source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kymekha BUTLER, Appellant.
    No. 41,982-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.

      Louisiana Appellate Project, by Mark Owen Foster, Indigent Defender Board, by William Rick Warren, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

pKymekha Butler seeks review of her four-year hard labor sentence for felony theft in excess of $500.00. La. R.S. 14:67. The trial court denied her motion for reconsideration of sentence. We affirm.

Defendant argues that:

• the sentence is excessive because this is her first felony conviction;
• the trial court should not have held the pending theft by shoplifting charge in Monroe against her because she contested its existence;
• she has a family to support;
• she would respond well to probation;
• the trial court was unduly annoyed with her for missing her last sentencing hearing, but she was not notified of the court date;
• the trial court was also unduly annoyed with her for missing her appointment with the probation officer for the presentence investigation; and
• because she was incarcerated, she was available for interview by the probation officer.

The state responds that:

• because of the defendant’s substantial criminal history for shoplifting and theft charges, the trial court did not abuse its discretion in sentencing;
• the guilty plea here yielded a substantial benefit to her because of the dismissal of other charges; and
• the trial court properly considered the sentencing guidelines of La. C. Cr. P. art. 894.1.

Our law on review for excessiveness of sentence is well settled.

| ¡¿Defendant pled guilty to one count of felony theft in excess of $500.00 in exchange for the state dismissing other pending charges of conspiracy to commit felony theft and contributing to the delinquency of a minor. The trial court then ordered that a presentence investigation be conducted, which revealed that:

• defendant and two other females acquired merchandise at Wal-Mart valued at $312.90 by paying for it with a stolen check, then went back to acquire merchandise valued at $269.13 with another stolen check;
• store officials became suspicious after the second incident and called law enforcement, but defendant left before law enforcement arrived; and
• the defendant was defiant and created a scene when confronted.

La. R.S. 14:67(B)(1) states that the sentence for theft of $500.00 or more is imprisonment, with or without hard labor, for not more than ten years, or a fine of not more than $3,000.00, or both. Defendant’s four-year sentence falls within the low to mid-range of the prison term that could have been imposed.

| aAt the sentencing hearing, the trial court gave the defendant the opportunity to explain why she failed to appear for the sentencing hearing set for November 14, 2005, to which she stated, “No, sir. Just sorry for skipping court or whatever.” The trial court asked her if “or whatever” included her failure to report to the probation officer conducting the presentence investigation, and she denied knowing anything about the presentence investigation. The transcript of the August 22, 2005, hearing where defendant pled guilty shows that the trial court announced that it was setting the sentencing hearing for November 14, 2005. Further, the presentence investigation report indicates that defendant was served with a certified letter instructing her to contact the office of probation and parole for the presentence investigation and that she failed to do so.

The trial court noted that while this conviction was defendant’s first felony conviction, the defendant had a substantial misdemeanor criminal history for theft-related offenses: (1) theft by shoplifting conviction in 1998; (2) criminal mischief conviction in 2000 that originated from an arrest for theft by shoplifting; (3) unauthorized use of an access card conviction in 2001; and, (4) theft by shoplifting conviction in 2002.

At the guilty plea, the state dismissed two other related charges. The trial court also noted that there was a pending charge against defendant for theft by shoplifting in Monroe, a circumstance disputed by the defendant.

The trial court found that there was undue risk that defendant would commit another crime if given probation or a suspended sentence; that a lesser sentence would deprecate the seriousness of the crime; that there were |4no grounds or circumstances to justify the defendant’s conduct; that the defendant’s conduct was the result of circumstances likely to recur; and, that defendant was not likely to respond well to probationary treatment, especially in light of her failure to cooperate with the presentence investigation. Thus, a review of the record indicates that the learned trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

This sentence of four years for felony theft in excess of $500.00 is not grossly disproportionate to the seriousness of the offense, and it does not constitute needless infliction of pain and suffering. Given defendant’s criminal history for theft-related offenses, a four-year sentence does not shock the sense of justice. In light of these circumstances, the trial court did not abuse its discretion, and the sentence is not constitutionally excessive.

DECREE

The sentence is AFFIRMED.

      . In reviewing claims of excessiveness of sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,-767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385.
      Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).
      A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.


author: PETTIGREW, J. HUGHES, J.,

text:
    Ernest HALL, Jr., Odean Hall Wilson, Rose Hall Griffin, and Daisy Faye Hall Malbury v. OUR LADY OF THE LAKE R.M.C.
    No. 2006 CA 1425.
    Court of Appeal of Louisiana, First Circuit.
    June 20, 2007.

      William T. Lowrey, Jr., Baton Rouge, LA, for Plaintiff-Appellant, Ernest Hall, Jr., et al.
    Douglas K. Williams, Lervette J. Blair, Baton Rouge, LA, for Defendant-Appellee, Our Lady of the Lake Hospital.
    Before PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

|aIn this medical malpractice action, plaintiffs’ mother was hospitalized after sustaining a right hip fracture. After undergoing surgery to repair her hip, plaintiffs’ mother was later found to be unresponsive and in respiratory distress, necessitating emergency resuscitation. As a result, plaintiffs’ mother suffered a decreased mental status, requiring further hospitalization, physical therapy, skilled nursing care, and home attendants. Plaintiffs’ mother ultimately died several months following her release from the hospital.

Plaintiffs thereafter filed a complaint against the hospital seeking to have a Medical Review Panel determine whether their mother’s respiratory distress, emergency resuscitation, and further hospitalization was the result of overmedication. Following a conclusion by the Medical Review Panel that the hospital did not breach the requisite standard of care, plaintiffs filed the instant suit. The hospital was later dismissed via summary judgment, and this appeal followed. We hereby reverse.

FACTS

On or about September 11, 2001, Marie Hall, age 79, was admitted to Our Lady of the Lake Regional Medical Center (“OLOL”) in Baton Rouge to undergo surgery, for the repair of a right hip fracture that Ms. Hall had sustained as a result of a fall in her home. Ms. Hall related a history of emphysema, chronic obstructive pulmonary disease (COPD), bronchitis, and hypertension. After undergoing a right total hip arthroplasty performed by Dr. Brent Bankston on September 12, 2001, Ms. Hall was transferred postoperatively to the orthopaedic unit for further monitoring and assessment. In the orthopaedic unit, Ms. Hail was monitored by nurse Dawn Lessard, who performed a complete assessment on Ms. Hall and noted that her vital signs were within normal limits. Later Ms. Hall complained of severe postoperative pain, and hospital records reflect that nurse Lessard administered 25 mg. of Demerol pursuant to Dr. Bankston’s post-op orders at approximately 3:15 P.M. Due to Ms. Hall’s persistent complaints of pain, nurse Lessard administered 5 mg. of Lor-tab at 5:30 P.M., but Ms. Hall’s vital and neurological signs remained within normal limits. Due to Ms. Hall’s continued complaints of unrelenting 13pain, nurse Lessard contacted Dr. Bankston’s assistant at 6:30 P.M. and advised that despite the administration of both Demerol and Lortab, Ms. Hall was not obtaining any relief. The physician who was taking Dr. Bankston’s calls that evening called back and directed nurse Lessard to utilize Dr. Bankston’s routine morphine orders: 5-15 mg. every 2-3 hours as needed for severe pain. As Ms. Hall continued to complain of severe pain, nurse Lessard administered an injection of 15 mg. of morphine to Ms. Hall.

Ms. Hall’s condition was monitored by the OLOL nursing staff throughout the evening, and periodic assessments revealed that Ms. Hall was drowsy, but easily aroused, and resting quietly. Ms. Hall’s vital and neurological signs remained within normal limits. At approximately 10:15 P.M., Ms. Hall was found unresponsive, and a code was called. Ms. Hall was thereafter resuscitated and later transferred to MICU. On September 15, 2001, Ms. Hall was transferred back to the or-thopaedic floor where she continued to improve. Ms. Hall was discharged from OLOL on October 24, 2001.

Ms. Hall was readmitted to OLOL on October 27, 2001, with exacerbation of chronic obstructive pulmonary disease (COPD) and congestive heart failure. She was discharged and returned to her home on November 9, 2001. Ms. Hall later died on December 12, 2001, due to complications from atherosclerotic cardiovascular disease.

As a result of the foregoing, Ms. Hall’s children, Ernest Hall, Jr., Odean Hall Wilson, Rose Hall Griffin, and Daisy Faye Hall Malbury (collectively referred to herein as “plaintiffs”), filed a complaint against OLOL with the Patient’s Compensation Fund seeking a determination by a Medical Review Panel as to whether their mother’s respiratory arrest was the result of medical malpractice. The Medical Review Panel convened and rendered an opinion on November 9, 2004, wherein it concluded that “the evidence does not support the conclusion that [OLOL] failed to meet the applicable standard of care as charged in the complaint.” The Medical Review Panel specifically found that:

It was reasonable for the nursing staff to address and attempt to alleviate the patient’s pain which was certainly extreme following hip surgery. After the patient received pain medications, both the patient and the family members were, shortly thereafter, requesting more medications for pain. The nurse contacted the on-call physician for Dr. Bankston and received an order to use Dr. Bankston’s routine morphine orders, 5-15 mg. IM every 2-3 | ¿hours. It should be noted that the nurse was reasonably experienced with post-op surgical patients. Although she precisely followed the morphine order, she theoretically deviated from the physician order in giving a single dose of Lortab earlier that [sic] the parameters of the order. However this was all done to address the concerns of the patient and the family. The panel feels that the Lortab played a very minor role in the management of this complicated case.

ACTION OF THE TRIAL COURT

Following the rendition of the report by the Medical Review Panel, the plaintiffs filed the instant suit against OLOL in the 19th Judicial District Court on February 4, 2005. In their Petition for Damages, plaintiffs alleged that OLOL, through its nursing staff, failed to properly administer narcotic pain medication to Ms. Hall given her status, prior history, and condition.

OLOL responded to the plaintiffs’ petition on March 30, 2005, by filing an answer in the form of a general denial. On April 5, 2005, OLOL forwarded to plaintiffs certain Interrogatories and Requests for Admission pertaining to the identification of experts. Specifically, OLOL requested that plaintiffs admit or deny whether they had knowledge of any expert witness(es) who may have formulated an opinion as to whether OLOL or members of its staff breached any standard of care that may have been owed to Ms. Hall, or whether actions on the part of OLOL or members of its staff caused, or contributed to, Ms. Hall’s subsequent death. Plaintiffs failed to respond to the Requests for Admission forwarded by OLOL within the 15-day period established by La.Code Civ. P. art. 1467, and said requests were deemed to have been admitted.

On December 29, 2005, OLOL moved for summary judgment on the basis that plaintiffs had not offered any expert opinion testimony to establish the standard of care applicable to OLOL, that OLOL had breached the standard of care that it owed to Ms. Hall, or that evidence to establish that any action or inaction on the part of OLOL had caused or contributed to any injury to Ms. Hall that she would not have otherwise suffered. In support of its motion for summary judgment, OLOL offered: (1) the Petition for Damages filed by plaintiffs, (2) medical records of Ms. Hall from OLOL, (3) a copy of Ms. Hall’s | Bdeath certificate, (4) the affidavit of Dr. Todd Cooley and (5) a copy of the Interrogatories and Requests for Admission previously propounded to plaintiffs by OLOL.

On January 4, 2006, plaintiffs responded to the Interrogatories and Requests for Admissions previously forwarded to them by OLOL. Plaintiffs acknowledged that they had spoken with two experts regarding this matter, and planned to introduce at trial the testimony of a registered nurse whom they identified as Patti G. Granzin. Plaintiffs further clarified that the instant suit is not an action seeking damages for the wrongful death of Ms. Hall, but rather a survival action for damages that Ms. Hall and plaintiffs sustained during the period September 12, 2001 to the time of Ms. Hall’s death on December 12, 2001.

OLOL’s Motion for Summary Judgment was originally scheduled to be heard on February 27, 2006, but was continued at plaintiffs’ request until March 20, 2006. On March 8, 2006, plaintiffs filed a Motion to Withdraw Matters Deemed Admitted, a Memorandum in Support of Motion to Withdraw Matter Deemed Admitted, together with a supporting memorandum and a copy of plaintiffs’ answers to OLOL interrogatories and request for admissions.

Both OLOL’s Motion for Summary Judgment and plaintiffs’ Motion to Withdraw Matters Deemed Admitted were heard by the trial court on May 8, 2006. Upon consideration of the law, the evidence and the arguments of counsel, the trial court denied plaintiffs’ Motion to Withdraw Matters Deemed Admitted, and granted OLOL’s Motion for Summary Judgment, thereby dismissing plaintiffs’ claims against OLOL with prejudice and at their cost. It is from the denial by the trial court of their Motion to Withdraw Matters Deemed Admitted and its granting of OLOL’s Motion for Summary Judgment that plaintiffs have appealed.

| .ASSIGNMENT OF ERRORS

In connection with their appeal in this matter, plaintiffs have put forth the following assignments of error for review and consideration by this court:

1. The trial court committed legal error by denying the plaintiffs’ Motion to Withdraw Matters Deemed Admitted because judgment, as a matter of law, was not warranted; and
2. The trial court committed legal error by granting the defendant’s Motion for Summary Judgment because judgment, as a matter of law, was not warranted.

ANALYSIS

Requests for Admissions

In their initial assignment of error, the plaintiffs assert that the trial court committed legal error when it denied their Motion to Withdraw Matters Deemed Admitted. This court has previously recognized that a party may serve upon any other party a written request for the admission of the truth of any relevant matters of fact. La.Code Civ. P. art. 1466. Generally, the matter is deemed admitted if the party to whom the request is directed does not respond within 15 days after service of the request. La.Code Civ. P. art. 1467. Any matter deemed admitted pursuant to La.Code Civ. P. art. 1467 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. La.Code Civ. P. art. 1468. The court may permit withdrawal of an admission when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal of the admission will prejudice him in maintaining his action or defense on the merits. La.Code Civ. P. art. 1468. See Prestage v. Clark, 97-0524, p. 7 (La.App. 1 Cir. 12/28/98), 728 So.2d 1086, 1090, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800.

As this court noted in Prestage, the courts have generally given full effect to articles 1467 and 1468 when there has been a total lack of response to requests for admissions. Vardaman v. Baker Center, Inc., 96-2611, p. 7 (La.App. 1 Cir. 3/13/98), 711 So.2d 727, 732. However, several Louisiana courts have allowed late-filed denials to | requests for admissions to constitute requests for withdrawal of those admissions, even if the responses were provided extremely late and were not presented to the court by a motion to withdraw or amend the admissions. Vardaman, 96-2611 at 8, 711 So.2d at 732.

The language of article 1467 is very clear; the matter is admitted unless a written answer or objection is served on the party making the request within the specified time after service of the request. Vardaman, 96-2611 at 9, 711 So.2d at 732-33. However, article 1467 is not a trap set for the litigant; it provides many options for the party on whom the request is served. For example, if the party cannot answer within the specified time, the court may allow additional time. See La.Code Civ. P. art. 1467; Vardaman, 96-2611 at 9, 711 So.2d at 733.

In the instant case, although the plaintiffs failed to respond to OLOL’s Requests for Admission within the fifteen (15) day period set forth in La. Civ. P. art. 1467, plaintiffs provided responses on January 4, 2006, six (6) days after OLOL moved for summary judgment. On March 6, 2006, two months prior to the May 8, 2006 hearing on OLOL’s Motion for Summary Judgment, plaintiffs moved the court for permission to withdraw the matters deemed to have been admitted. Plaintiffs asserted that inasmuch as the answers to discovery were delivered to OLOL four (4) months prior to the hearing on summary judgment, OLOL was not surprised or prejudiced in its preparation for the summary judgment hearing.

We agree. A review of plaintiffs’ responses to the Requests for Admission and Interrogatories propounded by OLOL discloses that plaintiffs denied one request for admission while admitting the remaining four. Plaintiffs also responded to all sixteen interrogatories. Plaintiffs denied a request for admission that asked them to admit that they knew of no expert witness who had offered an opinion that OLOL, or its staff, breached any standard of care owed to the deceased Ms. Hall. In response to a related interrogatory, plaintiffs disclosed that at the trial of this matter, they intended to offer the testimony of Ms. Patti Granzin, a registered nurse who is also a certified nurse | ^practitioner. Plaintiffs also attached thereto Ms. Granzin’s affidavit and curriculum vitae, as well as Ms. Granzin’s expert opinion and conclusions.

At the May 8, 2006 hearings on plaintiffs’ Motion to Withdraw Matters Deemed Admitted and OLOL’s Motion for Summary Judgment, the trial court denied plaintiffs’ motion, which would appear to preclude the presentation of expert testimony by the plaintiffs. Later, during the hearing on OLOL’s Motion for Summary Judgment, the trial court, in an apparent reversal of its earlier holding, admitted, without objection, Ms. Granzin’s affidavit and curriculum vitae, as well as Ms. Gran-zin’s expert opinion and conclusions.

' Inasmuch as the identity and conclusions of plaintiffs’ expert, Ms. Granzin, were disclosed to OLOL four (4) months prior to the hearing on summary judgment, and further that Ms. Granzin’s affidavit, curriculum vitae, opinion and conclusions were later admitted by the trial court without objection, we conclude that plaintiffs’ Motion to Withdraw. Matters Deemed Admitted should have been granted, and that the trial court’s denial of said motion constituted error and is reversed.

Summary Judgment

In their second and final assignment of error, the plaintiffs assert that the trial court committed legal error by granting OLOL’s Motion for Summary Judgment on the issue that OLOL did not breach the standard of care that it owed to Ms. Hall.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

In a medical malpractice action against a hospital, the plaintiff must prove that the hospital owed the plaintiff a duty to protect against the risk involved, that the hospital breached that duty, that the plaintiff suffered an injury, and that the hospital’s actions were a substantial cause in fact of the injury. Smith v. State through Department of Health and Human Resources Administration, 523 So.2d 815, 819 (La.1988). A | inhospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745, 747 (La.1974). It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. Hunt, 303 So.2d at 747. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and facts of that case. Hunt, 303 So.2d at 747.

Upon our review of this matter, we note that OLOL, in support of its Motion for Summary Judgment, introduced the findings of the Medical Review Panel. In its report, the panel noted that:

Although [the nurse] precisely followed the morphine order, she theoretically deviated from the physician order in giving a single dose of Lortab earlier that [sic] the parameters of the order.... The panel feels that the Lortab played a very minor role in the management of this complicated case.

Nevertheless, the panel reached the conclusion that “[t]he evidence does not support the conclusion that the defendant [OLOL] failed to meet the applicable standard of care as charged in the complaint.”

In our review of this matter, we further note that in support of its Motion for Summary Judgment, OLOL also introduced certified copies of Ms. Hall’s medical records from OLOL. Contained within these medical records is a September 13, 2001 notation by a Dr. McGrath, indicating that Ms. Hall’s respiratory arrest was likely secondary to the administration of narcotics on top of the underlying chronic obstructive pulmonary disease (COPD). This statement, without further explanation, would seem to imply that the administration of narcotic pain medication was a contributing cause of Ms. Hall’s respiratory arrest. While subsequent investigation may reveal this to be an incorrect interpretation of Dr. McGrath’s statement, it is, absent further clarification, a plausible interpretation. Unfortunately, neither the plaintiffs nor OLOL elected to depose Dr. McGrath for the purpose of obtaining clarification of this statement.

|1TIn opposition to OLOL’s motion for summary judgment, the trial court, in a seeming reversal of its earlier ruling, allowed plaintiffs to introduce into evidence, without opposition, the affidavit and curriculum vitae of their expert witness, Ms. Patti Granzin, a registered nurse and certified nurse practitioner, together with Ms. Granzin’s expert opinion and conclusions. Ms. Granzin opined that based upon her training, experience, and review of Ms. Hall’s hospital records, it was obvious that considering Ms. Hall’s age and history of cardiovascular and lung disease, Ms. Hall was a compromised patient. It was Ms. Granzin’s opinion that the medical record’s lack of documentation (with respect to Ms. Hall’s vital signs) for several hours following the administration of the maximum dosage of morphine sulfate would indicate a deviation from the requisite standard of care.

Following a thorough review of the record in this matter, it is the opinion of this court that genuine issues of material fact remain with respect to the care received by Ms. Hall at OLOL; and for this reason, summary judgment was not appropriate.

CONCLUSION

For the above and foregoing reasons, the denial by the trial court of plaintiffs’ Motion to Withdraw Matters Deemed Admitted is reversed, and the motion is hereby granted. In addition, the trial court’s grant of summary judgment in favor of defendant, Our Lady of the Lake Regional Medical Center, is reversed and hereby denied. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against defendant, Our Lady of the Lake Regional Medical Center.

REVERSED AND REMANDED.

HUGHES, J., concurs with reasons.

HUGHES, J., concurs with reasons.

HUGHES, J.,

concurring.

hi respectfully concur. Requests for Admissions are not the proper vehicle to discover experts.

      . Dr. Cooley, an internist, was a member of the Medical Review Panel that examined this matter. In his affidavit, Dr. Cooley opined that OLOL met the requisite standard of care owed to Ms. Hall and that no action or inaction on the part of OLOL had caused, or contributed to, the death of Ms. Hall.


author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Bryan HARRIS.
    No. 07-KA-124.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Shannon Swaim, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge.

12Defendant, Bryan Harris, appeals his conviction and sentence on a charge of looting after Hurricane Katrina in violation of 14:62.5(C). Finding no merit in the defendant’s assignments at to sufficiency of evidence or jury charges, we affirm the defendant’s conviction. However, we note that the sentence is a serious concern in this appeal, and it is our decision that the sentence must be vacated and remanded for reconsideration by the trial court.

Bryan Harris and co-defendant, Phillip Brumfield, were charged by bill of information with looting after a declared state of emergency. At the arraignment, the defendant entered a plea of not guilty. He was tried and found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial. Both motions were denied by the trial court and the | ¡defendant was sentenced to serve five years at hard labor without benefit of parole, probation, or suspension of sentence. A timely filed motion for appeal was granted, bringing the matter before this court for review.

FACTS

On August 29, 2005 Hurricane Katrina struck, putting the entire New Orleans area in dire straits. On that day Detectives Brian Rico, Bill Johnson and Wayne Williams of the Gretna Police Department were on patrol in an unmarked truck. Their twofold mission was to assist citizens in need and to deter criminal activity. During that patrol at about 5:00 p.m., the detectives observed two men and one women taking merchandise out of the Gretna Supermarket at 1201 Burmaster Street. From the vehicle, the detectives watched as the three individuals exited the business and walked west on the sidewalk. At this point the detectives got out of their truck and detained the suspects.

Detective Johnson stayed with those suspects while Detectives Williams and Rico walked back towards the supermarket. As they approached the store, the detectives saw three other individuals taking property out of the store. Detective Rico explained that he saw one of the subjects inside the supermarket handing property to the other two individuals who were placing the property into a large trash can on wheels. Detective Rico went back to where Detective Johnson had the original three suspects. When these three individuals were handcuffed and secured, Detective Rico and Detective Williams returned to the supermarket to attempt to apprehend the second set of looters.

The detectives drove up to the front of the supermarket, parked and observed three suspects pushing and pulling the trash can containing the stolen property toward the Fischer Housing Development. When the three suspects saw the detectives the suspects began to run, with Detective Rico in pursuit. Two of the |4suspects (Bryan Harris and Phillip Brum-field) slipped and fell. Detective Rico ordered them to stay on the ground and called for backup. The detective explained that backup was necessary for safety purposes because there were shots being fired at police officers from the Fischer Housing Project. When the backup arrived, Detective Rico handcuffed Harris and Brumfield and advised them of their rights pursuant to Miranda v. Arizona.

Detective Williams chased, and ultimately captured, the third suspect who had jumped into a canal to evade arrest. All three were arrested. Examination of the trash can revealed 22 bags of hair extensions, 31 cans of Mad Dog 20/20 alcohol, 34 cans of Budweiser beer, and 14 cartons of King Kool cigarettes. The stolen items were photographed and returned to the supermarket. However, the photographs could not be located for trial.

At the trial on the merits, in addition to the testimony of the detectives, the court heard the testimony of Maher Askar, son of the owner of the Gretna Supermarket. Mr. Askar testified that the business was closed that day due to Hurricane Katrina, and that the defendant did not have permission to be in the store.

The defendant, Bryan Harris, testified in his own defense at trial. His recollection of the events is different from that of the detectives. The defendant stated that his parents went to a hotel to evacuate prior to Hurricane Katrina. However, he stayed behind with a friend in a two-story apartment off Terry Parkway to ride out the storm. When the roof collapsed on the apartment building, the defendant decided to try to get to his aunt’s apartment in the Fischer Housing Development. On the way he passed the Gretna Supermarket and noticed a “guy” coming out of the supermarket parking lot. The man was walking about ten feet in | ¿front of him and was pushing a basket or wheelbarrow. The defendant testified that he did not recognize the individual- because the man’s back was facing the defendant, although later he recognized the man as his cousin D.H. The defendant also admitted seeing Brumfield, although he denied .seeing police officers or the first set of looters. The defendant stated that Brumfield was across the street talking on a cell phone.

The defendant further testified that a vehicle pulled up in front of him. When police officers got out of the vehicle with guns drawn, D.H. jumped into the canal. The police officers pointed their guns at the defendant and ordered him to get down on the ground. In response, the defendant went into the middle of the street and dropped to his knees. The officers also arrested Brumfield. When one of the officers returned with the suspect who jumped into the canal, the defendant recognized him as his cousin, D.H.

All three were arrested and taken to police headquarters where the defendant, who was originally with Brumfield, was moved into the room with the first set of looters. At the end of his testimony, the defendant denied giving a statement to the police and maintained his innocence.

The co-defendant, Phillip Brumfield, also testified at trial. According to his testimony, he was unable to reach his family by telephone after the hurricane. Because he had no vehicle, he decided to walk to his sister’s home at Elizardi and Lawrence. He explained that he was trying to get to his young daughter, who was staying with his sister. His path took him past the Gretna Supermarket. Although a shorter route exists, Brumfield explained he chose the route .he took in an effort to avoid the looting at the Oakwood Mall.

| (¡Brumfield stated that, as he walked up Burmaster on the opposite side from the supermarket, he saw a man pushing a cart near the supermarket. He also saw two men and a woman sitting on the curb about a block from the supermarket, and a police car parked next to them. At that point a truck passed him up, made a turn and parked. A man, whom Brumfield later discovered was a police officer, got out of the truck. The man pushing the cart ran towards a canal. Another man got out of the truck, pointed a gun at Harris and told him to “freeze.” Brumfield stated that he did not know the defendant at the time, but observed him walking about ten feet behind the man pushing the cart. The defendant got down on the ground. One of the police officers pointed a gun at Brumfield and told him to “freeze.” Brumfield complied.

After D.H. was apprehended, all three were arrested and taken to the detective bureau. Brumfield testified that he and D.H. were in one room and that the defendant was in another room with the original three suspects. Brumfield testified that his impression from what D.H. said was that the defendant was not involved in the looting.

ASSIGNMENTS OF ERROR

In brief to this court, the defendant argues the evidence presented at trial is insufficient to support the conviction. Specifically, the defendant argues the State failed to prove that he knew or should have known that a state of emergency had been declared, or that he intentionally entered the supermarket. The defendant further argues that the jury should not have found him guilty, when his co-defendant was found not guilty on the same evidence. Finally, the defendant argues that no physical evidence was presented, and that the State failed to negate any reasonable probability of misidentification.

|7In his second assignment of error, the defendant asserts that his sentence is excessive. In a supplemental assignment of error the defendant argues that the trial court erred in failing to sustain a defense objection to the jury instructions.

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). In accordance with that directive, we will consider the sufficiency question first.

SUFFICIENCY OF EVIDENCE

The defendant’s assignment relating to sufficiency incorporates several arguments. Initially, the defendant argues that the State failed to prove the elements of the crime charged. The defendant maintains the State failed to prove the essential element of intentional entry into the supermarket. The substantive argument made regarding that element is one of identity. The defendant argues that tensions were high, several looters were caught in the area and shots were being fired at police. The defendant suggests that, in such a confused state, officers could have easily arrested individuals in the area who were not involved in the looting.

The defendant also asserts the State failed to prove that the defendant knew or should have known of the state of emergency. The defendant admits the State made an adequate showing that a state of emergency had been declared, and that the officers knew of that declaration. However, the defendant argues the State failed to show that the defendant knew or should have known of the emergency declaration. The defendant maintains that he was eighteen-years-old at the time, and that his young age, lack of experience with disasters of this magnitude, and |RIeveI of education, precludes his knowledge of the declaration of a state of emergency.

The defendant further argues that Detective Rico’s statements cannot be relied upon because of the officer’s decision to “cut a lot of corners.” Specifically, the defendant notes that the statement was not recorded, forms usually completed to show that an arrestee was properly advised, understood and waived certain rights were not filled out. The basic premise in this argument is that a conviction cannot stand based on “sloppy” police procedures used in the confusion after Hurricane Katrina.

The defendant also asserts that the lack of physical evidence presented by the State in the prosecution of the defendant makes the evidence presented insufficient to support the conviction. The defendant reminds this court that the State did not introduce photographs of the alleged merchandise taken by this defendant, nor did the state present any fingerprint evidence from the garbage can, shutters, or entryway used by the looters.

Further, the defendant maintains that the jury could not have reasonably found him guilty, when the same evidence was not deemed sufficient to convict his co-defendant.

LAW AND ANALYSIS

The defendant was convicted of looting during a declared state of emergency in violation of La. R.S. 14:62.5 C. At the time of this offense that statute provided that it is a crime to loot “during the existence of a state of emergency, which has been declared pursuant to law by the governor ...., when the defendant knew or should have known that a declaration of emergency existed_”

La. R.S. 14:62.5 A defines looting as:

|8..... the intentional entry by a person without authorization into any dwelling or other structure belonging to another and used in whole or in part as .... a place of business, ... .in which normal security of property is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, ... and the obtaining or exerting control over or damaging or removing property of the owner.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant’s identity as the perpetrator. State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, 593. As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Id., citing, State v. Neal, 2000-0674 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).- Positive identification by one witness is sufficient to support a conviction. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

Therefore, in order to convict a defendant of looting during a declared emergency, the state must prove that defendant (1) intentionally entered a structure containing a business, (2) that lacked normal security because of a hurricane, flood, act of God, or force majeure of any kind, (3) during a declared state of emergency that the defendant knew or should have known existed, and (4) that defendant obtained, exerted control over, damaged or removed property of the owner. Additionally, the State must prove the identity of the defendant as the perpetrator.

Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. “Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected Imfacts.” State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

The well-established standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

An appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Williams, supra. The reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Barnes, 98-932 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099.

We believe that the testimony presented is sufficient to prove the element of the crime of looting in so far as the defendant knew or should have known a state of emergency existed. The defendant stated that he was well aware of the approaching hurricane, and that his parents evacuated prior to the landfall of the storm. Further, he testified that he knew an emergency existed when the roof collapsed on the home in which he was staying, there was no electricity and debris covered the area.

We also find that the testimony of police officers, despite the lack of physical evidence offered by the State, is sufficient to show that there was no reasonable probability of misidentification and that it was the defendant who intentionally entered the Gretna Supermarket to loot.

In Detective Williams testified that he saw two males “climbing out of the open shutters,” and that he saw “a younger black male come out” and start “handing property to the other two that were outside.” He stated that he saw “two individuals climb out of the open window and a third remained inside and handed things out.” Detective Williams was “absolutely positive” that the three individuals he saw looting were the same three who ran and were subsequently apprehended and identified as Harris, Brumfield, and D.H.

Detective Rico also identified the defendant as one of the looters in the Gretna Supermarket. It was Detective Rico who apprehended the defendant.

Although the defendant and co-defendant testified that they were merely in the area and did not participate in the looting, it is clear that the jury reviewed the testimony of all witnesses and found that of the police officers to be more credible. It is well settled that the credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365.

We are not persuaded by the defendant’s argument that the evidence is insufficient because normal police procedures were not followed in the confusion of Hurricane Katrina’s aftermath. The defendant argues that no written statement was recorded after the arrest. The State does not take issue with that argument. However, there is conflicting testimony among the police officers and the defendants regarding whether an oral statement was given by the defendant to police. This also is a judgment on the credibility of witnesses made by the jury in the face of conflicting testimony.

Detective Rico explained at trial that the shortage of manpower, due to the overwhelming number of looters and amount of property destruction occurring at |12the time, caused the officers to dispense with the paper work and get out on the streets as soon as possible to attempt to restore order to the community. In addition, there were shots being fired at police from the Fischer Housing Development as these officers attempted to do their jobs. It is obvious that the jurors found Detective Rico’s explanation for his failure to complete waiver of rights forms and tape record the statements was reasonable under the unprecedented circumstances that followed Hurricane Katrina. It is clear that the jury did not find the actions of the police officers in apprehending looters to be faulty police work which constituted an impingement on the fundamental due process of law. See; State v. Baker, supra.

Further, we find the same logic and analysis should be applied to the defendant’s argument regarding the lack of physical evidence. Detective Rico testified that he removed the merchandise from the garbage can used to transport the iteips stolen. He counted them, and recorded the items and amounts on a note pad he carried with him. Those notes were offered into evidence and are contained in the record. He also photographed the items, although in preparation for trial, only the photos from the first arrest could be located. He also explained that the vast amounts of merchandise collected that day from looters, and lack of manpower, prevented the items from being taken to police headquarters and processed.

The testimony of police officers faced with snipers, citizens in dire need, and numerous looters, is clear, consistent and positive regarding the identity of the looters, and the exact items looted. We find that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Such evidence can support the conviction even in the absence of physical evidence.

1 ^In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction. State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 284; writ denied, 02-1457 (La.5/9/03), 843 So.2d 387, (citing; State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). In the matter before us, we find the positive identification of two police officers and the testimony that they witnessed the defendant looting, and subsequently took photographs of the merchandise is sufficient to support a conviction even with the lack of physical evidence to link the defendant to the crime. Id.

The defendant also argues that the failure to produce a written waiver of rights form to show that he was informed of his rights constitutes error. There was testimony by police officers at trial that they informed the defendant of his rights under Miranda v. Arizona, supra at the time of the arrest and later at police headquarters. However, the officers admit that a waiver of rights form was not signed. It is also clear from police testimony that the defendant was interviewed and they contend that the defendant admitted the criminal activity with which he was charged.

The defendant does not make the claim that he was not advised of his rights, or was coerced or harassed by police officers into waiving his rights and giving a statement, he merely argues that he did not make a statement. Thus, the issue is not whether the defendant’s statement was taken unconstitutionally, but whether a statement was actually made by the defendant while in police custody.

Whether or not a statement was given to police officers is a question of fact to be decided by the jury on credibility assessments. State v. Baker, supra. In this matter the jury clearly assessed the police officers’ testimony as more credible than that of the defendant.

| uConsequently, we find no merit in the defendant’s assertion that the evidence presented by the State was insufficient to support a conviction of looting during a state of emergency.

EXCESSIVE SENTENCE

We will consider the defendant’s argument on excessive sentence first because, although we believe it has merit, we must vacate the sentence for other reasons.

The statute under which this defendant was convicted, La. R.S. 14:62.5 C, provides that a defendant:

.may be fined not less than five thousand dollars nor more than ten thousand dollars and shall be imprisoned at hard labor for not less than three years nor more than fifteen years without benefit of probation, parole, or suspension of sentence.

The defendant herein received a five-year term. In his argument in support of this assignment of error, the defendant points out to this court that he is a first time offender convicted of a non-violent crime. The defendant was also a high school student at the time of Hurricane Katrina and attended career classes after school while maintaining a part time job. The defendant asserts the five year sentence without benefits is disproportionate to the crime. While we are inclined to agree with the defendant’s assessment that the sentence as it relates to this defendant is excessive, we are not able to reach the merits of the issue.

We note that the defendant was not afforded the twenty-four-hour delay before sentencing as required by La. C.O.P. art. 873. The record shows that immediately after the denial of defense motions for new trial and for post-verdict judgment of acquittal, the trial judge stated, “Now, we come to the sentencing. Your client is before the Bar?” The defense counsel responded, “He is, Your Honor.” At that point the defense counsel presented mitigating circumstances to |1Bthe trial judge. The defense counsel informed the court that he wanted to submit letters from a teacher and from the career center at the defendant’s high school to attest to the defendant’s character. Although the trial judge told the defense counsel to file the letters with the clerk, the judge immediately sentenced the defendant to the five year term.

La.C.Cr.P. art. 873 provides in pertinent part as follows:

.If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

When the defendant challenges the penalty imposed and the imposed sentence is not mandatory, the failure to observe the twenty-four-hour delay mandated in La.C.Cr.P. art. 873 cannot be considered harmless error. State v. Colbert, 04-538 (La.App. 5 Cir. 11/30/04), 889 So.2d 1128, 1135. When, as in the matter before us, a defendant challenges a non-mandatory sentence, and there is no express waiver of the twenty-four hour delay for sentencing, the sentence must be vacated and the matter remanded for re-sentencing. Id. Accordingly, we vacate defendant’s sentence and remand the matter for re-sentencing in accordance with law and jurisprudence.

The letters to which the defense counsel referred are not in the record and it does not appear they were filed into evidence. We assume, therefore, that these letters were not considered by the trial judge in sentencing. We believe it is possible that the trial court is unaware of the defendant’s lack of prior criminal activity, his high school attendance, and his non-violent actions in the matter herein.

| ^In re-sentencing this defendant we encourage the trial court to consider the mitigating circumstances and the letters written on the defendant’s behalf, and consider a more appropriate sentence for this defendant.

JURY INSTRUCTIONS

In a supplemental assignment of error, the defendant argues the trial court erred in failing to sustain a defense objection to the jury instructions regarding reasonable doubt.

The defendant argues the jury was charged with constitutionally impermissible instructions regarding the issue of reasonable doubt. In support of his argument, the defendant cites La.C.Cr.P. art. 804 A(2), and asserts that the requirements of that article were not met, causing the jury to be instructed to place a greater burden to finding reasonable doubt than that which state and federal law allows.

La.C.Cr.P. art. 804 provides:

In all cases the court shall charge the jury that:
(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The actual jury charge given in the matter before us is:
A person accused of a crime is presumed by law to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt. This doubt must be a reasonable one, that is one found upon a real, tangible, substantial basis and not upon mere caprice, fancy or conjecture. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most | ^important of your own affairs. It is the duty of this jury if not convinced of the guilt of the defendant beyond a reasonable doubt to find him not guilty.
.You are prohibited by law and your oath from going beyond the evidence to seek for doubt upon which to acquit the defendant. But, you must confine yourselves strictly to a dispassionate consideration of the testimony-given upon this trial.
You must not resort to extraneous facts or circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts or circumstances creating doubt. But, you must restrict yourselves to the evidence that you heard in the trial on this case or the lack of evidence.

A review of the record shows that there were two conferences among the attorneys and the trial judge held off the record at which proper jury instructions were discussed. After the first, the trial judge went on the record to state that some objections to the general jury charges were made by the defense counsel. Specifically, the defense objected to charging the jury “not to go beyond evidence to seek doubt.” The defense counsel argued that charge was unnecessary since the jury would already be instructed as to their duty to deliberate, to follow the law and to weigh the evidence. He also argued such an instruction discourages a jury to look for doubt.

The defense counsel further objected to the instruction that, “a person accused of a crime is presumed by law to be innocent until each element of the crime is proven beyond a reasonable doubt.” The defense counsel argued the word “until” should be replaced with “unless.” The trial court noted the defense counsel’s objections.

After the State and the defense rested, the second jury charge conference was held. At the close of that conference, the trial judge made some changes in the jury charges, but not those requested by the defense regarding reasonable doubt.

|isln brief to this court, the defendant argues that the instructions given to the jury on reasonable doubt fail to conform to La.C.Cr.P. art. 804 in that it fails to instruct the jurors that they must give the defendant the benefit of every reasonable doubt. The defendant asserts that the instruction concentrates too much on giving the jurors a “stringent” definition of what constitutes a “reasonable” doubt. The defendant argues that the end result of the instruction, when taken as a whole, is to impose a more onerous burden on finding reasonable doubt than is required by law.

The first sentence is a verbatim repeat of the La.C.Cr.P. art. 804(1). Thus the court properly refused to use the word “until” rather than the word “unless” as requested by the defendant. Further, under La.C.Cr.P. art. 804 a trial court may define “reasonable doubt” in its instructions to the jury.

A jury charge is not incorrect when taken as a whole, it is such that a reasonable person of ordinary intelligence would have no problem in understanding the definition of reasonable doubt. State v. Taylor, 410 So.2d 224 (La.1982); State v. Grant, 517 So.2d 1151 (La.App. 5 Cir. 1987). This court has recently set forth the law on this issue in State v. Martin, 04-924 (La.App. 5 Cir. 1/25/05), 895 So.2d 55. In so doing we noted the pronouncement of the United States Supreme Court in the consideration of an improper jury instruction in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). The Victor court utilized the reasonable likelihood standard of review, stating that: When considering an allegedly improper jury instruction, a reviewing court must determine whether it is “reasonably likely” that the jury applied the challenged instruction in an unconstitutional manner, not whether it is possible that the jury misapplied the instruction. Id.

|iaIn determining whether it is reasonably likely that the jurors misapplied the instruction, the challenged terms are considered in relation to the instructions as a whole. The test is whether, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge. A conviction will not be reversed on grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. (Citations omitted) State v. Martin, supra, 895 So.2d at 60

Using the above standard, we do not find error in the jury charge relating to reasonable doubt. Consequently, we find this assignment to be without merit.

For the foregoing reasons, the defendant’s conviction is affirmed, the defendant’s sentence is vacated and the matter is remanded to the trial court for re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; MATTER REMANDED.

      . Phillip Brumfield was also charged with looting after a declared state of emergency and tried with the defendant herein. The jury was deadlocked at to Brumfield and a mistrial was declared. Therefore, this appeal only relates to Harris.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . This suspect's initials are used because he is a juvenile. D.H. was the third suspect arrested with Harris and Brumfield.

      . La.R.S. 14:62.5 C was later amended by Acts 2006, No. 165, § 1 to delete “when the defendant knew or should have known that a declaration of emergency existed.”

      . Although the defense counsel did not make a second objection, and answered negatively when the trial court asked if "there was anything else,” we find the first objection preserves the matter for review.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES, In the Interest of S.S.
    No. 07-CA-165.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Ralph R. Alexis, IV, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|/The State of Louisiana, through the Department of Social Services, appeals the juvenile court ruling that nullified the default judgment confirmed against the Defendant, Merton Bailey, on October 27, 2003, and ordered him to undergo a blood test. For the reasons which follow, we affirm.

On April 17, 2003, the State filed a Petition to Prove Paternity and Obtain Child Support on Behalf of Kayreen Storey and her child, SS against the Defendant. According to the record, on May 7, 2003, an unsuccessful attempt was made to serve the Defendant with the petition at 1912 Julie Street, Marrero, LA 70072 (the Julie Street address). The return of the citation indicated “Evading Service. Someone Home!” On August 19, 2003, the return of the citation indicated Domiciliary Service at the Julie Street address on Sandra Bailey. On October 6, 2003, the Defendant did not appear at the Hearing to Prove Paternity, Obtain Child Support, and Show Cause Why Genetic Testing Should Not Be Ordered. He also did not file any responsive pleadings.

| oThereafter, on October 23, 2003, the State moved for a Preliminary Default on the main demand. The preliminary default was entered on October 27, 2006. On December 3, 2003, the Preliminary Default Judgment was confirmed. The confirmation granted a judgment of paternity recognizing the Defendant as the father of SS, and ordered the Defendant to pay child support to Ms. Storey in the amount of $155.00 per month. The record indicates that the Defendant was personally served with a copy of the judgment on January 13, 2004.

On November 14, 2006, the Defendant filed a pleading requesting genetic testing. He indicated that the opposing party was Kayreen Storey and the reason for the request was because he did not believe SS was his child. On November 28, 2006, the Defendant’s request for a blood test was granted by the hearing officer. The State objected and a disagreement hearing was set.

On December 4, 2006, the disagreement hearing was held. At the hearing, the only witness was the Defendant and he testified that he did not reside at the Julie Street address at the time the record reflected the Original Petition and Confirmation of Default were served there. He indicated he received mail at 1925 Betty St. The juvenile court judge stated that she believed the Defendant, that he did not live at the Julie Street address at the time domiciliary service was made, and, further, that the record supported the finding because there was nothing in the record indicating that the Defendant did reside at the Julie Street address. The juvenile court, by minute entry, affirmed the hearing officer’s ruling and ordered the blood test.

On December 13, 2006, the State filed a motion for new trial. The State argued that the court erred by granting the request for a blood test because the matter had been finally resolved by the confirmation of the default judgment on |4January 13, 2004. The State argued further that the only way to attack the default judgment was by a motion to annul the judgment filed under La. C.C.P. art. 2002.

Thereafter, on January 25, 2007, the juvenile court judge issued a written judgment in the case. The judgment ordered the default judgment “nullified for lack of service under L.[sic]C.C.P. art. 2002(A)(2).” The judgment further ordered that the Defendant’s request for genetic testing to prove paternity was granted. The motion for new trial is marked “DENIED.” The State appeals.

On appeal, the State argues that it was the Defendant’s burden to prove by a preponderance of the evidence that the sheriffs return of service was incorrect and that the Defendant did not, solely by his testimony, meet his burden.

In Hall v. Folger Coffee Co., 03-1734 (La.4/14/04); 874 So.2d 90, the Louisiana Supreme Court set out the following method for determining a Nullity Action based on insufficient service of process:

1. The trier of fact must determine the existence of the “predicate fact”— i.e., whether the record contains a completed sheriffs return of service.
2. If the predicate fact exists, the trier of fact must draw the inference created by the legislature — i.e., that the sheriffs return of service is valid.
3. The party attacking the validity of the sheriffs return of service must be allowed to present “appropriate evidence” to controvert or overcome the presumption created by the first two steps.
4. The trier of fact must determine whether it is persuaded by the controverting evidence of the nonexistence of the inferred fact.
5. If the trier of fact is not persuaded by the controverting evidence of the nonexistence of the inferred fact, it must find the existence of the inferred fact.
6. If, based on a preponderance of the evidence, the trier of fact is persuaded by the controverting evidence of the nonexistence of the inferred fact, it may find that the inferred fact does not exist. (Footnotes omitted.)

^Furthermore, the Court found that the appropriate standard for appellate review of the factual determinations involved in considering whether a party challenging the validity of a sheriffs return of service has presented sufficient evidence to rebut the presumption by a preponderance of the evidence is the manifest error — clearly wrong standard. This precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall v. Folger Coffee, Co., at p. 9, 874 So.2d at 98. The Court further noted that reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighted the evidence differently. Id. at 10-11, 874 So.2d at 99.

Moreover,' it is well settled that “[t]he provisions of the [Children’s] Code shall be liberally construed to the end that each child and parent coming within the jurisdiction of the court shall be accorded due process_” La. Ch.C. art. 102. The Code provisions are to be construed “to secure simplicity in procedure, fairness in adjudication and administration and the elimination of unjustifiable delay.” La. Ch.C. art. 102. It has been noted that “[i]n paternity actions involving support of a minor child, the State’s interest in an accurate determination of paternity is compelling.” In Interest of JM, 590 So.2d 565, 569 (La.1991).

In this case, the juvenile court judge found that the record did not establish that the Defendant resided at the Julie Street address at the time domiciliary service was made at that address. Further, she made a credibility determination that she | ^believed the Defendant’s testimony to the effect that he did not reside at the Julie Street address at the time service was made there. And, finally, the trier of fact determined that the evidence in the record was sufficient to persuade her that the Defendant had not been properly served with the petition prior to entry of the default judgment.

Upon review, and, applying the manifest error-clearly wrong standard of review to the factual findings, we conclude that the testimony, record, and law support the juvenile court determinations in this case.

The State, relying on Roper v. Dailey, 393 So.2d 85 (La.1980), argues on appeal that the juvenile court erred in annulling the default judgment because it is well settled that the uncorroborated testimony of the party attacking service is insufficient to rebut the presumption of prima facie correctness accorded the sheriffs return. The fallacy in this argument, as found by the juvenile court judge, is the assertion that the Defendant’s testimony was uncorroborated. To the contrary, it was corroborated by the record which was void of any proof that the Defendant resided at the Julie Street address at the time domiciliary service was made at that address.

The juvenile court judge determined that the evidence controverting the return of service, that domiciliary service was made on the Defendant at 1912 Julie Street by serving his mother at that location, was sufficient to persuade her that service, before entry of the default judgment, was not valid. Based on the record and the applicable law, including the compelling interest in an accurate determination of paternity, we find the factual determinations made by the juvenile court judge are not manifestly erroneous and there is no error in the court’s ruling.

17Accordingly, the judgment of the juvenile court nullifying the default judgment confirmed against the Defendant and ordering the Defendant to submit to a blood test is affirmed.

AFFIRMED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the minor involved will be used to protect the child’s identity.

      . While we recognize that whether the applicable standard in sufficiency of service cases, by a preponderance or by clear and convincing evidence, is not without dispute, Hall v. Folger Coffee, Co., 03-1734 (La.4/14/04), 874 So.2d 90, Justice Kimball dissenting, we are constrained to follow the majority opinion.

      . The original Petition to Prove Paternity only provided that the Defendant was domiciled in Marrero, Louisiana.