author: DAVID S. GORBATY, Judge.

text:
    Yolonde JOHNSON v. DEPARTMENT OF POLICE.
    No. 2006-CA-1499.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2007.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plain-tiffiAppellant.
    Penya a Moses-Fields, City Attorney, Joseph V. Di Rosa, Jr., Chief Deputy City Attorney, James B. Mullaly, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR.).
   DAVID S. GORBATY, Judge.

_JjIn this appeal, appellant Yolande Johnson argues that the Civil Service Commission (“CSC”) erred in dismissing her appeal. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant is a New Orleans Police Officer II, with permanent status. On August 28, 2005, her unit was assigned to the Superdome, where they remained until relieved by federal troops on September 3, 2005. At that time, appellant and members of her unit were given permission to leave active duty until September 6, 2005. According to Johnson, permission was also allowed for time off beyond September 6 if the officer requesting such additional time signed a list indicating that she would not be in a position to return to active duty by September 6. At that time, Johnson was the single parent of a five month old child, who was staying with a friend in Ohio while Johnson was on duty during Hurricane Katrina. Appellant signed the second list indicating that she would need additional time | ¡.beyond September 6, since she knew she would need this time to make arrangements for her child.

Johnson traveled to Ohio, and asserts that she made repeated efforts to contact her supervisors, to no avail. Appellant avers that on September 17, she was able to contact a supervisor, who notified her that she had already been suspended, and should not return to work until she had served the mandatory thirty day emergency suspension time period. Appellant obeyed, and did not return to active duty until October 24, 2005.

Subsequently, a Public Integrity Bureau investigation was conducted by Sgt. Paul Monies. He rendered a recommendation that charges of neglect of duty not be sustained, as a result of the conflict in testimony as to whether or not appellant had permission to be absent from work. Thereafter, a disciplinary hearing was conducted. A recommendation was made to the Superintendent that a violation of neglect of duty be sustained, and that appellant be given a seventy-five day suspension. The Appointing Authority upheld this suspension. Appellant appealed to the CSC. The Hearing Examiner, in his recommendations to the Committee, found that appellant “acted in good faith” and suggested that the ruling upholding the suspension be reversed. Despite this recommendation, the CSC upheld a forty-five day suspension. Appellant filed a Motion for Rehearing, pointing out that the length of the suspension was contrary to the Appointing Authority’s guideline. Thereafter, the CSC reduced appellant’s suspension to forty days. Johnson subsequently filed this appeal.

| ¿DISCUSSION

Appellant argues that the CSC erred in dismissing her appeal, since she was granted permission to be absent from duty by her supervisors.

In the alternative, appellant avers that the CSC erred in denying her appeal since, under the conditions created by Hurricane Katrina, no discipline was warranted in this case, or, if some discipline was warranted, the penalty imposed on her was excessive under the circumstances.

An appellate court’s standard of review is established by the constitutional rule that the commission’s decision is subject to review on any question of law or fact. Accordingly, a court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

There is conflicting testimony in the record about whether there ever was a list actually prepared that could have provided a basis for appellant to take off additional time. No such list was produced at the hearing, and appellant’s direct supervisor, Sgt. Andrew Washington, had never seen such a list. In light of Sgt. Washington’s testimony, we cannot say that the CSC’s decision was manifestly erroneous. The CSC’s conclusion that appellant did not obtain permission for her absence is supported by Sgt. Washington’s statements and the fact that the alleged list was not offered into evidence. The CSC was under no obligation to follow the recommendations of Sgt. Monies or the Hearing Examiner, and evidently chose to believe the testimony of Sgt. Washington instead. As such, we find that the CSC properly dismissed Johnson’s appeal.

| ¿We further find that the penalty imposed was warranted and not excessive under the circumstances. According to the penalty guidelines established by the Appointing Authority, officers who missed from one to seven days were given a thirty day suspension, and for each day thereafter, an additional ten day suspension was added. In this case, the disciplinary letter charged appellant with being absent for eight days. Ultimately, the CSC suspended appellant for forty days. This penalty was in keeping with the guidelines set forth. We find no merit to this assignment of error.

CONCLUSION

Accordingly, for the reasons set forth above, the judgment of the CSC is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    SUCCESSION OF James Timothy FLANIGAN.
    No. 2006-CA-1402.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2007.
    Michael H. Raseh, Preston L. Hayes, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & "Hayes, L.L.P., Me-tairie, LA, for Appellant, George E. Bain.
    S. Ault Hootsell III, Harry M. Barton, Phelps Dunbar, L.L.P., New Orleans, LA, for Fidelity Management Trust Company.
    Don M. Richard, Law Office of Don M. Richard, Metairie, LA, J.D. Shaw, Stark-ville, MS, for Appellee, Nason Landreneau.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

hThe appellant, Mr. George E. Bain, appeals from a summary judgment rendered in favor of the appellee, Mr. Nason Landreneau, recognizing him as a beneficiary on the Fidelity Investments Retirement Account of the late James Timothy Flanigan, M.D. (“Dr. Flanigan”). We affirm the judgment of the trial court.

FACTS

Dr. Flanigan was diagnosed with pancreatic cancer in May 2003. On June 3, 2003, Dr. Flanigan completed a “Fidelity Retirement Plan Beneficiary Designation” form naming Mr. Bain and Ms. Gaynelle Q. Mitchell as primary beneficiaries on his retirement account, Fidelity Investments Account No. 116-213322. Each beneficiary was to receive fifty percent (50%) of the funds from the account in the event of Dr. Flanigan’s death. On May 23, 2004, the designated beneficiaries on Dr. Flanigan’s retirement account were changed to Mr. Nason Landreneau and Ms. Mitchell. The change was made via the Internet using the | ^Fidelity Investments website. Fifty-two days later, on July 13, 2004, Dr. Flani-gan died.

Succession proceedings commenced on July 21, 2004, with the filing of the petition to probate Dr. Flanigan’s last will and testament in the district court. Shortly thereafter, Mr. Bain filed a “Petition to Determine Rightful Beneficiary and Request for the Issuance of Injunctive Relief,” alleging that Dr. Flanigan lacked the physical and mental capacity to change the beneficiary designation on the Fidelity Investments Retirement Account due to his heavily medicated condition. Specifically, the petition alleges that at the time the change occurred Dr. Flanigan was being treated intravenously with an “ ‘IV cocktail’ ” consisting of the drugs Dilaudid, Valium, and Phenergan. Mr. Bain further alleges that in addition to Dr. Flanigan, two other persons knew his personal identification number (“PIN”) code, allowing them access to his retirement account via the Fidelity website on the Internet.

Mr. Bain alleges that at the time of Dr. Flanigan’s death, the retirement account had a balance of approximately $100,000.00 to $120,000.00 and that the amount in dispute was half of the total balance or approximately $50,000.00 to $60,000.00. He also alleges that upon learning of the change in the beneficiary designation, he personally contacted Fidelity Investments to request that the company not disburse the funds from the retirement account until a determination of the rightful beneficiary was made.

| ^Shortly after Mr. Bain filed his petition and request for injunctive relief, Fidelity Investments, the Estate of James T. Flani-gan, Ms. Mitchell, and Mr. Bain entered into a consent judgment on October 8, 2004, in which the court ordered Fidelity Investments to withhold from disbursement the disputed portion of the retirement account funds until the rightful beneficiaries were determined.

On March 14, 2006, Mr. Nason Landre-neau filed a motion for summary judgment arguing that Dr. Flanigan had entered into a valid agreement with Fidelity Investments to designate Mr. Landreneau and Ms. Mitchell as the beneficiaries on his Fidelity Investment Retirement Account. In support of his motion, Mr. Landreneau submitted a copy of the “Fidelity Account Profile” that designates him as a beneficiary on Dr. Flanigan’s retirement account as well as a copy of a letter from Fidelity Investments to Ms. Mitchell, stating that she and Mr. Landreneau were designated equal primary beneficiaries on the account on May 23, 2004, via its website.

Mr. Landreneau argued that La. R.S. 9:2449 mandates that the benefits of an individual retirement account are to be paid to the designated beneficiary according to the account agreement, and, therefore, Fidelity Investments was bound by the agreement it made with Dr. Flanigan to distribute the funds in his | ¿retirement account according to his instructions. Because the beneficiary designation is a valid binding contract, Mr. Landreneau argued, any attempt by Mr. Bain to challenge Dr. Flanigan’s expressed designation of the named beneficiaries must be brought pursuant to La. Civ.Code article 1926, relative to an attack on a noninterdicted decedent’s contracts. Additionally, Mr. Landreneau argued that in the absence of an allegation and/or evidence of fraud, Mr. Bain had no basis to attack the valid contract entered into by Dr. Flanigan with Fidelity Investments designating the beneficiaries on his retirement account. He argued that Mr. Landreneau’s insinuation that fraud may have occurred when the beneficiary designation was changed via Fidelity’s website, because persons other than Dr. Flanigan had his PIN code to access the account, was not sufficient to overcome a motion for summary judgment.

In opposition to Mr. Landreneau’s motion, Mr. Bain argued that Dr. Flanigan lacked the mental capacity on May 23, 2004 to change the beneficiary designation on his retirement account due to his medicated condition. In support, he submitted the affidavit of Mr. Michael Fitzgerald, a close friend of Dr. Flanigan, who stated that as of March 2004, Dr. Flanigan was at all times heavily medicated, which caused him to be confused and extremely disoriented. Mr. Fitzgerald also averred that based on Dr. Flanigan’s confused and disoriented state during frequent visits with him, he opined that Dr. Flanigan lacked the physical and mental capacity to knowingly change the beneficiary on a retirement account.

Mr. Bain also submitted the affidavit of Dr. Y.S. Sottiurai, a licensed physician who treated Dr. Flanigan. Dr. Sottiurai averred that he frequently visited Dr. Flanigan in the early stages of his pancreatic cancer to assess his condition. However, in the later stages, he often contacted Dr. Flanigan by telephone and, | ¡¡during these communications, it was apparent to him that Dr. Flanigan was extremely disoriented as a result of his medication and deteriorating condition.

Following a hearing, the trial court vacated the October 8, 2004 consent judgment and granted Mr. Landreneau’s motion for summary judgment. The trial court found that La. Civ.Code article 1926 was dispositive and that Mr. Bain failed to show any genuine issue of material fact with regard to the validity of the contract entered into by Dr. Flanigan with Fidelity Investments designating Ms. Mitchell and Mr. Landreneau as the primary beneficiaries on his retirement account.

STANDARD OF REVIEW

The proper standard of review for an appellate court considering summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480, p. 1 (La.4/11/94), 634 So.2d 1180, 1182. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). La. C.C.P. art. 966(C)(2) provides, in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential ^elements of the adverse party’s claim, action, or defense, but rather to 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. [Emphasis added.]

LAW AND DISCUSSION

Four elements are required for confection of a valid contract: (1) the capacity to contract; (2) mutual consent; (3) a certain object; and (4) a lawful cause. Fairbanks v. Tulane University, 98-1228, p. 4 (La.App. 4 Cir. 3/31/99), 731 So.2d 983; see also La. Civ.Code arts. 1918, 1927, 1966 and 1971. While the capacity to contract is presumed, La. Civ.Code article 1926 provides that:

A contract made by a noninterdicted person deprived of reason at the time of contracting may be attacked after his death, on the ground of incapacity, only when the contract is gratuitous, or it evidences lack of understanding, or was made within thirty days of his death, or when application for interdiction was filed before his death.

Clearly, pursuant to La. Civ.Code article 1926, a contract entered into by a person deprived of reason may be attacked after his death in only four circumstances: (1) when the contract is gratuitous, (2) when the contract evidences a lack of understanding, (3) when the contract was made within thirty days of death, or (4) when the application for interdiction was filed before his death. The parties agree that the third and fourth circumstances do not apply in this case as Dr. Flanigan entered into the contract with Fidelity Investments to change the beneficiary designation to Ms. Mitchell and Mr. Landreneau fifty-two (52) days before his death and no application for the interdiction of Dr. Flanigan was ever filed. Thus, in order to attack the contract after Dr. Flanigan’s death, Mr. Bain had |7to establish that either the change of beneficiary provision was gratuitous or that the contract itself evidenced a lack of understanding.

As the party moving for summary judgment, Mr. Landreneau had the burden of proving the change of beneficiary on Dr. Flanigan’s retirement account was valid. To satisfy his burden, he submitted a copy of the “Fidelity Account Profile” that designates him as a beneficiary on the account as well as a copy of a letter from Fidelity Investments to Ms. Mitchell, stating that she and Mr. Landreneau were designated equal primary beneficiaries on the account on May 23, 2004, via its website. The burden then shifted to Mr. Bain to produce any evidence such as depositions, affidavits, answers to interrogatories, or admissions to demonstrate that the change of beneficiary contract was a gratuitous act or itself evidenced a lack of understanding. He must then be able to show that he will be able to satisfy his evidentiary burden of proof at trial.

Mr. Bain submitted the affidavits of Mr. Fitzgerald and Dr. Sottiurai as proof of Dr. Flanigan’s mental incapacity at the time of contracting. The two affidavits, while admissible, are not sufficient to prove that the contract was gratuitous or that it evidences a lack of understanding. In applying La. Civ.Code article 1926 to this ease, it is presumed that Dr. Flanigan, although not interdicted, was “deprived of reason” at the time the change of beneficiary was made. Even though Dr. Flani-gan entered into that contract, it may not be attacked after his death on the grounds of incapacity unless one of the four circumstances is present. None of those circumstances is present here. Considering the evidence or lack thereof submitted by the parties for the purpose of summary judgment, the contract is unassailable.

Mr. Bain cites the case of Manuel v. New York Life Insurance, 2003-0458 (La.App. 5 Cir. 10/15/03), 860 So.2d 41, in arguing that the affidavits are |ssufficient to attack the validity of the beneficiary designation on Dr. Flanigan’s retirement account. In Manuel, at issue was a life insurance policy purchased by Chris La-Borde from New York Life Insurance and Annuity Corporation (“New York Life”). On February 2, 1998, Mr. LaBorde submitted a surrender form on the insurance policy and, fifteen days later, murdered his wife and then committed suicide. His children filed suit seeking full death benefits under the policy and challenged the validity of the surrender submission. In opposition to a motion for summary judgment filed by New York Life, the children argued that Mr. LaBorde’s surrender of the policy was a contract governed by La. Civ.Code article 1926 and submitted the affidavits of the decedent’s friends and two psychiatric witnesses who averred that he lacked the metal capacity to surrender his insurance policy on the date in question. The Court denied New York Life’s motion, finding that La. Civ.Code article 1926 governed and that the affidavits satisfied the plaintiffs’ burden of proving the existence of a material fact as to Mr. LaBorde’s mental capacity at the time of the surrender.

We find Mr. Bain’s reliance on the Manuel case is misplaced. Mr. LaBorde had surrendered the policy fifteen days prior to his death, or well within the thirty-day period provided by La. Civ.Code article 1926. In the instant case, the change of beneficiaries on Dr. Flanigan’s retirement account occurred fifty-two days prior to his death, clearly outside the thirty-day period.

In concluding, we find that Mr. Bain did not satisfy his burden of proving that the change of beneficiary designation made on May 23, 2004 exhibited a lack of understanding or was a gratuitous contract. As there is no genuine issue of material fact as to the validity of the change of beneficiary designation on Dr. |9Flanigan’s retirement account naming Ms. Mitchell and Mr. Landreneau as the beneficiaries, summary judgment is appropriate as a matter of law.

DECREE

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Dr. Flanigan established the retirement account in August 1983.

      . Mr. Bain did not name the two persons who are alleged to have had access to Dr. Flani-gan’s retirement account, nor did he allege that either person made the change of the beneficiary designation.

      . Due to the dispute, Fidelity Investments temporarily restricted the disbursement of the funds, but informed Mr. Bain that he would need a court order enjoining it from disbursing the funds to the designated beneficiaries.

      .La. R.S. 9:2449, relative to Individual retirement accounts; payment of benefits, provides:
      A. Any benefits payable by reason of death from an individual retirement account established in accordance with the provisions of 26 U.S.C. 408, as amended, shall be paid as provided in the individual retirement account agreement to the designated beneficiary of the account. Such payment shall be a valid and sufficient release and discharge of the account holder for the payment or delivery so made and shall relieve the trustee, custodian, insurance company or other account fiduciary from all adverse claims thereto by a person claiming as a surviving or former spouse or a successor to such a spouse.
      B. No account holder paying a beneficiary in accordance with this Section shall be liable to the estate or any heir of the decedent nor shall the account holder be liable for any estate, inheritance, or succession taxes which may be due the estate.
      C. The provisions of this Section shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Donald McMILLION, Appellant.
    No. 42,124-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Annette Roach, Louisiana Appellate Project, for Appellant.
    Don M. Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

11 Defendant, Donald McMillion, pled guilty to one count of distribution of a Schedule II controlled dangerous substance (“CDS”) (cocaine), and entered an Alford plea to one count of possession of a Schedule II CDS (cocaine). He was sentenced to five years at hard labor for distribution and two years at hard labor for possession, to run concurrently. Defendant has appealed, claiming that his Alford plea to possession was involuntary and should be set aside; and, that his sentences are excessive. Finding no error, however, we affirm.

Discussion

Voluntariness of Alford Plea

The defense argues that defendant was denied his constitutional right to due process when the trial court accepted the guilty plea to possession of cocaine without ascertaining strong evidence of guilt. Defense counsel notes that the trial court did not conduct a preliminary examination at which the state presented testimony detailing the crime. Defense counsel concludes that this deficiency made the plea to possession of cocaine involuntary and constitutionally infirm.

As a result of a March 14, 2006, buy/bust operation, defendant was charged by bill of information with (1) distribution of a Schedule II CDS (cocaine); (2) possession with intent to distribute a Schedule II CDS (cocaine), and (3) possession/introduction of contraband (cocaine) into a penal institution. He was also charged with illegal carrying of a weapon in a separate proceeding.

|2On June 20, 2006, defendant pled guilty to distribution of a Schedule II CDS (cocaine). The state agreed to reduce the introduction of contraband into a penal institution charge to simple possession of cocaine and defendant entered an Alford plea to this reduced charge. As part of the plea agreement the state dismissed the two other charges and agreed that the sentences would run concurrently.

At the guilty plea, the prosecution stated the factual basis of its case as follows:

Mr. Daniel: Your Honor, the Defendant was arrested from a buy bust that was executed at the Mansfield Inn where he came in to sell approximately one hundred dollars worth of rock cocaine to the officers in room 128 of that hotel. After being arrested, he concealed another rock of cocaine in the same type of green baggy in his mouth. During that arrest, he was placed in the detox tank of the cell, excuse me, of the jail where that suspected cocaine was found in the grate of the detox tank. That cell had been checked prior to him being placed in there. He was the only person who was placed in that cell. And the bag was also cheeked for DNA. Based upon those facts he was arrested.

The following colloquy thereafter occurred:

Mr. Kendrick (Defense Counsel): Your Honor, Mr. McMillion fully admits to the distribution of schedule II in the hotel room. We do take some issue with the possession of schedule II in the penal institution. But because of the plea agreement with the State, that [sic ] we agree this is in his best interest to do so.
The Court: But all of this involved one event essentially?
laMr. Kendrick: I can’t say that. It’s one event in the hotel room with the distribution. There was a separate event as to the simple possession of schedule II in the penal institution.
Mr. Kendrick: Like I said, we dispute the possession aspect but we don’t the distribution.
Mr. Kendrick: No sir, Your Honor, not to my knowledge. And Mr. Daniel (ADA) has indicated that he’s willing to accept an Alford Plea as to the simple possession charge. And we have no objection to that.
(Counsel and defendant have discussions off the record.)
Defendant: Okay, yes sir. Yeah.
The Court: You’re not admitting that the drugs that were found in the jail was yours?
Defendant: No sir, it wasn’t none [sic ] of mine.
The Court: But nonetheless, you’re pleading guilty because of the plea agreement offered by the State?
Defendant: Yeah.

The trial court found a factual basis for both charges, accepted both defendant’s guilty plea to distribution and his Alford plea to possession as knowingly, intelligently, and voluntarily made. A presen-tence investigation report was ordered. The state nolle prosed the other two charges.

The “best interest” or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pled guilty while maintaining his innocence. In that case, the Supreme Court ruled that a defendant may plead guilty, without forgoing his protestations of [ ¿innocence, if “the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant!,] • • • especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. at 164; State v. McCoil, 05-658 (La.App. 5th Cir.02/27/06), 924 So.2d 1120.

In a case involving an Alford plea, the record must contain “strong evidence of actual guilt.” Id., 400 U.S. at 38, 91 S.Ct. at 167. This court has held that where a defendant pleads guilty under Alford, “constitutional due process requires that the record contain ‘strong evidence of actual guilt.’ ” State v. McCoil, supra; State v. Villarreal, 99-827 (La.App. 5th Cir.02/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.03/16/01), 786 So.2d 745.

The record supports the finding that defendant’s “best interest” or Alford plea of guilty to the possession charge, which was made by him while fervently maintaining his innocence, represented a voluntary and intelligent choice among the alternative courses of action open to him. | ¡¡Defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage. See North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. at 164; State v. McCoil, supra. It is readily apparent from the record that defendant knowingly made this advantageous plea, which included the dismissal of two other charges and the reduction of the instant charge, after conferring with defense counsel. Further, the plea agreement provided that any sentence imposed would run concurrently with the sentence imposed in the more serious distribution case.

Although there were no prior hearings at which evidence was presented, such as a preliminary hearing or a hearing on a motion to suppress, the assistant district attorney’s statement of facts was sufficient. That factual basis included direct evidence of the sale of cocaine and arrest; that a rock of cocaine was found in the detox cell where defendant was placed; that this cocaine was in the same type of green bag as was the cocaine defendant sold to the officers; that defendant was detained alone in the detox tank or cell of the jail, where the suspected cocaine was found in the grate; that the detox cell was checked prior to defendant’s detention; that the bag found was covered with salvia; and, that DNA samples were taken from defendant. Hence, the factual basis included a statement of evidence of all of the elements of the possession/penal institution charge. The record shows that the trial court asked questions in order to understand the facts surrounding this offense and to distinguish it from facts of the distribution offense. It is worth reiterating here that the standard under Alford is not | (¡whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea represents a voluntary and intelligent choice among the alternatives. See State v. Johnson, 04-1266 (La. App. 3d Cir.02/02/05), 893 So.2d 945. This claim is without merit.

Excessive Sentence

Defendant claims that: (1) the sentencing judge failed to articulate for the record sufficient reasons to justify the sentences; (2) the sentences are harsh and excessive to the degree that they are cruel and unusual punishment considering the facts of the case; and, (3) the sentences impose a cruel and unusual length of imprisonment based upon the fact that Donald McMillion is a first time felony offender and the amount of cocaine at issue was small.

The trial court stated that it had reviewed the presentence investigation report (PSI) and noted that defendant was a 47-year-old first felony offender. It observed that defendant did not heed an earlier warning by police and continued with his criminal activity. The trial court set forth the sentencing range for both offenses and recapped the facts supporting the pleas. It noted that defendant is “clearly old enough to know better” and has never had the benefit of substance abuse treatment. Based on the information contained in the PSI and defendant’s personal circumstances, the trial court sentenced defendant to concurrent sentences of five years imprisonment at hard labor for distribution of a Schedule II CDS (cocaine) |7and two years imprisonment at hard labor for possession of a Schedule II CDS (cocaine), with credit for time served. The trial court recommended that defendant participate in substance abuse treatment through the Department of Corrections. Defendant’s timely filed motion to reconsider sentence was denied.

A trial court is not required to render a suspended sentence or probation on a first felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Woodman, 28,004 (La.App.2d Cir.01/24/96), 666 So.2d 1255, writ denied, 96-0489 (La.05/03/96) 672 So.2d 696. See also State v. Flores, 27,736 (La.App.2d Cir.02/28/96), 669 So.2d 646.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.05/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed. 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

|sThe record here clearly shows an adequate factual basis for the sentence imposed. Furthermore, when the crimes and punishment are viewed in light of the harm done to society by the possession and trafficking of illegal drugs, they do not shock the sense of justice. See State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra. We again note that the lesser sentence for the possession charge was agreed to run concurrent to the greater sentence for distribution. Finding no manifest abuse of the trial court’s wide discretion on this record, these sentences will not be set aside as excessive.

Error Patent

The record reflects that the trial court failed to impose the first two years of the sentence for distribution of cocaine without benefit of parole, probation, or suspension of sentence as required by La. R.S. 40:967 B(4)(b). This deficiency will be automatically corrected by operation of La. R.S. 15:301.1.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are AF-

FIRMED.

      . A DNA analysis was not completed by the crime lab due to defendant's guilty plea.

      . This court in State v. Ford, 29,170 (La.App.2d Cir.01/22/97), 687 So.2d 658, found that the defendant’s Alford guilty plea was not intelligent and voluntary and noted that the state is entitled to correct this deficiency at an additional Boykin hearing at which time evidence supporting the defendant’s guilt may be introduced, citing State v. Linear, 600 So.2d 113, 116 (La.App.2d Cir.05/13/92). The appeal was held in abeyance pending an additional Boykin hearing. The same procedure was followed by this court in State v. Jordan, 619 So.2d 648 (La.App. 2d Cir.1993), op’n after remand, 619 So.2d 647 (La.App. 2d Cir.1993); State v. Fletcher, 624 So.2d 470 (La.App. 2d Cir.1993); State v. Orozco, 609 So.2d 1043 (La.App. 2d Cir.1992). See also State v. Harris, 26,608 (La.App.2d Cir.01/25/95), 649 So.2d 796, op’n after remand, 26,608 (La. App.2d Cir.06/15/95), 660 So.2d 514, in which the matter was remanded to allow the state an opportunity to cure the deficiency. Compare State v. Thomas, 29,477 (La.App.2d Cir.04/02/97), 691 So.2d 368, in which this court found the plea to be an involuntary Alford plea, vacated the guilty plea, set aside the conviction and sentence, and remanded for further proceedings.

      . Because of defendant's agreement to plead guilty, the DNA was not processed by the crime laboratory.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Lester SIMTON, Jr., Appellant.
    No. 42,236-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project by Mary Constance Hanes for Appellant.
    Don M. Burkett, District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 Lester Simton, Jr. was charged with armed robbery (La. R.S. 14:64) and eventually pled guilty to the reduced charge of first degree robbery (La. R.S. 14:64.1). After reviewing a presentence investigation, the trial court imposed a ten year hard labor term, without benefit of parole, which Simton appeals. For the following reasons, we affirm the conviction and sentence.

Facts

On January 22, 2006, Simton acted as the getaway driver during the robbery of the Double Eagle Casino in DeSoto Parish, Louisiana. Simton’s accomplices to the crime, Antonio McNeil and a juvenile, entered the casino, disarmed the female security guard at the point of a .45 caliber semi-automatic pistol, took the security guard’s gun (a .38 revolver), and robbed the casino. Although almost $14,000.00 was taken at gunpoint in the robbery of the clerk of the casino, Simton pled guilty only to the robbery of the security guard’s gun. The trial court ordered that a pre-sentence investigation (“PSI”) be prepared. At the sentencing hearing, and after reviewing the PSI, the trial court sentenced Simton to ten years’ hard labor, without benefits. After the trial court denied Simton’s motion for reconsideration of sentence, this appeal ensued.

Discussion

On appeal, Simton only raises one assignment of error, arguing that his ten-year sentence is excessive under the circumstances of the case. We disagree.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took|2cognizance of the criteria set forth in La. C. Cr. P. art 894.1. 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. 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, 698 (La.1983); State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277. 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 La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (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, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, 753, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

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, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (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, 291 (La.1985). There is no requirement |sthat specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710, 712-713.

After reviewing Simton’s PSI, the trial court referred to the factors considered in imposing Simton’s sentence. The trial court found that the factors of “the need for correctional treatment,” and “undue risk” (of-the commission of another crime during probation) were not as compelling as in some cases, but found compelling the factor that a lesser sentence would deprecate the seriousness of the offense committed. The trial court found that this offense was one which threatened death or great bodily harm to more than one person, there was significant economic loss, and a dangerous weapon was used. Finally, the trial court reiterated that the most significant factor was that any lesser sentence would deprecate the seriousness of the offense committed by Simton — he was involved in an armed robbery. We further observe that the PSI notes that after the casino’s security guard triggered an alert device, a car chase ensued into Caddo Parish involving numerous officers and endangering even more lives.

As mitigation, the trial court referred to Simton’s social history. The trial court observed that Simton, age 40, was married with three children, and, though previously convicted of a felony, he had satisfactorily | completed probation and did not have a significant history of criminal conduct. Additionally, the trial court noted that Simton, as the getaway driver, did not brandish a firearm during the robbery.

We also note that, although two armed robberies occurred (that of the guard and of the cashier), Simton was only charged with one of the robberies, which was ultimately reduced from armed robbery to first degree robbery. Under Simton’s original charge of armed robbery, he faced a sentencing range of ten to ninety-nine years of incarceration. Notably, the sentencing range for first degree robbery, the reduced offense to which he pled, is three years to forty years of incarceration, without benefit of parole, probation, or suspension of sentence. Thus, Simton’s sentence is clearly in the lower end of the range of sentences for the reduced offense, from which reduction (and the election to not charge an additional armed robbery of the cashier) Simton benefítted substantially.

Here, the record reflects that the trial court adequately articulated sufficient reasons for the sentence imposed. Simton’s sentence does not shock the conscience of this court, and it is not a needless imposition of pain and suffering. Simton participated in the commission of a number of very serious offenses, and the sentence imposed is commensurate with that offense. Thus, we conclude that his assignment of error is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Lester Simton, Jr. is affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Antonio McNEIL, Appellant.
    No. 42,231-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Don Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.

      Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

hThe defendant, Antonio McNeil, was originally charged with armed robbery. He was allowed to plead guilty to first degree robbery. The trial court sentenced him to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appeals his sentence as excessive. We affirm.

FACTS

On January 22, 2006, the defendant, age 18, and a juvenile robbed the Double Eagle Casino in DeSoto Parish. The defendant disarmed a security guard at gunpoint and forced a clerk to give him more than $13,500 in cash. The two robbers fled in a vehicle driven by a third coconspirator, Lester Simton.

The defendant was arrested and charged with armed robbery. Pursuant to a plea bargain, he pled guilty to first degree robbery and agreed to testify against his codefendant. The trial court ordered a presentence investigation (PSI) report.

In November 2006, the defendant was sentenced to 20 years at hard labor without benefits. A timely motion to reconsider filed by defense counsel was denied, as was a subsequent pro se one filed by the defendant.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show adequate consideration of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for the sentence is the goal of La. |¡»C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances of the case and the background of the defendant. State v. McCall, 37,442 (La.App.2d Cir.8/20/03), 852 So.2d 1162, writ denied, 2004-0039 (La.12/17/04), 888 So.2d 858. 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 needless and purposeless 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 grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, supra.

A defendant’s reduction in sentencing exposure through plea bargaining is a valid consideration in sentencing if the lesser offense does not adequately describe the defendant’s conduct. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Morgan, 40,976 (La.App.2d Cir.4/12/06), 926 So.2d 822.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

|,-¡There is no requirement that codefendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Christaw, 41,641 (La.App.2d Cir.12/13/06), 945 So.2d 217. The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Quimby, 419 So.2d 951 (La.1982); State v. Christaw, supra.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, supra.

DISCUSSION

The defendant claims that the trial court erred in imposing an excessive sentence. He also asserts that the trial court failed to adequately articulate the basis for his sentence.

Contrary to the defendant’s assertion, the trial court articulated sufficient reasons for the sentence imposed. The court found that there was an undue risk that during a probationary period the defendant would commit another crime. It characterized the instant offense as one of extreme violence and expressed concern over the defendant’s “complete indifference” to the law. The court found a need for correctional treatment and stated that a lesser sentence would deprecate the seriousness of the offense, which threatened death or great bodily harm to more than one person. The court also noted that threats were employed in committing the |4crime and that a dangerous weapon was used. It acknowledged the significant financial loss involved in the robbery. (Of the approximately $13,500 stolen, more than $8,000 was never recovered.)

In mitigation, the court considered the defendant’s lack of a prior criminal record. It also observed that the unmarried defendant had no children and was too young to have an employment record.

We note that the defendant benefited significantly from his plea bargain. At gunpoint, he took a firearm from a security guard and cash from the casino clerk; therefore, he actually committed two armed robberies. He was originally charged with one count of armed robbery, the sentencing range for which is 10 to 99 years at hard labor without benefits. He was allowed to plead guilty to a reduced charge of first degree robbery, which has a sentencing range of between three and 40 years at hard labor without benefits. The sentence of 20 years imposed by the trial court is a midrange sentence for a reduced offense which does not adequately describe the defendant’s conduct.

The defendant also complains that his codefendant, Lester Simton, received only a 10-year sentence. However, the defendant was the main participant in the robbery. He entered the casino armed with a handgun. The juvenile accomplice who accompanied him was unarmed. Upon entering the casino, the defendant disarmed the security guard. He pointed both guns at the guard and the clerk and took the security guard’s gun with him when he fled. In contrast, Simton did not enter the casino during the robbery and drove the getaway car.

|sWe find no abuse of the trial court’s discretion in imposing a sentence of 20 years at hard labor without benefits upon this defendant.

ERROR PATENT

We note that at sentencing the trial court did not fully advise the defendant of the time period within which to apply for post-conviction relief under La. C. Cr. P. art. 930.8. The statute contains supplicatory language which does not bestow an enforceable right on an individual. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for resentenc-ing. State v. Coleman, 41,764 (La.App.2d Cir.1/24/07), 949 So.2d 570. We now advise the defendant by this opinion that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Donald R. HILL, Appellant.
    No. 42,227-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Louisiana Appellate Project by Paula Corley Marx, Lafayette, William J. Franklin, for Appellant.
    Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| tDefendant, Donald J. Hill, appeals a judgment from the Eleventh Judicial District Court, Parish of DeSoto, State of Louisiana, where Hill pled guilty to one count of distribution of cocaine, a violation of La. R.S. 40:967(A)(1), and was sentenced to 10 years at hard labor, the first two years to be served without benefits. For the following reasons, we affirm Hill’s conviction and sentence.

FACTS

On May 14, 2005, Hill sold an undercover detective two $20 rocks of crack cocaine. Hill, who has an extensive criminal history, pled guilty as charged on April 11, 2006. The terms of Hill’s plea agreement included a promise by the state not to file a habitual offender bill against him and, further, that Hill’s sentence would not exceed 15 years’ imprisonment. The trial court accurately explained to Hill at his plea that 2 years of his sentence must be imposed without benefit of parole, probation or suspension of sentence, and subsequently Hill elected to plead guilty.

On August 3, 2006, the trial court sentenced Hill to serve 10 years imprisonment at hard labor, the first 2 years of which would be served without benefit of parole, probation or suspension of sentence. Hill filed a motion to reconsider sentence, urging that his sentence was excessive; the trial court denied that motion. Hill now appeals, again urging that his sentence is excessive.

|,LAW AND DISCUSSION

Louisiana C. Cr. P. art. 881.2(A)(2) provides:

The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

This provision applies both to agreed sentences and to agreed ceilings, “ranges” or “caps.” State v. Young, 1996-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La.App.2d Cir.06/29/05), 907 So.2d 873; State v. Rice, 26,478 (La.App.2d Cir.12/07/94), 648 So.2d 426, writ denied, 1995-0431 (La.06/16/95), 655 So.2d 340.

Since the record shows the state, Hill, and the trial court all agreed to the ceiling on Hill’s sentence, and the subsequent sentence was imposed within the limits of that agreement, Hill may not appeal his sentence. See State v. Jonas, 29,750 (La.App.2d Cir.08/20/97), 698 So.2d 744.

Accordingly, Hill’s conviction and sentence are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    E. Ray KETHLEY, Plaintiff-Appellee v. JACK & KETHLEY, et al, Defendant-Appellants.
    No. 42,219-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Cook, Yancey, King & Galloway, by Herschel E. Richard, Jr., John T. Kalm-bach, Jason B. Nichols, Shreveport, for Appellant John S. Odom Jr.
    Rice & Kendig, by William F. Kendig, Shreveport, for Appellants Jack & Kethley & Wellborn Jack, Jr.
    David L. White, Bossier City, for Appel-lee E. Ray Kethley.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

_JjThe intervening attorney, John S. Odom Jr., appeals a judgment that dismissed his client E. Ray Kethley’s suit on grounds of abandonment. For the reasons expressed, we affirm.

Factual Background

In August 1990, Shreveport attorneys E. Ray Kethley and Wellborn Jack Jr. executed a partnership agreement to practice law together. The enterprise was short-lived; in February 1992 Jack advised Kethley that he wished to terminate the partnership pursuant to the agreement, and Kethley confirmed this by letter of March 8, 1992. The partners allocated their open files in accordance with their clients’ requests, but Kethley disputed the accounting of expenses and the ownership of large office equipment. He hired John S. Odom Jr. to represent him and filed the instant suit to dissolve the partnership judicially on March 8,1996.

Jack responded with exceptions of prescription and no cause of action. After continuances were granted, discovery proceeded slowly, culminating in two judgments, in February and April 1999, compelling Jack to comply with requests for production of documents.

On April 14, 2003, Jack filed an ex parte motion to dismiss the claim as abandoned. He alleged that the last correspondence he received from Kethley’s lawyer, Odom, was on May 21, 1999, and his own last action in the case had been on May 26, 1999. He contended that either way, the three-year abandonment period of La. C.C.P. art. 561 had elapsed.

The district court agreed, signing an ex parte judgment of dismissal on April 15, 2003.

| aKethley responded with a rule to set aside the order of dismissal, alleging that his lawyer, Odom, was on active duty with the U.S. Air Force; since May 1999, the date of the last step in the prosecution of the case, he had served 764 days in 37 different locations around the globe, including assignments as a Staff Judge Advocate and, since August 2002, on full-time active duty as a prosecutor in the Canadian “Friendly Fire” courts-martial at Barksdale AFB in Bossier City. Jack replied that the case was abandoned in May 2002, before Odom was called to full-time duty.

In May 2005, Kethley sued Odom in a separate action for legal malpractice; Odom formally withdrew as his counsel in the partnership suit.

In March 2006, Odom intervened in the partnership suit, alleging that its outcome would determine his malpractice liability; he became the de facto plaintiff seeking to set aside the judgment of dismissal. He argued that his extensive military service amounted to circumstances beyond his control, warranting an exception to Art. 561. By supplemental memo, he invoked the protection of the Servicemembers Civil Relief Act, in particular 50 U.S.C.App. § 526(a). This section now provides:

(a) Tolling of statutes of limitation during military service
The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember’s heirs, executors, administrator, or assigns.

| aOdom showed that between May 28, 1999 and May 27, 2002, he served 286 days’ active duty. He contended that under § 526, those days should be subtracted from the abandonment period. He also contended that § 526 must be liberally construed to protect the rights of service members, and Art. 561 liberally construed to preserve legal actions.

Jack responded that the Act applies only to service members who are plaintiffs or defendants: it grants no relief from malpractice claims for attorneys on active duty. Despite the U.S. Supreme Court’s embrace of the liberal construction rule, Jack contended that no case has ever construed § 526 to suspend prescription in the manner proposed by Odom.

At the hearing on the rule, most of the argument centered on the admissibility of Odom’s military leave and earnings statements, and on whether any of his communications were shielded by the attorney-client privilege. Odom enumerated his service dates and described, with obvious pride, his military duties, which he considered his paramount achievement. Over objection, he testified that § 526 and Art. 561 should be liberally construed against abandonment. On cross-examination, however, he admitted that he never asked for any extension of time before the three years expired. Also, despite years of military service, he had never associated another attorney on a file or allowed any other case to lapse.

The district court ruled that § 526 applies only to litigants, not to attorneys, and that nothing in the record rebutted the finding that the case was abandoned under Art. 561. The court denied the rule to set aside the order of dismissal. As interve-nor, Odom has appealed.

\AThe Parties’ Contentions

Odom has advanced two assignments of error. By the first, he contends that “under the circumstances” § 526(a) suspended or extended the abandonment period under La. C.C.P. art. 561 for the 582 days of his mandatory active duty in the Air Force Reserve. The statute must be liberally construed. Conroy v. Aniskoff, 507 U.S. 511, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993); Jennings American Legion Hosp. v. Jones, 2002-0525 (La.App. 3 Cir. 10/30/02, 829 So.2d 1203). While § 526(a) does not explicitly refer to extin-guishment of a claim due to the mere passage of time, a liberal construction would encompass this effect. To illustrate the wide scope of the statute, Odom cites 13 other sections of the Act that grant extensions in debtor-creditor relations, tax proceedings and other matters. He also cites § 513(a) as a catchall section that suspends or tolls “any period limited by law, regulation, or order” affecting a service member’s civil rights and extends all the protections set forth therein to those who “are or may be primarily or secondarily” liable for an obligation.

Second, he contends that contra non valentem operates as an exception to Art. 561 when the failure to prosecute results from facts beyond the plaintiffs control. In one case, a suit was reinstated because the plaintiff had military obligations, Zatarain v. Portera, 63 So.2d 477 (Orl.Cir.1953), writ denied (not reported, 1953); numerous other cases have acknowledged the principle while finding it inapplicable. Finally, there was no showing that either Kethley or Odom intended to abandon the suit.

|sJack responds that abandonment under Art. 561 is conceded and no theory of contra non valentem applies. With due respect to Odom’s valiant post-9/11 military service, Jack shows that most of the three-year period accrued before that date, and Odom was not called to full-time active duty until August 19, 2002, after the matter was abandoned. During the same period, Odom was able to handle all his other matters.

Jack further contends that Odom’s reliance on § 526 is totally misguided as the Act applies only to service members as plaintiffs or defendants, not to those who are lawyers providing representation to non-service members. There is not one case granting this kind of extension. Moreover, the other sections of the Act are equally inapplicable; e.g., § 513(a) defines a secondary obligor as a “surety, guarantor, endorser, accommodation maker, comaker,” none of which describes an attorney sued for malpractice. He concludes the Act was never intended to protect attorneys from their own professional lapses.

Discussion

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561 A(l). There is no question that the three-year abandonment period expired in this case. The issue is whether to apply the “plaintiff-oriented exception, based on contra non valentem, that applies when failure |fito prosecute is caused by circumstances beyond the plaintiffs control.” Clark v. State Farm, 2000-3010 (La.5/15/01), 785 So.2d 779.

We have closely examined the pertinent provisions of the Act. Section 526(a) states that the “period of a servicemem-ber’s military service may not be included in computing any period limited by law * ⅞ * for the bringing of any action or proceeding in a court * * * by or against the servicemember or the servicemember’s heirs, executors, administrators or assigns” (emphasis added). Odom vigorously argues that under the rule of liberal construction announced in Conroy v. Anis-koff, supra, the reference to “bringing any action or proceeding” should be interpreted to include “continuing any action or proceeding.” He also argues that by virtue of his intervention, he is now a party litigant entitled to the protection of § 516(a).

These arguments, however, do not address the fundamental discrepancy between § 526 and the facts of this case. The suit to dissolve the partnership was not “by or against the servicemember.” The servicemember was the plaintiffs attorney, a status not embraced by § 526. Even under the broadest possible reading, we are unable to extend the benefits of the act to parties not contemplated therein. His subsequent intervention cannot cloak him with greater rights than he had before.

Another salient provision is the stay of proceedings under § 522(b):

(b) Authority for stay
At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days * * *.

|7Again, the stay is premised on the status of a service member as a party; it makes the stay automatic on the service member’s application. Here, neither condition has been satisfied. The instant case provides no basis for granting the § 522(b) stay.

Finally, we consider the application of § 513(a), which extends the protections of the Act to persons secondarily liable:

(a) Extension of protection when actions stayed, postponed, or suspended
Whenever pursuant to this Act a court stays, postpones, or suspends (1) the enforcement of an obligation or liability, (2) the prosecution of a suit or proceeding, (3) the entry or enforcement of an order, writ, judgment, or decree, or (4) the postponement of any other act, the court may likewise grant such a stay, postponement, or suspension to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be secondarily subject to the obligation or liability the performance of which is stayed, postponed, or suspended.

As noted, Odom filed no application for stay, postponement or suspension based on his military service. Furthermore, the concept of secondary liability encompasses persons whose financial responsibility is based on negotiable instruments, such as the accommodation maker in White System of Lafayette Inc. v. Fisher, 16 So.2d 89 (La.App. 1 Cir.1943), unit refd (not reported, 1944). In commercial law, secondary liability refers to the obligation of an endorser or guarantor. La. R.S. 10:3-414, UCC Comment 4 (“the drawer’s liability is that of a person secondarily liable as a guarantor of payment”); R.S. 10:5-103, UCC Comment 1 (“in the United States the word ‘guarantee’ is more typically used to describe a suretyship transaction in which the ‘guarantor’ is only secondarily liable”). Simply put, Odom bears none of the marks of the financial responsibility |soutIined in § 513.

In short, we find that the Servicemem-bers Civil Relief Act does not suspend, interrupt, or otherwise postpone the abandonment period of three years under La. C.C.P. art. 561 in favor of the plaintiffs attorney, who was on active duty for a portion of the time. The district court was not legally wrong to find § 526(a) and the other suggested portions of the Act inapplicable.

Finally, regardless of the impact of the Servicemembers Civil Relief Act, we have considered whether the failure to prosecute was caused by circumstances beyond the plaintiffs control. Clark v. State Farm, supra. Under the liberal construction rule, this court will consider various acts of the plaintiff or counsel as steps in the prosecution. State v. Cole Oil & Tire Co., 36,122 (La.App. 2 Cir. 7/17/02), 822 So.2d 229, writ denied, 2002-2325 (La.11/15/02), 829 So.2d 436. In this case, there are no off-record acts or documents to interpret as steps in the prosecution.

Superficially, Kethley had no control over Odom’s military service; that was a matter affecting only Odom, who was not the plaintiff. As a client, however, Keth-ley was entitled to expect that his attorney would act with reasonable diligence and promptness, keep him reasonably informed about the status of his case, and make reasonable efforts to expedite the litigation consistent with the interests of the client. Rules of Prof. Resp. 1.3, 1.4(a)(3), 3.2. Odom testified that he maintained a civil litigation practice during the three-year period and was not placed on full-time active duty until after the case was dismissed. He made no effort to inform Kethley, or | sthe court, of his military obligations, and he could not recall asking any of his partners about associating as co-counsel in the case. The record shows that despite the pressing demands of military service, Odom was able to serve other clients personally, and had resources available to serve them through cocounsel. Even if we were to accept that external factors affecting only plaintiffs counsel could prove an exception to Art. 561, on this record we cannot say that Odom’s military service rose to the level of contra non valentem. He seemed perfectly able to manage his practice despite his military commitments. The district court did not err in denying the claim of an exception to Art. 561.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the intervenor, John S. Odom Jr.

AFFIRMED.

      . Section 526(a) is the statute as amended by Pub.L. 108-189, effective December 19, 2003, with the proviso that the amended version applies to “any case that is not final” before that date. The parties concede that the amendment made no substantive change to the law, although the prior version, 50 U.S.C.App. § 521 (then called the "Soldiers’ and Sailors' Civil Relief Act of 1940”), had specified that when "a person in the military service is involved, either as plaintiff or defendant," he or she was entitled to a stay of proceedings.

      . In support, Jack has attached a 1 ⅛-inch thick printout of the “Soldiers' and Sailors’ Civil Relief Guide,’’ a July 2000 publication of the Judge Advocate General’s School, Char-lottesville, Virginia. While this is not the law, it does state that a stay of proceedings is available to military plaintiff and defendant “but not plaintiff’s attorney if the attorney is the person called to active duty.” In support, it cites an unreported Texas case, Salazar v. Rahman, 1993 WL 22085 (Tex.App.-Houston (14 Dist.) 2/4/93), which affirms a summary judgment, holding that § 526's predecessor "clearly does not provide for a stay based on an attorney's military service.”


text:
    STATE of Louisiana, Appellee v. Jimmy L. WILHITE, Appellant.
    No. 42,213-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Rehearing Not Considered July 18, 2007.

      Jimmy L. Wilhite, Pro Se.
    Louisiana Appellate Project, by Paula Corley Marx, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

11This criminal appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. The defendant, Jimmy L. Wilhite, was charged with two counts of molestation of a juvenile, in violation of La. R.S. 14:81.2(A). After a bench trial, Wilhite was convicted on both counts and sentenced to 15 years at hard labor on each count in accordance with La. R.S. 14:81.2(0, the sentences to run consecutively. For the following reasons, we affirm Wilhite’s convictions and sentences.

FACTS

Wilhite, his girlfriend, Christa Wright, and Wright’s two daughters, J.G., born on June 4, 1996, and J.G., born October 13, 1994, along with two other children lived together in an apartment in Monroe, Louisiana. On December 17, 2002, Wright came home from work and was told by her older daughter that Wilhite had been “messing with her.” Wright then took all the children from the home to her aunt’s home; subsequently she took the two girls to St. Francis Medical Center where they were examined. Three weeks later, Dr. Meade O’Boyle, a doctor who has worked closely with law enforcement and sexual abuse victims for over 25 years, examined both girls. At the time of the offenses, the older daughter was eight years old, and the younger daughter was six years old.

Once law enforcement officials were notified, Detective James Booth of the Monroe Police Department interviewed the girls and, with Wright’s permission, made videotapes of these interviews. At trial, Det. Booth | gtestified along with both daughters, Wright, Wright’s niece and Dr. O’Boyle. The videotapes of Booth’s interviews with the girls were introduced into evidence along with photographs and medical reports, and Wilhite’s recorded statement. Wilhite waived his right to a jury trial, was convicted on both counts, and sentenced to 15 years at hard labor on each count, the sentences to run consecutively. This appeal ensued.

LAW AND DISCUSSION

Sufficiency of the Evidence

Wilhite first argues that there was insufficient evidence to support a verdict for either count of molestation of a juvenile. Louisiana R.S. 14:81.2(A) states:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

The standard of appellate review for a sufficiency of the evidence claim 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 1996-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Here, both girls identified Wilhite as their molester. The older daughter testified that Wilhite had touched her between her legs, and that he “put his thing in my poo-poo spot.” She also testified about an incident where Wilhite turned off the bathroom lights, took her out of the bathtub and made her sit down on his lap as he sat on top of the toilet. The older daughter explained that she saw Wilhite take her little sister to the bed once, and later saw her little sister on top of him. The younger sister denied anything happened to her when she initially spoke with Det. Booth, but later did tell Dr. O’Boyle that she was molested by Wilhite and indicated at trial I ¿that she had told “the policeman” what happened. She testified that “[Wilhite] would take me and place me on top of him,” and explained that “he’ll use his hand to push me up and down.” Both children testified that they considered Wil-hite as the person in charge when their mother was gone.

At trial, Det. Booth read from his report which was consistent with the older daughter’s testimony. When questioning Wil-hite, Det. Booth testified that he was surprised that Wilhite did not become angry with him because Det. Booth was accusing him of molesting a six-year-old and an eight-year-old. Detective Booth further testified that Wilhite had an explanation for almost everything including that the mother “put the children up to do this,” because he told the mother that he did not want to keep her children. During the questioning, Wilhite also mentioned several times that the children “messed with him.”

Dr. O’Boyle found the victims’ statements to be credible and reliable based on the use of “child language” to describe the incidents. Dr. O’Boyle’s testimony explained that the absence of physical findings of abuse is consistent with the statements given by the girls. Her impression from talking to both girls was that they had been molested. Finally, Wright testified that after being confronted about allegedly “messing” with the older daughter, Wilhite was nervous and starting to quiver when he spoke..

Looking at the evidence in the light most favorable to the prosecution, the record' supports every element of the crime: (1)Wilhite was over the age of 17; (2) Wilhite committed a lewd or lascivious act upon the Lperson or in the presence of both children under the age of 17; (3) Wilhite was more than 2 years older than the victim; (4) Wilhite had specific intent to arouse or satisfy the sexual desires of either party; and (5) the act was committed by the use of influence by virtue of a position of control or supervision over the juvenile. Therefore, Wilhite’s argument is without merit.

Admissibility of the Videotapes

In his next assignment of error, Wilhite alleges that the trial court erred in allowing the videotapes of Det. Booth’s interviews with the girls into evidence, because it failed to meet the requirements set forth in La R.S. 15:440.1 et seq. Wil-hite specifically asserts that the tape must first be determined to be competent evidence, namely that Det. Booth should have been “supervised” in accordance with La. R.S. 15:440.4(A)(5). The state asserts, however, that Wilhite failed to object to this issue at trial and therefore he is precluded from raising the issue on appeal. In the alternative, the state argues that the statute at issue does not require the videotaping process to be “supervised.”

After reviewing the record, it does not appear that'Wilhite lodged a proper objection to the specific issue on appeal. Generally, a defendant is limited to the grounds for objections articulated at trial; a new basis for objection cannot be raised for the first time on appeal. La. C. Cr. P. art. 841; State v. Clayton, 427 So.2d 827 (La.1982). However, in the interest of judicial economy we will address the issue raised by Wilhite.

|fAt the outset, we explain the purpose of the legislation is to facilitate prosecution of offenders who have committed crimes of violence against children “with a minimum of additional intrusion into -the lives of such children.” The statute authorizes videotaping the statements of such victims and introducing the statements at trial “as an exception to the hearsay rule.” State v. Kennedy, 2005-1981, p. 12 (La.05/22/07), 957 So.2d 757; La. R.S. 15:440.3. In the instant case, even if a proper objection was made, the trial court did not err in allowing the videotapes into evidence. Louisi--ana R.S. 15:440.4 currently states, in pertinent part:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
(4) That the recording is accurate, has not been altered, and reflects what the protected person said.
(5) That the taking of the protected person’s statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a licensed professional counselor, or an authorized representative of the Department of Social Services.

(Emphasis added.)

Wilhite misinterprets the provisions of La. R.S. 15:440.4(A)(5) in attempting to read the statute as requiring Det. Booth to be supervised. If the legislature intended to distinguish the supervisors from those conducting |7the interview, the statute would express this intent. There is no indication in the plain reading of the statute that two different individuals are required to participate for the videotapes to be rendered competent evidence. The legislature listed specific individuals who are presumably better suited to ask the sensitive questions that are involved when interviewing the protected person(s). Clearly, Det. Booth was qualified to conduct/supervise the interview as his occupation is listed — a law, enforcement officer and he has received training on interviewing children and investigating sexual and physical abuse of children. The videotapes satisfactorily proved all elements set forth in La R.S. 15:440.4. See e.g., State v. Guidroz, 498 So.2d 108 (La.App. 5th Cir.1986). In addition, we note that all requirements set forth in La. R.S. 15:440.5, which determines the admissibility of a videotape of an oral statement of the protected person, were satisfied. Accordingly, Wilhite’s argument is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Jimmy L. Wilhite is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing not considered, not timely.

      . In accordance with La. R.S. 46:1844(W)(l)(a), initials are used in order to protect the identity of the victims. Here, we also note since both daughters have the same initials, we will refer to them as the older/younger daughter.


text:
    COLE BUILDERS, LLC, Plaintiff-Appellee v. J & J PROPERTIES OF WEST MONROE, LLC, Defendant-Appellant.
    No. 42,214-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Rountree Law Offices, by James A. Rountree, Monroe, for Appellant.
    Guerriero & Guerriero, by Kevin D. Alexander, Monroe, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

11 Defendant, J & J Properties of West Monroe, LLC, appeals from a trial court decision granting a motion for summary judgment in favor of plaintiff, Cole Builders, LLC. For the following reasons, we affirm.

Facts and Procedural History

J & J Properties issued check # 005081 made payable to Cole Builders in the amount of $14,289.00 on ■ July 18, 2005. The bank dishonored this check upon presentment due to insufficient funds, and marked the check “NSF” with the notation “DO NOT PRESENT AGAIN.”

Cole Builders sent a letter informing J & J Properties of the dishonored check in accord with La. R.S. 9:2782,’ demanding that defendant pay the obligation within fifteen working days of receipt of the letter, with a warning that failure to pay would result in statutory penalties. J & J Properties failed to make any payment. Cole Builders filed its petition for damages on December 21, 2005, in the Fourth Judicial District Court of Ouachita Parish, seeking payment plus statutory penalties, costs and attorney fees pursuant to La. R.S. 9:2782.

Cole Builders filed a motion for summary judgment, which was heard on July 5, 2006. The trial court withheld judgment, allowing J & J Properties one week, or until July 12, 2006, to pay the original payment due plus $400 in attorney fees. The trial court stated that it would award the full amount of the check plus statutory penalties and attorney fees should defendant fail to pay timely.

On July 14, 2006, Cole Builders, having received no payment from J & J Properties, presented a proposed judgment to the trial court, a copy of | j,;which was mailed to defendant. The trial court signed the judgment on July 18, 2006, granting plaintiffs motion for summary judgment, and awarding Cole Builders $14,289 for the original obligation, an additional $14,289 in statutory penalties, $2,000 in attorney fees, plus all costs of proceedings and legal interest from the date of judicial demand until paid.

It is from this judgment that J & J Properties has appealed.

Discussion

Defendant argues that summary judgment was improperly granted, and in any case, the trial court’s judgment should not have included statutory penalties.

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Miller v. Bossier, 41,476 (La.App.2d Cir.09/20/06), 940 So.2d 54. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. La. C.C.P. art. 966(A)(2); Hawes v. Kilpatrick Funeral Homes, Inc., 39,089 (La.App.2d Cir. 11/17/04), 887 So.2d 711. Appellate review of the grant of summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.04/14/04), 870 So.2d 1002.

13La. R.S. 9:2782 requires five elements in order for a plaintiff to obtain a double recovery against a drawer of a check returned due to insufficient funds. The elements are:

1) Written demand containing a notification of dishonor and setting forth the penalties for failure to pay;
2) Delivery by certified or registered mail;
3) Demand mailed to the drawer of the check at the address shown on the instrument;
4) Proof of receipt; and
5) Nonpayment within fifteen days of receipt of written demand.

It is uncontested, and the record demonstrates, that written demand, in accordance with the requirements of La. R.S. 9:2782, was sent by Cole Builders and received by defendant via certified mail, at the address as shown on the check at issue. Indeed, J & J Properties admits in its answer that it received the demand. The demand set forth the penalties for failure to pay and the time period in which defendant had to pay to avoid the penalties. It is undisputed that J & J Properties failed to tender payment within the fifteen-day period.

When the requirements set forth in La. R.S. 9:2782 are satisfied and the drawer of a check dishonored for nonsufficient funds fail to tender payment, “the drawer shall be liable to the payee ... for damages of twice the amount so owing, but in no case less than one hundred dollars plus ^attorney fees and court costs.” (Emphasis added). Plaintiff was entitled to summary judgment as a matter of law, and the trial court’s ruling will be upheld. ■

Conclusion

For the reasons set forth above, the trial court ruling granting summary judgment in favor of plaintiff, Cole Builders, LLC, and against defendant, J & J Properties of West Monroe, LLC, in the amount of $14,289 plus statutory penalties of $14,289 and $2,000 in attorney fees, plus all costs of proceedings and legal interest from the date of judicial demand until paid, is AFFIRMED. Costs of this appeal are to be assessed against defendant, J & J Properties of West Monroe, LLC.

      . On July 28, 2006, J & J Properties made a partial payment of $14,689, sixteen days after the date set by the trial court.

      . Defendant erroneously cites Redden v. Ripley, 27,905 (La.App.2d Cir.12/10/03), 862 So.2d 469, wherein this court declined to grant double recovery because the check in Redden was returned due to “uncollected funds” as opposed to nonsufficient funds, as in the present case, and was governed by the provisions of La. R.S. 9:2782. Id. at 474.


text:
    STATE of Louisiana, Appellee v. Kenneth Lee TRAYLOR, Appellant.
    No. 42,218-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Laura M. Pavy, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, A. Shawn Alford, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| defendant, Kenneth Lee Traylor, was convicted of the aggravated rape of a nine-year-old girl, a violation of La. R.S. 14:42(A)(4), and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant has appealed his conviction. Finding no error, however, we affirm.

Discussion

Other than urging this court to review the record for errors patent, defendant assigned only one error, that the evidence was insufficient to support the jury’s verdict.

The standard of appellate review for a sufficiency of the evidence claim 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. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517.

At the time of the offense, La. R.S. 14:42(A)(4) provided, as it does now, that:

(A) Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
1 ⅞(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:41 provides in pertinent part:

(A) Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
(B) Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

In contesting the sufficiency of the evidence, defendant asserts that the state presented insufficient proof of penile penetration and therefore, the jury’s verdict of aggravated rape is not supported by the evidence. Specifically, defendant claims that the victim did not actually see defendant’s penis penetrate her and that it could have been his finger. Defendant also notes that the doctor who obtained the vaginal swab from the victim did not testify and that the “swab may have been simply (moved) around the opening of the vagina” and thus, was not proof of penetration.

The evidence at trial established that on the night of September 9, 2004, the nine-year-old victim was asleep in her bedroom in the apartment she lived in with her mother (and a cousin of defendant’s) when defendant broke the window to the victim’s bedroom, placed a towel over her face and dragged her outside to a wooded place behind the apartment complex. Defendant then pulled down his pants and ordered the victim to do the same. According to the victim, defendant then “[stuck] in his penis into mine.” When asked by the prosecutor whether defendant had stuck his penis inside her “private part,” the victim answered “yes.”

|sOn cross-examination, the following exchange took place between the victim and defendant’s attorney.

Q: Was his penis big?
A: No sir. I didn’t see nothing.
Q: Hunh?
A: I didn’t see nothing.
Q: Okay. And you said he put it inside of you?
A: Yes, sir.
Q: Did he keep it inside of you a long time or just a short time?
A: Long time.
Q: Did he move around some while he was inside of you?
A: No, sir.
Q: Okay. Was your privates sore or was it torn or bruised, did it hurt after — the next day or so after this happened?
A: It hurt.
Q: Okay. Since you didn’t see his penis, could it have been anything else other than his penis that was inside of you?
A: I don’t know.
Q: Could it have been his finger?
A: I don’t know. I felt like it.
Q: But you never did see his penis, did you, baby?
A: No, sir.
Q: Okay. You just knew something was inside of you?
A: Yes, sir....
Q: But you’re not sure what it was are you?
A: No, sir.

The victim returned to her apartment and reported the assault to her mother and the police. She was taken to Union General Hospital where a rape exam was performed by Dr. Lisschutz and Diane Spillers, LPN. Ms. Spillers testified that vaginal swabs were collected and then sealed and turned over to law enforcement personnel.

Troy Kendal Stracener, a forensic DNA analyst employed by the Northeast Crimi-nalistic Lab in West Monroe, performed DNA testing on the victim’s vaginal swab from the rape exam kit, an oral swab obtained from defendant, a blood sample from a piece of curtain hanging in the broken window in the victim’s bedroom, and two reference samples from the victim Land defendant. Cells from the vaginal swab matched defendant’s profile. Specifically, Stracener testified that the probability that the DNA profile obtained from cells from the victim’s vaginal swab came from someone other than defendant was 1 in B.79 trillion. Furthermore, the bloodstain on the curtain was consistent with defendant’s DNA profile. On cross-examination, Stracener admitted that it is possible that sperm very near the vaginal opening can make its way into the vaginal canal.

Dr. Ann Springer, an expert in the field of pediatrics, testified that she examined the victim on September 10, 2004. Dr. Springer testified that a colposcopic exam indicated that the victim’s hymen was intact and the doctor detected no injury in either the victim’s vaginal canal or anus. According to Dr. Springer, the physical exam neither proved nor disproved penetration. Specifically, Dr. Springer stated that 80% of children who have been molested and penetrated have a “totally normal” physical exam and show no physical signs of the abuse. It was her opinion, based upon the history given to her by the victim as well as her presentation, that the victim had been sexually abused.

Defendant contends that the evidence regarding the specimen’s collection was insufficient to establish that his DNA was in fact in the victim’s vagina. He does not challenge that there was sperm found during the vaginal swab or that the DNA extracted therefrom was consistent with his DNA, only whether the swab was collected from the vaginal canal.

Diane Spillers, the nurse who assisted the physician who performed the rape kit examination on the victim, testified that a sample is collected 15when a swab, a Q-tip like device, is inserted into the vaginal cavity, not rubbed outside the vagina. Ms. Spillers stated that she took the swab from the physician, sealed it, and turned it over to the investigating officers. Although Ms. Spillers had no independent recollection of how deep into the victim’s vagina the swab was inserted or whether the physician simply swabbed the vaginal area, there is nothing in the record whatsoever to indicate that the standard procedure for collecting this type of evidence was not followed.

Viewed in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of the crime of aggravated rape. The young victim testified that defendant put his penis into her private part. The victim’s cross-examination may have caused some confusion as to whether there was penetration by defendant’s penis or finger. The victim’s testimony of penile penetration, however, was supported by the physical evidence, and the jury, as the trier of fact, weighed her testimony. The issue is one of the weight of the evidence rather than the sufficiency, clearly a matter outside the scope of this court’s appellate review. See State v. Marcantel, 00-1629 (La.04/03/02), 815 So.2d 50.

The jury was reasonable in rejecting defendant’s theory that he penetrated the victim with something other than his penis. This assignment of error is without merit.

Having performed an error patent review, we found no such errors.

| «Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.