author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Douglas D. FOSTER, Appellant.
    No. 45,601-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Louisiana Appellate Project, by Edward K. Bauman, for Appellant.
    Jerry L. Jones, District Attorney, Madeleine Slaughter-Young, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

1!Defendant, Douglas D. Foster, pled guilty to violating La. R.S. 14:78.1, aggravated incest. He was sentenced to 20 years at hard labor. He now appeals and claims his sentence is excessive. For the reasons stated herein, the sentence of Defendant is affirmed.

FACTS

On August 20, 2007, Sergeant Jo Baw of the Ouachita Parish Sheriffs Office received a videotape of a 14-year-old juvenile, J.F., which was made at the Children’s Advocacy Center, wherein J.F. stated that his father, Douglas D. Foster, had been sexually abusing him since 2001. J.F. has Asperger’s Syndrome, which is a high-functioning condition found on the Autism scale. J.F. stated that his father made J.F. perform oral sex on him and that his father performed oral sex on J.F. Defendant also forced J.F. to watch pornographic movies and look at pornographic magazines with him and forced J.F. to watch him stimulate himself anally with an electric toothbrush while he masturbated. In addition, Defendant took nude pictures of the juvenile lying on a couch in his living room with a black cowboy hat over his face. J.F. indicated that the pictures his father took of him lying nude on the couch would not print. J.F. stated his father had a bunk bed for him to sleep in when he came to visit, but the upper bunk was always stacked with possessions and he had to sleep in the lower bunk with his father. J.F. also stated that his father had instructed him not to tell anyone about the sexual activity because, if it were revealed that this was going on, he, the father, would go to jail.

|2On August 21, 2007, Ouachita Parish deputies obtained a search warrant and went to Defendant’s home in Monroe, Louisiana. When Defendant came to the door, officers immediately noticed a strong odor of marijuana. A search of the premises produced many weapons, found within feet of the marijuana, pornographic DVD and VHS tapes, pornographic magazines and a box of “homemade” and store bought sex toys. Cameras were located in the living room and were seized by officers, as was a cowboy hat located in one of the rooms. Defendant was arrested and read his Miranda rights. Federal charges were filed against him for possession of the weapons.

After his arrest, Defendant gave a statement to the Sheriffs Office wherein he admitted performing oral sex on J.F. beginning when J.F. was eight years old and admitted that he had his son perform oral sex on him. Further, he stated that J.F. had seen him masturbating and watching pornographic DVDs, but denied that he made J.F. watch. He admitted attempting to take pictures of J.F. while J.F. was wearing a cowboy hat and a towel, but stated that his camera battery had died and he was not successful. He also admitted to taking J.F.’s ADHD medication, Ad-derall, because it caused him to become sexually aroused.

On September 21, 2007, a bill of information was filed charging Defendant with: 1) aggravated incest, between August 1, 2001, and August 31, 2007, inclusive, a violation of La. R.S. 14:78.1; 2) indecent behavior with a juvenile, a violation of La. R.S. 14:81; 3) pornography, in violation of La. R.S. 14:81.1; and 4) possession of marijuana with intent to j ^distribute a Schedule I controlled dangerous substance, on or about August 21, 2007, in violation of La. R.S. 40:966.

The case was scheduled for trial for April 21, 2008, and a jury was selected and sworn. After hearing the testimony of Sgt. Baw, Defendant decided to plead guilty to the charge of aggravated incest with the victim being greater than 13 years of age. The other three charges against him were dismissed. A PSI was ordered returnable by August 10, 2008.

On August 22, 2008, the trial judge examined the PSI report, allowed a statement by the victim’s grandfather, allowed Defendant to speak on his own behalf and then thoroughly examined sentencing factors set forth in La.C.Cr. P. art. 894.1. The trial judge stated that he found Defendant to be one of the “worst offenders” and also noted that Defendant had been spared what amounted to a life sentence by his attorney’s action of having the other three crimes dismissed upon the guilty plea. As previously stated, the trial judge sentenced Defendant to serve 20 years at hard labor, which was the maximum sentence under La. R.S. 14:78.1(D)(1). The trial judge noted that, under La. R.S. 15:537(A), the sentence was not subject to diminution for good behavior. Defendant filed a motion to reconsider his sentence, which was denied. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): Douglas Foster’s sentence amounts to the needless imposition of pain and suffering and should be considered constitutionally excessive.

Defendant argues that his sentence amounts to a needless imposition of pain and suffering and should be considered constitutionally excessive. |4He contends that he did not have a significant criminal record. In fact, his only prior conviction was a misdemeanor conviction for possession of marijuana in 1978. He helps his elderly parents with their catfish farm, lifting heavy bags of food and mowing many acres of pasture, and claims that the imposition of the maximum sentence will result in a hardship to his family. Defendant claims that he is remorseful for his actions and that he has apologized to his son for hurting him. Defendant argues that, because he has been a law-abiding citizen his whole life, the record in this case contains no evidence of aggravating factors warranting the maximum sentence.

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. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890 writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

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. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Rob inson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not ^adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.4/4/08), 978 So.2d 321; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

La. R.S. 14:78.1 defines aggravated incest and the sentence for the crime and states in pertinent part as follows:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state. (2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted |7to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
D. (1) A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.

In the case sub judice, the trial judge’s decision was based on many factors. The trial judge indicated he had a copy of the PSI and its recommendation. He took cognizance of the sentencing guidelines set forth in La. C. Cr. P. art. 894.1 and noted that he would consider both mitigating and aggravating factors when he pronounced Defendant’s sentence.

The trial judge noted that Defendant did not have a significant criminal record, but also pointed out that he had been given a significant benefit by being allowed to plead guilty to aggravated incest. He also stated that Defendant received a huge benefit from having the other charges dismissed. The trial judge considered that Defendant had expressed remorse at the sentencing hearing and had indicated that he had repented his sins and had a relationship with God that he did not have before. He further indicated that he had taken Defendant’s previous drug and alcohol difficulties into consideration.

The aggravating factors considered by the trial judge greatly outweighed the mitigating factors. He stated that Defendant had repeatedly, and for a prolonged time period, exposed J.F. to pornography, forced his child to sleep in the same bed with him, forced him to engage in sexual activity against his will, stolen his medication from him so that Defendant | scould experience sexual arousal and damaged his autistic son mentally and emotionally for life. The trial judge stated that he considered Defendant a “worse sexual offender” because he had tortured his own son sexually for years and mentally abused his child by putting the burden on him to keep Defendant’s secrets.

The trial judge indicated that the recommendation of the PSI was that the court should impose a maximum sentence at hard labor. Due to the seriousness of the crime and the substantial benefit Defendant had already received by virtue of the dismissal of the three other offenses, the trial judge imposed the maximum allowable sentence under the statute. In addition, because Defendant pled guilty to the crime of aggravated incest, he was not eligible for diminution of sentence for good behavior.

Based on the law and the facts of the case, we conclude that the trial court did not abuse its wide discretion in sentencing Defendant to the maximum sentence for this crime. The record reflects the trial judge’s articulation of reasons for the sentence and his consideration of the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. Based on his consideration, the trial judge determined that Defendant had already received the benefit of having three felony charges against him dismissed, noted the heinous nature of the crime and found that the seriousness of the offense warranted the maximum penalty. The sentence is not excessive. This assignment of error is without merit.

| ^CONCLUSION

For the foregoing reasons, the sentence of Defendant, Douglas D. Foster, is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John Edward MARSHALL, Appellant.
    No. 45,567-A.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      G. Paul Mar, Louisiana Appellate Project, for Appellant.
    John Edward Marshall, Pro se.
    Charles R. Scott II, District Attorney, Jason Trevor Brown, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|! John Edward Marshall was convicted of distribution of cocaine and was subsequently adjudicated a fourth felony offender and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence and a $50,000 fine. Marshall appeals his conviction and sentence. We affirm his conviction and adjudication as a fourth felony-offender but amend the imposed sentence to delete the $50,000 fine.

Facts

On April 10, 2009, the state filed a bill of information charging John Edward Marshall and Katherine Ann Williams (“Williams”) with one count of distribution of crack cocaine, a Schedule II controlled dangerous substance in violation of La. R.S. 40:967(A)(1), arising from both defendants’ participation in a buy/bust operation with undercover Shreveport police. The trial of both defendants before a jury commenced on July 21, 2009. Nevertheless, on the second day of the trial, the court allowed Williams to enter a guilty plea to one count of distribution of crack cocaine in exchange for the State’s dismissal of a second charge for possession of crack cocaine.

After hearing testimony from the participating officers and Williams, the jury returned a unanimous verdict of guilty as charged. Motions for new trial and for post-verdict judgment of acquittal were denied. Marshall was subsequently sentenced to 30 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence, and a $50,000 fine.

|2The State filed a habitual offender bill, charging Marshall as a fourth felony offender on the basis of his current conviction and nine previous felony convictions dating back to 1972. The nine felony convictions were for the following crimes: (1) receiving stolen goods over $100; (2) simple escape; (3) crime against nature; (4) attempted felony theft; (5) illegal discharge of a weapon; (6) simple robbery; (7) illegal possession of stolen things; (8) possession of a controlled dangerous substance, Schedule II; and, (9) middle grade theft-second felony offender. Marshall was adjudicated a fourth felony offender on October 1, 2009. That same day, his previous sentence was vacated and, because he waived any sentencing delays, he was resentenced to a term of life imprisonment at hard labor and a $50,000 fine. A motion to reconsider sentence was filed on October 20, 2009, and denied the same day. The instant appeal followed.

Discussion

In the drug transaction in question, Williams approached Marshall to purchase cocaine for undercover agents. Marshall argues that the evidence was insufficient to convict him on a charge of distribution of 2 grams of crack cocaine where Williams (the buyer) was not searched by the agents prior to her contact with Marshall, raising the possibility that she had possessed the crack cocaine at all times before the transaction. Marshall also contends that Williams’s testimony after her guilty plea was contaminated by self-interest to the extent that it alone was legally infirm and could not fairly demonstrate Marshall’s guilt.

laWhen issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. 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.

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. at 319, 99 S.Ct. at 2789; State v. Tate, 01-1658 (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, 08-0499 (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, 05-0477 (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, 09-0310 (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, 09-0725 (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, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

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, 06-1083 (La.11/9/06), 941 So.2d 35.

This includes the testimony of accomplices. An accomplice is a competent witness to testify against her co-perpetrator even if the prosecution offers her inducements to testify; these inducements weigh on the witness’s credibility. State v. Jetton, 32,893 (La.App.2d Cir.04/05/00), 756 So.2d 1206, writ denied, 00-1568 (La.03/16/01), 787 So.2d 299. The credibility of an accomplice’s testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The State must show: (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Kelley, 36,602 (La.App.2d Cir.01/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App.2d Cir.06/24/98), 715 So.2d 668.

Un proof of its case, the state presented the testimony of Corporal Steve McKemma, a member of the Shreveport Police Department. Corporal McKemma testified that on January 23, 2009, he was in an unmarked vehicle with two other agents working undercover in a buy/bust operation. As the agents stopped in the 2500 block of Sassafras in the Hollywood area of Shreveport, Williams approached the vehicle and asked what the occupants needed. McKemma told her they were looking for some “hard,” a street term for crack cocaine. Williams indicated that she could get them some and got in the vehicle with the undercover agents. Williams directed McKemma to the 6700 block of Clift Avenue in Shreveport.

Once there, McKemma pulled the vehicle over to the side of the road and gave Williams $20 in buy funds. McKemma testified that Williams exited the vehicle and approached a group of four or five individuals in the parking lot of an apartment complex. After a couple of minutes, Williams returned to the vehicle, got in and told McKemma to drive away. As he did, Williams handed Agent Ferguson a yellow Baggie of crack' cocaine. McKem-ma then gave a verbal signal to the surveillance arrest team that the transaction had been made and the arrest team initiated an investigatory stop resulting in Williams’s arrest. On cross-examination, McKemma admitted [ 7that Williams had not been frisked at any time before she approached the group of individuals.

Officer Adrian Ferguson next testified that she was working undercover on the date in question and was riding in the front seat of the vehicle driven by Corporal McKemma. Her testimony identified the Clift Street Apartments as the location to which Williams took them and placed the number of individuals in the group outside at seven to eight. Like Corporal McKemma, Ferguson did not see the individual from whom Williams allegedly obtained the cocaine.

Chris Embry, a member of the Shreveport Police Department, was part of the surveillance arrest team working with the undercover unit conducting the buy/bust operation in question. Embry testified that after Williams entered the undercover unit, he followed the unit to the apartments on Clift Street and parked approximately one block south of where the undercover unit pulled over. He witnessed Williams exit the vehicle and approach Marshall who was standing in a group of approximately five to seven individuals. According to Agent Embry, once Williams made contact with a man in a shirt with a blue collar, later identified as Marshall, the two walked away from the group, toward the apartments and through a door into a hallway. While in the building, Agent Embry lost sight of Marshall and Williams for three to four minutes until they exited the building. When they reemerged, Williams walked back to the undercover unit and Marshall rejoined the group of individuals in the parking lot.

IsWhen the arrest team received the arrest signal from Corporal McKemma, Agent Embry testified that they pulled their surveillance vehicle into the apartment parking lot and arrested Marshall. The search of Marshall incident to the arrest yielded the “buy funds” which Corporal McKemma had provided to Williams just before she made contact with Marshall. The defendant did not have any drugs on his person at the time of the arrest.

Agent Sean Parker was in a second surveillance vehicle which also followed Corporal McKemma to the Clift Street Apartments. After they arrived, he observed Williams exit the vehicle, approach a group of individuals hanging out in the parking lot and make contact with a black male wearing a blue shirt. Williams and the individual walked into a foyer-like area of the apartments. After they reemerged, Parker witnessed the black male hand Williams something, but he could not identify the item being exchanged. Williams then proceeded to Corporal McKemma’s undercover vehicle and Marshall rejoined the group in the parking lot. Once the arrest signal was given, his surveillance vehicle followed the undercover unit to arrest Williams. As they did so, he was able to observe the other arrest unit move in and take the black male with whom Williams had made contact into custody.

The State also called Williams as a witness. She confirmed that she had pled guilty as charged to one count of distribution of crack cocaine. In relating the events of the date in question, her testimony substantiated the State’s evidence against Marshall. Williams claimed to have known |9Marshall “for years.” She directed McKemma to Clift Street where she exited the vehicle and approached Marshall to make the buy. They retreated to the hallway of the apartment building which Williams testified belonged to an individual by the name of “Pop.” Once there, Marshall took the buy funds from Williams, retrieved crack from a hole in the wall, and gave it to Williams in a yellow bag. Williams exited the hallway with Marshall five or six feet behind her, and she proceeded to the vehicle in which she had arrived. Williams admitted to a criminal history including numerous convictions.

The defense called one witness, Eddie Gillard. Gillard testified that on January 23, 2009, he was watching a movie in a bedroom in Pop’s apartment and had a good vantage point of the apartment’s hallway. He testified that during the movie he witnessed an exchange take place in the hallway between Marshall and Williams. He testified that all he saw change hands between them was money, but he admitted he was engrossed in the movie he was watching.

This evidence, when viewed in the light most favorable to the state, is sufficient to support Marshall’s conviction. Aside from Williams’s testimony, the testimony of two of the officers and Gillard identified Marshall as the person involved in the transaction with Williams. Marshall’s possession of the buy funds is direct evidence of the sale of cocaine which is also circumstantially indicated by Williams’s actions with the officers in arranging for the transaction and her delivery of the cocaine to them immediately after encountering Marshall. Her testimony identifying |inMarshaIl as the seller is therefore well corroborated by this overall body of evidence against him, and the jury, which was aware of her plea agreement with the State, could accept the credibility of her testimony despite her role as an accomplice in the crime.

Thus, contrary to Marshall’s assertions, the State’s evidence is sufficient to establish delivery, guilty knowledge and the identity of the controlled dangerous substance beyond a reasonable doubt. This assignment of error has no merit.

Marshall also argues that the imposition of the mandatory life sentence was constitutionally excessive because all of his prior offenses were either nonviolent or minimally violent.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Thomas, 41,734 (La.App.2d Cir.1/24/07), 948 So.2d 1151, writ denied, 07-0401 (La.10/12/07), 965 So.2d 396; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, cert. denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

In this case, La. R.S. 15:529.1(A)(l)(c)(ii) mandated a life sentence without benefits for Marshall who is a fourth felony offender with two prior felonies, simple robbery and illegal discharge of a weapon, that are defined |nas crimes of violence. La. R.S. 14:2(B)(23) & (29). The mandatory life sentence the habitual offender law requires is presumptively constitutional and should be accorded great deference by the judiciary. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment, or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, he is duty bound to reduce the sentence to one that would not be constitutionally excessive.

In State v. Johnson, supra, the Louisiana Supreme Court further qualified the Dorthey holding permitting a downward departure from a mandatory minimum sentence in the context of the Habitual Offender Law. Specifically, the court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, at 676.

|12A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality. Johnson, at 676.

The present case clearly falls within the circumstances enumerated in La. R.S. 15:529.1(A)(l)(c)(ii) which mandate a sentence of life imprisonment for a fourth felony offender. Marshall’s current offense for distribution of cocaine is a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for ten years or more, and two of his prior felonies are enumerated as crimes of violence in La. R.S. 14:2. Because the mandatory life sentence is presumptively constitutional, and therefore not excessive, Marshall was obligated to “clearly and convincingly” show that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. The jurisprudence holds that he cannot do so by solely relying “upon the nonviolent nature of a crime before the court or of past crimes.” Because Marshall makes no argument beyond the alleged nonviolent nature of his offenses to justify a downward departure from the mandatory sentence, he has failed to satisfy this heavy burden. Thus, the assignment is without merit.

In a related argument, Marshall asserts that he could not be sentenced to a fine of $50,000 because of jurisprudence which holds that a defendant cannot be sentenced to jail time in default of a fine when it will cause him to be imprisoned beyond the maximum duration fixed by statute.

k,La. R.S. 40:967(B)(4)(b) provides, for imposition of a fine of not more than $50,000. With respect to the fine, however, the Louisiana Supreme Court has held that because La. R.S. 15:529.1 does not authorize imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment, a trial judge is without authority to impose a fine on resentencing under La. R.S. 15:529.1. State v. Dickerson, 584 So.2d 1140 (La.1991). When such an illegal fine has been imposed, this Court’s remedy has been to amend the sentence to delete the fine. See State v. Ealy, 44,252 (La.App.2d Cir.5/13/09), 12 So.3d 1052, writ denied, 09-1393 (La.2/5/10), 27 So.3d 298; State v. Davidson, 44,916 (La.App.2d Cir.2/10/10), 32 So.3d 290. Thus, on different grounds, Marshall’s argument has merit.

Because the trial court was without authority to impose a fine under the habitual offender statute, Marshall’s sentence is amended to delete the $50,000 fine.

Conclusion

For the foregoing reasons, Marshall’s conviction and adjudication as a fourth felony offender are affirmed. His sentence is amended to delete the imposed fine and, as amended, is affirmed.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED IS AFFIRMED.

      . McKemma testified that “buy funds” are monies which are used by undercover agents to conduct controlled purchases of narcotics and which have had their serial numbers documented for comparison with money in the possession of a suspect when arrests are made.

      . Bruce Stinson, a chemist with the North Louisiana Crime Lab, testified that the substance delivered by Williams to Officer Ferguson when she returned to the car tested positive for cocaine.


author: MOORE, J.

text:
    Dianne MILTON, Plaintiff-Appellant v. E & M OIL COMPANY & State, Farm Fire & Casualty Co., Defendant-Appellees.
    No. 45,528-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Anthony J. Bruscato, for Appellant.
    Hudson, Potts & Bernstein by Gordon L. James, Donald H. Zeigler, III, for Ap-pellees.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

h Dianne Milton appeals a judgment that dismissed her tort claim arising from a trip and fall at the Hurry Back convenience store in Monroe. Finding no manifest error, we affirm.

Factual Background

On September 24, 2005, the day that Hurricane Rita passed over Monroe, Ms. Milton went to the Hurry Back, located on Louisville Avenue near its intersection with DeSiard Street, to make a purchase. A 4 x 6, commercial grade, rubber-backed mat was laid on either side of the entrance. Because of the wet conditions, a 3 x 10 mat had been placed just past the smaller mat, roughly perpendicular to the door, instead of in its usual place in front of the cashier stations to the right. Ms. Milton, wearing a pair of synthetic slides and white socks, entered the store with no problem and stood in line for a few moments. After she paid for her purchase, she turned to her right and started to move toward the door. Somehow, her right foot caught the edge of the 3 x 10 mat and she fell to the floor, landing heavily on her right knee and elbow, and striking the side of her head against a wire display rack. She quickly got to her feet and left the store.

The incident was captured on the store’s surveillance cameras. The video is of good quality, showing no bumps or wrinkles in the mat.

The store manager, Ms. Garcia, testified that the store leased its mats from the laundry service, Cintas, which changed out mats once a week. On each delivery day, Ms. Garcia would inspect the mats and refuse any that were wrinkled or would not lie flat. She also testified that on the day of Hurricane Rita, she directed her employees to move the 3 x 10 mat to the 12central traffic portion of the store because of the excess water being tracked in by customers. The video confirms that the store was very busy that day. Data from National Weather Service showed that 3.49 inches of rain fell and winds of 43 mph were recorded at Monroe Regional Airport.

Procedural History and Trial Testimony

Ms. Milton filed this suit in November 2005 against Hurry Back’s owner, E & M Oil Co., and its insurer, State Farm. The original petition alleged that the carpet was buckled where she tripped on it; however, in a pretrial statement, after viewing the video, she revised her claim to allege that her “foot slipped under the floor mat.”

Trial was held over three days in December 2008, April and November 2009. In addition to her healthcare providers and her own testimony, Ms. Milton called State Farm’s insurance adjuster, Larry Mason, who confirmed that he investigated the incident and concluded that E & M did nothing wrong.

Ms. Milton’s lead witness was Robert L. “Bobby” Urban, the owner of Bob Moss Carpet One in Monroe. She tendered him as an “expert in floor covering in retail or commercial establishments that are commonly used in Northeast Louisiana that are suitable to be used in a retail store.” After voir dire, the district court accepted Mr. Urban “with respect to the construction and type of mats and the types of mats and the intended uses for a particular type of mat, the range of product available and the intended uses it’s designed for or can be used for in ordinary circumstances.” However, the court refused to accept him as an expert in “placement of mats | sand their use in risk prevention,” as these are matters of lay testimony under La. C.E. art. 701.

Mr. Urban testified that in his survey of over 100 similar stores in the area, he normally found mats placed on either side of the entrance, “in the walk aisles” and by the beverage areas, but he had never seen one in the checkout area except on a temporary basis. He stated that placing a mat so close to the checkout counter was hazardous because most people, after making their purchase, pivot and drag their feet toward the door; E & M objected to this point, however, as beyond Mr. Urban’s expertise, and the objection was sustained. He concluded that if the mat was necessary, it should have been placed 3 or 4 feet away from the counter or flush with it.

On cross-examination, Mr. Urban agreed that during a major rain event, he would place more mats in areas where water was being tracked in, and that on the video this particular mat stayed in place despite the heavy foot traffic that day.

After taking the case under advisement, the court rendered a judgment that simply rejected Ms. Milton’s claims. It provided no reasons for judgment, and neither side requested any. This appeal followed.

The Parties’ Positions

Ms. Milton raises two assignments of error. Her first assignment urges that the court erred in failing to find that E & M’s negligence caused her injury. She does not cite the Claims Against Merchants statute, La. R.S. |49:2800.6, but she cites several cases that utilized it to impose a duty of reasonable care, such as Hardman v. Kroger Co., 34,250 (La.App. 2 Cir. 12/6/00), 775 So.2d 1093. At oral argument, she asserted that the applicable law is La. C.C. art. 2317, which imposes liability for damage caused by “the things which we have in our custody.” She acknowledges in brief that the store manager rejected mats with “bad” wrinkles or “severe” tears, but infers that mats with moderate wrinkles and tears were routinely used and potentially hazardous. She also cites Mr. Urban’s view that the mat was “light weight, possibly worn, and improperly placed,” and that water usually does not accumulate in front of checkout counters. She adds that E & M called no expert to contradict Mr. Urban, and concludes that the defense tried to smear her as a “claims-minded” person who exaggerated her physical complaints. By reply brief, she argues that “mats aren’t supposed to do this.”

Her second assignment suggests general damages of $35,000 and special damages of $6,199.04, as itemized in her exhibits.

E & M responds that the standard of review is manifest error and that the court’s implicit findings are not plainly wrong. It shows that under the Claims Against Merchants statute, liability attaches only if the condition presented an unreasonable risk of harm to the claimant and the risk of harm was reasonably foreseeable. La. R.S. 9:2800.6 B(l). It argues that in rainy weather, no merchant can keep the floor perfectly dry, as this court stated in Hardman v. Kroger Co., supra, reversing the judgment for a store patron in a slip-and-fall case. It further argues that store employees actually complied with Mr. Urban’s expert view by placing the 3 x 10 mat in an area where Lpeople were likely to track rainwater; it would have been negligent not to place the mat there. Still further, E & M argues that the video plainly showed no wrinkles or tears in the mat, and that Mr. Urban admitted on cross-examination that using a lightweight mat is not beneath the standard of care. It concludes that the district court committed no manifest error, and does not address quantum.

Discussion

The imposition of tort liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises is governed by the Claims Against Merchants statute, La. R.S. 9:2800.6. Davis v. Wal-Mart Stores, 2000-0445 (La.11/28/00), 774 So.2d 84; Melton v. Smith, 41,456 (La.App. 2 Cir. 9/20/06), 940 So.2d 89. The statute provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person legally on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

It is undisputed that E & M created the condition which caused the damage, satisfying Subsection B(2), and on the instant facts the existence or absence of a uniform cleanup or safety procedure under Subsection B(3) is plainly inapplicable. The only issue is the unreasonable risk of harm under Subsection B(l).

There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. To assist the trier of fact, the supreme court has noted various factors for consideration: (1) the claims and interests of the parties, (2) the probability of the risk occurring, (3) the gravity of the consequences, (4) the burden of adequate precautions, (5) individual and societal rights and obligations, and (6) the social utility involved. Lasyone v. Kansas City Southern R. Co., 2000-2628 (La.4/3/01), 786 So.2d 682, and citations therein. The unreasonable risk of harm criterion is not a simple rule of law to be applied mechanically, but rather a concept embodying the judicial process of reaching an intelligent and responsible decision regarding which risks are encompassed within codal obligations, from the standpoint of justice and social utility. Id.; Mason v. Monroe City School Bd., 43,595 (La.App. 2 Cir. 9/17/08), 996 So.3d 377, 240 Ed. Law Rep. 469. Above all, the mere fact that an accident occurred because of a vice or defect does not elevate it to an unreasonably dangerous vice or defect. Lasyone v. Kansas City Southern, supra; Durmon v. Billings, 38,514 (La.App. 2 Cir. 5/12/04), 873 So.2d 872. The vice or defect must be of 17such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Lasyone v. Kansas City Southern, supra; Durmon v. Billings, supra.

The district court’s findings under the Claims Against Merchants statute are subject to manifest error review. Chunn v. Brookshire Grocery Co., 44,505 (La.App. 2 Cir. 8/19/09), 18 So.3d 179, and citations therein; Melton v. Smith, supra.

As noted, Mr. Urban testified that this grade of mat is in common use in the area. Moreover, the surveillance video, which is of impressively high resolution, clearly shows that the 3x10 mat was free of wrinkles, buckles or bumps, was lying flat on the floor, and was not fraying or unraveling. Despite the heavy foot traffic, nobody else stumbled or tripped while walking over it. In short, the probability that this particular risk might occur, a trip and fall on this mat, appears minimal at best.

Mr. Urban also testified, and common sense would confirm, that the main point is to lay the mat in an area where moisture is likely to accumulate, as near a self-serve beverage area. Ms. Milton argues strenuously that no rain was falling when she came to the Hurry Back, the 60-foot canopy in front of the store prevented rainwater from blowing in, and the 4x6 mats on either side of the entrance were sufficient; hence, the 8 x 10 mat did not need to be where it was. However, this was the day that Hurricane Rita passed over Monroe, with significant wind and rain measured at the airport. E & M’s manager anticipated this and moved the mat to the area where patrons would walk in with wet feet and dripping Isdothes. In light of the risk posed by a wet floor in a high-traffic area, the decision to move the mat addressed and offset the greater risk of slipping on a wet floor, and was an adequate precaution to protect both the store and its patrons.

Ms. Milton finally argues that “mats aren’t supposed to do this,” and we are somewhat at a loss to explain precisely how this accident occurred, except to theorize that part of her slide must have dragged across the floor and kicked up the lip of the mat. However, the mere fact that an accident occurred does not elevate the condition of the thing to an unreasonable vice or defect. Lasyone v. Kansas City Southern, supra; Durmon v. Billings, supra. This record fails to show that there was anything inherently and unreasonably dangerous about this mat. Moreover, it affirmatively shows that the decision to move it on the day of the accident was rational, outweighed the risk of taking no action, and did not create an unreasonable risk of harm. The district court’s implicit findings are not plainly wrong, and this assignment of error lacks merit.

In light of this conclusion, we pretermit any discussion of Ms. Milton’s second assignment of error concerning quantum.

Conclusion

For the reasons expressed, the judgment dismissing Ms. Milton’s claim is affirmed at her cost.

AFFIRMED.

      . Mr. Urban also criticized E & M for selecting light-to-medium weight mats, but during a recess he went downstairs and discovered that the mats by the entrance to the Ouachita Parish Courthouse are the same grade as those used at Hurry Back. He then conceded that this grade of mat was indeed acceptable.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Dedrick Jermaine JONES, Appellant.
    No. 45,476-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Carl Henry Franklin, for Appellant.
    Charles Rex Scott, II, District Attorney, for Appellee.
    Jason Brown, Suzanne Owen, Assistant District Attorneys.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

_JjThe defendant, Dedrick Jermaine Jones, appeals his conviction for possession of a firearm by a convicted felon. For the following reasons, we reverse the defendant’s conviction and sentence and render a verdict of not guilty.

FACTS

On the afternoon of March 25, 2006, members of the street-level interdiction unit of the Shreveport Police Department were patrolling trouble spots known for illegal activity. They entered the area of the Peach Street Apartments in the Martin Luther King area of Shreveport, a location known for narcotics, weapons violations, and shootings. Upon entering the apartment complex, officers observed a vehicle parked with a large number of people gathered around it. When the people saw the officers, they scattered. Officers approached the vehicle. Officer Shawn Parker found the defendant seated in the right front passenger seat. The defendant was fidgeting and appeared to be nervous. Officer Parker asked the defendant for his identification. The officer then noticed a .44 Magnum Desert Eagle handgun on the floorboard of the vehicle, at the defendant’s feet. The officer recovered and secured the weapon. The gun contained a magazine of ammunition.

The defendant was removed from the vehicle and a pat-down search was conducted. Another magazine of ammunition was found in the defendant’s pocket. The defendant was advised of his Miranda rights and was asked if he had ever been arrested before. The defendant stated that he had. He said that he did not know anything about the gun and denied knowledge of the ammunition found in his pocket. He later stated that the |2gun belonged to his girlfriend. Officer Parker checked the defendant’s criminal history and found that he had a prior felony drug charge in Florida. The defendant had been charged with possession of cocaine and possession of drug paraphernalia. Certified copies of court documents from Collier County, Florida, revealed that the defendant entered a plea of nolo contende-re to the charges and adjudication was withheld. The defendant was placed on probation for 12 months.

The defendant was arrested on the present offense and a bill of information was filed charging him with “Possession of a Firearm by a Convicted Felon,” a violation of La. R.S. 14:95.1. The defendant filed a motion to quash the charge against him, arguing that the October 25, 2004, plea in Florida could not be used as a predicate for the present charge of possession of a firearm by a convicted felon because of Boykin violations in the Florida proceedings.

On July 15, 2009, the trial court held a hearing on the motion to quash. The court noted that the defendant was represented by counsel at the time the plea was entered and no Boykin violation was proven. The trial court denied the motion to quash.

A bench trial was held on September 10, 2009. Officer Parker testified, outlining the facts set forth above which led to the defendant’s arrest and charge on the present offense. At trial, the defendant objected to the introduction of the certified copies of the Florida court records, arguing again that the state had not shown that the Florida plea was freely and |svoluntarily given. The trial court overruled the objection, noting that those issues were disposed of on the motion to quash.

Lieutenant Owen McDonnell with the Caddo Parish Sheriffs Office crime scene investigation unit testified at the trial as a fingerprint expert. He fingerprinted the defendant and determined that the defendant was the same person who entered the plea in the Florida proceedings.

After the state rested its case, the defendant again argued that there was no showing that the defendant was properly Boykinized before entering the plea of nolo contendere in Florida. The trial court took the matter under advisement. On October 14, 2009, the trial court held a hearing on the issue originally raised in the defendant’s motion to quash, whether the Florida plea was freely and voluntarily entered. The trial court ruled that the defendant did not provide any affirmative evidence to show that he was not properly Boykinized when the Florida plea was entered.

On October 20, 2009, the defendant appeared before the trial court and was found guilty as charged of possession of a firearm by a convicted felon. He waived sentencing delays and was sentenced to serve 10 years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant was ordered to pay a fine of $1,000. Costs were ordered to be paid through the inmate banking system. The defendant was ordered to serve 60 days in lieu of payment of costs.

The defendant obtained new counsel and appealed, arguing that the evidence was insufficient to support his conviction, and that the trial court |4erred in denying his motions to quash and to suppress the evidence against him.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the trial court erred in finding that the state proved beyond a reasonable doubt that he was a convicted felon at the time of his arrest in the present case for possession of a firearm by a convicted felon. The defendant stated that in the Florida proceedings, in which he was charged with possession of cocaine, he entered a plea of nolo conten-dere and adjudication was withheld. He was placed on 12 months’ probation. According to the defendant, a plea of nolo contendere accompanied by a withholding of adjudication does not constitute a conviction for the charged offense under Florida law. For the following reasons, we find that this argument has merit.

Legal Principles

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; State v. Law, 45,435 (La.App.2d Cir.8/11/10), 46 So.3d 764.

|Jn Louisiana, the offense of possession of a firearm by a convicted felon is governed by La. R.S. 14:95.1, which provides in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon. [Emphasis supplied.]

To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Ray, 42,096 (La.App.2d Cir.6/27/07), 961 So.2d 607; State v. Law, supra.

Discussion

In the present case, the defendant has raised the issue of whether he was actually convicted of a drug offense in Florida which could serve as a predicate for the offense charged here. The state argues that the defendant’s complaint that he was not convicted of the possession of cocaine charge in Florida should have been raised before the trial court in a motion to quash under La.C.Cr.P. art. 485. The state urges that all grounds for a motion to | r,quash not properly raised in the trial court are waived and that this issue is not properly before this court on appeal. As set forth above, the proof of a prior enumerated felony is an element necessary to support a conviction of possession of a firearm by a convicted felon under Louisiana law. Without proof of this element of the offense, the evidence against the defendant is not sufficient to sustain a conviction. The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. La. C. Cr. P. arts. 531-534; State v. Perez, 464 So.2d 737 (La.1985). It is treated much like an exception of no cause of action in a civil suit. State v. Perez, supra.

In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Perez, supra; State v. Thomas, 28,790 (La.App.2d Cir.10/30/96), 683 So.2d 1272, writ denied, 96-2844 (La.4/25/97), 692 So.2d 1081. See also State v. M.J.S., 2005-380 (La.App. 3d Cir.11/2/05), 916 So.2d 1215; State v. Mulvihill, 03-691 (La.App. 5th Cir.10/28/03), 860 So.2d 266; State v. Ray, 1998-664 (La.App. 3d Cir.10/28/98), 721 So.2d 974.

The defendant’s challenge to the sufficiency of the evidence to support his conviction is an issue properly raised in the trial court by a post verdict judgment of acquittal under La. C. Cr. P. art. 821. Although no such 17motion was filed here, this court will consider sufficiency arguments in the absence of such a motion. State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Collier, 39,650 (La.App.2d Cir.7/27/05), 909 So.2d 23, writ denied, 2006-0308 (La.9/1/06), 936 So.2d 196. We conclude that the issue of the sufficiency of the evidence is properly before us for review.

In October 2004, in Florida, the defendant entered a plea of nolo contende-re to a charge of possession of cocaine, which is a felony in that state. Possession of cocaine is also a felony in Louisiana and is one of the offenses that may serve as a predicate for our statute prohibiting the possession of a firearm by those convicted of certain enumerated felonies. La. R.S. 40:967; La. R.S. 14:95.1. However, the documents received from Florida reflect that the trial court specifically chose to withhold adjudication rather than adjudicating the defendant guilty; the defendant was placed on probation for 12 months.

At the time the defendant entered his nolo contendere plea in Florida, Fla. Stat. § 948.01 provided, in pertinent part:

(2) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place the defendant upon probation. ... [Emphasis supplied.]

As observed by the Florida Supreme Court, the definition of the term “conviction” as used in Florida law is a “chameleon-like” term that has |sdrawn its meaning from the particular statutory context in which the term is used. Raulerson v. State, 763 So.2d 285 (Fla.2000); State v. McFadden, 772 So.2d 1209 (Fla.2000); State v. Finelli, 780 So.2d 31 (Fla.2001).

The court in State v. Keirn, 720 So.2d 1085 (Fla. 4th DCA 1998), review granted, 718 So.2d 168 (Fla.1998), decision approved, 763 So.2d 285 (Fla.2000), stated:

The judicial search for the meaning of the term is not confined to modern times. Over 100 years ago, the Florida Supreme Court observed that in its “ordinary sense,” the term “conviction” “means the ascertainment of the guilt of a party, either by a plea of guilty, or by the verdict of a jury.” State ex rel. Owens v. Barnes, 24 Fla. 153, 4 So. 560, 561 (1888). The supreme court also recognized that “numerous authorities” held that a “judgment or sentence [was] a necessary component part of ‘conviction.’ ” Id.
Over time, the most frequent construction of a statute’s use of the term “conviction” has required a trial court’s adjudication of the defendant’s guilt after a plea or verdict. See State v. Snyder, 673 So.2d 9 (Fla.1996) (construing § 790.23, Fla. Stat. (1991)); Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1962) (construing § 323.31(3)(a) 2, Fla. Stat. (Supp. 1960)); Weathers v. State, 56 So.2d 536 (Fla.1952) (construing § 776.02, Fla. Stat. (1949)); State v. Smith, 160 Fla. 288, 34 So.2d 533 (1948) (construing § 775.09, Fla. Stat. (1941)); Timmons v. State, 97 Fla. 23, 119 So. 393 (1929) (construing section 5486, Rev. Gen. Stats., 7630 of Comp. Gen. Laws of 1927); Smith v. State, 75 Fla. 468, 78 So. 530 (1918) (construing §§ 3556, 3556a, General Statutes 1906, Florida Compiled Laws 1914); Childers v. Dep’t of Envtl. Protection, 696 So.2d 962 (Fla. 1st DCA 1997) (construing § 370.092(8)(b), Fla. Stat. (1995)); Castillo v. State, 590 So.2d 458 (Fla. 3d DCA 1991) (construing § 790.23, Fla. Stat. (1989)); Clinger v. State, 533 So.2d 315 (Fla. 5th DCA 1988) (construing § 939.01(1), Fla. Stat. (1987)); Fla.R.Crim.P. 3.670.
Where the statutory context requires it, the term “conviction” has been construed broadly to include dispositions where there has been no adjudication of guilt. Certain rules and statutes specifically include a withhold of adjudication within the statutory definition of a “conviction.” See Jones v. State, 502 So.2d 1375, 1377 (Fla. 4th DCA 1987); § 921.0011(2), Fla. Stat. (1995); Fla.R.Crim.P. 3.703(d)(6).
In sum, proper construction of the term “conviction” requires a close examination of its statutory context and legislative history and development.

Under Florida law, Fla. Stat. § 790.23, which makes it illegal for convicted felons to possess firearms in Florida, an adjudication of guilt is required to qualify as a “conviction.” At the time the defendant entered his nob contendere plea to possession of cocaine in Florida, Fla. Stat. § 790.23 provided:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state;
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;
(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;
(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or
(e)Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.
(2) This section shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored.
[ m(S) Any person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In State v. Menuto, 912 So.2d 603 (Fla. 2d DCA 2005), review denied, 935 So.2d 1220 (Fla.2006), the court considered the difference in Fla. Stat. § 790.23(l)(a), dealing with adult offenders, and Fla. Stat. § 790.23(l)(b), dealing with juvenile offenders. For an adult offender, the statute requires a conviction of a felony, whereas for a juvenile offender, commission of a delinquent act which would be a felony is sufficient. For an adult offender, an adjudication of guilt is necessary before a prior felony can be considered a “conviction” and can be used as a predicate offense for possession of a firearm by a convicted felon. The court stated that, for purposes of Fla. Stat. § 790.23(l)(a), “conviction” means “adjudication of guilt” — a mere withhold of adjudication of guilt of the prior offense will not suffice. State v. Menuto, supra, citing Malcolm v. State, 605 So.2d 945 (Fla. 3d DCA 1992); Castillo v. State, 590 So.2d 458 (Fla. 3d DCA 1991); Burkett v. State, 518 So.2d 1363 (Fla. 1st DCA 1988).

In Malcolm v. State, supra, the prosecution charged the defendant with possession of a firearm by a convicted felon, alleging that he had a prior conviction for the felony crime of unlawful sale of marijuana. The defendant pled guilty to the firearms charge, but later attacked his conviction alleging that he was not, in fact, a convicted felon at the time he possessed the firearm. In 1982, the defendant had entered a plea of guilty to the felony charge of unlawful sale of less than 20 grams of | n marijuana and the misdemeanor offense of unlawful possession of less than 20 grams of marijuana. The trial court withheld adjudication of guilt as to the felony offense. Based upon these facts, the court found that the defendant was not convicted of the offense. Because the defendant was never convicted of a felony, he could not be convicted of unlawful possession of a firearm by a convicted felon. The court found that the defendant was innocent of the firearm charge.

In Castillo v. State, supra, the defendant appealed his conviction of several offenses, including possession of a firearm by a convicted felon. The court noted that Fla. Stat. § 790.23 makes it unlawful for any person who has been convicted of a felony to have in his possession any firearm. The defendant had a prior criminal record, but the prior proceedings resulted in the withholding of adjudication. The court held that for purposes of the statute, “conviction” means an adjudication of guilt. Where adjudication of guilt has been withheld, the offender is not a convicted felon. Therefore, the defendant’s conviction for possession of a firearm by a convicted felon was reversed.

In Louisiana, “convicted” means adjudicated guilty after a plea or after trial on the merits. La. C. Cr. P. art. 934(3). At present, our law does not contain a provision similar to Fla. Stat. § 948.01, which would allow the |12court to withhold an adjudication of guilt. However, Louisiana previously had a statute allowing a conditional discharge for first offense possession of certain drugs. Former La. R.S. 40:983 provided:

A. Whenever any person who has not previously been convicted of any felony under any law or any misdemeanor under this Part pleads guilty to or is convicted of having violated R.S. 40:966(0(3), R.S. 40:967(0, R.S. 40:968(0, R.S. 40:969(0, or R.S. 40:970(0, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer proceedings and place him on probation upon such reasonable terms and conditions as may be required. Among such conditions the court shall order that the defendant perform not less than one hundred hours of | ^court-approved community service that may include manual labor.
B. Upon the defendant’s violation of any of the terms or conditions of his probation, the court may revoke his probation, enter an adjudication of guilt, and impose sentence upon such person. The entering of the adjudication of guilt shall be retroactive to the date the defendant pled guilty or was convicted under Subsection A of this Section, but the imposition or execution of sentence shall not be retroactive.
C. Upon fulfillment of the terms and conditions of probation imposed in accordance with this Section, the court shall discharge such person and dismiss the proceedings against him.
D. Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.
E.Discharge and dismissal under this Section may occur only once with respect to any person. [Emphasis supplied.]

While this provision was in effect, jurisprudence in this state held that a plea made under the provisions of former La. R.S. 40:983 could not be considered an adjudication of guilt and could not serve as the basis for a charge of being a convicted felon in possession of a firearm. See State v. Randall, 464 So.2d 971 (La.App. 4th Cir.1985); State v. Scott, 95-0880 (La.App. 1st Cir.6/28/96), 677 So.2d 156; State v. Rowel, 1997-1550 (La.App. 4th Cir.3/31/99), 732 So.2d 123.

We are aware of Florida jurisprudence dealing with different statutes wherein the adjudication of guilt is not a necessary component of the definition of a “conviction.” See State v. Gazda, 257 So.2d 242 (Fla.1971), construing Fla. Stat. § 775.14; Montgomery v. State, 897 So.2d 1282 (Fla.2005), construing Fla. Stat. § 921.0021 and Fla. R.Crim. P. 3.702(d)(2); and Raulerson v. State, supra, construing Fla. Stat. § 322.01(10).

While the definition of a “conviction” under Florida law varies according to the statutory and historical context, the jurisprudence of Florida is clear that for purposes of possession of a firearm by a convicted felon, a nolo contendere plea followed by a withholding of adjudication of guilt is not a conviction in that state. The conviction of a prior enumerated felony is one of the elements of proof necessary to obtain a conviction of possession of a firearm by a convicted felon in this state. Because the defendant was not “convicted” of possession of cocaine under Florida law, that charge may not be used as a predicate offense for the charge of possession of a firearm by a convicted felon in Louisiana. Accordingly, the evidence presented by the prosecution in this matter is insufficient to support the conviction of possession of a firearm by a convicted felon. Therefore, we must reverse the defendant’s conviction and sentence on this charge and enter a verdict of not guilty. Because we reverse the conviction, we do not reach consideration of the defendant’s assignments of error concerning his motion to quash and to suppress the evidence against him.

CONCLUSION

For the reasons stated above, we find the evidence presented insufficient to support the conviction of the defendant, De-drick Jermaine | 15Jones, for possession of a firearm by a convicted felon. Accordingly, we reverse the conviction and sentence and render a verdict of not guilty.

REVERSED; VERDICT OF NOT GUILTY ENTERED.

      . See also State v. Snyder, 673 So.2d 9 (Fla.1996), holding that for purposes of Fla. Stat. § 790.23, an individual is "convicted” from the point of being adjudicated guilty. See also State v. McFadden, supra, in which the Florida Supreme Court was called upon to construe Fla. Stat. § 90.610(1), dealing with the use of prior convictions for impeachment purposes and determined that, for purposes of impeachment, a judgment of the court adjudicating the defendant guilty was necessary to constitute a "conviction.”

      . La. C. Cr. P. art. 893(E)(1)(a), dealing with suspension and deferral of sentence and probation in felony cases, provides:
      When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
      This provision allows for deferral of sentence after conviction.

      La. C. Cr. P. art. 893(E)(3) states:
      (a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant’s sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.
      (b) The court may extend the provisions of this Paragraph to any person who has previously successfully completed a drug court program and satisfactorily completed all other conditions of probation.
      (c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of R.S. 44:9 and may occur only once with respect to any person.

      . Former La. R.S. 40:983 was repealed by Acts 1995, No. 1251, § 2.


author: WILLIAMS, J.

text:
    CITY OF SHREVEPORT, Plaintiff-Appellee v. SGB ARCHITECTS, L.L.P., et al, Defendant-Appellant.
    No. 45,458-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      William J. Hill, III, Donald L. Brice, Jr., for Appellant, SGB Architects, L.L.P.
    Neil T. Erwin, for Appellee, City of Shreveport.
    Julie M. Lafargue, Bruce M. Flowers, Michael C. Christman, for Third-Party Appellee, Tetra Tech, Inc.
    Adrian G. Nadeau, for Third-Party Ap-pellee, Balar Associates, Inc.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   WILLIAMS, J.

1 jThe defendant, SGB Architects, L.L.P., appeals a partial summary judgment in favor of third-party defendant, Tetra Tech, Inc. (“Tetra”). The district court found that Tetra’s liability, if any, to defendant for damages could not exceed the amount of $2,860, pursuant to the limitation of liability provision in the parties’ contract. For the following reasons, we affirm.

FACTS

In April 1997, the City of Shreveport (“the City”) retained SGB Architects, L.L.P. (“SGB”) to design a new community center at David Raines Park (herein referred to as the Center or Project). In September 1998, SGB signed a contract with Tetra (known at the time as Maxim Technologies, Inc.). Under the contract, Tetra agreed to perform tests of subsurface soil samples and prepare a report with recommendations for the foundation design of the Center, in return for compensation of $2,860. The two-sided contract, naming SGB as “Client,” was signed on the front side by Clarence Babineaux, a partner of SGB, and Lloyd Hoover, a manager of Tetra. Printed below the signature lines was a statement, “By signing this Agreement, Client assents to the terms and conditions set forth above and on the reverse side hereof.” Among the provisions contained on the reverse side of thé contract, Paragraph 10 states:

Limitation of Liability. Client hereby agrees, to the fullest extent permitted by law, that Consultant’s total liability to Client for any and all injuries, claims, losses, expenses or damages whatsoever arising out of or in any way related to the Project or this Agreement, from any cause or causes, including but not limited to, Consultant’s negligence, errors, omissions, strict liability, breach of contract, or otherwise, will not exceed (i) the total compensation received by Consultant under the Agreement, or (ii) $50,000, whichever is the lesser amount.

|2On October 16, 1998, Tetra issued its subsurface exploration report, which was part of the information used by SGB in preparing the plans and specifications for construction of the Center. In January 2001, the Center was substantially completed, but later that year problems with vertical movement of the floor slab were discovered when the front entry doors began to stick and the lobby floor became uneven.

In November 2005, the City filed a petition for damages against the defendants, SGB, its insurer, Lafayette Insurance Company, and Melvin Butler, Inc., the general contractor for the Project. SGB then filed a third party demand alleging that Tetra was negligent in performing the soil tests and in recommending a foundation design. In March 2007, Tetra filed a motion for summary judgment seeking dismissal of SGB’s claims and SGB filed an opposition. Subsequently, the district court denied Tetra’s motion.

In June 2009, Tetra filed a motion for partial summary judgment on the grounds that the parties’ contract limited Tetra’s liability to SGB for any damages arising out of the Project to an amount not exceeding $2,860. SGB filed an opposition to partial summary judgment, alleging that it had never agreed to the liability limitation provision in the contract.

After a hearing, the district court granted partial summary judgment in favor of Tetra, finding that the contractual provision limiting liability was not ambiguous. The court rendered judgment ordering that Tetra’s liability, if any, for damages arising out of the contract with SGB shall not exceed the amount of $2,860. The district court designated the judgment as a final, appealable judgment under LSA-C.C.P. art. 1915(B). SGB appeals the | judgment.

DISCUSSION

SGB contends the district court erred in granting Tetra’s motion for partial summary judgment. SGB argues that a material issue of fact exists as to whether SGB agreed to be bound by the provisions contained on the reverse side of the contract because SGB did not initial that side of the document.

Summary judgment shall be granted if the pleadings, depositions, admissions and any affidavits show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of the appropriateness of summary judgment. King v. Parish National Bank, 04-0387 (La.10/19/04), 885 So.2d 540. The mover has the initial burden of proving that no genuine issue of material fact exists. If the mover makes a prima facie showing in support of the motion, then the burden shifts to the nonmov-ing party to present evidence demonstrating that a material fact issue remains. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

A contract is an agreement by-two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art. 1906. Under Louisiana law, the formation of a valid and enforceable contract requires capacity, consent, a certain object and lawful cause. Worley v. Chandler, 44,047 (La.App.2d Cir.3/4/09), 7 So.3d 38. Ordinarily, the |4meaning and intent of the parties to a written instrument should be determined within the four corners of the document and its terms cannot be explained or contradicted by extrinsic evidence. Scott v. Red River Waterway Commission, 41,009 (La.App.2d Cir.4/12/06), 926 So.2d 830. A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand its terms. First South Farm Credit, ACA v. Gailliard Farms, Inc., 38,731 (La.App.2d Cir.8/18/04), 880 So.2d 223.

In the present case, SGB argues that it is not bound by the liability limitation because it did not initial the reverse side of the contract. However, the contract does not require that SGB initial the reverse side of the document in order to be bound by the limitation of liability provision. Rather, the statement printed below the signature line advised SGB that by “signing” the agreement, SGB agreed to the terms set forth on both sides of the contract. The two cases cited in SGB’s brief to support its position involved the at-will employment relationship, which is not an issue in this case. The evidence submitted supports a determination that SGB signed the agreement and was bound by all of the terms contained in the contract.

SGB also contends the district court erred in finding that the contract language was unambiguous. SGB argues that the contract should be interpreted as not limiting Tetra’s liability because the language of paragraph 8 regarding the availability of Tetra’s professional liability insurance coverage is inconsistent'with the liability limitation provision.

IsThe interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and do not result in absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. arts. 2047, 2050. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. LSA-C.C. art. 2056.

In the present case, paragraph 8 of the contract provides:

In addition to any other insurance which Consultant may choose to carry, Consultant shall, at its sole expense, maintain in effect during the performance of the Services under this Agreement insurance coverages as follows: Workers’ Compensation as required by state law; General Liability and Automobile Liability with a combined single limit of $1,000,000 per occurrence; Professional Liability, including pollution liability $1,000,000 for claims made against Consultant for negligent errors or omissions in performance of services hereunder. Consultant shall deliver to Client certificate of Insurance, if requested by Client.

In paragraph 8, Tetra agreed to carry various types of insurance, including liability coverage for negligence claims against Tetra arising from the performance of its services. In contrast, paragraph 10 applies to a claim for damages due to an alleged breach of the parties’ contract and limits the liability of Tetra to a specific monetary amount. SGB’s third party de-mandas based on Tetra’s obligations under the terms of the contract and is not a negligence claim for damages. Thus, paragraph 10 is applicable to the present situation and is not inconsistent with the other contractual provisions. Consequently, we cannot say the district court erred in finding that pursuant to the contract, Tetra’s liability to SGB would not exceed the amount of $2,860 in damages. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s partial summary judgment in favor of Tetra Tech, Inc., is affirmed. Costs of this appeal are assessed to the appellant, SGB Architects, L.L.P.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana in the Interest of D.E.
    No. 45,809-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.
    Rehearing Denied Oct. 28, 2010.
    George E. Harp, Justin H. Courtney, for Confidential Party D.E.
    Ross E. Shacklette, for Appellants, Charlie Gentry & Janet Gentry.
    W. Glen Mangham, for Plaintiff-Appel-lee — State of Louisiana Department of Social Services.
    Kammer & Huckabay by Pugh T. Huck-abay, III, for Defendant-Appellee, Miranda Jo, Gentry Burchett.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche by Carey T. Schimpf, for Defendant-Douglas Joe “DJ” Estey, Jr.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

[t Charlie and Janet Gentry, grandparents of the minor child D.E., appeal the judgment of the Caddo Juvenile Court, Parish of Caddo, State of Louisiana, removing them from the litigation and awarding domiciliary custody of the minor child to Douglas Estey, Jr., the child’s father. For the following reasons, we dismiss the appeal.

Facts

Miranda Gentry Burchette (“the mother”) and Douglas “D.J.” Estey, Jr. (“the father”) are the biological parents of the minor child D.E. who is currently 11 years old. Both parents have a history of substance abuse and the two collectively decided to leave D.E. in the care of the maternal grandparents, Charlie and Janet Gentry (“the Gentrys”), when the child was a baby. This decision was followed by an Interim Order by the First Judicial District Court for Caddo Parish, Louisiana granting the Gentrys custody of D.E.

In early 2006 the Gentrys attempted to adopt D.E. While the mother consented to the adoption, the father of D.E. opposed it and sought to modify the custody decree that was currently in place, thereby staying the adoption proceeding. This custody litigation continued intermittently through 2009 in the district court.

The child remained in the custody and care of the Gentrys until D.E.’s paternal grandfather, Douglas Estey, Sr., filed a complaint with the Office of Community Services (“OCS”) alleging lack of supervision, physical abuse, and sexual abuse of both D.E. and his half sister J.H., who was also in the custody of the Gentrys. Both children were subsequently removed from the | gGentrys’ home and placed in the custody of the Department of Social Services (“DSS”) pursuant to an Instanter Order.

At a hearing on October 7, 2009, the juvenile court continued the custody of both children with the State while recommending foster care placement. On October 27, 2009, the State filed a petition alleging that the children were in need of care. At the appearance to answer the allegations, the Gentrys, the mother, and Jason Henley (the father of J.H.), denied the allegations while the father of D.E. admitted the children were in need of care and moved for custody of D.E. On December 9, 2009, the Gentrys and the mother jointly filed a motion for return of child custody requesting that custody of J.H. be returned to the mother. The juvenile court granted this motion and dismissed the child in need of care proceedings in regard to J.H. The Gentrys then stipulated, without admitting the allegations against them, that D.E. was in need of care.

A disposition hearing followed on January 13, 2010. At this hearing the juvenile court found that the Gentrys were no longer the legal custodians of the children, nor were they seeking custody of the children, and were, therefore, not parties to the proceedings. They were subsequently asked to leave the courtroom but remain at the courthouse as potential witnesses for the hearing. Counsel for the Gentrys objected to this classification, claiming that the Gentrys did in fact seek custody of D.E. The juvenile court then questioned a representative from OCS to determine what the Gentrys had done in furtherance of attempting to regain custody of D.E. The court found the Gentrys had not complied with the case plan and also 1¡¡that placement with the Gentrys was not recommended by OCS. Accordingly, the juvenile court sustained its ruling that the Gentrys were not parties to the proceeding. The disposition hearing ensued.

On March 12, 2010, the juvenile court rendered a written judgment of disposition placing D.E. in the joint custody of both his mother and his father, with his father as the domiciliary/custodial parent. Subsequently D.E. was moved to Indiana to reside with his father. The Gentrys filed this appeal which was answered by D.E. and the father of D.E. in opposition. The mother did not appeal the ruling.

Discussion

The right to appeal a juvenile court proceeding is conferred upon a party to the proceedings or any other party in interest. La. Ch. C. art. 331. The right to appeal, therefore, is not conferred upon nonparties to the proceeding.

It is undisputed that the Gentrys have been very instrumental in D.E.’s life: they provided a home for the child from the time he was very young; they bonded with the child; and, they actively participated in his life. However, this involvement does not necessarily confer upon the Gentrys the status of parties to the juvenile proceedings regarding him. Once there was an allegation made that the child was in need of care, and the Gentrys stipulated that the child was in fact in need of care while in the Gentrys’ custody, the child was removed from the custody of the Gen-trys and placed in the custody of the State of Louisiana pending a dispositional hearing. At this point the Gentrys were no longer parties to the proceeding as they were |4not parents, nor did they have custody of the child. The juvenile court properly excluded the Gentrys from the disposition proceeding as they were no longer parties. La. Ch. C. art. 679.

It would have been at this point that the Gentrys should have intervened if they wished to become parties to the proceeding. The juvenile court may allow any interested party for good cause shown to intervene in a child in need of care proceeding. La. Ch. C. art. 697. The Gen-trys did no such thing. When the Gentrys’ counsel stated that the couple wished to be considered for custody of D.E., this was not itself an intervention, and, therefore, is not enough for the Gentrys to be deemed parties to the proceedings. If the Gentrys had attempted to intervene and were then denied this opportunity through the discretion of the juvenile court, this decision by the juvenile court could have been raised and considered on appeal. However, because no action to intervene was taken, the Gentrys were not parents to the minor child, and the Gentrys no longer had custody of the minor child, they were not parties to the proceeding and have no right to an appeal before this court.

While it may appear that La. C.C.P. art. 2086 confers upon a person who could have intervened the right to appeal, there is an additional requirement. The person must also be aggrieved. Emmons v. Agricultural Ins. Co. 245 La. 411, 425, 158 So.2d 594, 599 (1963). As stated in Emmons, supra at 425, 158 So.2d 594, “The sole object of an appeal is to give an aggrieved Dparty to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court ...” Here, the Gentrys were not recommended for placement by OCS and they were the very caretakers when the abuse occurred by which D.E. was deemed to be in need of care. Additionally, the father of D.E. has made material changes in his life and in his relationship with his son. When a child is found to be in need of care, the overriding consideration for placement is the health and safety of the child. La. Ch. C. art. 681. The juvenile court determined that the child’s health and safety were best served by placement with the parents. Therefore, because the Gentrys were not considered for placement, the decision to place the child with his parents does not injure the Gentrys. The Gentrys were not aggrieved by the decision of the juvenile court disposition hearing; thus, they lack the right to appeal on this theory as well.

As the juvenile court stated in its comments after the granting of the motion and order for appeal:

The Court grants the appeal of the Judgment of Adjudication and Disposition because the Motion for Appeal was timely filed within 15 days of issuance of notice of the Amended Judgment. However, the Court notes that the maternal grandparents, Charlie and Janet Gentry, stipulated to the Judgment of Adjudication. Moreover, following adjudication and removal of the children from the Gentry’s [sic ] custody, the Court found the Gentrys not to be proper parties to the litigation, as they were no longer guardians of the children and they were not “parents” as defined by the Children’s Code. The Gentrys neither participated in, nor were their rights effected [sic ] by the disposition. (Citations omitted; original emphasis).

| ¡/Therefore, under La. C.C.P. art. 2162, because the appellant has no right to appeal, this appeal is dismissed. As a result of this dismissal a discussion of the other assignments of error raised by the Gentrys is pretermitted.

Conclusion

Considering the foregoing, the appeal by Charlie and Janet Gentry is dismissed. All costs of these proceedings are assessed to the Gentrys.

APPEAL DISMISSED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Juvenile court proceedings are governed by the Louisiana Children’s Code; however, when procedures are not provided for by the Children’s Code, the Louisiana Code of Civil Procedure governs. La. Ch. C. Art 104.