author: THIBODEAUX, Chief Judge.

text:
    Warren A. RAVE v. WAMPOLD COMPANIES, et al.
    No. 2006-978.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant-Warren A. Rave.
    Amanda H. Carmon Eagan, Johnson, etc., Baton Rouge, LA, for Defendant/Ap-pellee-Louisiana Workers’ Compensation Corporation.
    Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Defendants/Appellees-Liberty Mutual Insurance Company and Wam-pold Companies.
    Skylar J. Comeaux, Law Offices of Jeff R. Rytlewski, Lafayette, LA, for Defendant/Appellee-Hartford Casualty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

11 This case involves a summary judgment dismissal of claims of the plaintiff, Warren A. Rave, for workers’ compensation benefits, penalties and attorney fees. After allegedly sustaining three successive work related injuries in 1998, 1999, and 2000, Mr. Rave filed complaints beginning in 2003 against his employer, Wampold Companies (Wampold), and its three successive insurers for medical-related disputes and for the underpayment of wage benefits. Two of the insurers filed motions for partial summary judgment based upon exceptions of prescription. The workers’ compensation judge (WCJ) granted both motions for partial summary judgment, and Mr. Rave filed this appeal seeking to have both judgments reversed. We reverse both judgments.

I.
ISSUES
We must decide:
(1) whether the workers’ compensation judge erred in granting partial summary judgment in favor of Hartford Casualty based upon exceptions of prescription;
(2) whether the workers’ compensation judge erred in granting partial summary judgment in favor of Liberty Mutual and the employer based upon exceptions of prescription; and,
(3) whether the workers’ compensation judge erred in granting partial summary judgment on the issue of prescription of penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Warren Rave, a 57-year-old air conditioning technician, began working for Wampold Companies in 1993. Mr. Rave asserts that while in the course and | scope of his employment with Wampold, he sustained three work-related injuries in three successive years. On September 8, 1998, he stepped into a hole while carrying equipment and injured his right knee. On August 2, 1999, he re-injured the right knee by stepping into another hole or depression while walking backward to rewind a hose pipe. On May 26, 2000, Mr. Rave twisted his left knee while carrying an air conditioning unit at work. In each accident, Mr. Rave suffered a torn medial meniscus of the knee. He has had numerous surgeries, including knee replacements of both knees. For each of the three accidents, Mr. Rave received payments from his employer’s insurance company for medical expenses and wages while he was unable to work.

However, each accident was covered by a different insurance company. Hartford Casualty Insurance Company (Hartford) covered the first accident in 1998 and does not dispute that Mr. Rave was injured while in the course and scope of his employment with Wampold; Liberty Mutual Insurance Company (Liberty) covered the second accident in 1999; and, Louisiana Workers Compensation Company (LWCC) covered the third accident in 2000. Mr. Rave is still receiving medical payments from Liberty Mutual for the second injury to the right knee in 1999, and he is still receiving wage benefits and medical payments from LWCC for the third injury, which was to the left knee, in 2000.

On December 5, 2003, Mr. Rave filed a claim for workers’ compensation, or 1008 complaint, against Wampold and its third insurer, LWCC, based upon injuries to his knees in the second and third accidents, in August 1999 and May 2000, respectively. He asserted a dispute over the choice of physician for an orthopaedic specialist and a psychiatrist, and he requested penalties and attorney fees. On February 7, 2005, Mr. Rave filed an amended 1008 and added Liberty Mutual as |3a defendant, added the complaint that his wage benefits had been wrongly calculated resulting in an underpayment, and added a request for legal interest. On September 2, 2005, Mr. Rave filed a second amended 1008 complaint, adding Hartford Casualty as a defendant and adding the first injury in September 1998 as a basis for his claims.

The first and second insurers, Hartford Casualty and Liberty Mutual, respectively, filed motions for partial summary judgment based upon prescription. The Liberty Mutual motion was filed on behalf of Liberty Mutual and the employer, Wam-pold Companies. At the first summary judgment hearing, the defendants asserted that they would only argue prescription, and that causation would be addressed at a full trial on the merits. Following two separate hearings, both motions for partial summary judgment based on prescription were granted by the WCJ. The first hearing in April 2006 resulted in a dismissal of Liberty Mutual and Wampold for all claims arising from the second accident in August 1999. While there was no correction to the judgment, the WCJ admitted during the second hearing on prescription, as to Hartford, that she had not intended to grant summary judgment to the employer, Wampold, in the previous hearing. The second summary judgment hearing in May 2006 dismissed all claims against Hartford Casualty. Mr. Rave appeals both judgments.

III.

LAW AND DISCUSSION

Standard of Review

We review summary judgments de novo, using the same criteria that govern the trial court’s consideration of the appropriateness of summary judgment. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783.

LHartford’s Argument for Prescription of Wage and Medical Benefits

Mr. Rave asserts that the WCJ erred in granting Hartford’s motion for partial summary judgment based upon prescription of Mr. Rave’s claims for wage and medical benefits. Hartford, which insured the first accident on September 8, 1998, argued that Mr. Rave’s claims for both wage benefits and medical benefits had prescribed when Mr. Rave added Hartford to his complaint via the second amended 1008 filed on October 31, 2005. We note that the second amended complaint adding Hartford was actually filed on September 2, 2005. As argued by Hartford, La.R.S. 23:1209(A) provides that a claim for TTD wage benefits prescribes one year after the last wage benefit is paid, and La.R.S. 23:1209(C) provides that a claim for medical benefits prescribes three years after the last medical benefit is paid.

Hartford paid the last wage benefit for temporary total disability (TTD) on December 2, 1998, and the last medical payment, which covered Mr. Rave’s first surgery and follow-up expenses on the right knee, on January 26, 1999. Hartford, therefore, argued that the claim for TTD prescribed on December 2, 1999, and argued that the medical payments prescribed on January 26, 2002. Accordingly, even under the relation back doctrine of La.Code Civ.P. art. 1153, which we need not address herein, the prescription dates claimed by Hartford are well over three years prior to the filing date of the original 1008, which was December 5, 2003. Therefore, on its face, Mr. Rave’s claims against Hartford for wage benefits and medical benefits appear to have prescribed, and it is Mr. Rave’s burden to show that his claim has not prescribed. See Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560.

1 ¡¿Liberty Mutual’s Argument for Prescription of Wage Benefits

Mr. Rave asserts that the WCJ also erred in granting the motion for partial summary judgment of Wampold and Liberty Mutual, which insured the second accident on August 2, 1999. Wampold and Liberty argued only that Mr. Rave’s claims for wage benefits had prescribed. It did not argue prescription as to claims for medical benefits as those were still being paid by Liberty Mutual at the time of the hearing. Liberty Mutual paid its last wage benefit to Mr. Rave on April 30, 2000, over three years before the 1008 complaint was filed on December 5, 2003. Accordingly, pursuant to the three-year prescriptive period for a worker’s claim for medical benefits in La.R.S. 23:1209(C), the claim against Liberty Mutual also appears on its face to have prescribed, and therefore, Mr. Rave has the burden of proving interruption or suspension of prescription.

Solidary Liability of Employers and Insurers

Mr. Rave opposes the motions for summary judgment because his current disability arises, he claims, from the condition of both knees, and that his employer, Wampold Companies, and its three insurers, Hartford, Liberty, and LWCC, are all solidarily liable for his wage and medical benefits. He argues that each time an insurer paid a benefit, it interrupted prescription as to the other obligors, and that where he received benefits for all three injuries, continuously, with never a gap of over nine months between the payments, none of the claims have prescribed. Counsel for Mr. Rave cites Article 1799 of our Civil Code which provides: “The interruption |fiof prescription against one solidary obligor is effective against all solidary obli-gors and their heirs.” La.Civ.Code art. 1799.

Our jurisprudence holds that when the present disability of an employee in a workers’ compensation claim is due to a combination of two or more successive accidents or due to the second accident’s having aggravated the prior injury, both the subsequent compensation insurer and the insurer at the time of the first accident are solidarily liable for compensation benefits and medical expenses. Prevost v. Jobbers Oil Transport Co., 95-0224 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, writ denied, 96-0440 (La.4/8/96), 671 So.2d 336; Labeaud v. City of New Orleans, Department of Property Management, 576 So.2d 624 (La.App. 4th Cir.), writ denied, 581 So.2d 687 (La.1991). Likewise, when a combination of work-related accidents causes a disability, or where by virtue of a second accident a prior injury is aggravated causing disability, both the subsequent employer and the employer at the time of the first work-related accident are solidarily liable for compensation benefits and medical expenses. Hill v. Manpower-Collier Investments, 30,444 (La.App. 2 Cir. 4/8/98), 712 So.2d 560; Tron v. Little Italiano, Inc., 38,556 (La.App. 2 Cir. 6/25/04), 877 So.2d 1055.

In fact, it has been well-settled for at least sixty-five years that in instances of two or more accidents, all of which are contributing causes of the ultimate disability, the employers and their insurers at the time of such accidents may be held solidarily liable for the payment of compensation. See also, Daigle v. Lajet, Inc., 504 So.2d 1126 (La.App. 5 Cir.1987); Scott v. Hartford Acc. & Indem. Co., 302 So.2d 641 (La.App. 3 Cir.1974); Carter v. Tri-State Ins. Co., 259 So.2d 433 (La.App. 2 Cir. 1972); Stockstill v. Bituminous Casualty Corp., 144 So.2d 918 (La.App. 4 Cir.1962); Fontenot v. Great American Indemnity Company, 127 So.2d 822 (La.App. 3 Cir.1961); Finley v. Hardware Mutual Insurance Company, 237 La. 214, 110 So.2d 583 (La.1959); Stansbury v. National Auto. & Cas. Ins. Co., 52 So.2d 300 (La.App. 1 Cir.1951); Brock v. Jones & Laughlin Supply Co., 39 So.2d 904 (La. App. 1 Cir.1949); and White v. Taylor, 5 So.2d 337 (La.App. 2 Cir.1941).

In Labeaud, the plaintiff sustained a back injury in 1982 while working for the Lehleitner company, which was insured by Liberty Mutual. Liberty Mutual paid weekly benefits from September 1982 until March 1988. The plaintiff was working in the course and scope of his employment with the City of New Orleans when the second back injury occurred in 1987. Finding that the second back injury was an aggravation of the first, Lehleitner, Liberty Mutual, and the City of New Orleans were found liable in solido for the second injury. Prescription was not an issue in Labeaud where the first employer was still paying benefits at the time of the second accident.

In Hill, both employers were found soli-darily liable for a second shoulder injury, where the first accident occurred in September of 1994, and the second accident occurred in May of 1996. Again, prescription was not an issue, even though the claim against the first employer was not filed until June 7, 1996. The solidary liability turned on the finding that the May 1996 accident caused either a new injury or an aggravation of Hill’s prior shoulder injury.

In Prevost, the employee was working for the same employer and sustained two work-related accidents six years apart. Prevost was injured in a December 1985 motor vehicle accident, insured by Aetna Casualty, and then sustained a second injury in a May 1991 accident, insured by Guarantee Mutual. Where the second injury was found to have aggravated the first, Aetna was found solidarily liable with Guarantee for the second accident (up to a point in 1993 when |sthe plaintiff settled with a third party without approval), even though Aetna had entered into a settlement and indemnity agreement with Pre-vost for the first accident. The court in Prevost found that the settlement with Aetna for the first accident in 1985 extended only to those matters that the parties “expressly intended to settle,” that being the claims arising out of the first accident. Prevost, 665 So.2d at 406. The court refused to extend the scope of the settlement to the second accident in 1991.

In Tron v. Little Italiano, Inc., 877 So.2d 1055, the solidary liability issue included a claim for prescription, and two different sides of the body were involved. The plaintiff in Tron was working as a waitress for the Little Italiano restaurant, insured by Louisiana Restaurant Association-Self Insurers Fund (LRA), when she sustained a neck injury on March 9, 1999. An MRI indicated disk bulging at C4-5 and C5-6 levels, resulting in fusion surgery at C4-6. The plaintiff did well for a few months; then, her neck pain returned and radiated into her left shoulder and left arm. Treatment was ongoing, with various disputes arising between the plaintiff and LRA regarding physicians and diagnostic testing. The plaintiff also developed a swollen nerve root at C6-7.

On December 6, 2001, while employed with CTC as a catering worker, Ms. Tron was pushing a large frozen drink machine and felt a severe pain in her neck with pain radiating into her right arm. An EMG showed denervation of the right arm and indicated a C7 radiculopathy with more acute findings on the right side. After receiving the report of the second accident, LRA terminated medical benefits. CTC also denied benefits, contending that the claimant’s disability was related to the prior accident in 1999. LRA and CTC designated a physician to evaluate the claimant, and she opined that both accidents combined were responsible for, and substantially contributed to, the plaintiffs disability and need for medical benefits.

lain April 2002, Ms. Tron filed disputed claims for compensation against Little Ita-liano and CTC for wage and medical benefits and for penalties and attorney fees. LRA filed an exception of prescription, alleging that the April 2002 claim was filed more than two years after LRA’s last acknowledged indemnity benefit in February 2000. However, the record revealed that in October 2001, LRA had paid Ms. Tron $4,434.84, which reflected the payment of indemnity benefits in settlement of a dispute between the parties. Accordingly, the claim filed in April 2002 was found to be timely, and solidary liability was enforced against both employers.

Applying the analysis above in Tron to the time line in the present case, the record reveals that Hartford Casualty paid Mr. Rave his last TTD payment for the 1998 accident on November 25, 1998. Liberty Mutual paid Mr. Rave his first TTD payment, for the 1999 accident on August 3, 1999. Therefore, if the insurers are solidarily liable, then Liberty interrupted prescription as to Hartford in August 1999 by paying a wage benefit to Mr. Rave approximately nine months after Hartford paid its last wage benefit in November 1998.

The record further reveals that Liberty Mutual paid its last wage benefit to Mr. Rave on May 1, 2000, and that LWCC paid its first wage benefit to Mr. Rave, for the 2000 accident, on January 31, 2001. Hence, under a solidary liability analysis, LWCC interrupted prescription as to Liberty Mutual by paying a wage benefit to Mr. Rave approximately eight months after Liberty paid its last wage benefit in May 2000.

With regard to medical benefits, both Liberty and LWCC are still paying medical benefits for the right and left knees respectively, and only Hartford is claiming that the claim for medical benefits against it has prescribed. The record reflects that Hartford paid its last medical benefit on January 26, 1999, and that 1 inLiberty paid its first medical benefit in August or September 1999, depending on how one interprets the printout regarding pending transactions. Therefore, again, under a solidary liability analysis, Liberty interrupted prescription as to Hartford seven or eight months after Hartford paid its last medical benefit in January 1999.

With regard to solidary liability in the present case, if all three accidents are work-related, and if they all combined to cause Mr. Rave’s current disability, then there will be solidary liability under the law. If there is solidary liability, as shown above, the payments by Liberty interrupted prescription as to Hartford, and the payments by LWCC interrupted prescription as to Liberty. However, the defendants stated at the first summary judgment hearing on prescription that causation was an issue for trial, and that only prescription would be argued for the summary judgment motions. Therefore, we do not know at this time whether all accidents combined to cause Mr. Rave’s current disability.

Notwithstanding, the parties have included in the record on appeal the deposition and hearing testimony of Mr. Rave, and the deposition and medical records of the physician Dr. Michael Duval, who performed all of Mr. Rave’s surgeries and post-surgery follow-up care from 1998 to 2005. This evidence is factually similar to the facts in Tron. More specifically, Mr. Rave testified that the pain never stopped after the first accident, but rather remained at a level seven even after he returned to work. He further stated that when he stepped into the second hole, or depression, while walking backward in 1999, the pain went to a level nine for several hours and then returned to a seven.

Dr. Duval testified that Mr. Rave suffered a torn medial meniscus in each of the three accidents, for which he subsequently performed three arthroscopic surgeries, two to the right knee and one to the left knee. He characterized the second hfinjury to the right knee as a “recurrent meniscal tear” indicating to him that Mr. Rave may have re-aggravated his knee,” in the second accident. He further testified that after surgery, the knee is more fragile and more susceptible to developing symptoms and problems. Dr. Duval ultimately performed knee replacements to both knees, along with other procedures, and testified that Mr. Rave has done poorly. In April 2006, Dr. Duval provided his opinion that Mr. Rave’s inability to work is a result of both his right and left knee injuries, and further testified that additional surgeries to both knees could improve his range of motion.

However, Dr. Duval is not the only physician who treated Mr. Rave. The record indicates that Mr. Rave was treated by an occupational medicine physician, that he has undergone much physical therapy, and that he has had problems with depression. The pre-trial statement of the defendants indicates that many physicians and adjusters will likely be called to testify regarding causation. Therefore, as previously stated, we do not know yet whether causation will be proved at trial. Here, where causation is inextricably intertwined with soli-dary liability, and solidary liability indicates an interruption of prescription, we cannot determine one without the other. However, the testimony of Dr. Duval and Mr. Rave create genuine issues of fact regarding causation and solidary liability that prohibit summary judgment on the ultimate issue of prescription.

Moreover, the record containing the motions and oppositions of the parties and the comments of the WCJ indicate that she was not apprised by the parties of the jurisprudence on solidary liability in workers’ compensation cases. Rather, her comments indicate that she believed that the last insurer, LWCC, was liable for all of the benefits due to the injured worker from the previous accidents. The lack of a complete and developed record led the WCJ into an error of law. Accordingly, _Jj£Summary judgment was not proper as to Hartford Casualty, Liberty Mutual, and Wampold Companies, on the issue of prescription of Mr. Rave’s claims for wage and medical benefits, and those judgments are hereby reversed.

Prescription as to Claims for Penalties and Attorney Pees

Mr. Rave’s claims for wage and medical benefits were accompanied by additional claims for penalties and attorney fees as to all defendants for their failure to timely and fully pay benefits pursuant to La.R.S. 23:1201. Hartford Casualty and Liberty Mutual, along with Wampold, argued that these claims had also prescribed, and the WCJ’s granting of their partial motions for summary judgment effectively dismissed those claims as well. Accordingly, in reversing the summary judgments in favor of Hartford Casualty and Liberty Mutual as to the underlying claims, we also reverse the finding of prescription as to the claims for penalties and attorney fees. It is clear from a reading of the jurisprudence that when claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.

For example, in Tron v. Little Italiano, 877 So.2d 1055, where solidary liability applied, the appellate court upheld the WCJ’s assessment of penalties and attorney fees against the first insurer even though the first accident occurred over three years before the 1008 complaint was filed. In fact, defendants, as was the case in Tron, do not typically argue prescription of the claims for penalties and attorney' fees when they are sought along with the underlying claims for benefits. Rather, they | 13argue the fault of the defendant and whether penalties and fees are substantively proper in each case. More specifically, pursuant to La.R.S. 23:1201(F), penalties and attorney fees are assessed against either the employer or the insurer, depending upon fault, and they will not apply if the claim is reasonably controverted or if the employer or insurer can show that nonpayment resulted from conditions over which the employer or insurer had no control.

In the present case, no substantive argument or evidence was presented by either side regarding the fault of the defendants, i.e., what they knew and did not know, or when they knew it, in order for this court to decide this issue substantively. Once again, we are asked to rule only on the issue of prescription. Accordingly, we find that if the underlying claims for benefits have not prescribed, the accompanying claims for penalties and attorney fees have not prescribed. Therefore, without a finding of causation, it was improper for the WCJ to grant summary judgments dismissing Mr. Rave’s claims for penalties and attorney fees based upon prescription.

IV.

CONCLUSION

Based upon the foregoing, the Office of Workers’ Compensation’s judgments in favor of Hartford Casualty, and in favor of Liberty Mutual and Wampold Companies, granting partial summary judgment based upon prescription of the underlying claims for benefits, and upon prescription of the claims for penalties and attorney fees, are hereby reversed. The case is remanded to the Office of Workers’ Compensation for a trial on the merits regarding causation and, in light of the cited jurisprudence on solidary liability, for any attendant calculation of benefits as to each defendant. The OWC shall also determine whether the conduct of any of |14the defendants subjects them to penalties and attorney fees and, if so, the amounts due. The costs of this appeal are assessed against the defendants.

REVERSED AND REMANDED.

      . La.Code Civ.P. art. 1153 provides: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

      . Mr. Rave's opposition further argued the doctrine of contra non valentum, stating that he did not know in 1998 that he was entitled to a calculation of wage benefits that included compensation for the fringe benefits that he received from Wampold, which is at least one reason that the benefits are alleged to have been underpaid. However, his opposition did not provide a date regarding when he obtained this knowledge. Nor did he provide this information, or argue this doctrine, on appeal. Therefore, we do not have enough information to make a decision based upon the doctrine of contra non valentum and will, therefore, decide the issue of prescription based upon Mr. Rave's claims of solidary liability between the employer and insurers.

      . Defendants argue that the one-year prescriptive period for delictual actions set forth in La.Civ.Code art. 3492 applies to a workers’ compensation claim for penalties and attorney fees, pursuant to Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004. However, Craig did not address the underlying claims for benefits. Rather, it involved the prescriptive period on only the claim for penalties and attorney fees which did not accompany the original claim for benefits. Accordingly, we need not address Craig where there was no contemporaneous filing of a claim for penalties and attorney fees along with the underlying claim for benefits, as we have in the present case with Mr. Rave.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ronnie Kurt HONGO, Jr.
    No. 06-829.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Don M. Burkett, District Attorney, Ronald D. Brandon, Assistant District Attorney, Many, LA, for State of Louisiana.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant-Appellant, Ronnie Kurt Hongo, Jr.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

LA jury convicted Defendant, Ronnie Kurt Hongo, Jr., of possession with intent to distribute cocaine, a violation of La.R.S. 40:967. Defendant was sentenced to twenty years at hard labor, two years of which were to be served without benefit of probation, parole, or suspension of sentence. Defendant appeals, asserting that the evidence was insufficient to support a conviction. For the following reasons, we agree and reverse Defendant’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Deputy David Self testified that on July 19, 2004, at approximately 12:30 p.m., he observed a silver Cadillac fail to use its turn signal at the intersection of Middle Creek Road and San Antonio Avenue in Many, Louisiana. Deputy Self turned around to stop the Cadillac, and the Cadillac sped up and made a quick turn onto Martin Luther King Drive. Deputy Self testified that, when he turned onto Martin Luther King Drive, he saw the Cadillac stopped in the roadway and saw an object, which Deputy Self could not describe, being thrown from the passenger window of the car. There is no testimony as to whether Defendant or his passenger threw the object out of the passenger window.

Deputy Self testified that he activated his lights and siren as soon as he turned onto Martin Luther King Drive. The Cadillac then proceeded seventy-five yards and stopped in the parking area of the New Jerusalem Church. After the car stopped, Deputy Self asked Defendant, who was the driver, to step out of the car. Officer DeWayne Jackson arrived and stood with Defendant and his passenger while Deputy Self searched for the discarded object for approximately five minutes. Deputy Self could not find the object; therefore, he gave Defendant a verbal warning concerning not using his turn signal and released him. Deputy Self subsequently received a call [2and had to leave the area; however, he instructed Officer Jackson to search the area where he thought the object had been thrown.

Officer Jackson testified that Deputy Self informed him that he saw a plastic bag thrown from the passenger window of Defendant’s car. He later stated that Deputy Self told him “something” was thrown from the window. After Deputy Self left the area, Officer Jackson searched the area between Hawthorne and Crest Streets and found a plastic bag containing seven plastic bags that held a total of thirty-eight rocks of crack cocaine. The bag containing the smaller bags was rolled up and tied in a knot. Deputy Self testified that Officer Jackson found the plastic bag five to ten minutes after he left the scene.

Officer Phillip Daniels testified that the rocks found inside the bag were tested and determined to be cocaine. Detective Randy Murphy testified that the manner in which the rocks were packaged was consistent with drug dealing and not personal use.

Defendant was charged by bill of information with possession with intent to distribute cocaine, a violation of La.R.S. 40:967. He entered a plea of not guilty and the matter proceeded to trial by jury. On February 27, 2006, the jury returned a verdict of guilty. Defendant’s motion for new trial and, alternatively, motion for post-verdict judgment of acquittal was denied. The trial court sentenced Defendant to serve twenty years at hard labor, two years of which were to be served without benefit of probation, parole, or suspension of sentence. The sentence was to run consecutively with any other sentence Defendant was then serving. Defendant’s motion for reconsideration of sentence was also denied. Defendant now appeals his conviction.

| .¿DISCUSSION

In his only assignment of error, Defendant contends that the evidence was not sufficient to convict him of the charge of possession with intent to distribute cocaine or any other verdict responsive thereto. Defendant argues that the testimony of Officer Jackson was not sufficient to convict him because the officer did not see the plastic bag being thrown from the car; therefore, Officer Jackson could not possibly say that the item that he found was in the area where the object was thrown. Defendant also argues that it is implausible that a trained deputy, Deputy Self, would not find eight bags of cocaine on the side of the road during the early afternoon. Defendant contends that a jury could not have concluded beyond a reasonable doubt that the eight bags of cocaine found by Officer Jackson were the same object which Deputy Self saw tossed from Defendant’s car. Defendant further contends that it is impossible to escape the conclusion that Officer Jackson looked in an area along the road different from the area where Deputy Self saw the object tossed.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory test of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Weary, 03-3067, p. 17 (La.4/24/06), 931 So.2d 297, 310.

Defendant was convicted of possession with intent to distribute cocaine.

|4To support a conviction for possession with intent to distribute, the State must show that an accused was in possession of a controlled dangerous substance and intended to distribute the drug. Louisiana Revised Statutes 40:967(A) provides, in pertinent part, that it is “unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance ... classified in Schedule II.”

State v. Davis, 05-543, p. 5 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, 1190, writ denied, 06-587 (La.10/13/06), 939 So.2d 372.

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession. State v. Harris, 94-0970, p. 4 (La.12/8/94), 647 So.2d 337, 338-39.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each case. Trahan, 425 So.2d at 1226. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs. [State v.] Toups [, 01-1875] at p. 4 [(La.10/15/02),] 833 So.2d [910] at 913.

State v. Major, 03-3522, pp. 7-8 (La.12/1/04), 888 So.2d 798, 802.

In the case at bar, Deputy Self testified that an object, which he could not describe, was thrown from the passenger side window when Defendant’s car was seventy-five yards from the parking area at the New Jerusalem Church. Deputy Self testified that there was a passenger in the vehicle being driven by Defendant, but there was no testimony that Defendant was the person who threw the object out of the vehicle. Deputy Self could not find the object after searching the area for five minutes. He testified that there were ditches in the area that he searched, that the | Sgrass in the area was eight to twelve inches high, and that there was trash in the area. Deputy Self subsequently left the area to answer another call and told Officer Jackson an “approximate area” to search.

Officer Jackson testified that he searched between Hawthorne and Crest Streets. He testified that he found the bag less than five minutes after Deputy Self left. He later testified that he found the bag after approximately ten to fifteen minutes. He further testified that the only trash in the area where he found the bag was a coke cup. Officer Jackson testified that the cup had been in the area for a while because there was rusty water inside it. Officer Jackson then testified that the bag was sitting on top of the grass about twenty feet from the edge of the pavement. When asked how deep the grass was, Officer Jackson stated the following: “It was pretty good-it wasn’t that tall. You can see it from the road though.” He guessed that he walked close to one hundred yards or more from the area where Defendant finally stopped his car before finding the bag. However, he indicated it could have been seventy-five yards.

Deputy Self indicated that the evidence found by Officer Jackson was a clear plastic bag that would fit in the palm of the hand. He further testified that the bag was not wet, and Officer Jackson testified that there was no water in the area where the bag was found. Deputy Self further testified there were no fingerprints taken from the evidence. Deputy Self additionally testified that he would not classify the area of Martin Luther King Drive as a high crime area. This was confirmed by Officer Jackson.

In State v. Hopson, 97-509 (La.App. 5 Cir. 11/25/97), 703 So.2d 767, police observed the defendant throw “something” from the driver’s side window of the vehicle during a traffic stop. After stopping the vehicle, the officer walked | ^approximately twenty yards behind the defendant’s car and found two beige envelopes containing marijuana and a piece of plastic containing a rock of cocaine two to four feet from the envelopes. On appeal, the defendant argued that the evidence was insufficient to support his conviction because the officer testified that he only saw the defendant throw the envelopes out the window, not the rock of cocaine. Based on the testimony presented at trial, the court found that the jury could have found beyond a reasonable doubt that the defendant threw the rock of cocaine out the window.

In State v. Montgomery, 98-775 (La. App. 3 Cir. 1/27/99), 734 So.2d 650, police were called to investigate a complaint regarding a blue Chrysler. While questioning the driver at the back of the vehicle, one officer heard something hit the ground in the area where the defendant was located. A second officer looked beneath the car and found a matchbox containing razor blades and four or five rocks of crack cocaine. The defendant was then arrested. This court stated the following:

In [State v.] Cooper, 93-863 [ (La.App. 5 Cir. 3/16/94) ]; 635 So.2d 301, the investigating officer testified that he followed a suspect down a dark alleyway. When he had closed the distance to within three feet, he observed the defendant make a tossing motion. A subsequent search of the area revealed a matchbox “which they described as clean, and neither wet nor muddy, and which contained six rocks of cocaine.” Id. at p. 6, 304-305. The defendant’s conviction of attempted possession of cocaine was upheld.
In the present case, the lighting was adequate, and Officer Murphy was in a position to clearly see the Defendant. As to the matchbox containing the cocaine discovered underneath the vehicle, while Officer Murphy testified that he neither saw the Defendant actually possess nor throw the matchbox, he did testify that he was certain that the Defendant had thrown the box containing cocaine beneath the car. Officer Murphy’s conclusion was based on the suspicious activity of the Defendant, including, but not limited to, the way he was seated, half in and half out of the car, Defendant’s bending rapidly forward, and the concurrent sound heard beneath the vehicle.
Similar to the facts presented in Cooper, Office Murphy had a clear view of the Defendant as the events transpired. Further, evidence |7tends to establish that the matchbox discovered had not been exposed to the elements for any length of time. Both officers testified that it was not raining on the evening in question, and it was daylight at the time of the arrest. The parking lot was constructed of gravel and dirt. Though Officer Murphy never touched the box containing the cocaine, he said that it did not appear that the box had been exposed to the gravel and dirt for any length of time prior to discovery. This testimony was corroborated by Officer Hembree who actually had control of the evidence. The box containing the cocaine was never tested for prints.
The record indicates that the State proved that the Defendant was seen exiting the passenger side of the blue Chrysler where cocaine was subsequently discovered. Officers discovered evidence in close proximity to the passenger compartment where the Defendant was seated. The Defendant acted suspiciously subsequent to his exiting the vehicle and only complied with the officer’s request to return to the car after several requests. In addition, cocaine was found beneath the vehicle, and the Defendant’s observed throwing motion was followed by a sound consistent with something hitting the ground. Furthermore, the transactions above occurred in an area frequented by drug users and where regular illicit activity occurred.
Defendant was also in possession of over $200.00 in cash, a fact which supports the suspicion of dealing in illegal drug transactions. We note that the Defendant’s grandmother, Rose Lee Page, testified that she had given the Defendant $200.00 to purchase clothes and that she had seen the Defendant in possession of the purple bag on the day in question. However, it appears that the jury chose not to believe this testimony.

Id. at 654-55.

In the present case, this court finds that the State failed to prove that the plastic bag found by Officer Jackson was the object which was thrown from the passenger window of Defendant’s ear. The car was traveling down a public street and Deputy Self could not describe the object thrown. Unlike Hopson, the object thrown was not located immediately by Deputy Self or Officer Jackson and was found in a grassy area where trash may or may not have been. We additionally note that there was no testimony by either Deputy Self or Officer Jackson regarding either the condition of the bag found, other than their remarks that the bag was not wet, or their opinion | regarding the length of time the bag was exposed to the elements. Additionally, there was no testimony regarding suspicions activity by Defendant or his passenger while they were out of the car, as there was in Montgomery.

Furthermore, this court finds that the State failed to prove that Defendant was in actual or constructive possession of any object thrown from passenger window of his car. As noted above, there was a passenger in Defendant’s car, but there was no testimony concerning who threw the object from the car. In State v. Bell, 566 So.2d 959 (La.1990), the supreme court reversed Bell’s conviction for attempted possession of cocaine, finding that, although the jury could have reasonably concluded that Bell was aware that drugs were present, the evidence was insufficient to prove that he exercised dominion and control over the drugs. On the day in question, Bell was sitting with his co-defendant, Davis, in Davis’ car. Davis sat in the driver’s seat of his car, while Bell sat in the passenger seat, listening to loud music. When police officers approached the car to ask Davis and Bell to turn down the music, one of the officers saw, through the driver’s side window, a distinctively wrapped package containing a white powder among cassette tapes on the console placed over the transmission hump of the car. After retrieving the package, the officers arrested both men for possession of cocaine. Although the supreme court found that the jury could have reasonably found that Bell was aware of the cocaine, the court found the jury could not have reasonably found that Bell exercised control over the cocaine. The supreme court stated the following in its opinion:

According to the testimony of the arresting officers, the state had no evidence that Bell exercised any control over Davis’ car, that he had any other drugs in his possession on his person, that he appeared under the influence of narcotics, or that he had possession of any drug paraphernalia. It was Davis who lived in the neighborhood two doors away and who responded to the request of the police by turning down the radio. From Bell’s mere presence in the car close to the sealed package on the console between the two men, a rational factfinder could |flnot have concluded that, even assuming he was aware of the contents, Bell exercised control and dominion over the package, or that he willfully and knowingly shared with Davis the right to control it. The state’s evidence was therefore insufficient to prove that Bell was in constructive possession of the cocaine, or that he had performed any act tending directly toward accomplishing that goal. R.S. 14:27; 40:967.

Id. at 960.

In State v. Segura, 02-280 (La.App. 5 Cir. 9/30/02), 829 So.2d 587, writ denied, 02-2696 (La.3/28/03), 840 So.2d 569, officers set up surveillance after receiving information that a black male named Jimmy would be driving a red Grand Am and would deliver drugs to a certain location. When officers observed the car in the area, they followed it. At an intersection, the driver ran a stop sign. Officers turned on their siren and lights, and the vehicle fled. At that time, officers observed the front-seat passenger throwing small rock-like objects from the passenger window. When officers approached the vehicle, officers saw the front-seat passenger attempting to conceal contraband in the air-conditioner vent. The defendant was in the driver’s seat. No cocaine was found on the defendant. The court affirmed the defendant’s conviction of attempted possession of cocaine finding that the evidence excluded every reasonable hypothesis of innocence. This finding was based on the fact that officers had information which targeted the defendant as transporting drugs, and cocaine was found in front of the car. Further, the court concluded that the defendant’s flight from officers after running a stop sign was indicative of his guilty knowledge.

In State v. Hill, 38,400 (La.App. 2 Cir. 6/23/04), 877 So.2d 173, an officer observed a vehicle without an inspection sticker; therefore, he turned around and got behind the offending vehicle. At that time, the officer saw a white or clear plastic bag being tossed from the passenger side window. After stopping the vehicle, the officer found a plastic bag containing a vial of what was suspected to be PCP. The | ^defendant, the front-seat passenger, and the driver each implicated the other when asked about the package tossed from the car. The court upheld the defendant’s conviction for attempted possession of PCP, finding as follows:

This was a daytime traffic stop. Although there was no testimony as to which occupant of the vehicle had the drugs in his control or where in the vehicle the contraband had been, there was uncontroverted evidence that the drugs were thrown from the passenger side of the vehicle and that defendant was seated on that side of the car. Officer Crowder noted that the trajectory of the package being tossed out of the window was still rising, i.e. it had not yet reached its highest point, indicating to him that it was the passenger, not the driver, who made the throw. Officer Crowder further testified that the drugs were tossed out of the vehicle as soon as it was evident that the patrol car was turning around in pursuit, suggesting to him that the drugs were out in the open and readily accessible.

Id. at 176.

In State v. Clay, 95-814 (La.App. 3 Cir. 3/6/96), 670 So.2d 704, an undercover officer informed Officer Warren that he had made a drug buy from a subject who received the drugs from two individuals in a vehicle parked at a residence on Thirteenth Street. When Officer Warren arrived at the residence, the defendant and Albert George were still inside the vehicle and refused to exit. George and the defendant rolled up the windows and locked the doors. Both the defendant and George told officers they would need a warrant to get inside the vehicle. Subsequently, an officer broke one of the vehicle’s windows and both men were removed from the vehicle. A closed medicine bottle containing thirteen rocks of crack cocaine was found in the console located between the driver and passenger seats. The marked police money was found in George’s possession. This court reversed the defendant’s conviction and sentence, finding as follows:

[T]he state presented no evidence that the defendant had any other drugs on his person, that he appeared under the influence of narcotics, or that he had possession of any drug paraphernalia. Additionally, Officer John Trahan, who observed the bottle containing the cocaine on the middle console, testified that the bottle was closed. We note that in State v. Johnson, 404 So.2d 239 (La.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982), the court held that active cooperation in an attempt at drug disposal is adequate evidence, in combination with proximity to a drug or association with the possessor, to establish a prima facie case of drug possession. However, we do not find that the defendant’s refusal to exit the vehicle can be construed as active cooperation in an attempt at drug disposal. The state did not present any evidence that the defendant attempted to dispose of the drugs, and after the arrest of the defendant, the drugs were observed on top of the middle console of the vehicle. Additionally, apart from participating in locking the doors and rolling up the windows, the state offered no evidence to show that the defendant exercised any control over the vehicle.
While the jury could have reasonably found that the defendant was aware of the medicine bottle and its contents as well as the drug sale, a rational fact finder could not have concluded that the defendant exercised dominion and control over the crack cocaine. Thus, we reverse the defendant’s conviction and sentence for possession of cocaine in violation of La.R.S. 40:967(C) and order that he be discharged from further custody on that charge.

Id. at 707-08.

In the case at bar, the evidence indicated that Defendant was driving a car that stopped in the roadway and, during that time, Deputy Self saw something being thrown from the passenger window. Deputy Self searched for, but did not find, the object. Some time later, Officer Jackson found a plastic bag containing over thirty-eight rocks of crack cocaine on the side of the road. There is no testimony regarding Defendant’s knowledge that drugs were in the car or on the person of the passenger, his relationship with the passenger who threw the object from the window, where the object was prior to it being thrown from the car, or evidence of recent drug use by Defendant. The testimony presented revealed only that the passenger had dominion and control over the object that was thrown from the car.

The case at bar is clearly distinguishable from Segura, as it was the defendant in Segura that threw the drugs from the vehicle. The case at bar is also distinguishable from Hill, in that there was no testimony from Deputy Self regarding li?any belief that the object thrown from Defendant’s vehicle was out in the open or readily accessible to Defendant.

When Defendant initially sped off and turned onto Martin Luther King Drive, Deputy Self had not yet engaged his lights or siren. Further, although Defendant was stopped in the roadway when Deputy Self turned onto Martin Luther King Drive, he merely pulled forward seventy-five yards and parked in a parking lot after Deputy Self activated his lights and siren. There was no testimony that Defendant initially stopped on Martin Luther King Drive for the purpose of allowing the passenger to discard drugs.

Based on the evidence presented at trial, we find that the State failed to prove that Defendant was in actual or constructive possession of any object thrown from the car by the passenger.

DECREE

The State failed to prove both that the plastic bag containing the cocaine found by Officer Jackson was, in fact, the object thrown from the passenger window of Defendant’s car by Defendant and that Defendant was in actual or constructive possession of any object thrown from his car by the passenger. Accordingly, we find that the evidence was insufficient to support Defendant’s conviction. Therefore, Defendant’s conviction and sentence are reversed.

REVERSED.

PICKETT, J., Concurs in the result.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Mack Henry JOHNSON, Jr.
    No. 2006-937.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Mack Henry Johnson, Jr.
    Don M. Burkett — District Attorney, ADA Clifford R. Strider, III, Many, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendant, Mack Henry Johnson, Jr., was charged by bill of information with one count of simple escape, a violation of La.R.S. 14:110. Trial by jury commenced on January 30, 2006. On the same day, a jury found Defendant guilty as charged. On February 2, 2006, the State filed a multiple offender bill against Defendant. On April 27, 2006, Defendant was adjudicated a third-time felony offender and sentenced to five years at hard labor, to be served consecutively to any other sentence Defendant was currently serving. A motion to reconsider the sentence was filed on May 4, 2006, which was subsequently denied on May 15, 2006 without written reasons.

Defendant is now before this court on appeal. He assigns four errors: 1) the trial court allowed Defendant to proceed to trial without counsel, despite the fact that counsel was appointed and the record does not reflect that counsel withdrew from the case; 2) the trial court failed to inquire as to whether Defendant knowingly and intelligently waived his right to counsel; 3) Defendant was denied his right to counsel when defense counsel, who had been appointed after trial, asserted that he was unprepared to proceed, but the trial court proceeded with the habitual offender hearing regardless; and 4) the trial court erred when it used two felony convictions which arose out of the same occurrence, and pled on the same date, as two separate predicates for the purpose of the habitual offender adjudication, or in the alternative, defense counsel “rendered ineffective assistance and Mack Henry Johnson, Jr. was prejudiced by counsel’s actions (or inac-tions) when he was adjudicated a third felony offender.”

For the following reasons, we find merit in Defendant’s first two assignment of errors. Accordingly, we reverse Defendant’s conviction for simple escape; we reverse Defendant’s habitual offender adjudication; we vacate Defendant’s sentence; Land we remand for further proceedings consistent herewith.

FACTS:

On or about April 21, 2005, Defendant was picked up for a parole violation and taken to the Sabine Parish Detention Center for processing. While waiting to be booked, Defendant, without permission, walked out of the detention center and fled.

ASSIGNMENTS OF ERROR NUMBER 1 AND 2:

We will address assignments of error number one and two together because the facts and issue of the first assignment are pertinent to the issue of the second assignment. The questions presented by these two assignments of error are whether Defendant was effectively denied the right to counsel and, under the circumstances, whether he knowingly and intelligently waived his right to counsel.

An accused whose offense subjects him to the possibility of imprisonment is guaranteed the right to counsel. U.S. Const. Amend. VI; La. Const, art. I, § 13. State v. Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d 683. Further, in State v. Whatley, 03-655, pp. 22-23 (La.App. 3 Cir. 11/5/03), 858 So.2d 751, 765-66, this court cited Hayes as follows:

Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the 13trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant’s literacy, competency, understanding and volition, i.e. was defendant’s waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. [State v.] Mitchell, 580 So.2d 1006 [(La.App. 3 Cir.1991) writ denied, 613 So.2d 969 (La.1993) ]; [State v.] Smith, 479 So.2d 1062 [La.App. 3 Cir.1985) ]; State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La. App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).

In the current case, Defendant was initially assigned counsel. According to the minute entry dated April 26, 2005, he was brought before the court on a “72 hour” hearing where he was advised of the charge against him and of his right to counsel. At this time, Defendant requested the appointment of counsel. The trial court appointed Attorney Joseph D. Toups to represent him. There was no transcript available of this hearing. The order for indigent representation was signed and filed into the record on April 26, 2005.

According to the minutes, Defendant was scheduled to be arraigned on July 28, 2005; however, neither he nor counsel were present, and the matter was refixed for September 29, 2005. On September 29, 2005, Defendant was present, but without counsel. The Court advised him of the charge against him, his right to counsel, and his right to formal arraignment. Defendant advised the trial court that he could afford counsel and wished to have counsel present for arraignment. The matter was refixed for October 27, 2005. There is no transcription of the September 29th hearing.

Defendant was arraigned on the charge of simple escape on October 27, 2005. At arraignment, the trial court asked Defendant if he was represented by counsel. The following conversation took place.

THE DEFENDANT-JOHNSON: No sir, but I just got a job like about this last week right here. I’m trying to save my money and get one.
| ¿THE COURT: How much do you earn at your job?
THE DEFENDANT-JOHNSON: Uh like $5.75 an hour.
THE COURT: Okay. Mr. Johnson, you would qualify for a court-appointed attorney but you also have the opportunity to hire the attorney of your choice at any time during the proceedings up until it gets too late. Do you wish to have a court-appointed attorney at this time or not?
THE DEFENDANT-JOHNSON: No, sir.
THE COURT: You don’t wish to have a court appointed attorney?
THE DEFENDANT-JOHNSON: No, sir.
THE COURT: Okay. Any pending cases on Mr. Mack Henry Johnson not tried?
MR. BRANDON: (No response)
COURT: Simple is with or without, do y’all know?
MR. TOUPS: Yes sir.
THE COURT: It is. Category four allotment.
DEPUTY CLERK: Division B.
THE COURT: Division B. Your pretrial date is January 9th and your trial date is January 30th.
THE DEFENDANT-JOHNSON: Can you tell me the penalties on that?
THE COURT: All right, thank you. Hold on, that was A-2. That was work release. I told you wrong. A-3 — A-l, shall be imprisoned with or without hard labor for not less than two years nor more than five years. And it is a consecutive sentence. So it’s at least two years and no more than five years.
THE DEFENDANT-JOHNSON: All right. There ain’t no fine on that huh?
THE COURT: Nope.

Nothing further occurred in the record until the January 9, 2006 pre-trial | shearing. At that time, the State noted there still was not an enrollment of counsel for Defendant. Defendant explained that he had been incarcerated in November and in a rehabilitation facility in October. He stated he wanted to represent himself.

THE COURT: It’s a bad idea.
THE DEFENDANT-JOHNSON: Naw.
THE COURT: Do you understand what the charge of simple escape is?
THE DEFENDANT-JOHNSON: Yes, sir.
THE COURT: Do you understand what the penalty provisions for it are?
THE DEFENDANT-JOHNSON: Yes, sir.
THE COURT: What are they?
THE DEFENDANT-JOHNSON: Uh start off at two years.
THE COURT: And do you understand that it runs — any sentence on an escape charge run, by law, consecutively with anything else you’re serving?
THE DEFENDANT-JOHNSON: Yes, sir.
THE COURT: Okay. You’re not— obviously you’re here and you’re not asking for a court-appointed attorney, is that correct?
THE DEFENDANT-JOHNSON: No, sir.
THE COURT: Mr. Strider, anything you want me to add to that?
MR. STRIDER: What is his education level?
THE COURT: Mr. Johnson, what kind of education have you received?
THE DEFENDANT-JOHNSON: High school diploma.
THE COURT: You graduated?
THE DEFENDANT-JOHNSON: Uh yes, sir.
THE COURT: What year did you graduate in?
THE DEFENDANT-JOHNSON: Uh 2002, yeah, it was 2002.
THE COURT: Okay. What kind of work have you done?
THE DEFENDANT-JOHNSON: Uh nothing really. Just here and there odd and end jobs. I used to work at Burger King but I got a probation violation and got fired.
THE COURT: All right. You’re ready for trial January 30th? That’s your trial date.
MR. STRIDER: Your Honor, just for the record, the Defendant has two prior convictions. To test the Court’s knowledge of whether he is capable of representing himself, perhaps you could inquire if he knows what that means and the possible results of being convicted.
THE DEFENDANT-JOHNSON: Yelp [sic], that means that if I do get convicted they probably gonna violate my probation which I have to back up my probation and that’s gonna run wild with the time on my escape what they gonna be wild, so I’ll do one and then the other after that.
THE COURT: How about an habitual offender bill?
THE DEFENDANT-JOHNSON: I done been convicted on one. They ran both of them on the same docket. I got one year on both of them at the qame time.
THE COURT: It’s still possible to be a second felony offender.
THE DEFENDANT-JOHNSON:
I’m ready to deal with that then.
THE COURT: You’ve heard the saying of a man who represents himself as an attorney has a fool for a client, you’ve heard that?
THE DEFENDANT-JOHNSON:
Yeah, I’ve heard that before.
THE COURT: Okay.

Defendant then proceeded to trial on January 30, 2006. There was no further discussion at trial regarding Defendant’s literacy, competency, understanding and volition. Defendant argues that the trial court’s brief interview with him “falls short of the requirements necessary to determine whether he validly waived his right to counsel.”

17InitiaIIy, at the “72 hour” hearing, Defendant requested and was assigned indigent defense counsel. As noted above, while there is apparently no transcript of the hearing, the written appointment was filed into the record. On the first arraignment date, Defendant informed the trial court he had not been able to obtain counsel, and the matter was reset at his request. However, on October 27, 2005, at the time scheduled for arraignment, Defendant stated that he had not been able to retain counsel because he had been in rehabilitation and incarcerated. During the hearing, the trial court informed Defendant that he would qualify for a court-appointed attorney. However, there was no indication in the record that Defendant was even aware that he had been appointed counsel, or if there were reasons he chose not to utilize appointed counsel’s services. Without further ado, the trial court set pre-trial and trial dates, without even taking Defendant’s guilty plea. Notably, during the hearing, prior court-appointed counsel, Joseph D. Toups, even answered one of the trial court’s questions regarding the offense.

Whether or not Defendant was represented by counsel at arraignment is potentially problematic; however, a trial court may take an accused’s guilty plea without counsel. La.Code Crim.P. art. 516. According to Louisiana jurisprudence, an arraignment is not necessarily a critical stage of the criminal process, and available defenses are not lost if not pled at arraignment. Article 516 permits a subsequently appointed or procured counsel to withdraw any motion, plea, or waiver made by the accused for a reasonable time before trial. See State v. Tarver, 02-973 (La.App. 3 Cir. 3/12/03), 846 So.2d 851, writ denied, OS-1157 (La.11/14/03), 858 So.2d 416. Therefore, at this point, there was no error with the trial court assuming Defendant’s guilty plea and setting the case for trial without defense counsel being present right at the time.

| .¿Defendant argues, however, that the “record of this case does not show that Mr. Toups appeared on the record in a representative capacity for Mack Henry Johnson, Jr., at any stage of these proceedings.” Defendant further argues:

In the instant case, trial counsel’s total failure to meet with or otherwise make any contact with Mack Henry Johnson, Jr. at any moment in the pen-dency of these proceedings constitutes a denial of counsel during the pretrial phase of these criminal proceedings. Because the right to counsel “includes the concomitant right to communicate with counsel at every critical stage of the proceedings,” the total failure to meet or represent Mack Henry Johnson, Jr. in anyway constitutes a denial of counsel. Perry v. Leeke, 488 U.S. 272, 298, 109 S.Ct. 594, 609, 102 L.Ed.2d 624 (1989)(Marshall, J., dissenting)(citing Powell, 287 U.S. at 68-69, 53 S.Ct. at 64).

Regardless of whether Defendant was or was not represented at this point, when Defendant informed the trial court at the pre-trial hearing he could not afford to retain counsel and would represent himself, the trial court should have obtained an adequate waiver of the right to counsel, which it failed to do.

In Whatley, 858 So.2d 751, this court found that there was insufficient inquiry into the accused’s competency to represent himself. The accused was not represented by counsel at the arraignment or at trial. He had indicated to the trial court that he desired to retain counsel; however, at the time of trial, he indicated he would defend himself because he could not afford to retain counsel. The trial court then inquired into the accused’s literacy by having him read a page of jury instructions in court. There was no further inquiry into his background or the complexity of the case. The trial court then went on to discuss whether the accused could afford to hire counsel and advised him he could have counsel appointed to represent him. The trial court discussed some trial procedure with the accused and advised him that he had not been trained in the law, and that the prosecutor was an experienced attorney. After noting that throughout the colloquy, the accused said several times that he would like to have counsel, but could not afford one, this court stated:

1 gSimpIy put, the overall colloquy suggests Defendant did not understand his rights. Further, although the court conducted a clear and practical inquiry into Defendant’s literacy by having him read in open court, there was no further inquiry into his education or background, or the relative complexity of the case. As shown by the Jackson review in the previously-discussed assignments, the issue of co-ownership gave this case nuances that Defendant, a layman, may not have appreciated. As the lower court did not inquire into these factors or similar issues, it is clear the trial court did not make a sufficient inquiry into whether Defendant knowingly and intelligently waived his right to obtain trial counsel.

Id. at 767.

An example of an adequate inquiry into whether the accused intelligently and knowingly waived his right to counsel can be found in State v. Bruce, 03-918, pp. 5-6 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 858, as follows:

[T]he record in the present case shows a detailed inquiry into the understanding of defendant in waiving his right to counsel. On June 17, 2002, defendant appeared in open court and unequivocally stated his desire to represent himself. Prior to reviewing the waiver of right to an attorney form, the trial court cautioned defendant against self-representation by explaining several times that defendant was facing a life sentence as a multiple offender if convicted on the underlying charge. The trial court also reviewed the current plea offer by the State which was five years as a multiple offender. The trial court expressed its opinion that self-representation places defendant at a tremendous disadvantage because the State will use an experienced prosecutor to attempt to convict defendant. While acknowledging defendant’s right to self-representation, the trial court stringently discouraged it.
The trial court further advised defendant that it could give only limited help in making sure defendant took advantage of the procedural laws available to him and even discussed defendant’s option under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court reminded defendant that appointed counsel could remain on the case as an adviser to help defendant with procedural matters. The trial court expressed concern that defendant was making a decision out of anger or frustration and took a break in the proceedings to allow defendant an opportunity to think about his decision. Defendant assured the trial court he was not choosing self-representation out of anger or frustration.
After the break, defendant again stated he wanted to defend himself. The trial court then reviewed with the defendant in open court the waiver of right to an attorney form which defendant had executed. The form indicated defendant could read and write. It advised defendant |inthat an attorney is experienced and may know of certain defenses available or procedures which may result in defendant’s case being dismissed or the charges being reduced that may not be known to defendant. Defendant was further advised that he would have to file his own motions, make his own objections, cross-examine witnesses at trial and prepare his own defense.
Defendant was also told of his right to have an attorney appointed to assist him.

In Bruce, 864 So.2d 854, the fifth circuit found that the trial court adequately complied with the requirements for ascertaining that the accused knowingly and intelligently waived his right to counsel. The fifth circuit also stated:

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges and of the dangers and disadvantages of self-representation such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Strain, 585 So.2d 540, 542-543 (La.1991). Additionally, the trial court should inquire into the defendant’s age, education and mental condition and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. [Id.] In order to sufficiently establish on the record that defendant is making an intelligent and knowing waiver, the inquiry should involve more than an interchange of “yes” or “no” responses from the defendant. Id.
There is no inflexible criteria or magic word formula for determining the validity of a defendant’s waiver of the right counsel. Rather, the validity of the waiver must take into account the totality of the circumstances in each case. State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 845.

Id. at 857.

In a recently decided case, State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, this court analyzed the trial court’s inquiry of the accused to determine if he waived his right to counsel. Poche, while assisted by counsel, took over his defense at the close of the State’s case. The transcript of the dialogue between the trial court and Poche indicated that the trial court perfunctorily asked him if he understood what was going on, to which the accused answered in the affirmative, The trial court told Poche that he must follow the rules of criminal procedure and ^evidence, and that if he was incapable of doing so, his counsel would take over the questioning of the witnesses. Based on the trial transcript alone, this court stated:

The trial court’s interview with Defendant did not comply with the requirements necessary to determine whether Defendant validly waived his right to counsel. The trial court did not make an express determination regarding Defendant’s literacy, competency, or understanding. Although the trial court asked Defendant if he wished to act as his own counsel, it failed to determine whether his waiver was intelligently made. Also, the trial court failed to adequately warn Defendant of the dangers and disadvantages of self-representation: it did not inform him that self-representation might have an adverse effect on the outcome of the case, tell him the elements of the offenses, or explain the maximum penalties that he would fact if convicted.

Id. at 1233.

In the case sub judice, the trial court asked Defendant if he understood the charge, to which Defendant answered, “Yes.” The trial court asked if he knew the penalty for the offense and Defendant answered, “start off at two years.” The trial court then explained that any sentence imposed would run consecutively. Defendant responded, ‘Tes.” The State then asked the only question concerning Defendant’s literacy, which was whether Defendant had graduated from high school. Defendant said he did. When asked what employment he had since high school, Defendant answered, “Uh nothing really.” He stated that he had worked at Burger King briefly until he was fired because of a probation violation. The State then insisted that the trial court question Defendant regarding the consequences of being convicted as charged and the court mentioned a habitual offender bill. While Defendant had really been told that if he was convicted he would be required to serve the sentence consecutively to the sentence imposed on his prior convictions, his answer to whether he understood a habitual offender charge was not necessarily responsive, and indicated that he only understood that he had prior convictions.

During the dialogue at the pre-trial hearing, the trial court did not reiterate that | ^Defendant had the right to counsel, nor did the trial court advise Defendant he could be assisted by counsel. At no time, in the record, did the trial court discuss the elements of the offense. Other than telling Defendant it was a bad idea and that an attorney who represented himself had a fool for a client, the trial court did not advise him of the dangerousness and disadvantages of self-representation. The trial court did not warn him about the experience of the State’s prosecutor in prosecuting cases, or discuss filing motions such as discovery motions or motions to suppress, trial procedures, objections, or the consequence of putting himself on the stand to testify.

Accordingly, based on the transcript of the pre-trial hearing, we find that the trial court did not adequately ascertain whether Defendant knowingly and intelligently waived his right to counsel.

However, this court in Poche, 924 So.2d 1225, held that the entire “record should be examined for indications that a defendant was aware of the dangers and disadvantages of self-representation.” Id. at 1233 (citing State v. Norman, 99-600 (La. App. 5 Cm. 2/16/00), 756 So.2d 525, writ denied, 00-971 (La.3/23/01), 787 So.2d 1007). In Poche, the accused had filed several pre-trial pro se briefs, and on several occasions the trial court allowed him to argue the motions. Therefore, by the time of trial, this court found that “the trial court was well aware that he was literate, competent, and understood the charges against him.” Id. This court stated, “we find that, at the time of the waiver, the trial court only needed to ascertain Defendant’s volition, which it did, to satisfy the first step of the Hayes test.” Id.

Moreover, as in Bruce, 864 So.2d 854, the trial court knew that Poche had | 1sprior convictions. This court-noted that at sentencing the trial court discussed Poche’s extensive criminal record. He was a five-time felony offender and had several misdemeanor convictions; thus, he had knowledge of the judicial process through his past experiences.

In the case sub judice, there were no motions filed prior to the pre-trial hearing, and nothing filed prior to trial. Moreover, the record shows that Defendant’s two pri- or convictions were a possession of marijuana with intent to distribute and a simple kidnapping, both of which occurred on the same day and pled to on the same day. It is not clear from the record whether these offenses were pled before this judge.

Under the facts and circumstances of this case, the trial court failed to adequately ascertain whether Defendant knowingly and intelligently waived his right to counsel. The trial court’s dialogue with Defendant did not sufficiently address his literacy, competency, understanding, or volition; nor did the trial court adequately advise Defendant of the dangers and disadvantages of self-representation. We find that Defendant’s right to counsel was violated when the trial court permitted him to represent himself without adequate warning, particularly since Defendant had originally asked for counsel, had been appointed counsel, and on two occasions had advised the trial court he desired counsel, then finally admitted to the trial court he could not afford counsel.

CONCLUSION

For these reasons, we reverse Defendant’s conviction of simple escape. As a consequence thereby, Defendant’s habitual offender conviction as a second-time felony offender is reversed, his sentence is vacated, and the matter is remanded to the trial court for further proceedings.

Because we reverse Defendant’s conviction of simple escape, thereby reversing |uthe habitual offender adjudication, the remaining two assignments of error are moot.

REVERSED AND REMANDED.

      . In the presentation of his case, Defendant put a woman on the stand who testified that the police officers came to her house to locate Defendant after he fled the detention center. According to her testimony, Defendant had hid in her house. She testified that she told the officers where to find him. Defendant also took the stand on his own behalf. During cross examination, the State asked him about any prior convictions. When he objected, the trial court told him he had to answer the question because he was under cross-examination. .Defendant then admitted to having two prior felonies.


author: EZELL, Judge.

text:
    Charles M. HILL, Jr. v. Connie Yvonne HILL.
    No. CA 06-1027.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Plaintiff/Appellant, Charles M. Hill, Jr.
    Connie Yvonne Hill, In Proper Person, Alexandria, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

bln this appeal, Charles Hill appeals the decision of the trial court, designating Connie Hill as domiciliary parent of their children. For the following reasons, we reverse the decision of the trial court and render judgment.

On November 29, 2004, during custody proceedings surrounding their, divorce, Mr. and Ms. Hill were awarded joint custody of their two children, Christian and Elizabeth. Ms. Hill was designated as the primary custodial parent. Mr. Hill was awarded visitation and ordered to pay child support. On February 3, 2006, Mr. Hill filed an exparte rule to change custody based on allegations of drug use by Ms. Hill. That day, an order was signed by the trial court awarding him temporary sole custody of the children, pending a hearing on his request to become the children’s domiciliary parent. That same month, an order terminating his child support obligation was signed. Trial on the custody was delayed while Ms. Hill allegedly checked herself into a drug rehabilitation program.

On April 3, 2006, trial was held on Mr. Hill’s motion to become domiciliary parent. The trial court allowed the children to stay with Mr. Hill through the 2005-2006 school year. The parents were to alternate weeks with the children during the summer, and Ms. Hill was to again become the primary custodial parent at the start of the 2006-2007 school year. Child support was granted to Ms. Hill at a pro-rated amount during the summer, and at the previously awarded amount of $1,335 per month during the 2006 school year. From this decision, Mr. Hill appeals. Ms. Hill represented herself at trial and has not filed a brief on this appeal.

Mr. Hill asserts four assignments of error on appeal, concerning factual and evi-dentiary determinations made by the trial court in an effort to regain primary 12domiciliary custody of the couple’s daughter. Because we agree that the trial court erred in granting Ms. Hill domiciliary custody of Elizabeth, we need not address each assignment of error individually.

Under La.Civ.Code art. 131, decisions regarding custody of the children are made with the best interest of the child being paramount. This court has clearly stated the standard of review for an appellate court in child custody matters. “The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La. App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court articulated the standard to be used when a modification of a considered custody decree is sought. The court stated that:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Id. at 1200 (citations omitted).

It is undisputed that the original custody decree rendered in this matter was a considered decree; therefore, the Bergeron standard is applicable. However, it is clear from the record that Mr. Hill met this heavy burden, and that the trial court abused its discretion in allowing the children to go back to Ms. Hill at this point in[stime.

Most damningly to Ms. Hill, allegations were made at trial that she had been using methamphetamines. Ms. Hill had previously been ordered by the court to undergo hair analysis drug testing due to these allegations of methamphetamine use. She failed to submit to this court-ordered test. Additionally, the hearing had been delayed because she had agreed to voluntarily undergo drug rehabilitation. There is no evidence in the record whatsoever that this rehabilitation ever took place. Ms. Hill self-servingly asserts that she does not have a drug problem. The fact that she volunteered to enter drug rehabilitation indicates otherwise. The record establishes that Ms. Hill has, or at least, very recently had, a problem with methamphetamine use. She has not shown that she has rectified this problem. Therefore, to allow her domiciliary custody of Elizabeth without proof that she is clean would clearly be deleterious to the child.

Furthermore, Ms. Hill was ordered, in the original custody decree, to refrain from having overnight male visitors in the presence of the children. She violated this direct order of the court by allowing her boyfriend, Tommy Gaspard, to spend the night at her house while her daughter was home. Moreover, Ms. Hill basically admitted that she lied on her pauper affidavit, claiming her two children as dependants while they lived with their father with no support from her. She claimed Mr. Gas-pard’s child as a dependant on the affidavit as well, listing him as a stepson. All the while, she denied that Mr. Gaspard was truly her boyfriend. Her credibility is, at best, suspect.

Finally, although his custody is no longer before this court, her handling of Christian is also indicative of the instability in the environment created by Ms. Hill. In the fall of 2005, after alleged threats by her then ten-year-old son to kill her 1¿boyfriend, Ms. Hill checked Christian into a mental hospital without any notice given to Mr. Hill. He was unaware of this incident until Christian was able to find a phone and call his father from the hospital. Because she alone checked him into the hospital, Mr. Hill was unable to get his child out of the hospital until four days later. Ms. Hill then sent Christian to live with his father. Then, after seeking and regaining custody of Christian in the matter at hand, Ms. Hill has yet again given up on an attempt to have him live with her, voluntarily allowing Mr. Hill to have domiciliary custody of him. Her radically inconsistent treatment and handling of her son is but another sign of her imbalance.

The record is full of indications that the best interest of the child lay in the secure environment that is presented by Mr. Hill, as opposed to the, at best, unstable environment created by Ms. Hill. At the time of trial, Ms. Hill had been employed for only one week. That employment was only part time. Just prior to trial, Ms. Hill had been bouncing from hotel to hotel, having no stable place for her children to call home. Although she has since found an apartment, she offered no evidence as to the permanence of this situation. Furthermore, because Elizabeth was living with Mr. Hill since December of 2005— part of this time includes months under the ex parte temporary sole custody order of the court — there would have been no change of environment to create harm to the child before the decision of the trial court. It is clear that the advantages to Elizabeth that lie in living with her father substantially outweigh any disadvantages created by making permanent the custody arrangement set out in the temporary custody order.

Ms. Hill clearly loves her children and truly wants custody of Elizabeth. Should she become stable and clearly drug free, she could seek to regain custody of Elizabeth. However, it is clear from the record that, at this time, the best interest of | ^Elizabeth lays in the stable environment created by Mr. Hill. Without effective proof that Ms. Hill is drug free, as ordered by the trial court, to allow her custody of Elizabeth would be deleterious to the child. The benefits derived by allowing Elizabeth to live with Mr. Hill clearly outweigh any potential harm done to her, especially since she had been living with her father up to the time of the trial. The trial court erred in finding otherwise.

For the above reasons, the decision of the trial court is reversed. Judgment is hereby rendered, naming Charles Hill as the domiciliary parent of Elizabeth Hill. Charles Hill’s child support obligations are hereby terminated. Costs of this appeal are assessed against Ms. Hill.

REVERSED AND RENDERED.

      . After the rendition of the judgment at issue in this appeal, Mr. And Ms. Hill entered into a voluntary consent agreement whereby Mr. Hill was designated as domiciliary parent of their son, Christian. Because this renders the portion of this appeal dealing with his custody moot, we will only address the custody of their daughter, Elizabeth.

      . Although Ms. Hill filed this lawsuit in forma pauperis, because she was an unsuccessful litigant appeal costs may be assessed against her. See Johnson v. State, Dep’t. of Soc. Servs., 05-1597 (La.App. 1 Cir. 6/9/06), 943 So.2d 374.