author: DECUIR, Judge. PAINTER, Judge,

text:
    STATE of Louisiana v. James Oliver McKEEHAN, Jr.
    No. 07-569.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 19, 2007.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, James Oliver McKeehan, Jr.
    W. Thomas Barrett III, Assistant District Attorney, Thirty-eighth Judicial District, Cameron, LA, for Plaintiff/Appellee, State of Louisiana, James Oliver McKee-han, Jr., In proper person, C. Paul Phelps, Dequincy, LA.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

hThe Defendant, James Oliver McKee-han, Jr., was convicted of driving while intoxicated (DWI), fourth offense, in violation of La.R.S. 14:98. He lodges this appeal asserting the following three assignments of error:

1) The State’s reliance on the presumption of intoxication set forth in La.R.S. 82:662 was improper, as the bill of information did not charge the Defendant with a violation of La.R.S. 14:98(A)(1)(b), but instead charged a violation of La. R.S. 14:98(A)(1)(a).
2) The evidence introduced at trial was insufficient to find that the Defendant was under the influence of an alcoholic beverage at the time he was driving.
3) The trial court imposed a sentence upon the Defendant that results in the ex post facto application of the law which is prohibited by both the federal and state constitutions. The trial court improperly applied the harsher sentencing provisions in effect at the time of his conviction instead of the sentencing provisions in effect at the time of the commission of the offense.

ERRORS PATENT

Our review of the record reveals one error patent. The trial court failed to inform the Defendant of the appropriate prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to inform the Defendant by written notice within ten days of the rendition of this opinion.

SUFFICIENCY OF EVIDENCE

We will first examine Defendant’s allegation that the evidence is not sufficient to support his conviction. See State v. Hearold, 603 So.2d 731 (La.1992). The Defendant contends the evidence introduced at trial was insufficient to find that he was under the influence of an alcoholic beverage at the time he was driving.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d |a676, 678 (La. 1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592.

Thus, to support the Defendant’s conviction, the State was required to prove the Defendant was operating a motor vehicle and was either under the influence of alcohol or his blood alcohol concentration was 0.08 or more.

The Defendant testified that on November 22, 2003, he went to a hunting camp to repair two air conditioners and an ice machine. While working, he had two cups of beer from a keg, which possibly totaled fifteen ounces of beer. The Defendant testified that he was at the camp for approximately two hours. When the Defendant was ready to leave, the owner of the camp handed him a drink in a Big Gulp cup that was either twenty or thirty-two ounces. When he got in the car, he placed the cup in his lap. On his way back to Lake Charles, the Defendant passed Deputy Donald LeDoux while driving seventy miles per hour. The Defendant testified that he then drank the contents of the cup and then threw the cup out the window.

Deputy LeDoux testified that when he stopped the Defendant he appeared unbalanced as he exited his vehicle and that his speech was slurred. Deputy LeDoux then noticed marijuana in the Defendant’s vehicle and the Defendant was immediately placed under arrest. Deputy LeDoux then contacted the Defendant’s parents, who came to the scene to retrieve the Defendant’s vehicle. After the Defendant’s parents left the scene, Detective LeDoux searched the surrounding area in an attempt to locdte the cup discarded by the Defendant prior to being stopped. Unable to locate the cup, | ¡¿Detective LeDoux left the scene and drove the Defendant to the police department in Cameron.

When the Defendant arrived at the police department he asked to go to the restroom, but was told to wait. The Defendant then urinated on himself. Subsequently, a field sobriety test was performed at the police department. Deputy LeDoux testified that during the field sobriety test the Defendant was “unable to respond to almost anything to the point of uncontrolled bowel movements where he had to be taken to the restroom to complete. And he was just — seemed to be out of control, incoherent in every manner.” Deputy LeDoux was asked if the Defendant cooperated and completed the horizontal gaze nystagmus test. He testified the Defendant tried, but it was hard for him. He stated “I believe we can say he completed it.” Deputy LeDoux then testified the Defendant had a positive result in all the different categories. The Defendant subsequently submitted to the intoxi-lyzer test. The results indicated the Defendant’s blood alcohol concentration was .227 percent.

The trial court found the Defendant guilty of DWI, fourth offense, stating the following:

I’ll agree with you about one thing, Mr. McHale. I don’t think that his level of intoxication at the time of his stop was as severe as it was when he was videotaped or else Deputy LeDoux would not have observed that the vehicle was going straight.
But nevertheless, the evidence is such that he was imbibing alcoholic beverages before the stop and there is some evidence of impairment. And that’s adequate.

The Defendant contends the State failed to prove he was operating the vehicle while intoxicated. In State v. Picard, 03-2422, pp. 8-9 (La.App. 1 Cir. 9/17/04), 897 So.2d 49, 54-55 the court said:

|4Intoxication with its attendant' behavioral manifestations is an observable condition about which a witness may testify. What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. Anderson, 2000-1737, p. 10 (La.App. 1st Cir.3/28/01), 784 So.2d 666, 676, writ denied, 2001-1558 (La.4/19/02), 813 So.2d 421. Furthermore, an officer’s subjective opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication to support a DWI conviction. See State v. Smith, 93-1490, p. 6 (La.App. 1st Cir.6/24/94), 638 So.2d 1212, 1215.
In Smith, 93-1490 at pp. 3-4, 638 So.2d at 1214, this court found the evidence sufficient to support a DWI conviction where the trooper testified that the defendant smelled of alcohol, his speech was slurred and deliberate, his eyes were bloodshot, he was staggering, he admitted that he had consumed four beers, he was uncooperative and aggressive after being arrested, and he refused to take the breath test. Similarly, a DWI conviction was found to be supported by the evidence when a trooper observed the defendant’s erratic driving, physical appearance, slurred speech, and behavior. The defendant failed the field sobriety tests. He attempted to hide a vodka bottle under the back seat of his truck, and he admitted he had drunk alcohol. State v. Worachek, 98-2556, p. 9 (La.App. 1st Cir.11/5/99), 743 So.2d 1269, 1274. Also, in State v. Minnifield, 31,527, pp. 3-4 (La.App. 2nd Cir.1/20/99), 727 So.2d 1207, 1211, writ denied, 99-0516 (La.6/18/99), 745 So.2d 19, the evidence was sufficient where the officer observed the defendant weave out of the traffic lane three times; he staggered, slurred, smelled of alcohol, and gave a false name; and a second officer indicated that the defendant failed the horizontal gaze nystagmus test.

We find that thé evidence presented was sufficient to prove beyond a reasonable doubt that the Defendant was under the influence of alcohol when operating his vehicle. Accordingly, the Defendant’s conviction is affirmed.

BILL OF INFORMATION

The Defendant contends that the State’s reliance on the presumption of intoxication in La.R.S. 32:622 at trial was improper because the Bill of Information referenced La.R.S. 14:98(A)(1)(a) rather than La.R.S. 14:98(A)(1)(b).

|HThe bill charges the Defendant with “Driving While Intoxicated 4th La. R.S. 14:98.” The purpose of the bill of information is to inform the defendant of the charges against him. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367. The bill of information in this case was sufficient to inform the defendant of the charges lodged against him. This assignment has no merit.

SENTENCING

The Defendant contends that by sentencing him under La.R.S. 14:98 E as it was written at the time of his conviction rather than at the time of his arrest the trial court violated the prohibition against ex post facto application of the law provided in both the state and federal constitutions. The statute, as it was written at the time of the arrest, provided for the mandatory suspension of all but sixty days of a defendant’s sentence for fourth offense DWI. In 2005, the legislature amended the statute to make the suspension of sentence discretionary on the part of the trial court. 2005 La. Acts No. 497, § 1.

This court has previously addressed the retroactive application issue with regard to the 2004 amendment to La.R.S. 14:98 as follows:

In State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, the supreme court addressed whether the 2001 amendment to La.R.S. 14:98 should be applied to defendants who committed DWIs prior to the effective date of the 2001 amendment. The supreme court acknowledged that the prevailing jurisprudence adhered to the rule that the appropriate penalty provision is the penalty provision in effect at the time an offense is committed. The supreme court found, however, that the 2001 amendment to La.R.S. 14:98 should not adhere to the prevailing jurisprudence. Rather, the supreme court found that the 2001 amendment should apply to any defendant convicted after the amendment’s effective date.

State v. Pulliam, 2005-534, p. 3 (La.App. 3 Cir. 12/30/05), 920 So.2d 900, 902. In Pul-liam, this court noted that the basis for the exception created in Mayeux was the substantial nature of the legislative change and the policy change of direction | fifrom a focus on incarceration to a focus on treatment in DWI cases. Finding that the 2004 amendment was a mere fine tuning rather than the drastic change contemplated by the court in Mayeux, this court declined to apply the 2004 amendment to the statute retroactively.

We find the 2005 amendment is more like the 2001 amendment in Mayeux. In removing the mandatory suspension of sentence for fourth offense, the legislature has indicated that the focus on treatment rather than incarceration requires a case by case analysis. This is a substantial legislative change in that it shifts discretion from the legislature back to the courts.

In State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, the Louisiana Supreme Court held that if a law changes the definition of criminal conduct or increases the penalty for a particular crime applying it retroactively violates the state and federal constitutional prohibitions against ex post facto laws. In the present case, the question is whether the removal of the mandatory suspension of sentence constitutes an increase in penalty. We think not.

We find the 2005 amendment merely alters the conditions upon which the defendant’s sentence may be suspended. In cases discussing changes to statutes governing the requirements for a defendant’s release for parole or good time diminution, the courts have concluded that the law in effect at the time of a prisoner’s release governs the terms of that release, rather than the law in effect at the time of the commission of the offense. Id. The changes to the eligibility requirements do not subject defendant to a greater penalty than that authorized for his crime at the time of its commission and, therefore, do not violate constitutional prohibitions against ex post facto laws. See State v. Hutchinson, 99-0034 (La.App. 4 Cir. 5/17/00), 764 So.2d 1139.

|7We are mindful that the cases cited above involved changes to eligibility requirements in statutes other than the statute defining the crime and sentence. However, we find no compelling reason that the changes to the eligibility for suspension of sentence in this case should be treated differently simply because they are contained within La.R.S. 14:98(E). Accordingly, the trial court did not err in applying the sentencing provisions of La. R.S. 14:98 E in effect at the time of the Defendant’s conviction.

This assignment has no merit.

DECREE

For the foregoing reason, the Defendant’s conviction and sentence are affirmed. The trial court is instructed to inform the Defendant of the proper prescriptive period for postconviction relief.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.

PAINTER, J., dissents in part with written reasons.

PAINTER, Judge,

Dissenting in Part.

|TI agree with the majority’s decision to affirm the Defendants’ conviction. However, I respectfully dissent from the opinion of the majority insofar as it affirms the Defendant’s sentencing on the charge of fourth-offense DWI under the penalty provisions in effect at the time of his conviction.

The offense at issue was committed on November 22, 2003. The Defendant was convicted on May 15, 2006, and sentenced on December 14, 2006. At the time of the commission of the offense, La.R.S. 14:98 provided, in pertinent part, as follows:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty-days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.

(Emphasis added).

| ¡.On the date of conviction, the penalty provision read as follows:

E. (1)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.

(Emphasis added).

The penalty provision in effect in May 2006 differs from that in effect in November 2003 in that, in 2003, the trial court was required to suspend the period of incarceration imposed after the first sixty days. In 2006, the trial court was given the discretion to suspend the remainder of the sentence.

This court addressed a similar issue in State v. Pulliam, 05-534 (La.App. 3 Cir. 12/30/05), 920 So.2d 900, writ denied, 06-667 (La.10/6/06), 938 So.2d 65. The defendant in Pulliam committed a DWI offense on May 3, 2003, and pled guilty on February 3, 2005. In an error patent discussion, this court was called on to determine whether the defendant should be sentenced under the penalty provision in effect at the time of the commission of the offense or at the time he pled guilty. This court addressed the supreme court’s decision in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, and the 2004 amendments to La.R.S. 14:98 as follows:

In State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, the supreme court addressed whether the 2001 amendment to La.R.S. 14:98 should be applied to defendants who committed DWIs prior to the effective date of the 2001 amendment. The supreme court 13acknowledged that the prevailing jurisprudence adhered to the rule that the appropriate penalty provision is the penalty provision in effect at the time an offense is committed. The supreme court found, however, that the 2001 amendment to La.R.S. 14:98 should not adhere to the prevailing jurisprudence. Rather, the supreme court found that the 2001 amendment should apply to any defendant convicted after the amendment’s effective date. The court reasoned as follows:
As an initial matter, statutory interpretation begins, “as [it] must, with the language of the statute.” Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). While the amended version of the statute does not specifically mention the “retroactivity” of the new provisions, the statute contains three provisions which suggest that the amended version should apply in the instant case.
First, the statute plainly states that “upon conviction,” and not “upon committing the offense,” the defendant shall be sentenced to a specific term. Thus, the specific language in LSA-R.S. 14:98 provides the time at which the penalty provisions are applicable.
Second, as previously noted, the amended version of the statute contains a specific statement of legislative purpose, as follows:
The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further the legislature finds that there are successful treatment methods available for treatment of addictive disorders.
LRS-R.S. 14:98(G). Thus, the legislature has clearly stated its intention to embrace treatment measures in preference to incarceration. Applying the more lenient sentencing requirements of the amended statute to someone convicted after the enactment of the legislation, despite the commission of the offense prior to the enactment, would further this legislatively stated purpose. This clearly stated legislative purpose is one which this court cannot ignore.
Finally, language in the amending legislation grants potential relief to those already convicted by providing that |4“[n]othing contained in this Act shall be construed to limit the authority of the Department of Public Safety and Corrections in recommending those persons incarcerated on or before August 15, 2001, to participate in home incarceration in accordance with Code of Criminal Procedure Article 894.2.” 2001 La. Acts No. 1163, § 4. It would be incongruous to extend the opportunity for home incarceration, and treatment, to those already convicted but to withhold that opportunity from those who were charged but not convicted prior to August 15, 2001, the effective date of the amendments.
Thus, three specific provisions within the new legislation point to an interpretation consistent with applying the new provisions to a defendant who was not convicted of a fourth DWI charge until after the effective date of the statute: 1) the words “upon conviction”; 2) the legislative purpose of favoring treatment over incarceration; and 3) allowing home incarceration for those previously convicted.
We acknowledge Louisiana’s prior case law on the subject has adhered to the rule that “the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.” State v. Wright, 384 So.2d 399, 401 (La.1980); see also, State v. Clark, 391 So.2d 1174 (La.1980); accord, State v. Paciera, 290 So.2d 681 (La.1974) (Imposition of a sentence under a statute in effect at the time an offense was committed rather than lesser sentence provided for by an amended statute which was enacted after commission of the charged offense and prior to conviction did not deny defendant due process or equal protection when the amendatory statute provided that it was not to apply to crimes committed prior to the effective date of the amendment.). Although this rule of law has been consistently applied in the courts of this state, the rule requiring the penalty provision in effect at the time of the offense be the governing provision where an ameliorative change in the law has occurred is not followed in all jurisdictions. See Clark, 391 So.2d at 1176 n. 1; see also, State v. Morris, 131 Idaho 263, 954 P.2d 681 (1998) (Defendant convicted of first degree burglary was subject to maximum ten-year sentence under amended burglary statute enacted after he committed offense but before he was sentenced, rather than to maximum 15 year sentence under statute in effect when he committed offense, where amended statute did not include savings clause and did not | ¡^indicate which maximum sentence should apply.). Today, this rule is followed by a majority of the states that have dealt with the issue. See State v. Von Geldern, 64 Haw. 210, 638 P.2d 319 (1981); Elkins v. State, 659 N.E.2d 563 (Ind.App.1995); People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990); State v. Coolidge, 282 N.W.2d 511 (Minn.1979); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967); State v. Cummings, 386 N.W.2d 468 (N.D.1986); State v. Macarelli, 118 R.I. 693, 375 A.2d 944 (1977).
Thus, while current Louisiana appellate court jurisprudence holds that the law in effect at the time of the offense should control the sentencing of the instant defendant, this court has not concluded definitely that, in a case such as the one before it here concerning the specific statutory provisions of the amended LRS-R.S. 14:98, the date of the offense and not the date of the conviction controls. Specifically, this case differs from both Wright, 384 So.2d 399, and Clark, 391 So.2d 1174, in that those cases dealt only with changes in the term of imprisonment. In both of those cases, the earlier statute, LRS-R.S. 14:67.1, had provided for a penalty of imprisonment at hard labor of “not less than one nor more than ten years,” for the crime of theft of livestock. As amended, the penalty provided for imprisonment for “not more than one year.” Nothing in the language of the statute changed except the term of imprisonment.
Conversely, here, as discussed at length above, the legislature made substantial changes to the penalty provisions of the statute as well as adding a “policy” statement to the statute. See LRS-R.S.14:98(G). While the amended version of the statute does not specifically address the “retroactivity” of the new provisions, the statute does state that “upon conviction” and not “upon committing the offense” the defendant shall be punished to a specific term. Finally, imposing the harsher penalty in such circumstances would serve no valid penological purpose, particularly in the instant case in which the legislature has made a policy determination that a third or fourth DWI offense is presumptive evidence of the existence of a substance abuse disorder and that successful treatment methods other than imprisonment are available and effective for such disorders.
Drunk drivers have extracted a significant toll on society and on the innocent victims of their misdeeds. However, it is the legislature, not this court, which | (¡establishes the sentencing range. It is the role of the courts to follow the sentencing provisions which were clearly stated by the legislature.

State v. Mayeux, 01-3195, pp. 4-8 (La.6/21/02), 820 So.2d 526, 529-31 (footnotes omitted)(alterations and emphasis in original).

In examining whether Mayeux’s holding should apply in the present case, we note that the 2004 amendment also contains the “upon conviction” language emphasized by the supreme court in May-eux. It also appears from the 2004 amendment that the legislature was attempting to “fine tune” the treatment plans for DWI offenders as well as clearly state that a defendant is under supervised probation while subject to home incarceration. Although the pre-2004 law stated that an offender sentenced to home incarceration was subject to any conditions of probation, the law did not clearly state that an offender was placed on supervised probation immediately upon his release from serving the mandatory thirty days imprisonment. The 2004 amendment makes this clear. The 2004 amendment also allows the trial court more discretion as to the length of home incarceration. Thus, it appears that the 2004 amendment was simply a continuation of the efforts begun by the legislature in 2001.
The court finds the same considerations applicable in Mayeux are not applicable to the present case. While the 2001 amendment discussed in Mayeux produced drastic changes to the DWI sentencing scheme, the 2004 amendment merely “fine tuned” those provisions. Both the 2001 amendment and the 2004 amendment favor treatment plans over imprisonment. Thus, one major concern of the court in Mayeux, (i.e.), failing to adhere to the legislature’s obvious preference of treatment over imprisonment (-) is arguably not present in the instant case. Under either sentencing provision, the Defendant receives the benefit of the legislature’s intent to improve treatment over imprisonment. For this reason, the court finds that an exception to the prevailing jurisprudential rule is not warranted in the present case, and the penalty provision in effect at the time of the offense is the applicable sentencing provision. See State v. Parker, 03-924 (La.4/14/04), 871 So.2d 317.

Id. at 902-05.

The 2005 amendments to La.R.S. 14:98 gave the trial court the discretion to suspend all or part of a defendant’s sentence, beyond thirty days for a third offender and beyond sixty days for a fourth offender, for a conviction of DWI. Additionally, the amendments provided that, if an offender was unable to pay the costs incurred for ^^participating in a substance abuse treatment program, driver improvement program, or home incarceration, the trial court could require the offender to reimburse the State pursuant to a payment schedule determined by that court.

The 2005 amendments appear to give the trial court more discretion regarding sentencing for third and fourth offenders. I do not agree with the majority that this change is an ameliorative change in La. R.S. 14:98; thus, the amendment at issue differs from the 2001 amendments discussed in Mayeux. Accordingly, in my view, the jurisprudential exception set out in Mayeux is not warranted in the case sub judice. Instead, we would do well to follow our decision in Pulliam and find that the Defendant should have been sentenced pursuant to the penalty provisions in effect at the time of the commission of the offense. As the Defendant was sentenced in accordance with the penalty provisions in effect at the time of his conviction, I would vacate the Defendant’s sentence and remanded the matter for re-sentencing.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Timothy J. RYAN.
    No. 2007-504.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2007.

      William E. Tilley, District Attorney-Thirtieth Judicial District Court, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Timothy J. Ryan.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|TThe Defendant, Timothy J. Ryan, was convicted of stalking, a violation of La.R.S. 14:40.2, and appeals on the basis of insufficiency of the evidence. Because we agree that the evidence was legally insufficient to support a verdict of guilty, we reverse and enter a judgment of acquittal.

FACTS

The Defendant parked his vehicle in front of the residence of Christopher and Amanda Wright for approximately two minutes. Mr. Wright is a state trooper. The Defendant then left, turned around in a nearby driveway, and drove back, again passing in front of the Wrights’ residence. After reaching an apartment complex one-half mile from the residence, he turned around and again drove past the Wrights’ residence, while staring at Mrs. Wright. This same sequence occurred several times during a single day.

The Defendant and the Wrights did not know each other. Mrs. Wright testified that she became frightened by the Defendant’s behavior.

The Defendant testified that he had been driving down that particular road because he had been looking for a state trooper and because he was picking up firewood left by a tree cutting crew in the area. Defendant slowed down and stopped for a minute to look when he saw a state trooper’s vehicle parked in the driveway. Defendant recalled that a male came outside, but the man did not look like Trooper Wright, the husband of the alleged victim.

Defendant had read an article in the Alexandria Town Talk about a state trooper named Johnny Parker who had been involved in an incident at Beauregard Hospital, and Defendant wanted to see what Trooper Parker looked like. When he saw Trooper Wright, Defendant saluted him because he thought that state troopers | gsaluted each other. Defendant did not recall how many times he drove by the Wright residence at midday, but agreed that it was several times. After driving by during the noon hour, Defendant returned twice to see if the tree cutting crew had finished its trimming.

LAW AND DISCUSSION

Sufficiency of the Evidence

Defendant asserts that “[t]here was insufficient evidence to convict Defendant of stalking.” Defendant argues that there is no evidence to support a finding that he intentionally acted in a malicious manner, that he repeatedly followed or harassed Mrs. Wright, or that he acted with the intent to cause Mrs. Wright to feel alarmed or emotional distress.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27. Thus, “[i]t is not the function of an appellate court to assess credibility or reweigh the evidence.” State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443.

At the time of the offense, the statute prohibiting stalking read, in pertinent part, as follows:

| a A. Stalking is the willful, malicious, and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the willful, malicious, and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnaping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
C. For the purposes of this Section, the following words shall have the following meanings:
(1) “Harassing” means the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.
(2) “Pattern of conduct” means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. Constitutionally protected activity is not included within the meaning of pattern of conduct.

La.R.S. 14:40.2.

The trial court found Defendant to be guilty of stalking and issued oral reasons for its ruling:

All right. Well, when I look at the statute[,] stalking is the intentional and repeated following, harassing of another person that would cause a reasonable person to feel alarmed or suffer emotional distress. Alarmed is what I’m looking at and emotional distress. Then when I look over, as Mr. Anderson pointed out, about a pattern of conduct means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. So, what I have to find is that his driving up and down that road constitutes a pattern of conduct evidencing his intent to inflict a continuity of emotional distress upon the person of the victims. Now, when I consider all the facts[,] I do believe that there was emotional distress on the part of the victims and that’s | reasonable to understand because, as I’ve stated before, the suspicious conduct in a neighborhood causes a certain amount of— degree of emotional distress especially with the womenfolk. Mr. Ryan’s explanation of what he was doing there is pretty flimsy as far as the looking for this officer that he didn’t know what he looked like [sic] the reasons he stopped there. I don’t know if I buy that or not. He may have been over there looking for firewood according to him, but I have to find that his pattern of conduct was designed by him, was intended by him, to cause emotional distress on the victims, on the Wrights. There’s no pri- or contact whatsoever between these people; nobody knew one another here. It’s difficult for the Court to find a motive for him to be intending that his conduct should cause emotional distress, at least the point where he stopped at the — -in front of the residence. Thereafter as the conduct continued, this slow driving back and forth in front of the residence, that may be quite another thing. At some point it could be — this conduct could be construed or evidence of his intent to inflict a continuity of emotional distress upon these people, especially after he had seen them come out of the house and standing [sic] there looking at him and all that and so forth.
The Court therefore finds this defendant guilty of that offense under that provision and under those circumstances.

In State v. Higginbotham, 00-1782 (La. App. 5 Cir. 5/16/01), 790 So.2d 648, writ denied, 01-1756 (La.5/3/02), 815 So.2d 95, the fifth circuit examined the sufficiency of the evidence introduced to support a stalking conviction. In his appeal, the defendant asserted that the evidence of his standing near the victim’s home and passing her home in his truck did not establish “following” and that his activities did not constitute “harassing” because they were constitutionally protected. The fifth circuit agreed that there had been no evidence submitted to fulfill the “following” element of the stalking statute. Id. However, the fifth circuit concluded that the defendant’s actions had been “harassing” as contemplated by the statute.

Higginbotham’s victim had seen him near her home on several occasions. During two of the incidents, Higginbotham had menaced her. The | ^defendant also called the victim’s house several times a day at all hours. During two of the calls, the defendant had threatened to kill the victim, and one of the death threats included sexual violence. The fifth circuit held that the collective incidents clearly demonstrated that the defendant had willfully, maliciously, and repeatedly harassed the victim over a period of time with the intent to inflict a continuity of emotional distress upon the victim including the fear of death or bodily injury. Accordingly, the fifth circuit found sufficient evidence to support Higginbotham’s stalking conviction.

In State v. Rico, 99-158 (La.App. 3 Cir. 6/2/99), 741 So.2d 774, unit denied, 99-1883 (La.12/10/99), 751 So.2d 244, this court found insufficient evidence to support the defendant’s stalking conviction. This court concluded that the defendant’s actions of “following” someone while that person drove to a series of three different locations constituted one “following” instead of the repeated “followings” required under the stalking statute. This court further found that the defendant had not verbally threatened the person he had been “following.” Additionally, this court held that the defendant’s actions did not constitute a physical threat. Rico did not verbally threaten the victim. Although he followed closely, he did not stop when the person he was following exited her car and went inside her house; he passed the person’s home and turned around; the defendant did not use his vehicle to ram or hit the person’s automobile; and, the defendant did not follow as the other car drove behind a building but waited for the vehicle to emerge from behind the building. This court determined that stalking is a specific intent crime and these actions did not evidence the requisite specific intent.

In State v. Young, 96-2079 (La.App. 1 Cir. 5/1/98), 712 So.2d 273, writ denied, 98-1598 (La.2/5/99), 737 So.2d 740, the first circuit reversed a defendant’s Rstalking conviction. Young had been convicted of stalking a judge who had ruled against him in civil proceedings. The defendant, who was a pro se litigant, had made several calls to the judge’s staff in the attempt to either speak to the judge or obtain a status conference. Young had been present at the courthouse or in the judge’s courtroom on a number of occasions when the defendant’s case was not docketed. During those times, Young reportedly stared disdainfully at the judge. The defendant had also called the judge’s former secretary. The judge had seen a parked car with an unidentified occupant parked near his home. Finally, as the judge returned to work after seeing the car parked near his residence, he saw Young exit an alleyway near the courthouse and stare at him.

The Young court concluded that any rational trier of fact would have had reasonable doubt that the defendant was guilty of stalking. The first circuit found that the prosecution had failed to prove one of the elements of stalking: “following.” The Young court also concluded that the prosecution had failed to satisfy the element of stalking alternate to “following”: “harassing.” The first circuit conceded that the defendant’s behavior had been annoying, but Young had a constitutionally protected right to be present in or around the courthouse even on days when his case was not on the docket because the building was open to the public. Moreover, the defendant’s phone calls and letters seeking to speak with the judge had been inappropriate before he became a pro se litigant, but once Young began representing himself, that contact became reasonable for court business. Additionally, the defendant’s call to the judge’s former secretary could reasonably have been for the purpose of gathering information to add to the disciplinary complaint Young had been in the process of compiling against the judge.

|7The first circuit also determined that stalking is a specific intent crime and found that, even assuming that the State had successfully proven willful, malicious, and repeated “harassing,” the trial court should have had reasonable doubt that Young acted with the requisite specific intent. Notably, the prosecution failed to demonstrate both that the defendant had ever spoken to the judge outside of the courtroom except in relation to his civil case and that Young had ever conveyed a threat or a semblance of a threat either orally, in writing, or physically. Thus, the State failed to prove that the defendant had the specific intent to place the judge in fear of death or bodily injury.

The difference between the reversals issued in Rico and Young and the affirmance in Higginbotham appears to be whether the State presented evidence that the defendant made any overt threat of death or bodily injury to the victim in order to prove the specific intent requisite to support a stalking conviction. In this case, there is no evidence that Defendant followed the Wrights. Thus, in order to prove stalking, the State must have proven that Defendant harassed the Wrights, which means that the prosecution must have introduced evidence showing that Defendant committed a series of acts, i.e., verbal or nonverbal communications addressed to the Wrights, evidencing his specific intent to inflict a continuity of emotional distress upon them. La.R.S. 14:40.2.

Louisiana Revised Statutes 14:40.2 does not specifically define “following,” and the Higginbotham, Rico, and Young courts all seemed to apply the standard interpretation of the term “following” to their cases: pursuit by traveling after. The Higginbotham court determined that driving past or standing near someone’s abode did not constitute “following.” Higginbotham, 790 So.2d at 650. The Rico court found a “following” when the accused closely pursued the victim. Rico, 741 So.2d at 777. The Young court concluded that parking near someone’s home and frequenting areas where and at times the alleged victim would typically be present did not constitute “following.” Young, 712 So.2d at 285. Therefore, as Defendant did not pursue the Wrights, the State failed to establish a “following” in this instance.

A stalking may occur when a perpetrator willfully, maliciously, repeatedly, and uninvitedly is present at someone’s home and the perpetrator makes verbal or behaviorally implied threats that would cause a reasonable person to become alarmed or suffer emotional distress. Id. Because constitutionally protected activity is not included in the prohibited actions; because Defendant had the right to travel on the public roadway, use the parking area of the public walking park, and access the public areas of the apartment complex; and, because driving on the road and turning around in public parking areas do not constitute communication, those actions should not be considered a series of acts constituting harassment.

Since the State failed to prove that Defendant had the specific intent to commit stalking through submitting evidence showing that Defendant verbally or behaviorally communicated a threat to either of the Wrights, the prosecution failed to prove beyond a reasonable doubt that the Defendant was guilty of either stalking or attempted stalking. Therefore, the trial court, as a reasonable trier of fact, should not have found the essential elements of stalking proven beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. Accordingly, we reverse Defendant’s conviction, vacate Defendant’s sentence, and enter an order of acquittal.

|9Our decision on the issue of insufficiency of the evidence renders moot the Defendant’s contention that his waiver of a jury trial was invalid.

CONCLUSION

Based on the foregoing, we reverse the conviction of the Defendant, Timothy J. Ryan, vacate his sentence, and enter an order of acquittal.

CONVICTION REVERSED; SENTENCE VACATED; ORDER OF ACQUITTAL ENTERED.

COOKS, J., dissents and would affirm the defendant’s conviction and sentence.

      . The statutory definition of "harassing” defines it as a “repeated pattern of verbal communications or nonverbal behavior”; however, the examples of nonverbal behavior given in the statute are all communicative in nature: e-mailing or sending messages via other means. La.R.S. 14:40.2(C) (emphasis added). This appears to clarify and codify the principles set forth in the jurisprudence regarding the need to have the threat communicated by the defendant.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Rita SENSAT.
    No. 07-425.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2007.
    John F. DeRosier, 14th JDC District Attorney, Lake Charles, LA, for Plaintiff Appellant, State of Louisiana.

      Stephen R. Streete, Salter & Streete, Lake Charles, LA, for Defendant Appellee, Rita Sensat.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

_jjln this case, the defendant, Rita Sen-sat, was charged with driving while intoxicated, second offense, in violation of La. R.S. 14:98, and with careless operation, in violation of La.R.S. 32:58. The trial court granted Defendant’s Motion to Suppress the evidence of her first DWI conviction. The State has appealed that ruling. For the following reasons, we reverse the trial court’s ruling and remand with instructions.

OPINION

In its assignment of error, the State argues that the trial court committed three errors when it granted Defendant’s motion to suppress/quash the DWI enhancement charge. First, the State contends that the trial court erred in considering an improperly titled and untimely filed defense motion. Pursuant to La.Code Crim.P. art. 521, the State correctly maintains that a pretrial motion is to be filed within fifteen days after arraignment unless a different time is provided by law or fixed by the court at the time of arraignment upon a showing of good cause. In the instant case, Defendant filed her motion entitled “Motion to Suppress” on the date of trial which was several months after her arraignment.

The State also points out that La.Code Crim.P. art. 703(C) governs the deadline for filing motions to suppress and that the motion must be filed within the Article 521 time limits unless grounds for the motion were unknown at that time. Article 703(C) provides:

A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the |amotion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

Additionally, the State complains that pursuant to La.Code Crim.P. art. 531, the proper method of challenging a bill of information is via a motion to quash, not a motion to suppress. Article 531 states, “All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.”

In support of its argument, the State refers us to a similar situation in State v. Branch, 00-1668 (La.App. 5 Cir. 3/28/01), 784 So.2d 43, wherein the trial court quashed two predicate charges, which formed the basis of the bill of information charging the defendant with third offense DWI. The defendant had filed a written Motion to Suppress Confession, Identification, and Physical Evidence, but not a motion to quash. At the suppression hearing, the defendant told the trial court that he wished to frame his motion as a motion to suppress and quash at the same time. No written motion to quash was filed. On appeal, our colleagues on the fifth circuit noted that pursuant to La.Code Crim.P. arts. 531-533, a motion to quash was the procedural vehicle for challenging an indictment or a bill of information. Further, the court referred to La.Code Crim.P. art. 536, which requires a motion to quash to be in writing, signed by the defendant or his attorney, filed in open court or in the office of the clerk of court, and specify distinctly the grounds on which it is based. The appellate court concluded that although it seemed that the trial court intended to grant the motion to quash, it was improper to have done so, given the absence of a written motion. The court stated:

|3The motion to quash was never properly before the trial judge, and the motion in the record does not provide any grounds on which the trial judge could properly have ruled on the constitutionality of the two predicate DWI convictions. We find that the record, as it stands, simply does not allow review of a ruling regarding whether the two convictions may be used as the basis of an enhanced charge.

Id. at 45 (emphasis in original). The matter was remanded to the trial court to allow for clarification of why the defendant was challenging his previous two DWI convictions, and the parties were instructed that any such challenges must be properly before the court before they could be ruled on.

In the case at hand, Defendant filed a Motion to Suppress which sought to suppress evidence of her first DWI conviction, alleging that it did not comply with the Boykin standards. We note that following the trial court’s ruling on Defendant’s motion, she moved to amend the motion to that of a dual motion to quash and suppress. However, a written motion to quash the bill of information was never filed. As in Branch, it seems that the trial court intended to grant the motion to quash, which was improper because of the absence of a written motion. Accordingly, the motion to quash was not properly before the trial court. As such, the matter is remanded to the trial court to allow for the proper filing of a written motion to quash to allow Defendant to specify why she is challenging her previous DWI conviction.

Next, the State argues that the trial court erred when it failed to hold a contradictory hearing on Defendant’s motion. Specifically, the State maintains that pursuant to La.Code Crim.P. art. 537, all issues of law or fact which arise on a motion to quash shall be tried by the court. Accordingly, the State contends that the statute clearly mandates a contradictory hearing, and the trial court’s refusal to permit the State to introduce witness testimony and relevant evidence at a contradictory hearing 14was in error. We agree that the State was entitled to a contradictory hearing on the motion to quash as stated in Article 537.

In State v. Stewart, 02-196 (La.App. 3 Cir. 10/2/02), 827 So.2d 1277, the defendant filed a motion to quash but there was no indication that a hearing was held on the motion. Neither party challenged the failure of the trial court to conduct a hearing. However, relying on Article 537, we concluded that the State did not have the opportunity to prove the constitutionality of the plea at issue, nor was the defendant allowed an opportunity to present evidence showing that certain charges involved therein were to be tried together absent the plea agreement. Thus, the case was remanded for a hearing where the parties would be given an opportunity to meet their respective burdens.

In the instant case, the motion was raised at the beginning of the trial, but the trial court refused to permit the State to introduce witness testimony and relevant evidence. A review of the transcript indicates that the State was not given an opportunity to prove the constitutionality of the plea at issue. Further, the trial court specifically denied the State’s request to put Defendant’s attorney from the first offense on the stand in an attempt to meet its burden of proving the constitutionality of Defendant’s guilty plea to the first DWI conviction. Accordingly, if the trial court allows the filing of the written motion to quash, it is instructed to hold a contradictory hearing at which both the State and Defendant shall be given the opportunity to meet their respective burdens of proof.

lfiLastly, the State argues that the trial court erred in quashing the charge of DWI second offense. Due to the errors we have addressed and the rulings made herein, a discussion of the merits of the trial court’s ruling is pretermitted at this time.

CONCLUSION

The trial court’s ruling granting Defendant’s Motion to Suppress is reversed and set aside and the case remanded to the trial court for proceedings consistent with the instructions in this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.


text:
    Lynn Marie Sorola CURTIS v. Lawrence N. CURTIS.
    No. 2007-392.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2007.

      Paul M. Hebert, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for Plaintiff/Appellant: Lynn Marie Sorola Curtis.
    Diane Sorola, Lafayette, LA, for Plaintiff/Appellant: Lynn Marie Sorola Curtis.
    Philip C. Kobetz, Lafayette, LA, for Defendant/Appellee: Lawrence N. Curtis.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

pThe plaintiff, Lynn Marie Sorola Curtis (Sorola), appeals the trial court’s judgment in favor of the defendant, Laurence Curtis (Curtis), finding that he was involved in a joint venture and that Lawrence N. Curtis, Ltd. (Curtis Ltd.), owned interest in certain cases which were exchanged for stock in Curtis & Lambert, APLC (Curtis and Lambert). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Sorola and Curtis, an attorney, married in 1987 and divorced May 1, 1998. Sorola filed a petition for partition of community property in October 1998. In September 2000, she filed an amendment to the petition for partition of community property. In October 2000, the trial court rendered a judgment ordering mediation. In December 2002, Sorola filed a motion and traversal as to why certain investments accounts should not be classified as community assets and for valuation of said accounts for partition purposes. In March 2003, Sorola and Curtis were able to agree to a partial community property partition of all of the community movables. In June 2003, Curtis filed a memorandum regarding Sorola’s motion to traverse admitting that certain investment accounts were community property, but denying that any community property existed in his law firm. He further filed a second supplemental and amended sworn detailed descriptive list. Sorola, thereafter, filed a traversal pertaining to the second detailed descriptive list. Following a two day trial in May 2004, the trial court found that all stock issued to Curtis in the Curtis and Lambert ^[¿Corporation, “formerly known as Curtis, Robideaux and Lambert, APLC and formerly known as Curtis Tilley & Robideaux APLC,” was his separate property. Soro-la now appeals.

ISSUES

Sorola assigns as error:
1. The trial court’s finding that there was a joint venture between Curtis, Ltd. and J. Minos Simon, Ltd. and/or J. Minos Simon, individually.
2. The trial court’s finding that Curtis, Ltd. owned interest in certain cases (files) which were exchanged for stock in Lambert.

LAW

The trial court’s determination of what is community property as opposed to what is separate property is a finding of fact. Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. Factual findings of the trial court will not be disturbed in the absence of manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). If a reasonable basis exists in the record for the trial court’s finding, no error has occurred. Id.

Things in the possession of a spouse during the existence of a community regime are presumed to be community; however, that presumption can be rebutted by proof that the thing is separate property. La.Civ.Code art. 2340. In this case, the burden rests with Curtis to prove that the stock was his separate property. Pursuant to La.Civ.Code art. 2338, community property includes:

[P]roperty acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to |3the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

Louisiana Civil Code article 2341, defines separate property in part as:

[Pjroperty acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used[.]

Curtis acquired the stock in question in February 1991. Thus, as it was during the existence of the community of acquets and gains, it is presumed to be community property. Curtis bears the burden of proving that the stock was his separate property. The trial court found that he met that burden. In the trial court’s extensive oral reasons for judgment it stated:

The Court is being asked to determine whether the stock issued to Lawrence N. Curtis individually by Curtis and Lambert, A Professional Law Corporation, belonged to Mr. Curtis’ separate estate or to the community of acquets and gains formerly existing between him and Lynn Marie Sorola.
In 1982, Mr. Curtis and Mr. Simon entered into discussions concerning forming some kind of relationship to handle legal matters for mutual clients.
Mr. Curtís and Mr. Simon met personally on at least two occasions to discuss this relationship. Mr. Curtis had two goals in mind. He did not want to become an employee of Mr. Simon. And he wanted to practice in the same building complex where Mr. Simon practiced. Mr. Curtis consulted Mr. John Wright who suggested he form Lawrence N. Curtis, Ltd., A Professional Law Corporation.
The arrangement worked out between Mr. Simon and Mr. Curtis was that Mr. Curtis would arrange to have clients of [his former employer’s corporation] discharge their corporation as their attorney, and the clients would sign new contracts with J. Minos Simon, Ltd. On those cases and every new case brought in by either attorney, there would be a fee split of two-thirds to Simon and one-third to Curtis.... All new Lease contracts would also be between the clients and J. Minos Simon, Ltd., as well. As part of this arrangement, Simon would pay the expenses of the case, as well as the library, overhead, and office salaries.
The arrangement was struck and Mr. Curtis moved his law office into the building complex where Mr. Simon practiced and which was owned by a company Simon owned. Lawrence N. Curtis, Ltd., a Professional Law Corporation, was formed a week or two after on June 14,1982.
The Court notes that the arrangement reached between Mr. Simon and Mr. Curtis was completely verbal and no written documents exist as to this transaction. The Court finds this arrangement to be a joint venture where the participants each acquired an interest in cases and shared in profits and losses according to a fixed formula.
The Court, therefore, finds that Lawrence N. Curtis, Ltd., A Professional Law Corporation, was engaged in a joint venture with J. Minos Simon, Ltd., and later with J. Minos Simon individually. Also Lawrence N. Curtis., Ltd., had an ownership interest in the cases represented by contracts signed between clients and J. Minos Simon, Ltd., and later between the clients and J. Minos Simon individually. This was true from the date of incorporation, as well as during the marriage between Mr. Curtis and Ms. Sorola.
When Curtis, Tilly & Robideaux, A Professional Law Corporation, was formed, the court finds that Lawrence N. Curtis, Ltd., transferred its interest in the existing cases to Mr. Curtis individually. Mr. Curtis then transferred these cases to the new corporation in exchange for his share of stock by having the clients who had contracts with Simon execute new [contracts] with Curtis, Tilly & Robideaux, A Professional Law Corporation.
The question is whether the distribution of these cases from the corporation [Curtis, Ltd.] to Mr. Curtis is a civil fruit or a distribution of an equity interest which is subject to the theory of real subrogation.
The court does not find that the distribution of the ownership in the cases from Lawrence N. Curtis, Ltd., to Lawrence Curtis, individually, was the | ¡^distribution of a civil fruit. Instead, it caused a diminution in the substance of the corporation [Curtis, Ltd.]. As such, the corporation’s interests in the legal cases belonged to Mr. Curtis’ separate estate.

JOINT VENTURE

In Coffee Bay Investors, L.L.C. v. W.O.G.C. Co., 03-406, pp. 7-8 (La.App. 1 Cir. 4/2/04), 878 So.2d 665, 670, writ denied, 04-1084 (La.6/25/04), 876 So.2d 838 (footnote omitted), the law pertaining to joint venture was discussed:

A joint venture has been defined as “a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.” Grand Isle Campsites, Inc. v. Cheek, 262 La. 5, 19, 262 So.2d 350, 355 (1972), citing Daily States Publishing Company v. Uhalt, 169 La. 893, 901, 126 So. 228, 231 (1930). Generally, the object and the motive behind a joint venture are the anticipated profits derived from a specific business enterprise. See Hayes v. Muller, 245 La. 356, 367, 158 So.2d 191, 195 (1963); Williamson v. Roberts, 103 So.2d 499, 504 (La.App. 2nd Cir. 1958). The existence or nonexistence of a joint venture is a question of fact, although what constitutes a joint venture is a question of law. Grand Isle Campsites, 262 La. at 24, 262 So.2d at 357.
The essential elements of a joint venture are generally the same as those of partnership, i.e., two or more parties combining their property, labor, skill, etc., in the conduct of a venture for joint profit, with each having some right of control. Cajun Electric Power Cooperative, Inc. v. McNamara, 452 So.2d 212, 215 (La.App. 1st Cir.1984), writ denied, 458 So.2d 123 (La.1984). Accordingly, joint ventures are generally treated by our law as a species of partnership, and governed by the law of partnerships. Id. For example, there is a fiduciary duty between members of a joint venture similar to that which exists between partners in a partnership. Sutton v. Fleming, 602 So.2d 228, 230 (La.App. 3rd Cir.1992).
Louisiana Civil Code article 2801 defines a partnership as follows:
A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.
|fiThe requisite criteria for the existence of a joint venture (and a partnership) have been defined as follows:
(1) A contract between two or more persons;
(2) A juridical entity or person is established;
(3) Contribution by all parties of either efforts or resources;
(4) The contribution must be in determinate proportions;
(5) There must be joint effort;
(6) There must be a mutual risk vis-a-vis losses;
(7) There must be a sharing of profits.
Cajun Electric, 452 So.2d at 215.
These criteria require findings of fact. Tabco Exploration, Inc. v. Tadlock Pipe & Equipment, Inc., 617 So.2d 606, 609 (La.App. 3rd Cir.), writ denied, 625 So.2d 1057 (La.1993).

Although we may have found differently had we been sitting as the trier of fact, having thoroughly reviewed the record, we cannot say it was manifest error for the trial court to find that a joint venture existed between J. Minos Simon/J. Minos Simon, Ltd. and Lawrence N. Curtis, Ltd. as a reasonable basis for that finding exists in the record. Although Simon was deceased at the time of trial, it is clear from the record that he and Curtis had an oral agreement to split fees wherein Curtis received 1/3 of the fees and Minos received 2/3 of the fees, in return for their efforts and resources. The formation of Curtis, Ltd. occurred at the same time that Curtis entered into the arrangement with Simon. Further, Simon issued checks to Lawrence N. Curtis personally and Curtis thereafter deposited all funds through his corporation, which issued him a paycheck.

|7SoroIa asserts that there was insufficient evidence in Curtis, Ltd.’s books that Curtis shared in the losses. However, Curtis testified that he did share in any losses that may have occurred. Additionally, his and Simon’s CPA, John Wright, indicated that Minos and Curtis, Ltd. split fees and expenses. Moreover, Curtis, Ltd.’s tax returns for the years 1984-1991 reveal deductions for expenses for court fees, witness fees, medical advances to clients, and deposition costs. Obviously, these types of fees and costs are what one would consider a loss if a case was not eventually successful and revenue producing. Based on the foregoing, we still cannot find that it was manifestly erroneous for the trial court to find that a joint venture existed. Accordingly, Simon and Curtis, Ltd. jointly had an interest in the case files in question. As Curtis, Ltd. was formed prior to the marriage, its interest in the case files remained his separate property.

FRUIT VERSUS EQUITY INTEREST/PRODUCT

Louisiana Civil Code Article 551 defines the kinds of fruits. Fruits derive from another thing without diminishing its substance. Id. Civil fruits are “revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.” Id.

Louisiana Civil Code Article 2339 addresses the fruits and revenues of a spouse’s separate property: “The natural and civil fruits of the separate property of a spouse ... are community property. Nevertheless, a spouse may reserve them as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.”

|8On the other hand, La.Civ.Code art. 488 states that: “Products derived from a thing as a result of diminution of its substance belong to the owner of that thing.” Thus, if the case files are viewed as a fruit of Curtis, Ltd., they are community property. Whereas, if they are viewed as a product, that is, Curtis, Ltd.’s value was diminished when the case files were “distributed” to Curtis, then they remain Curtis’ separate property.

The facts are that no formal corporate “distribution” took place between Curtis, Ltd. and Curtis. At the time of his departure from the joint venture with Simon, Curtis left with his existing files, (in which his clients had executed a contract with Simon and implicitly Curtis, Ltd. due to the existence of the joint venture) and had his clients execute new contracts with Curtis and Lambert.

Sorola’s main argument centers on the fact that Curtis’s interest in the case files “resulted from his labor, skill, and industry during the marriage and, therefore, [Cur-tisj’s stock in “Curtis & Lambert” should be community property.” This argument is flawed. The community did benefit from Curtis’s labor and skill expended on the cases in that it was undisputed at trial that the files generated income into the community from the fees which flowed from those case flies to the tune of $555,195.59 over a three year period during the marriage. This situation would be no different than a spouse having stock ownership in a law firm prior to a marriage and having his/her income flow to the community after the marriage. The community would not acquire the stock in the law firm anymore than it would acquire an interest in any other stock owned by a spouse prior to marriage.

|8We do not find any error in the classification of the distribution of the case files from Curtis, Ltd. to Curtis individually as a “product” rather than a “fruit.” Clearly, a substantial asset of any law corporation is its case files. Thus, if the files leave the law firm, the law firm’s value has been diminished. Accordingly, we find the trial court properly held that the distribution of the case files was a distribution of capital assets or a “product.” The distribution of the case files remained Curtis’ separate property.

REAL SUBROGATION

Finally, the trial court found that via real subrogation, Curtis’ stock in Lambert remained his separate property. We agree.

The principle of real subrogation has long been applied to allow a spouse with separate assets to manage and replace those assets as a patrimonial mass independent of the community.
Partnership interests owned by a person before marriage remain separate property. If that equity position is replaced with a similar equity interest in a succeeding partnership or corporation, real subrogation occurs and the new interest remains a separate asset.

Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise: MatrimoNial Regimes, § 3.47 (2d ed.1997) (citations omitted).

The trial court found that Curtis’ equity interest in Curtis, Ltd. was replaced with a similar equity interest in Curtis and Lambert when he exchanged the ease files that were distributed to him from Curtis, Ltd. for stock in Curtis and Lambert. The original equity position (case files) was replaced with a similar equity portion in the new corporation; accordingly real subro-gation occurred and the new interest (stock) remained Curtis’ separate asset. Therefore, we find no manifest error |inin that finding. Accordingly, this assignment of error is without merit.

CONCLUSION

The judgment of the trial court in favor of the defendant, Lawrence N. Curtis, is affirmed. All costs of this appeal are assessed against the plaintiff, Lynn Marie Sorola Curtis.

AFFIRMED.

      . For simplicity we will refer to any law practice in which Curtis was involved subsequent to 1991 as "Curtis and Lambert." We note however that Curtis, Tilly & Robideaux was formed in February 1991; Curtis, Robideaux, & Lambert in October 1992; and Curtis and Lambert in December 1992.


text:
    Marcelle Anderson STELLY v. Michael STELLY.
    No. 2007-640.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2007.

      Roger Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Defen-danVAppellant, Michael Stelly.
    Anthony Jerome Fontana, Jr., Abbeville, LA, for Plaintiff/Appellee, Marcelle Anderson Stelly.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

pThe defendant-appellant, Michael Stelly, filed an exception of no cause of action in September 2006 against the plaintiff-appellee, Marcelle Stelly, when she requested a hearing on remaining issues in her earlier-filed rule on various child support issues. Michael Stelly contends that because the issue of past due support was resolved in a hearing and a consent judgment signed the year before, the consent judgment terminated all other causes of action asserted in Marcelle’s original rule, even though the other issues were not addressed at the hearing or in the consent judgment. The trial court set a new hearing, denied Michael’s exception, and issued a judgment granting Marcelle relief on all remaining issues in her rule. On the issue of an increase in child support, the trial court granted the increase and made it retroactive to the filing date of the rule, June 21, 2005.

I.

ISSUE operates to terminate all other pending issues?

Where multiple issues in a domestic case are set for hearing, and only one of the issues is addressed at the hearing and resolved by a consent judgment, does the resolution of one issue by judgment

II.

FACTS

Michael Stelly was behind in his child support obligation of $250.00 per month. In June of 2005, Marcelle Stelly filed a “Rule for Past Due Support, Contempt, Attorney’s Fees, Increase in Child Support and Income Assignment.” At the August 2005 hearing, Marcelle and Michael consented to a judgment ordering Michael to pay past due child support of $3,150.00 by paying $750.00 up front and by having $500.00 per month ($250.00 for the original obligation, plus $250.00 ^toward the ar-rearage) deducted from Michael’s paycheck until the past due child support obligation was satisfied. No other issues were addressed at the hearing.

Likewise, the resulting consent judgment addressed only the past due support and did not address the parts of Marcelle’s motion asking for damages for contempt of court, attorney fees, and an increase in future support payments. In August 2006, Marcelle asked for a hearing on these remaining issues. Michael filed an exception of no cause of action, arguing that the consent judgment of August 2005 terminated all issues before the court at that time, and that the judgment’s silence on certain issues was deemed a denial of the relief sought on those issues. Marcelle argues that the law requiring that all issues be raised or abandoned specifically excludes divorce, custody, visitation, and child support actions.

The trial court denied Michael’s exception and, based upon calculations and stipulations entered at a Hearing Officer Conference the previous week, issued a judgment increasing Michael’s child support payments retroactive to June 21, 2005, the date of the filing of Marcelle’s rule for an increase. The trial court’s judgment also ordered an income assignment for the new amounts and the resulting arrearages, and it ordered Michael to pay Marcelle $500.00 in attorney fees.

III.

LAW AND DISCUSSION

In the present case, Michael contends that the trial court erred in granting a judgment on a motion that had been previously compromised by a consent judgment. He cites Duhon v. Lafayette Consol. Government, 05-657 (La.App. 3 Cir. 12/30/05), 918 So.2d 1114, for the proposition that once a claim or cause of action has been reduced to judgment, all other issues which were raised or could have been raised are conclusively resolved. Michael then cites Guaranty Bank & Trust Co. of Alexandria, La. v. Carter, 394 So.2d 701 (La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981), and various cases for the proposition that a judgment that is silent as to part of the relief requested is deemed to have denied that relief.

In the first argument, Michael is essentially asserting the doctrine of res judicata, as he states that “the very issue later litigated was the focus of the [previous] hearing.” This statement is factually incorrect. The motion filed by Marcelle in June of 2005 was entitled “Rule for Past Due Support, Contempt, Attorney’s Fees, Increase in Child Support and Income Assignment.” A hearing was set for the rule, but the only part of the rule that was actually addressed at the August 2005 hearing was the issue of past due support, and an income assignment was ordered as to the issue of support already due. The remaining issues of damages for contempt of court, attorney fees, and an increase in future child support payments were raised in the -rule but not addressed or litigated at the first hearing in 2005. Therefore, these issues were neither omitted from the rule nor later re-litigated, which are the situations generally covered by the laws of res judicata.

More specifically, res judicata has two different aspects: (1) foreclosure of relitigating matters that have never been litigated but should have been advanced in an earlier suit, and (2) foreclosure of relitigating matters that have been previously litigated and decided. La.R.S. 13:4231; La.Code Civ.P. art. 425; Stroscher v. Stroscher, 01-2769 (La.App. 1 Cir. 2/14/03), 845 So.2d 518. The res judicata doctrine must be strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Id. In general, La.R.S. 13:4231 and La.Code Civ.P. art. 425 preclude the same parties from bringing multiple suits on the same issues by requiring them to state all causes of action in one suit arising from an event, and by disallowing the relit-igation of a particular issue in|4subsequent suits when that issue was actually litigated. However, both statutes have exclusions for divorce actions and the matters incidental to divorce. Specifically, the pertinent law states as follows:

La.R.S. 13:4231. Res judicata
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. (Emphasis added)
La.R.S. 13:4232. Exceptions to the general rule of res judicata
B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105 [custody, visitation, child support, spousal support, injunctive relief, use of property issues], in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated. (Emphasis added)
La.Code Civ.P. art. 425. Preclusion by judgment
A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
|SB. Paragraph A of this Article shall not apply to an action for divorce under Civil Code Article 102 or 103, an action for determination of incidental matters under Civil Code Article 105, an action for contributions to a spouse’s education or training under Civil Code Article 121, and an action for partition of community property and settlement of claims between spouses under R.S. 9:2801.

Marcelle argues that there is good reason for the exception in domestic cases because domestic matters are tried over time, and issues of support and custody are important and cannot wait for all other rules to be prepared. She further argues that in the present case, Michael had not provided her with his current wage information at the time of the first hearing. Therefore, an increase of child support could not be addressed at that time, while the arrearage, the income assignment, and the additional $250.00 per month toward the arrearage were ready to go forward, and indeed had been recently agreed upon pursuant to an earlier conference. She asserts that the exclusion for domestic matters was added to Article 425 to assist those in need of support.

We find no need to conduct exhaustive research into the legislative intent of La. Code Civ.P. art. 425 and La.R.S. 13:4231-32 in order to agree with Mareelle on that point. The very existence of interim support is an illustration of the urgency with which the courts treat the welfare of children. It is well-settled that child support issues revolve around the best interests of the children involved, and that the children’s needs, as well as the parents income, are ever-changing factors in determining support, leading to repetitive calculations, the separation of issues, and the resetting of hearings in this area of the law. Accordingly, we find no error on the part of the trial court in setting a new hearing on the remaining issues not litigated or adjudicated in the first hearing, nor in the resulting judgment of September 2006.

_kiv.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court.

AFFIRMED.


author: COOKS, Judge.

text:
    Rosemary WATERS v. BROOKSHIRE GROCERY COMPANY.
    No. 2007-203.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2007.

      J. Morgan Passman, Walker & Passman, L.L.P., Alexandria, LA, for Appellant, Brookshire Grocery Company.
    Steven P. Mansour, Alexandria, LA, for Appellee, Rosemary Waters. .
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, ELIZABETH A. PICKETT, JOHN D. PAINTER and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| Appellant, Brookshire Grocery Company, appeals the judgment of the Alexandria City Court finding it liable for the actions of its employees and awarding the plaintiff, Rosemary Waters, $30,000 in general damages. For the following reasons, we affirm, as amended.

FACTS AND PROCEDURAL HISTORY

This case involves an accident which occurred when Plaintiff, Rosemary Waters, was injured while exiting a Super One Foods store located in Alexandria, Louisiana. While Plaintiff was leaving the store after making her purchases, an individual grabbed money out of a clerk’s cash register and ran for the exit. Two store employees, Lavern Clark and James Valley, became aware of the incident and intercepted the fleeing man just as he was heading through the store exit. During the physical altercation, plaintiff, who was a month shy of her eighty-second birthday, was struck by shopping baskets and knocked into a metal pole.

As a result of the accident, Plaintiff contended she suffered injuries to her cervical, thoracic, and lumbar spine; a laceration of the left forearm; a contusion to the back of the head; an injury to her left knee; and various bruises over her body. Plaintiff filed a petition for damages against Brookshire Grocery Company, the owner of the Super One Foods store, in Alexandria City Court for the damages she sustained in the accident.

After a trial on the matter, the city court judge rendered judgment in favor of Plaintiff, setting forth the following reasons for its liability findings:

The ultimate issue which must be addressed is whether the employees of the Super One exercised reasonable care for the safety of the patrons while physically confronting, restraining and engaging in a physical confrontation with a criminal suspect. The defendant’s primarily rely on the Manning [v. Dillard Department Stores, Inc., 99-1179 (La.12/10/99), 753 So.2d 163] case to absolve Super One from pliability. In Manning, the suspect attempted to flee, stumbled and fell into a shopper as he was running from employees who had detained the suspect. In this case the employees of Super One chased the suspect and in the process of the physical confrontation knocked either shopping baskets, or poles from the security gates at the entrance gate, into Ms. Waters. The court finds this to be a significant distinguishing factor and finds Super One employees failed to exercise reasonable care in protecting a patron from injury while attempting to recover property. The court is of the opinion that a merchant who invites patrons to his store, must make sure he can initiate a physical arrest and confrontation with a suspect in a manner that does [not] cause undue risk of harm to the patrons. The court does not believe that was done in this case. Accordingly, the court finds Super One responsible for the injuries sustained by Ms. Waters. The court does not reduce the recovery for the fault of the suspect since the duty to reasonable protect patrons while apprehending a suspect is the basis for liability, not the fact that the suspect may have simply initiated the chain of events leading to the plaintiffs injury.

The court awarded Plaintiff $30,000.00 in general damages along with special medicals totaling $4,149.33, all totaling $34,149.33.

Brookshire appealed the city court judgment, arguing its employees did not breach any duty owed to Plaintiff, that the city court judge erred in failing to assess fault to the fleeing thief, and that the damages awarded to Plaintiff were excessive.

ANALYSIS

Louisiana courts have adopted a duty-risk analysis to determine whether a party is liable for negligence under the facts of a particular case. Mart v. Hill, 505 So.2d 1120 (La.1987). This court in Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234, 1237 (La.App. 3d Cir.), writ denied, 620 So.2d 848 (La.1993), discussed the duty store owners owe to their patrons:

Store owners owe a duty to patrons to take reasonable care for their safety, although they are not the insurer of the patron’s safety. Butler v. K-Mart, 432 So.2d 968 (La.App. 4th Cir.1983); Phillips v. Equitable Life Assur. Co., 413 So.2d 696 (La.App. 4th Cir.1982), writ denied, 420 So.2d 164 (La.1982). Proprietors of public places have a duty to protect patrons from injuries caused by third parties when it is within their power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir.1965).
Is A store owner’s right to detain shoplifters and protect inventory must be balanced against the duty it owes to patrons to take reasonable steps to guard their safety, which may in certain instances include the harm occasioned by fleeing shoplifters. Bolden v. Winn Dixie, 513 So.2d 341 (La.App. 4th Cir. 1987), writ denied, 514 So.2d 1177 (La. 1987). When store owners undertake to exercise their “police-like” authority to detain shoplifters, they must do so with reasonable caution to avoid placing patrons in foreseeable danger.

As the trial court noted, appellant relies on Manning v. Dillard Department Stores, Inc., 99-1179 (La.12/10/99), 753 So.2d 163, in support of its argument that it is free of liability in this matter. In Manning, a woman was detained in a department store while a possible stolen credit card was checked. When security for Dillard’s attempted to phone the cardholder, the suspect fled down an eight-foot-wide aisle that was “somewhat crowded with Christmas shoppers.” After running approximately 150 feet from the area where she had been detained, the suspect stumbled in the aisle and fell into, a customer, who was standing at a table by the aisle The court in Manning found no liability because the patron was not injured due to any action of store personnel. The trial judge in the present case distinguished the present case from Manning because here the employees of Super One chased the suspect and in the physical confrontation that followed shopping baskets were knocked into Plaintiff and she was pushed into a pole at the entrance gate. “But for” the “tackling” of the fleeing thief, Plaintiff would not have been injured. Therefore, we agree with the trial judge that the facts in this case are distinguishable from Manning.

Clearly, the actions of the Super One employees contributed to the harm that befell Plaintiff. Although the testimony of Clark and Valley at trial attempted to downplay the physicality of the apprehension of the thief, Mr. Valley’s statement, taken less than two weeks after the event occurred, indicated the thief was “wrestled” to the ground. As we stated in Brock, “[w]hen store owners undertake to exercise their ‘police-like’ authority to detain shoplifters, they must do so with reasonable | ¿caution to avoid placing patrons in foreseeable danger.” Id. at 1237. If a shoplifter is to be pursued in a store, then that pursuit must be done in such a way that it does not present an unreasonable risk of harm to customers. See Bolden v. Winn Dixie, 513 So.2d 341 (La.App. 4 Cir.1987). Here, the trial court concluded the tackling of the thief by the store employees as he was exiting the store did not exercise reasonable care for the safety of its customers. After a review of the record and jurisprudence, we cannot say that conclusion was manifestly erroneous.

Appellant also argues that the lower court erred in failing to apportion some fault to the thief. The lower court chose not to assess fault because “the duty to reasonably protect patrons while apprehending a suspect is the basis for liability, not the fact that the suspect may have simply initiated the chain of events leading to the plaintiffs injury.”

Plaintiff argues her injuries “resulted solely from the actions of the store employees.” We cannot agree. Without the actions of the thief in grabbing money from a clerk’s register and running for the exit, no actions by the store employees would have been necessary. While the store employees may have been improvident in their choice of action, it does not absolve the thief from fault. While we do not disagree that a cause in fact of Plaintiffs injuries was the store employees’ failure to properly apprehend the fleeing thief, we find it difficult not to assess “some fault” to the thief. Thus, we assign forty percent (40%) as the lowest fault percentage attributable to the thiefs conduct within reasonable range of the trial judge’s discretion. See Brock, 617 So.2d 1234. Accordingly, the appellant’s fault is reduced to sixty percent (60%).

Lastly, appellant argues the trial court’s award of $30,000 in general damages is excessive. The standard for an appellate review of damages was established Reck v. Stevens, 373 So.2d 498 (La.1979) and confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Those cases instruct that we cannot disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. After carefully reviewing the record, we find that the trial court did not abuse its discretion in its damage award. The trial court set forth the following reasons for rendering its damage award:

Ms. Waters was 82 years old at the time of this accident. She immediately sought treatment at Rapides Regional Medical Center for a laceration to her left forearm along with complaints of pain to her left knee and the back of her head. She continued to have back and neck pain and she saw her family doctor on December 12, 2003. She also underwent an MRI on December 13, 2003. She was then seen by a neurosurgeon on January 7, 2004. She was then treated with physical therapy through February 25, 2004. She was still complaining of pain when she returned to Dr. Barton and Dr. Vaughn during the middle of September of 2004. Ms. Waters testified that she still was suffering pain related to this incident 2½ years later at trial. There was corroborating testimony at trial that Ms. Waters was quite active prior to this incident and the injury significantly compromised her lifestyle over the last 32 months. The court found Ms. Waters to be a very credible witness and believes she has suffered a significant reduction in her quality of life since the accident.

Our review of the record convinces us that the trial court thoroughly considered the individual circumstances of the subject case before making his award. While we, or another trier of fact, may have made a different award, we do not find the award so high as to shock our conscience or to be a clear abuse of the vast discretion afforded a trier of fact in making damage awards.

DECREE

For the foregoing reasons, the lower court judgment is amended to reduce Appellant’s apportioned fault to sixty percent (60%). In all other respects the judgment is affirmed. Costs of this appeal are assessed equally to the parties.

AFFIRMED, AS AMENDED.

GENOVESE, J., dissents and assigns written reasons.

PICKETT, J., dissents for the reasons assigned by Judge GENOVESE.

GENOVESE, J., dissents and assigns the following reasons.

| iBased on the particular facts in this case, I disagree with the majority’s reduction of Brookshire’s fault. This was a factual determination, and there was no manifest error on the part of the trial court. Though the actions of the thief were a cause in fact, said actions were not the proximate or legal cause of plaintiffs injury. I would affirm the trial court as to the issue of liability.

As to the issue of damages, considering the medical evidence in the record, I find the trial court’s award of $30,000.00 for plaintiffs injuries to be excessive and would reduce said award to $20,000.00.