text:
    STATE of Louisiana v. George S. GREENE.
    No. 06-KA-667.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, for PlaintifPAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, and SUSAN M. CHEHARDY.

      . The victim was 13 years old at the time of trial. Her initials, and those of certain family members, are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the court to protect the identity of a crime victim who is a minor or a victim of a sex offense by using his or her initials.

   EDWARD A. DUFRESNE, Jr., Chief Judge.

|aThe Jefferson Parish Grand Jury returned an indictment on December 12, 2002, charging defendant, George Greene, with one count of aggravated rape in violation of LSA-R.S. 14:42, one count of pornography involving a child under the age of 17 in violation of LSA-R.S. 14:81.1, and one count of sexual battery upon a juvenile in violation of LSA-R.S. 14:43.1. On September 29, 2004, a twelve person jury found defendant guilty as charged on all three counts. The trial court sentenced defendant to life imprisonment for the aggravated rape conviction, ten years for the child pornography conviction, and ten years for the sexual battery conviction. The judge imposed the sentences without the benefit of parole, probation, or suspension, and also ordered that the sentences be served consecutively. Defendant now appeals.

FACTS

13At approximately 3:26 p.m. on October 21, 2002, Deputy Keith Cannizaro was dispatched to investigate a complaint of child sexual abuse. He met with B.T. (the victim’s mother), P.T. (the victim’s step-father), and S.S. (the victim). B.T. told Deputy Cannizaro that her twelve year old daughter had disclosed she had been sexually abused by defendant, who is the victim’s biological father. Deputy Cannizaro spoke to S.S. who stated defendant performed oral sex on her, had her perform oral sex on him, had intercourse with her, and took pictures of her wearing panties and in the nude. She told Deputy Canni-zaro the abuse occurred every time she visited defendant, which was approximately twice a month, and that defendant told her not to tell anyone because it was their little secret. Deputy Cannizaro instructed S.S.’s mother to take her to Children’s Hospital for an examination.

S.S.’s mother took S.S. to Children’s Hospital that same day where she was examined by Dr. Sonseeahray Bridges in the emergency room. According to Dr. Bridges, S.S. stated her father had touched her in inappropriate ways resulting in penetrating vaginal and oral sex. Dr. Bridges’ physical examination of S.S. was unremarkable. She noted a fold of hymen tissue which was either a normal variant or a possible tear that healed. She stated the variant was not necessarily indicative of sexual abuse. Dr. Bridges explained that less than 20% of sexual abuse victims show physical signs of abuse. As a result of the exam, Dr. Bridges ordered routine labs and tests to test for sexual diseases and requested social services be contacted.

Meanwhile, Detective Scott Guillory obtained a search warrant for defendant’s home. Among the items seized were several pornographic videotapes and magazines. At some point during the search, defendant agreed to accompany Detective Guillory to the Detective Bureau where he gave three taped statements. |4In his statements, defendant admitted having sexual contact with S.S. when she was eleven years old. He specifically admitted having oral sex with her, vaginal-penile contact, and inserting a hot dog in her rectum and moving it in and out. He stated S.S. instigated the oral sex and the vaginal-penile contact.

Approximately one week later, the victim was taken to the Child Advocacy Center (CAC) where a videotaped interview, which was played for the jury during trial, was conducted by Omalee Gordon. At trial, S.S. testified that she met defendant, her biological father, when she was approximately four years old. Shortly thereafter, she started visiting him at his home about twice a month during which time he touched her private areas, which she described as her “tulip and twat.” S.S. testified defendant put his penis in her mouth and told her to suck or lick it, inserted a hot dog into her butt, showed her magazines of naked people and movies of people “doing it,” took pictures of her wearing a thong after instructing her to lean over and hold her butt cheeks open, and put his penis inside her “twat.” She stated the last incident of abuse occurred Labor Day weekend in 2002.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant contends that the trial court erred by allowing the state to introduce evidence of other crimes. Defendant specifically argues the trial court erred in allowing evidence relating to prior sexual abuse committed by defendant on T.L., his stepdaughter, and B.G., his biological daughter. Prior to trial, the state filed a notice of intent to use evidence of similar crimes, under LSA-C.E. arts. 404(B) and 412.2. After several hearings, the trial court granted the motion to allow the state to present evidence of defendant’s past sexual acts.

At trial, the state presented the testimony of T.L. and B.G. and played the videotaped interview each gave to the Child Advocacy Center in 1992. T.L., who | fiwas twenty-three years old at the time of trial, testified defendant is her stepfather whom she has known since she was eight or nine years old. She stated defendant started touching her in inappropriate ways after she, her mother, and brother, moved in with defendant when T.L. was almost ten years old. She explained he had a fetish with her butt and that he touched and rubbed it with his hands and his penis. T.L. testified defendant would ejaculate either on her body or in a towel. She denied defendant ever “put himself inside of [her].”

B.G., who was twenty-six years old at the time of trial, testified defendant is her biological father. She stated defendant sexually abused her from the time she was eight years old until right before she turned thirteen. She explained defendant rubbed his penis on the walls of her vagina until he ejaculated.

Defendant now argues that the trial court erred in allowing this other crimes evidence. He contends that the evidence is inadmissible under LSA-C.E. art. 404(B), which prohibits evidence of lustful disposition. He also maintains the evidence is inadmissible under LSA-C.E. art. 412.2 because the prior sexual assaults occurred before the article was enacted and prior to its August 15, 2001 effective date. Defendant asserts the admission of this other crimes evidence under Article 412.2 violates the ex post facto laws.

We first note that defendant did not raise this particular argument in the trial court. Although defendant challenged the retroactivity of LSA-C.E. art. 412.2 at trial, he argued it was inapplicable because there was no evidence the charged offense occurred after the article’s effective date. Defendant never argued the article was inapplicable because the past sexual acts occurred before the effective date of the article, which is the sole basis of his argument on appeal. We note that a new ground for an objection cannot be presented for the first time on appeal. State 6v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 664-665, writ denied, 06-1183 (La.11/17/06), 942 So.2d 531.

Nonetheless, we have considered defendant’s arguments and find them to be without merit. LSA-C.E. art. 412.2, which became effective on August 15, 2001, provides in pertinent part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Article I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272, 1280. The United States Supreme Court has identified four categories of law that violate the ex post facto prohibition: 1) any law that makes an action criminal that was innocent when done and before the passing of the law, 2) any law that aggravates a crime or makes it greater than it was when committed, 3) any law that changes the punishment and inflicts greater punishment than the law provided when the crime was committed, and 4) any law that alters the legal rules of evidence and requires less or different testimony in order to obtain a conviction than was required at the time the offense was committed. Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 1697, 149 L.Ed.2d 697 (2001).

In State ex rel. Olivieri v. State, 00-172 (La.2/21/01), 779 So.2d 735, 744, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), the Louisiana Supreme Court held that in determining whether there has been an ex post facto violation, the analysis should focus on whether the new law redefines criminal 17conduct or increases the penalty by which it is punished, and not whether the defendant has simply been disadvantaged. State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 653, writ denied, 05-0597 (La.6/3/05), 903 So.2d 455.

Although the Louisiana Supreme Court has yet to decide whether the retroactive application of Article 412.2 violates the ex post facto prohibition, the Third Circuit has held that its retroactive application does not constitute an ex post facto violation. State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, — U.S. -, 127 S.Ct. 668, 166 L.Ed.2d 514 (U.S.11/27/06). In so concluding, the Third Circuit stated:

Article 412.2 did not alter the amount of proof required in the Defendant’s case as it merely pertains to the type of evidence which may be introduced. Pri- or to the enactment of Article 412.2, the testimony at issue was admissible if it fell within an exception under La.Code Evid. Art. 404(B). Article 412.2 merely removed that restriction.

State v. Willis, supra at 383.

Despite defendant’s contention, it does not appear the retroactivity of Article 412.2 is at issue in the present case because there is evidence the charged offense occurred after the article’s effective date. In particular, the victim testified the last incident of abuse occurred Labor Day weekend before her twelfth birthday, which was in 2002. Additionally, she stated the abuse occurred “just about every time” she went to his house which was approximately once a month from the time she was four or five until the Labor Day before her twelfth birthday. In his own statement, defendant admitted he sexually abused the victim when she was around eleven years old. The victim turned eleven on October 8, 2001, which was after Article 412.2 was enacted. In fact, defendant denied any sexual abuse occurred prior to the victim turning eleven.

|sThe fact the past sexual acts occurred prior to the effective date of Article 412.2 is inconsequential. As noted by State v. Willis, supra, Article 412.2 did not alter the quantum of evidence required for a conviction but rather it simply expanded the type of evidence which may be introduced in the prosecution of certain sex offenses. Thus, even if retroactivity were an issue, ex post facto laws would not prohibit the application of Article 412.2 to the present case.

Accordingly, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues the trial court erred in allowing inadmissible hearsay testimony by Deputy Cannizaro, Detective Dyess, Omalee Gordon, Dr. Sonseeahray Bridges, and Dr. Ellie Wetsman about what S.S. told them regarding what defendant did to her. Defendant asserts only the first report of sexual abuse, which in this case was made to B.T., falls within the LSA-C.E. art. 801(D)(1)(d) exception to hearsay. He further asserts it was not harmless error because the jury was undoubtedly influenced by the numerous repetitions of S.S.’s allegations.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801(C). Subsection (D) of LSA-C.E. art. 801 sets forth certain statements that are not considered hearsay. LSA-C.E. art. 801(D) provides in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
«L&T ⅜ * *
(b) Consistent with his testimony and is offered to rebut an express of implied charge against him of recent fabrication or improper influence or motive;
⅜ ⅜ * ⅜
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.

Deputy Keith Cannizaro

The record clearly shows S.S. first reported the sexual abuse to her mother, B.T. At trial, the state first presented the testimony of S.S. and then her mother, B.T. The state next presented Deputy Cannizaro’s testimony. During direct examination, the state asked him if he had a chance to speak with S.S. when he first arrived to investigate the initial complaint of child sexual abuse. Defense counsel immediately objected and argued anything 5.5. told Deputy Cannizaro was hearsay. The state asserted it was admissible as a prior consistent statement offered to rebut defendant’s implied charge of recent fabrication during the cross-examination of the victim. The trial court overruled the objection and allowed the testimony. Deputy Cannizaro then testified that S.S. told him that defendant performed oral sex on her, had her perform oral sex on him, and had intercourse with her. He also stated S.S. told him that defendant took pictures of her wearing panties and nude.

On direct examination, the victim testified defendant put his penis inside her “twat.” While cross-examining the victim, defense counsel implicated she was fabricating certain parts of her testimony. In particular, defense counsel inquired into 5.5.’s reports of sexual penetration. He asked if she remembered that during her CAC interview she was asked “about four or five times” whether defendant had actually put his penis inside of her and that she responded no.

|inIn the present case, defendant sought to discredit the victim during cross-examination by suggesting her testimony was a recent fabrication because she testified there was penetration but previously denied penetration during her CAC interview. Deputy Cannizaro’s testimony that the victim told him there had been penetration bolsters that of the victim. Thus, Deputy Cannizaro’s testimony falls under the hearsay exception set forth in LSA-C.E. art. 804(D)(1)(b), which allows testimony that is consistent with that of the declarant and which is offered to rebut an implication of recent fabrication. See State v. King, 96-1303 (La.App. 3 Cir. 4/2/97), 692 So.2d 1296, 1301-1302, where the Third Circuit concluded the detective’s testimony, as to statements the minor victim made to him, was admissible under LSA-C.E. art. 801(D)(1)(b) after defense counsel raised implications of fabrication while cross-examining the victim.

Additionally, a police officer may refer to statements made to him by other persons in the context of explaining his own actions. Such statements are admissible as they explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer as opposed to the truth of the assertion. State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1078, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055.

Deputy Cannizaro was the investigating officer who responded to the initial complaint of child sexual abuse. His testimony about what S.S. and her mother told him about the incidents was very general and was seemingly offered to explain the steps of the investigation. Accordingly, the trial court did not err in allowing the testimony of Deputy Cannizaro as an explanation of the steps of his investigation and under LSA-C.E. art. 804(D)(1)(b).

| nZ)rs. Sonseeahray Bridges and Elite Wetsman

Defendant next challenges the testimony of Drs. Sonseeahray Bridges and Ellie Wetsman. After Deputy Cannizaro’s testimony, the state called Dr. Bridges. Before Dr. Bridges even took the stand, defendant objected to her anticipated testimony, and that of Dr. Wetsman, about what the victim told them during the medical exam. The trial court sustained the objection and the state noticed its intent to file a supervisory writ. This court granted the writ stating the trial court erred in sustaining defendant’s objection to the doctors’ testimony as such testimony did not fall outside LSA-C.E. art. 803(4). State v. Greene, Writ No. 04-K-1142. In accordance with the writ disposition, Drs. Bridges and Wetsman were both allowed to testify regarding the history given by S.S. at the time of examination.

Under the discretionary principle of law of the ease, an appellate court will generally not reconsider prior rulings made in the same case on subsequent appeal. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial court record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, — U.S. -, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

At the time this court decided the writ, Drs. Bridges and Wetsman had not testified. In light of the fact that we now have the testimony at issue available for review, we decline to apply the law of the case doctrine and choose to reconsider this issue.

LSA-C.E. art. 803(4) provides the following exception to the hearsay rule, even though the declarant is available as a witness:

11⅞(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause of external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.

Official Comment (b) under this article states, “[t]he phrase ‘reasonably pertinent to treatment or diagnosis in connection with treatment’ has been interpreted to limit the scope of this exception to the kind of statements that are usually relied upon by physicians in their diagnosis and treatment of patients. Thus, statements as to the cause of a condition not reasonably pertinent to diagnosis or treatment of it are not within the ambit of this exception.”

Having reviewed the testimony of Drs. Bridges and Wetsman, we find it questionable whether their testimony regarding what the victim told them by way of a history is admissible under LSA-C.E. art. 803(4). Dr. Bridges examined the victim after she was referred by Deputy Canniza-ro close to two months after the last incident of alleged abuse. She examined the victim and ordered routine lab work dictated by the allegation of sexual abuse. The nursing supervisor was contacted for the necessary referrals to social services and pictures were collected. From her testimony, it seems that the principal purpose of Dr. Bridges’ examination of the victim was forensic.

Likewise, Dr. Wetsman’s examination, one week later, appeared to be for forensic purposes. Dr. Wetsman testified she saw the victim upon referral from the emergency room. She stated she examined the victim only one time and it was for the purpose of evaluating her for sexual abuse. A copy of the report she prepared in connection with her examination was sent to the Jefferson Parish Sheriffs Office. Her physical exam of the victim showed a thickened fold on the hymen but 11snothing was found in the victim’s physical exam that either confirmed or denied sexual abuse. Although Dr. Wetsman testified on re-direct examination that the purpose of her exam was for diagnosis and treatment, such purpose was apparently subsidiary. See State v. Harris, 99-2845 (La.App. 4 Cir. 1/24/01), 781 So.2d 73, writ denied, 01-1225 (La.9/26/03), 854 So.2d 342, where the Fourth Circuit found a doctor’s testimony regarding what the victim said during the examination to be inadmissible under LSA-C.E. art. 803(4). The court concluded the principal purpose of the doctor’s examination was forensic, noting the victim had been referred to the doctor by the police four weeks after the last incident of abuse and the victim did not receive any medical treatment as a result of the doctor’s examination. See also State v. Coleman, 95-1890 (La.App. 4 Cir. 5/1/96), 673 So.2d 1283, writ denied, 97-42 (La.10/31/97), 703 So.2d 11.

Even assuming Drs. Bridges and Wets-man’s testimony regarding what the victim told them was inadmissible hearsay, any error in admitting this evidence can be deemed harmless. S.S. herself testified in detail at trial about the incidents she recounted to both Drs. Bridges and Wets-man. The testimony of Drs. Bridges and Wetsman about the statements the victim made during their examinations of her was consistent with the victim’s own testimony. Additionally, defendant made several incul-patory statements. Thus, the evidence against defendant was very strong and it cannot be said the improperly admitted testimony of either Dr. Bridges or Dr. Wetsman contributed to the guilty verdict.

Detective Larry Dyess

Defendant also challenges the testimony of Detective Dyess, who was the assisting officer in the investigation. Detective Dyess testified he helped execute the search warrant of defendant’s home and followed up with the condition of the | uvictim at Children’s Hospital. He stated that during the follow up at the hospital, he spoke to the victim, her mother, and the doctor. Thereafter, he returned to the detective bureau and relayed the information he obtained at the hospital to Detective Guillory, who was in the process of interviewing defendant. Based on the information he possessed, Detective Dyess testified he believed defendant had omitted the most sensitive information from his first two statements. He proceeded to interview defendant which resulted in defendant’s third statement.

On direct examination, the prosecutor asked Detective Dyess what issue had defendant omitted. Defense counsel objected on the basis of hearsay and argued the question sought information about what the witness was told at the hospital. The state contended it was not seeking that information but was only trying to establish what the defendant told Detective Dyess during the pre-interview to the third statement. Direct examination resumed and the line of questioning focused on what additional information defendant divulged to Detective Dyess during the pre-interview, which was the fact there was vaginal penile penetration. There were no questions and no testimony about what Detective Dyess was told at the hospital and by whom and no additional objections.

The only testimony about what Detective Dyess was told at the hospital was elicited on cross-examination by defense counsel and related to the allegations involving a hot dog. The only hearsay elicited was by the defendant and he did not object to the witness’s response. Given these circumstances, there is nothing for this court to review, and defendant is not entitled to relief on this issue. See, State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 447-448, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213, where this court found no merit in defendant’s claim of inadmissible hearsay when the testimony was elicited by defense counsel on cross-examination and there was no contemporaneous 11Bobjection. Furthermore, this testimony was harmless as it was cumulative and corroborative of other evidence at trial.

Omalee Gordon

Finally, defendant contends Oma-lee Gordon was also erroneously allowed to testify what the victim told her through the presentation of the CAC videotaped interview. It is unclear whether defendant is attempting to challenge the admissibility of the videotaped interview or Mrs. Gordon’s explanation of the interview during her trial testimony.

Nonetheless, as noted by the state, defendant failed to object to the admissibility of the videotaped interview of the victim or any portion of Mrs. Gordon’s testimony. In fact, defense counsel specifically stated he had no objection to the admittance of the videotape into evidence.

On direct examination, Mrs. Gordon testified only as to the interview procedure. The videotaped interview was played for the jury during Mrs. Gordon’s testimony but she was not asked and did not testify as to what the victim told her during the interview. However, on cross-examination, defense counsel questioned Mrs. Gordon about specific questions she asked the victim and the victim’s responses. Accordingly, defendant is not entitled to relief because he did not make an objection to the testimony, and in fact, he elicited the complained of testimony on cross-examination of the witness. State v. Cho, supra; see also, State v. Humphrey, 96-838 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1086, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35.

|1fiBased on the foregoing discussion, we find that all of the arguments raised by defendant in this assignment of error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assigned error, defendant argues the trial court erred in accepting Dr. Wetsman as an expert in forensic pediatrics because the area is not recognized by the American Academy of Pediatrics for purposes of board certification. He contends a Daubert hearing should have been held to determine whether the field of forensic pediatrics existed.

At trial, the state sought to qualify Dr. Wetsman as an expert in the field of child sexual abuse and forensic pediatrics. It established that Dr. Wetsman was board certified in pediatrics and had been previously qualified in other courts as an expert in pediatrics and child sexual abuse. Defense counsel traversed Dr. Wetsman’s qualifications and established there was no board certification for forensic pediatrics. Dr. Wetsman explained a post training fellowship was recently developed in forensic pediatrics and included the area of child sexual abuse. She stated forensic pediatrics is a sub-set of pediatrics and that work is being done to establish board certification for forensics. She further explained that the American Academy of Pediatrics has a section on child abuse and neglect.

Defense counsel stated he had no objection to Dr. Wetsman being accepted as an expert in pediatrics but objected to her being accepted as an expert in the field of forensic pediatrics or child abuse under the Daubert standard because it was not a recognized medical field. Defense counsel urged the trial court not to recognize the specialized field of forensic pediatrics and to limit Dr. Wetsman to an expert in pediatrics. The trial court ultimately accepted Dr. Wetsman as an 117expert as offered, which was in the field of forensic pediatrics and child sexual abuse.

Defendant’s main argument is that the trial court erred in recognizing the field of forensic pediatrics and child sexual abuse under the Daubert standards. He seems to suggest there is no valid scientific connection to the field of forensic pediatrics and child sexual abuse because it is not a field for which a doctor can be board certified.

In State v. Foret, 628 So.2d 1116 (La.1998), the Louisiana Supreme Court adopted the test for reliability of expert scientific testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as a guide to determining the admissibility of expert testimony under LSA-C.E. art. 702. The Louisiana Supreme Court stated that the trial court was “to act in a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’ ” State v. Foret, supra at 1122, quoting Daubert, 113 S.Ct. at 2796. The court explained that “[t]he reliability of expert testimony is to be ensured by a requirement that there be a ‘valid scientific connection to the pertinent inquiry as a precondition to admissibility.’ ” Id. It stated “[t]his connection is to be examined in light of a ‘preliminary assessment’ by the trial court of ‘whether the reasoning or methodology properly can be applied to the facts in issue.’ ” Id.

Defendant does not state to which portion of Dr. Wetsman’s testimony he objects. Dr. Wetsman’s testimony primarily consisted of her examination of the victim and the diagnostic conclusions she reached as a medical doctor based on the examination. The only testimony Dr. Wetsman offered outside her examination of the victim pertained to the phenomenon of delayed disclosure. The Louisiana 11sSupreme Court has recognized the validity and admissibility of expert testimony relating to delayed disclosure in cases involving child abuse. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697, 708. Additionally, Louisiana courts have long accepted expert opinion in the field of forensic pediatrics and child abuse. See, State v. Givens, 03-2071 (La.App. 4 Cir. 3/24/04), 871 So.2d 470, where Dr. Wetsman was previously qualified as an expert in forensic pediatrics; State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141; State v. Barnes, 01-113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, writ denied, 02-0159 (La.1/31/03), 836 So.2d 56; State v. Brockel, 98-1089 (La.App. 5 Cir. 3/30/99), 733 So.2d 640, writ denied, 99-1516 (La.10/15/99), 748 So.2d 469.

In the present case, we cannot say that the trial court abandoned its role as a gatekeeper, abused its discretion, or made a manifestly erroneous determination when he qualified Dr. Wetsman in the field of forensic pediatrics and child sexual abuse. During defense counsel’s traversal of her qualifications, Dr. Wetsman explained child abuse is a sub-set of pediatrics, that a post-training fellowship exists in child abuse, and that work was being done towards establishing board certification for forensics. Defendant fails to show how the lack of an opportunity for board certification in forensic pediatrics or child abuse renders the fields scientifically unreliable.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues the consecutive nature of his sentences, which exceed natural life, are excessive. He acknowledges that consecutive sentences arising from a single course of conduct are not per se excessive but contends particular justification for the consecutive sentences is required. He asserts the trial court failed to give reasons for imposing his sentences consecutively.

| ^Defendant filed a motion to reconsider sentence but failed to state a basis for the motion as required by LSA-C.Cr.P. art. 881.1. The failure to state the specific grounds upon which the motion is based limits a defendant to a bare review of the sentence for constitutional exces-siveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342. Defendant does not contend that any sentence on its own is excessive. Rather, he urges that the consecutive nature of his sentences make them excessive. This court has recognized that the excessiveness of a consecutive sentence is not included in a bare constitutional review. State v. Christoff, 00-1823, (La.App. 5 Cir. 5/30/01), 788 So.2d 660, 666. Accordingly, defendant is precluded from challenging the excessiveness of his consecutive sentences. See, State v. Smith, 04-199 (La.App. 5 Cir. 6/29/04), 877 So.2d 1123, 1135, writ denied, 04-2081 (La.1/7/05), 891 So.2d 669, and State v. Watson, 02-1154 (La.App. 5 Cir. 3/25/03), 844 So.2d 198, 212, writ denied, 03-1276 (La.5/14/04), 872 So.2d 506.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Pursuant to our review, we note that the trial court failed to completely advise defendant of the prescriptive period for filing an application for post-conviction relief. According to the transcript, the trial judge advised defendant that he had “two years to file for post conviction relief.” This court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Thus, we remand the case and instruct the trial court to advise defendant by written notice within ten days of the rendition of this opinion that he has two years from the date his conviction and | gpsentence become final to file an application for post-conviction relief, and then to file written proof in the record that defendant received the notice. See, State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 835.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences and remand the matter with instructions in accordance with this opinion.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . See, for reference and analogy, State v. Mourra, 06-133 (La.App. 5 Cir. 8/29/06), 940 So.2d 29.

      . Despite finding the doctor's testimony to be inadmissible, the Fourth Circuit, in both Harris and Coleman, ultimately concluded the error was harmless.

      . It is noted LSA-R.S. 15:440.3 and 15:440.4 permit the videotaped interview of a child sexual abuse victim into evidence as an exception to the hearsay rule, provided certain requirements are met. Defendant does not assert the statutory requirements were not met.

      . Defense counsel lodged separate objections to the admission of the videotaped interviews of T.L. and B.G.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Levon JOHNSON, Jr.
    No. 06-CA-647.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Ray A. Bright, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| j,The Defendant, Levon Johnson, Jr., appeals from a judgment dismissing his petition for the return of money seized by the Jefferson Parish Sheriffs Department on behalf of the State of Louisiana following the Defendant’s arrest for possession of marijuana. We affirm.

The Defendant was arrested on December 11, 2003 for possession of marijuana. During the search of his house on the same day, various items and money were seized by the Jefferson Parish police officers conducting the search. Subsequently, the State filed a Notice of Pending Forfeiture. On December 22, 2003, the Defendant filed an Application for Return of Illegally Seized Money on the basis that the Defendant is the sole owner of the money; it was no longer needed by the court as evidence, and it is exempt from seizure under La.R.S. |⅞40:2605. After various continuances, argument on the Defendant’s application was heard on July 13, 2004. The trial judge denied the application based on the Defendant’s failure to comply with the service requirements of La.R.S. 40:2610.

On appeal, the Defendant contends that the trial judge erred in dismissing the petition.

The Defendant does not deny that service under La.R.S. 40:2610 A requires the claim to be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested. However, he argues that La.R.S. 40:2610 and La.R.S. 40:2611 provide two separate ways in which to challenge the forfeiture. In addition, he refers to the State’s Notice of Pending Seizure, which he contends informs the claimant of three ways to assert the claim. The Defendant argued at trial that he manually delivered the petition to the Jefferson Parish District Attorney’s office. Although he was unable to name the person who accepted the delivery, the Defendant contends that manual delivery should be sufficient. The Defendant also cites State v. 790 Cash, 36,107 (La.App. 2nd Cir.6/12/02), 821 So.2d 609, to support his contention that service by certified mail, return receipt requested was not necessary.

The State asserts that R.S. 40:2611 clearly states that in order to make a claim under the forfeiture statutes, a claimant must follow the requirements set out in R.S. 40:2610 A and B, which was not done here. It contends that the Defendant’s failure to properly serve the D.A. or to attach an affidavit to the claim defeat the Defendant’s claim.

|4We first note that this is a designated record and a copy of the State’s Notice of Pending Forfeiture Notice was not included in the designation. In the absence of the document, we cannot consider arguments related to the notice’s language.

Second, we find that the Defendant’s reliance on State v. 790 Cash, 36,107 (La.App. 2nd Cir.6/12/02), 821 So.2d 609 is misplaced. The case is distinguishable. There, the State did not object until the appeal that the defendant’s motion was not in compliance with R.S. 40:2610. Under those circumstances, the court found that the State waived any objection to the procedural defect. In this case, the State contested the validity of the claim form before the trial court.

Third, our review of La.R.S. 40:2601 et seq., the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, shows that these statutes govern the way a claim is to be made to recover forfeited goods or money. La.R.S. 40:2611 C, provides a defendant with the right to challenge the seizure of items or money by the State, but in doing so, the claimant must follow the “requirements for claims in Section 2610 of this Chapter....” R.S. 40:2610 states:

A. Only an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture. No extension of time for the filing of a claim shall be granted.
B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has |fiauthority to administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:
(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transfer- or, and the circumstances of the claimant’s acquisition of the interest in the property.
(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.
[Emphasis added.]

In regard to the State’s argument that the Defendant failed to provide an affidavit, we point out that the claim itself must be in affidavit form. See: R.S. 40:2610 B. The petition in this case is in proper form and the contents comply with R.S. 40:2610 B. Nevertheless, the lack of proper service that was objected to by the State is a procedural defect that cannot be cured. The statute uses the word “shall.” The word “shall” means that the service by certified mail, return receipt requested is mandatory, not discretionary. Thus, we find that the trial judge did not err in dismissing the Defendant’s claim for failing to comply with the service requirement of R.S. 40:2610 A.

The counsel for Appellant, who failed to comply with the requirements to preserve oral argument of the appeal, appeared in court on the morning set for argument, and made an oral motion to reinstate argument. That motion was taken under advisement and is hereby denied

Accordingly, the motion to reinstate oral argument is denied. The judgment of the trial court is hereby affirmed.

MOTION DENIED; JUDGMENT AFFIRMED.

      . The Notice of Pending Forfeiture filed by the State is not in this record. The parties refer to it in the oral argument at the trial court hearing, and in appellate briefs.

      . The State asserts that the issue is also moot since it already obtained a judgment forfeiting the money. However, as there is no evidence of that in this record, we cannot consider that argument.

      . La.R.S. 40:2611 C provides:
      If property is seized ... without a previous judicial determination of probable cause or order of forfeiture or a hearing under the provisions of Section 2613 of this Chapter, the court, on an application filed by an owner of or interest holder in the property, ... after complying with the requirements for claims in Section 2610 of this Chapter, ... may issue an order to show cause to the seizing agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists.... If the court finds that there is no probable cause for forfeiture of the property, the property shall be released.... [Emphasis added.]

      . We note that there were allegations in the hearing and in briefs that the pleadings filed by the parties were in two different courts, that there was some confusion regarding the cases, and that the State failed to serve the Defendant with its pleading. However, none of those facts are in our, record or were placed into evidence in the trial court. Thus, we will not consider those statements.


author: SUSAN M. CHEHARDY, Judge.

text:
    Jo Ann R. PONTHIER, Wayne Ponthier, Irene Ponthier and Brenda A. Sage v. Vincent M. MANALLA, Manalla, Bridges & Hogan, Inc., Creative Planning Associates, Inc., Paul G. Bruns and National Communications Marketing, Inc.
    No. 06-CA-632.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      A. Scott Tillery, Tillery & Tillery, Me-tairie, Louisiana, for Plaintiffs/Appellees, Jo Ann Ponthier, Wayne Ponthier, Irene Ponthier, and Brenda A. Sage.
    William W. Hall, William W. Hall & Associates, Metairie, Louisiana, for Defendants/Appellants, Paul G. Bruns and Creative Planning Associates, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| ¡¿This is a suit for negligent misrepresentation and violation of the Louisiana Securities Law, in which the trial court found the defendants liable and awarded damages to the plaintiffs. We reverse and render.

PROCEEDINGS BELOW

On July 21, 2001, Jo Ann Ponthier, Wayne Ponthier, Irene L. Ponthier, and Brenda A. Sage filed a petition for damages against Vincent M. Manalla, Manalla, Bridges & Hogan, Inc. (hereafter “MBH”), Paul G. Bruns, Creative Planning Associates, Inc. (“CPA”), and National Communications Marketing, Inc. (“NCMI”). The plaintiffs alleged that in 1999 defendants Manalla and Bruns persuaded them to invest money in a scheme to buy pay telephones from NCMI, but the plaintiffs ultimately lost all the money they invested when ETS Payphones, Inc., the company that was managing the pay telephones for the plaintiffs, went bankrupt and the telephones were seized.

The plaintiffs asserted the defendants either knew or should have known of the true situation regarding the pay phones and the soundness of the investment, but failed to provide full and correct information to the plaintiffs, to monitor the financial status of the companies involved, and to advise petitioners of the truth regarding their investment. The plaintiffs alleged further that the defendants |snegligently misrepresented the true facts and circumstances of the investment, breached their fiduciary relationship to the plaintiffs, failed to fully and properly investigate the investment, and to relay accurate information to the plaintiffs.

In addition, the plaintiffs alleged that the defendants violated the Louisiana Securities Law, La.R.S. 51:701, et seq. They alleged that the defendants made false or misleading statements of material facts and/or failed to state material facts necessary in order to make their statements not misleading, when the plaintiffs did not know of the untruth or omission, and the defendants knew or in the exercise of reasonable diligence could have known of the untruth or omission. The plaintiffs sought to recover the money they had invested, as well as damages for inconvenience, damage to their credit, embarrassment and humiliation resulting from defendants’ negligent misrepresentation regarding the investment.

Bruns’ defense was that the duty to provide correct, honest information of the facts and circumstances of the payphone sales was owed by ETS. Bruns argued that he had no knowledge the information was incorrect; he simply passed on information supplied by ETS that he believed to be correct. He contended he had investigated ETS’s business and arrangements thoroughly and, despite that investigation, he and others were misled by ETS. He also argued that the plaintiffs did not establish they sustained any damages, because the bankruptcy court had recognized that the investors have an ownership interest in the entity emerging from the bankruptcy. He asserted that the plaintiffs did not establish the elements needed to prove that Bruns had violated the Louisiana Blue Sky Law (Louisiana Securities Law).

14Pefendants Manalla and MBH did not file an answer. On November 13, 2001, the plaintiffs obtained a default judgment against Manalla and MBH that awarded the plaintiffs $126,000.00 in special damages and $70,000.00 in general damages, for a total of $196,000.00. The judgment reserved the plaintiffs’ rights against Paul Bruns, CPA, and NCMI.

The plaintiffs’ claims against Bruns and CPA went to a bench trial on April 19, 2005, before a different judge than the judge who heard the testimony on the default judgment against Manalla and MBH. The judge did not render his decision until April 3, 2006, almost a year after the trial. The court found in favor of the plaintiffs and against the defendants, Paul G. Bruns and Creative Planning Associates, Inc., and rendered judgment in the following amounts:

Special damages
Wayne Ponthier and Jo Ann Ponthier $ 64,000.00
Wayne Ponthier and Succession of Irene Ponthier $ 21,000.00
Succession of Irene Ponthier and Brenda A. Sage $ 21,000.00
General Damages
Wayne Ponthier $ 15,000.00
Jo Ann Ponthier $ 15,000.00
Succession of Irene Ponthier $ 25,000.00
Brenda A. Sage $ 15,000.00
TOTAL $176,000.00

The defendants made a timely request for written reasons for judgment, but the trial court never complied with the request.

Bruns and CPA have taken a suspensive appeal. On appeal they assert the trial court erred in the following respects: (1) in finding that Bruns owed a duty to the plaintiffs; (2) in finding that Bruns knew or should have known that any | ¡¡statements he made were misleading or untrue; (3) in finding Bruns liable under Louisiana’s Blue Sky Law; (4) in finding CPA liable; (5) in awarding plaintiffs full repayment of their purchase price without deducting the income they received and continue to receive; and (6) in making any award for mental anguish to plaintiff Brenda Sage.

FACTS

At trial the testimony established that NCMI sold payphones to the public via independent contractor sales representatives such as Vincent Manalla and Paul Bruns. The basic arrangement was as follows: The investor would pay $7,000.00 to NCMI for each pay telephone purchased. The investor then would lease the pay telephone to ETS Payphones, Inc. (“ETS”), which would manage, control and maintain the telephones. ETS would pay the investor $82.00 rental per telephone per month for five years. The plaintiffs’ understanding was that the income would be tax-free. After five years, the lease would end and the investor either would make a new deal with ETS, or would arrange with another company for management of the telephones.

The Ponthiers (Wayne Ponthier; his wife, Jo Ann Ponthier; his mother, Irene Ponthier; and his sister, Brenda A. Sage) all were persuaded to participate in the scheme and invested enough money to buy multiple pay telephones. For several months they received checks according to the terms of their agreements. In October 2001, however, a check was returned for non-sufficient funds and the plaintiffs then received a letter from ETS announcing that it was filing for Chapter 11 bankruptcy. The plaintiffs learned subsequently that the company had serious | (¡financial problems and that it was claiming in the bankruptcy proceedings that it owned the telephones the plaintiffs thought they had purchased.

By the time the case was tried, Irene Ponthier had died but her succession had not been opened judicially. The parties stipulated that the unopened succession of Irene Ponthier would be substituted as party plaintiff for Irene Ponthier and that plaintiffs counsel was designated as counsel for the unopened succession for purposes of this litigation.

Wayne Ponthier testified he knew Vincent Manalla because Manalla was an insurance agent who had sold him health insurance. Wayne Ponthier also was acquainted with Paul Bruns through Manal-la. Manalla called him up and told him about an investment plan with ETS Payphones. Wayne Ponthier was interested, and Manalla and Bruns came to his home to explain the program to him. That was the first time he met Bruns. Bruns gave Wayne Ponthier his business card, which read, “Creative Planning and Associates, Inc., Insurance and Financial |7Consulting.” When Wayne Ponthier decided to purchase some payphones, his checks were made out to NCMI, and he handed the checks to Bruns and Manalla.

According to Wayne Ponthier, Bruns said he was investing in payphones himself. He told Wayne Ponthier he had gone to the company and checked it out and that it was sound. Bruns said he had met its principal, Charles Edwards, and had a personal relationship with him. He told Wayne Ponthier, who is a Church of God minister, that Edwards was a Christian man; he showed Wayne Ponthier letters from Edwards in which Edwards talked about Christianity and the Lord. Wayne Ponthier said that influenced him to invest in the pay phones, because it made him believe what they said about Edwards was true.

Wayne Ponthier said Bruns’ Creative Planning Associates business card was in the promotional folder given to him, in the slot for a business card, and Bruns never mentioned anything to him about a company called Bruns Communications. 1

Based on the representations by Manal-la and Bruns, Wayne Ponthier, his wife, his mother, and his sister all decided to invest in the payphone scheme. Wayne Ponthier and his wife invested a total of $84,000.00; Ponthier’s mother invested $42,000.00, partnering with her son and her daughter on two equal investments of $21,000.00 each.

Wayne Ponthier testified he received $82.00 per month for each phone, a total of $328.00 a month, through October 2000. In October 2000 he received a notice ETS had filed for bankruptcy. He contacted Manalla, who told him he knew no more about it. When Wayne Ponthier asked Manalla about recovering the phones, Ma-nalla told him “they” were freezing all the equipment and were planning to sell the equipment to pay off the debts. Manalla was unable to answer his questions about how property that belonged to him and other purchasers of the phones could be seized.

IsWayne Ponthier had no contact with Bruns except on the three visits Bruns made with Manalla before to the plaintiffs’ buying the phones. When they were talking to him about the program, he got the idea that Manalla was a salesman and was new with the company, and that Bruns knew more about the plan and was there to help Manalla make the presentations to the Ponthiers. Wayne Ponthier did not consult any other financial people before making the investment, because Bruns’ card said he was a financial consultant. He trusted Manalla because he had known him for at least a year. He trusted Bruns because Manalla “gave his stamp of approval with him.”

Wayne Ponthier did not consult any other professionals before deciding to make the investment. Nor did he call the offices of the Better Business Bureau, the attorney general, or the district attorney. Wayne Ponthier said he felt that Manalla and Bruns could have investigated the plan more, because he found out later that other pay phone companies sell phones that are bonded.

Asked to elaborate on what Bruns told him about his investigations into ETS, Wayne Ponthier said Bruns told him he had met the people “up at the company.” He did not know whether Bruns had spoken with an attorney.

Wayne Ponthier said he had planned to use the income from the investment to pay the mortgage note on his home, but without either the capital or the income, he had had to sell other property he owned to pay the bills. “It just affected us greatly,” he said. “That was my life savings, this eighty-four thousand dollars. And it went down the tubes.”

Wayne Ponthier admitted that ETS was back doing business and that the investors had been given stock in the company, “but it’s pennies on the dollar.” However, although he had been told he had stock, he had received no paper stock certificates or other documents stating the amount of stock. Asked whether it were |9true that he had received a stock dividend since the bankruptcy proceedings, he stated, “I don’t know if it was a stock dividend.” He reiterated that he understood that Manalla was the agent for Bruns.

Jo Ann Ponthier testified she relied on what Bruns and Manalla told her about the investment. To her, Bruns seemed to be Manalla’s boss; Manalla appeared to defer to Bruns, and she said Bruns spoke as much as Manalla. She is co-pastor with her husband of their church and, hence, Bruns’ reference to ETS CEO Charles Edwards’ being a Christian impressed her and made her feel she could trust him and the investment. She did not recall ever receiving or reviewing a financial statement of the company.

Jo Ann Ponthier received checks from ETS from February 2000 until September 2000. In October 2000, she receive correspondence advising that ETS had filed for reorganization under Chapter 11. Subsequently she received a check from the trustee of the ETS Creditors’ Litigation Trust, representing a distribution of approximately thirty-eight cents per share of stock held in ETS. She said she had not received anything else from the trustee.

She opined that Manalla and Bruns, in order to discover the falsity of ETS’s representations about the scheme, should have taken the contracts to an attorney for analysis, to make sure they were selling a reputable product and that the investors would own the phones and could not lose them.

Brenda Sage testified she is Wayne Pon-thier’s sister, and Irene Ponthier was her mother. Her mother died November 15, 2004. Sage testified she did not invest any of her own money in the ETS payphone deal; rather, she assisted her mother in investing her mother’s money. She took her mother to Jo Ann Ponthier’s real estate office for the meeting with Manalla and Bruns. She corroborated the versions of the meeting given by Wayne and Jo Ann Ponthier. Sage did not ask |inany questions at the meeting with Bruns and Manalla. The main thing she remembered Bruns saying was that they would never be stuck with the phones in their garage; they would always be able to sell them, and they could back out of the deal and get their money back if they wanted.

As a result of the meeting, Sage said, her mother invested $42,000.00 in the payphone scheme. The documents showing the purchase of three phones for $21,000.00 listed Irene Ponthier and Brenda Sage as joint tenants. Her mother made a similar purchase, in which Wayne Ponthier was listed with her as joint tenant. Sage said her mother put the contracts in both their names because she wanted to protect them in the event of her death. The income that came on a monthly basis from ETS went into her mother’s account.

Sage said all of the money had been lost due to the subsequent collapse of ETS. She had received about $87.00 from the litigation trust, which was payable to her mother and her.

Asked whether she had suffered any other damages beyond losing money, Sage said, “No. My mom did, though. Her health really declined after that. It was everything she had.” Prior to her mother’s signing the contracts in November 1999, she was “doing pretty good,” although she had had a stroke and a couple of transient ischemic attacks, but had gotten better. She had all her mental faculties and was living in Sage’s home. After the investment losses, however, “she worried so much ... she went down.”

Sage testified her mother “got real depressed and it got to the point where we had to bring her to the skilled care nursing because of her depression.... She was a very independent woman and she always had something to fall back on. She didn’t want to lean on us. And you could just see she started hallucinating and the doctor said it was all a form of depression.”

lnSage said she herself had suffered “a little embarrassment,” but did not lose any of her own money, “just inheritance.”

Paul Bruns testified that his company, Creative Planning and Associates, Inc., was in existence back in 1999 at the time of his dealings with the plaintiffs. He was an independent insurance broker, selling insurance and annuities. He denied that he was a financial planner or financial consultant, but said he has financial consultants that broker through his agency. He admitted he has marketed CPA as furnishing services of financial consulting. His area was primarily health insurance and marketing. He sold pay phones, but not through CPA. He does not have a license to sell securities.

Bruns denied Wayne Ponthier’s claim that Bruns’ CPA business card was attached to the folder with the information about the pay phone investment plan. Bruns said at the end of the meeting, Mr. Ponthier asked him if he had a business card and Bruns told him he didn’t have one with the pay phone business, but I do have an insurance card I can give you, with the same phone number.” Bruns then gave him his CPA card.

Bruns said, “I was asked to take a ride with Vince Manalla.... Vince called me up and asked me to take a ride with him. He said he was going to see a client about the pay phones. I said I’ll take a ride with you.” Bruns said both of them had gone to Atlanta at the same time to check out ETS. When he was dealing with the Pon-thiers about the pay phones, he was acting through Bruns Communications, Inc. He dissolved that company by affidavit on July 23, 2004; it had been inactive for three years before that. He did not have a Bruns Communications card with him when he went to meet the Ponthiers with Vince Manalla because he “wasn’t really the one going to sell them.... Vince was.”

|1!?,He testified that was the first time he had gone on a presentation with Manalla. He went again when Manalla returned to see Wayne Ponthier’s family members about buying more. At that time Manalla was an insurance agent with CPA. When Bruns became involved with ETS in 1999, Manalla was still an agent with CPA. Both Bruns and Manalla had contracts directly with NCMI to sell pay phones.

Bruns admitted he first heard of ETS Pay Phones through his friend Tom Murray; at the time of trial, however, he “totally lost contact with him.” He did not know whether Tom Murray had been indicted along with Edwards. It was Murray who first told him of investing in pay phones in 1994. At that time Bruns was not interested. Several years later, however, Bruns’ interest was piqued.

Bruns met Charles Edwards twice; first, Bruns flew in January 1999 to Atlanta, by himself. He was impressed by the whole operation. He returned on another occasion, bringing with him a number of people: a C.P.A.; his father-in-law, an engineer; Bernard Slusky, a stock analyst; two doctors; Tony Accardo, another financial planner. After that meeting, Edwards sent him some financial data on the company — a quarterly report on the profitability of the company. Subsequently he received a report from the firm that did their accounting.

Asked whether he had done anything else to investigate whether the pay phone company was profitable, he indicated he had contacted the Better Business Bureau and the Chamber of Commerce personally. He also spoke to about ten references from the company — people who had bought pay phones — and asked them about their satisfaction. He did not have a C.P.A. review the financial report from ETS’ accounting firm.

Bruns said he had bought two telephones himself. As of the day of trial, however, all he had was stock in the company. He said that when the SEC froze |1sthe bank accounts, ETS immediately filed bankruptcy. He understood they were having cash flow problems. The judgment of the bankruptcy court was that the income from the phones was in fact ETA’s property because of the leases.

Bruns denied he ever told the Ponthiers that they would own the phones and could never lose them. The Ponthiers bought phones just like he did, his mother-in-law did, his father-in-law did, and a lot of his friends. He admitted he did not have an attorney review the documents to determine whether there was a risk that people could lose ownership of the phones in a bankruptcy by ETS.

Bruns testified he made sixteen percent commission on the phones he sold, and he sold about fifty phones. He admitted he made about $56,000.00 in commissions off those phones. That did not offset his personal investment of $14,000.00 in his two phones, his father-in-law’s three phones, or his mother-in-law’s three phones.

Bruns denied that he had trained Manal-la. Asked whether he received an override or referral fee on the phones that Manalla sold, Bruns said he could find no record that he got an override on Manal-la’s business. He stated his deposition testimony that he got an override from Manalla was mistaken, because he had looked into his records and could find no indication he was paid on Vince Manalla’s business. He said that most agents at Bruns Communications were under him and contracted to him; Manalla, however, was contracted directly with NCMI.

Bruns denied that he spoke much at the second meeting, the one attended by Jo Ann Ponthier, Irene Ponthier and Brenda Sage. He said that Wayne Ponthier did most of the talking, because he was so enthusiastic about his investment in the pay phone program; Manalla was there to answer any questions, and Bruns said | uvery little. He told them his mother-in-law owned some and he talked about his trips to Atlanta to see the operations.

Bruns said it never occurred to him that this was a Ponzi scheme. He knew that ETS had gone for six or seven years and had never missed a paycheck, or had a problem or complaint. He did not think they had done anything wrong.

Bruns admitted the information he got about the program came from his friend, Tom Murray, and from the ETS CEO, Charles Edwards, and that the documents were from ETS.

Bruns testified that he is the president of CPA, and he and his wife are the sole stockholders of the company; his wife is an employee, but he is not. He created Bruns Communications in order to go into the pay phone business, which was an alternative investment vehicle that didn’t align with the insurance business. Bruns Communications executed a sales representative agreement with NCMI.

Bruns denied that he knew that Wayne Ponthier was a minister, prior to learning it at Wayne Ponthier’s deposition. Further, when Bruns met Charles Edwards, Edwards did not promote his Christianity to him or in his presentation, although Edwards “definitely does in all his letters.” Bruns also denied that either Manalla or he used Christianity to promote the program to the Ponthiers — Bruns said “you just don’t talk about” religion and polities in a sales situation because you don’t know what side someone is going to be on. He felt the Ponthiers probably picked that up from Charles Edwards’ letters, in which he “was really touting himself as a Christian.”

|isln addition to twice going to Atlanta to investigate ETS’ operations and to meet Charles Edwards, Bruns said he spoke with the Better Business Bureau of Atlanta and the Atlanta Chamber of Commerce. He talked to approximately ten people who owned pay phones. He had someone on his staff contact the Georgia attorney general, the Office of Consumer Affairs, the Federal Trade Commission. One of the people who took the Atlanta trip with Bruns asked a Louisiana congressman whom he knew to run an SEC check, which turned up no problems.

In addition, they contacted the Florida Public Telecommunications Association, because NCMI was a member of it. “Somebody,” he was unsure whom, ran a credit history check on ETS. In addition, they obtained a letter from an attorney on behalf of NCMI, which stated that the SEC had investigated ETS in 1996 and had given them a clean bill of health. The letter was given to Bruns by his friend Murray. Bruns stated he also learned that two large financial investing institutions, Reliance Trust and Pensco Pension Services, had approved the company for self-directed IRAs. Bruns said after all the background checking, they could not find one complaint in five or six years on ETS. He said it is unusual to find a company that has not had a single complaint against it in that period of time.

Bruns said Vincent Manalla was an independent agent who brokered health insurance through CPA, but he had nothing to do with Bruns Communications. The documentary evidence of the plaintiffs’ purchases of the phones shows that Manalla signed the documents as representative of ETS. Bruns’ name does not appear on them.

Vincent Manalla testified he learned of the pay phone program through Bruns and another associate in the insurance industry. He was impressed by Bruns’ investigation of the company, and he traveled with Bruns to Atlanta to |1ficheck out the company. It appeared to him to be a well-run and well-funded company, and everything looked on the up-and-up. He met Edwards and was impressed with him.

He became an agent for the program and contracted directly with NCMI; he was not a sub-agent of Bruns, and Bruns did not train him in the business. NCMI provided him with contract information and training videos. Manalla denied that he ever used religion or Christianity in his sales presentation.

Manalla testified he first mentioned the pay phone program to Wayne Ponthier as an alternative to two other types of investments, annuities and viaticáis. He said he was the agent on the sales to the Ponthi-ers, and he received the commissions. He asked Bruns to come along with him on the presentations to the Ponthiers because those were the first ones he sold, and Bruns had done the due diligence reviews. Manalla felt it would benefit the Ponthiers to have someone to question besides him.

Manalla said he did not invest in the phones himself because he did not have the capital at the time. As for the representations that the investors could always get their phones back, which was made in the company literature, Manalla said, “What happened to this company was that the bankruptcy court intervened and basically screwed everybody, for the lack of a better term.”

LAW AND ANALYSIS

The proper standard of review is whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, 788, cert. denied, 581 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559. The reviewing court must review the record in its entirety to make this determination. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

|17Although a reviewing court will defer to a trial court’s reasonable decision on a question or matter properly within the trial court’s discretion, but if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983). On legal issues, the appellate court gives no special weight to the finding of the trial court, but exercises its constitutional duty to review questions of law and renders judgment based on the record. Clements v. Folse ex rel. Succession of Clements, 2001-1970 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 2002-2328 (La.11/15/02), 829 So.2d 437.

When a trial court fails to render specific findings of fact, a reviewing court must evaluate the record in a light most favorable to the party who prevailed at trial. Jeffers v. Hansen, 441 So.2d 283, 288 (La.App. 4 Cir.1983).

“[Wjhere documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Negligent Misrepresentation

Louisiana allows recovery in tort for purely economic loss caused by negligent misrepresentation where privity of contract is absent. Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1014 (La.1993). For the cause of action to arise, there must be a legal duty on the part of the defendant to supply correct | ^information, there must be a breach of that duty, and the breach must have caused plaintiff damage. Id., at 1015.

Whether Bruns owed a duty to the plaintiffs is a question of law. Lazard v. Foti, 2002-2888 (La.10/21/03), 859 So.2d 656, 659.

Clearly, there was a duty on the part of ETS to supply correct information of the facts and circumstances of the pay phone program. It is undisputed that Bruns did not know that the information was incorrect. Even if Bruns owed a duty to investigate the information supplied by ETS, he supplied the best information available to him, information which he had made numerous efforts to verify. The plaintiffs have not established that Bruns’ investigation is the cause-in-fact of their damages. They offered no evidence of other steps Bruns could or should have taken that would have uncovered the falsity of ETS’ representations. They have not shown that Bruns was less than “reasonable” in performing his investigations.

Further, we find that the apparent ruling of the bankruptcy court — that the payphones leased to ETS should be considered assets of the company, and sold to satisfy its debts, with the owners/lessors of the phones given stock in the post-bankruptcy reorganized company in exchange — is not something a reasonable investigation of a potential investment could be expected to anticipate. For example, it is clear from the remarks of both counsel, as well as the trial judge, that none of them could understand how the bankruptcy court came to such a conclusion.

Accordingly, we conclude the trial court erred in finding the defendants liable for negligent misrepresentation.

LOUISIANA SECURITIES LAW

The applicable portions of the Louisiana Securities Law provide as follows:

|1flA. It shall be unlawful for any person:
(2) To offer to sell or to sell a security by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, the buyer not knowing of the untruth or omission, if such person in the exercise of reasonable care could not have known of the untruth or omission.

La.R.S. 51:712.

A. Any person who violates R.S. 51:712(A) shall be liable to the person buying such security, and such buyer may sue in any court to recover the consideration paid in cash ... with interest thereon from the date of payment down to the date of repayment as computed in R.S. 51:714(0(1), less the amount of any income received thereon, together with all taxable court costs and reasonable attorney’s fees, upon the tender, where practicable, of the security at any time before the entry of judgment, or for damages if he no longer owns the security. Damages are the amount which equals the difference between the fair value of the consideration the buyer gave for the security and the fair value of the security at the time the buyer disposed of it, plus interest thereon from the date of payment to the date of repayment as computed in R.S. 51:714(0(2).
B. Every person who directly or indirectly controls a person liable under Subsection A of this Section, every general partner, executive officer, or director of such person liable under Subsection A of this Section, every person occupying a similar status or performing similar functions, and every dealer or salesman who participates in any material way in the sale is liable jointly and severally with and to the same extent as the person liable under Subsection A of this Section unless the person whose liability arises under this Subsection sustains the burden of proof that he did not know and in the exercise of reasonable care could not have known of the existence of the facts by reason of which liability is alleged to exist. There is contribution as in the case of contract among several persons so liable.

La.R.S. 51:714.

The provisions of the Louisiana Securities Law are analogous to the provisions of the Federal Securities Act of 1933, and state courts may look to | ¡^federal law and jurisprudence interpreting the securities law for guidance. Taylor v. First Jersey Securities, Inc., 533 So.2d 1383, 1385 (La.App. 4 Cir.1988), writs denied, 538 So.2d 593 and 538 So.2d 594 (La.1989).

In order to prevail in an action under the Securities Law against a broker or salesperson of securities, the plaintiff must show:

(1) the defendant made a false or misleading statement of a material fact or failed to state a material fact necessary in order to make the statement not misleading; (2) the plaintiff did not know of the untruth or omission; (3) the defendant knew, or in the exercise of reasonable diligence, could have known, of the untruth or omission.

Taylor, 533 So.2d at 1386, citing Junker v. Crory, 650 F.2d 1349, 1359 (5th Cir.1981).

Just as stated above regarding the negligent misrepresentation claim, plaintiffs failed to prove their claims against the defendants under the Securities Law. They offered no evidence that Bruns knew, or “in the exercise of reasonable care” could have known, that any statements he made to them were not true. Conversely, Bruns established that he conducted a detailed investigation and that he believed in the legitimacy and soundness of the business opportunity.

We find the trial court was clearly wrong in granting judgment in favor of the plaintiffs. For the foregoing reasons, the judgment is reversed, and judgment is rendered dismissing plaintiffs’ claims against Paul Bruns and Creative Planning Associates, Inc. Costs of this appeal are assessed against the plaintiffs.

REVERSED AND RENDERED.

      . Part X of Chapter 2 of Title 51 of the Louisiana Revised Statutes of 1950 was formerly known as the Securities — Blue Sky Law. It was amended and re-enacted by Acts 1985, No. 722, § 1, as the Louisiana Securities Law, and now consists of La.R.S. 51:701 to 51:724. Although the designation "Blue Sky Law” continues to be used by practitioners, we shall refer to these statutes by their official designation, the Louisiana Securities Law. La.R.S. 51:701.

      . According to the plaintiffs’ appellate brief, “NCMI cannot be located and is presumed to be defunct in the wake of the ETS Payphones scandal.”

      . The case was allotted to Judge Alan Green's division and Judge Green presided over the confirmation of the default judgment against Manalla and MBH. By the time of the trial against Bruns and CPA, however, Judge Green was no longer on the bench and Judge Joseph Tiemann was sitting pro tempore in that division.

      . We take judicial notice that ETS Payphones, Inc. and its CEO, Charles E. Edwards, were sued in a civil enforcement action by the Securities and Exchange Commission (“SEC'') for violations of securities laws. The SEC filed suit against ETS and Edwards for an injunction to freeze the company's assets for fraudulent and unregistered offering of securities in violation of the registration and anti-fraud provisions of the federal securities laws. S.E.C. v. ETS Payphones, Inc., 123 F.Supp.2d 1349 (N.D.Ga.2000). ETS, which by then had filed for bankruptcy protection, consented to the injunction without admitting the allegations. Edwards, however, contested the allegations, challenging the SEC's determination that the sale/leaseback of pay telephones was a security and also the freeze against his assets sought by the SEC. The district court ruled in favor of the SEC, granting a preliminary injunction. The district court concluded that the sale/leaseback arrangement fit the definition of an investment contract, as "a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” S.E.C. v. ETS Payphones, Inc., 123 F.Supp.2d at 1352. As such, it is covered by the Securities and Exchange Acts and was required to be registered, which defendants had failed to do. Further, the court found the defendants had violated the law by selling the unregistered securities to thousands of people in 38 states for five years, using the mails and other forms of media, including internet websites, which were pri-ma facie violations of the Securities Act. The district court concluded that a preliminary injunction and asset freeze were appropriate.
      On appeal, the Eleventh Circuit reversed the trial court's ruling. S.E.C. v. ETS Payphones, Inc., 300 F.3d 1281 (11th Cir.2002). The court of appeals found that the sale/leaseback arrangement was not an investment contract or security because the investors did not expect profits to be derived solely through the efforts of others; the fixed lease payments could not be considered participation in earnings, and in any event were not derived solely from the efforts of others, but were contractually guaranteed. 300 F.3d at 1285. Based on its finding that the transactions were not investment contracts, which deprived the SEC of jurisdiction over them, the appellate court held that the district court lacked subject matter jurisdiction to entertain the action. 300 F.3d at 1283.
      The Supreme Court granted certiorari and reversed the Eleventh Circuit’s decision, holding that an investment scheme promising a fixed rate of return can be an “investment contract” and thus a “security” subject to the federal securities laws. S.E.C. v. Edwards, 540 U.S. 389, 124 S.Ct. 892, 157 L.Ed.2d 813 (2004). The Supreme Court remanded the case for further proceedings. On remand, the Eleventh Circuit upheld the district court's grant of the preliminary injunction and the asset freeze. S.E.C. v. ETS Payphones, Inc., 408 F.3d 727 (11th Cir.2005).

      . "The term 'Ponzi scheme,’ used to describe a scheme in which a swindler uses money from later victims to pay earlier victims, is derived from the last name of the swindler in Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924).” Guidry v. Bank of LaPlace, 94-1758 (La.App. 4 Cir. 9/15/95), 661 So.2d 1052, 1059. A Ponzi scheme, also known as a pyramid scheme, occurs where original investors of the companies are paid out of funds received by later investors, causing the original investors to think that the company is making a profit. Dunn v. Mortenson, 36,878 (La.App. 2 Cir. 3/5/03), 839 So.2d 1007, 1008 n. 1.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Quinton D. COKER.
    Nos. 06-CA-735, 06-CA-736.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent Paciera, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, LA, for PlaintiffiAppellant.
    Anderson Council, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

Lin these consolidated actions to set aside bond forfeitures, the State of Louisiana (“the State”) appeals the trial court’s ruling which granted a “Motion to Reconsider” in favor of defendant’s surety. For the reasons that follow, we reverse.

On July 18, 2003, defendant, Quentin D. Coker (“Coker”), was charged by the Jefferson Parish District Attorney’s Office with possession of Oxycodone, a violation of LSA-R.S. 40:967(C); prostitution, a violation of LSA-R.S. 14:82; and possession of marijuana, a violation of LSA-R.S. 40:966(C). Coker pled not guilty to all charges in an arraignment on July 23, 2003. After Coker failed to appear at his trial on February 14, 2005, the State made an oral motion for the forfeiture of Coker’s bonds, which the trial court granted on that same date. The notices of the signing of the judgment were mailed to Coker and the sureties on the bonds on March 10, 2005.

Thompson’s Bail Bonds (“Thompson’s”) and Safety National Casualty Corporation (“Safety”) filed a Motion to Set Aside Bond Forfeiture on August 12, |32005, at which time they alleged that the Jefferson Parish Clerk of Court failed to send out notice of the signing of the judgment of bond forfeiture pursuant to LSA-R.S. 15:85(3)(a). Thompson and Safety further alleged that Coker was incarcerated in Miami Dade County Prison in the State of Florida on May 28, 2005. Following a hearing on February 24, 2006, the trial court denied the Motion to Set Aside Bond Forfeiture; no appeal was taken from the trial court’s ruling.

On March 2, 2006, the sureties filed a “Motion to Reconsider Ruling” in regard to the trial court’s February 24, 2006 judgment that denied their Motion to Set Aside Bond Forfeiture. Following a hearing on March 20, 2006, the trial court granted the sureties’ “Motion to Reconsider” and vacated its February 14, 2005 judgment.

The State timely filed the present appeal.

LAW AND ARGUMENT

On appeal, the State’s sole assignment of error is that the trial court erred in Safety’s Motion to Reconsider Ruling. Specifically, the State asserts that the Louisiana Code of Criminal Procedure does not allow a trial court to set aside its ruling of a bond forfeiture under the procedural vehicle of a “Motion to Set Aside” and further that, even if the trial court did have the authority to consider the motion, the grounds raised by the surety were not timely set forth within the proper prescriptive period.

LSA-R.S. 15:85, in relevant part, provides:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days 1 ¿of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
(6) Appeals.
(a) The defendant and his sureties shall have the right to an appeal that suspends the effect or the execution of the judgment of bond forfeiture. The security to be furnished for this suspen-sive appeal shall be equal to the bail obligation.
(b) The defendant and his sureties shall have the right to a devolutive appeal of the judgment of bond forfeiture.
(c) All appeals shall be to the appellate court having general civil appellate jurisdiction over the court issuing the judgment of bond forfeiture.

LSA-C.Cr.P. art. 345, in relevant part, states:

D. If during the six-month period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion in summary proceeding within the six-month period.
(2) The defendant’s sureties produce to the court adequate proof of defendant’s incarceration, or the officer originally charged with defendant’s detention verifies the defendant’s incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the six-month period at the time the defendant or the surety files the motion, shall be deemed adequate proof of the defendant’s incarceration.
(3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.

| ¡jLSA-R.S. 15:87 further provides:

A. No judgment decreeing the forfeiture of an appearance bond shall be rendered, if it is shown to the satisfaction of the court that the defendant, principal in such bond, is prevented from attending because of any of the following:
(1) He has a physical disability, illness, or injury.
(2) He is being detained in the jail or penitentiary of another jurisdiction.
(3) He is serving in the armed forces of the United States.
B. A sworn affidavit of the jailer, warden, physician, commanding officer, or other responsible officer where the principal is detained, who attests to the cause of the defendant’s failure to appear shall be considered adequate proof of the defendant/principal’s inability to appear.
C. If a judgment of bond forfeiture is rendered while the defendant is prevented from appearing for reasons enumerated in this Section, the court shall declare the judgment of bond forfeiture null and void if the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within six months of the mailing of notice of the signing of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for the causes enumerated in this Section.

Pursuant to the above-cited statutes, we first consider the timeliness of defendant’s motions. In the present case, the record indicates that the Clerk of Court for the Twenty-Fourth Judicial District certified the mailing of the judgment of bond forfeiture on March 10, 2005. Accordingly, Safety would have had sixty days to bring a summary proceeding, or until September 10, 2005, at the latest, to raise defenses under LSA-C.Cr.P. art. 345 and LSA-R.S. 15:87.

In Safety’s Motion to Set Aside Bond Forfeiture, it asserted that Coker failed to appear before the court on February 14, 2005. Safety also states that Coker was incarcerated in Florida on May 28, 2005 and provided documentation to support its IfjClaim. Accordingly, it would appear that Safety’s Motion was timely brought under LSA-C.Cr.P. art. 345. However, when the trial court denied Safety’s Motion to Set Aside Bond Forfeiture, Safety failed to file an appeal to this Court pursuant to LSA-R.S. 15:85 and, therefore, the trial court’s ruling became final.

As correctly noted by the State, there is no procedural vehicle entitled “Motion to Reconsider Ruling” detailed in the Code of Criminal Procedure by which a defendant’s sureties can seek to overturn a trial court’s denial of a Motion to Set Aside Bond Forfeiture. Furthermore, Safety’s Motion was filed on March 2, 2006, nearly one full year after the mailing of the judgment of bond forfeiture was certified, and after the period set forth in LSA-R.S. 15:87.

Based upon our review of the record, and for the foregoing reasons, we find that the trial court erred in considering and ultimately granting Safety’s Motion, and we hereby reverse. Costs of appeal are assessed against the appellee.

REVERSED.

      . Safety did not argue in its Motion to Set Aside Bond Forfeiture that Coker was incarcerated on February 14, 2005.