. art. 893.3 were not applicable. Further, Defendant argues that the presence of weapons in the camp at the time of the offense was consistent with the parties’ intent to hunt the next morning and that there was no evidence that Defendant physically possessed, gestured toward, |7or in any manner implied that he would use a weapon during the commission of the offense.

As noted by the State, Defendant’s motion to reconsider sentence did not list as a specific ground the trial court’s alleged error in finding that he used threats in the commission of the offense. Accordingly, Defendant is precluded from urging this argument for the first time on appeal. La.Code Crim.P. art. 881.1(E); State v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862.

CONCLUSION

Defendant’s sentences are affirmed; however, the sentences are amended to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537. This matter is remanded and the trial court is instructed to note the amendment in the court minutes. Further, the trial court is ordered to correct the court minutes to reflect that the sentences are to be served without the benefit of parole.

SENTENCES AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.


text:
    STATE of Louisiana v. Paul S. HOLLAND.
    No. 07-696.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for State of Louisiana.
    Walter M. Sanchez, Lorenzi, Sanchez & Barnatt, LLP, Lake Charles, LA, for Defendant/Appellant Paul S. Holland.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Holland, 07-695 (La.App. 3 Cir. 12/5/07), 970 So.2d 1263, 2007 WL 4245701, Defendant’s sentences are affirmed; however, the sentences are amended to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537. This matter is remanded and the trial court is instructed to note the amendment in the court minutes. Further, the trial court is ordered to correct the court minutes to reflect that the sentences are to be served without the benefit of parole.

SENTENCES AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.


author: DECUIR, Judge.

text:
    Gary L. MILLER v. CONAGRA, INC.
    No. 2007-747.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      William P. Crews, Jr., Attorney at Law, Natchitoches, LA, for Defendant/Appellant, Pilgrim’s Pride Corporation.

      Craig A. Davis, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Gary L. Miller.
    Clayton E. Bailey, Baker & McKenzie, LLP, Dallas, TX, for Defendant/Appellant, Pilgrim’s Pride Corporation.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

|TThe defendant, Pilgrim’s Pride Corporation, as successor corporation to ConA-gra Poultry Company (referred to herein as “ConAgra”), appeals the judgment of the trial court holding it liable to the plaintiff, Gary Miller, for breach of contract and violations of the Louisiana Unfair Trade Practices Act (LUTPA), La.R.S. 51:1401 et seq. For the following reasons, we affirm.

Miller filed suit on July 22,1998, seeking damages for breach of a Broiler Production Agreement dated July 23, 1993, whereby Miller agreed to raise broiler chickens for a ten-year period exclusively for ConAgra. In an amended petition filed in February of 2000, Miller alleged that ConAgra’s actions constituted unfair trade practices entitling him to damages for both pecuniary and nonpecuniary losses, attorneys fees, and treble damages under state law.

Allegedly as a result of the termination of the contract, Miller was forced to declare bankruptcy, which he did in 1996. After a finding of no assets, a bankruptcy discharge was granted in 1997 and the bankruptcy matter was closed. This suit was filed the following year. After numerous delays, including continuances, pretrial hearings, a writ application to this court, and the initiation of arbitration which was never scheduled because of ConAgra’s failure to pay the necessary fees, a bench trial was held in July of 2005.

Essentially, Miller’s position was that ConAgra improperly terminated the Broiler Production Agreement after falsely accusing him of stealing chicken feed to give to his hogs. Miller alleged that ConAgra used strong-arm tactics, including the threat of criminal prosecution, to end the ten-year agreement after only six months because of ConAgra’s loss of a large scale chicken customer. ConAgra disputed the breach of contract claim, contending that termination of the contract was justified based on Miller’s theft of the chicken feed. The trial court found in Miller’s favor. [aIn written reasons for judgment, the court reviewed testimony from numerous witnesses who explained poultry farming and feeding operations, the reclamation of unused chicken feed, and the history of heavy-handedness by ConAgra among local poultry farmers. The court found that ConAgra’s defense in this case simply fell apart from a lack of documentary evidence and inconsistent testimony from witnesses. ConAgra was unable to prove not only that Miller stole feed, but also that the contract was terminated because of the alleged theft. The court found that Miller did not steal feed, owned only two hogs, had no incentive to steal feed, and would have lost income from ConAgra’s reclamation program had he stolen fresh usable supplies as alleged.

The trial court found ConAgra breached the contract with Miller unfairly, without just cause, and in bad faith. The court also found that ConAgra’s tactics violated the LUTPA, rejecting ConAgra’s exception of prescription on that issue. The court determined that ConAgra’s continuing threats against Miller and repeated refusal to provide the requisite written documentation to terminate the contract constituted continuing violations of LUT-PA, thereby preventing the running of prescription. The court assessed pecuniary damages at $559,996.41 and general damages at $75,000.00, which total was trebled pursuant to La.R.S. 51:1409(A). Attorneys fees of $238,497.18 and other costs were also awarded for a total of $2,141,249.10, plus legal interest from the date of judicial demand. The judgment was signed on January 9, 2006.

Immediately following the trial of this matter, and before the judgment was signed, this litigation was rife with activity. ConAgra filed an unsuccessful motion to stay the proceedings. Then, ConAgra removed the case to the United States Bankruptcy Court for the Western District of Louisiana, but the matter was remanded |ato state court shortly thereafter. Miller’s bankruptcy case was reopened, and his claim against ConAgra was declared by consent judgment to be the property of the bankruptcy estate, whose interest was to be determined at a later date. ConAgra unsuccessfully filed a motion to dismiss based on judicial estoppel and an exception of no right of action. After judgment on the merits was signed on January 9, 2006, ConAgra filed a motion for new trial contesting the award of attorneys fees, the applicability of LUTPA, the failure to submit the claim to arbitration, and other complaints. Miller moved to strike the motion and also filed a thorough opposition. ConAgra’s motion was denied without a hearing. ConAgra sought to associate new counsel from Texas. The trustee in Miller’s bankruptcy case enrolled in the instant suit as a party plaintiff, but he later withdrew when the bankruptcy was converted from a Chapter 7 proceeding to a Chapter 11 proceeding. The trial court, upon motion by Miller, then set the appeal bond at $5,000,000.00, which the defendant excepted to as premature and excessive. Writs were taken to this court and to the supreme court, which resulted ultimately in a $4,000,000.00 bond set on January 30, 2007. This appeal ensued.

1. Jurisdiction, right of action, estoppel

The first issue raised by ConAgra in this appeal is whether Miller is the proper party to bring this suit. ConAgra argues that Miller lacks standing, or in the alternative, has no right of action, and that only the bankruptcy trustee can properly bring this claim. ConAgra also asserts a lack of subject matter jurisdiction arguing that these claims should be brought in federal bankruptcy court. These arguments are based on the previous bankruptcy proceeding wherein Miller’s debts were discharged and the bankrupt estate was found to have no assets. Similarly, ConA-gra raises the issue of judicial estoppel. Citing Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir.2005), ConAgra contends that Miller’s failure to list the potential recovery in this tort suit as an asset in his bankruptcy case bars him from pursuing this claim, since the two positions asserted by Miller are intentionally inconsistent.

In the trial court, ConAgra actually abandoned its exceptions in favor of its judicial estoppel argument; we nevertheless briefly address all of these arguments as we find then all to be without merit. We observe first that Miller’s bankruptcy was concluded long before the instant suit was filed. There is no indication in the record that Miller was attempting to deceive the bankruptcy court; in fact, the evidence shows that while he had made some inquiries, no lawyer had agreed to take his breach of contract case at the time the bankruptcy was pending. The trial court relied on this fact to conclude that Miller’s inconsistent position taken in state court was inadvertent, and we agree. There is, likewise, no indication in the record that Miller attempted to deceive the district court, the defendant, or the attorneys involved in this state court case regarding the fact of his bankruptcy. Indeed, the evidence shows that all parties were aware of the prior bankruptcy. The rules regarding bankruptcy proceedings allow for the later addition of assets to an estate. The post trial motions in the record indicate that Miller’s bankruptcy has already been converted to allow for the distribution to creditors of the proceeds of this suit, although ConAgra’s continuing litigation ensures that such distribution is still years away. While it is true that Miller, as a bankrupt whose debts have been discharged, is now seeking to collect an award stemming from events which occurred prior to his bankruptcy, it is likewise true that the operation of federal procedural rules ensure an appropriate result. The evidentiary concerns raised by ConAgra are consequently nondecisive. We therefore reject, without further discussion, ConAgra’s arguments regarding subject matter jurisdiction, no right of action, and judicial estoppel.

|fi2. Louisiana Unfair Trade Practices Act

Miller has asserted a cause of action under the Louisiana Unfair Trade Practices Act, which provides in part:

§ 1409. Private actions
A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.

The trial court found ConAgra’s actions with regard to Miller, an independent contractor, constituted unfair trade practices and awarded damages as allowed by the statute. The trial court found prescription had not yet run because ConAgra’s unsubstantiated allegations of theft, continuing threats of criminal prosecution, and consistent refusals to end the contract according to its terms constituted a continuing tort. The court found ConAgra’s false accusations and threats against Miller continued to the time of trial, as did its failure to abide by the terms of the contract. Indeed, we observe that ConAgra’s characterization of Miller as a chicken feed thief continued post-trial and has persisted in this appeal, although ConAgra was unable to present any reliable evidence at trial to prove its allegations.

In this appeal, ConAgra argues the trial court erred in finding liability under LUT-PA because Miller’s claims have prescribed under the statute’s one year prescriptive period. ConAgra also contests the award of treble damages, suggesting | fithat untimely notification of this claim by the attorney general’s office renders the treble damage provision inapplicable.

The prescriptive period for a LUTPA claim is one year. La.R.S. 51:1409(E). While some courts have interpreted this period as a peremptive period not subject to suspension or interruption, Miller asserts that this distinction is irrelevant. See, Glod v. Baker, 04-1483 (La.App. 3 Cir. 3/23/05), 899 So.2d 642, writ denied, 05-1574 (La.1/13/06), 920 So.2d 238. He argued at trial that whether the period is prescriptive or peremptive, it has not yet begun to run because ConAgra continued, at the time of trial, to violate LUTPA. The trial court agreed and determined that the running of the one-year period was delayed as long as ConAgra’s unfair practices persisted.

We agree with this conclusion and with the rationale submitted in Benton, Benton & Benton v. LPFA, 95-1367 (La.App. 1 Cir. 4/4/96), 672 So.2d 720, writ denied, 96-1445 (La.9/13/96), 679 So.2d 110, and Fox v. Dupree, 633 So.2d 612 (La.App. 1 Cir.1993), writ denied, 94-296 (La.3/25/94), 635 So.2d 233: “[T]he per-emptive period cannot begin to run as long as the alleged violations continue.” Benton, 672 So.2d at 723. While the Glod court may have reached the correct result given its facts, we find the facts of the instant case to be quite different. The alleged unfair trade practices in Glod included the enticement of investors in a franchise agreement and the subsequent termination of that franchise agreement. No acts other than appropriate judicial filings occurred after the franchise agreement was terminated. The Glod court was correct in finding no continuous unfair trade practices sufficient to extend the one-year period in which the plaintiff could have filed suit. By contrast, in the instant case, the alleged unfair trade practices include repeated accusations against Miller and perpetual threats to bring criminal proceedings against him. The present case is clearly distinguishable from Glod. “A |7continuing tort is occasioned by continual unlawful acts and for there to be a continuing tort there must be a continuing duty owed to the plaintiff and a continuing breach of that duty by the defendant. 54 C.J.S. Limitations of Actions § 177 (1987).” Crump v. Sabine River Authority, 98-2326, p. 10 (La.6/29/99), 737 So.2d 720, 728; see also, Estate of Patout v. City of New Iberia, 01-151 (La.App. 3 Cir. 4/3/02), 813 So.2d 1248, writs denied, 02-1172, 02-1231 (La.6/21/02), 819 So.2d 335, 336. Accordingly, we find Miller’s suit was timely.

Additionally, we find no error in the trial court’s award of treble damages under LUTPA.

3. Arbitration

In this appeal, ConAgra contends the trial court erred in failing to compel arbitration as required by the contract between the parties. Arbitration proceedings were initiated; however, when the requisite fees were not timely paid and no arbitration was scheduled, Miller returned to court and sought to have the case set for trial. Both the trial court and this court on writ application denied ConAgra’s request to compel arbitration after the year-long delay caused by ConAgra’s refusal to pay the fees. ConAgra has no grounds in this appeal to request further review of those decisions.

4. Judicial interest

ConAgra complains of the trial court’s award of judicial interest from the date of judicial demand. In awarding interest from that date, the trial court observed that ConAgra’s actions throughout the litigation often served to delay the proceedings. ConAgra argues in this appeal that the plaintiffs actions likewise delayed the proceedings, as did the judicial problems in the Tenth Judicial District Court which resulted in five different judges being assigned to this ease at different times.

| ^Louisiana Code of Civil Procedure Article 1921 provides for the award of interest in a judgment “as prayed for or as provided by law.” In this case, Miller prayed for interest from the date of judicial demand. The trial court abided by that request, and we find no error in that decision. While it is true that some of the delays in these proceedings were beyond ConAgra’s control, it is likewise true that ConAgra contributed to the delays in its barrage of motions raising similar issues and its failure to respond timely in the arbitration process. Furthermore, we find the award of interest from the date of judicial demand in this breach of contract case best accomplishes the purpose of such an award:

“In other words, in cases ex delicto and ex contractu, ‘prejudgment interest’ is awarded to make an injured party whole by compensating that party for the time-value of money to which that party was entitled from the date set by the legislature, but over which the defendant, in retrospect, had wrongfully continued to exercise dominion and control while the suit was pending.” McLaughlin v. Hill City Oil Company/Jubilee Exxon, 97-577, p. 18 (La.App. 3 Cir. 10/8/97), 702 So.2d 786, 797, writ denied, 97-2797 (La.2/13/98), 706 So.2d 994. In personal injury or contract cases, damages are ascertainable from the date that a person is injured or a contract breached.

Sullivan v. Sullivan, 04-334, pp. 5-6 (La.App. 3 Cir. 12/30/04), 892 So.2d 134, 143, writ denied, 05-754 (La.5/6/05), 901 So.2d 1104.

5. Remaining issues

Our review of the record reveals no manifest error in the evidentiary rulings of the trial court nor in the trial court’s decision to adopt the findings of the plaintiffs economic expert and award damages based on his conclusions. We also find no merit to ConAgra’s belated argument that Miller’s claim should fall because his former wife is not a party to this proceeding.

[¡¡DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to ConA-gra.

AFFIRMED.