author: LOLLEY, J.

text:
    Brenda Kees BAKER, Plaintiff-Appellant v. PHILLIPS VAN HEUSEN CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellees.
    No. 47,017-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.
    Rehearing Denied May 10, 2012.

      Lilly Law, Minden, LA, by Roy M. Lilly, Jr., for Appellant.
    Mayer, Smith & Roberts, Shreveport, LA, by Kim Purdy-Thomas, Daniel J. Baker, Patrick F. Cole, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

| ¶ Brenda Kees Baker (“Baker”) appeals the judgment of the Office of Workers’ Compensation (“OWC”), District 1-West, Parish of Bienville, State of Louisiana, wherein the trial court rendered judgment in favor of defendants Phillips Van Heusen Corporation and Liberty Mutual Insurance Company (collectively, “Van Heusen”). For the following reasons, we affirm in part and reverse in part the OWC’s judgment.

FACTS

On July 14, 2009, Baker was an employee of Van Heusen and, in that capacity, was picking up a deposit bag from a local bank. Baker was seated in her personal vehicle at the bank’s drive-through lane waiting to pick up the Van Heusen deposit bag when the vehicle in front of her reversed into her vehicle. Baker was leaning across the middle portion of her vehicle toward the passenger side door when the collision occurred, and she sustained injuries to her lower back as a result. Baker informed her employer, Van Heu-sen, of the accident and finished her shift. However, the next day Baker’s pain had greatly increased and prevented her from completing a full shift of work.

Two days after the accident, Baker consulted her family care physician, Dr. Terry Gardner. Dr. Gardner prescribed medication for Baker’s injury and informed Van Heusen on July 20, 2009, that Baker should not return to work until July 27, 2009. Several days after her initial appointment with Dr. Gardner, Baker consulted Dr. Gary Higginbotham, a chiropractor, concerning her continuing back pain. Dr. Higginbotham took | ¿x-rays of Baker’s back, concluded that she suffered from whiplash, and treated her using chiropractic procedures.

Upon Dr. Gardner’s request, Baker returned to his office for an appointment on July 24, 2009. At the appointment, Dr. Gardner asked to see Baker’s vehicle and requested that Baker demonstrate the way she was seated at the moment when the accident occurred. Baker was unable to comply because her back pain was too great. Nevertheless, Dr. Gardner concluded, based on the visible damage to Baker’s vehicle, that the work-related accident which occurred on July 14, 2009, could not have caused the pain Baker described. Dr. Gardner reported his opinion to Van Heusen; however, Baker continued to see Dr. Higginbotham.

Baker informed Van Heusen that her primary care physician was Dr. Higginbotham and provided Van Heusen with Dr. Higginbotham’s report, which stated that she could not return to work. Van Heusen refused the report claiming that it was unacceptable because Dr. Higginbotham was a chiropractor and not a medical doctor. Van Heusen also supported its refusal to authorize Dr. Higginbotham’s treatment based on Dr. Gardner’s report, which indicated that the work-related accident could not have caused the pain described by Baker.

Baker received one indemnity check from Van Heusen on July 30, 2009. No other payments by Van Heusen were made. On August 8, 2009, Baker received a letter from Van Heusen informing her that Dr. Gardner had released her to return to work and that her failure to return to work ^immediately would be considered a resignation. Ultimately, Baker did not return to work until November 17, 2009.

On August 7, 2010, Baker filed a claim with the OWC requesting penalties and attorney’s fees for (1) wrongful termination of indemnity benefits and (2) failure to authorize treatment. In response, Van Heusen filed an exception of prescription regarding any claim for indemnity benefits. At the hearing on Van Heusen’s exception, the OWC granted the exception limited to the issue of indemnity benefits but held the issue of penalties and attorney’s fees over to trial. At the trial, the OWC rendered judgment in favor of Van Heusen. This appeal by Baker followed.

DISCUSSION

Prescription

In her first assignment of error, Baker argues that the OWC improperly found her claim for penalties and attorney’s fees for wrongful termination of indemnity benefits had prescribed. Specifically, Baker argues that the prescriptive period did not begin to accrue on July 30, 2009, because at that time Baker was not aware that further payments would not be forthcoming. Instead, Baker insists that the prescriptive period for penalties and attorney’s fees began to accrue upon notice that she would no longer receive further payments. We disagree.

Generally, the party pleading prescription has the burden of proving the facts supporting the exception unless prescription is evident on the face of the pleading. Taylor v. Broomfield, 46,590 (La.App.2d Cir.09/21/11), 73 So.3d 485. The applicable prescriptive period is determined by the |4character of the action disclosed in the pleadings. Johnson v. Ledoux, 42,090 (La.App.2d Cir.05/16/07), 957 So.2d 911, writ denied, 2007-1482 (La.10/05/07), 964 So.2d 946.

Although La. R.S. 23:1209(A)(2) governs the liberative prescription of a claim for indemnity benefits (allowing a one-year prescriptive period from the time of making the last payment), it fails to include a prescriptive period for penalties and attorney’s fees for wrongfully terminating such benefits. The one year prescriptive period for delictual actions as set forth in La. C.C. art. 3492 has been found to apply to a claim for such penalties and attorney’s fees. Craig v. Bantek West, Inc., 2003-2757 (La.App. 1st Cir.09/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La.03/18/05), 896 So.2d 1004. Louisiana C.C. art. 3492 states, “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

Here, Baker’s claim for penalties and attorney’s fees arose when Van Heusen terminated her indemnity benefits. The date of that last payment was July 30, 2009, and was the date when her damage was sustained. Baker filed her claim for penalties and attorney’s fees related to the termination of benefits on August 7, 2010, well beyond a year from the termination of indemnity benefits. Clearly, her claim for penalties and attorney’s fees was prescribed on the face of her complaint, and the trial court was not in error for dismissing her claims as to this issue.

hRefusal to Authorize Treatment

Next, Baker argues that the OWC erred by failing to assign penalties and attorney’s fees for Van Heusen’s refusal to authorize chiropractic care by Dr. Higginbotham. Specifically, Baker argues that because Dr. Gardner was a general practitioner and Dr. Higginbotham a chiropractor, Baker was permitted to consult Dr. Higginbotham without prior approval. Therefore, Van Heusen’s refusal to accept Dr. Higginbotham’s report and treatment was arbitrary and capricious and without probable cause. We agree.

Louisiana R.S. 23:1031(A) concerns an employer’s liability to provide compensation and states:

If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

The claimant must establish the existence of an accident and its causal connection, to his disability by a reasonable preponderance of the evidence. Frye v. Olan Mills, 44,192 (La.App.2d Cir.04/08/09), 7 So.3d 201. Once the causal connection between the work-related accident and the injury has been established, an employer has a statutory duty to furnish all necessary medical treatment caused by the work-related injury. La. R.S. 23:1203(A).

Louisiana R.S. 23:1121(B)(1), which concerns an employee’s right to select a physician, states:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ eompensation | f,carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Thus, an injured employee has an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding Inc., 2002-1071 (La.01/28/03), 839 So.2d 5. Moreover, selection of a new physician in a different specialty does not require approval. Thompson v. The Animal Hosp., 39,154 (La.App.2d Cir.12/15/04), 889 So.2d 1193.

Louisiana R.S. 23:1021(6) defines a health care provider for the purposes of a workers’ compensation claim as:

[A] hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, ... or agent thereby acting in the course and scope of his employment. (Emphasis added).

The credibility of chiropractors has long been recognized in the field of workers’ compensation. Martin v. H.B. Zachry, Co., 424 So.2d 1002 (La.1982).

An employer’s failure to authorize medical care for an employee otherwise eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits, thus triggering the penalty provisions of La. R.S. 23:1201. Thompson v. The Animal Hosp., supra. An employer’s termination of medical benefits, must be arbitrary, capricious, and without probable cause to warrant penalties and attorney’s fees against the employer. Brown v. Texas-LA Cartage Inc., 1998-1063 (La.12/01/98), 721 So.2d 885. Arbitrary and capricious behavior has been defined as 17willful and unreasonable action, without consideration of the facts and circumstances presented. J.E. Merit Constructors, Inc. v. Hickman, 2000-0943 (La.01/17/01), 776 So.2d 435.

Factual findings in workers’ compensation eases are subject to the manifest error or clearly wrong standard of review. Dean v. Southmark Const., 2003-1051 (La.07/06/04), 879 So.2d 112. As such, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review; to reverse the OWC’s findings of fact, the reviewing court must conclude that a reasonable basis for that finding does not exist in the record. Id.

Here, Van Heusen’s refusal to authorize treatment by Baker’s chiropractor was arbitrary, capricious and without probable cause, and the OWC’s judgment to the contrary was manifestly erroneous. First, Van Heusen’s contention that chiropractors are not recognized within the definition of health care provider for the purposes of workers’ compensation was clearly erroneous. Louisiana R.S. 23:1021(6) explicitly defines chiropractors as “health care providers.” Second, Van Heusen’s refusal to authorize treatment by Dr. Higginbotham violated the clear and simple language of La. R.S. 23:1211(B). Baker consulted Dr. Gardner complaining of back pain which manifested shortly after the work place accident of July 14, 2009. Dr. Gardner treated Baker; however, she continued to experience debilitating back pain and, therefore, exercised her right to seek treatment from Dr. Higginbotham. Van Heusen’s denial of authorization to seek treatment from Dr. Higginbotham ignored Baker’s statutory right to do so, | ignored the fact that she was still experiencing back pain which had not manifested until shortly after the accident, and ignored a report from Dr. Higginbotham, issued shortly after the accident, stating that further work would aggravate Baker’s condition. Van Heusen’s reliance on Dr. Gardner’s report is dubious considering that Dr. Gardner’s opinion was based upon an inspection of Baker’s vehicle as opposed to the patient. Finally, when presented with conflicting information, Van Heusen chose to deny authorization instead of seeking an additional medical opinion which Van Heusen had every right to do. For the above reasons, we find the conduct of Van Heu-sen to be both arbitrary and capricious, and the OWC’s judgment on that issue was erroneous. Furthermore, our finding on this issue pretermits any discussion regarding Baker’s final assignment of error on the issue of lay testimony.

CONCLUSION

For the foregoing reasons, we affirm that part of the OWC’s judgment which determined that Brenda Kees Baker’s right to penalties and attorney’s fees for the termination of indemnity benefits had prescribed. We reverse that part of the judgment regarding penalties and attorney’s fees for the failure to authorize treatment and award Baker penalties of $2,000 and attorney’s fees of $4,000. Each party is to bear its own costs of appeal.

AFFIRMED IN PART, REVERSED IN PART.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY and SEXTON, JJ.

Rehearing denied.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Rodney Torenzo JOHNSON, Appellant.
    No. 47,019-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Carey J. Ellis, Louisiana Appellate Project, Rodney Torenzo Johnson, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy Jan Johnson, Dhu Thompson, Jason Trevor Brown, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

| Rodney Torenzo Johnson was convicted of possession with intent to distribute a Schedule II controlled dangerous substance (cocaine). La. R.S. 40:967(A)(1). After pleading guilty as a second-felony offender, he was sentenced to serve an agreed-upon 25 years at hard labor, without benefit of probation or suspension of sentence. He appeals. We affirm in all respects.

FACTS

Agent Steve McKenna, a Shreveport

Police narcotics officer, testified that:

• while patrolling the Allendale area of Shreveport, a high-crime area, he and his partner, Agent Sanders, noticed Johnson sitting in a vehicle that was blocking the sidewalk at 1823 Anna Street;

• he approached Johnson to talk to him about the parking violation;

• he was already familiar with Johnson, who appeared very nervous;

• he asked if he could search the vehicle, and Johnson consented;

• during the search, another officer interviewed Johnson;

• after the search, he noticed a small brown bag about a yard from the car;

• the bag contained 24 small Baggies of crack cocaine, weighing 6.2 grams;

• he arrested Johnson, and immediately advised him of his Miranda rights;

• Johnson said he was holding the narcotics for someone else;

• the term “holding” on the street meant that the individual is holding the narcotics for someone else, but also selling them for that person;

1it is a common practice for criminals to try to conceal narcotics or throw them away from their person when approached by law enforcement;

• he did not see Johnson throw, kick, or drop anything on the ground;

• when Johnson was searched upon exiting his vehicle, no drugs or money were found on his person or in his vehicle; and

• no other people in the area were arrested because of Johnson’s admission.

Agent Terry Sanders testified that:

• it is common for drug dealers to keep narcotics a short distance from them for the purpose of having a potential alibi;

• he and Agent McKenna were patrolling the Allendale area, an area known for narcotics sales and usage, and saw Johnson in a vehicle blocking a sidewalk;

• two other people were in the middle of the street near a black pickup truck;

• he spoke with the two men in the street while McKenna talked to Johnson;

• he heard Agent McKenna advise Johnson of his Miranda rights and recalled Johnson acknowledging that he understood his rights;

• a few people were inside the house at 1828 Anna Street, but the only people in the vicinity were Johnson and the two other people in the street;

• he was responsible for securing the perimeter, ie., keeping other people several feet away from the investigation;

• the defendant in court was identified as Johnson;

• at some point in their investigation, Johnson’s sister and either his mother or grandmother tried to approach the scene;

• Johnson’s sister tried to claim that the narcotics were hers; and

• he heard Johnson say that he was holding the drugs for someone else.

laRandall Robillard, a drug analysis expert, testified that he analyzed the substance obtained during the investigation of Johnson on May 21, 2008, and the 24 bags contained cocaine.

Agent John Witham testified that he assisted Agents McKenna and Sanders with their investigation on May 21, 2008. He corroborated the agents’ testimony.

Sergeant Carl Townley, accepted as an expert in narcotics sales, distribution, packaging and investigations, testified that:

• street-level drug dealers usually obtain their drugs from mid-level drug dealers to sell on their behalf, without requiring payment up front;

• the mid-level dealers are paid back after the drugs are sold;

• the street-level dealers often get to keep some of the drugs to sell themselves;

• often street-level dealers will keep the drugs nearby in a package on the ground, rather than on their person;

• there are many factors to consider when trying to determine if narcotics found on a person are for personal use or for distribution;

• the bag obtained from near Johnson, with the 24 Baggies of packaged cocaine inside, was packaged for street sales; and

• if a person were to smoke 6.2 grams of cocaine, the amount obtained in this case, in one day, he would probably overdose and die.

Kathy Harris, the mother of Johnson’s children, testified that:

• on the date of his arrest, Johnson was reclining on top of his car in a driveway at 1823 Anna Street, Shreveport;

> she and several others were outside with Johnson;

14* when the police arrived, Harris was in the house checking on the food;

• she came outside and one of the police officers told her that they found drugs belonging to Johnson;

• she never heard Johnson admit that the drugs were his;

• the police found the bag with the drugs near a trash can; and

• Johnson never sold drugs.

Charles Harris, Kathy Harris’ father and the owner of the house at 1823 Anna Street, testified that:

• on May 21, 2001, he was outside cleaning his air conditioners;

• Johnson was also outside when another man came over to talk with him;

• the police found something on the ground by a trash can;

• he did not believe that Johnson admitted ownership of the drugs;

• he was not watching Johnson the entire time he was outside;

• it was possible that at some point Johnson got into the vehicle;

• he had been convicted of disturbing the peace and simple battery; and

• he did not hear anything Johnson may have told the police.

Gladys Robinson, Charles Harris’ neighbor, testified that:

• she was playing cards with six other people at the house on May 21, 2008;

• Johnson quit playing and got on the hood of his vehicle to lie down;

• when the police arrived, they immediately handcuffed Johnson;

• upon arrest, Johnson was still on the hood of his car;

• the police had a photograph of Johnson with them;

la» she did not hear any of the conversation between the police and Johnson;

• a man named James dropped off the bag of drugs;

• she never told police about what she had seen because no one asked her about it;

• she did not want to volunteer the information because she was afraid that James or another drug dealer would try to harm her in retribution;

• the bag shown her in court was not the bag dropped off by James;

• she was afraid that if she did not cooperate with drug dealers, including testifying at their trials, they would burn her house down;

• she was not afraid of Johnson; and

• she never actually saw the police carrying Johnson’s photograph, but heard from a friend that they were showing his photo around the neighborhood.

On rebuttal, Sanders testified that:

• none of the police officers at the scene of the arrest had a picture of Johnson;

• it would be very difficult for anyone to have seen him and McKenna before they drove up to 1823 Anna Street because of their quick approach;

• he and McKenna immediately saw two males standing by a black pickup;

• he kept his eyes on them and never saw them throw anything;

• they ran a warrant check on both men and saw that both were very calm;

• the men were a good distance from Johnson;

• Gladys Robinson did not come out of the house until after the arrest; and

• he did not actually see Robinson exit the house at 1823 Anna Street, but she was walking from that general direction when Johnson was arrested.

|fiThe jury unanimously found Johnson guilty as charged.

Though originally billed as a third-felony habitual offender, he was allowed to plead as a second-felony offender, in exchange for an agreed-upon sentence.

The state’s factual basis revealed that Johnson had a previous conviction for vehicular homicide and for possession with intent to distribute cocaine. The trial court then sentenced Johnson to 25 years at hard labor without benefit of probation or suspension of sentence, concurrent with any other sentence.

DISCUSSION

Defendant’s only assignment of error alleges insufficiency of the evidence. He points out that:

• the cocaine was not found in his vehicle, but three to five feet away from it;

• the area of his arrest is a high-crime area known for narcotic sales; and

• police did not find cash or scales on him or in his vehicle.

The state disagrees, citing the testimony of McKenna, Sanders, Witham, Townley, and Robillard.

La. R.S. 40:967(A)(1) provides in relevant part:

A. Manufacture; distribution. Except as [otherwise authorized], it shall be 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.

17Our law on assessing sufficiency of evidence claims in drug cases is well settled.

The testimony of Agents McKenna, Sanders, and Witham, which the jury clearly found to be credible, was sufficient to prove guilt. McKenna | «testified that Johnson was very nervous when he approached him and searched his vehicle. After he found a bag containing 26 Baggies of crack cocaine about one yard from Johnson’s vehicle, the defendant admitted that he was holding the drugs for someone. Both Sanders and Witham corroborated McKenna’s testimony that Johnson told him that he was holding the drugs for someone.

The jury accepted Sanders’ version of events, and rejected Robinson’s. This credibility determination is entitled to great deference. These facts, when viewed in a light most favorable to the state, provide sufficient evidence for conviction.

DECREE

Defendant’s conviction and sentence are AFFIRMED.

      . Agent John Witham.

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

      . Examples: How the drugs are packaged, the amount of drugs, and whether the suspect has drug paraphernalia on his person. Usually a cocaine user will have a crack pipe on his person to smoke the cocaine as soon as he purchases it.

      . "James.’:

      . 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 states that "assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence.” However, La. R.S. 15:438 does not establish a stricter standard than Jackson v. Virginia; rather, it serves as a helpful evidentiary guide for jurors in evaluating circumstantial evidence. State v. Major, 2003-3522 (La.12/1/04), 888 So.2d 798; State v. Russell, 46,426 (La.App.2d Cir.8/17/11), 73 So.3d 991, writ denied, 2011-2020 (La.2/10/12), 82 So.3d 270.
      Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. State v. Major, supra. Constructive possession depends on dominion and control over the drugs, even in the absence of physical possession. State v. Harris, 94-0970 (La. 12/8/94), 647 So.2d 337. Mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, but the courts consider various factors to determine whether a defendant exercised sufficient dominion and control to constitute 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 the drugs. State v. Toups, 2001-1875 (La. 10/15/02), 833 So.2d 910; State v. Russell, supra.

      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,-981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La. 10/12/01), 799 So.2d 490. See also State v. Johnson, 96-0950 (La.App.4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60(1999).
      The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529.


author: SEXTON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Danny Ray THOMAS, Appellant.
    No. 47,020-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| defendant, Danny Ray Thomas, pled guilty to a reduced charge of attempted armed robbery, in violation of La. R.S. 14:64 and was sentenced to five years’ imprisonment at hard labor, with credit for time served. Defendant now appeals, arguing that his guilty plea is invalid and must be set aside because he was never determined to be competent following a court-ordered sanity commission. The State agrees. For the reasons set forth herein, the guilty plea and sentence of Defendant are vacated and set aside and the matter is remanded for a sanity hearing to determine Defendant’s competency to proceed to trial.

DISCUSSION

On May 27, 2010, Defendant was charged with two counts of armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3. On June 4, 2010, the trial judge granted Defendant’s application for appointment of a sanity commission and ordered two psychiatrists to examine Defendant and report back to the court within 30 days. A hearing was set for July 6, 2010, to determine Defendant’s mental capacity to proceed. Trial court minutes reflect that this hearing was reset for August 17, 2010, on which date the minutes indicate “Sanity Commission pending.” The minutes do not reflect that the sanity commission was ever held.

On January 26, 2011, Defendant withdrew his former plea of not guilty and entered a plea of guilty to a reduced single count of attempted armed robbery. After a discussion of rights with the accused, the judge determined that Defendant understood his rights and that his waiver of those | ¿rights was both free and voluntary. His guilty plea to count one was accepted and the second count was nol-prossed. The judge ordered a presentence investigation report.

On May 3, 2011, Defendant appeared for sentencing. The presentence investigation report showed that, on April 5, 2010, Defendant entered the Regions Bank on Texas Street in Bossier City and handed the cashier a note demanding money and indicating that he had a gun. He left the bank with $6,500 cash. Defendant was found three days later at a local casino with the stolen money. As previously stated, Defendant was sentenced to five years’ imprisonment at hard labor, with credit for time served.

Defendant filed a motion to reconsider his sentence on June 2, 2011, which was denied. This appeal ensued.

Defendant correctly submits that the guilty plea in this case is invalid due to the trial court’s failure to conduct a sanity hearing and determine his competency pri- or to taking his guilty plea. When a question about the defendant’s mental capacity is raised, criminal prosecution may not proceed until the defendant is found to have the mental capacity to proceed. La. C. Cr. P. art. 642. In a contradictory hearing, the court must determine by a preponderance of the evidence whether the defendant has the mental capacity to proceed. La. C. Cr. P. art. 647.

A person who lacks the mental capacity to understand the proceedings against him, to consult with counsel and to assist in his defense may not be subject to trial. The failure to observe such procedures violates |¾a defendant’s due process right to a fair trial. State v. Nomey, 613 So.2d 157 (La.1993).

In the ease sub judice, a sanity commission was ordered to determine Defendant’s mental capacity to proceed to trial, but had yet to report. Thus, the record does not reflect that a contradictory hearing was held or that his competency was ever determined by the trial court prior to his guilty plea being accepted. Accordingly, the guilty plea is invalid and the plea and sentence must be vacated and set aside. La. C. Cr. P. arts. 642 and 647; State v. Nomey, supra.

DECREE

For the foregoing reasons, the guilty plea of Defendant, Danny Ray Thomas, is vacated and set aside. The matter is remanded to the trial court with instructions to conduct the sanity hearing to determine Defendant’s competency to proceed to trial.

PLEA AND SENTENCE VACATED AND SET ASIDE; REMANDED FOR SANITY HEARING.


author: MOORE, J.

text:
    Julius B. ELLERBE, et al., Plaintiff-Appellant v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.
    No. 47,022-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Broussard, Halcomb & Vizzier, by Daniel E. Broussard, Jr., Gaiennie Law Firm, by George C. Gaiennie, III, Alexandria, LA, for Appellant.
    Jay B. Mitchell, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

| Julius B. Ellerbe and Nolan B. Harrell appeal a summary judgment that rejected their claim against the Ouachita Parish Police Jury for the payment of a portion of annual leave they had accumulated when they retired from the Ouachita Parish Fire Department. For the reasons expressed, we affirm.

Factual and Procedural Background

On March 31, 2006, Ellerbe and Harrell retired from the fire department with 31 and 29 ⅜ years of service, respectively. At the time, the men had been on extended sick leave during which they accrued annual leave of 720 and 696 hours respectively. However, the police jury paid them each for only 320 hours of annual leave, pursuant to the Ouachita Parish Personnel Manual, § 6.2 I (effective March 23, 2006), which stated, “Employees who terminate/retire shall be paid for any annual leave to their credit at the time of separation, subject to the maximum of three hundred twenty (320) hours.” In addition, the Working Agreement between the police jury and the International Association of Firefighters, Local 1694 AFL-CIO, § XX “Vacations” (effective 2003) stated, “As per Ouachita Parish Police Jury Policy, staff personnel shall be allowed to accrue unused [sic] annual vacation subject to the state maximum amount.”

Ellerbe and Nolan filed this suit in February 2007, alleging that under a special statute, La. R.S. 33:1996, firemen’s vacation privileges “shall not be forfeited by any member of the department for any cause.” They demanded payment for their remaining hours of annual leave, with penalty wages for failure to pay within 15 days of separation, as required by |2La. R.S. 23:631 B.

The claimants moved for summary judgment. They conceded that the Personnel Manual and the Working Agreement limited them to 320 hours, but argued that R.S. 33:1996 nullified this limit. In support they cited a series of cases from New Orleans. New Orleans Firefighters Ass’n v. Civil Service Comm’n, 422 So.2d 402 (La.1982) (“Firefighters I”), held that under the 1974 Constitution, the legislature had “plenary power” to enact laws providing for the wages of firefighters, so an overtime statute overrode a civil service rule limiting overtime. New Orleans Firefighters Local 632 v. City of New Orleans, 2000-1921 (La.5/25/01), 788 So.2d 1166 (“Firefighters II ”), held that R.S. 33:1996 superseded a civil service “use it or lose it” rule with respect to accumulated annual leave in excess of 90 days. New Orleans Firefighters Local 632 v. City of New Orleans, 99-1995 (La.App. 4 Cir. 6/7/00), 767 So.2d 112 (“Firefighters III” ), held that R.S. 33:1996 superseded the same civil service rule under which if a firefighter was injured on the job and had to take sick leave, he lost the option to take “casual annual leave.” The claimants also offered their own depositions, stating that they accrued all this annual leave while on sick leave for work-related conditions, and were thus unable to use the leave. They demanded judgment for past due wages of $6,538.64 (Ellerbe) and $5,980.46 (Harrell), plus equal amounts as wage penalties.

|sThe police jury filed its own motion for summary judgment, urging a straight application of the Personnel Manual and Working Agreement. It argued that Firefighters III was factually inapposite, in that the New Orleans civil service rule at issue prohibited any carryover from one year to the next, whereas the Personnel Manual imposes “a rather liberal ‘cap’ on accrual.” In addition, Firefighters I & II were inapposite because the civil service rule therein was a unilateral limit on leave time, and opposed by the union, whereas the Working Agreement was-the product of negotiation between the union and the police jury, and had been imposed voluntarily in exchange for other employment benefits greater than those required by law. The police jury argued that having reaped these enhanced benefits, the claimants could not now reject their collective bargaining agreement. The police jury sought dismissal.

After a hearing in April 2011, the district court rendered written reasons granting the police jury’s motion. After quoting R.S. 33:1996 and the operative portions of the Personnel Manual and Working Agreement, the court found the latter were in effect when the claimants retired. The court found the Firefighters cases inapplicable, as here the union negotiated for the stated benefit; further, the Personnel Manual placed no limit on accrual of benefits, only on payment after retirement. By separate written ruling, the court denied the claimants’ motion for summary judgment.

The Parties’ Positions

The claimants have ' appealed, raising one assignment of error: the court erred as a matter of law in granting the police jury’s motion for ^summary judgment. They cite the applicable portions of the Personnel Manual and the Working Agreement, but argue that R.S. 33:1996 supersedes them. They reiterate their discussion of Firefighters I, II & III, arguing that these cases collectively show the supremacy of the anti-forfeiture statute. Also, because the claimants were on sick leave due to work-related injuries, they could not simply use their annual leave, thus making the 320-hour limit a forfeiture condemned by Firefighters II & III. They also cite the Working Agreement, § III “Existing Laws Effective,” by which the parties “understood and agreed that all such [state] laws shall be the criteria for determining minimum standards and shall in no way be construed to affect any greater benefit as may be mutually agreed upon.” They contend that this constituted an explicit acceptance of R.S. 33:1996. Finally, they argue that the police jury’s reliance on an unenforceable Personnel Manual was not a good faith, non-arbitrary defense, so penalty wages were activated under La. R.S. 23:632. They seek reversal of the police jury’s summary judgment, judgment in their favor for $41,846.54 (El-lerbe) and $40,336.16 (Harrell), and attorney fees.

The police jury responds that the claimants accrued all their -annual leave while they were on sick leave, so their claim is governed by the Working Agreement. First, neither R.S. 33:1996 nor Firefighters III addressed the claimants’ precise position, so the 320-hour cap on payoff for accrued annual leave does not violate the statute. Second, Firefighters II expressly recognized the municipality’s right to place a “reasonable limitation” on the accrual of unused leave. Third, the statute does not |fiprohibit the parties from collectively bargaining to limit one benefit in exchange for another, enhanced benefit. Finally, the police jury urges the penal provisions of R.S. 23:631-632 do not apply, as its reliance on the 320-hour cap was not arbitrary.

Discussion

Title 33, Chapter 4, Subpart B (La. R.S. 33:1991-1999), regulates the minimum wages and maximum hours of firefighters. For example, La. R.S. 33:1992 fixes minimum salaries for firefighters in various ranks. The supreme court has held that R.S. 33:1992 is a valid exercise of the' legislature’s plenary power under La. Const. Art. 6, § 14, to provide for the minimum wages and working conditions of firefighters; it “must be accepted” by any civil service commission subject to the statute. Firefighters I, supra at 406.

Firefighters’ annual vacation is governed by La. R.S. 33:1996, which provides in pertinent part:

Firemen in municipalities, parishes and fire protection districts to which this Subpart applies, after having served one year, shall be entitled to an annual vacation of eighteen days with full pay. This vacation period shall be increased one day for each year of service over ten years, up to a maximum vacation period of thirty days, all of which shall be with full pay. The vacation privileges herein provided for shall not be forfeited by any member of the department for any cause. * * *

In Firefighters II, the supreme court held that a civil service commission rule purporting to limit annual leave to 13 days for the first four years, with graduated increases up to a maximum of 25 days, violated R.S. 33:1996 and “must yield to the Legislature’s plenary power to enact a law providing minimum wages for firemen.” Id. at 5, 788 So.2d at 1169.

| fiThe supreme court further held in Firefighters II that R.S. 33:1996 was silent as to the accumulation of annual leave. The civil service commission rule at issue allowed firefighters to carry forward either 90 or 45 days’ accumulated annual leave, depending on their date of hire. The court found that this limitation did not amount to a forfeiture of vacation privileges:

Commission Rule VIII, § 1.2 does not violate the terms or intent of the statute. The statutory guarantee is that firemen be allowed to earn and to use a minimum number of vacation days each year. The Rule, while allowing earned vacation days to be carried forward to a succeeding year, simply places a reasonable limitation on the period of time within which earned vacation days must be used. * * * The Rule thus denies a fireman the right to earn vacation days in one year at one salary and then to demand payment for those vacation days fifteen years later at a higher salary, but the Rule does not require forfeiture of earned vacation days which the fireman has been given a reasonable opportunity to use. A ceiling on the number of vacation days a fireman may carry forward is not, in itself, a forfeiture of earned vacation days, unless the fireman was denied the opportunity to use those earned vacation days.

Firefighters II, at 6-7, 788 So.2d at 1170 (emphasis added).

The claimants argue that in Firefighters III, the Louisiana Fourth Circuit held that R.S. 33:1996 “forbids the Commission from placing a ceiling on the amount of annual leave that firefighters may accrue.” However, in light of the Louisiana Supreme Court’s holding quoted above, we consider this portion of Firefighters III to be reversed by Firefighters II.

The Personnel Manual, § 6.2, states:

H. Employees shall be permitted to carry accrued annual leave forward from year to year.

I. Employees who termmate/retire shall be paid for any annual leave to their credit at the time of separation, subject to the maximum of three hundred twenty (320) hours.

17This system explicitly allows firefighters to carry over annual leave from year to year, subject to the reasonable limitation recognized in Firefighters II. The 320-hour (40-day) cap is reasonable because, as the supreme court recognized, it relieves the fire department from having to pay, at today’s higher rate, hours accrued perhaps 15 years earlier. It is also not significantly shorter than the 45-day cap approved in Firefighters II.

The other proviso of Firefighters II is that a cap on carryover years is not a forfeiture “unless the fireman was denied the opportunity to use those earned vacation days.” Both claimants testified that they accrued all the annual leave they are now claiming while they were on sick leave for work-related injuries. There is no showing that they would be able to “use” vacation time while on extended sick leave.

Moreover, we find that Personnel Manual’s treatment of accumulated annual leave is the result of negotiation between the firefighters, their union and the police jury. In a subsequent installment of the New Orleans litigation, New Orleans Firefighters Local 632 v. City of New Orleans, 2003-1281 (La.App. 4 Cir. 5/26/04), 876 So.2d 211, writs denied, 2004-1590, 2004-1601, 2004-1604 (La.11/15/04), 887 So.2d 475, 476 (“Firefighters IV”), the court held that because a similar system had “the approval of the union and its members[,]” the plaintiffs “cannot now claim that a system they agreed to is inequitable.” Id. at 39, 876 So.2d at 236. This holding applies a fortiori here, where the Personnel Manual allows the generous accrual of annual leave while the claimant is drawing extended sick leave.

| sSimply put, the Personnel Manual and Working Agreement do not constitute a forfeiture of annual vacation under R.S. 33:1996 and do not impose an unreasonable restriction on the accrual of vacation time under Firefighters II. The police jury is entitled to judgment as a matter of law.

Finally, the claimants have requested penalty wages and attorney fees under La. R.S. 23:632. However, the police jury did not rely on an unlawful company policy or assert arbitrary defenses to avoid its wage obligation; penalty wages and attorney fees are not warranted. Beard v. Summit Inst, of Pulmonary Med., 97-1784 (La.3/4/98), 707 So.2d 1233; Hattaway v. Health Paradigm LLC, 45,047 (La.App. 2 Cir. 3/3/10), 31 So.3d 1176, writ denied, 2010-0691 (La.5/28/10), 36 So.3d 251.

Conclusion

For the reasons expressed, the judgment is affirmed. All appellate costs are assessed against the claimants, Julius B. Ellerbe and Nolan B. Harrell.

AFFIRMED.

      . The claimants have consistently referred to this case as Firefighters III although it was rendered almost a year earlier than Firefighters II and was, in fact, reversed in part by the supreme court in Firefighters II, as we discuss below.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Tyrus Tremaine JOHNSON, Appellant.
    No. 47,024-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      J. Spencer Hays, Bossier City, LA, for Appellant.
    Charles Rex Scott, District Attorney, Geya Prudomme, Brady O’Callaghan, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

11 Following a jury trial, the defendant, Tyrus Tremaine Johnson, was convicted as charged of second degree murder. The trial court imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals. We affirm the defendant’s conviction and sentence.

FACTS

On October 23, 2003, the 74-year-old victim, Charley Ferlito, was shot and killed on his front porch. There were no witnesses to the shooting, and no arrests were made at that time.

On August 7, 2008, the defendant went to the Shreveport Police Department. He initially told the police that a gun he once owned might have been used in a crime. He returned later that same day and gave a statement to the police in which he implicated himself in the victim’s murder. He was arrested and charged with second degree murder.

The defendant filed a pro se motion to suppress his statement to the police which was adopted by defense counsel. Following a hearing, the motion was denied.

Defense counsel requested appointment of a sanity commission. The doctors on the panel agreed that the defendant was competent to assist in his defense; they also opined that at the time of the offense, he was not suffering from any mental disease or defect that prevented him from distinguishing right from wrong. Based upon the doctors’ reports, the trial court found that the defendant was competent to proceed.

|2Following a jury trial in March 2011, the defendant was convicted as charged. Prior to sentencing, the trial court denied the defendant’s motion for mistrial, motion for new trial, motion in arrest of judgment, and motion to deviate from a mandatory sentence. The trial court imposed the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. The defendant’s timely motion for reconsideration of sentence was denied.

The defendant appealed, asserting three assignments of error. Pursuant to well-settled law, we first consider the assignment of error pertaining to sufficiency of the evidence. See State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,-253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

SUFFICIENCY OF EVIDENCE

In this assignment of error, the defendant contends that the trial court erred in denying his motion for new trial, which was filed pursuant to La. C. Cr. P. art. 851(1), asserting that the verdict was contrary to the law and the evidence.

Law

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. 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.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The primary purpose of the rule requiring corroboration of confessions is to test the reliability of a confession and thereby prevent an erroneous conviction based solely on an untrue confession. State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995); State v. Lane, 33,059 (La.App.2d Cir.3/3/00), 755 So.2d 368, writ denied, 2000-1380 (La.4/20/01), 790 So.2d 15.

The offense of second degree murder is defined by La. R.S. 14:30.1, which provides in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, second degree robbery, simple robbery, ... even though he has no intent to kill or to inflict great bodily harm.

Discussion

The evidence produced at trial established that the elderly victim was at his residence shortly before 8:00 p.m. on October 23, 2003. His daughter and her husband, who lived with him, were in their bedroom. They heard the victim go to the front door and tell someone that his dog would not bite. They then heard a gunshot. The daughter ran to the victim, who was lying on the front porch in a pool of blood. He had been shot once in the left chest; the bullet exited through his left back. The daughter began screaming for help as she cradled her dying father’s head in her lap. Her husband called 911. Emergency personnel tried unsuccessfully to resuscitate the victim.

The police found an expended 9-millime-ter cartridge casing near a truck in the front yard. A 9-millimeter bullet was located on a bar in the kitchen, where it had fallen after striking the wall. An autopsy revealed that the bullet had hit the victim’s rib, left lung and aorta.

| ¿Five years later, the defendant gave a statement to the police in which he recounted that a woman he knew had told him and another man that the victim had money. According to the defendant, he and the other man decided to rob the victim. They stalked the victim and followed him home in the defendant’s vehicle. According to the defendant, the victim sent his dog outside. The defendant stated that his accomplice originally had possession of a 9-millimeter pistol that the defendant purchased at a pawn shop a few months beforehand. The defendant took the weapon from the accomplice and “ran up” to the victim. The defendant asserted that the victim grabbed the gun and that it accidentally discharged. The defendant also told the police that he had gotten rid of the gun.

During the ensuing investigation, the police corroborated portions of the defendant’s statement. When the defendant went for a ride with two officers, he showed them where the crime occurred and how he approached the house. The defendant knew details of the crime which included the gun caliber, the number of shots, where the victim was lying, his race and age, and the time of year when the murder occurred. The forensic evidence indicated that the fatal 9-millimeter bullet was fired from a Hi-Point firearm. The police verified that the defendant had, in fact, purchased a Hi-Point 9-millimeter pistol at a pawn shop in September 2003. The defendant mentioned the victim’s dog; the victim’s relatives stated that they heard the victim telling someone that the dog would not bite just before the shot was fired.

IfiThe defendant followed the victim to his home armed with a firearm with the intention of participating in an armed robbery of the victim. The defendant claimed that at the time of the killing, he had taken the gun from his accomplice and had ceased in his intention to rob the victim. However, this assertion is belied by the defendant’s own account whereby, when the elderly victim came out of his house, instead of immediately leaving the scene, the defendant “ran up” to him, coming close enough for the victim to grab the gun.

Viewed in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of second degree murder proven beyond a reasonable doubt. This assignment of error is meritless.

MOTION TO SUPPRESS

The defendant argues that the trial court erred in denying his motion to suppress his inculpatory statement to the police.

Law

At a hearing on a motion to suppress a confession, the state bears the burden of proving the free and voluntary nature of the confession beyond a reasonable doubt. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La. App.2d Cir.5/8/96), 674 So.2d 1082. Accordingly, on 17appeal, the trial court’s ruling on a motion to suppress is reviewed under the manifest error standard with regard to factual determinations, while its findings of law are subject to de novo review. State ex rel. Thibodeaux v. State, 2001-2510 (La.3/8/02), 811 So.2d 875; State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.

Before a confession can be introduced into evidence, the state must show that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. See La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. The state must also establish that an accused who makes a statement during a custodial interrogation was first advised of his Miranda rights. State v. Franklin, 35,268 (La.App.2d Cir.12/19/01), 803 So.2d 1057, writ denied, 2002-0352 (La.2/7/03), 836 So.2d 85; State v. Horn, 45,706 (La.App.2d Cir.11/3/10), 55 So.3d 100, writ denied, 2010-2721 (La.5/6/11), 62 So.3d 124.

Discussion

A hearing was held on the defendant’s motion to suppress; the only witness to testify was the police detective who took the defendant’s statement. The recorded statement was played in court and the written rights waiver form signed by the defendant was admitted into evidence.

The evidence demonstrated that the defendant told the detective that he had a 12th grade education and that he could read and write. The 18detective orally advised the defendant of his Miranda rights. Thereafter, the defendant also signed the rights waiver form. The detective testified that the defendant was not coerced, threatened or harmed in any way; nor were any promises made to the defendant to induce him to make a statement. Furthermore, the defendant denied having any mental defects. Although relatives of the defendant later told the detective that the defendant — who had served in the military — suffered from posttraumatic stress, this information was imparted to him after the defendant made his statement.

Based upon our review of the record, we find no error in the trial court’s conclusion that the defendant’s statement was made freely and voluntarily or in its ruling denying the motion to suppress. This assignment of error lacks merit.

EXCESSIVE SENTENCE

In his final assignment of error, the defendant argued that the trial court erred in imposing the mandatory penalty for second degree murder.

Law

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. Second, 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. Jones, 45,429 (La. App.2d Cir.8/11/10), 46 So.3d 756.

|9Where there is a mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally required to impose. State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503.

The mandatory sentence for second degree murder is punishment by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1(B). The argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789.

In State v. Dorthey, 623 So.2d 1276 (La. 1993), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. This rule has been extended to mandatory sentences beyond habitual offender cases. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277. However, the “rare | i0circumstances” described by Johnson in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great. State v. Chandler, supra; State v. Jones, supra.

Discussion

The defendant contends that, because the trial court noted that the defendant apparently had remorse which caused him to come forward, it was error for the court to not impose a lesser sentence.

The defendant has failed to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of his mandatory sentence. State v. Dorthey, supra; State v. Johnson, supra. This senseless crime happened after the defendant followed the victim home because someone told him that the victim “had money.” The death of the victim occurred at the hands of the defendant during an attempted armed robbery. As such, the legislatively mandated sentence is life imprisonment without benefits.

This assignment of error is meritless.

ERROR PATENT

The trial court failed to advise the defendant of his rights under La. C. Cr. P. art. 980.8. The defendant is hereby advised that no application for postconviction relief shall be considered if filed more than two years after lnthe judgment of conviction and sentence has become final. State v. Gipson, 45,121 (La.App.2d Cir.4/14/10), 34 So.3d 1090, writ denied, 2010-1019 (La.11/24/10), 50 So.3d 827.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Cecelia Farace ABADIE v. Wayne BACINO, Kay Bacino and Toni Bacino Marrone.
    No. 12-CA-16.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Rehearing Denied July 19, 2012.
    Cecelia Farace Abadie, In Proper Person, Hammond, LA, Plaintiff/Appellee.
    Steven M. Spiegel, Attorney at Law, Madisonville, LA, for Defendants/Appellants.

      Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2On March 26, 2010, Cecelia Farace Abadie filed this suit on open account for legal services and expenses against Wayne Bacino, Kay Bacino and Toni Bacino Mar-rone , claiming that a balance of $10,038.83 was due on the account. Defendants answered the petition with a general denial, and plaintiffs subsequent motion for summary judgment was denied. Following trial on the merits, judgment was rendered in favor of plaintiff and against defendants for the balance due as well as legal interest and attorney’s fees.

Defendants now appeal from this judgment, arguing that the trial court erred in finding a valid contract between the parties. Specifically, defendants contend that plaintiff failed to prove the existence of a third-party beneficiary contract for the provision of legal services to Toni Mar-rone. For the reasons stated herein, we affirm.

At trial, Cecelia Abadie testified that she has known the Bacinos for over 20 years. She stated she spoke to Wayne Bacino in June of 2007, when he mentioned that his daughter, Toni Marrone, was involved in a custody case and they were having problems with the attorney. Mrs. Abadie stated she agreed to speak with|sMs. Marrone if the arrangement with the attorney did not work out. In October of 2007, Toni Marrone met with Mrs. Abadie regarding the custody matter. At the time, the Baci-nos were out of town and did not attend the meeting. However, Mrs. Abadie testified that she informed Ms. Marrone of her legal fees and other costs associated with the litigation, and Ms. Marrone explained that although she was not employed, her parents would pay for the legal services. Mrs. Abadie wrote down these terms on a sheet of paper and gave it to Ms. Marrone.

Mrs. Abadie testified that the following week, on October 18, 2007, Kay Bacino called her and they discussed the meeting with Ms. Marrone and the terms of Mrs. Abadie’s representation. Mrs. Abadie explained that she was not charging a retainer, but that she would ask for regular payments to be applied to costs and legal fees. Mrs. Bacino agreed to write her a cheek, and on October 23, 2007, Mrs. Aba-die received a check dated October 18, 2007 in the amount of $1,000 written on the account of Wayne and Kay Bacino with the notation “attorney’s fees” and “loan to tom.”

Mrs. Abadie testified that she worked 286.25 hours on the Marrone case which she logged into a work journal and she submitted both the journal and a time sheet into evidence. Mrs. Abadie also testified that she spoke to Wayne Bacino often about this case, and that he determined the strategy and expenditures.

Mrs. Abadie remained as counsel until February 16, 2008, when Wayne Bacino called her to say her services were no longer required. Mr. Bacino and Ms. Marrone were upset over an offer of settlement Mrs. Abadie made to opposing counsel on the previous day. Mrs. Abadie stated she prepared the file and it was picked up by Mr. Bacino and Ms. Marrone the same day. Ms. Marrone signed a Lrelease of the file at this time. Mrs. Abadie stated that the handwritten contract she discussed with Ms. Marrone in October was included in this file.

Mrs. Abadie presented evidence that she sent a detailed bill for legal services to the parties on May 19, 2009. The balance due on the account was $10,038.83. However, she did not receive payment on the account and subsequently filed the present lawsuit seeking to collect the balance.

Kay Bacino testified at trial that her husband was usually the person who handled telephone conversations with Mrs. Abadie, and that she did not speak to Mrs. Abadie about payments for legal representation. She stated she did not have an oral contract with Mrs. Abadie to represent Toni Marrone. However, she stated that she wrote checks payable to Mrs. Abadie at the direction of her husband, Wayne Bacino, and she believed that these were loans to her daughter for which she would be paid back.

Toni Marrone testified that she called Mrs. Abadie in October of 2007 because she needed an attorney to represent her at a custody hearing. She met with Mrs. Abadie, but she did not enter into either a written or oral contract at that time. Rather, she stated that Mrs. Abadie wanted to help with her case because of her friendship with her family and in order to help her one-year old child. She stated she asked her parents for a loan to help with court fees and costs. However, she admitted that she stated in an affidavit that her parents paid attorney’s fees which they negotiated with the attorney without reference to a loan. She also stated that there was no contract between her parents and Mrs. Abadie, as everything went through her.

Wayne Bacino testified that he recommended that Toni Marrone contact Cecelia Abadie to assist her with a custody matter. He believed that Mrs. Abadie agreed to represent Ms. Marrone because of her friendship with him. He stated he |Rdid not enter into a contract with Mrs. Abadie and he had no discussion with her regarding attorney’s fees. Mr. Bacino stated he was not a party to the litigation and that Ms. Marrone both hired and fired Mrs. Abadie. He stated he considered himself as an advisor to Mrs. Abadie, and that his name is listed in her work records because she asked him to do certain things to assist with the ease. He stated that he did not authorize the payment of attorney’s fees to Mrs. Abadie, and any checks written on his account to Mrs. Abadie were actually loans to his daughter.

At the close of evidence, the trial court found that plaintiff proved by a preponderance of the evidence that there was an agreement between the parties, tacit or otherwise. The court found that there was no dispute that the work was performed by plaintiff as billed and that defendants made payments on the account without objection. With regard to the loan relationship, the court found that this was a matter between the parties who assumed responsibility for payment. Thus, by judgment rendered on July 11, 2011, the court found defendants liable in solido for the balance due on the account, $10,038.83, as well as 25% in attorney’s fees.

On appeal, defendants concede that Toni Marrone entered into a valid contract for legal representation with Cecelia Abadie. However, they contend that any oral agreement with the Bacinos cannot be construed as a third party beneficiary arrangement as the beneficiary in this case, Toni Marrone, was a party to the primary contract. Rather, they contend that the agreement on their part was more in the nature of a suretyship or assumption of the obligation, both accessory contracts which are required to be in writing. As there is no written agreement between the Baeinos and Mrs. Abadie, defendants argue that the trial court erred in holding them liable in solido for the balance due on the account.

| fiSuits on open accounts are governed by La. R.S. 9:2781, and the statute includes debts incurred for legal services. For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt. Vezina & Associates v. Gottula, 94-593, p. 7 (La. App. 5 Cir. 3/1/95), 652 So.2d 85, 89, unit denied, 95-0825 (La.5/5/95), 654 So.2d 332

A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. La. C.C. art. 1939 provides that an offer may be accepted by performance:

When an offeror invites an offeree to accept by performance and, according to usage or the nature or the terms of the contract, it is contemplated that the performance will be completed if commenced, a contract is formed when the offeree begins the requested performance.

Further, a stipulation for a third party is provided for by La. C.C. art. 1978, and can support a finding of an enforceable, primary obligation under Louisiana law. However, when the obligation is one of a guarantee to pay the debt of another, the obligation is collateral and must be written. Parole evidence may not be considered as proof of the existence of the promise. La. C.C. arts. 1847 and 3038. Vezina & Associates v. Gottula, supra, 94-593, p. 8, 652 So.2d at 89.

Although defendants contend that the agreement in this case is in the nature of a guaranty or assumption, our review of the evidence in the record fails to support this argument. The evidence does not indicate that the Baeinos agreed to pay for Mrs. Abadie’s legal services only if Toni Marrone could not or was unable to pay. Rather, the evidence supports a finding that it was established that Toni Marrone was unable to pay for the legal services, and that her parents agreed to pay the services for her benefit. We find that this agreement is in the nature of a |7third-party beneficiary contract, which is not required to be in writing. We also find that this agreement was separate from any contract executed directly between Ms. Marrone and Mrs. Abadie, and for this reason, we fail to find that Ms. Marrone was a party to the third party beneficiary contract.

This Court has previously found similar oral agreements of representation to be valid and enforceable contracts. In Vezina & Associates v. Gottula, supra, this Court upheld the validity of a contract, finding in similar factual circumstances that the defendant/father agreed to be primarily liable for the payment of the professional legal fees incurred for services rendered to his daughter. Further, in Spiegel v. Martinez, 09-90 (La.App. 5 Cir. 10/13/09), 27 So.3d 889, this Court reversed a trial court judgment which dismissed a cause of action based on a similar arrangement for the payment of attorney’s fees where there was no written suretyship agreement. In that case, we held that where the parents paid the legal fees incurred by their daughter, the relationship could be construed as a third party beneficiary contract which was not required to be in writing. Id., 09-90, p. 6, 27 So.3d at 892.

Defendants attempt to distinguish the facts of cited cases from those in the present case where the Baeinos’ daughter met directly with the attorney, unlike the parties in Vezina and Spiegel. Defendants argue that because Toni Marrone was the party contracting with the attorney and the primary obligor, she alone was responsible for the legal fees incurred.

However, the record fails to support this argument. Mrs. Abadie testified that during the initial meeting with Ms. Marrone, Ms. Marrone told her directly that she was unable to pay for the legal services she was requesting, but that her parents agreed to help her. Mrs. Abadie also stated that she spoke to the Bacinos one week after the initial meeting, and that they agreed to the terms of | ^representation set forth by Mrs. Abadie. Mrs. Abadie’s version of the events are buttressed by the fact that the Bacinos remitted payment from their personal account payable to her for legal services rendered to Ms. Mar-rone. Although defendants contend that these checks represented loans to Ms. Marrone as the primary obligor under the contract, we fail to find that the payments made directly to Mrs. Abadie can be construed as a loan to Ms. Marrone. Further, whether Ms. Marrone subsequently repaid her parents for the debt incurred is insignificant to a determination of whether the Bacinos are liable to Mrs. Abadie for the amount due under the contract.

The trial court in this case heard all of the testimony and found Mrs. Abadie’s testimony regarding the circumstances of the representation to be credible. Our review of the record, including the exhibits submitted by plaintiffs, convinces us that this factual determination was a reasonable one and should be upheld. We find that the trial court correctly found the existence of a valid contract whereby the Bacinos agreed both verbally and by performance to pay the legal services rendered for the benefit of their daughter. Further, we find that plaintiff met the requirements of proof on a suit on open account, and it is clear from the work journal, time sheets and detailed billing records contained in the record that plaintiff performed the work as required.

Accordingly, for the reasons assigned herein, we affirm the trial court’s judgment rendered in favor of Cecelia Abadie and against Wayne Bacino, Kay Bacino, and Toni Bacino Morrone, in solido, in the amount of $10,038.88. Defendants shall bear all costs of this appeal.

AFFIRMED

      . The name is spelled "Marrone” in the record but "Maronne” in the briefs.

      . The parties do not dispute that Mrs. Abadie received a total of $7,500.00 from the Baci-nos, although the only check introduced into evidence at trial was the one dated October 18, 2007. Mrs. Abadie stated she deducted these payments from the account balance.


author: COOKS, J.

text:
    STATE of Louisiana v. Donna Faye CHAISSON.
    No. 11-1135.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Donna Faye Chaisson.
    Bennett R. Lapoint, Assistant District Attorney, Jennings, LA, for State of Louisiana/Appellee.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, Judges SYLVIA R. COOKS and ELIZABETH A. PICKETT.
   COOKS, J.

|, FACTS AND PROCEDURAL HISTORY

Defendant, Donna Faye Chaisson, (Chaisson) sold nine pills allegedly containing hydrocodone to a police officer, Arthur Phillips (Phillips). She was subsequently charged by a bill of information with distribution of hydrocodone, a controlled dangerous substance classified in La.R.S. 40:964(D) as a Schedule III drug, in violation of La.R.S. 40:968. Chaisson entered a plea of not guilty.

Trial by jury commenced on November 15, 2010. At the close of the State’s case, defense counsel made a motion for judgment of acquittal and motion for directed verdict on the basis that the State had not presented any evidence that Chaisson committed a violation of La.R.S. 40:968. In lieu of the motions for judgment of acquittal and for directed verdict, defense counsel subsequently asked for a mistrial. In response, the State moved to amend the bill of information to charge Chaisson with distribution of hydrocodone, a controlled dangerous substance classified in La.R.S. 40:964 as a Schedule II drug, in violation of La.R.S. 40:967. The trial court amended the bill of information, denied the motions for judgment of acquittal and for directed verdict, and denied the motion for mistrial. Chaisson was found guilty of distribution of hydrocodone. The jury verdict sheet did not specify whether Chaisson was found guilty of distribution of a Schedule II or Schedule III drug. It necessarily follows since the trial judge allowed the State to amend the bill of information and instructed the jury on the elements of distribution of a Schedule II drug, the jury’s verdict was based on that offense.

Chaisson was sentenced to serve five years at hard labor. All but two years of the sentence were suspended, and she was placed on supervised probation for three years upon her release from incarceration. Chaisson’s motion to reconsider ^sentence was denied. Chaisson appeals her conviction and sentence asserting nine assignments of error:

(1) the evidence was insufficient to prove beyond a reasonable doubt that the substance at issue was hydrocodone, as defined in Schedule II of La.R.S. 40:964;
(2) the verdict should be vacated because Defendant was entrapped;
(3) the trial court erred in several evi-dentiary rulings;
(4) the State committed prosecutorial misconduct;
(5) the trial court erred in denying the request for an instanter subpoena to District Attorney Cassidy and in prohibiting the admission of a letter written by him into evidence;
(6) the trial court erred in permitting the introduction of other crimes evidence;
(7) the trial court erred in admitting into evidence State Exhibit 5, in violation of the right to confrontation;
(8) the trial court erred in permitting the prosecution to amend the bill of information after the prosecution had rested and then denying the defense’s motion for mistrial; and
(9) the trial court erred in denying the two requested motions for mistrial.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find there is one error patent concerning the payment plan imposed by the court. However, this |serror is rendered moot by our finding that Chaisson’s conviction must be reversed and her sentence must be vacated.

LAW AND DISCUSSION

In her first assignment of error, Chais-son contends the evidence introduced at trial was insufficient to prove beyond a reasonable doubt that the substance given to police was hydrocodone, as defined in Schedule II of La.R.S. 40:964 and in violation of La.R.S. 40:967.

When a sufficiency of the evidence claim is raised on appeal, the standard of review 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. State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560).

State v. Jasper, 11-488, p. 4 (La.App. 3 Cir. 11/2/11), 75 So.3d 984, 987.

Louisiana Revised Statutes 40:964 sets forth the composition of schedules for controlled dangerous substances in pertinent part, as follows:

SCHEDULE II

A. Substances of vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(1) Opium and opiate, and any salt, compound, isomer, derivative, or preparation of opium or opiate, excluding apo-morphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, na-loxone, and naltrexone, and their respective salts, but including the following:

(1) Hydrocodone

_[4_SCHEDULE III

D. Limited narcotic drugs. Unless specifically excepted or unless listed in another schedule:

(1) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:

(c) Not more than 300 milligrams of hydrocodone per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium.

(d) Not more than 300 milligrams of hydrocodone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts such as acetaminophen or ibuprofen.

Chaisson was originally charged by bill of information with distribution of Schedule III hydrocodone, a violation of La. R.S. 40:968. The jury was informed of the elements of that offense and the sentencing range for that offense at the outset of the trial. The State proceeded with its case on that charge. At the close of the State’s case, the judge allowed the State to amend the bill of information changing the charge to distribution of hydrocodone, Schedule II, a violation of La.R.S. 40:967.

During trial, the State called Margaret Steele (Steele), a forensic chemist with the Southwest Crime Lab, as an expert witness. Steele was accepted as an expert in the field of forensic analysis. She testified that she was not the person who tested the pills at issue but was the supervisor who signs-off on that person’s work. Defense counsel moved to strike her testimony as hearsay. The objection was overruled, and the State was permitted to file the lab report, State’s Exhibit No. 5, into evidence. Steele then read the report as follows: “Evidence | sSubmission No. 1 contains hydrocodone and nonnarcotic. It’s a Schedule 3. There were nine (9) tablets. The nine (9) tablets is or are inscribed ‘Watson 503.’ ”

After the State rested its case, defense counsel moved for a judgment of acquittal. The following exchange resulted:

MR. OUSTALET: According to the bill of information, the State of Louisiana charges the defendant, Donna Faye Chaisson, with distributing a controlled dangerous substance classified in Schedule 3, to wit: hydrocodone, in violation of Louisiana Revised Statute 40:968. Your Honor, according to the Louisiana Revised [Sjtatute 40:964, which is a schedule of all of the controlled dangerous substances, hydrocodone is listed as a Schedule 2 narcotic, and the State has not presented any evidence that the defendant has, in fact, violated any of the conditions of Louisiana Revised Statute 40:968 with respect to a Schedule 3 narcotic.
MR. LAPOINT: Your Honor, if that is in fact true, I think the law allows the Court to amend the bill when the evidence suggests otherwise. The time to raise an objection to the form of a bill of information is a motion to quash prior to trial. It’s — it’s—the—the—I think the case law is to the effect that if there is a defect in the bill of the nature that does not conform with the evidence the Court is allowed to amend that—
MR. LAPOINT: — in conformity with the evidence.

Defense counsel further alleged the State had not presented evidence that the Defendant had “broken the law in violation of the bill of information with which she’s charged.” The State argued there was a mistake as to the correct schedule and statute, but that mistake did not entitle the Defendant to an acquittal. Defense counsel next moved for a directed verdict. The trial court took the matter under advisement.

Defense counsel subsequently made a motion for mistrial in lieu of the motions for judgment of acquittal and directed verdict. In response, the State maintained the following:

_y¡N]ow that we know there’s a defect in — as to the form of the bill we’d move to amend to reflect the proper statute and the proper schedule drug, and the Court may under 487 deal with that defect as to a defect in form, and it’s the State’s position that this is a defect in form, and we would so move to amend it to reflect the proper — proper schedule, which is Schedule 2, and the proper statute would be 40:967A as opposed to 40:968.

The trial court took the motion for mistrial under advisement. The following day, the trial court denied the motion for mistrial, amended the bill of information, and informed the jury of the penalty for a violation involving Schedule II hydrocodone. The trial proceeded.

As part of its instructions to the jury, the trial court stated the Defendant was charged with “distribution of hydrocodone, 40:967.” ■ The clerk then read the bill of information to the jury as follows:

Donna Faye Chaisson, in the Parish of Jefferson Davis, on or about August 14th, 2009, committed the offense of distribution of hydrocodone, in that Donna Faye Chaisson did knowingly or intentionally distribute a controlled dangerous substance classified in Schedule II, to wit: hydrocodone, without having the legal authority to possess, a felony in violation of LSA Revised Statute 40:967, contrary to the law of the State of Louisiana, in contempt of the authority of said State, and against the peace and dignity of the same.

(Emphasis added).

The jury found the Defendant guilty as charged.

Chaisson contends that when the jury rendered its verdict, the charge pending against her was distribution of Schedule II hydrocodone. She further contends that, in light of Steele’s testimony and the lab report, the State failed to prove she distributed Schedule II hydrocodone. We agree. Steele was neither questioned about the difference between the two schedules at issue nor the milligrams of hydrocodone contained in the pills tested. Her testimony did not establish that the pills examined at her lab contained the requisite amount of 17hydrocodone. Moreover, as she testified, the report recites that the items tested were “Schedule 3” hydrocodone.

The State places much emphasis on the fact that Detective “Lucky” Delouche testified the pills were called “teners” because they contained ten milligrams. This testimony from a witness who was not qualified as an expert is wholly insufficient to carry the State’s burden to prove that the pills sold to Phillips in fact contained hydroco-done, and if so, in what amount. That testimony also failed to establish whether the pills sold to Phillips contained any other substance in addition to hydroco-done.

The State also asserted in brief, and in oral argument to this court, that Chais-son’s admission that she sold hydrocodone to Phillips meets the State’s burden. It does not. Chaisson was not qualified as an expert on drugs and had no idea what the pills she sold Phillips contained. It is of no moment, and wholly insufficient to meet the State’s burden of proof, that Chaisson thought the pills contained hydrocodone. In reality, she had no way to know what the pills contained. The State cannot meet its burden to prove that the pills sold to Officer Phillips contained the requisite amount of hydrocodone based on Chais-son’s supposition. At any rate, as Chais-son points out, ten milligrams is less than the fifteen milligram cap for Schedule III hydrocodone. Thus, even if the pills sold to Officer Phillips each contain ten milligrams of hydrocodone, that amount is less than fifteen milligrams of hydrocodone, which is required to prove Chaisson distributed Schedule II hydrocodone.

The State maintains the original bill of information was correct when listing the hydrocodone at issue as a Schedule III substance in violation of La.R.S. 40:968. The State concedes the bill of information should not have been amended, |Rand it was error to do so. The State asserts this error can be corrected at any time, including by this court on appeal, pursuant to La.Code Crim.P. art. 487, which states, in pertinent part:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

We know of no authority that would permit this court to amend a bill of information after the close of trial and after the verdict has been rendered by making a substantive change in the charging indictment. Such a suggestion offends all notions of due process and a fair trial and is repugnant to both the Louisiana and United States Constitutions. See U.S. Const. Amends. 5 and 6, and La. Const. Art. I, § 16.

In State v. James, 517 So.2d 291 (La. App. 1 Cir.1987), the defendant was charged with distribution of cocaine, a Schedule II controlled dangerous substance. The bill of information was orally amended to charge the defendant with distribution of a controlled dangerous substance, in violation of La.R.S. 40:967(A). The first circuit noted the statute disclosed the prohibited substance was classified in Schedule II; however, the amended bill failed to designate which Schedule II controlled dangerous substance the defendant was charged with distributing. The first circuit held:

The exact identity of the controlled dangerous substance determines what the maximum authorized sentence is under La.R.S. 40:967(B), |aand is an essential element of the crime of distribution thereof.... When a defendant is charged with distribution of a controlled dangerous substance, he cannot be compelled or required to defend himself against all of the named drugs classified in the Schedules as controlled dangerous substances. The charge must list a specific drug, and the evidence must establish that this specific drug was present. To allow otherwise would violate defendant’s constitutional right to be informed of the nature and cause of the charges against him. La. Const, of 1974, Art. I, § 13.

Id. at 293.

In State v. Miller, 587 So.2d 125, 127 (La.App. 2 Cir.1991), the second circuit also stated that the exact identity of the controlled dangerous substance was an essential element of the crime of distribution thereof. See also State v. Perkins, 07-423, (La.App. 3 Cir. 10/31/07), 968 So.2d 1178, writ denied, 07-2408 (La.5/9/08), 980 So.2d 688.

Hydrocodone is found in both Schedule II and Schedule III as defined in La.R.S. 40:964. Schedule II lists hydrocodone, and Schedule III lists hydrocodone when found in certain amounts and/or mixed with other nonnarcotic ingredients. The penalties for Schedule II and Schedule III violations involving hydrocodone differ greatly.

Louisiana Revised Statutes 40:967(B) provides the penalty for a Schedule II violation as follows:

Except as provided in Subsection F, any person who violates Subsection A with respect to:
(1) A substance classified in Schedule II which is an amphetamine or methamphetamine or which is a narcotic drug, except cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 and except oxyco-done as provided in Schedule II(A)(l)(o) of R.S. 40:964 and except methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

| inLouisiana Revised Statutes 40:961, in pertinent part, defines the term narcotic drug as follows:

(26) “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) Opium, coca leaves, and opiates.
(b) A compound, manufacture, salt, derivatives, or preparation of opium, coca leaves, or opiates.

Hydrocodone is listed in Schedule II under the subsection dealing with “[ojpium and opiate, and any salt, compound, isomer, derivative, or preparation of opium or opiate.”

Louisiana Revised Statutes 40:968(B) provides the penalty for a Schedule III violation as follows:

Any person who violates Subsection A with respect to any controlled dangerous substance classified in Schedule III shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and, in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.

The legislature saw fit to include some forms of hydrocodone in Schedule II and others in Schedule III and for the penalties involving each to differ. The exact identity of the controlled dangerous substance at issue determines the maximum authorized sentence, and is an essential element of the crime of distribution of hydrocodone. See James, 517 So.2d at 291. Consequently, the State was required to prove which Schedule the pills at issue herein fell within. We cannot simply “fix” the State’s failure to meet its burden of proof by “amending” the bill of information to make the evidence fit a crime.

The State argues, in the alternative, that the jury verdict could be considered a responsive verdict. The State cites no legal authority for such a suggestion, and Inwe find that distribution of Schedule III hydrocodone is not a responsive verdict to distribution of Schedule II hydrocodone. The Louisiana Code of Criminal Procedure, Article 814(48), provides the responsive verdicts for distribution of a controlled dangerous substance as follows:

Guilty.
Guilty of attempted production, manufacture, distribution or dispensation of controlled dangerous substances.
Guilty of possession of controlled dangerous substances.
Guilty of attempted possession of controlled dangerous substances.
Not guilty.

In State v. Samuel, 08-100 (La.App. 3 Cir. 5/28/08), 984 So.2d 256, writ denied, 08-1419 (La.2/20/09), 1 So.3d 493, and unit denied, 08-1487 (La.2/20/09), 1 So.3d 495, the defendant alleged the trial court erred when it instructed the jury that a responsive verdict for possession with intent to distribute a Schedule V controlled dangerous substance was guilty of attempted possession of a Schedule III controlled dangerous substance. This court noted that a review of the jurisprudence associated with responsive verdicts, as outlined in La.Code Crim.P. art. 814, confirmed the defendant’s allegation that attempted possession of a Schedule III controlled dangerous substance was not a responsive verdict for possession with intent to distribute a Schedule V controlled dangerous substance.

Because the State failed to prove Defendant distributed Schedule II hydrocodone, we find that none of the responsive verdicts to distribution of Schedule II hydro-codoné listed in La.Code Crim.P. art. 814(48) are applicable and reverse her conviction.

hiJn light of our ruling on the sufficiency of evidence question, we find it unnecessary to address the remaining assignments of error.

DECREE

For the reasons stated, we reverse the conviction and vacate the sentence of Donna Faye Chaisson and hereby order her release from custody. All costs of this appeal are assessed against the Appel-lee/State of Louisiana.

CONVICTION REVERSED; SENTENCE VACATED.