author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Torian DOUGLAS.
    No. 11-KA-7.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Ralph R. Alexis, IV, Tonia K. Williams, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2The defendant, Torian Douglas, has appealed his conviction following a bench trial of unauthorized entry of an inhabited dwelling in violation of LSA-R.S. 14:62.3. For the reasons that follow, we affirm defendant’s conviction and sentence and remand for the limited purpose of correcting a minute entry.

FACTS

At trial, Erin French (“Ms. French”) testified that she “casually dated” defendant, but they were not in a long-term relationship. On July 3, 2005, she was living with her parents at 4020 Crossmoor Street in Marrero, Louisiana. Ms. French testified that defendant never lived at the Crossmoor Street residence and did not have a key to the residence.

Sometime at the end of June 2005, Ms. French told defendant that she no longer wanted to see or talk to him. She explained that this was prompted when defendant purposefully answered a telephone call from a male business associate that was intended for her. Ms. French testified that defendant “went psycho on the | a guy” and punched the airbag on her car several times. Ms. French testified that afterwards she told defendant that she did not want to see him anymore, that she did not want him to call her anymore, and that she did not want him to visit her residence anymore. Nonetheless, defendant continued to call Ms. French.

Ms. French further testified that on the night of July 2, 2005, defendant called and told her that he wanted to come visit her when he was on his break while working at a local Wal-Mart. Ms. French “basically told him no.” She was concerned because her parents were out of town and her German Shepherd was in the kennel.

As Ms. French was returning home from work at approximately 2:00 a.m. on the morning of July 3, 2005, a neighbor invited her over, telling her that he had “some pizza and some friends over.” Ms. French proceeded home and at some point after she entered her house, defendant called her. She testified that she spoke to defendant “mainly just to say like please stop calling and then at one point, I just stopped answering.”

At approximately 2:30 a.m. that same morning, someone knocked on the front door of Ms. French’s residence on Crossm-oor Street. After noticing that the peephole to the front door was covered up, Ms. French assumed that the person who had knocked on the door was her neighbor playing a joke on her. She explained that she opened the front door “enough to be able to see who it was.” At that point, defendant pushed the door in and forced his way into Ms. French’s home. Ms. French testified that defendant then grabbed her by the neck and punched her three times in the face.

After the incident, defendant told Mrs. French that he was sorry. She testified that she asked defendant to leave, stating that she would not tell anyone about this incident. Defendant proceeded to leave. Ms. French then called a |4nearby friend and 911. Ms. French testified that she did not invite defendant into her residence and that defendant did not have permission to enter her residence on July 3, 2005.

On cross-examination, Ms. French admitted that defendant had been to her home before and had met her parents. She was also questioned regarding a voluntary statement she made to the police after the attack. The statement indicates that Ms. French told a police officer “when I opened the door, [defendant] attacked me.” Ms. French responded that she did not tell the officer that she opened the door for defendant.

Melissa French, Ms. French’s mother, testified that defendant never lived at the Crossmoor Street residence, that he did not have a key to the house, that he never spent the night at the house, and that he did not have her permission to enter the house. She also testified that her daughter dated defendant for approximately one month before the July 3, 2005 incident. She admitted that she had met defendant and that defendant had been in her house before. She was out of town at the time of the incident.

Defendant testified that he met Ms. French in January of 2005 and they began dating shortly thereafter. According to defendant, he eventually moved into the Crossmoor Street residence with Ms. French. He further stated that he and Ms. French shared her key to the house.

Defendant further testified that on the morning of July 3, 2005, he and Ms. French were still dating. He explained that he had previously heard “from a couple of friends that [Ms. French] was cheating or whatever.” Defendant testified that he called Ms. French and told her that he was going to visit her on his break, to which Ms. French replied “Okay.”

| ¡¡According to defendant, when he arrived at the Crossmoor Street residence, Ms. French opened the door for him. He denied forcing his way in or covering the peephole. Defendant testified that after talking with Ms. French for 10 or 20 minutes, “her phone rung and it was the guy, I guess or whatever, and she didn’t want to answer the phone.” At that point, defendant began to pack up personal items that were present in Ms. French’s bedroom because he didn’t “want to be here anymore.” Defendant testified that Ms. French did not want him to leave and tried to stop him from leaving by grabbing and holding him back. Defendant admitted that at that point, he “swung to like, you know, like shoving her basically to get off of me and, you know, I hit her basically.”

In finding defendant guilty at the conclusion of trial, the trial court stated:

After listening to the testimony of the witnesses and reviewing the exhibits and also the law pertinent to the case, I find that it is a matter of determining the truth in the stories that have been presented to the court. Mr. Douglas testified that he had a long-standing relationship with the victim that lasted from January or February of 2005 until July and actually lived at the residence where the incident occurred. That testimony was not corroborated by any witnesses that support [sic] his version of that. On the other hand, Ms. French testified that they had a casual relationship and they dated a few times during the month prior to the incident and that he never resided there. Her testimony on those issues were [sic] corroborated by her mother.
But the most compelling evidence that I thought the state presented to direct the court in determining who was telling the truth was the 911 tape when the statements made by the victim herself, most importantly the statement that my ex-boyfriend pushed the door in was made just about contemporaneously with the incident itself proves to the court that her version of the incident is the truthful version. Therefore, the court finds the defendant guilty of unauthorized use [sic] of an inhabited dwelling and the law provides that the unauthorized entry of an inhabited dwelling is the intentional entry by any person without authorization into any inhabited building or structure. The court finds that the evidence supports that’s exactly what Mr. Douglas did and, therefore, finds him guilty as charged.

| fiAfter his motion for a new trial was denied, defendant was sentenced to two years imprisonment at hard labor. This appeal followed.

ASSIGNMENT OF ERROR NO. TWO

The evidence was insufficient to uphold the conviction for unauthorized entry of an inhabited dwelling.

In this assignment of error, defendant argues that “he was allowed into [Ms. French’s] house, just as he had been allowed into her house in the past, and that an unauthorized entry was not in fact committed.”

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

Unauthorized entry of an inhabited dwelling is defined by LSA-R.S. 14:62.3(A) as the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person. An unauthorized entry is an entry without consent, express or implied. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 931, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). In the case of a private residence, a person must have the consent of the occupant or an occupant’s agent to constitute a defense to unauthorized entry. Id. Unauthorized entry of an inhabited dwelling requires general intent. State ex rel. D.J., 00-1592 (La.App. 5 Cir. 3/28/01), 783 So.2d 558, 560-61. General criminal intent is present when the circumstances indicate that the offender “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act.” LSA-R.S. 14:10(2).

In State v. Gandy, 45,947 (La.App. 2 Cir. 2/2/11), 57 So.3d 1163, the defendant was charged with and convicted of unauthorized entry of an inhabited dwelling. The charge against the defendant stemmed from an incident in which the defendant entered the home of his former girlfriend without consent. Id. at 1164-65. At trial, the victim testified that the defendant was a former boyfriend and that the defendant “stalked” her and called her constantly after their relationship ended. The defendant testified on his own behalf. Id. at 1165. The defendant asserted that he had visited the victim’s home every day since his release from jail six weeks prior to the incident. He claimed that he and the victim were in a relationship for four years and that he would sneak into her home after her live-in boyfriend left for work. Id. On appeal, the defendant contented that the evidence used to convict him was insufficient. The second circuit disagreed, reasoning:

It is undisputed that defendant and [the victim] had an intimate relationship, and that defendant had permission to enter [the victim’s] home on prior occasions. Permission to enter one day, however, does not give one carte blanche authorization to enter any time he wishes. It is [the victim’s] uncontradicted testimony that on the date of the incident she repeatedly denied defendant entry into her home and repeatedly asked him to leave her property. Nevertheless, defendant entered the home and forced his way into [the victim’s] bathroom while she was bathing. Regardless of whether defendant let himself in, or, as defendant testified, [the victim’s] ten-year-old son opened the door for him, it is clear that there was sufficient evidence for the jury to conclude that defendant entered [the victim’s] home on July 3, 2009, without the consent of a person with the authority and/or capacity to consent.

Id. at 1166-67 (citations omitted).

In State v. Armstrong, 99-925 (La.App. 5 Cir. 2/16/00), 756 So.2d 533, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182, cert. denied, 534 U.S. 1058, 122 S.Ct. 651, 151 L.Ed.2d 568 (2001), the defendant had entered the victims’ residence with permission in the past, but forced his way into the residence on the night in question, according to the State’s witnesses. This Court found the evidence sufficient to convict the defendant of intentional entry of the home without authorization. Id.

Similarly, in this case, Ms. French testified that she “casually dated” defendant. She further testified that she terminated their relationship and that thereafter defendant continued to call and harass her. According to Ms. French, defendant called her in the early morning hours of July 3, 2005 and asked to see her, a request Ms. French declined. Ms. French then testified that she responded to a knock on her front door by opening the door slightly to see who was outside. At that point, defendant pushed the door in, forcing his way into her home. Melissa French, Ms. French’s mother, testified that defendant never lived at her home, did not have a key to the house, never spent the night at the house, and did not have her permission to enter the house. She also corroborated her daughter’s testimony that her daughter and defendant dated for approximately one month. The trial court also noted that the 911 tape weighed heavily in his decision. The tape was made shortly before 3:00 a.m. on the morning of July 3, 2005. In the tape, an obviously very upset Ms. French told the 911 dispatcher that defendant pushed her door in.

On the other hand, defendant testified that Ms. French let him into the residence willingly, after which they began to talk. According to defendant, when he began to leave, Ms. French tried to stop him. Defendant further testified that he struck Ms. French to get her “off of him.”

18It is obvious from the reasons given by the trial court that the trial court found Ms. French’s testimony more credible than that of defendant.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. White, 472 So.2d 130, 132 (La.App. 5 Cir. 1985). The credibility of witnesses will not be reweighed on appeal. Rowan, 694 So.2d at 1056. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293 (per curiam) (citation omitted).

The State presented evidence that defendant forced his way into Ms. French’s home. Thus, viewing the evidence in the light most favorably to the prosecution, we find the evidence was sufficient under the Jackson standard to support the conviction of unauthorized entry of an inhabited dwelling.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. ONE

The trial court erred in allowing the admission of the facts of the simple battery to be used as evidence of unauthorized entry of an inhabited dwelling against Mr. Douglas.

Defendant next argues that the trial court erred in holding that the evidence of the battery on Ms. French was admissible at trial. Defendant complains that none of the factors listed in Louisiana Code of Evidence art. 404(B) apply to this case, and that the evidence was unduly prejudicial. Defendant additionally | incomplains that “[i]n ruling on the other crimes evidence issue, the trial judge did not state which factor provided the basis for the admission of the evidence, seeming to fall in line with the State’s written motion that it was relevant as res gestae.” We find no merit to this argument.

Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. State v. Prieur, 277 So.2d 126, 128 (La.1973). Louisiana Code of Evidence art. 404(B)(1) provides, however, that:

[e]xcept as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Evidence that constitutes an integral part of the crime, formerly known as “res gestae,” is admissible without any pri- or notice to the defense. State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close connexity is required between the charged and uncharged conduct to assure that the purpose served by admission of the other crimes evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place, rather than to depict the defendant as a bad person. Id. As recognized by this Court,

[t]he test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State’s case of narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.”

State v. Rhea, 03-1273 (La.App. 5 Cir. 2/23/04), 868 So.2d 863, 867 (quoting Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).

The defendant bears the burden to show that he was prejudiced by the admission of other crimes evidence. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165-166. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404(B)(1) will not be disturbed. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

The facts of this case are similar to Gandy, supra. On appeal in that case, the defendant attempted to testify concerning statements made by the victim both before and during the incident charged, but the State successfully objected. The second circuit held that “[w]hat was said during the course of the crime was res gestae and not hearsay.” Gandy, 57 So.3d at 1167.

In State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494, writ denied, 03-0491 (La.10/31/03), 857 So.2d 472, the defendant was charged with unauthorized entry of an inhabited dwelling, unauthorized use of a motor vehicle, simple burglary, extortion and three counts of intimidating a witness. Finding no error in the trial court’s denial of the defendant’s motion to sever the offenses, this Court explained,

[t]he seven charges were all part of the same course of conduct. Even if the trial court had allowed severance of the counts in the manner in which defendant suggests, evidence of the burglary, unauthorized entry, and unauthorized use of a motor vehicle would have been admissible as integral parts of the charges of extortion and intimidating a witness.

Id. at 507.

In State v. Willis, 510 So.2d 411 (La.App. 2 Cir.1987), writ denied, 534 So.2d 440 (La.1988), the defendant was convicted by a jury of unauthorized entry of an inhabited dwelling. At trial, it was determined that the defendant gained | ^unauthorized entrance to a private residence by climbing through a kitchen window. This individual proceeded to a bedroom where a 14-year-old girl was asleep in her bed. The defendant pulled the bed sheets down from around the girl and began to pull her night gown up when she awoke and started screaming for her brother who was asleep in an adjoining room. The brother’s response caused the intruder to bolt toward the front of the house and escape through the opened window in the kitchen. Id. at 413.

On appeal, the defendant contended that the trial court erred in denying his motion for mistrial. Specifically, the defendant contended that the trial court erred based upon comments in the prosecutor’s opening statement wherein the prosecutor stated that the defendant there “went into [the 14-year-old girl’s] room, lifted up her gown, she screamed, he left.” Id. at 413-14. The second circuit determined “that the trial court was correct in denying the motion for a mistrial” because “[i]t is evident from the record that the asserted conduct, in proceeding to the bedroom and lifting the gown of the girl after illegally entering the dwelling, is so closely entwined in the conduct charged that it must be construed as a necessary incident of the criminal act.” Id. at 414.

In this case, Ms. French testified that defendant forced his way into her home and immediately began to attack her. Thus, based on the above jurisprudence, the testimony regarding defendant’s conduct in striking Ms. French was so closely entwined in the unauthorized entry charge that it was properly admitted at trial as evidence that constitutes an integral part of the crime, formerly known as “res ges-tae.” This assignment of error is thus without merit.

I, ¿ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

A review of the transcript reflects that defendant was not advised of the time delay within which to file an application for post-conviction relief. Although the commitment reflects that defendant was correctly informed, the trial transcript only states that the trial court sentenced defendant to a term of imprisonment of two years at hard labor. Where the transcript and the minute entry conflict, the transcript governs. State v. Jarrow, 08-743 (La.App. 5 Cir. 2/25/09), 9 So.3d 905, 910; State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded to the district court which is ordered to amend the commitment to conform to the transcript.

Further, we hereby advise defendant that, pursuant to LSA-C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See, State v. Davenport, 08-463, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 457, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the minute entry to conform' with the transcript as ordered above..

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . A multiple bill of information was filed against defendant but those proceedings are not part of this appeal.

      . When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. State v. Hearold, 603 So.2d 731, 734 (La.1992). We will therefore address sufficiency of the evidence first.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Donna DAVIS, Individually and as Succession Representative of the Estate of Dannie R. Breaux v. CATLIN SPECIALTY INSURANCE COMPANY, John Capitano, Jr. d/b/a Capitano’s Truck and Callie C. Capitano.
    No. 11-CA-150.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    James B. Guest, Attorney at Law, Ken-ner, LA, for PlaintiffiAppellee, Donna Davis, Individually and as Succession Representative of the Estate of Dannie R. Breaux.
    Steven E. Soileau, Isaac E. Khalid, Mayer, Smith & Roberts, L.L.P., Attorneys at Law, Shreveport, LA, for Defendant/Appellant, Catlin Specialty Insurance Company.
    Ronald P. Whittington, Attorney at Law, Gretna, LA, for Defendants/Appellees, John Capitano, Jr. and Callie C. Capitano.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

12This is a wrongful death and survivor-ship action arising from the death of Dannie R. Breaux. At issue on this appeal is a grant of summary judgment in favor of the individual defendants, finding there is coverage under the defendant insurer’s policy. We affirm.

Dannie Breaux died in a fire on December 19, 2008, on the premises of Capitano’s Truck Repair in St. Rose, Louisiana. This lawsuit was filed by Breaux’s sister, Donna Davis, individually and as succession representative of the Estate of Dannie R. Breaux. Davis named as defendants Cat-lin Specialty Insurance Company, as insurer of Capitano’s, and John Capitano, Jr. and his wife Callie C. Capitano, as owners of the premises and of the business. The plaintiff alleged the Capitanos were negligent and that their negligence led to her brother’s death.

Catlin filed a motion for summary judgment on the basis that its policy does not cover the plaintiffs claims because it is a policy of garage operations liability insurance, but this accident did not arise out of garage operations.

The Capitanos also filed a motion for summary judgment, seeking a ruling that the policy does provide coverage.

The Catlin insurance policy’s declarations pages describe the policy as “garage liability insurance.” The applicable liability clause provides coverage for ^bodily injury or property damage “caused by an accident and resulting from garage operations other than the ownership, maintenance or use of covered autos.” The policy defines “garage operations” as “the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations.” “Garage operations” also include all operations necessary or incidental to a garage business.

The district court denied Catlin’s motion for summary judgment. Catlin sought review of the denial of its motion via writ application to this Court and to the state supreme court, both of which denied writs.

Subsequently, the court granted the Capitanos’ motion for summary judgment, with written reasons within the judgment:

The Court finds that the policy issued by Catlin Specialty Insurance Company to Mr. and Mrs. Capitano provides coverage for the plaintiffs’ claims....
The definition of “garage operations” includes three possible situations under which coverage would apply: (1) ownership, maintenance [or] use of the business’ “location”; (2) ownership, maintenance [or] use of scheduled automobiles; and (3) other “operations necessary or incidental to a garage business.” The evidence is unrefuted that the Capitanos operate a garage business located in a building which they own. The plaintiffs base their claims on allegations of negligence involving the building where the Capitanos operate their garage business. Accordingly, the claims arise from the Capitanos’ “ownership, maintenance or use” of the location of their garage business. Under the language of the policy, whether the business was open and operating at the time of the fire is irrelevant. It is the ownership of the location itself by the Capitanos that give[s] rise to liability coverage under Section II of the policy. [Footnote omitted; emphasis in original.]

Catlin has appealed.

I/The standard of review on the grant of a motion for summary judgment is de novo. O’Connor v. Nelson, 10-250, p. 10 (La.App. 5 Cir. 1/11/11), 60 So.3d 27, 34. The court must examine the record to determine whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

Catlin makes the following assignments of error:

(1) The trial court erred in granting summary judgment in favor of the Capita-nos because there are genuine issues of material fact as to whether the garage operations insurance policy issued by Cat-lin Specialty Insurance Company provided coverage for Dannie Breaux’s death; and

(2) The trial court erred in finding that liability under the garage operations insurance policy arose due to the insured’s mere ownership of the premises.

We find no merit to Assignment No. 1, because Catlin fails to show there are any material contested facts. Our analysis shows the issue is a question of law, which we must interpret. Hence, we address only Assignment No. 2, whether ownership of the premises is sufficient to trigger coverage under the policy.

Catlin contends the insured’s mere ownership of the premises is not sufficient to trigger liability for bodily injury where the deceased claimant started a fire himself, was a non-employee, and was asleep on a couch outside of business hours. Catlin asserts it issued a garage operations policy to Capitano’s Truck | ¡¡Repair, but that Breaux’s death occurred as a result of a fire while he was sleeping at night in Capi-tano’s Truck Repair and did not arise from garage operations.

It is uncontested that the Capitanos are the owners and operators of Capitano’s Truck Repair located at 310 Almedia Road, St. Rose, Louisiana; that Catlin Specialty Insurance Company issued a policy of garage operations liability to Capitano’s Truck Repair; that the decedent, Dannie Breaux, was sleeping in the office of Capi-tano’s Truck Repair on December 20, 2008, when a fire started, causing his death by smoke inhalation; that Dannie Breaux was allowed by John Capitano to sleep at the garage gratuitously because Breaux had no home; and that Breaux was not an employee of Capitano’s Truck Repair.

Catlin asserts that Dannie Breaux’s sleeping on a couch at Capitano’s Truck Repair, and the fire that caused his death, did not arise out of the garage operations of Capitano’s Truck Repair. The couch was being used for personal use after business hours. Alternatively, even if it were to be found that Breaux was an employee of Capitano’s Truck Repair, Catlin asserts the result would be no different, because Catlin’s policy also excludes bodily injuries to employees arising out of their employment. Further, even if Breaux were an employee and was sleeping on the couch after hours because he was homeless, his death did not arise out of garage operations.

In their motion for summary judgment, the Capitanos sought a ruling that the policy provides coverage for the actions or inactions alleged in the plaintiffs petition. The Capitanos concurred with Catlin that Dannie Breaux was sleeping on a couch in the office of Capitano Truck Repair, and he died from smoke inhalation | ñas a result of a fire that destroyed the premises. Danny Breaux was not an employee of the Capitanos and did no work for them.

The Capitanos disagreed with Catlin on the nature of the policy, contending that the policy issued to the Capitanos by Cat-lin is garage liability coverage, not garage operations coverage. The Capitanos asserted that although the policy provides coverage for garage operations, under the policy definition of “garage operations” the policy provides coverage for the actions or inactions alleged in plaintiffs petition.

The premises liability coverage clause of the policy states as follows:

SECTION II — LIABILITY COVERAGE
A. Coverage,
1. “Garage Operations” — Other Than Covered “Autos”
a. We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies caused by an “accident” and resulting from “garage operations” other than the ownership, maintenance or use of covered “autos”.

The policy further provides in SECTION VI — DEFINITIONS at subsection H:

“Garage operations” means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations.... “Garage operations” also include all operations necessary or incidental to a garage business.”

Thus, “garage operations” is broadly defined by the policy, but specifically includes the following: (a) ownership of locations for garage business, (b) maintenance of locations for garage business, (c) use of locations for garage [ 7business, (d) all operations necessary to garage business, and (e) all operations incidental to garage business.

Catlin argues that the garage operations definition is two-pronged: The first prong being “ownership, maintenance or use of locations for garage business and that portion of roads or other accesses that adjoin these locations ...” and the second prong being “all operations necessary or incidental to garage business.” As written, Catlin contends, the definition requires that the activity giving rise to the injury be “necessary or incidental to a garage business.”

In opposition to the appeal, both the plaintiff and the Capitanos have filed ap-pellee briefs.

The plaintiff argues,

The policy clearly provides coverage for an “accident” resulting from “garage operations.” “Accident” is defined in the policy to mean “bodily injury.” “Garage operations” is defined in the policy to mean ownership, maintenance or use of locations for garage business. The activity causing the bodily injury does not have to be necessary or incidental to a garage business.

A dictionary definition of “accidental” is “occurring unexpectedly or by chance ... happening without intent or through carelessness and often with unfortunate results.” Merriam-Webster’s Collegiate Dictionary 7 (11th ed.2008). Certainly the death of Dannie Breaux caused by a fire in the business property constitutes an “accident.”

The next element, “garage operations,” is met simply by the fact that the injury occurred in the business premises. The Catlin policy requires an “accident” resulting from “garage operations,” which is defined to mean simply ownership, maintenance or use of a garage business. It also includes all operations “necessary or incidental” to a garage business. The Capita-nos here clearly owned, maintained and used a garage business, at which the accident occurred.

|sThe Capitanos contend that the presence of the word “ownership” in the definition of garage operations is intended to provide coverage for premises defects even though the injury does not occur during the actual conducting of garage business:

Had Catlin intended to restrict coverage as it now seeks in its policy interpretation, it could have easily done so by inserting the exclusionary or restrictive provisions as it did in other sections of the policy....
Such change could have been easily accomplished by redefining “garage operations” to mean: “Garage operations means the ownership, maintenance or use of locations for garage business while actually engaged in the conduct of garage business.” It chose not to and, in fact, as set forth above, the policy specifically states otherwise in clear and unambiguous terms.

We agree with the district court and the appellees. The presence of the decedent Breaux in the business premises did not have to be “necessary or incidental” to garage operations. The claims arising from Breaux’s death are covered because John Capitano and Callie Capitano d/b/a Capitano’s Truck Repair owned, maintained and used the building for garage business.

The cases cited by the appellant are inapposite, because none of them addressed the ownership-of-the-premises aspect. It is irrelevant whether the business was open and operating at the time of the fire; similarly, it is irrelevant why Breaux was on the premises. Under the language of the policy, it is the ownership of the premises as a garage business by the Cap-itanos that gives rise to coverage.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Catlin Specialty Insurance Company.

AFFIRMED

      . Davis v. Catlin Specialty Ins. Co., 10-939 (La.App. 5 Cir. 1/25/11) (unpublished writ disposition), writ denied 2011-0401 (La.4/8/11), 61 So.3d 691.

      . Although this judgment grants a motion for summary judgment, it is not a final judgment because it concerns only part of the case, specifically whether there is insurance coverage for the claims made by the plaintiff. Under La. C.C.P. art. 1915(B)(1), however, it is appealable as a partial summary judgment as to "one or more but less than all of the claims, demands, issues, or theories,” that has been "designated as a final judgment by the court after an express determination that there is no just reason for delay.” The trial judge stated in the judgment,
      "The Court previously denied Catlin’s Motion for Summary Judgment and Cat-lin has filed an application for supervisory writs to the Louisiana Fifth Circuit. The Court finds that there is no reason to delay the definitive determination of coverage in the appellate process since proceeding further in this matter would be a waste of judicial economy should an appellate court disagree with the Court’s determination that coverage is provided under the Catlin policy after a full trial on the merits.”
      As previously noted, Catlin’s writ application from the denial of its Motion for Summary Judgment was denied.

      . In support of the motion, Catlin cited deposition testimony of John Capitano, who said that Breaux was not an employee and did not do any work at the shop. According to Capi-tano, Breaux was homeless and had been living in a dumpster. Capitano was allowing Breaux to stay at the truck repair shop out of kindness. Breaux slept on a couch on the premises.


author: PAUL A. BONIN, Judge.

text:
    Tracy ELFERS v. AIG NATIONAL INSURANCE COMPANY, INC., AIG Transportation Agency, AIG Transport Insurance Group, Cobra Trucking, Incorporated, and Oscar Ferguson.
    No. 2011-CA-0596.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 2011.

      Harry E. Cantrell, Jr., The Cantrell Law Firm, New Orleans, LA, for Plain-tifi/Appellant.
    Stephen Begnaud Emling, Bastían & Associates, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hThe trial court’s judgment, rendered in conformity with the jury’s verdict, apportioned fault in this motor vehicle accident 20% to Tracy Elfers, the plaintiff, and 80% to Oscar Ferguson, a defendant. Ms. El-fers timely filed a motion for judgment notwithstanding the verdict, or JNOV, in which she sought a modification of the judgment allocating no comparative fault to her and all fault to Mr. Ferguson. Following the trial court’s denial of her motion, she timely filed this devolutive appeal.

Because we find after a de novo review of the entire trial record that the facts and inferences do not point so strongly and overwhelmingly in Ms. Elfers’ favor on this point that reasonable persons could not reach a different conclusion, we conclude that the judgment denying her motion for JNOV is correct and we affirm.

Our analysis follows.

I.

Mr. Ferguson was operating an eighteen-wheel tractor and flat-bed trailer rig on an elevated portion of Interstate 55 near Manchac, Louisiana. He was traveling in the right lane of the two-lane highway. Ms. Elfers was driving her automobile in the left lane at a distance behind Mr. Ferguson’s tractor-trailer. It was daylight on a clear day.

Mr. Ferguson explained that he was travelling about 57 mph and was approaching a vehicle ahead of him that was travel-ling at a slower rate of speed. According to his testimony, he looked in his rearview mirror, observed Ms. Elfers’ vehicle trav-elling at a speed which he estimated to be 55 mph, activated his left turn signal, and began changing from the right lane to the left lane. Before the maneuver was completed or, as he testified, as he was getting “straightened” in the left lane, his rig and Ms. Elfers’ vehicle collided, forcing her vehicle to also collide with a concrete highway barrier or wall. Photographs of Ms. Elfers’ vehicle at the scene and shortly afterward show damage on the right side, or passenger side, of her car as a result of the directly colliding with the tractor-trailer. Mr. Ferguson admitted to receiving a citation for a traffic violation and of paying the fine.

Ms. Elfers, who did not seek medical treatment that day, explained that she had become unconscious as a result of the collision and many details of the accident are lost to her memory. She did, however, specifically recall as she was passing the tractor-trailer that she had looked at the tractor’s rearview mirror and observed that Mr. Ferguson was not looking in his mirror, that the tractor-trailer’s | ¡¡turning signal was not activated, and that she was about half-way past the back of the tractor-trailer when it collided with her.

Ms. Elfers did not provide the jury with an estimate of her speed at the time of the collision. Mr. Ferguson’s counsel questioned her whether she told the investigating trooper that she had been travelling at 80 mph. She first testified that she may have told that to the trooper, but she was so hysterical following the accident that she does not know what she may have said. When pressed whether she denied making the statement, she reiterated that she did not recall.

The trooper did not testify. There were no other witnesses on the issue of causation or fault.

II

In this Part we address the various legal standards which control our decision.

In order to grant a JNOV motion under La. C.C.P. art. 1811, a trial court applies a rigorous standard based upon the principle that when there is a jury, the jury is the trier of fact. See Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986). From this principle it follows that only “when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict” is a JNOV warranted. Joseph v. Broussard Rice Mill, Inc., 02-0628, p. 4 (La.10/30/00), 772 So.2d 94, 99. It is not sufficient that there be a preponderance of evidence in favor of the mover. Id. The more rigorous standard is that “reasonable persons |4could not reach different conclusions ...” Id. In ruling on the JNOV motion, a trial court may not weigh or evaluate the credibility of witnesses. See Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). And a trial court must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id.

We, as an appellate court, review the granting or denying of a JNOV de novo. We use the same criteria, without any deference to the trial court’s decision, to ask ourselves the question, “do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict?” Joseph, 02-0628, p. 5, 772 So.2d at 99. If our answer is in the affirmative, then we will conclude that a JNOV should have been rendered; if negative, then the motion should have been denied. Id.

The verdict at issue is the jury’s finding that Ms. Elfers’ damages should be proportionately reduced by 20% on account of her own partial fault. See La. Civil Code Art. 2328 A, and La. C.C.P. Art. 1812 C(3). Ordinarily, we would review a fact-finder’s apportionment of fault under the manifest error-clearly wrong standard. See Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610 (holding that the finding of percentages of fault pursuant to the comparative fault article is a factual determination). But Ms. Elfers seeks only our de novo review under the more rigorous standard of decision for denial of a JNOV. Cf., e.g. Burns v. CLK Investments V, L.L.C., 10-0277, p. 21 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1165 (a case in which we wrote, “Because we have already concluded that the jury’s findings of fact were not clearly wrong and were reasonable, we disagree with the Burnses that the trial court should have rendered a judgment notwithstanding the verdict.”). Consequently, because we limit granting a JNOV “to cases where the jury’s verdict is absolutely unsupported by any competent evidence,” we turn next to consider whether any competent evidence supports the jury’s verdict. Cattles v. Allstate Inc. Co., 09-1576, pp. 6-7 (La.App. 4 Cir. 8/4/10), 45 So.3d 627, 631.

III

Before determining what evidence the jury had before it in apportioning any fault to Ms. Elfers, we explain in this Part why wé find that there was no evidence before the jury that Ms. Elfers was traveling at an excessive rate of speed. There is no evidence that Ms. Elfers made any such statement about which she was questioned regarding speeding on the interstate at 80 mph.

If Ms. Elfers made such a statement, it would not be inadmissible hearsay because it would be a “statement offered against a party and is ... [her] own statement ...” La. C.Evid. Art. 801(2)(a). But Ms. Elfers did not unqualifiedly admit to making the statement. Rather, Ms. Elfers testified to a lack of memory of the subject matter of her statement. See, e.g., La. C.Evid. Art. 804 A(3).

Because Ms. Elfers did not admit to making the statement and Mr. Ferguson produced no witness or other evidence that such a statement had been made by her, IfiWe disregard any implication or inference that she had made the statement or had been traveling at an excessive rate of speed at the time of the collision.

We turn now to the evidence which the jury had before it on the issue of fault.

IV

There is, of course, no dispute that Mr. Ferguson was at fault in causing Ms. Elfers’ damages. Violations of statutes provide guidelines for civil liability. See Galloway v. State, Dept. of Transp. and Development, 94-2747, p. 5 (La.5/22/95), 654 So.2d 1345, 1347.

One rule of the road, applicable on highways divided into two or more clearly marked lanes for traffic, is that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” LA. R.S. 32:79(1) (emphasis added); see also La. R.S. 32:104 A. Moreover, a person shall use his vehicle’s lamp signals to indicate his intention to change lanes. See La. R.S. 32:104 D and 105 B. The greater burden is on the motorist changing lanes that it can be accomplished safely. Averna v. Industrial Fabrication and Marine Service, Inc., 562 So.2d 1157, 1161 (La.App. 4 Cir.1990). This heightened duty of the motorist changing lanes encompasses the risk that a premature maneuver will result in a collision with an oncoming vehicle before the completion of the lane change. See Brewer v. J.B. Hunt Transport, Inc., 09-1408, pp. 20-21 (La.3/16/10), 35 So.3d 230, 244.

|7But activation of the lamp signal prior to and during a change of lanes serves also as a warning to following or oncoming motorists of the forward driver’s intention. The oncoming motorist may not fail to keep a proper lookout or react timely. Id. p. 21, at 244. For an oncoming motorist who is travelling within the speed limit in the left lane, a reasonable reaction upon noticing the activated left turn signal would be to slow down slightly and move leftward in anticipation of the forward vehicle changing lanes. See Picou v. Ferrara, 483 So.2d 915, 919-920 (La.1986). If the oncoming motorist then observed that the forward vehicle was delaying changing lanes and made eye-contact with the forward motorist, it would not be unreasonable for the oncoming motorist to attempt to pass the vehicle in the right hand lane. Id.

Here, Mr. Ferguson testified that he activated his turn signals. Ms. Elfers testified that he did not. But neither the trial court nor an appellate court can weigh the strength of either’s claim on a JNOV. In deciding the JNOV motion, we accept the evidence of Mr. Ferguson as the prevailing party before the jury. We also accept that from that evidence a reasonable inference by the fact-finding jury would be that, because she failed to keep a proper look out, Ms. Elfers did not see the turn signal and did not react timely to the warning of Mr. Ferguson’s intention to change into her lane of travel. Here also, Ms. Elfers testified that there was no eye-contact between her and Mr. Ferguson. Thus, her proceeding forward in her travel lane despite Mr. Ferguson’s signaling his intention could under the circumstances be unreasonable.

|¡jWe, therefore, disagree with Ms. El-fers’ contention that reasonable persons could not arrive at a finding that she was at some fault in causing her own damages. Because reasonable persons could arrive at the verdict returned by the jury in this case, the trial court correctly denied Ms. Elfers’ JNOV motion.

DECREE

The judgment appealed from is affirmed.

AFFIRMED

      . The other defendants are Mr. Ferguson's employer, Cobra Trucking, Incorporated, and their insurer, Insurance Company of the State of Pennsylvania.

      . The order denying the motion for JNOV is interlocutory and not an appealable judgment. See La. C.C.P. Art. 1914 C; VaSalle v. Wal-Mart Stores, Inc., 01-0462, pp. 8-9 (La.11/28/01), 801 So.2d 331, 337. Ms. El-fers, however, urges as error only the trial court’s denial of her JNOV motion and does not seek a modification of the judgment based upon the jury's verdict on any other basis. See La. C.C.P. Art. 2129; Rule 2-12.4, Uniform Rules—Courts of Appeal; Burns v. CLK Investments V, L.L.C., 10-0277, p. 21 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1165. But also see Merrill v. Greyhound, 10-2827 (La.4/29/11), 60 So.3d 600.

      . If an appellate court concludes that a fact-finder’s apportionment is clearly wrong, “it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.” Clement, 95-1119, pp. 7-8, 666 So.2d at 611. Here, in effect, Ms. Elfers seeks only an “all or nothing” adjustment. Thus, we are not required to evaluate the apportionment under the Watson factors. See Watson v. State Farm Fire & Cos. Ins. Co., 469 So.2d 967 (La.1985).


author: JAMES F. McKAY III, Judge.

text:
    Dwayne ALEXANDER v. Wayne R. CENTANNI d/b/a and Centanni Investigative Agency.
    No. 2011-CA-0783.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 2011.
    Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, for Plaintiff/Appellant.
    Thomas G. Buck, David B. Parnell, Jr., Blue Williams, L.L.C., Metairie, LA, for Defendant/Appellee, Wayne Centanni.

      Thomas L. Gaudry, Jr., Michael D. Pey-tavin, Gaudry Ranson Higgins & Gremil-lion, L.L.C., Gretna, LA, for Defendant/Appellee, Centanni Investigative Agency, Inc.
    (Court composed of Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| ,In this unfair trade practices case, the plaintiff, Dwayne Alexander, appeals the trial court’s granting of a special motion to strike pursuant to La. C.C.P. art. 971 filed by the defendants, Wayne Centanni and Centanni investigative Agency. The trial court awarded attorneys’ fees and costs to the defendants and denied the plaintiffs motion for a new trial. For the following reasons, we reverse the judgment of the trial court and remand the matter for a new trial.

FACTS AND PROCEDURAL HISTORY

Mr. Alexander filed a petition for unfair trade practices and damages, naming Wayne R. Centanni and Centanni Investigative Agency (“CIA”) as defendants. Mr. Centanni and CIA hired separate counsel to assist in the defense of the matter. Mr. Alexander and Mr. Centanni are both private investigators; the lawsuit arose from the alleged attempts by Mr. Centanni to drive Mr. Alexander out of business. Discovery ensued, including the deposition of Mr. Alexander. |2After the deposition of Mr. Alexander, Mr. Centanni and CIA each filed a special motion to strike pursuant to La. C.C.P. art. 971. The court granted the motions and dismissed the claims of Mr. Alexander against Mr. Cen-tanni and CIA.

Following the issuance of the judgment of dismissal, Mr. Centanni and CIA filed motions to tax costs and for attorneys’ fees pursuant to La. C.C.P. art. 971. Mr. Cen-tanni sought a total of $1,013.05 for costs and $18,007.50 for attorneys’ fees. CIA sought a total of $1,373.85 for costs and $30,201.50 for attorneys’ fees. Mr. Alexander opposed the motions, arguing that the requests for attorneys’ fees and costs should be denied in their entirety or, in the alternative, only be allowed to the extent that they directly relate to the motion to strike.

On October 18, 2010, the court issued a judgment granting the motions to tax costs and for attorneys’ fees. The court awarded Mr. Centanni court costs of $209.50; copy, document preparation, and expense reimbursement costs of $803.55; and attorneys’ fees of $12,065.03 (2/3 of the actual amount billed of $18,007.50 to account for any duplication of fees with counsel for CIA). The court awarded CIA costs of $1,373.85 and attorneys’ fees of $20,235.01 (2/3 of the actual amount billed of $30,201.50 to account for any duplication of fees with counsel for Wayne R. Centanni).

Mr. Alexander filed a motion for new trial to the judgment awarding attorneys’ fees and costs. CIA filed an opposition, but undertook a review of its invoices for attorneys’ fees and costs. Pursuant to its review, CIA segregated out attorneys’ fees and costs incurred only in preparing the motion to strike and a 1 .¡memorandum of law related thereto, and trying the motion. After such a review, CIA consented to the granting of the new trial motion awarding attorneys’ fees and costs in the total sum of $3,534.00. Mr. Centanni filed an opposition. Mr. Centanni argued that the motion for new trial should be denied. Mr. Centanni noted that the amount requested was related to the motion to strike and that the court had already reduced the amount requested due to perceived overlap of efforts between counsel for CIA and counsel for Mr. Centanni.

On January 10, 2011, the court granted the motion for new trial as to CIA and reduced CIA’s award to a total of $3,534.00. The court denied the motion for new trial as to Mr. Centanni. Mr. Alexander now appeals.

DISCUSSION

On appeal, the plaintiff raises the following specifications of error: 1) the trial court erred in stopping an agreed upon deposition of defendant, by ruling as a matter of law that Mr. Centanni’s intent in publishing the alleged unfair trade practices materials was irrelevant to his motion to dismiss under La. C.C.P. art. 971; and 2) the judgment of specific amounts of mandatory attorneys’ fees awards to two parties, upon granting an art. 971 motion, is unsupported by sufficient evidence of record, as the billing records of Mr. Cen-tanni (presumably including deposition preparation) were not introduced into the record, by order of the court below granting the La. C.C.P. art. 971 motion. This error is compounded by the court below conducting an in camera inspection of the billing records of the | ¿Centanni attorneys, not allowing counsel for plaintiff Alexander to view the billing records, and by the court applying persuasive authority to one award but not to the other.

Because the granting of a special motion to strike under statute authorizing such motions in actions against a person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitutions in connection with a public issue involves issues of law, the Court of Appeal conducts a de novo review of the trial court’s application of the law. Aymond v. Dupree, 2005-1248 (La.App. 3 Cir. 4/12/06), 928 So.2d 721. In pertinent part, La. C.C.P. art. 971 provides:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

La. C.C.P. art. 971.

Statutes providing for penalties and attorney’s fees are penal in nature and must be strictly construed. Adams v. Burger King, 2004-0146, p. 6 (La.App. 1 Cir. 2/11/05), 906 So.2d 540, 544, citing Langley v. Petro Star Corp. of La., 2001-0198, pp. 3-4 (La.6/29/01), 792 So.2d 721, 723. Although La. C.C.P. art. 971(B) | ^mandates an award of “reasonable attorney fees and costs,” we are allowed, and even required to determine if the amount awarded is reasonable, thereby considering whether “mitigating factors” are applicable. Delta Chemical Corp. v. Lynch, 2007-0431 (La.App. 4 Cir. 2/27/08), 979 So.2d 579.

In the instant case, the trial court entered judgment awarding a substantial fee to the defendant. This fee was based in large part on billing records provided by Mr. Centanni’s attorneys directly to the district court, which reviewed them in camera. The plaintiff did not have the opportunity to review or contest the billing records. The plaintiff did not have the opportunity to argue the application of any mitigating factors as to the billing records, including without limitation the deposition of the plaintiff. This lack of meaningful due process is problematic. There is no reason why the plaintiff should not have been able to have reviewed a redacted copy (anything privileged could have been removed by the trial court) of the billing records after the trial court’s in camera inspection.

Even if we found no merit in the plaintiffs arguments, there is still a problem with the trial court’s award of attorney fees. In Mr. Centanni’s motion to tax costs, Mr. Centanni alleged that his attorneys spent 85.8 hours on the La. C.C.P. art. 971 special motion to strike and the paralegals spent 2.8 hours on the La. C.C.P. art. 971 special motion to strike. Partners bill at $160.00 per hour and paralegals at $75.00 per hour. Mr. Centanni submitted that the total for attorneys’ fees and paralegal fees was $18,007.50. The court awarded two-thirds of this amount (to account for any duplication of fees with counsel for CIA). However, these figures do not add up. When calculating 85.8 hours at $160.00 per hour and 2.8 hours at $75.00 per hour, the total is not $18,007.50, it is only $13,938.00.

| ^CONCLUSION

Considering that the plaintiff was not allowed an opportunity to contest the amount of attorney fees awarded to the defendant and also that the trial court’s calculations based on its review of the billing records before it appear to be wrong, the judgment of the trial court is reversed and this matter is remanded for a new trial on the issue of attorney fees and costs.

REVERSED AND REMANDED


author: COOKS, Judge.

text:
    STATE of Louisiana v. Russell Gene WARE, Jr.
    No. 11-337.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 23, 2011.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Russell Gene Ware, Jr.
    Russell Gene Ware, Jr., Louisiana State Penitentiary, Angola, LA, Pro Se Litigant.
    James C. Downs, District Attorney, Monique Y. Metoyer, Assistant District Attorney, Ninth Judicial District Court, Parish of Rapides, Alexandria, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

11 FACTS AND PROCEDURAL HISTORY

In December 2007, Defendant, Russell Gene Ware, Jr., allegedly engaged in sexual intercourse with his live-in girlfriend’s daughter, M.H., who was eleven years old at the time. On that morning, after her mother had gone to work, Defendant took the victim from her bedroom and put her into the bed he shared with her mother. He undressed her and inserted his penis into her vagina. In February 2008, while her mother was at work, after the minor child had taken a bath, Defendant entered the bathroom and, despite her protests, insisted on applying medication to sores she had on her buttocks. He then rubbed M.H.’s anus and vagina. The following weekend, M.H. told her father about the touching in the bathroom. He reported the incident to the police. The victim’s father arranged for her to immediately see a counselor about the incident. At this time, the victim told the counselor about the incident in December. Again, the victim’s father contacted the police department.

Defendant was charged by indictment with one count of aggravated rape, a violation of La.R.S. 14:42, and one count of sexual battery, a violation of La.R.S. 14:43.1. The State filed a “Prieur Motion,” and a hearing was held. The trial court granted the State’s motion with written reasons. Defendant elected to be tried by the trial judge. After a trial, Defendant was found guilty as charged.

Defendant was sentenced to life imprisonment on the conviction of aggravated rape and twenty-five years at hard labor on the conviction of sexual battery, without the benefit of parole, probation, or suspension of sentence, to be served consecutively with the life term. Defendant filed a pro-se “Reconsideration of Sentence to Modify Sentence,” which was denied.

Defendant was granted an out-of-time appeal. Defendant’s appellate counsel assigned two errors: “The trial court erred by allowing the introduction of | ¡/other crimes evidence’ in the form of a conviction for Indecent Behavior with a Juvenile from 1994, in violation of State v. Prieur, 277 So.2d 126 (La.App. 3 Cir.1973) and Louisiana Code of Evidence Article 404(B);” and “The evidence presented at trial was insufficient to sustain the verdict of Aggravated Rape beyond reasonable doubt.”

Defendant also filed a prose brief alleging: 1) prosecutorial misconduct, 2) his waiver of a jury trial was not voluntarily and intelligently made, 3) ineffective assistance of defense counsel, 4) the trial court erred when it denied newly enrolled defense counsel’s motion to continue trial, 5) the physical evidence did not support the convictions for aggravated rape and sexual battery, and 6) the trial judge exhibited a personal bias and preconceived disposition as to Defendant’s guilt regardless of the evidence.

I. Sufficiency of the Evidence.

Defendant’s assignment of error number two and the prose assignment of error number five attack the sufficiency of the evidence at trial to prove his guilt beyond a reasonable doubt.

Assignment of error number two asserts that the evidence was insufficient to support the conviction for aggravated rape. The prose assignment of error number five asserts that the evidence was insufficient to prove the aggravated rape as well as the sexual battery. Aggravated rape is defined, in pertinent part, as:

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

La.R.S. 14:42.

|3With regard to sufficiency claims, this court stated in State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

Appellant counsel’s brief and the prose brief address only the aggravated rape conviction. In both briefs, Defendant argues that the physical evidence was not sufficient to support the element of “penetration.” Defendant points out while the victim testified that Defendant put his penis inside her vagina and that he moved it in and out, the physical evidence did not support this contention.

Doctor Maria Fontanez, a pediatrician, testified she examined the victim in June of 2008, six months after the alleged rape, and found the victim’s hymen was intact and undamaged. Defendant asserts had the rape occurred as the victim described, the hymen would have been torn. The victim testified at trial that she fought to keep her clothes on, “[a]nd I tried to fight as hard as I can[.]” When asked if he had put “the whole thing [penis] inside of you?” she responded, “|j]ust part.” However, she agreed that “he was moving it back and forth” for more than a minute. Defendant argues:

This offense is therefore described as a fight and struggle in which the [S]tate relied on the violence to an extent that proof in this case had to be more than “slightest penetration”, and should have been corroborated by physical and medical facts. When this testimony is tested and balanced against the testimony of the eminently qualified Dr. Fontanez, they are irreconcilable. Penetration of the vagina simply ] 4 did not occur because the “facts” espoused by M.H. does not reasonably comport with the medical evidence.

Defendant argues the victim’s testimony and the physical evidence — of which there was none — is irreconcilable. He asserts the lack of physical evidence indicates there was no penetration; accordingly, at most, he was guilty of attempted aggravated rape.

However, Louisiana jurisprudence has consistently held that the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical evidence. State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450; State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and writ denied, 00-150 (La.6/30/00), 765 So.2d 1066. While testifying that the victim’s hymen was intact, Dr. Fontanez agreed that it did not mean that a rape did not take place.

At trial, M.H. testified that Defendant’s penis touched her vagina. She stated:

A. The inside.
Q. The inside, okay. And did it move or not.
A. Yes, ma’am.
Q. And how did that physically feel for you?
A. That felt like I wanted to scream and just at least run away and take my brothers with me.
Q. Did it hurt?
A. A little.

Louisiana Revised Statutes 14:41(B) provides that in the case of rape, “[ejmission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” Despite testimony that the victim’s hymen was intact six months after the incident, this testimony does not disprove “penetration.” At the very least, the victim’s [¿testimony established Defendant’s penis pushed into her vagina, however slightly. As the State points out in brief, the trial judge, in his reasons for judgment, found the victim was a very credible witness. Furthermore, the victim’s recitation of the event was supported by testimony of L.L., one of Defendant’s other victims. L.L. testified when she was as young as four years old, Defendant, who was living with her mother at the time, had sexual intercourse with her. She described how he would get her from her bed when her mother was not home, carry her into his bedroom, undress her, and have intercourse with her. In this prior matter, Defendant was charged with molestation of a juvenile but pled guilty to indecent behavior with a juvenile.

We find the State established the elements of aggravated rape beyond a reasonable doubt. As noted above, neither appellate counsel nor Defendant in his prose brief address the sufficiency of evidence assignment regarding the sexual battery conviction. Since there is no argument concerning the conviction of sexual battery, the issue of whether the evidence was sufficient to support the verdict of sexual battery is considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

II. Other Crimes Evidence.

Defendant’s appellate counsel argues the trial court erred when it permitted the admission of other crimes evidence at trial. The other crimes evidence was a plea of guilty in 1994 to one count of indecent behavior with a juvenile. In his pro-se assignment, Defendant asserts the State misrepresented the facts concerning the other crimes when it sought to submit into evidence a conviction for indecent behavior of a juvenile, which was “a far cry from the aggravated rape charge that the prosecution in this case said took place.”

The State filed a Prieur Motion notifying Defendant of its intent to introduce evidence of another criminal act. At the hearing on the motion, the victim, L.L., | (¡testified regarding sexual acts committed against her by Defendant when she was between the ages of three and five year old. Following the hearing, the trial court took the matter under advisement. The trial court granted the State’s motion as set forth in its “Written Reasons on Prieur Motion.”

In brief, Defendant asserts the State failed to establish the mandated requirements for admission of other crimes evidence as set forth by La.Code Evid. art. 404(B), which, in pertinent part, provides:

(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes[.]

Defendant argues “[t]he State’s Prieur Motion was a boilerplate motion that purported to rely upon ‘all purposes proper under the law’ and provided no specificity or particularized notice.” The State’s notice, however, included the specific offense which the State intended to introduce, the date of the conviction, and the substance of the offense.

In its “Written Reasons on Prieur Motion” the trial court gave the following reasons for its judgment:

A hearing was held on May 26, 2009, when the victim of the 1994 conviction (LL), testified about the facts of the previous crime. She identified the defendant as the perpetrator and testified at the time of the incident, he was her mother’s boyfriend and she was between 3 and 4 years old. She stated when her mother was away from the house, he would vaginally and anally rape her in his bedroom and she would perform oral sex on him. Before these acts, he would disrobe her and himself and told her not to tell anyone about what happened.
The State introduced in evidence the statement of the current victim (MH) age 11, who provided a statement to McKenzie Gauthier of the Rapides Children Advocacy Center on May 30, [2009]. In her statement, she identified the defendant as her mother’s boyfriend and that in February of 2009, her mother went to work early one morning at which time the defendant picked up ML from her bed and took her [ 7to the bed used by the defendant and her mother. Once on the bed, he took off her clothes and his, that he touched her breast, vagina, and buttocks, and that he inserted his penis in her vagina and raped her.
Based upon the evidence presented, the Court finds that the testimony of the previous victim (LL) is relevant, that the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury and is therefore admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident under La. C.E. art. 404(B) and La. C.E. art. 412.2. State v. Williams, 830 So.2d 984 (La.2002); State v. Mayeaux [Mayeux], 949 So.2d 520 ([La.App.] 3rd Cir., 2007); State v. Willis, 915 So.2d 365 ([La.App.] 3rd Cir., 2005).

We find no error in the trial court’s ruling. Moreover, the State was not required to file a Prieur motion under the facts of this case pursuant to La.Code Evid. art. 412.2, which provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

The victim in the current case was eleven years old at the time of the offense. The circumstances of both cases were substantially similar — a minor child, an adult living with the child’s mother. Defendant was noticed as to the specific crime and the substance of the prior victim’s testimony. There was no error in the trial court’s ruling on this matter.

III. Waiver of Right to Jury Trial.

Defendant in his pro-se brief asserts he did not knowingly and intelligently waive his right to a jury trial. He contends the trial court refused to allow him to ^substitute new counsel until he waived his right to a jury trial. However, the record reflects that Defendant’s allegation is not correct.

On September 9, 2009, Attorney Robert W. Malone filed a “Motion to Enroll and Substitute as Counsel of Record.” On September 14, 2009, the day trial was to commence, Defendant was in court with his court-appointed counsel, Bridgett Brown, and Attorney Malone. Defendant requested that the trial court grant Mr. Malone’s motion to enroll and motion to continue trial. The State vehemently objected to a continuance, stating it had all of its witnesses ready for trial, including out-of-state witnesses and the minor victim. The trial court informed Defendant it would not grant a continuance. However, with that understanding, it would grant the motion to enroll new counsel and allow appointed counsel to withdraw.

After a long discussion between counsel, the trial court tentatively agreed to sign the motion to enroll, provided Attorney Brown obtained an affidavit from the public defense director verifying that since Defendant was no longer deemed indigent, he was not qualified to have a public defender. The trial court further sent counsel out to research the issue of whether a trial court could deny a motion to continue trial when on the day of trial the defendant desires to enroll new counsel. At this point, court was recessed.

Following the recess, court-appointed counsel informed the trial court that Defendant desired to waive his right to a jury. She stated:

Your Honor, Mr. Ware wishes to waive his right to a trial by a Jury, and be tried by the bench alone. I’ve talked to Mr. Ware about this, we talked about it considerably this past weekend, but more so in the last few minutes. I re-urged the conversation with him, and he wants to tell the Court that it is his decision, it certainly is not mine. And, I’ve advised him that he has the right to go to a jury of twelve people, and he has his own reasons for wanting to waive. So, he wishes to do it at this time.

|gThe trial court then advised Defendant of the rights he-was waiving by giving up a jury trial, emphasizing that Defendant was looking at a life sentence for the aggravated rape charge. Defendant assured the trial court that the decision was his alone and that no one had forced him to make such a decision. The trial court further questioned Defendant about his ability to understand what it meant to waive his right to a jury trial, his education, his health, his familiarity with the legal system, and whether he was on any drugs that would affect his understanding of the process. Following this discourse, the trial court found Defendant intelligently and knowingly waived his right to a jury trial.

Attorney Malone returned to the courtroom and the trial court informed him of Defendant’s decision to waive a jury trial. The record shows no response by Attorney Malone to this pronouncement. The trial court then discussed with both attorneys whether Attorney Malone would be ready to go to trial. Still advising Defendant that it would not grant a continuance, the trial court allowed Defendant time to discuss with Attorney Malone whether he desired hired representation or to keep his court-appointed counsel. Following this discussion, Defendant and Attorney Malone announced they were ready to go to trial. The trial court granted Attorney Malone’s motion to enroll as counsel of record. The trial court, however, agreed to continue the trial to September 16, 2009.

The record discloses whether Defendant was allowed to substitute counsel was dependent on if new counsel could adequately prepare for trial, and not on whether Defendant agreed to waive his right to a trial by jury. This assignment of error has no merit.

IV. Ineffective Assistance of Counsel.

Defendant asserts in his pro se brief that his. appointed counsel, Bridgett Brown, rendered ineffective assistance of counsel due to her failure to apply for a | lflwrit application with this court concerning the trial court’s grant of the State’s motion to admit “other crimes” evidence.

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701, this court stated:

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

We find the record is sufficient in this case to consider the issue of whether defense counsel was ineffective. While discussing whether a counsel’s performance was ineffective in State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465 (citations omitted), this court held that ineffective assistance of counsel claims must meet two separate criteria in order to have merit:

The right of a defendant in a criminal proceeding to the effective assistance of counsel is constitutionally mandated by the Sixth Amendment of the U.S. Constitution. In order to prove that counsel was ineffective, the defendant must meet the two-pronged test enunciated by the Supreme Court. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that this deficiency prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his defense attorney failed to meet the level of competency normally demanded of attorneys in criminal cases.
In considering allegations of ineffectiveness, defense attorneys are entitled to a strong presumption that their conduct fell within the broad range of reasonable professional assistance. The United States Supreme Court has held that the benchmark for judging a charge of ineffectiveness is whether the attorney’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be considered to have produced a just result.
It is not enough for an accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. A claim of ineffective assistance of counsel may be disposed of based upon a failure to satisfy either 1 ^criteria of the established two-pronged test; if the accused’s claim fails to satisfy one, the reviewing court need not address the other.

Moreover, “[i]t is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” State v. Jones, 33,657, p. 11 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191, 1199, writ denied, 00-2779 (La.6/29/01), 794 So.2d 825.

Defendant asserts that had defense counsel filed for a writ with this court concerning the trial court’s grant of the State’s motion to use other crimes evidence at trial, this court would have reversed the trial court’s ruling, and the evidence would not have been admitted at trial.

As noted above, after hearing testimony by the prior victim at the Prieur hearing, the trial court took the matter under advisement and did not issue a ruling until August 6, 2009, a little more than a month prior to the scheduled trial date. However, at the hearing, for its “edification,” the State offered to the trial court a copy of the current victim’s statement and a copy of the prior victim’s statement. Considering that the trial court was taking the matter under advisement, Attorney Brown also stated that she was making her objection in advance to the prior victim’s testimony being admitted at trial.

At the September 14, 2009 hearing, Defendant sought to have the trial continued so that Attorney Malone had more time to prepare for trial. Attorney Brown advised the trial court that she had not gotten a transcript of the Prieur hearing until the previous Friday. While arguing for the continuance of the trial for Attorney Malone’s benefit, she also explained that the transcript had been necessary before an application for writs could be filed with this court. Attorney 112Brown then filed a pro-se “Notice of Intent to Apply for Writ” and informed the trial court that she adopted the motion.

We note that Attorney Brown, while she objected to the trial court’s ruling “in advance,” in May 2009, could not have filed for a writ of review until the trial court ruled on the issue and until such time as she could supply this court with a transcript of the hearing. The ruling was not made until August 6, 2009, and she did not receive the transcript until the Friday pri- or to the September 14, 2009 hearing. Defendant has failed to show how Attorney Brown’s performance was defective in this instance.

Furthermore, as discussed above, there was no error in the trial court’s ruling which allowed the State to submit the “other crimes” evidence at trial. There is no merit to this assignment of error.

V. Denial of Continuation of Trial.

Defendant asserts the trial court committed error when it denied him a continuation of trial to allow Attorney Malone to properly investigate the matter, thus rendering him incapable of giving effective assistance of counsel.

In State v. Porche, 00-1391, pp. 6-7 (La.App. 4 Cir. 2/14/01), 780 So.2d 1152, 1155-56, the fourth circuit stated:

To grant or refuse to grant a motion for continuance rests within the sound discretion of the trial court. State v. Martin, 93-0285 (La.10/17/94); 645 So.2d 190. A ruling will not be disturbed on appeal absent a clear showing of abuse of discretion, and a showing of specific prejudice caused by that denial. State v. Benoit, 440 So.2d 129 (La.1983). When a motion to continue is based upon a claim of inadequate time to prepare a defense, the specific prejudice requirement has been disregarded only when the time has been “so minimal as to call into question the basic fairness of the proceeding.” State v. Jones, 395 So.2d 751, 753 (La.1981). The reasonableness of discretion issue turns upon the circumstances of the particular case. State v. Simpson, 403 So.2d 1214 (La.1981).
The appellant claims that the denial of the continuance resulted in ineffective assistance of counsel. Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a |1sfull evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986).

We find the record currently before this court is sufficient to determine whether Attorney Malone’s performance was rendered defective because of the trial court’s denial of his motion to continue trial.

In cases similar to the situation in the current case, a trial court’s denial of a motion to continue trial made on the morning of trial which caused the conviction to be reversed occurred when new counsel had no or very little time to prepare for trial. Therefore, the basic fairness of the proceeding was called into question. In those cases, the appellate court did not look for specific prejudice. In State v. Simpson, 403 So.2d 1214 (La.1981), the public defender did not know he was representing the defendant until the morning of trial. The supreme court held that the trial court abused its discretion when it denied counsel’s motion to continue trial due to lack of preparedness. See also State v. Commodore, 00-76 (La.App. 4 Cir. 11/21/00), 774 So.2d 318, writ denied, 00-3485 (La.11/2/01), 800 So.2d 869, wherein the fourth circuit reversed the conviction because the trial court abused its discretion when it insisted the defendant go to trial with a public defender who was handed a police report on the morning of trial and told she was being substituted as counsel because defendant’s counsel was out of town. In State v. Winston, 327 So.2d 380 (La.1976), the supreme court reversed a conviction, without looking for prejudice, when defense counsel had only three days to prepare for trial.

Defendant, in the current case, claims Attorney Malone had only forty-eight hours in which to prepare for trial. He argues that as of September 14, 2009, Attorney Malone “had yet to interview the Defendant’s witnesses, state’s witnesses, and obtain medical reports, police reports and statements taken from witnesses and the alleged victim.” Defendant further asserts Attorney Malone did not have a transcript of the prior victim’s statement to the police, the statement of 114M.H. to the police or a transcription of the victim’s interview with McKenzie Gauthier, a forensic interviewer with the Rapides Children’s Advocacy Center.

The record indicates that Attorney Malone filed his motion to enroll on the September 9, 2008, eight days before trial was scheduled. He received a copy of Attorney Brown’s file on the Friday before trial, which would have contained all of the above items Defendant asserts he had not obtained as of September 14, 2009, including the transcript of the Prieur hearing. The trial court also continued trial, which was to commence on Monday, September 14, to Wednesday, September 16. Accordingly, Attorney Malone had at least eight days to discuss the case with Defendant and six days to review the documents and prepare for trial.

In brief, Defendant attempts to show he was prejudiced as a result of Attorney Malone’s inability to adequately investigate the case because of time constraints. He states that Attorney Malone was not able to interview State’s witnesses and “in truth and fact, counsel did not cross examine McKenzie Gauthier; Det. Charles Li-berto; and did not cross examine L.L.” However, the purpose of McKenzie Gau-thier’s testimony was to establish the foundation for the admission of a copy of the victim’s statement made to her during the victim’s interview at the Rapides Children’s Advocacy Center. Detective Liber-to’s testimony established that he was the one who took the victim’s parents’ statements. He also set up the interview with the Rapides Children’s Advocacy Center and made the appointment with the doctor for an examination of the victim. There was nothing to impeach these two witnesses on and nothing which would have aided Defendant’s defense. As for L.L., Defendant pled guilty to sexually abusing her. Attorney Malone’s decision to not cross-examine L.L. could be considered trial strategy. If so, it was a matter of trial strategy and cannot form the basis of a defective assistance claim. See Commodore, 774 So.2d 318.

115Finally, as early as two weeks prior to trial, Attorney Malone had been warned that the State would not agree to a continuance. However, at the end of the day, after long discussions including the trial court’s warning that a continuance was off the table, Attorney Malone declared he would be ready to go to trial on September 16. Still, the trial court sent Attorney Malone and Defendant off to discuss the matter more. The following conversation then ensued:

BY THE COURT: Once again, we’re here with Mr. Russell Ware, in 293,902. Mr. Ware, Ms. Brown is present along with Mr. Malone. I’ve allowed you to talk to your lawyer for about ten minutes, I guess, and tell me what you wish to do, sir, or Mr. Malone, can you tell me what ya’ll have decided to do, sir?
BY MR. MALONE: Yes, Your Honor. Mr. Ware said that he’s agreeable to me representing him, and starting trial on Wednesday if we are so called.
BY THE COURT: All right. Mr. Ware, is that what your wish is also?
BY MR. WARE: Yes sir. [BY THE COURT:] All right. You’ve been able to discuss that with Mr. Malone?
BY MR. WARE: Yes, sir.
BY THE COURT: And, you’ll be comfortable with that, sir?
BY MR. WARE: Yes, sir.

We find Defendant cannot now avail himself of the argument that the trial court erred when it permitted him to go to trial with his newly enrolled counsel, after he was repeatedly warned that he would not get a continuance and yet insisted on going to trial. Moreover, he cannot argue his counsel was ineffective when he cannot show defective performance as a result of the trial court’s denial of counsel’s motion to continue the trial.

VI. Alleged Bias Demonstrated by Trial Court.

Defendant asserts the trial court showed bias and a preconceived disposition to find him guilty regardless of the evidence. He argues the trial court’s bias was shown when the judge forced him to waive his right to a jury trial by refusing to | callow Attorney Malone to enroll until he agreed to waive a jury trial, when the judge denied his motion to continue trial even though Attorney Malone had just enrolled and had only forty-eight hours to prepare for trial, when the judge found the evidence sufficient to sustain the verdicts of guilty despite the testimony of Doctor Fontanez that the victim’s hymen was intact, and lastly, the judge’s “preconceived bias and the unwavering mindset that Appellant was guilty” was exhibited by a remark he made during Defendant’s closing argument.

As for the first three examples of the trial court’s alleged bias; those allegations were discussed in the assignments of error above and found not to have merit. However, during Defendant’s closing argument, the trial court made the following comment:

MR. MALONE: But I do believe that she was being honest whenever she said that she saw the man like a father. He taught her how to cook, took her driving. They did all types of things together.
THE COURT: It’s called grooming.
MR. MALONE: Grooming?
THE COURT: Grooming. Before a pedophile has sex with a child they groom the child. That’s exactly what they do.
Go ahead.
You create a relationship between you and the child so that the child will trust you.
Go ahead.

Louisiana Code of Criminal Procedure Article 772 provides that a “judge in the presence of a jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, ' not proved, or refuted.” While the judge’s comment could be construed as a comment on the evidence or at the very least an opinion, the trial was a bench trial and not a jury trial. When the trial is to the judge alone, the rule that a judge may not comment on the evidence is |17not applicable. State v. Williams, 375 So.2d 1379 (La.1979). Therefore, this assignment of error is meritless.

DECREE

For the foregoing reasons, Defendant’s convictions are affirmed.

AFFIRMED.