author: COOKS, Judge.

text:
    Nakia EDMOND v. PATHFINDER ENERGY SERVICES, INC., et al.
    No. 11-151.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 21, 2011.
    L. Clayton Burgess, Lafayette, LA, for Plaintiff/Appellant, Nakia Edmond.
    Tobin J. Eason, Weiss & Eason, L.L.P., Mandeville, LA, for Defendant/Appellee, Pathfinder Energy Services, Inc.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

11Plaintiff-Appellant, Nakia Edmond, began working at the Broussard shop of Defendant-Appellee, Pathfinder Energy Services, Inc. Mr. Edmond was placed at Pathfinder through a temporary employment service. On October 6, 2008, Mr. Edmond became a full-time employee with Pathfinder.

On October 18, 2008, while on a break, Mr. Edmond was told by his supervisor to go back into the shop. It was a Saturday, and the only workers present were the four other members of the crew Mr. Edmond was assigned to. As he went inside, Mr. Edmond stated he was attacked by his supervisor and the three other workers on the crew. Mr. Edmond was forced to the ground and held there by two of the men. His pants were then pulled down, and one of the men took Mr. Edmond’s penis and began attempting to make him ejaculate. According to Mr. Edmond, when the event was over, the four men were laughing at him and teasing him about the size of his penis.

Mr. Edmond stated he was extremely embarrassed and frightened by the event, and initially did not want to tell anyone about the attack. However, the news of the attack spread, and Mr. Edmond was approached by another worker who encouraged him to contact human resources. A few days later, he contacted human resources and also reported the attack to the Broussard Police Department.

Eventually, after an internal investigation and interviews with the participants, Pathfinder terminated the four individuals involved in the attack. Since the attack, Mr. Edmond has been under medical care and has been unable to return to work.

Mr. Edmond filed suit against Pathfinder and the four individuals who perpetrated the attack. Mr. Edmond asserted he was forced to work in a hostile work environment, and contended Pathfinder was vicariously hable for the intentional actions of its employees.

^Pathfinder filed a motion for summary judgment, asking that Mr. Edmond’s claims be dismissed because he could not prove a sexual harassment claim against Pathfinder. It was also alleged by Pathfinder that it was not vicariously liable for any of the individuals’ actions and/or intentional torts.

A hearing on the motion for summary judgment was held. Mr. Edmond testified that in his limited time with Pathfinder, he saw several employees grab or slap one another’s private areas as they would pass each other. One of the men who attacked him would regularly blow kisses at him. He stated his supervisor was aware of these incidents and that the highest ranking official at the Broussard plant engaged in similar activities. No attempt was made by any supervisory personnel at the Broussard plant to eliminate this type of activity.

The trial court granted Pathfinder’s motion on the issue of liability under La.R.S. 23:332, stating as follows:

The Court finds that Pathfinder had a policy in place, that the policy was explained to Mr. Edmond, that Mr. Edmond, by his own testimony, was aware that he could make complaints and, by his own testimony, knew that, if he did make a complaint, that people would be fired and the situation would be rectified.
He did not make the complaint, and there is no evidence that the company otherwise knew of the incidents or should have known. So I am going to grant summary judgment on that issue.

The trial court then allowed the parties additional time to submit supplemental briefs pertaining to the vicarious liability issue. After receipt of the additional briefs, the trial court granted summary judgment dismissing Mr. Edmond’s claims against Pathfinder in full. The trial court found Pathfinder was not vicariously liable because Mr. Edmond would not be able to show the conduct was performed within the scope of these individual’s employment because there was no evidence that the tortious acts were primarily employment-rooted, incidental to the performance of the employees’ | .¡duties, or involved a risk of harm fairly attributable to Pathfinder’s business.

Mr. Edmond appealed the judgment, contending the trial court erred in finding there were no genuine issues of material fact which precluded the granting of summary judgment on his hostile work environment claim and his vicarious liability claim.

ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

A. Vicarious Liability.

The Louisiana Supreme Court in LeBrane v. Lewis, 292 So.2d 216 (La.1974), laid out the factors necessary to determine whether an employer has vicarious liability for the intentional torts of its employees. In LeBrane, a supervisor became dissatisfied with an employee, fired him, ordered him to leave the workplace and escorted him to the door. The supervisor and Le-Brane engaged in a heated argument, which escalated into the supervisor stabbing LeBrane. The court held that the firing of the employee, which was the root cause of the hostility, was employment-related. Vicarious liability was imposed and the court stated:

In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest.

J^7d. at 218.

The Supreme Court set forth four factors to be used in determining whether vicarious liability should be imposed:

(1) whether the tortious act was primarily employment rooted;
(2) whether the act was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hour’s of employment.

It is not a requirement that all four of these factors be met before liability may be found. Miller v. Keating, 349 So.2d 265 (La.1977). The particular facts of each case must be analyzed to determine whether the employee’s tortious conduct was within the scope of his employment. Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2 Cir.1982).

It is undisputed that the incident in the present case occurred during the course of Mr. Edmond’s employment and on the employer’s premises. Pathfinder’s argument was that the incident was not within its scope of employment. However, after a de novo review of the record, we find there is, at a minimum, a genuine issue of material fact concerning whether the incident was within the scope of Mr. Edmond’s employment. Several cases influence us in reaching this conclusion.

Pathfinder relies on Baumeister v. Plunkett, 95-2270 (La.5/21/96), 678 So.2d 994, wherein a nurse was sexually assaulted by a supervisor in a break room while both were on the employer’s time clock. The court applying the LeBrane factors, noted that the tort occurred during the hours of employment and on the employer’s premises, thereby satisfying the third and fourth factors under LeBrane. However, the court held that the tortious act was not employment-rooted nor reasonably incidental to the performance of the employee’s duties. Distinguishing Le-Brane, the |scourt in Baumeister stated:

The LeBrane court expressly noted that the “employee’s tortious conduct occurred while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee, and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees.”

Id. at 997 (quoting LeBrane, 292 So.2d at 219).

The court in Baumeister found that the defendant’s actions in precipitating unwanted sexual contact with the plaintiff did not further the employer’s business and was not incidental to the performance of defendant’s supervisory duties. Furthermore, the court found that the sexual assault was entirely extraneous to the employer’s interest and did not involve the threat of the loss of employment. The court therefore held that defendant’s acts were not employment-rooted.

We find the facts in the present case distinguishable from Baumeister. In the present case, Mr. Edmond was approached by his direct supervisor while cleaning his car. His supervisor asked Mr. Edmond if he was “trying to get him into trouble” and ordered him to go inside. As Mr. Edmond notes, if the supervisor believed Mr. Edmond was trying to get him into trouble, there is certainly a question of fact whether the attack that followed was retaliation for this perceived belief by the supervisor. Further, unlike in Baumeister, the supervisor’s actions in ordering Mr. Edmond inside are unquestionably incidental to the performance of defendant’s supervisory duties. The Baumeister court specifically noted the nurse who was attacked in the lounge went to that location of her own free will, and not at the behest of the nursing supervisor. There also was no threat of loss of employment to the plaintiff in Baumeister, whereas here Mr. Edmond had good reasons to believe he had no choice but to comply with this supervisor’s request to go inside, or his job may have been in jeopardy.

In Benoit v. Capitol Manufacturing Co., 617 So.2d 477 (La.1993), two workers got into a fight at a manufacturing facility because of a difference of opinion between the co-employees as to whether the back door to the facility should remain open during a cold spell. Citing LeBrane, our supreme court found the resulting battery was employment-rooted, since the issue was temperature in the workplace, a legitimate business concern. The supreme court found the resulting tort fairly attributable to the employer’s business.

In Turner v. State, 494 So.2d 1292 (La.App. 2 Cir.1986), four young women wished to join the Louisiana National Guard (LNG). After convincing the women that he had the authority to conduct a physical examination, a LNG recruiting of-fleer committed sexual batteries against the women. The women sued the officer and the State of Louisiana as his employer. The court held that the recruiting officer was an employee of the state and, that under the LeBrane factors, the recruiting officer was in the course and scope of his employment when he committed the sexual batteries against the women.

In Samuels v. Southern Baptist Hospital, 594 So.2d 571 (La.App. 4 Cir.1992), the employer was found vicariously liable when its employee raped a psychiatric patient in the employer’s hospital. The court applied the LeBrane factors to make the determination, noting that it was unnecessary for all four of the factors to be met in order to impose liability upon the employer. Citing Turner v. State, 494 So.2d 1292 (La.App. 2 Cir.1986), the court stated:

If the tortious conduct of the employee is so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests, it can then be regarded as within the scope of the employer’s employment, so that the employer is hable in tort to third persons injured thereby.

l7The Samuels court also distinguished between liability in negligence cases and cases involving vicarious liability, stating that “vicarious liability is imposed upon the employer without regard to its own negligence or fault; it is a consequence of the employment relationship.” Id. at 574. In Samuels, the intentional act of violence occurred on the employer’s premises while the employee was on duty, satisfying two of the LeBrane factors. Discussing the other two factors, the court in Samuels, 594 So.2d at 574, stated:

The tortious conduct committed by [the employee] was reasonably incidental to the performance of his duties as a nurse’s assistant although totally unauthorized by the employer and motivated by the employee’s personal interest. Further, [the employee’s] actions were closely connected to his employment duties so that the risk of harm faced by the young female victim was fairly attributable to his employer, who placed the employee in his capacity as a nurse’s assistant and in a position of authority and contact with the victim.

In rejecting the employer’s argument the employee’s conduct was not fairly attributable to employer’s business, the court in Samuels concluded the employee’s actions served the employer’s interest to the degree that they were incidental to the performance of his duties, even if “motivated by the employee’s personal interest.” Id.

In Griffin v. Kmart Corp., 00-1384 (La. App. 5 Cir. 11/28/00), 776 So.2d 1226, a store employee shot an air pistol at two customers. The concussion to the chest of one of the customers damaged the settings on her pacemaker and required her to get the pacemaker reset. In addition, the customer suffered extreme anxiety because the incident revived memories of the death of her son, who was killed by a gunshot wound. The customers sued Kmart, claiming it was vicariously liable for the intentional acts of its employee.

The issue in Griffin concerned whether the employee was within the “scope of employment” at the time he assaulted the customers. The court concluded “[t]he fact Isthat Kmart presumably would not have condoned [the employee’s] firing the air pistol at plaintiffs did not remove that act from the scope of his employment. We find that [the employee]’s conduct was connected closely enough to his employment to make it fair that the loss be borne by the enterprise.” Id. at 1233 (citation omitted). Thus, the court found Kmart vicariously liable for the employee’s assault.

In Wearrien v. Viverette, 35,446, p. 4 (La.App. 2 Cir. 12/5/01), 803 So.2d 297, 301, the court more fully discussed the character of the connection of the employee’s act to the employment purpose:

It is not determinative that the predominant motive of the tortfeasor servant is to benefit himself or a third person, for such a motive does not prevent the act from being within the scope of employment. Rather, the courts will look to see if the purpose of serving the master’s business actuated the servant to any appreciable extent. If so, the master is subject to liability if the act is otherwise within the service. Ermert v. Hartford Insurance Company, 559 So.2d 467 (La.1990); Dickerson v. Piccadilly Restaurants, Inc., [99-2633 (La.App. 1 Cir. 12/22/00), 785 So.2d 842].

Under this rationale, the argument that the sexual attack perpetrated upon Mr. Edmond was motivated by personal considerations extraneous from Pathfinder’s interests does not, in and of itself, insulate Pathfinder from liability. In the present case, the attack occurred only after the supervisor ordered Mr. Edmond inside, where his co-employees were seemingly lying in wait. This is not the situation presented in Baumeister, where the tort-feasor employee was not serving the interests of the employer to any appreciable extent. Here the employee was using his supervisory powers to direct Mr. Edmond to the location where the attack occurred. Thus, at a minimum, there is a question of fact whether the eventual attack was employment-rooted.

We find, as the court in Samuels did, it is not so far-fetched that a factfinder cannot conclude that the tortious conduct committed by the supervisor in this case |9was reasonably incidental to the performance of his duties, even if “totally unauthorized by the employer and motivated by the employee’s personal interest.” Id.

Lastly, we also note the case of Brumfield v. Coastal Cargo Co., Inc., 99-2756 (La.App. 4 Cir. 6/28/00), 768 So.2d 634, writ denied, 00-2293 (La.10/27/00), 772 So.2d 658, where a dispute occurred between a truck driver and a forklift operator over when a truck was to be loaded. The driver addressed the forklift operator in a vile and derogatory way. The forklift operator then grabbed a hammer and struck the driver in the head. The men then exchanged punches until the fight was broken up. In finding the employer vicariously liable for the intentional act of the forklift operator, the appellate court noted that the policy manual given to employees contained a provision which prohibited “[flighting or assaulting any person while at work or at any time and under any circumstance.” Id. at 641. The Brumfield court specifically found the “inference to be drawn, therefore, is that the possibility of fighting was a risk of harm fairly attributable to [the employer’s] business.” Id. at 641. While some may argue the fourth circuit’s reasoning punishes employers who are diligent in forewarning employees not to engage in inappropriate conduct, nevertheless the holding in this case exists and writs were denied by the Louisiana Supreme Court.

The Pathfinder employee handbook specifically notes that “[a]cts of violence will not be tolerated.” Also, in the section, Prohibition of Workplace Harassment, the manual provides “[i]t is a violation of Company policy for any manager, supervisor, or employee to engage in such conduct or for any manager or supervisor to allow any employee to engage in such conduct or for any manager or supervisor or by a coworker....” Because the policy manual warns against acts of violence and | mharassment in the workplace, under the reasoning in Brumfield, the possibility of violence and harassment at work is a risk of harm fairly attributable to Pathfinder’s business.

We also note the Brumfield court in addressing the employer’s argument that the name-calling and resultant violence was conduct motivated purely by personal considerations extraneous from the employer’s interests, stated “even if one assumes [the forklift operator] was only angry about the name-calling, the fact remains that his employment as a lift operator ... and [plaintiffs] job as a truck driver, is the reason the two men had contact that day.” Id. at 640. Similarly, Mr. Edmond’s job as a motor technician with Pathfinder, is the reason he had contact with the four attackers on that day.

B. Hostile Work Environment.

The trial court also granted summary judgment on the issue of whether Mr. Edmond was forced to work in a hostile work environment pursuant to La. R.S. 23:332. The trial court granted summary judgment on this issue, finding Mr. Edmond was aware of Pathfinder’s policy, but did not make any complaints. Thus, the trial court concluded there was no evidence that Pathfinder knew of the incidents or should have known.

Louisiana Revised Statutes 23:332(A) provides that it shall be unlawful for an employer to:

(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s Inrace, color, religion, sex, or national origin.

As this statute is similar to Title VII of the Civil Rights Act of 1964, Louisiana courts have availed themselves of decisions found in federal jurisprudence when interpreting claims pursuant to La.R.S. 23:332. Hicks v. Cent. La. Elec. Co., Inc., 97-1232 (La.App. 1 Cir. 5/15/98), 712 So.2d 656.

In order to prevail on a hostile work environment claim, a claimant must prove five elements: 1) he belonged to a protected group; 2) he was subjected to harassment; 3) the harassment was motivated by discriminatory animus; 4) the harassment affected a term, condition, or privilege of employment; and 5) that the employer knew or should have known of the harassment and failed to take proper remedial action. Chaney v. Home Depot, USA, Inc., 05-1484 (La.App. 4 Cir. 8/16/06), 940 So.2d 18, writ denied, 06-2286 (La.11/22/06), 942 So.2d 559.

In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the United States Supreme Court discussed an employer’s liability for a hostile work environment caused by a supervisory employee:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

524 U.S. at 777-78, 118 S.Ct. at 2278 (citation omitted). Faragher also explained that “[n]o affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” 524 U.S. at 808, 118 S.Ct. at 2293. The parties agree 1 ipthat Mr. Edmond suffered no tangible employment action in this case; thus the affirmative defense set forth in Faragher is available to Pathfinder.

The trial court in this case specifically noted that Mr. Edmond was aware that Pathfinder had a harassment policy in place, but did not make any complaints. Thus, the trial court found that Mr. Edmond was unable to establish that Pathfinder knew or should have known of the harassment in question and failed to take prompt remedial action. The trial court held Mr. Edmond would be unable to meet its burden of proving at a trial on the merits that Pathfinder “knew or should have known of the harassment and failed to take proper remedial action.”

In this case, Mr. Edmond testified in his deposition that his plant supervisors reported to Dan Langlinais, who periodically came to the Broussard plant. Mr. Edmond testified that when Mr. Langlinais was present at the Broussard plant, other workers did not misbehave and “were speechless.” Mr. Edmond also testified that if Mr. Langlinais had been aware of the “slapping stuff’ he would not have tolerated it, and “half the shop would have been fired.” When asked if he had any “indication at all that [human resources] or management with Pathfinder knew that this slapping stuff was going on before [he] reported it,” Mr. Edmond responded, “I don’t think so, cause they probably would have did [sic] something about it.”

Thus, considering Mr. Edmond’s own testimony indicates he did not feel Pathfinder’s human resources department or management had knowledge of the improper behavior by its employees at the Broussard shop, we cannot say the trial court erred in granting summary judgment as to Mr. Edmond’s claim of a hostile work environment.

DECREE

For the foregoing reasons, the trial court’s grant of summary judgment, | ^-¡dismissing Mr. Edmond’s claim of a hostile work environment under La.R.S. 23:332, is affirmed. However, the grant of summary judgment dismissing Mr. Edmond’s vicarious liability claim is reversed and the matter is remanded to the trial court for trial on the merits. Costs of this appeal are assessed to defendant-appellant, Pathfinder Energy Services, Inc.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of J.S.
    No. 46,527-JWC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Lucretia P. Pecantte-Burton, for Applicants.
    Richard Z. Johnson, Jr., District Attorney, Michael E. Daniel, Assistant District Attorney, for Respondent, State of Louisiana.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

11 This matter comes before this court pursuant to a writ grant to docket. Appellant, the juvenile who will be referred to herein as “J.S.,” filed a writ seeking review of the trial court’s denial of a motion to quash the state’s petition for adjudication as a delinquent on the basis of double jeopardy. For the reasons set forth below, the trial court’s judgment is reversed and the petition for adjudication is dismissed.

Facts

On November 9, 2009, 15-year-old J.S. allegedly committed an armed robbery with two other people. According to the state, J.S. and two accomplices entered the Shop-A-Lot in Mansfield, Louisiana, while brandishing guns, and took approximately $1,200 from the store. The two other perpetrators, who were subsequently arrested, confessed to the Shop-A-Lot robbery, and implicated J.S. One of these perpetrators is a juvenile who will be referred to herein as “D.J.”

On November 23, 2009, the DeSoto Parish District Attorney’s Office filed a delinquency petition charging J.S. with violations of La. R.S. 14:64, armed robbery; La. R.S. 14:95.8, illegal possession of a handgun by a juvenile; and La. R.S. 14:64.3, armed robbery, use of firearm, additional penalty. The petition stated that the incident occurred “on or about November 16, 2009. ”

J.S.’s arraignment was held on December 1, 2009. At that time, J.S.’s court-appointed attorney entered a general denial to the charges against the juvenile. Thereafter, a pre-adjudication hearing was held on March 9, 2010, and J.S.’s retained counsel again entered a general denial to the charges.

|2On September 27, 2010, J.S. appeared for the delinquency hearing. The state’s first witness, D.J., was sworn in and began his testimony. On direct examination, D.J. was asked, “Were you present on or about the, at a location of the Shop-A-Lot back on November 16th of last year?” D.J. answered affirmatively and stated that he was there with J.S. The witness pointed out J.S. in the courtroom. During questioning, D.J. admitted that he and J.S. had robbed the cashier at the Shop-A-Lot at approximately 2:00 or 8:00 a.m. D.J. stated that J.S. had a gun but that no shots were fired. D.J. testified that they were handed approximately $1,200 which they divided once they left the store. The witness was then tendered.

On cross-examination, J.S.’s attorney asked D.J. what day the robbery occurred; he stated that it was a Monday morning. Counsel then asked what date it was, and D.J. replied, “It was November 7th or 8th.” The attorney pointed out to him that he had been asked by the prosecutor about the date of November 16th, and asked, “It [the robbery] wasn’t on that day, was it?” D.J. replied, “That’s the date [November 16th] I got incarcerated.” Counsel then asked, “This incident [the robbery] occurred on November 8th?” The witness replied, “Yes ma’am, a week before [the arrest].”

At that point, the prosecutor sought to orally amend the petition for adjudication to show the correct date, but J.S.’s attorney objected and stated, “Objection based on Article 844.” The trial court sustained the objection and refused to let the state amend. The D.A. asked for a five minute recess and then stated, “At this time, the State is going to enter a dismissal of the | ¡¡charges. We have notified defense counsel that we intend to file a new bill.” The transcript indicates, “Whereupon the proceedings in the above entitled matter were concluded.”

On October 13, 2010, the state filed a second petition for adjudication which alleged that on or about November 9, 2009, J.S. violated the same provisions of the criminal code with which he had previously been charged in the first petition for adjudication as a delinquent. J.S. was arraigned on November 30, 2010, and the adjudication hearing was set for February 24, 2011.

On that date, J.S.’s attorney filed a motion to quash the second adjudication petition on the basis of double jeopardy. The judge stated that counsel’s motion was untimely because she only had 15 days after the date of the arraignment to file the motion. Therefore, he denied the motion to quash. Counsel for J.S. argued that under the Children’s Code, a motion to quash may be filed any time prior to the hearing date. The judge answered, “It’s untimely because we’ve been sitting here for how many months? Plus, your motion to quash has no merit.” The court then decided that it would rule on the motion and stated as follows:

I can rule on the merits because the testimony at the previous hearing was that as soon as they [the state] found out they were talking about two different dates, they dismissed the one and they brought one on the second. Hasn’t been any jeopardy because he [J.S.] was on trial for one on one date and that was dismissed and then this one is on a separate date. It’s untimely because I go by 15 days from arraignment like the Code says, all motions unless there’s otherwise reasons and the second reason it doesn’t have any merit. We’re on for adjudication April 19th.

| ¿Counsel for J.S. filed a timely writ application seeking supervisory review of the denial of the motion to quash. On April 14, 2011, this court granted a stay of the proceedings and granted the writ to docket. On April 20, 2011, the trial court issued a per curiam opinion which recognized that the court erred in ruling that the motion to quash was untimely but nonetheless upheld the denial based on the testimony of the juvenile (clearly this refers to D.J., the only person who testified at the adjudication hearing).

Discussion

La. Ch. C. art. 808 provides that all the rights guaranteed to criminal defendants under the state and federal constitutions, except the right to jury trial, shall be applicable in juvenile court proceedings. See, State ex rel. D.J., 01-2149 (La.05/14/02), 817 So.2d 26.

The Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offenses to be twice put into jeopardy of their life or limb. State v. Redfearn, 44,709 (La.App.2d Cir.09/23/09), 22 So.3d 1078, writ denied, 09-2206 (La.04/09/10), 31 So.3d 381; State v. Brown, 42,188 (La.App.2d Cir.09/26/07), 966 So.2d 727, writ denied, 07-2199 (La.04/18/08), 978 So.2d 347.

The double jeopardy clause was made applicable to the states through the Fourteenth Amendment. Article I, § 15 of the Louisiana Constitution contains a similar guarantee. State v. Jenkins, 45,873 (La.App.2d Cir.01/26/11), 57 So.3d 405; State v. Redfearn, supra. The guarantee provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a |ssecond prosecution for the same offense after conviction; and, (3) protection against multiple punishment for the same offense. Id.

La. Ch. C. art. 811 provides that when a juvenile offender enters a denial to the petition for adjudication, jeopardy begins when the first witness is sworn at the adjudication hearing. La. C. Cr. P. art. 693 provides in part that dismissal by the district attorney of an indictment or of a count of an indictment discharges that particular indictment or count. The dismissal is not a bar to a subsequent prosecution, except that: (1) A dismissal entered without the defendant’s consent after the first witness is sworn at the trial on the merits, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed.

La. C. Cr. P. art. 535 allows that a motion to quash may be filed of right at any time before the commencement of the trial when based on the ground that the trial for the offense charged would constitute double jeopardy.

In the instant case, pursuant to La. Ch. C. art. 811, jeopardy attached at the time the witness, D.J., was sworn at the September 27, 2010, adjudication proceeding. The trial judge refused to allow the state to amend the petition to allege a different date to conform to the testimony. We note that La. C. Cr. P. art. 468 provides:

The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
LAll allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.

When the date is not an essential element of the crime, a mistake respecting the date on which the offense occurred is an immaterial defect of form. State v. Butler, 34,658 (La.App.2d Cir.11/16/00), 774 So.2d 315. La. Ch. C.C. art. 846(A) provides that with leave of court, the petitioner may amend the petition at any time to cure defects of form.

In the case sub judice, the date was not an essential element of the crime; however, the state took the position that it would dismiss the petition. Once dismissed, the state was unable to file another petition for adjudication based on the same factual circumstance as the first petition for adjudication. Under La. C. Cr. P. art. 693, that dismissal, after jeopardy attached, is deemed to have been an acquittal which barred subsequent prosecution for the charge dismissed.

Conclusion

For the reasons set forth above, the judgment of the trial court denying the motion to quash filed by J.S. is reversed, and the petition for adjudication and the charges contained therein are dismissed as a violation of the constitutional prohibition against double jeopardy.

REVERSED.

      . The objection should actually have been based on Ch. C. art. 846, which addresses when a petition for adjudication may be amended.

      . The state's argument that a letter sent by the juvenile’s attorney, which allegedly spoke of an alibi, and which made the date of the armed robbery an essential element of the crime, is without merit. The date of the commission of the offense was not an essential element of the crime that needed to be alleged. La. C. Cr. P. art. 468; State v. Butler, 34,658 (La.App.2d Cir.11/16/00), 774 So.2d 315. If the state believed the alibi letter created a situation which required that the petition be amended, La. Ch. C. art. 846 would have allowed the amendment with leave of court. However, at the time of the adjudication hearing, the state was not even aware that J.S.’s attorney had sent the letter stating that J.S.’s mother was an alibi witness.


author: LOLLEY, J.

text:
    Lisa COTE, individually and on behalf of Mallory Brooke Fuller, Plaintiffs-Appellants v. CITY OF SHREVEPORT and Leon Bell, Jr., Defendants-Appellees.
    No. 46,571-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Shuey Smith, LLC, Shreveport, LA, by Richard E. Hiller, Julio E. Rios, for Appellants.
    Ronald Forrest Lattier, Curtis Ray Joseph, Jr., Shreveport, LA, for Appellee, City of Shreveport.
    Leon Bell, Jr., pro se.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ¶ Lisa Cote, individually and on behalf of Mallory Brooke Fuller, appeals the judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the City of Shreveport (the “City”), granting the City’s Motion for Summary Judgment. For the following reasons, we affirm the trial court’s judgment.

Facts

On April 2, 2007, at approximately 1:30 a.m., Leon Bell, Jr., entered Cote’s home in the 200 block of Leo Avenue in the Broadmoor neighborhood of Shreveport. Cote was held at knife-point by Bell until Cote’s daughter screamed and Bell fled the residence. After an investigation Bell was arrested and charged with aggravated burglary and second degree kidnaping. Ultimately, Bell pled guilty to second degree kidnaping and is presently serving a nine-year hard labor prison sentence in the Louisiana Department of Corrections.

When Bell committed this crime, he was employed by the City in the water department as an assistant trouble-shooter. On the date of the incident, Bell had been working overtime notifying customers of water being turned off in the Broadmoor area. According to the City’s records, Bell clocked out of work at 8:30 p.m. As stated, the crime at Cote’s home occurred at approximately 1:30 a.m.

As a result of the incident, Cote filed suit against the City. In that lawsuit, Cote maintains that on March 31, 2006 (before the subject incident), Bell came to her house to “check her water,” and she allowed him into her home. According to Cote, Bell repeatedly returned to her home, but |2she did not allow him in on those subsequent visits. She also alleges that another time, Bell attempted to enter her home through the back door, but eventually left her property. Cote claims that she informed the City on June 1, 2006, of these incidents with Bell; however, the City has no record of a complaint made against Bell.

In her petition, Cote contends that the City should be held vicariously liable to her, individually and on behalf of the minor child, because the damages she suffered were a result of Bell acting within the course and scope of his employment with the City. She further alleges that the City was negligent for: failing to report Bell as being dangerous; hiring someone with dangerous propensities; not suspending or discharging Bell after being advised of his previous behavior; and, failing to warn the public, particularly Cote, of Bell.

The City moved for summary judgment, asserting that if the facts as alleged in Cote’s petition were taken as true, the City could not be held liable for Bell’s intentional criminal actions, because at such time Bell was not acting in the course and scope of his employment. The trial court rendered judgment dismissing all of Cote’s claims, and the instant appeal ensued.

Discussion

On appeal, Cote argues that the trial court erred in granting summary judgment in favor of the City because there exist material issues of fact in dispute. Specifically, Cote maintains that material facts are in dispute on | ¡¡whether the City was vicariously liable for Bell’s actions, and whether it was negligent in retaining Bell as an employee. We disagree.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App.2d Cir.08/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.01/28/11), 58 So.3d 441. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment is usually not appropriate for claims based on subjective facts such as motive, intent, good faith, knowledge and malice. Phipps v. Schupp, 2009-2037 (La.07/06/10), 45 So.3d 593; Johnson v. Pinnergy Ltd,., 46,188 (La.App.2d Cir.04/13/11), 63 So.3d 302. However, summary judgment may be granted on subjective intent issues when no genuine issue of material facts exists concerning the pertinent intent. Phipps v. Schupp, supra; Johnson v. Pinnergy Ltd., supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary ^judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La.App.2d Cir.07/15/09), 17 So.3d 69.

Vicarious Liability

An employer can be vicariously liable both for its own intentional acts and the intentional acts of its employees. Jones v. Thomas, 426 So.2d 609 (La.1983). The employer’s liability, however, extends only to those acts which are within the course and scope of the injuring employee’s employment. La. C.C. art. 2320; Baumeister v. Plunkett, 95-2270 (La.05/21/96), 673 So.2d 994; Garcia v. Furnace and Tube Service, Inc., 40,517 (La.App.2d Cir.01/27/06), 921 So.2d 205.

The course of employment refers to time and place. The scope of employment test examines the employment-related risk of injury. For the employer to be vicariously liable, the tortious conduct of the employee must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Garcia, supra; Stacy v. Minit Oil Change, Inc., 38,439 (La.App.2d Cir.05/12/04), 874 So.2d 384.

In LeBrane v. Lewis, 292 So.2d 216 (La.1974), the Louisiana Supreme Court articulated four factors in holding an employer liable for its employee’s actions in stabbing a fellow employee:

(1) whether the tortious act was primarily employment rooted;
|a(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and,
(4) whether it occurred during the hours of employment.

A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Garcia, supra; Patrick v. Poisso, 38,841 (La.App.2d Cir.09/22/04), 882 So.2d 686. Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Id.

In Johnson v. Littleton, 45,323 (La.App.2d Cir.05/19/10), 37 So.3d 542, a McDonald’s employee threw hot french-fry grease on a customer with whom she had an acrimonious history, causing the victim serious burns to her body. After considering the LeBrane factors, the Johnson court concluded that the employer did not have vicarious liability as to that employee’s specific criminal actions. Although that particular incident had actually occurred on the employer’s premises and during work hours, we emphasized that the first two LeBrane factors were not met, because the record showed that the attack was motivated by the employee’s personal anger toward the victim and was not motivated by service to the employer. The Johnson court further observed that the physical attack on the victim in Rno way furthered the objectives of business at the McDonald’s restaurant. Id. at 547.

In this case, it is apparent that not any of the four LeBrane factors are present, thus making summary judgment appropriate. Initially, we note that the last two factors are obviously not met. The incident did not occur on the employer’s premises or during working hours — the crime occurred at Cote’s home in the middle of the night after Bell was off the clock. Nor are the first two factors met. Bell’s actions were not employment-rooted or incidental to the performance of his duties as a trouble shooter for the City’s water department. Bell was not acting in a way which served to further the objectives of the City. Had Bell been at Cote’s home on official City business, this fact might create a genuine issue. However, Bell’s act of breaking into Cote’s home in the middle of night and holding a knife to her neck certainly was not incidental to the performance of his duties as a troubleshooter in the City’s water department. Even if Bell somehow had knowledge regarding Cote as a result of his employment with the City, such information is far too attenuated in this case to be rooted in his employment. Carried to that extreme, any contact Bell had with a citizen could be considered rooted in his employment. Summary judgment as to this claim was proper.

Negligent Hiring, Supervision and Retention

Cote also claims that the City was negligent in: failing to report Bell as dangerous; hiring Bell; not suspending or discharging Bell after being advised of his violation of the City’s policies and procedures; and, failing to |7warn her of the dangers of Bell. Cote bases these claims on the incidents in 2006 where Bell came into her house and then repeatedly returned. As stated, Cote claims that she called the City to inquire whether Bell had authority to be in her house, and she put the City on notice as to Bell’s violent potential.

A claim against an employer for the torts of an employee based on the employer’s alleged direct negligence in hiring, retaining, or supervising the employee generally is governed by the same duty-risk analysis used for all negligence cases in Louisiana. Griffin v. Kmart Corp., 00-1334 (La.App.5th Cir.11/28/00), 776 So.2d 1226, 1231. When an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a tort against a third party, he has a duty to exercise reasonable care in the selection of that employee. Id.

The fact that Bell came to Cote’s house a year prior to his subsequent crime against her puts a unique kink in the facts of this case. However, the record is clear that Cote, although she called the water department and made inquiry into Bell’s actions, did not make an official complaint regarding Bell. Cote did not identify Bell by name to the City when she called. Further, it is notable that in 2006 the City did not authorize Bell to be in Cote’s home, and his actions in entering Cote’s home at that time were based on personal motivation as well. Moreover, there is absolutely nothing in the record to suggest that the City had any prior knowledge that Bell had a propensity to act violently toward the public he served. He did not have a criminal record prior to this incident. Neither does the record reflect any | sinformation regarding his employment record and any discipline actions that would have indicated he had violent propensities. It is difficult to see how the City, based on the information in this record, could have anticipated Bell’s actions. Therefore, we find that Cote has failed to present any evidence indicating that she would meet her burden of proof on this issue, making summary judgment in favor of the City as to these claims proper.

Conclusion

Considering the foregoing, we affirm the trial court’s summary judgment in favor of the City of Shreveport which dismissed the claims made by Lisa Cote, individually and on behalf of her daughter Mallory Brook Fuller. All costs of this appeal are assessed to the appellant.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Alvin WASHINGTON, Appellant.
    No. 46,568-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, by Paula C. Marx, for Appellant.
    J. Schuyler Marvin, District Attorney, John W. Montgomery, Marcus Patillo, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

11 After pleading guilty to one count of distribution of cocaine in violation of La. R.S. 40:967, the defendant, Alvin Washington, was sentenced to a term of imprisonment of 25 years at hard labor, the first two of which are to be served without benefit of probation, parole, or suspension of sentence. Washington now appeals, alleging that his sentence is excessive under the circumstances. For the following reasons, we affirm.

FACTS

On May 18, 2010, Washington sold five rocks of cocaine worth $100 to an undercover agent in Minden. The transaction was recorded with video and audio devices. The district attorney filed a bill of information on August 18, 2010, charging Washington with one violation of La. R.S. 40:967(A), distribution of a Schedule II controlled dangerous substance, cocaine.

The defendant originally entered a plea of not guilty. On November 8, 2010, after the district attorney offered the defendant a plea bargain agreement in which the state agreed not to file a multi-bill, the defendant changed his plea to guilty. The trial court accepted his guilty plea that day and ordered a presentence investigation.

Washington was sentenced on December 17, 2010. Judge Jeff Cox reviewed the presentence investigation, noting that the defendant told the investigator that he sold the cocaine because he had mortgaged his house and was in financial need. Washington stresses that he was behind on his bills and was in danger of losing his house and his car, and had a wife and child to support. The judge considered those factors, but observed also that 12the defendant had an extensive criminal record that included three felonies consisting of armed robbery in 1982, for which he had been sentenced to 20 years in prison; distribution of cocaine in 2007, for which he had been sentenced to five years, with all but two years and nine months suspended; and the current offense to which he had pled guilty. The judge also noted that in the past the defendant had pled guilty to simple possession of marijuana and simple battery. With regard to his past criminal record, the trial judge stated that the defendant had been placed on parole on the first distribution of cocaine conviction, but that he had violated parole and it was revoked in June of 2010.

The judge considered social factors that included the defendant’s age, family history, education, and employment history. He noted that the defendant was in good health mentally and physically. The judge informed the defendant that he had reviewed La. C. Cr. P. art. 894.1 and had taken into consideration all of the factors in the article. He concluded that any lesser sentence than the one he was going to impose would deprecate the seriousness of the crime. He then sentenced the defendant to 25 years imprisonment at hard labor, with the first two years to be served without benefit of probation, parole or suspension of sentence. The defendant was given credit for time served.

On January 14, 2011, the defendant filed a motion to reconsider sentence. He alleged that the sentence was excessive and appeared to be merely punitive although within statutory limits. The defendant contends that the sentence would not achieve any goals of rehabilitating him. The Rmotion to reconsider the sentence was denied on January 25, 2011. Washington filed this appeal seeking review of his sentence.

DISCUSSION

Washington raises two assignments of error. By his first assignment, he contends that the 25-year hard labor sentence is excessive in this case because the violation involved only a small amount of crack cocaine sold to an undercover officer. He claims that because he is 51 years old, he is facing incarceration until he is 76 years old, rendering the sentence unconstitutionally excessive. Washington argues that he has accepted responsibility for his actions by entering a guilty plea. Considering that his crime was a single sale of $100 worth of crack cocaine to an undercover agent, the 25-year sentence is grossly disproportionate to the severity of the crime, and serves no useful purpose in this case.

Washington further explains that financial pressure led him to commit the crime. Both his wife and daughter are in school, and he needed money to pay his car note and bills. He claims that he is remorseful and is currently enrolled in a recovery program. Furthermore, he states that he has been employed and has a job waiting for him when he is released, and that he has a wife and a daughter to support. Therefore, he suggests the sentence imposed is excessive and is not tailored to fit him individually.

The state opposes any reduction in the sentence, arguing that the sentence imposed by the court is within the statutory guidelines. The state observes that the trial judge considered the provisions of La. C. Cr. P. art. 894.1, and that there is no need for the judge to consider all the factors of |4the article, as long as he articulates some reasons for his decision. In this case, the judge considered the defendant’s aggravating and mitigating circumstances along with the presentence investigation when he made his decision. Therefore, the state argues, the trial judge did not abuse his discretion in imposing a sentence within the guidelines of the statute, and the sentence does not shock one’s conscience.

The defendant’s motion to reconsider sentence raised only the issue that the sentence was constitutionally excessive, arguing that the sentence appears to be merely punitive and will not achieve any goals of rehabilitation. However, the appellant failed to make any arguments in his brief about the sentence lacking rehabilitative value; therefore, this issue is deemed to be waived. The appellate court’s review is limited to the claim of constitutional excessiveness.

The constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. La. C. Cr. P. art. 881.1. State v. Marshall, 44,759 (La.App. 2 Cir. 10/28/09), 26 So.3d 168.

A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379. If adequate compliance with sentencing guidelines is found, the reviewing court must determine whether the sentence imposed is too severe in light of this particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Boudreaux, 07-0089 (La.App. 4 Cir. 8/15/07), 966 So.2d 79, writ denied, 07-1936 (La.2/1/08), 976 So.2d 717.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939.

In this particular case, the judge stated that he had looked at La. C. Cr. P. art. 894.1 and had taken into consideration all Code of Criminal Procedure articles. He specifically addressed two of the considerations in Subsection A of La. C. Cr. P. art. 894.1 when he pronounced the defendant’s sentence. Among other factors, the court specifically noted that the defendant had violated the terms of his parole from a previous drug conviction. He also stated that a lesser sentence would deprecate the seriousness of the defendant’s crime. The trial judge took cognizance of the defendant’s family history and family relationships, work history, education, and prior criminal history when he sentenced the defendant to 25 years in |fiprison. He recognized that the defendant was being sentenced for his third felony conviction. Although the trial judge did not mention this at the sentencing hearing, by pleading guilty, the defendant avoided the threat of being multi-billed as a repeat felony offender, which would have added many more years to his sentence. Therefore, he had already received some benefit in exchange for the guilty plea. The 25-year sentence imposed falls within the statutory parameters for sentencing.

We conclude that the trial judge did not abuse his discretion in sentencing this defendant. The sentence is not grossly disproportionate to the crime committed in light of the defendant’s criminal history, and the sentence imposed does not shock our sense of justice.

Accordingly, this assignment of error is without merit.

By his second assignment, the defendant alleges that the trial court failed to adequately consider the factors listed in La. C. Cr. P. art. 894.1 to justify the sentence imposed.

As indicated by our review of the first assignment of error, the defendant’s allegation that the trial court failed to adequately consider the factors listed in La. C. Cr. P. art. 894.1 is without merit. The record clearly demonstrates that the court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The defendant further contends that the court should consider the small amount of crack cocaine involved, his work history and family ties, and most importantly, his age and general health. He contends that the 25-year sentence imposed is, in effect, a life sentence since he is already 51 years old.

17We conclude that the trial court adequately considered the relevant factors of La. C. Cr. P. art. 894.1, including most of those raised by the defendant in this assignment, and the court did not abuse its discretion in imposing sentence. Even so, we note that because the defendant failed to raise this claim in his motion to reconsider sentence, he is precluded from raising the issue now on appeal. La. C. Cr. P. art. 881.1(E). Therefore, this assignment of error is without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Brian Edward HOLMAN, Appellant.
    No. 46,528-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Douglas L. Harville, for Appellant.
    Charles R. Scott, II, District Attorney, Jacob P. Broussard, Kenya Ellis, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and PEATROSS, JJ.
   WILLIAMS, J.

_JjThe defendant, Brian Edward Holman, was charged by amended bill of information with indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. After a bench trial, the defendant was found guilty as charged. Defendant was subsequently adjudicated a second-felony habitual offender with an agreed sentence of 14 years’ imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to be served concurrently with any other sentence defendant was obligated to serve. The defendant appeals his conviction. For the following reasons, we affirm.

FACTS

On March 13, 2006, the Shreveport Police Department received a referral from the Office of Community Services regarding the alleged molestation of a nine-year-old girl by the defendant, who was 28 years old at the time. The victim, M.C., was born in March 1996 and was the niece of the defendant’s wife. The complaint was based on the defendant’s conduct that was alleged to have occurred between March 2003 and March 2006, and included the fondling of the victim’s buttocks and genital area. Paula Moreno, a detective with the Shreveport Police Sex Crimes Unit, investigated the reported sexual abuse of M.C. by the defendant. As part of her investigation, Detective Moreno had M.C. participate in a forensic interview and a physical examination.

In the video-recorded interview at the Gingerbread House in Shreveport, M.C. indicated that her first recollection of the defendant “messing with her” dated back to when she was 6½ years old, although she was not clear about what had happened. Her next recollection was of the | ^defendant touching her “private” about three days after her seventh birthday when M.C. and her younger sister had been left in the defendant’s care. M.C. stated that when she and her younger sister spent the night at their aunt’s home, her husband, the defendant, would lie down with the girls when they went to bed. M.C. and her sister slept in the same bed, and the three would lie down together with M.C.’s younger sister between M.C. and the defendant. On these occasions, while the girls’ aunt was in the living room fixing her hair, the defendant would reach over M.C.’s younger sister and touch M.C.’s buttocks, thighs and genital area. M.C. stated that sometimes the defendant would move her hand onto his “private.” She said that while the defendant was touching her his hand would be “shaking” or “vibrating.” M.C. stated that another time defendant lifted up the pants of her pajamas, looked inside her pants and uttered the word “sexy.” She also stated that he would “mess” with her while she was playing video games. Lastly, M.C. stated that the defendant provided her cigarettes, allowed her to play video games she was not otherwise allowed to play, and on one occasion gave her alcohol to drink.

Dr. Ann Springer, an expert in pediatric and child abuse medicine, testified that she performed a physical examination of M.C. Dr. Springer also conducted a colposcopic exam of M.C. that involved a visual examination of the child’s genitalia using a colpo-scope, an instrument that provides a magnified view of the genital area. During this exam, Dr. Springer observed a small hemorrhagic area of the hymen that was consistent with sexual abuse of the child.

Is At trial, M.C. testified that the video was an accurate recording of her prior statement and that she had told the truth to the interviewer. In elaborating on the allegations contained in the video, M.C. stated that the defendant had sexually touched her “quite a few times,” perhaps more than 20 times in all. On cross-examination, M.C. stated that there “was never a light on” in the bedroom at her aunt’s house when she and her sister were going to sleep.

Ashley Holman, M.C.’s aunt, testified that on the day before M.C. told her that the defendant had touched her inappropriately, the girls had spent the night at her house as they often did. She had put the girls to bed and was preparing to dry and straighten her hair in the living room when M.C.’s younger sister asked for someone to lie down with her. Ashley stated that the defendant volunteered to get in the bed with the girls. When Ashley checked on the girls later, she found M.C. crying, but was unable to get her to say what was wrong. The next day, when Ashley returned the girls to their mother’s house, M.C. told her aunt that the defendant had touched her below the waist. Ashley testified that she was not sure how many times the defendant had been in the bed with the girls, but estimated that it was “not a whole lot” and “maybe three or four times.” She stated that while the doorway to the girls’ bedroom was visible from the living room, Ashley could not see what the occupants of the room were doing. When asked if M.C.’s younger sister liked to sleep with a light on, Ashley answered in the affirmative and stated that the room had an LED “night light” that changed colors. Ashley recounted an incident early in her [ 4marriage when M.C. was sleeping on the floor of the couple’s bedroom and the defendant then lay on the floor next to the child, claiming that his back was hurting. Ashley recalled that defendant often had offered to keep M.C. in his care when others would be out of the house. M.C.’s grandmother, Diane Kirk, also testified that the defendant had offered to stay with the child while others were not going to be around.

Detective Moreno testified that at the time of the initial investigation, she was unable to make contact with or locate the defendant. Moreno indicated that because the defendant could not be located, the case was “exceptionally closed” until approximately two years later when another child made a sexual abuse allegation against the defendant. Detective Moreno gave somewhat conflicting testimony as to whether this “exceptional” closure was due to her inability to locate the defendant or because she did not feel there was sufficient probable cause to obtain an arrest warrant. Nevertheless, Moreno stated that when the new allegation surfaced in 2008, an arrest warrant was obtained for both the new allegation and the instant charge, and the defendant was arrested.

Pursuant to the state’s notice under LSA-C.E. art. 412.2 of its intent to present evidence of similar crimes, wrongs or acts committed by the defendant, the court heard testimony regarding the defendant’s prior sexual abuse of two other minor children, A.C. and B.A. At trial, A.C. testified that she had met defendant in 1997 or 1998 at a skating rink in Shreveport, Louisiana. Although she did not recall the exact date they met, A.C. remembered that she was 12 years old and that defendant was 20 years old |sat the time. On the evening they met, the defendant drove A.C. to an area behind a building on Mansfield Road where the two removed their clothing and manually stimulated each other’s genitalia. The state submitted minutes of court proceedings showing that defendant pled guilty to one count of indecent behavior with a juvenile on January 13, 1999, and was sentenced to three years at hard labor. The sentence was suspended subject to two years of supervised probation.

B.A., whose date of birth is May 25, 1982, testified that she was 15 years old when she and the defendant started a sexual relationship. She stated that the defendant was aware of her age and that she thought the defendant was 21 years old at the time. However, she recalled the year of the relationship as being 1997 or 1998, when the defendant would have been either 19 or 20 years old. B.A. testified that during their relationship, the defendant took her in his truck and parked behind a building on Mansfield Road, where they engaged in sexual intercourse. The state submitted court minutes showing that on January 13,1999, the defendant pled guilty to one count of felony carnal knowledge of a juvenile and was sentenced to three years at hard labor, with the sentence suspended subject to two years of supervised probation.

The defendant testified on his own behalf and denied the allegations made by M.C. Defendant stated that while he did lie down with the girls on occasion at the younger sister’s request, it had not been very often and never included any inappropriate behavior with M.C. He testified that on the night before M.C. made the accusation, he had disciplined M.C. with a [ fipaddle for playing a video game she was not allowed to play, an event no other witness recalled. Defendant alleged that after disciplining M.C., she threatened him by saying that she was going to tell her mother that the defendant touched her. On cross-examination, however, he admitted that he had not mentioned such a threat by the child the following day when his wife, mother-in-law and M.C. confronted him with M.C.’s allegations. Defendant also denied ever offering to keep M.C. while the others went shopping.

As to his prior offenses, defendant admitted that during the summer of 1998 he had a sexual relationship with B.A., who he said was 16 years old at the time. He also claimed that he was 19 years old in the summer of 1998, despite his January 11, 1978, birth date. Defendant testified that in January 1999, he pled guilty to carnal knowledge of a juvenile as a result of his conduct with B.A. As to the allegations made by A.C., defendant admitted only that he had met her one night - in the smoking section of the skating rink, that he had left the rink with her to drive her home and that they had driven to a gas station to buy cigarettes. Although he denied that he had engaged in sexual activity with A.C., defendant admitted that in January 1999, he pled guilty to one count of indecent behavior with a juvenile, A.C. Defendant claimed on the stand that he pled guilty because the suspended sentence provided for in the plea agreement allowed him to be released from jail.

After reviewing the evidence and finding M.C.’s testimony to have been credible, the trial court found the defendant guilty as charged. The |7state then filed a “Serial Sexual Offender Bill of Information” charging the defendant as a third-felony sex offender and seeking the imposition of a life sentence under LSA-R.S. 15:537(B), based on the present conviction and his prior guilty pleas entered on January 13, 1999. Defendant filed a motion to quash the serial offender bill on the basis that his two prior pleas were entered on the same day before October 19, 2004, and therefore, could only be counted as one conviction for sentence enhancement. The state then filed an amended bill charging the defendant as a second-felony offender.

At the habitual offender hearing on November 17, 2010, defense counsel stated that the defendant accepted the state’s offer of a sentencing cap and the dismissal of two other pending charges in exchange for his admission to being a second-felony offender. The court then sentenced the defendant to serve 14 years at hard labor without the benefit of parole, probation or suspension of sentence, to be served concurrently with any other sentence the defendant was obligated to serve. This appeal followed.

DISCUSSION

The defendant contends the evidence presented was insufficient to support his conviction for indecent behavior with a juvenile. Defendant argues that the victim’s testimony was not credible because other witnesses contradicted her statements regarding the number of times she was molested and whether the bedroom light was on when the crimes were committed. Defendant further argues that the insufficiency of the evidence was shown by Detective Moreno’s testimony that the investigation was initially suspended because the officer did not believe there was enough evidence to | sobtain an arrest warrant.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Shivers, 43,731 (La.App.2d Cir.12/3/08), 998 So.2d 877.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable |3doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the issue raised is the weight of the evidence, not its sufficiency. State v. Speed, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The testimony of a sexual assault victim alone is sufficient to convict a defendant. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277.

To convict an accused of indecent behavior with a juvenile, the state must prove beyond a reasonable doubt that the defendant: (1) committed any lewd or lascivious act upon the person or in the presence of any child under the age of 17; (2) was over the age of 17 and more than two years older than the victim; and (3) had the intention of arousing or gratifying the | insexual desires of either person. LSA-R.S. 14:81; State v. Cooper, 45,320 (La.App.2d Cir.6/30/10), 42 So.3d 460, writ denied, 2010-1821 (La.2/11/11), 56 So.3d 998. Indecent behavior with a juvenile is a specific intent crime for which the state must prove the offender’s intent to arouse or gratify his sexual desires by his actions involving a child. State v. Caston, 43,565 (La.App.2d Cir.9/24/08), 996 So.2d 480.

Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. LSA-R.S. 14:10(1); State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

In the present case, the state established that during the period of March 2003 through March 2006, the victim, M.C., was between six and nine years of age and the defendant was between 25 and 28 years of age. M.C. testified that the defendant, during this time and on multiple occasions, rubbed her genital area, fondled her chest, thighs and buttocks, and placed her hand on his penis. The defendant committed these acts while lying in bed with the child and while she played video games. To the extent specific intent can be inferred from the circumstances, the nature of the defendant’s actions allowed the trial court to infer that defendant intended to arouse his sexual desires.

The issues raised by defendant in brief go strictly to the weight of the evidence and not its sufficiency. M.C. did testify that the defendant had ^engaged in this behavior more than 20 times, and her aunt did testify that the defendant had been in the victim’s bed on only three or four occasions. However, because M.C. also testified that the defendant had committed the sexual abuse in places other than the bed where she slept, there is nothing inconsistent between her testimony and that of her aunt.

Nor is the -witnesses’ testimony as to whether there were “lights” on in the room irreconcilable. M.C. testified that when she and her sister were going to sleep, there was no light on in the room. Her aunt, on the other hand, testified that the victim’s younger sister, who was also in the room, liked to have an LED “night light” on when she went to bed. The most logical explanation for this alleged discrepancy is that M.C., who was 14 years old at the time of trial, did not assume counsel’s question included a small night light, which ordinarily does not illuminate a room. Another possibility is that M.C. assumed defense counsel’s question to be limited to those occasions when the defendant engaged in the offending conduct, the focal point of the questions asked of her at trial. Such an interpretation would not conflict with the aunt’s testimony in which she indicated that M.C.’s younger sister “like[d] for the light to be left on.” Despite the defendant’s assertion to the contrary, that testimony is not the equivalent of stating that the light was always on in the room.

After hearing the testimony, the trial court specifically found that M.C. was a credible witness and noted the medical evidence, which was consistent with the child’s report of sexual abuse. Based upon this record, we conclude that the evidence presented by the state was more than 112sufficient to prove that defendant committed the offense of indecent behavior with a juvenile. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that the trial court did not advise the defendant of any rights relative to a multiple offender proceeding. In habitual offender proceedings, the state is required to prove only a prior felony conviction and that the defendant is the person convicted of the earlier offense. State v. Odom, 34,054 (La.App.2d Cir.11/1/00), 772 So.2d 281. Before accepting a defendant’s admission that he is a multiple offender, the trial court must specifically advise defendant of his rights to a formal hearing, to require the state to prove his identity as a multiple offender, and to remain silent. A trial court’s failure to properly advise a defendant of his rights under the Habitual Offender Law constitutes patent error on the face of the record. State v. Odom, supra. Generally, the court’s failure to advise defendant of his rights to a hearing and to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing, rather than by admission of the defendant. State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077.

In the present case, the record shows that defendant appeared at the habitual offender hearing with counsel. Thus, his right to a hearing was protected. In State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347, this court relied on the defendant’s trial testimony that he had been convicted of the two | isprior felony offenses and on certified copies of the court minutes and transcripts in the prior convictions in concluding that the defendant’s guilt was established by competent evidence; therefore, the failure to advise was harmless. As in Brown, supra, the defendant in this case admitted at trial that in 1999 he had pled guilty to one count of indecent behavior with a juvenile and one count of carnal knowledge of a juvenile. Moreover, the state also presented additional evidence of defendant’s prior convictions through the trial testimony of the victims in the prior offenses.

Considering the circumstances of this case, where defendant admitted to the pri- or felony convictions at trial and the state presented victim testimony identifying defendant as the person previously convicted, we conclude there was competent evidence to establish that defendant was a multiple offender outside of his admission at the habitual offender hearing. Accordingly, the trial court’s failure to inform defendant of his rights to remain silent and to require the state to prove his identity as an habitual offender was harmless error.

CONCLUSION

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

AFFIRMED.


text:
    Kirby E. COLE, Plaintiff-Respondent v. C. Gary MITCHELL and CNA, Defendants-Applicants.
    No. 46,546-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Hayes, Harkey, Smith & Cascio, Monroe, LA, by Thomas M. Hayes, III, for Applicants, C. Gary Mitchell and Continental Casualty Co.
    Cloyd, Wimberly, & Villemarette, Lafayette, LA, by Stacie Knox Villemarette, for Respondent.
    Before BROWN, WILLIAMS, and STEWART, JJ.
   BROWN, Chief Judge.

| T This is a legal malpractice case. Plaintiff, Kirby E. Cole, is currently in prison, having pled guilty to mail fraud in federal court. As trustee for the Phillips Foundation, plaintiff breached his fiduciary duties to the Foundation via fraudulent transfers from the Foundation of property and mineral rights to himself. Defendant, C. Gary Mitchell, was plaintiffs attorney and close friend. On August 23, 2010, plaintiff filed this action against Mitchell and his insurer, CNA. In his petition, Cole makes the following allegations:

If Mitchell would have advised Petitioner against self-dealing as Foundation trustee, Petitioner would have never transferred any foundation property.... As a result of the actions of Mitchell, Petitioner sustained damages including but not limited to physical incarceration in a federal facility, mental anguish, separation from his wife, past and present lost wages, loss of earning capacity, damage to his reputation in the community, and infliction of emotional distress.

Defendants filed exceptions of prescription/peremption and no cause of action, and a motion for summary judgment. The trial court sustained the exception of per-emption regarding a 2006 sale of trust property to Cole, but overruled the exception as to the other transactions. The trial court likewise overruled defendants’ exception of no cause of action and denied their motion for summary judgment.

Defendants subsequently sought supervisory review of the trial court’s rulings, which we granted to docket. For the reasons set forth below, we reverse the trial court’s ruling denying defendants’ motion for summary judgment and render judgment granting summary judgment in favor of defendants.

| ^Discussion

Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2).

The Louisiana Trust Code provides three general exceptions to the trustee’s duty of loyalty: transactions authorized by the settlor or trust instrument, La. R.S. 9:2206; transactions agreed to by the beneficiary, La. R.S. 9:2083; and, transactions approved by a proper court, La. R.S. 9:2085. See 11 Edward E. Chase, Jr., La. Civil Law Treatise: Trusts, § 14:4 (2d ed.2009).

Cole relies upon a document drafted by Mitchell and signed by Cole as trustee on February 28, 2006, in which the Foundation granted Cole unlimited authority to buy and sell property on behalf of the Foundation. This document was an extracted portion of the Phillips Foundation’s Board |sof Trustees minutes for a plan for reorganization that authorized Cole as trustee to buy, sell, grant option, encumber, lease movable or immovable property on behalf of the trust “in any manner he sees fit, upon and on such terms and conditions and for such prices and consideration as he in his sole discretion deems advantageous to the corporation.”

On the same day that this authorization instrument was executed, February 28, 2006, the Phillips Foundation sold to Cole 37 acres of real estate owned by the Foundation for $56,607. The cash sale deed was prepared and witnessed by Mitchell and signed by Cole for the Foundation as seller. Cole and his wife also signed as the purchasers. Significantly, the purchase price of $56,607 was not paid.

On November 7, 2007, Cole sold the 37 acres he bought from the Foundation to a third person for $190,000, kept the proceeds and reserved the mineral rights to himself and his wife.

On June 18, 2008, following negotiations, Cole reached an agreement for an oil and gas lease for a $15,000 per acre signing bonus and a 25% royalty on future production for the Foundation’s 169 acres and for Cole’s 37 acres. However, on June 30, 2008, the Phillips Foundation, acting through Cole, sold to Cole and his wife the mineral rights to 85 of the Foundation’s 169 acres for the stated sale price of “$10 and good and valuable consideration.” Again, nothing was paid by Cole.

Thereafter, on July 16, 2008, Cole, acting as trustee of the Foundation, executed an oil and gas lease for approximately 55 acres still owned by the Foundation for $834,450. Contemporaneous therewith, Cole ^executed an oil and gas lease for the other 122 acres on behalf of himself and his wife individually for $1,850,715.

It is alleged that Mitchell prepared the documents necessary to accomplish the transactions.

La. R.S. 9:2206 provides that:

A. The trust instrument may relieve the trustee from liability, except as provided in Sub-sections B and C of this section.
B. A provision in the trust instrument is not effective to relieve the trustee from liability for breach of the duty of loyalty to a beneficiary or for breach of trust committed in bad faith.
C. A provision in the trust instrument is not effective to relieve the trustee from liability if it is inserted as a result of an abuse by the trustee of a fiduciary or confidential relationship to the set-tlor.
Comments under this article state that: This section is based upon the Restatement of Trusts 2d, Sec. 222, and renders ineffective a provision of the trust instrument that would relieve the trustee from breach of the duty of loyalty, as well as one that would relieve the trustee from liability for a breach of trust committed in bad faith. The Restatement of Trusts 2d renders ineffective a provision that would relieve the trustee from liability for a breach of trust committed intentionally or with reckless indifference to the interest of a beneficiary or from liability for a profit derived by the trustee from breach of trust. This section uses the term “bad faith” instead of the language of the Restatement because it is more explicit and meaningful.

In 2009, a federal grand jury began investigating Cole’s actions with regard to the trust property, and the U.S. Attorney subsequently charged Cole with mail fraud. On November 6, 2009, Cole pled guilty as charged. In the extraordinarily detailed Boykin colloquy, Cole explicitly admitted | sthat the government had enough evidence to prove that he had the specific intent to defraud with regard to these transactions.

The Court: There are certain essential elements for the crime of mail fraud that must be met by the Government. Under Section 18 of the U.S.Code, Section 1341, it is a crime for anyone to use the mail in carrying out a scheme to defraud. To be found guilty of this crime, Mr. Cole, the Government has to prove each of the following essential elements beyond a reasonable doubt: First, that you knowingly created a scheme to defraud as described in the indictment; second, that you acted with a specific intent to defraud; third, that you mailed something or caused another person to mail something through the United States Postal Service or a private or commercial interstate carrier for the purpose of carrying out the scheme; and fourth, that the scheme to defraud employed false material representations. That, from a legal point, is what the Government has to prove if it went to trial. Here’s my question. If the Government went to trial against you, could they prove those four essential elements against you?
Cole: Yes, sir.
The Court: Could they prove each of those elements beyond a reasonable doubt?
Cole: Yes, sir.
The Court: Are you willing to plead guilty to [mail fraud] because you are in fact guilty as charged?
Cole: Yes, sir.

Subsequently, the federal judge sentenced Cole to serve 20 months of incarceration in a federal facility (a downward departure from the federal | (¡guidelines’ recommendation) and ordered him to repay just over $2 million to the Foundation.

Although evidence may not be considered on the exception of no cause of action, it certainly may be considered on a motion for summary judgment. In support of their motion for summary judgment, the defendants submitted Cole’s guilty plea colloquy wherein he admitted that he intended to commit fraud by his actions or scheme. This is where the “unclean hands” doctrine clearly operates, because that doctrine requires the consideration of evidence. Cole is estopped from arguing that he did not have the intent to commit fraud because of his contrary admission in the criminal case. Once the intent to defraud is shown, then Cole cannot prove that his attorney’s advice, whatever it may have been, caused his subsequent damages. Therefore, there are no remaining material issues of fact.

Although Cole’s petition does not state his failure to pay consideration for the foundation’s property that he transferred to himself, the transcript of Cole’s guilty plea in federal court and his presentencing memorandum, attached in support of defendants’ motion for summary judgment and plaintiffs response, respectively, reflect such. This failure to pay led to Cole’s pleading guilty to mail fraud. Cole’s alleged damages are the direct result of his guilty plea and sentence.

Cole was the trustee of the Phillips Foundation. Not only did he sell Foundation property to himself, he never paid the stated consideration to the Foundation and he greatly profited from the subsequent sale of the property and leasing of the mineral rights. Cole continuously alleges that Mitchell | informed him that he could “do anything he wanted;” however, there is no specific allegation that Mitchell told Cole that he could take Foundation property and not pay for it. Further, the record shows that a $15,000 lease signing bonus had been negotiated by Cole for the Foundation’s acreage two weeks before Cole, acting as a trustee of the Foundation, transferred the mineral rights to 85 acres of the Foundation’s property to himself, and four weeks before he executed the oil and gas lease on those 85 acres. It is due to these acts that Cole was charged with, and ultimately pled guilty to, mail fraud. As such, the existence of the damages set forth by Cole are the direct result of his specifically intended and knowingly created scheme to defraud.

The common law doctrine of in pari delicto, a corollary of the “unclean hands” doctrine, is a mechanism by which a plaintiff is precluded from recovery as a result of plaintiffs own participation in the tortious conduct. See Wooley v. Lucksinger, 09-0571 (La.04/01/11), 61 So.3d 507. In Rhodes v. Miller, 189 La. 288, 297, 179 So. 430, 432 (La.1938), the Louisiana Supreme Court stated:

The courts recognize the rule that every suitor who seeks relief at their hands must himself be free from any unlawful or inequitable conduct with respect to the matter or transaction in question. This rule is known in equity as the rule of ‘clean hands.’
The court must apply the rule not because it is a matter of defense, but because it is against public policy to hear the case if the unconscionable character of the matter or transaction be established. The court acts for its own protection rather than for the protection of the defendant.

Although Cole’s damages result from his criminal charges and plea, he would nonetheless be estopped from recovering damages as a result of | Shis own conduct. As previously stated, Cole alleges that Mitchell told him that as trustee he could “do anything he wanted” and relied upon the document drafted by Mitchell granting him (Cole) the authority to buy and sell property at his sole discretion to support his contention. A trust instrument may not relieve liability for a breach of trust committed in bad faith. La. R.S. 9:2206. Further, the instrument specifically states that he must deem the terms and conditions of the actions he performs on behalf of the Foundation to be advantageous to the Foundation. Regardless of whether Mitchell prepared the documents for Cole to execute and/or failed to advise him against self-dealing, there are no grounds for Cole to argue that, after having negotiated a $15,000 per acre mineral lease signing bonus and 25% royalty on future production for the Foundation, he deemed that transferring the mineral rights to 85 acres to himself for “$10 and other good and valuable consideration” would be advantageous to the Foundation. Cole never paid the Foundation any consideration, but he did profit $1,250,000 on the 85 acres alone. This act, among others, was in bad faith and not the result of Mitchell failing to advise Cole of the prohibitions against self-dealing; it was, as stated by Cole’s own attorney, “a dishonest, selfish and illegal betrayal of the trust that had been placed in him as trustee....”

As a result of our finding that the trial court erred in failing to grant defendants’ motion for summary judgment, we preter-mit discussion of ^defendants’ assignments of error regarding the trial court’s overruling its exceptions of peremption and no cause of action.

Conclusion

We reverse that portion of the trial court’s judgment denying defendants’ motion for summary judgment. Defendants’ motion for summary judgment is hereby granted, and all claims of plaintiff are dismissed with prejudice. Costs are assessed to plaintiff.

      . A plea of guilty is more than a confession, it is itself a conviction, supplying both the evidence and verdict. All that remains is judgment and punishment. Like a confession, the plea of guilty is acceptable only when based on a reliable determination by a trial court that an accused knows and voluntarily waives his constitutional rights. On review, the vol-untariness of a guilty plea cannot be presumed, but must be shown from the record of the proceedings. Thus, the prosecutor must establish, on the face of the record, that an accused was advised of his constitutionally guaranteed rights which he then affirmatively waived. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Bradford, 627 So.2d 781, (La.App. 2d Cir.1993).

      . Stated in a memorandum for a downward departure from sentencing guidelines.