author: TERRI F. LOVE, Judge.

text:
    Mary C. PORTER v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CA-0101.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 2011.

      Al J. Robert, Jr., Law Office of Al J. Robert, Jr., LLC, New Orleans, LA, for Mary Porter.
    David K. Persons, Darren A. Patín, Hai-ley McNamara Hall Larmann & Papale, L.L.P., Metairie, LA, for Louisiana Citizens Insurance Property Corporation.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

_jjThis appeal arises from property damage resulting from Hurricane Katrina. The plaintiff submitted her claims against Louisiana Citizens Property Insurance Corporation to mediation and settled. However, the plaintiff later sued asserting that all of her insurance claims were not covered in the settlement. The trial court found that the settlement barred the plaintiff from further claims, granted an exception of res judicata, and dismissed the plaintiffs claims. We find that the settlement was not introduced into evidence at the hearing on the exception, which created an incomplete record. Therefore, we vacate the trial court’s judgment and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louisiana Citizens Property Insurance Corporation (“LCPIC”) insured Mary Porter’s residential property with an “all risk” policy during Hurricane Katrina. After filing a damage claim with LCPIC, Ms. Porter participated in mediation, pursuant to the Louisiana Mediation Act, and settled her claims on July 28, 2006. See La. R.S. 9:4101, et seq. However, on October 7, 2008, Ms. Porter filed a petition for damages against LCPIC, which alleged that LCPIC tendered partial payment pursuant to the settlement and that dwelling damages were not included in 12the settlement. LCPIC filed a peremptory exception of res judicata, or, alternatively, a motion to enforce settlement, which the trial court granted. Ms. Porter’s devolu-tive appeal followed.

Ms. Porter asserts that LCPIC failed to carry its evidentiary burden to establish that Ms. Porter’s claims were perempted, that the trial court abused its discretion by ruling on LCPIC’s exception before giving Ms. Porter additional time for discovery, and that the trial court erred by dismissing Ms. Porter’s claims for allegedly unpaid damages to her dwelling because the claims were not included in the settlement agreement.

STANDARD OF REVIEW

“The standard of review of a peremptory exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct.” Fletchinger v. Fletchinger, 10-0474, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 403, 405. “[T]he doctrine of res judicata is strict! juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application.” Id., 10-0474, p. 5, 56 So.3d at 406. However, “[t]he trial court’s finding as to intent of the parties is a finding of fact.” Pat O’Brien’s Bar, Inc. v. Franco’s Cocktail Products, Inc., 615 So.2d 429, 432 (La.App. 4 Cir.1993).

RES JUDICATA

“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.” La. C.C.P. art. 921. “The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The exception of res judicata is | aproperly raised as a peremptory exception. La. C.C.P. art. 927. “The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.” La. C.C.P. art. 928(B). “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. If the grounds of the peremptory exception cannot be removed by amending the petition, the claims shall be dismissed. La. C.C.P. art. 934.

The Louisiana statute on res judi-cata, La. R.S. 13:4231, provides:

[ejxcept as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

“A settlement agreement is res judicata as between the parties and is entitled to the same effect as a judgment.” Louisiana Workers’ Comp. Corp. v. Betz, 00-0603, p. 5 (La.App. 4 Cir. 4/18/01), 792 So.2d 763, 766.

Evidentiary Burden

Ms. Porter contends that “documents attached to memoranda do not | constitute evidence and cannot be considered on appeal” and that LCPIC failed to introduce exhibits attached to its exception into evidence. Therefore, Ms. Porter asserts that LCPIC failed to meet its eviden-tiary burden.

“[Tjhe burden of proof is on” the party urging the exception of res judicata “to prove its essential elements by a preponderance of the evidence.” Betz, 000603, p. 3, 792 So.2d at 765. If “all essential elements are present and each necessary element has been established beyond all question,” res judicata may be invoked. Id.

Ms. Porter’s assertion has merit. “Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. The Louisiana Supreme Court stated that “[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Id. “Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.” Id. See also Triss v. Carey, 00-0608, p. 3 (La.App. 4 Cir. 2/7/01), 781 So.2d 613, 615; Argence L.L.C. v. Box Opportunities, Inc., 07-0765, p. 4 (La.App. 4 Cir. 3/13/08), 980 So.2d 786, 789 n. 3; Jackson v. United Servs. Auto. Ass’n Cas. Ins. Co., 08-333, pp. 6-7 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 516; Wilson v. Beechgrove Redevelopment, L.L.C., 09-1080, p. 6 (La.App. 5 Cir. 4/27/10), 40 So.3d 242, 245.

In the case sub judice, LCPIC failed to introduce the settlement into evidence at the hearing. Accordingly, we vacate the trial court’s judgment and remand for an evidentiary hearing as well as a redetermi-nation of the exception of res judicata based on a complete record.

\ hDECREE

For the above mentioned reasons, we find that LCPIC failed to introduce the settlement into evidence. Therefore, we vacate the judgment and remand for proceedings consistent with this opinion.

VACATED AND REMANDED


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gary GREEN.
    No. 2011-KA-0094.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew Caplan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hThe State appeals the ruling of the trial court granting the defendant? s motion to quash. For the following reasons we find that the trial court abused its discretion, reverse the ruling and remand the matter for further proceeding consistent with this opinion.

STATEMENT OF CASE

On August 15, 2006, following surveillance conducted by the New Orleans Police Department in the 800 block of Newton Street, New Orleans, Louisiana, the defendant was arrested and charged with possession of crack cocaine. A bill of information was filed against the defendant on March 9, 2007, and the case was allotted to Section “K” of the Orleans Parish Criminal District Court. On May 4, 2007, the defendant pled not guilty and was notified in open court to appear again in court for a status hearing on June 1, 2007, on that date the defendant’s counsel failed to appear and a new status date was scheduled for June 6, 2007. The defendant failed to appear on that date and a capius was issued for his arrest and the matter was continued without date.

The defendant was arrested on February 22, 2010, and was released on his original bond on February 24, 2010. Outstanding warrants were recalled. Motions 12were set for April 1, 2010, but the court was to be closed on that date. A new notice was sent out on March 8, 2010, advising the defendant that April 23, 2010, had been set as the new motion hearing date. The defendant failed to appear on April 23, 2010, and a capias was issued. On May 26, 2010, and July 2, 2010, the defendant was present in court without counsel present. Motion hearings were set for July 27, 2010 but on that date a trial was in progress, and the matter was again reset to September 2, 2010. On that date, the trial court found no probable cause. On September 30, 2010, the defendant filed a motion to quash. Upon the joint motion of the State and the defendant the trial was continued to November 3, 2010.

At the hearing of November 3, 2010, the defendant, as a basis for his motion to quash, cited La. C. Cr. P. art. 532(7) which states:

A bill of information may be properly quashed when:
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.

The trial court granted the motion to quash at the hearing.

DISCUSSION

La.C.Cr.P. art. 579 governs the interruption of the time limitations upon the commencement of trial, and provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
U(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by .Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

The issue before this Court is whether the record reflects that the defendant received sufficient notice, during his June 1, 2007 court appearance, of the June 6, 2007 hearing date, sufficient to interrupt the running of prescription. La.C.Cr.P. art. 579 allows for the interruption of prescription if the State can show that one or more of those factors set forth in article 579 are present.

The defendant asserts that the law provides the State two years from the date of the formal charge in which to try the defendant for possession of cocaine under La.C.Cr.P. art. 578(A)(2). The defendant argues that he made an appearance as required on June 1, 2007, but his counsel was not present; however, the minute entry reflects that the defendant provided the court with a change of address and that he was notified of a July 6, 2007 status hearing. The clerk also issued a notice to the defendant’s counsel. The record before this Court contains no transcript for that date.

The defendant argues that the chronology of events demonstrates that the two-year time limitation for trying this possession of cocaine case has expired and therefore, the State is precluded from prosecuting the defendant pursuant to La.C.Cr. Pro. Art. 578.

In State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1287, the Supreme Court explained the mechanics of interruption and suspension in the following manner:

14An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if the defendant “cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim. Proc. Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La. C.Cr.P. art. 580.

The State offered a minute entry as proof that the defendant received actual notice on June 1, 2007, of hearing the July 6, 2007, thereby interrupting the running of prescription. The State argues that on that basis, it was under no obligation to search for appellee. The State supports its argument and cites the case of State v. Romar, 2007-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725, in which the Supreme Court opined:

As a general matter, the state has two years from the institution of prosecution to begin trial of a non-capital felony. La.C.Cr.P. art. 578(A)(2). The statutory periods of limitation “enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286; see United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971)(statutes imposing time limits on trial “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.”). That period may be enlarged as the result of suspension, La.C.Cr.P. art. 580, or interruption, La.C.Cr.P. art. 579, but in either case, the state “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La. C.Cr.P. art. 578].” State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832 (internal quotation marks and citations omitted). That burden ordinarily “ ‘requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.’ ” State v. Bobo, 03-2362, p. 5 (La.4/30/04), 872 So.2d 1052, 1055-56 (quoting Chad-bourne).

| sHere, because the defendant received actual notice in open court, the time limitations were interrupted until he appeared in court on February 24, 2010. The State was under no obligation to exercise due diligence to find him during that time.

CONCLUSION

The fact that the defendant received notice in open court on June 1, 2007, as substantiated by the court record, and did not appear as directed on July 6, 2007, must be interpreted as an absence from court sufficient to interrupt the running of prescription. Thus, the record demonstrates that sufficient notice was given to the defendant.

Accordingly, we reverse the trial court’s ruling and remand the case for further proceedings.

REVERSED AND REMANDED.

      . La.C.Cr.P. art. 579(A)(2) requires that before there can be a finding of interruption of prescription, proof of actual notice to the defendant must appear in the record.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Thurman L. BOYD, Jr., Appellant.
    No. 46,321-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Carey J. Ellis, III, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Thurman L. Boyd, Jr., was charged by bill of information with the following: illegal carrying of a weapon while in possession of a controlled dangerous substance (“CDS”), namely cocaine, a violation of LSA-R.S. 14:95(E); possession with intent to distribute a Schedule II CDS (cocaine), a violation of LSA-R.S. 40:967(A)(1); and possession with intent to distribute a Schedule I CDS (marijuana), a violation of LSA-R.S. 40:966(A)(1). Based on an agreement with the State, the defendant pled guilty to possession with intent to distribute a Schedule II CDS (cocaine) and illegal possession of a firearm by a convicted felon. Subsequently, the defendant was sentenced on the drug conviction to serve 30 years in prison at hard labor, with the first two years to be served without benefit of probation, parole or suspension of sentence. With regard to the firearm conviction, he was sentenced to serve 10 years at hard labor without benefit of probation, parole or suspension of sentence. The court also ordered the defendant to pay fines in the amount of $5,000 for each conviction and court costs. The sentences, including the fines and court costs, were ordered to be served concurrently. Thereafter, the district court denied the defendant’s application for post-conviction relief and motion to vacate his sentences. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

The defendant’s guilty pleas were made subject to a plea agreement with the State which included the sentences of 30 years and 10 years respectively. The plea agreement also required the defendant to pay the |2“standard fine” and court costs for each conviction; no set amount was agreed upon with regard to the fines and costs. In exchange for the defendant’s guilty plea, the state agreed not to initiate habitual offender proceedings and to dismiss the remaining charges against the defendant.

On appeal, the defendant’s appellate counsel filed a motion to withdraw, together with an Anders brief, alleging that there were no non-frivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history of the case and the agreement under which the defendant’s guilty plea was entered, including the agreement regarding his sentences. Appellate counsel stated that he had mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, Mouton and Benjamin, supra.

On August 2, 2011, this Court ordered appellate counsel to address the issue of the amount of the fines, stating, “[T]he amount of the fines is arguably a non-frivolous issue to raise on appeal as an excessive sentence claim.” On August 17, 2011, appellate counsel filed a supplemental brief, alleging that the sentences were excessive as his sole assignment of error.

DISCUSSION

With regard to the excessiveness of the sentences, the defendant contends the plea agreement failed to clearly define the amount of the fines, as no specific amount was mentioned when the state outlined the terms of |sthe plea agreement on the record. The defendant also argues that the imposition of a $5,000 fine for each conviction was excessive, given the length of his prison sentences. He also noted that he accepted responsibility for his actions by pleading guilty and had no history of any violent offenses.

A person convicted of possession of a firearm by a convicted felon is subject to a fine of “not less than one thousand dollars nor more than five thousand dollars.” LSA-R.S. 14:95.1(B). A person convicted of possession with intent to distribute cocaine is subject to a fine of “not more than fifty thousand dollars.” LSA-R.S. 40:967(B)(4)(b).

The defendant did not file a motion to reconsider the sentences. However, he did file a pro se motion to vacate his sentences and an application for post-conviction relief. In both filings, the defendant contested the length of the prison sentences imposed; however, he did not object to the amount of the fines.

LSA-C.Cr.P. art. 881.1 precludes a defendant from presenting sentencing arguments to the reviewing court which were not presented to the trial court. In such circumstances, the defendant is relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/08), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90. 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 to impose even the maximum sentence. Id.; State v. Boswell, 46,181 (La.App.2d Cir.4/13/11), 62 So.3d 874.

In the instant case, the plea agreement did not include a specified amount that the defendant would be fined for each conviction. However, during the sentencing hearing, trial counsel for the defendant did not object to the state’s assertion that the defendant would pay the “standard fine.” In fact, defense counsel expressly agreed with the state’s assertions with regard to the plea agreement. Prior to accepting the guilty plea, the trial court informed the defendant on the record that the fine for the cocaine conviction was “up to fifty thousand dollars” and the fine for the firearm conviction was “a minimum fine of one thousand and a maximum of five thousand dollars.” The defendant expressed his understanding of the amount of the fines.

After reviewing the record, we find that the trial court did not abuse its broad discretion in imposing the fines within the statutory limits. As noted above, the firearm conviction subjected the defendant to a fine of $1,000 to $5,000; the drug conviction subjected the defendant to a fine of |sup to $50,000. While the fine imposed for the firearm conviction was the maximum allowed under the statute, the fine imposed for the drug conviction was near the lower end of the sentencing range. Additionally, the fines and costs were ordered to run concurrently. Furthermore, the defendant received a substantial benefit under the terms of the plea bargain, as the state agreed not to bill him as a habitual offender and dismissed all pending charges against him. Under these facts, we find that the fines imposed are not grossly out of proportion to the seriousness of the offenses. Thus, they are not constitutionally excessive.

We have examined this record for errors patent and have found none.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s convictions and sentences.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.


author: BROWN, Chief Judge.

text:
    William K. HAYS and Juanita Louise Hays, Plaintiffs-Appellants v. CHRISTUS SCHUMPERT NORTHERN LOUISIANA d/b/a Christus Schumpert Health System and Deirdre Y. Barfield, M.D., Defendants-Appellees.
    No. 46,408-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Susan E. Hamm, for Appellants.
    Mayer, Smith & Roberts, Shreveport, LA, by Mark A. Goodwin, for Appellee, Christus Health Northern Louisiana.
    Pettiette, Armond Dunkelman, Woodley, & Byrd, Shreveport, LA, by Lawrence W. Pettiette, Rendí B. Wiggins, for Appellees, Deirdre Y. Barfield, M.D. and Louisiana Medical Mutual Insurance Co.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   BROWN, Chief Judge.

| ,This matter comes before this court pursuant to a devolutive appeal. Plaintiffs, Juanita Louise Hays and William K. Hays, Sr., filed a medical malpractice suit against defendants, Christus Schumpert Northern Louisiana d/b/a Christus Schum-pert Health System and Dr. Deirdre Bar-field alleging negligence in the care of Mrs. Hays. Plaintiffs now appeal from a trial court judgment and jury verdict in favor of defendants. For the following reasons we AFFIRM.

Facts and Procedural History

On June 14, 1999, Juanita Louise Hays was admitted into Christus Schumpert by her treating physician, Dr. Deirdre Bar-field. Mrs. Hays complained of abnormal weight loss, nausea, vomiting, diarrhea and weakness. After Mrs. Hays’ admission, Dr. Barfield ordered intravenous (IV) fluids, laboratory work, a gasteroenterolo-gy consultation, various radiological tests and medications. Later that evening, incorrect laboratory data was reported to Dr. Barfield showing that Mrs. Hays’ blood glucose level was greater than 200. Dr. Barfield instructed nurses to monitor the patient’s blood glucose level by taking a “one touch” every six hours. She also issued orders for sliding scale insulin and for Mrs. Hays’ IV fluids to be changed.

|2A11 of the “one touch” readings taken overnight revealed blood glucose levels below the threshold for administering insulin, and the nurses caring for Mrs. Hays testified at trial that no insulin was administered to her. The following morning, Dr. Barfield was given the correct laboratory data, showing a lower blood glucose level. Dr. Barfield then ordered the IV fluid adjusted, noting that the patient had suffered no adverse effects for the delay in changing IV fluids, and she kept the sliding scale insulin order in effect.

On the morning of June 15, 1999, an Esophagogastroduodenoscopy (EGD) was performed on Mrs. Hays. While in the endoscopy lab the patient suffered an episode of hypotension, hypoxia, and hypoglycemia, and her blood glucose level fell to 32. She recovered and was discharged back to her room, where blood glucose level measurements were normal. Testimony was offered that no insulin was administered to Mrs. Hays during her time in endoscopy.

Upon her return to the floor, Mrs. Hays’ health continued to deteriorate. On June 16, 1999, Dr. Barfield ordered that Mrs. Hays be transferred to the Intensive Care Unit (ICU) for closer monitoring. While in the ICU, Mrs. Hays became confused and combative. Dr. Barfield ordered soft restraints on June 19, 1999, to prevent Mrs. Hays from removing her oxygen mask and pulling out her IV lines. On the morning of June 20, 1999, Mr. Hays approached the nursing staff with concerns about his wife’s restraints and requested that they be removed. The primary care |Rnurse removed the restraints, but explained that Mr. Hays would have to remain with his wife to prevent her from removing her IV lines and oxygen support.

At approximately 9:25 A.M., a conference took place with Dr. Barfield, Mr. Hays and Mrs. Hays’ primary care ICU nurse, Ann Bolden, being present. Dr. Barfield reiterated that either Mr. Hays, another family member or a sitter would need to remain with Mrs. Hays, or she would have to be restrained. Mr. Hays was emphatic that someone would remain with Mrs. Hays at all times. Dr. Barfield did not write down her order at that time. When asked by a nurse about any restraint orders, Dr. Barfield gave a verbal order for “soft restraints, PRN” which was recorded.

Also during the conference, Mr. Hays expressed that he would like his wife moved from ICU. Dr. Barfield felt that Mrs. Hays was improving physically, in spite of the agitation and confusion. She felt that these problems could be related either to the development of ICU psychosis or a bad reaction to Ativan. Dr. Bar-field decided that Mrs. Hays’ confusion might subside if she were placed on the general medicine floor instead of in the ICU. Mrs. Hays was transferred from the ICU to 9 Medical Tower later that day.

Family members were present at the time that Mrs. Hays was received on the general medicine floor, and no restraints were applied. Family members remained with Mrs. Hays until sometime between 6:15 P.M. and |46:30 P.M. when Mr. Hays left the hospital. At 6:15 P.M. the nurse on duty noted that Mrs. Hays was resting quietly and breathing easier. At 6:30 P.M., Mrs. Hays was found sitting unattended in a chair with decreased respiration. Her central line and oxygen mask had been removed. A Code Blue was called, and Mrs. Hays was resuscitated. She was then transferred back to the ICU and placed on a ventilator. Mrs. Hays was subsequently taken off of the ventilator and transferred to Dubuis Hospital on July 12, 1999, for rehabilitation. Mrs. Hays was discharged to her home on August 31, 1999.

Mr. and Mrs. Hays filed this matter with the Louisiana Patient’s Compensation Fund in June 2000 seeking recovery for alleged damages arising out of medical treatment afforded to Mrs. Hays. On November 26, 2002, the Medical Review Panel evaluating the claim rendered an opinion in favor of all those against whom proceedings were instituted: Christus Health Northern Louisiana d/b/a Christus Schum-pert Health System (Christus Schumpert); Dubuis Hospital for Continuing Care, Dr. Deirdre Barfield, Dr. John Eric Bicknell and Dr. Walter Bound.

In February 2003, Mr. and Mrs. Hays filed suit against Christus Schumpert and Dr. Barfield in the First Judicial District Court of Louisiana. On December 5, 2005, the trial court granted Christus Schum-pert’s motion for summary judgment. This court reversed that ruling and remanded this Lease to the trial court for further proceedings. Hays v. Christus Schumpert Northern Louisiana, 41,271 (La.App.2d Cir.08/25/06); 939 So.2d 543. The suit was originally scheduled for trial by jury on August 27, 2007. A joint pretrial order was signed by counsel of record for all of the litigants; however, the trial was continued on multiple occasions. The suit proceeded to trial by jury on January 11, 2010, the Honorable Ramon Lafitte presiding. Following a three-week trial, the jury returned an 11-1 verdict in favor of defendants. A formal judgment in favor of defendants and against plaintiffs was signed by Judge Lafitte on March 22, 2010. Plaintiffs thereafter filed this appeal.

Discussion

Exclusion of Restraint Policy

In their first assignment of error, plaintiffs argue that the trial court erred in refusing to allow into evidence Proffer-Plaintiffs’ Exhibit P-8, Christus Schum-pert’s patient care policy manual. The policy deals with “the proper use of restraints and/or seclusion for all Schumpert Health System patients.” Appellants point out that the policy provides, in part, that “PRN restraint and/or seclusion orders are prohibited and will not be used.” Appellants urge that if this policy had been admitted into evidence, the jury would have found that defendants breached the standard of care in their treatment of Mrs. Hays.

At trial, plaintiffs attempted to introduce the restraint policy into evidence during direct examination of plaintiffs’ expert witness in nursing, Joanne Gongora. Dr. Barfield’s attorneys objected to the evidence, alleging |fithat they had not been provided a copy of the 14-page policy prior to trial. Plaintiffs’ attorney represented that all parties had been sent a copy of the policy during a dispute over Christus Schumpert’s 2007 Motion in Limine to limit the testimony of Nurse Gongora. The policy was included, along with other Christus Schumpert procedures and policies, in Exhibit B of plaintiffs memorandum in opposition to Christus Schumpert’s motion. Counsel for Dr. Barfield explained that they had only received a facsimile copy of the memorandum itself in 2007. The trial court sustained the objection, stating:

Indicating that she had not been provided with a copy. As I indicated yesterday, any document that was not exchanged amongst all counsel will not be admitted into evidence. So, I will sustain the objection made by Ms. Wiggins.

On appeal, appellants argue that, while not participating in the motion, counsel for Dr. Barfield was present when the trial court ruled on Christus Schumpert’s Motion in Limine. Appellants also note that Dr. Barfield was likely already in possession of the policy, as she was a practicing physician at Christus Schumpert at the time she treated Mrs. Hays. Counsel for Dr. Barfield still assert that they did not receive the exhibits by either certified mail or facsimile. Appellees do concede that 17when preparing for this appeal, they discovered that the policy had been filed into the record prior to trial.

Complaint of an alleged erroneous evidentiary ruling may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected. La. C.E. art. 103. The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Wimberly v. Giglio, 46,000 (La.App.2d Cir.01/26/11); 57 So.3d 389; Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.01/31/07); 949 So.2d 576, writ denied, 07-0630 (La.05/04/07), 956 So.2d 621. On appeal, the court must consider whether the complained of ruling was erroneous and whether the error affected a substantial right of the party. If not, reversal is not warranted. Id. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Graves, supra.

In determining whether the exclusion of the restraint policy had a substantial effect on the outcome of trial, we must first examine the policy itself. Appellants urge that the policy prohibits orders for PRN restraints, and if it had been followed, Mrs. Hays would not have been able to climb out of bed and remove her oxygen and IV lines. Defendants argue that the exclusion of the policy was harmless because neither Dr. Barfield nor Christus Schumpert violated the policy. The policy provides, in pertinent part:

Ut is the policy of this Schumpert Health System to provide the safest, most therapeutic and least restrictive environment for our patients. The use of physical restraints and/or seclusion requires a time limited order and documented clinical justification to protect the patient and/or others from injury, or to prevent serious disruption of the therapeutic environment.

The policy specifically requires a time limited order and documented clinical justification when physical restraints are used. Despite the order for “soft restraints, PRN,” no restraints were used on Mrs. Hays from the time she was transferred out of ICU until after she was discovered alone and out of bed. Defendants contend that had physical restraints been used pursuant to a PRN order, then there would have been a violation of the policy. Further, there was testimony from defendants’ expert nursing witness, Beth Neidlinger, that had physical restraints been needed, the nurses on duty would be required to fill out a form restraint order sheet and contact Dr. Barfield, who would ultimately determine if restraints were to be used.

Appellants argue that Mrs. Hays would have been restrained whether Mr. Hays had remained or left the hospital on June 20, 1999, had the restraint policy been followed. However, nothing in the policy suggests that the agreement between Mr. Hays and Dr. Barfield is prohibited. Further, nothing in the policy mandates when a physician must order restraints for any patient, or what options he or she must employ when treating a patient. The policy encourages providing “the most therapeutic and least restrictive environment for our patients.” Having a family member or sitter remain with a patient as an alternative to using physical restraints appears to fall under this directive.

|aThe policy further provides that “the registered nurse is authorized to provide early release if the patient demonstrates a significant reduction in behavior that led to the use of restraint and/or seclusion.” Testimony was given by both Nurse Gon-gora and Nurse Neidlinger that the nurse on duty should have used her clinical nursing judgment in making a decision as to whether restraints were needed at the time. The nurse on duty, Rachel McGonthlin, testified that restraints were unnecessary in her judgment as long as a family member was present.

Additionally, the Medical Review Panel examining this case did not find a breach in the standard of care regarding Mrs. Hays’ restraints. They opined on the subject of restraints, “the panel does not believe this has any relevance to her ultimate problems and no causation has been shown.”

There was ample evidence put before the jury on whether Mr. Hays asked the nursing staff about a sitter and was given permission to leave, and the jury found in favor of defendants. Further, the exclusion of the policy has no bearing on the question of whether Mr. Hays was given permission to leave his wife unattended. Therefore, because of the nature of the policy itself and other evidence supporting the trial court’s judgment, we cannot say that exclusion of the restraint policy was persuasive to the outcome of the case such that the substantial rights of plaintiffs were affected by its improper exclusion.

Grant of a New Trial

Appellants next argue that, given that the restraint policy was not allowed into evidence, they should be granted a new trial because a | inmiscarriage of justice would occur if the judgment in favor of defendants is maintained.

Louisiana law provides that a new trial shall be granted upon contradictory motion, when the verdict or judgment appears clearly contrary to law. La. C.C.P. art. 1972.1. The granting or denying of a motion for a new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretions. Armstrong v. Horseshoe Casino, 36,927 (La.App.2d Cir.03/05/03); 839 So.2d 1028; Burke v. Baton Rouge Metro Airport, 97-0947 (La.App.1st Cir.05/15/98); 712 So.2d 1028.

While appellants argue that the verdict appears contrary to evidence, a review of the record reveals that they did not make a Motion for a New Trial to the trial court following the jury reaching a verdict or the issuance of the formal judgment. Therefore, appellants’ argument on appeal is without merit.

Review of Jury Verdict

In their final assignment of error, appellants contend that the trial court erred in dismissing the case pursuant to the jury’s verdict. They argue that given the evidence presented to the jury and considering the jury’s lack of access to the restraint policy, their verdict was clearly wrong. Appellants ask this court to “set aside the jury verdict or grant a JNOV.” We decline to do so.

In The manifest error standard of review applies to review of medical malpractice cases. Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594 (La.10/17/06); 942 So.2d 509; Wyatt v. Hendrix, 43,559 (La.App.2d Cir.11/05/08); 998 So.2d 233. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

In order to reverse a fact finder’s determination, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual finding because it would have decided the case differently. Pinsonneault v. Merchants and Farmers Bank & Trust Co., 01-2217 (La.04/03/02); 816 So.2d 270; Wyatt, supra. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was an reasonable one. Stobart, supra.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844. Where there are contradictory expert opinions regarding compliance with the applicable standard of care, the appellate court is bound to give great deference to the conclusions of the trier of fact. Turner v. Stassi, 33,022 (La.App.2d Cir.05/10/00); 759 So.2d 299; Pinnick v. Louisiana State University Medical Center, 30,263 (La.App.2d Cir.02/25/98); 707 So.2d 1050.

Physician Malpractice

The plaintiff bears the burden of proving that a doctor committed medical malpractice. Wyatt, 998 So.2d at 260. La. R.S. 9:2794 provides that to. establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the applicable standard of care; (2) a breach in the standard of care; and (3) a causal connection between the alleged negligence and resulting injuries. Medical Review Panel for Claim of Murphy v. Bernice Community Rehabilitation Hosp., 40,333 (La.App.2d Cir.10/26/05); 915 So.2d 354, writ denied, 05-2399 (La.03/17/06); 925 So.2d 549. Physicians are not held to a standard of absolute precision, rather, their conduct and judgment are evaluated in terms of reasonableness under the then existing circumstances. Id. The mere fact that an injury occurred does not raise a presumption that the physician was negligent. La. R.S. 9:2794(C).

Hospital Malpractice

Malpractice claims against a hospital are subject to the general rules of proof applicable to any negligence action. Moore v. Willis-Knighton Medical Center, 31,203 (La.App.2d Cir.10/28/98); 720 So.2d 425. A plaintiff must prove that the defendant had a duty to protect against the risk involved, that the defendant breached its duty and that the plaintiffs’ injury was caused by the defendant’s conduct. Smith v. State, through Department of Health and Human Resources, 523 So.2d 815 (La.1988); Moore, supra. | iaHospitals are held to a national standard of care. The locality rule does not apply to hospitals. Henderson v. Homer Memorial Hospital, 40,585 (La.App.2d Cir.01/27/06); 920 So.2d 988, writ denied, 06-0491 (La.05/05/06); 927 So.2d 316. Hospitals are bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. Id. The mere fact that an injury occurs or an accident happens raises no presumption or inference of negligence on the part of the hospital. Galloway v. Baton Rouge General Hospital, 602 So.2d 1003 (La.1992).

It is well settled that a hospital is liable for its employee’s negligence, including doctors and nurses, under the re-spondeat superior doctrine. Benefield v. Sibley, 43,317 (La.App.2d Cir.07/09/08); 988 So.2d 279, writs denied, 08-2162, 08-2210, 08-2247 (La.11/21/08); 996 So.2d 1107, 1108. Nurses who perform medical services are subject to the same standards of care and liability as are physicians. Id. The nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, along with his or her best judgment, in the application of his or her skill to the case. Little v. Pou, 42,872 (La.App.2d Cir.01/30/08); 975 So.2d 666, writ denied, 08-0806 (La.06/06/08); 983 So.2d 920.

In this assignment of error, the only argument plaintiffs offer is that “on the face of Proffer-Plaintiffs’ Exhibit 8, any finding other than defendants breached the standard of care would be wrong.”

|14At trial, appellants focused most of their efforts on proving that insulin was negligently administered to Mrs. Hays due to incorrect blood glucose levels reported to Dr. Barfield on June 14, 1999. They alleged that Mrs. Hays was given an uncharted dose of insulin during the period when Dr. Barfield ordered sliding scale insulin for Mrs. Hays or when Mrs. Hays was in endoscopy. Testimony was heard from the nurses who cared for Mrs. Hays that they did not administer any insulin during their shifts. Further, there was no administration of insulin charted in Mrs. Hays’ records. The Medical Review Panel which examined this case also rejected the contention that Mrs. Hays had been administered insulin.

Testimony supporting plaintiffs’ theory was given by plaintiffs’ expert witness in pharmacy, Walter Pierron, who testified that he knew of nothing other than insulin which would have caused Mrs. Hays’ drop in blood glucose while she was in endoscopy on June 15. Plaintiffs’ expert witness in internal medicine, Murray Pizette, also testified that insulin could have caused the drop blood glucose levels. Dr. James Jackson, expert witness in internal medicine, explained that the episodes of low blood glucose experienced by Mrs. Hays were likely a result of abnormal liver function, malnutrition and possible infection. These conclusions were supported by the testimony of Dr. Daniel Moller, also an expert witness in internal medicine, who concluded the low blood glucose level suffered by Mrs. Hays in endoscopy was caused by reactive hypoglycemia.

Plaintiffs also focused at trial on proving negligence regarding how Mrs. Hays was restrained outside the ICU on June 20,-1999. Plaintiffs | isargued that Dr. Barfield was negligent in ordering “soft restraints, PRN” and that poor communication among the nurses led to Mrs. Hays climbing out of bed and removing her IV and oxygen lines. They further alleged the nurse on duty told Mr. Hays that he could leave and then left Mrs. Hays unrestrained.

On the issue of communication, Nurse Bolden testified that when she delivered Mrs. Hays from ICU to the general medicine floor, she made a verbal report to the receiving nurse regarding the restraint agreement. Further, the receiving nurse testified that she would have made a verbal report to Nurse McGonthlin containing that information at the end of her shift. Nurse Neidlinger testified that the use of verbal reports was customary and met the standard of care.

Nurse Neidlinger also testified that Nurse McGonthlin should have used her clinical judgment in assessing whether restraints were necessary while Mrs. Hays was on the general medicine floor. Nurse Gongora. felt similarly that Nurse McGonthlin could use her clinical judgment in the assessment whether to use restraints, though she felt there was a violation in the standard of care. Nurse McGonthlin testified that she felt restraints were unnecessary while family was in the room.

As explained above, the restraints policy does not prohibit the agreement between Mr. Hays and Dr. Barfield that a family member or sitter must remain with Mrs. Hays or physical restraints would have to be used. Key to this dispute at trial was Mr. Hays’ allegation that he spoke with the nursing staff about leaving and obtaining a sitter for his wife. Mr. Hays 11Rmaintained that Nurse McGonthlin gave him permission to leave without obtaining a sitter. Nurse McGonthlin testified that she would not have told Mr. Hays that he could leave the hospital with his wife unattended. Defendants argue that the jury’s verdict is supported by Mr. Hays’ inconsistent testimony about the events of June 20, 1999. Defendants also note that the Medical Review Panel found that neither Dr. Barfield or Christus Schumpert violated the standard of care in their management of Mrs. Hays restraints.

Given the ample medical evidence and testimony adduced at trial, we cannot say the jury’s verdict lacks a reasonable factual basis. Therefore, it is not manifestly erroneous or clearly wrong.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of appeal are assessed against appellants.

AFFIRMED.

      . Juanita L. Hays died on August 15, 2005. The action was thereafter amended to add her son, William Hays, Jr., as a party plaintiff.

      . Mrs. Hays was 67 years of age at the time of her admittance. She had previously been admitted to Christus Schumpert in December 1998 for evaluation and treatment of acute renal failure. Dr. Barfield treated Mrs. Hays on February 3, 1999, and May 26, 1999, for problems related to this condition and other issues such as chronic kidney, bladder and upper respiratory problems, among others. Mrs. Hays was noted to have smoked two packs of cigarettes a day since the age of 18.

      .Sliding scale insulin conditions the administration of insulin upon the particular patient's blood glucose level. If the patient’s blood glucose level was measured to be between 81-180, no treatment was to be performed.

      . Also, on this date, Mrs. Hays’ chest x-ray showed bilateral infiltrates consistent with possible pneumonia. She was started on an antibiotic and Ativan was prescribed for the agitation.

      . PRN or pro re nata is a Latin phrase meaning "as the circumstance arises.” It is commonly used in medicine to mean "as needed” or "as the situation arises.” Dosage or frequency is not scheduled. The nurse or caregiver is, instead, to administer treatment when necessary.

      .There was a factual dispute as to why Mr. Hays left his wife’s bedside. Plaintiffs maintain that Mr. Hays inquired about finding a sitter for Mrs. Hays, and the nurse on duty told Mr. Hays it would be all right for him to leave Mrs. Hays without a sitter. The nurse on duty testified that she would not have told Mr. Hays a private duty sitter was unnecessary and that it was all right for him to leave the hospital. Mr. Hays testified that he left the hospital “about 6:30.”

      . Counsel for Dr. Barfield also objected on the ground that the nursing expert was not qualified to testify about a policy for physicians. The trial court did not rule on the merit of this objection.

      . Counsel for Dr. Barfield did not participate in this motion.

      . The incident to which the trial court referred involved Plaintiffs’ attempt to introduce various medical records that defense counsel had received in part. The trial court allowed into evidence only the records which all parties possessed.

      .Plaintiffs did not raise this issue when the matter was argued before the trial court.

      . La. C.C.P. art. 1881 provides that a motion for judgment notwithstanding the verdict must be made no later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Art. 1913. We note that appellants made no such motion to the trial court following notice of judgment.


text:
    STATE of Louisiana, Appellee v. Charles WILLIAMS, Appellant.
    No. 46,468-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.
    Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles Williams, Pro Se.
    J. Schuyler Marvin, District Attorney, Marcus R. Patillo, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

| ,The defendant, Charles Williams, was charged by bill of information with three counts of distribution of a Schedule I controlled dangerous substance (marijuana), a violation of LSA-R.S. 40:966(A)(1). Pursuant to a plea agreement, the defendant pled guilty to one count of distribution of marijuana, with a maximum sentence of 15 years at hard labor. As a part of the plea bargain, the state agreed not to initiate habitual offender proceedings against the defendant. After reviewing the defendant’s presentence investigation report, the trial court sentenced the defendant to serve 15 years at hard labor, with credit for time served, with a recommendation for substance abuse treatment. The defendant’s motion to reconsider sentence was denied. The defendant now appeals. For the following reasons, we affirm.

DISCUSSION

The defendant’s appellate counsel has filed a motion to withdraw, together with an Anders brief, alleging that there are no non-frivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history of the case and the plea agreement under which the defendant’s guilty plea was entered, including the agreement regarding his sentence. Defense counsel states that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with the above-cited jurisprudence.

|2The record shows that the defendant was properly advised of his Boykin rights before he pled guilty, and the 15-year sentence was imposed in conformity with the plea agreement, which was set forth in the record. Thus, appellate counsel has shown that defendant cannot appeal the sentence imposed and that no non-frivolous errors can be found after a conscientious review of the record.

Defendant’s Pro Se Assignments of Error

The defendant has filed a pro se brief, challenging his 15-year sentence as excessive. The defendant argues that the other perpetrators in this matter have worse criminal histories, but were given lesser sentences.

LSA-C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Additionally, LSA-R.S. 40:966(B) provides, in pertinent part:

B. Any person who violates Subsection A of this Section with respect to:
(3) A substance classified in Schedule I which is marijuana, tetrahydrocannabi-nols, or chemical derivatives of tetrahy-drocannabinols, or synthetic cannabi-noids shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

The sentence imposed herein, 15 years at hard labor, was within the statutory limits. Also, the defendant was charged with three counts of distribution of marijuana. He received substantial benefit from pleading Uguilty to one count and from the state’s decision not to file habitual offender proceedings. This assignment lacks merit.

The defendant also contends the trial court erred in failing to conduct a hearing on his motion to reconsider sentence. However, a hearing on the motion to reconsider sentence was held on July 25, 2011, which was after the date the briefs were filed in this Court.

Nevertheless, LSA-C.Cr.P. art. 881.1(D) provides:

The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider sentence without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer evidence it would have offered in support of the motion.

Thus, a trial court is not required to conduct a hearing when it denies the defendant’s motion to reconsider sentence. State v. Vance, 45,250 (La.App.2d Cir.5/19/10), 36 So.3d 1152; State v. Bedoya, 08-630 (La.App.5th Cir.12/16/08), 998 So.2d 1283, writ denied, 2009-0484 (La.11/20/09), 25 So.3d 784.

Additionally, in the motion to reconsider sentence, the defendant alleged that the sentence imposed, “while within the statutory limits, was nonetheless excessive.” The motion did not allege any additional factors that the trial court had not previously considered. This assignment lacks merit.

We have examined the record for errors patent and found none.

CONCLUSION

For the foregoing reasons, appellate counsel’s motion to withdraw is hereby granted. The defendant’s conviction and sentence are affirmed.

^MOTION TO WITHDRAW GRANTED; CONVICTION AFFIRMED; SENTENCE AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Shannon Lamar DENNIS, Appellant.
    No. 46,471-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    Charles R. Scott, District Attorney, Laura Fulco, Brian H. BARBER, Assistant District Attorneys, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   MOORE, J.

h Defendant Shannon Dennis was convicted of second degree murder, a violation of La. R.S. 14:30.1, and sentenced to serve life imprisonment at hard labor without parole. He now appeals, urging three assignments of error. After review, we affirm.

FACTS

This homicide occurred on September 26, 2008, in the Allendale area of Shreveport in front of the Allen Avenue home of Ms. Lakesha Pouncey. The killing happened on a late Friday evening, sometime after 11:00 p.m. Ms. Pouncey explained that, as was usual for a Friday evening, a group of friends and acquaintances had gathered in her yard to drink and socialize. Several of these people 1 she knew only from the neighborhood, including a man named Tyrone Alexander, who parked his car in her yard.

Tyrone brought the victim, Terry Wilson, to the gathering. Ms. Pouncey said that Wilson appeared to be in a good mood and was having a good time. Wilson and Tyrone were standing next to Tyrone’s car when they noticed a man across the street wearing a black hooded sweatshirt. Ms. Pouncey overheard both men say the name, “Shannon,” and then Wilson said, “He’s not going to do anything.”

At that point, Tyrone went into Ms. Pouncey’s house and locked the front door behind him. Ms. Pouncey saw the hooded man approach Wilson while holding a rifle. He proceeded to shoot Wilson numerous times with the rifle, and then he walked away from the scene. Ms. Pouncey did not see the shooter’s face which was obscured by the hood.

The victim’s teenaged daughter, Tiera Thomas, was standing in a | ¿front yard about four houses away when she witnessed the hooded man raise the rifle and shoot her father multiple times. She ran down the street to the scene of the shooting, but her father was beyond help and died as a result of the multiple gunshot wounds.

Although Ms. Thomas did not know the name of the person who shot her father, she had seen him and another man walking by a few minutes prior to the shooting. She saw the face of the man wearing the black hoody as he walked by. She explained, “The only thing I had remembered was the cross in the center of his forehead.” She did not mention the cross in her interview with police, however.

The police developed the defendant as a suspect based upon information provided from the defendant’s niece, Deanne Dennis. Ms. Dennis reported that on the morning after the homicide, while she was at her mother’s house, the defendant came over to visit, and he appeared to be scared, or nervous. Later that day, he gathered the family together and asked all of them, if anyone asked, to say that he had been at Ms. Dennis’ mother’s home on the previous evening. Ms. Dennis said that the defendant admitted killing the victim “a couple of days later.” She said:

He was like, he saw Terry in the club. They got into it. He left the club. He came — he returned to the club. He said he seen Terry on the outside of the club and shot him. He said they will never know who did it, because it was dark, and I had a black hoody on.... He said they won’t find [the gun], because they drove a while and threw it away.

Ms. Dennis said that the defendant told her that he shot Wilson because Wilson had beaten the defendant’s aunt. Police confirmed that the defendant had been present, earlier that evening, at a fight at a club about |stwo blocks away from the scene of the shooting.

A few days after the shooting, the defendant asked Ms. Dennis to wash a pair of his blue jeans in cold water so “the blood and the gun residue will come out.” Ms. Dennis looked at the jeans and saw what she described as blood on the pants. Washing the pants removed the blood stain. The defendant stayed with Ms. Dennis a few days after the shooting, then fled to North Carolina on a bus, and then returned to Shreveport. Because she was troubled by what the defendant had told her about the shooting, Ms. Dennis went to the police with her information.

The police prepared and showed the victim’s daughter a photo lineup of six persons, each of whom had similar facial characteristics. At least three of the men in the lineup, including the defendant, had a cross prominently tattooed on their forehead. The young woman identified the defendant as the man she saw walking by her house and who shot her father. At trial, Ms. Thomas repeatedly insisted that she saw the photo lineup “that same night,” referring to the night of the shooting, although, according to the police detective, she was shown the lineup at least one week, and perhaps three weeks, later.

Police learned that the defendant had lived with a woman named Dana Fuller for several years. They interviewed Ms. Fuller, who told them that she had broken up with the defendant about a month before this incident and that he was not then living with her. However, Ms. Fuller said the defendant called her on the night of September 26 and asked if she could drive him to his sister’s house. She refused. However, on Sunday, the 14defendant called Fuller again and asked her to drive him to the store. She, along with three minor children, picked the defendant up at his sister’s house.

The defendant had Ms. Fuller to drive him to Pierre Avenue in Allendale, only about two blocks from the scene of the murder. During the drive, the defendant verbally abused her by repeatedly calling her a “bitch” in front of the children. At Pierre Avenue, the defendant got out of the car, went into an alley and came back about ten minutes later. He then asked her to drive him toward the Kansas City Southern train yard. The defendant gave her specific instructions about where to drive. He instructed her to stop near a wooded area, where she let him out. He told her to drive down the road and return to pick him up. Ms. Fuller complied with the defendant’s instructions despite his continued verbal abuse; she sáid that she did not notice if the defendant had anything hidden in his clothing. After these events, Ms. Fuller drove the defendant to the store and then back to his sister’s house.

The police asked Ms. Fuller to take them to the wooded area where the defendant left the car. When she did so, a search team located a rifle in the woods near the road. The rifle, still partially loaded, was forensically identified as the weapon used to murder the victim in this case. According to police, Ms. Fuller told them that it appeared to her that the defendant had been hiding something under his clothes prior to entering the woods.

Police arrested the defendant in Shreveport at the home of one of his friends on November 12, 2008, pursuant to a warrant. The defendant hid in |sa closet and refused to cooperate. After a police K-9 bit the defendant several times, the defendant complied.

The state presented this and other evidence at trial. The defendant did not testify but offered the testimony of his sister, Shatyna Dennis, who is Deanne Dennis’s mother. She testified that the defendant came to her house on the evening of the murder between 10:00 and 10:30 p.m., and spent the night. She said that he had been living there for a few weeks prior to that night. She said that the defendant never asked her to lie and say that he was there at that time.

The jury found the defendant guilty as charged. The defendant filed post-trial motions for post verdict judgment of acquitted (alleging insufficiency of the evidence) and new trial. The defendant’s motion for new trial, filed pro se, alleged various tidal errors and further alleged that new material evidence was available that was not discovered before or during trial.

At the hearing on the motions, the defendant argued in his motion for new trial that his niece, Deanne Dennis, was “mentally retarded,” and had lied to the jury under pressure from the state. According to the defendant, the state had “put her (Ms. Dennis) under arrest” for three days at a Holiday Inn. He produced what he alleged was an affidavit from Deanne Dennis wherein she states that her testimony was fabricated due to “threats of having my kids taken away and going to jail.” She stated, “The Caddo District Attorney’s office forced me to testify on ... 9/15, and against my will. Shannon Dennis did not confess to me.” The defendant also had what |ñhe alleged were records from the Caddo Parish School Board showing that Deanne Dennis had “a third grade IQ level.”

In response, the prosecutor informed the court that the state had paid for Ms. Dennis to be placed in the Holiday Inn — of her own free will — “because she was getting credible death threats from members of her family.” The defendant countered that Ms. Dennis was present in the courtroom and would like to testify about why, according to the defendant, she made false statements at trial.

The trial court denied the defendant’s request to have Ms. Dennis testify and denied the defendant’s motion, stating:

And your request to have the witness testify is denied. I believe the witness testified in at least two hearings and the trial, combined; however, I have considered the testimony that was presented at trial.... [B]oth motions for new trial and motion for post verdict judgment of acquittal and all related motions are hereby denied for those reasons stated based upon insufficient basis for granting of the motions.

After denying the defendant’s post-trial motions, the trial judge imposed the mandatory life sentence. Dennis now appeals, raising three assignments of error.

DISCUSSION

We begin our review with the defendant’s third assignment of error in which he alleges that the evidence adduced at trial was not sufficient to convict him of second degree murder.

When 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 17sufficiency 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. 2 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, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Henson, 38,820 (La.App. 2 Cir. 9/22/04), 882 So.2d 670. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Henson, supra. 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. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In support of this assignment, the defendant cites a variety of | ¡^discrepancies in the testimony of the witnesses that, he claims, fatally undermines the jury’s decision to credit their testimony. For example, in her testimony, Ms. Thomas related that she viewed a photo lineup including the defendant on the night of the shooting; as police testimony showed, her recollection of the date of this event was inaccurate. Next, Ms. Fuller’s testimony differed in some ways from previous statements, most pointedly with her recollection of whether the defendant appeared to be hiding something during their trip to the wooded area where the gun was recovered. She told police that the defendant did appear to be hiding something, but testified that this was not so. In addition, the defendant urges that Ms. Fuller “had considerable acrimony” toward him, and the transcript shows her recollection that the defendant cursed her during their trip. Finally, the defendant points out a variety of discrepancies between the testimony of his niece, Ms. Deanne Dennis, and her statements to police, particularly with regard to her recitation of the timing of events. Further, as will be discussed below, the defendant argues that Ms. Dennis is developmentally disabled or mentally retarded, so her testimony was entitled to less weight.

In this case, there is no doubt that this offense was a second degree murder. However, beyond proving the elements of the offense, the state must prove that the defendant was the person who committed the crime. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Youngblood, 41,976 (La.App. 2 Cir. 5/09/07), 957 So.2d 305, writ denied, 2007-1226 (La.12/14/07), 970 So.2d 530; State v. Davis, 27,961 (La.App. 2 Cir. 4/08/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12. In cases involving a defendant’s claim that he was not the person who committed the crime, the state must negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2 Cir. 4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

In the instant case, the state carried its burden of negating any reasonable probability of misidentification. The evidence showed that the defendant was present at a fight in a bar very near the scene of the shooting earlier that evening. Subsequently, and close in time and place to the offense, Ms. Thomas saw the defendant walking down the street. She identified him by the distinctive cross tattoo on his forehead, and unhesitatingly picked him out of a lineup that included at least two other people who also had crosses tattooed on their forehead.

Both Ms. Thomas and Ms. Pouncey described the shooter’s black hoody, and Ms. Thomas said that the defendant was wearing that same garment. Further, the defendant’s ex-girlfriend took the defendant to the isolated wooded area where the murder weapon was found. Finally, the defendant’s niece testified that the defendant confessed to her that he was the person who shot the victim, and she consistently stated that the defendant had given her his bloody jeans to wash.

Although both trial and appellate counsel for defendant ably pointed out the discrepancies in the witnesses’ testimony and statements to police, |innone of those discrepancies dispel the overwhelming evidence that the defendant was the perpetrator of this homicide.

We conclude that the evidence was sufficient to sustain the conviction and, therefore, this assignment of error is without merit.

By his first assignment of error, the defendant contends that it was error for the trial court to deny his motions to quash because the superseding indictment was not filed within the delays allowed by La. C. Cr. P. art. 701(b), nor was it concurred in by nine members of the jury as required by La. C. Cr. P. art. 388.

The matters of record disclose the following:

A Caddo Parish grand jury indicted Shannon Lamar Dennis on January 22, 2009, for the second degree murder of Terry Wilson committed on September 26, 2008. However, the indictment was not signed by the grand jury foreperson. The defendant filed a pro se motion to quash the indictment on March 9, 2009, alleging that it was legally insufficient.

The state filed a superseding indictment on July 8, 2009, charging Dennis with the second degree murder of Mr. Wilson. This indictment was signed by the grand jury foreperson. Although the signature itself is not dated, this second superseding indictment is dated on the front page of the indictment, “January 22, 2009,” the same date as the first indictment.

On July 8, 2009, the trial court heard the defendant’s motion to quash, which was argued by his attorney. Noticing that the state had filed the superseding indictment in proper form, the court denied the defendant’s motion to quash. At that same hearing, the defendant was arraigned on the | usuperseding indictment. The court accepted the defendant’s not guilty plea to the superseding indictment, reserving his right to contest the timeliness of that indictment.

On August 1, 2009, the defendant filed a second written pro se motion to quash. This time he argued that the time limitation for the institution of prosecution had elapsed under La. C. Cr. P. 701(b), because he had been arrested on November 21, 2008. His counsel expressly refused to adopt the motion at the hearing on December 15, 2009. The court denied the motion, and the defendant applied for a supervisory writ from that ruling. Citing U.R.C.A. Rule 4-5, this court denied that application because the defendant failed to include a copy of his motion or the trial court’s ruling.

On June 24, 2010, the defendant filed a third pro se motion to quash. In this motion, the defendant argued that the superseding indictment was not concurred in by nine members of the grand jury, and he claimed that fewer than nine members of the grand jury were present when the superseding indictment was issued.

The trial court heard the motion on September 13, 2010. Again, it was not adopted by defendant’s attorney.

In opposition to the motion, the prosecutor contended that the signature on the indictment was, in fact, the signature of the grand jury foreperson and offered to present testimony that there was a quorum when the grand jury returned the indictment. The trial court denied the defendant’s motion, finding the defendant’s allegation that nine grand jurors did not concur in the indictment to be baseless.

| lgTrial commenced two days later, and, on September 18, 2010, a unanimous petit jury convicted the defendant as charged. After the court denied the defendant’s motions for post verdict judgment of acquittal and new trial, the court sentenced Dennis to the mandatory term of life imprisonment at hard labor without parole.

In this appeal, the defendant contends that his conviction must be reversed because neither of the charging instruments were properly executed. He contends that the first indictment was fatally defective because it was not signed by the grand jury foreperson, and the second indictment was invalid because it was untimely and does not evidence that nine members of the grand jury concurred in the charge.

First, we consider the argument that the indictment was untimely. There are several relevant statutes regarding the formal and material requisites of an indictment by a grand jury and the grounds to quash:

La. C. Cr. P. art. 383 provides, in part:

An indictment is a written accusation of crime made by a grand jury. It must be concurred in by not less than nine of the grand jurors, indorsed “a true bill,” and the indorsement must be signed by the foreman....

La. C. Cr. P. art. 487 provides, in part:

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

11sLa. C. Cr. P. art. 533 provides, in part:

A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:
(4) Less than nine grand jurors were present when the indictment was found.
(5) The indictment was not indorsed “a true bill,” or the endorsement was not signed by the foreman of the grand jury.

La. C. Cr. P. art. 521 provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

A motion to quash is the proper procedural vehicle for a defendant to allege that the time limitation for the initiation of prosecution has expired. La. C. Cr. P. art. 532(7). A motion to quash on these grounds may be filed of right at any time before commencement of the trial. La. C. Cr. P. art. 535(4). The responsibility of proving timely prosecution rests with the state. State v. Freeman, 37,312 (La.App. 2 Cir. 7/16/03), 850 So.2d 1088; State v. Oliver, 34,292 (La.App. 2 Cir. 5/09/01), 786 So.2d 317.

The phrase “institution of prosecution” is defined as “the finding of an indictment ... which is designed to serve as the basis of a trial.” La. C. Cr. P. art. 934(7); State v. Freeman, supra; State v. Oliver, supra. The state is permitted to dismiss an indictment and institute new proceedings if it shows the dismissal was not for the purpose of avoiding the time limitation for | ^commencement of trial as established by Art. 578. State v. Freeman, supra; State v. Wells, 459 So.2d 648 (La.App. 4 Cir.1984). Article 578 provides that no trial shall be commenced for a noncapital felony case after two years from the date of institution of prosecution.

In State v. Freeman, we held that a superseding indictment filed for the legitimate purpose of correcting a possible illegal indictment due to a defective grand jury selection process constituted a valid reason for filing the superseding indictment and was not an attempt to circumvent the time limitations.

In this case, the state acknowledged that the original indictment was unsigned by the grand jury foreman. Prior to a ruling by the court on the defendant’s first motion to quash challenging the indictment on that ground, the prosecutor filed a superseding indictment that was signed by the grand jury foreman. The prosecutor did not change the date of the indictment, so, clearly the superseding indictment was filed for the legitimate purpose of correcting a possible illegal indictment and not in an attempt to circumvent the time limitations for commencement of trial. In this instance, trial commenced on September 18, 2010, well within the two-year time limitation of Art. 578. Thus, the defendant has not shown that he was harmed by the filing of the superseding indictment.

Even if we were to find that the court erred in failing to grant the second motion to quash on grounds that the superseding indictment was untimely filed, the defendant’s remedy would have been simply release from his bail obligation. La. C. Cr. P. art. 538(3); see also, La. C. Cr. P. art. liS701(B)(2). In any event, although there is no showing of error, after conviction, any error regarding the defendant’s second motion to quash is harmless beyond a reasonable doubt.

The defendant’s third motion to quash was filed almost a year after his arraignment on the superseding indictment and is clearly untimely. Except in certain circumstances, a challenge to an indictment must be made within 15 days after arraignment. La. C. Cr. P. art. 535. An allegation that the second indictment was concurred in by fewer than nine grand jurors does not fall within the ambit of La. C. Cr. P. art. 535(A) or (B). See, e.g., State v. Sears, 298 So.2d 814 (La.1974), overruled on other grounds by State v. Lovett, 345 So.2d 1139 (La.1977); State v. Mack, 43,206 (La.App. 2 Cir. 4/23/08), 981 So.2d 185. Despite the untimeliness of the defendant’s motion, the trial court opted to entertain the defendant’s argument on the motion because it was made prior to the verdict.

Whereas at oral argument, defense counsel argued that it was incumbent upon the state to prove that the superseding indictment was concurred in by the same members of the original grand jury, it has been held that one moving to quash indictment because of defects or irregularities in constitution of grand jury has the burden of proving allegations upon which the motion is based. State v. Pierre, 198 La. 619, 3 So.2d 895 (La.1941), cert. denied, 314 U.S. 676, 62 S.Ct. 186, 86 L.Ed. 541 (1941). Apart from conjecture engendered by the same date on the face of the second indictment, the defendant offered no evidence in support of his argument that the requisite number of grand jurors did not concur in the |, (¡issuance of the charging instrument. Although the prosecutor offered to put on testimony to support the state’s assertion that the proper number of grand jurors did concur in the indictment, the trial judge did not find it necessary to pursue that inquiry further. Even if the defendant’s third motion to quash were timely filed, under the dubious theory that the indictment was a nullity, the defendant offered nothing to support his allegation that the indictment was deficient ab initio. He clearly was not prejudiced by the procedure employed; the defendant was fully apprised of the charge against him and had the benefit of two arraignments.

This assignment of error is without merit.

By his second assignment of error, the defendant alleges that the trial court erred in denying him the right to present a defense at the hearing on the motion for new trial.

The defendant argues that the trial court should have granted his motion for new trial based upon the apparent recantation by Deanne Dennis of her trial testimony implicating the defendant in this crime. He further argues that the trial court’s handling of his motion was improper because the judge “refused to admit or even consider the evidence and refused to let Deanne Dennis testify.”

The •written materials do not form a part of the appellate record because they were not proffered at the hearing; counsel asserts that the trial court did not permit the records to be proffered. Although this may be an overstatement, nevertheless, the trial court did clearly refuse to hear testimony from Deanne Dennis.

117The defendant’s argument is that a new trial is warranted under La. C. Cr. P. art. 851(3), because Ms. Dennis’ recantation is newly discovered evidence. Regardless of whether that is the proper section under which this argument may be raised, there is no showing that the trial court erred in its ruling. As the supreme court stated in State v. Clayton, 427 So.2d 827 (La.1982):

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its reliability, and its ruling will not be disturbed on appeal absent a clear showing of abuse of discretion.
When considering a motion for new trial based on newly discovered evidence, the test to be employed is not whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached.
This court has further consistently held that recantations of trial testimony should be looked upon with the utmost suspicion. Further, a recantation at a new trial is a confession to perjury which destroys the credibility of the witness.

(Citations omitted.)

In this case, Deanne Dennis testified at trial about facts that are, with the exception of a few details, generally consistent with what she told police during the investigation of this offense. She related to police that the defendant had asked her and other family members to lie about his whereabouts on the night of the murder, that the defendant had actually confessed to the murder, and that she had washed a pair of the defendant’s bloody jeans to eliminate that damning evidence against him.

As the state pointed out at the trial, the prosecutors paid for this witness to be housed in a hotel for her own safety due to “credible” death |isthreats she received from her own family as a result of her cooperation with police and prosecutors. The circumstances of Ms. Dennis’s recantation were thus highly suspect, and the trial court did not abuse its considerable discretion in refusing to conduct further inquiry into the questionable new evidence.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Randy THOMPSON, Appellant.
    No. 46,473-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.
    Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Madeleine Slaughter, Michael J. Fontenot, Fred Royce McGaha, Assistant District Attorneys, for Appellee.

      Before BROWN, STEWART, and MOORE, JJ.
   BROWN, Chief Judge.

hA jury convicted defendant, Randy Thompson, of simple burglary, a violation of La. R.S. 14:62. He was subsequently sentenced to serve ten years at hard labor with credit for time served. He has appealed claiming that there was insufficient evidence to convict for simple burglary and that the ten-year sentence is unconstitutionally harsh and excessive. We affirm.

Facts

The trial testimony showed that:

On September 23, 2009, at 3:00 a.m., Captain Richard Fuller of the Monroe Police Department stopped and questioned defendant, Randy Thompson, who at the time was riding a bicycle in the 2700 block of Breard Street in Monroe. Thompson was wearing a backpack. After obtaining defendant’s name, Captain Fuller discovered that Thompson had an active warrant for failure to appear. Captain Fuller called for backup and Corporal Jeremy Sturdivant responded. Thompson was arrested. A search of Thompson’s backpack revealed a case containing a pool stick, two screwdrivers, several CDs, a CD case, and registration and insurance papers for a Chevrolet Blazer owned by Jonathan Norbert. The registration and insurance papers were inside the CD case. At Thompson’s request, the items were released to his godparent, Willie Cook, who resides at 310 Cedar Street in Monroe. Defendant was staying with Cook, and the house was about a quarter of a mile from the scene of the stop. Prior to leaving the items with Cook, Corporal Sturdivant took a written inventory.

Later that evening, during his shift’s daily briefing, Officer Sturdivant was informed of a vehicular burglary at John’s Automotive involving aRyictim named Jonathan Norbert. Thereafter, Officer Stur-divant went back to Willie Cook’s house and retrieved the backpack and the items contained therein and logged them into evidence. At the conclusion of his shift the next morning, Officer Sturdivant briefed Detective Mark Johnson about the arrest of defendant and the vehicular burglary.

Officer Mickey Tucker of the Monroe Police Department testified that on September 23, 2009, at 9:00 a.m. he responded to a vehicular burglary complaint at John’s Automotive on North Stanley Road in Monroe. When Officer Tucker arrived, he found a Chevrolet Blazer with a broken window. The vehicle’s glove box and console were open. He was unable to find the registration and ran the license plate number. Officer Tucker then found that the Blazer was registered to Jonathan Norbert. Officer Tucker testified at trial, utilizing a demonstrative map, that Thompson was arrested in the vicinity of John’s Automotive.

Jonathan Norbert testified at trial that he received a phone call from his mechanic, John Wilson, around 10:00 a.m. on September 23, 2009. Wilson informed Norbert that someone had broken into his vehicle. Norbert had been in contact with Wilson every day since he left his vehicle at the shop. When Norbert arrived at John’s Automotive, he noticed that his pool cue and case, CDs, and CD visor case were missing. His vehicle registration and insurance card were also missing. He identified the items recovered from defendant’s backpack.

Detective Mark Johnson went to the Richwood Correctional Center and met with defendant. After being informed of and waiving his Miranda Rrights, defendant claimed that he won the CDs and CD case while playing a street game of poker. However, Thompson could not give Detective Johnson the name of any of the other card players, nor could he recall the exact location of the game. When questioned about the registration and insurance documents, Thompson responded that the police had planted the items in his backpack.

Detective Johnson contacted Norbert at his place of employment so that he could identify his stolen property. Norbert identified the CDs, CD case, pool cue and case, registration, and insurance card as his, but he stated that the screwdrivers were not. Detective Johnson testified that he had investigated approximately 30 burglaries where individuals used screwdrivers to break into cars.

Following Detective Johnson’s testimony, both the state and the defense rested. The jury found Thompson guilty as charged of simple burglary.

On December 14, 2010, Thompson’s sentencing hearing was conducted. The trial court noted its review of the factors listed in La. C. Cr. P. art. 894.1 and stated that it had received and considered a presentence investigation (PSI) report for Thompson. The PSI revealed that Thompson had been convicted of six felonies, including the instant charge. The trial court also noted Thompson’s personal history (his family ties, employment record, age and education). The trial court found that there was an undue risk that Thompson would commit another crime if not incarcerated, and that a lesser sentence would deprecate the seriousness of the crime. The |4trial court then sentenced Thompson to ten years at hard labor, with credit for time served. He was ordered to pay court costs, or in default thereof to serve an additional 90 days in jail. The trial court further ordered Thompson to pay Norbert $150.00 in restitution.

Sufficiency of the evidence

Thompson alleges that there was insufficient evidence to convict him of simple burglary. In support, Thompson argues that there was no direct evidence that he broke into Norbert’s vehicle, but only direct evidence that he was in possession of stolen property. There was no indication that the screwdrivers found in Thompson’s backpack were used to break into Norbert’s vehicle. Thompson also contends that the exact time of the burglary was not established and that the area where Norbert’s vehicle was parked was a high crime area. Thompson points out that there were no fingerprints or DNA evidence obtained from the vehicle. Thompson alleges that the state failed to exclude the reasonable hypothesis that someone else broke into Norbert’s vehicle and that Thompson won the stolen property in a poker game.

Simple burglary is defined in La. R.S. 14:62 as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most |fifavorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id.; State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now 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.02/22/06), 922 So.2d 517; State v. Brooks, 45,778 (La.App.2d Cir.03/02/11), 58 So.3d 506.

A reviewing court may intervene in the trier of fact’s decision only to the extent necessary to guarantee due process of law. State v. Pigford, supra. Accordingly, in cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt. Id.; State v. Braziel, 42,668 (La.App.2d Cir.10/24/07), 968 So.2d 853.

When viewed in the light most favorable to the prosecution, the evidence presented at trial was sufficient to convict Thompson of simple burglary. Norbert’s vehicle was found with a broken window around 9:00 a.m. on September 23, 2009. Norbert, who had been in daily contact with the mechanic working on his vehicle, was not notified of any burglary prior to that morning. At 3:00 a.m. on September 23, 2009, Captain Fuller stopped Thompson in an area close to where Norbert’s vehicle was | Rburglarized. After he was arrested on an active warrant, a search of Thompson’s backpack revealed that he was in possession of several items, including CDs, a CD case, a pool cue, and vehicle registration and insurance documents, all of which had been taken from Norbert’s vehicle. Thompson was also carrying two screwdrivers in his backpack. Police testified at trial that screwdrivers are often used to break into vehicles. The foregoing evidence was sufficient to prove that Thompson committed simple burglary.

Furthermore, the jury reasonably rejected Thompson’s hypothesis of innocence. When asked by police where he had obtained the stolen items, Thompson claimed that he had won the CDs and CD case during a street game of poker. However, he could not identify where the street game was played, or who was involved with the game. He alleged that police planted the vehicle registration and insurance documents and did not provide an explanation for his possession of the pool cue. He had no explanation for the presence of the screwdrivers in his backpack.

Excessive sentence

Thompson also claims that the ten-year sentence imposed in this case is excessive. In support of his contention, Thompson argues that the sentence is grossly out of proportion to the severity of the crime because the property damage was estimated at only $150 and the property was worth only about $500.

La. R.S. 14:62(B) provides that whoever commits the crime of simple burglary shall be fined not more than $2,000, imprisoned with or without hard labor for not more than twelve years, or both.

|7The record reveals that the trial court took cognizance of the aggravating and mitigating factors listed in La. C. Cr. P. art. 894.1. Specifically, the trial court discussed Thompson’s social history including five felony convictions, his criminal record, and its finding regarding the likelihood that he would commit another crime. Given Thompson’s prior criminal record, the trial court did not commit a manifest abuse of discretion in sentencing Thompson. The sentence is not grossly disproportional to the seriousness of the offense nor is it a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993).

Defendant’s conviction and sentence are AFFIRMED.