author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Jeremy TURNER.
    No. 11-KA-870.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Anthony L. Marinaro, Attorney at Law, New Orleans, LA, for Appellant, Jeremy Turner.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

li>On May 18, 2010, a Jefferson Parish grand jury indicted Jeremy Turner and two co-defendants with conspiracy to commit armed robbery, in violation of La. R.S. 14:26:64, and second degree murder, in violation of La. R.S. 14:30.1, of Cletis Jessie, Jr. (hereinafter “the victim”). Defendant pled not guilty to the charges at arraignment.

On May 10, 2011, the four-day trial commenced. On May 13, 2011, a twelve-person jury unanimously found defendant guilty as charged as to both counts. On May 18, 2011, defendant was sentenced to consecutive terms of 40 years at hard labor without benefit of parole, probation, or suspension of sentence for conspiracy to commit armed robbery, and life imprisonment without benefit of probation, parole, or suspension of sentence for second degree murder.

Facts

On Saturday night, January 2, 2010, Jeremy Turner, Roddrick Petty, and Danarius Meredith were riding in Turner’s Lincoln Towncar on Center Street in | .¡Avondale, Louisiana. According to Turner, his car broke down so he called the victim for help. Within minutes of the victim’s arrival in his white Ford Thunderbird, the victim was shot twice in the face from one to three feet away.

As the victim lay on the ground, Petty, at Meredith’s instruction, drove away in the victim’s car. According to Turner, Meredith forced him to drive away and take him to a residential neighborhood in Marrero.

Around the same time, Curtis Webber was sitting in his car in his driveway on Avondale Garden Road when he saw a Lincoln Continental parked on Center Street, which is the street behind his house. Suspecting that the vehicle might be dumping trash, he backed out of the driveway, drove around to the vehicle, and confronted the driver of the vehicle. When the driver informed Webber that he was “waiting for a jump,” Webber returned to his driveway.

Almost immediately after he returned to his driveway, he observed a white vehicle pull nose-to-nose with the Lincoln. Web-ber saw a man exit that vehicle. Within a minute, Webber heard two gunshots. When he looked up, he saw both vehicles drive away. After consulting with his wife, Webber dialed 911 and reported the shooting. A recording of that call was played for the jury.

When JPSO responded, officers found the victim’s body. Detective Beavers of the Jefferson Parish Sheriffs Office (“JPSO”) discovered the victim’s cellular telephone at the scene and notified the victim’s parents of his death.

That afternoon, a neighbor informed the victim’s father, Cletis Jessie, Sr. (hereinafter “Jessie, Sr.”), that his son’s car was parked in the woods off of Sauvage Road. Jessie, Sr. notified Detective Beavers of the car’s location. That |4evening, JPSO personnel recovered the victim’s vehicle, a white Thunderbird, in the location they had been directed to, a wooded area in the rear of Orleans Village subdivision.

Detective Beavers of JPSO testified that stolen vehicles were often stripped and discarded in that area, and it appeared that thieves had attempted to “strip the victim’s vehicle.” The windows were down, one of the doors was open, most of the wheels’ lug nuts were removed, and other items from the vehicle were strewn on the ground around the car. The wheels’ rims were damaged, which demonstrated a significant effort to remove the rims and tires. The thieves were unable to remove the rims and tires because they could not locate the special key needed to remove the last lug nut from each wheel. Likewise, there was a wire hanging from the audio equipment in the trunk indicating an unsuccessful effort to remove that equipment. A cloth glove was recovered from the ground next to the car. The murder weapon was never recovered.

At trial, defendant testified on his own behalf. He stated that the victim was his best friend and he knew the Jessie family well. On the day of the incident, defendant was on his way to pick up money from his mother’s house on Senate Street, when he stopped off to see his friend that lived on Center Street. While on his way to his friend, defendant encountered Meredith and Petty, who asked for a ride to Deacon Street. Defendant agreed and continued on to Center Street, where his car broke down and he called the victim for assistance. During the drive, defendant noticed that Meredith had a gun in his possession.

Once the victim arrived in his white Thunderbird, defendant immediately began attaching the jumper cables to the car batteries, and the victim asked him to | ¡¡assist with a loose wire on his amplifier and to adjust the sound on either the bass or high knob, which required two people. At that point, defendant’s car started and Meredith exited the vehicle and began speaking with the victim.

While the defendant was removing the jumper cables from the vehicles, the conversation got louder and defendant heard the victim call for his help. Defendant looked up and saw Meredith pointing a gun at the victim. Defendant told Meredith to “chill out” three times, then Meredith shot the victim.

Next, Petty entered the victim’s vehicle and Meredith entered the defendant’s vehicle and forced him to drive him to Lin-colnshire, threatening his family along the way. Defendant testified that the victim’s car had custom rims that required a lug nut key for removal; however, he could have removed the rims because he knew the key was located in the glove compartment. Later, defendant called the victim because he wanted to make sure he was alive, but he did not call the police because he was afraid.

The day after the shooting, defendant also called John Ray, Meredith’s brother, on a landline phone, who instructed him not to say anything. Defendant changed his alternator that night to make sure he did not break down again after what he had experienced; however, his car broke down again because the problem was the battery. Defendant agreed that while he was changing his alternator, the victim was lying dead on Center Street, and although he called, he never returned to the scene to check on the victim, his best friend.

On cross-examination, defendant admitted that Meredith had a reputation for shooting people, yet he still gave him a ride because it was his friend’s younger brother. He also allowed him to stay in the vehicle after he brandished a gun. Defendant stated that he made 17 phone calls to Meredith’s brother just after the murder, but never spoke to Meredith. Defendant also stated that he believed the | ¿victim had a pair of gloves like the one found near the victim’s vehicle, but they were not his gloves. Defendant declared that he would wear gloves to help the victim change his tires so it would be possible that his DNA was on the gloves if they were the victim’s gloves.

After hearing the testimony and evidence, the twelve-person jury unanimously found defendant guilty as charged of conspiracy to commit armed robbery and second degree murder. This appeal follows.

Law and analysis

On appeal, defendant raises three assignments of error: first, there was insufficient evidence to support Jeremy Turner’s convictions for second degree murder, and conspiracy to commit armed robbery; second, the trial court erred in removing a prospective juror, over the objection of defense counsel, without making a proper inquiry into whether he should have been disqualified from serving, which violated Mr. Turner’s right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution; and, third, the trial court erred in allowing co-defendant Roddrick Petty to invoke his Fifth Amendment privilege in the presence of the jury, which violated Mr. Turner’s right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution.

In his first assignment of error, defendant argues that there was insufficient evidence presented at trial to support defendant’s convictions for second degree murder and conspiracy to commit an armed robbery. In particular, the defendant argues that the State failed to negate the reasonable hypothesis that defendant called the victim only because he needed help starting his car, and that he had no knowledge that his companions would commit an armed robbery or shoot the victim.

|7The constitutional standard for testing the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, a review of the record of a criminal conviction for sufficiency of evidence does not reqüire the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. Further, it is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement- on the fundamental due process of law. Bailey, supra.

Conspiracy to Commit Armed Robbery

Armed robbery, La. R.S. 14:64, is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:24 defines a principal as one concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.

The elements of the crime of conspiracy, La. R.S. 14:26, are (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, and (2) an act done in furtherance of the object of the agreement or combination. The first element of conspiracy requires specific intent, which is defined in La. R.S. 14:10, as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Intent may be inferred from the circumstances of the transaction and the actions of the defendant.

The second element of conspiracy is an overt act, which need not be unlawful. It may be any act, innocent or illegal, accompanying or following the | nagreement, which is done in furtherance of its object. State v. Jackson, 00-221 (La.App. 5 Cir. 3/15/01), 783 So.2d 482, 487, writs denied, 01-1071 (La.5/9/03), 843 So.2d 385, and 01-1258 (La.5/9/03), 843 So.2d 386. Proof of conspiracy may be made by circumstantial evidence. Id.

At trial, Sergeant Klein confirmed phone calls between defendant’s phone and a phone associated with Meredith just before the murder, on the day of the murder, and just after the murder. Klein testified that he confirmed phone calls between the defendant and the victim’s cell phone at 5:00 a.m. on the morning after the murder.

Detective Beavers testified that the victim’s car, which thieves attempted to strip, was recovered ten and a half miles away from the site where the body was recovered. The car was found off of Sauvage Road, where stolen vehicles are often stripped and discarded. DNA retrieved from the cloth glove recovered near the victim’s car was corresponded to DNA from defendant and two other sources.

Jessie, Sr. testified that when the defendant arrived at his home on the afternoon after the murder, he held his head down avoiding eye contact and told Jessie, Sr. that he witnessed the victim’s murder, and “he didn’t want what happened to [the victim] on him.” Jessie, Sr. subsequently received a phone call from defendant where he stated that he wanted to talk to the detectives in the case and he would tell them everything he knew about the events that took place. Defendant then told Jessie, Sr. that “they was [sic] not supposed to kill him, they was just supposed to rob him. Jessie, Sr. asked why he left his brother on the ground and the defendant became silent and repeatedly apologized.

Conversely, defendant denied any involvement in either the armed robbery or the victim’s murder. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who 110may accept or reject, in whole or in part, the testimony of any witness. Bailey, supra. It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

Considering the foregoing, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State produced sufficient evidence at trial to prove the essential elements of conspiracy to commit armed robbery beyond a reasonable doubt, i.e., that defendant intentionally lured defendant to Center Street so that Meredith and Petty could rob defendant at gunpoint. Second Degree Murder

Second degree murder, La. R.S. 14:30.1(A), is the killing of a human being when the offender (1) has specific intent to kill or to inflict great bodily harm or (2) is engaged in the perpetration or attempted perpetration of armed robbery (and other listed felonies) even though he has no intent to kill or to inflict great bodily harm.

Defendant argues that the State failed to negate the reasonable hypothesis that he called the victim only for a jump and had no knowledge that his companions would commit an armed robbery and shoot the victim. Defendant’s testimony at trial indicated that he was merely an innocent bystander. Defendant denied planning to rob or kill the victim and stated that Jessie, Sr. lied when he testified that defendant told him that they were only supposed to rob the victim. He also indicated that Webber’s timeline was incorrect.

At trial, Jessie, Sr. testified that the defendant told him that they were only supposed to rob his son, not kill him, suggesting that defendant knew that his “associates” were going to commit an armed robbery. Further, he testified that the | nvictim was shot to accomplish the armed robbery. Curtis Webber saw a Lincoln Continental parked on Center Street, which is the street behind his house. When he confronted the driver of the vehicle, the driver informed Webber that he was “waiting for a jump” and Webber returned home. Almost immediately after he returned home, Webber observed a white vehicle pull nose-to-nose with the Lincoln. Webber saw a man exit that vehicle. Within a minute, Webber heard two gunshots. When he looked up, he saw both vehicles drive away.

The jury, when confronted with conflicting testimony, rejected the defendant’s testimony and accepted Jessie, Sr. and Webber’s testimony, which is its sole determination. Bailey, supra. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.

Considering the foregoing, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State produced sufficient evidence at trial to prove the essential elements of second degree murder beyond a reasonable doubt, i.e., that defendant was a principal to a homicide committed during an armed robbery. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in removing a prospective juror, over the objection of defense counsel, without making a proper inquiry into whether he should have been disqualified from serving, which violated Mr. Turner’s right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, defendant contends that the trial court erred in removing prospective juror Bertrand Sparks over his objection. Defendant argues that the trial court did not properly inquire as to whether Sparks should have been disqualified.

112The erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the State of more peremptory challenges than it is entitled to by law. La.C.Cr.P. art. 800(B). Because the minutes reflect that the State used all of its peremptory challenges, defendant may have grounds for complaint.

In the instant case, Bertrand Sparks was called in the last panel of prospective jurors. When the court asked defendant if he had any prior jury experience, the following exchange took place.

THE COURT: Have you had prior jury experiences?
MR. SPARKS: On a drive by in the Harvey Tunnel when they had drive by shooting in the Harvey Tunnel.
THE COURT: Were you accepted to serve as a juror in that case?
MR. SPARKS: I was only one time, but they had, I had a nephew shot up in Algiers in '98. On that drive by in the Harvey Tunnel when they had that, it be back in the 80’s when they had two of them, in the drive by in the Harvey Tunnel.
THE COURT: Okay, did y’all reach a verdict in that case?
MR. SPARKS: They did, but they dismissed me.
THE COURT: All right, have you ever been the victim of a crime?
MR. SPARKS: No, I ain’t never been victim of a crime.
THE COURT: Okay, a victim of a crime?
MR. SPARKS: Uh-uh, no, I had tickets but I never been convicted of a crime.
THE COURT: Okay, do you have any connection with law enforcement?
MR. SPARKS: I have tickets, that’s about it, you know and one time, you know, one time I had, I was driving.

11sLater, the State questioned the jurors’ understanding of the law using a hypothetical situation involving two individuals that conspired to commit armed robbery of a bank: one person robbed the bank and killed the security guard while the other was the getaway driver, who did not intend for the security guard to be killed. The State then explained that the driver was still guilty of second degree murder and asked if that made sense to everyone. Mr. Sparks responded: “He had something to do with it, he knows what was done.”

Finally, the State asked the jurors to rate the Jefferson Parish Sheriffs Office on a scale from 1 to 10 based on their personal experience or opinion. Sparks responded: “My determination, we ain’t dealing Jefferson Sheriff, we dealing with Jeremy Turner, so I don’t have nothing about the Jefferson Parish. What you talking about ain’t being funny it ain’t got nothing to do with the police department.” Sparks further stated that he had nothing more to say about the police department and added that “they got a job to do.” The record does not reflect that Sparks made any comments or was otherwise questioned during the defense’s voir dire examination of the panel.

At a bench conference, when the State and defense had finished exercising challenges for cause, the following exchange took place.

THE COURT: Okay, I want you both to help me with something.
MR. FREESE: I’m sorry, with respect to No. 496, Mr. Sparks.
THE COURT: Thank you, that’s what I was about to ask. Could you understand what he was saying?
MR. FREESE: Only about 50 percent of it. The question is whether or not he can adequately communicate with other jurors.
THE COURT: That’s precisely the point, that’s my concern. You have anything to say about him?
MR. DUFFY: No, I don’t.
|UTHE COURT: He’s gone.
MR. DUFFY: Note my objection for the record.
THE COURT: Then let me be clear. The reason I’m going to grant that challenge for cause is No. 1, I’m not sure that Mr. Sparks, during my voir dire or yours, either one of you, understood the questions. More importantly, I’m not so sure that his remarks [sic] his ability to communicate with fellow jurors if he’s seated on the panel. Those two combined form the basis of my granting the challenge for cause.
MR. FREESE: And since this is a written record that will go up and not an audible record, I would offer the observation that whether it be because of the disability that he alluded to and questioned by the Court or for some other reason he has a tremendous difficulty enunciating in a fashion that allows the listener to understand what he says. You know, my own perception was I picked up about 50 percent of what his words were, spoken words were.
THE COURT: Mr. Duffy, do you disagree with those perceptions?
MR. DUFFY: No, but I disagree with the assessment that he wouldn’t be able to communicate with fellow jurors should he be chosen for the jury.

La.C.Cr.P. art. 797 allows either the defendant or the State to challenge a juror for cause on the ground that he lacks a qualification required by law, or that he is not impartial. La.C.Cr.P. art. 401(A)(3) and (4) state that jurors must be free of mental or physical incapacity and be able to read, write, and speak English. A person may be challenged for cause due to a loss of hearing or the existence of any other incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party. La.C.Cr.P. art. 401(B)(1).

The question of a juror’s qualifications is addressed to the sound discretion of the trial judge. State v. Mitchell, 08-186 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 734. A trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror. State v. Michel, 07-47 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 522, writ denied, 07-1422 (La.1/7/08), 973 So.2d 732. The trial court “has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning,” whereas the reviewing court reviews the matter only on a transcript in a record. State v. Anthony, 98-406 (La.4/11/00), 776 So.2d 376, 392, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000). Thus, a trial judge’s ruling on a challenge for cause will not be disturbed on appeal unless a review of the voir dire as a whole indicates an abuse of discretion. State v. Michel, supra.

Our review of the entire voir dire does not reveal that the trial court abused its discretion in granting the State’s challenge for cause regarding prospective juror Sparks. Here, the trial court had to ask Mr. Sparks three times about his prior participation in a jury before the Court was able to elicit a response. In addition, the trial court twice had to ask Sparks whether he was a victim of a crime. In response, Sparks answered that he had never been convicted of a crime.

Further, the defense neither questioned Sparks during voir dire nor argued against the State’s challenge for cause. In fact, defense counsel agreed with the observations of the trial judge and the prosecutor that Sparks had difficulty understanding the questions asked of him and tremendous difficulty enunciating so that the listener could understand him, i.e., only about 50 percent of his words were perceivable.

Because the record supports. the trial court’s conclusion that Sparks had a mental or physical infirmity, which rendered him incapable of performing his |1fiduties as a juror, we find that the trial court did not abuse its .discretion in disqualifying Sparks. Based on the foregoing, this assignment of error lacks merit.

In his third assignment of error, defendant argues that the trial court erred in allowing co-defendant Roddrick Petty to invoke his Fifth Amendment privilege in the presence of the jury, which resulted in a violation of Mr. Turner’s right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, defendant argues that the trial court erred in allowing the State to call co-defendant Roddrick Petty as a witness before the jury when the State knew he would invoke his Fifth Amendment privilege against self-incrimination. Defendant contends that Petty’s assertion of privilege in the presence of the jury prejudiced his case and violated his right to a fair trial.

The State first argues, as a procedural matter, that defense counsel did not make the required contemporaneous objection to the trial court’s ruling allowing Petty to take the stand. On the merits, the State argues there was no error in calling Petty to the stand, because he had no Fifth Amendment privilege to assert. Moreover, the State argues, that defendant was not prejudiced in any way.

During a bench conference, the judge discussed the State’s motion to compel Petty to testify with prosecution and defense counsel after requiring Petty’s attorney, Joseph Perez, to be present. While Perez strenuously objected to the State’s motion to compel as unconstitutional, defense counsel waived defendant’s presence stating that he assumed the hearing did not involve him or the defendant. After hearing arguments from the State and Perez, the trial court granted the State’s motion to compel Petty to testify.

The contemporaneous objection rule provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.C.Cr.P. art. 841. The purpose behind the contemporaneous 117objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. This prevents the defendant from gambling for a favorable verdict at trial and then later utilizing appellate review to correct errors that might easily have been corrected by the trial judge. State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, unit denied, 05-0081 (La.4/22/05), 899 So.2d 559. The Louisiana Supreme Court has said, “There are no formal requirements detailing any specific form for an objection. All that is required is that a party make clear, at the time an order of the court is made or sought, the action which he desires the court to take, together with an objection and grounds.” State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 981.

Here, the record reveals that the defense did not object to the trial court’s ruling as he did not believe it pertained to his client. Cf. State v. Laviolette, 06-92, p. 13 (La.App. 5 Cir. 9/26/06), 943 So.2d 527, 535, writ denied, 06-2585 (La.5/18/07), 957 So.2d 149. Based on the foregoing, we find that this assignment of error was not properly preserved for appellate review for failure to make a contemporaneous objection with specificity at trial.

Errors patent

Here, the defendant requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. Our review reveals no errors that require correction.

AFFIRMED

      . Defendant was indicted along with Danari-us R. Meredith and Roddrick A. Petty. The State severed the trials of the defendants on February 23, 2011.

      . Dr. Susan Garcia, an expert in forensic pathology, performed the victim's autopsy for the Jefferson Parish Sheriff’s Office at the Jefferson Parish Forensic Center. Dr. Garcia ruled that the manner of the victim's death was homicide and his cause of death was two gunshot wounds, one to each cheek, which caused lethal injury to critical portions of the victim’s brain. Based on the stippling and faint areas of smoke on the victim’s face, Garcia was able to determine that the weapon was discharged in between one and three feet from the victim.

      . The victim was the only child of Ann Marie Jessie, Sr. and Cletis Jessie, Sr.

      . Adriana Perez, an expert in forensic DNA analysis, testified that the cloth glove found next to the victim's vehicle revealed a mixture of DNA from at least three individuals, including Jeremy Turner. Perez also determined that DNA obtained from the steering wheel of the victim’s 1996 Ford Thunderbird was consistent with a mixture of DNA from at least three individuals, including the victim, Meredith, and Petty.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gus WILLIAMS.
    No. 11-KA-876.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.
    Harry J. Morel, Jr., St. Charles Parish, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintifl/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2On July 26, 2010, the St. Charles Parish District Attorney filed a bill of information charging defendant, Gus J. Williams, with molestation of a juvenile in violation of LSA-R.S. 14:81.2. He pled not guilty at arraignment. Defendant proceeded to trial on January 26, 2011, and a 12-person jury found him guilty as charged. On April 26, 2011, defendant was sentenced to 60 years imprisonment at hard labor, to be served without benefit of parole, probation, or suspension of sentence. Defendant appeals.

FACTS

On June 29, 2010, K.K., who was 9 years old, and her younger sister were at their grandmother’s house. They left the house with defendant, who was their uncle (their grandmother’s brother), and rode with him to pick up their mother from work. After dropping K.K.’s mother off at her home in Luling, defendant brought K.K. and her sister to Monsanto Park to play.

| sAt trial, K.K. explained that she was playing in the tunnels while at the park, and she told her uncle that her feet were hurting. He started rubbing her feet, but then started to rub higher. He then touched her “private part” over her clothes. At trial, she demonstrated how defendant had touched her. She said that she told defendant to stop and he did. She then told him she wanted to go home. She testified that he asked her if she was going to tell her grandmother and mother, and she responded that she would. She explained that defendant dropped her off at home, and she told her mother what happened to her at the park. K.K. testified that no one told her what to say before she got to the hospital, and no one talked to her about what she would say at trial. K.K. testified that she “got along” good with defendant, had spent a lot of time with him, and was never afraid of him.

K.K.’s mother testified that defendant was her favorite uncle. She said that when defendant returned from the park, he dropped her daughters off at the beginning of her driveway. She believed that this was strange, because defendant did not get out of the car and pull into the driveway like he had always done before. She asked K.K. what was wrong, and she did not answer. After asking again, K.K. began to cry and then told her mother that Uncle Gus had touched her on her “private.” K.K.’s mother asked what had happened, and K.K. told her that while at the park she told defendant that her feet were hurting and defendant began rubbing her feet. He then went up her leg, touching her on her “private.” K.K. told her mother that she pushed his hand back and told him to stop. He told her he would never do it again, and she told him to bring her home.

K.K.’s mother called her friend to bring her to her mother’s house. While on the way to her mother’s house, she called the police, but then saw defendant with a police officer who was conducting a traffic stop. KK.’s mother explained that she 14exited the vehicle and charged defendant. The officer grabbed her and pulled her back. She later brought K.K. to the hospital, where she was examined.

Deputy James Dufrene of the St. Charles Parish Sheriffs Office testified that he conducted a traffic stop of defendant on the day of the incident after defendant ran a stop sign. Deputy Dufrene stated that as he was talking to defendant, a car pulled into the parking lot, and K.K.’s mother came toward them, waiving her arms and saying, “I’m going to kill that MF’er. He touched my baby. I’m going to kill you, you bastard.” Deputy Dufrene got between K.K.’s mother and defendant. Defendant was put in the deputy’s car for defendant’s safety.

Dr. Brent Giuffre, an emergency room physician at St. Charles Parish Hospital, interviewed and examined 9-year-old K.K. at approximately 7:40 p.m. on the same date. According to Dr. Giuffre, K.K. gave a clear and concise statement about what had happened to her. She told him that her uncle had just touched her on her vagina after she had hurt her foot about an hour or so before her arrival at the hospital. She explained to the doctor that she told her uncle to stop and he did. She said he told her that he would never do it again. The examination revealed no findings and was normal. However, Dr. Gi-uffre testified that he did not expect to find any physical evidence, because K.K. said she was only touched outside of her clothing on her vagina.

The State presented a certified copy of a conviction from the 40th Judicial District Court in which defendant had previously pled guilty to carnal knowledge of a juvenile who was 13 years old at the time of the offense. Defendant was 53 years old at the time of the incident in the present case.

LAW AND DISCUSSION

In his sole assignment of error, defendant argues that the trial court erred in admitting evidence of other crimes, specifically his prior plea to carnal knowledge |Bof a juvenile in 1999. He claims this evidence was presented to inflame the jury into thinking defendant was a pedophile and that even if notice was afforded pursuant to LSA-C.E. art. 412.2, the State failed to overcome the extreme prejudice the evidence caused. He suggests that no balancing test was conducted as required by LSA-C.E. art. 403, no accounting was made for the fact that the conviction was from 1999, and there was no mention as to how the two crimes were even similar. Defendant contends that this trial error was not harmless because it deflated the defense theory that the juvenile was making the allegations out of spite or mistake. Defendant explains that the allegations were not consistently recounted and, even in its worst form, any contact was brief. Defendant concludes that the evidence, which was erroneously admitted, was extremely prejudicial and the jury’s verdict could not be considered unattributable to this error.

The State responds that although the prior conviction dated back to 1999, the trial judge properly exercised its discretion, noting that LSA-C.E. art. 412.2 does not provide a litmus test for when a prior conviction becomes outdated. The State further contends that even though defendant manufactured inconsistencies in the case, the victim’s testimony alone was sufficient to convict defendant. The State also asserts that the trial judge issued a limiting instruction to the jury as to how to consider the prior conviction. The State concludes that defendant’s prior conviction for carnal knowledge of a juvenile was relevant to show his propensity to sexually assault young women.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. State v. Williams, 09-48, p. 9 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 363, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860. The Louisiana | (¡Supreme Court first recognized a “lustful disposition” exception to the general rules of evidence in State v. Cupit, 189 La. 509, 179 So. 837 (1938). Williams, 09-48 at 10, 28 So.3d at 364. In 2001, the legislature codified this lustful disposition exception in LSA-C.E. art. 412.2, which governs the admission of evidence of similar crimes, wrongs, or acts in sex offense cases and provides, in pertinent part, the following:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the .balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provision of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

LSA-C.E. art. 403 provides that, “[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. This same standard is applied to rulings on the admission of other crimes evidence and evidence under LSA-C.E. art. 412.2. State v. Wright, 11-0141 (La.12/6/11), 79 So.3d 309, 316-17. In enacting Article 412.2, “the Legislature did not see fit to impose a restriction requiring such evidence to meet a stringent similarity requirement for admissibility.” Article 412.2 was enacted to loosen restrictions on “other crimes” evidence, and to allow evidence of “lustful disposition” in cases that involve sexual offenses. Id. at 317-18.

Thus, pursuant to LSA-C.E. art. 412.2, evidence of a prior sexual offense indicating that the defendant has a lustful disposition toward children is admissible |7if relevant and if the probative value outweighs the prejudicial effect. Williams, 09-48 at 11, 28 So.3d at 364; State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 218.

In the present case, prior to trial, the State filed a notice of intent to use defendant’s prior conviction for carnal knowledge of a juvenile to prove intent, plan, and absence of mistake pursuant to LSA-C.E. art. 412.2. Defendant filed a motion in limine to prohibit such evidence. On the day of trial, prior to opening statements, the trial court denied the motion in limine and defendant’s objection was noted. The judge said that the evidence was admissible and that he would instruct the jury regarding the evidence. He also noted that the evidence was prejudicial, but recognized that the issue was whether it was unduly prejudicial.

At trial, it was stipulated that defendant had been previously convicted of carnal knowledge of a juvenile in St. John the Baptist Parish. Defendant stipulated to the victim’s age in his prior conviction as well. In its opening statement, the State mentioned the stipulation as to the prior conviction of “carnal knowledge, consensual sex with a thirteen year old girl.” The State said it showed defendant had a “lust for children.” The State further said that the judge would instruct the jury as to how to consider the prior conviction. Thereafter, the defense counsel mentioned the pri- or crime during the cross-examination of K.K.’s mother and K.K’s grandmother. After these inquiries during cross-examination and before closing arguments, the State presented a certified copy of the conviction in which defendant pled guilty in the 40th Judicial District Court to carnal knowledge of a juvenile when the victim was 13 years old. The State asked that the evidence be published to the jury. The trial judge then instructed the jury as follows:

Ladies and gentlemen of the jury, evidence that the defendant was involved in the commission of an offense other then [sic] the Isoffense for which he is on trial is to be considered only for a limited purpose.
The sole purpose for which that prior conviction can be considered is whether to [sic] tends to show the defendant’s lustful disposition toward young girls or his propensity to sexual [sic] assault young girls who are under his care, custody, control or supervision.
Remember, Mr. Williams is on trial today only for the alleged offense charged. You may not find him guilty of this offense, merely because he may have perpetrated another crime previously.
Now it has been asked to publish the exhibits to the jury. What that means is to let you see copies of it. We have made copies of all the exhibits. We have a packet for each of y’all. We will give a stack on each end. Take the top one and pass the rest of them down to the juror next to you. Take your time in reviewing them.

In closing arguments, the State mentioned the prior conviction but noted that the only reason that the jury heard about the conviction was to show that the defendant had a lustful disposition toward young girls or children in case the jury was inclined to think that the incident was a mistake or accident. Defense counsel also mentioned the conviction in closing, and explained that what may or may not have happened in the past incident could not be used to determine the guilt or innocence in the instant case. Additionally, the trial judge included the following in the jury charges:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which the prior conviction may be considered is whether it tends to show:
The defendant’s lustful disposition toward young girls, or his propensity to sexually assault young girls who are under his care, custody, control and supervision.
Remember the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense previously.

Based on the record before us, we find that the trial judge did not err in his ruling of admissibility. Defendant was charged with molestation of a 9-year-old lagirl and the evidence of the prior act with a 13-year-old girl was highly relevant to show defendant’s lustful disposition towards young children. Additionally, although the instant act involved touching and the prior act involved intercourse, there is no requirement that the prior act be identical in nature to the charged offense. See State v. Johnson, 43,843, p. 15 (La.App. 2 Cir. 1/28/09), 2 So.3d 606, 615, writ denied, 09-0464 (La. 11/6/09), 21 So.3d 300. The similarities are sufficiently probative to support admissibility of evidence under Article 412.2. Further, the passage of time since the prior offense would not warrant exclusion.

The language used by the judge in denying the motion in limine implies that the judge applied the balancing test required under LSA-C.E. art. 403, whereby the probative nature of the evidence is weighed against its prejudicial effect. For the same reason it is probative, the evidence of the prior act is prejudicial to defendant. However, the evidence was not so prejudicial so as to warrant its exclusion under LSA-C.E. art. 403. There was no indication that the other crimes evidence confused or misled the jury. The evidence was presented in an orderly manner, and the trial judge gave a limiting instruction regarding the prior conviction when the State presented the certified copy of defendant’s prior conviction and prior to jury deliberations. The trial court also clearly instructed the jurors that they were not to find guilt in this case based on the other sexual offense. The probative value of the other sexual offense evidence outweighed the danger of unfair prejudice to defendant, and the trial court did not abuse its discretion in admitting the evidence of the prior incident. Accordingly, this assignment of error is without merit.

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App.10 5 Cir.1990), regardless of whether defendant makes such a request. Our review of the record did not reveal any errors that require corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED

      . The initials of the victim are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the court to protect the identity of a crime victim who is a minor or a victim of a sex offense by using his or her initials. State v. Greene, 06-667, p. 3 (La.App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229 n. 1, writ denied, 07-0546 (La. 10/26/07), 966 So.2d 571. The victim’s mother shares the victim's initials. As such, she will be referred to as K.K.’s mother.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Antoinette WILLIAMS.
    No. 11-KA-881.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

[ 2Pefendant, Antoinette Williams, pled guilty to distribution of cocaine in violation of LSA-R.S. 40:967(A). Defendant was sentenced to eight years with the Department of Corrections, the first two years being without benefit of parole, probation, or suspension of sentence. The sentence was to run concurrent with any other sentence defendant was presently serving. This appeal followed.

The pertinent facts were deduced from the bill of information, the waiver of rights form, and the guilty plea colloquy because the defendant entered a plea of guilty and did not proceed to a trial on the merits.

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

lain State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines, there are no non-frivolous issues for appeal, it may affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant a motion to withdraw and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could-find no non-frivolous issues to raise on appeal. In her brief, appellate counsel notes that there were no issues preserved. for review, the proposed sentence was stated before the guilty plea was accepted, and the conviction and sentence was informed.

The State agrees with appellate counsel and also submits that she has shown a conscientious and thorough review and recitation of the procedural history of the case. Additionally, the State points out that appellate counsel was correct in her ^contention that defendant did not preserve any issues for appellate review, the sentence was informed, and there was no material evidence that questions the fairness of the proceedings.

Appellate counsel has attached to her brief a letter which reflects that she notified defendant that she filed an Anders brief and explained to her that she has a right to file a pro se brief in the appeal. Additionally, this Court sent defendant a letter by certified mail informing her that an Anders brief had been filed and that she had until October 12, 2011, to file a pro se supplemental brief. Defendant did not file a brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: 1) the bill of information/indictment to ensure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 8) all pleadings in the record, and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. Bradford, 95-929, 676 So.2d at 1110-11.

In conducting this review, there does not appear to be any arguable basis for appeal. Defendant was properly charged by a bill of information. Defendant was also present at all crucial stages of the proceedings. Defendant was advised of and waived her Boykin rights, which included a right to a jury trial, then pled guilty to the bill of information. Her guilty plea and sentence were part of a plea bargain. Her sentence was legal as authorized by LSA-R.S. 40:967(A). Moreover, a | .^defendant cannot seek review of a sentence imposed in conformity with a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) and State v. Washington, 05-211, p. 5 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, a review of the transcripts does not reveal any basis for appeal.

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

The commitment reflects that defendant is to serve her sentence at hard labor; although the transcript is silent. With regard to the discrepancy between the transcript and the commitment, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). However, the trial court in the instant case ordered defendant to the serve her sentence with the Department of Corrections. Because LSA-R.S. 15:824(C) provides that “only individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Public Safety and Corrections,” we find that it is clear that the trial judge intended to sentence defendant to hard labor. As the commitment already reflects that defendant was sentenced to hard labor, no corrective action is necessary.

In conclusion, appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal. Furthermore, an independent review of the record supports counsel’s assertion. We therefore affirm defendant’s conviction and sentence.

AFFIRMED

      . The transcript also reflects that the defendant was also sentenced to six months in parish prison for a misdemeanor possession of marijuana conviction, which was to run concurrently to the sentence in the instant case.

      . In the present case, defendant pled guilty and was sentenced on June 20, 2011. At that time, defendant did not make an oral motion for appeal. Defendant subsequently filed a written pro se motion for appeal on July 21, 2011, which was granted by the trial court, and the Louisiana Appellate Project was assigned to the case. Thus, defendant’s motion for appeal appears untimely. LSA-C.Cr.P. art. 914. Normally, an apparently untimely appeal would be dismissed to allow a defendant to properly seek reinstatement of appeal rights by an APCR. However, under the circumstances of the matter before us, we will consider the merits of the appeal. Because the State did not object to any procedural irregularities in the ordering of the out-of-time appeal, and the trial court granted the appeal appointing the Louisiana Appellate Project,- a dismissal of this appeal to allow defendant time to properly seek reinstatement of appeal rights would only prolong the delay without serving any useful purpose. As such, we find this appeal is properly before this Court. State v. Stewart, 10-389, p. 3 (La.App. 5 Cir. 5/10/11), 65 So.3d 771, 774, writ denied, 09-1407 (La.3/5/10), 28 So.3d 1003; State v. Babineaux, 08-705 (La.App. 5 Cir. 1/13/09), 8 So.3d 621.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079, pp. 7-8 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459, (citing State v. Wingerter, 05-697, pp. 5-6 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 665).

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653, So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    NOLA 180, a Non-Profit Corporation, as Manager of Langston Hughes Academy Charter School v. TREASURE CHEST CASINO, LLC and Boyd Gaming Corporation.
    No. 11-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Jack M. Alltmont, April L. Watson, Attorneys at Law, New Orleans, LA, for Plaintifl/Appellant.
    Robert H. Murphy, Peter B. Sloss, Jeffrey A. Raines, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. ■ CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

IsThis appeal, which arises from a peculiar set of facts, presents this Court with a res nova issue. In this case, we are called upon to determine whether a remedy exists under the law in a case where a third party loses money at a gaming establishment through the criminal activities of another. The court below determined that no cause and no right of action existed in this case. Upon careful review of the record and jurisprudence, we can find no basis to disturb the trial court’s ruling. The judgment appealed from is affirmed. Procedural Background

The plaintiff/appellant, NOLA 180, as manager of Langston Hughes Academy Charter School (“LHA”), filed a petition for damages on June 21, 2010, against the defendants/appellees, Treasure Chest Casino, LLC and Boyd Gaming Corporation (collectively “Treasure Chest”). The petition alleges that NOLA 180 was damaged as a result of Treasure Chest’s activities in the operation of its casino. It contends that Treasure Chest is responsible for damages sustained when |3LHA’s former financial officer, Ms. Kelly Thompson, embezzled approximately $667,000 from the school, losing a substantial amount of those funds on the slot machines at Treasure Chest.

On August 16, 2010, Treasure Chest excepted to the petition on the grounds of no right and no cause of action. It relied upon La. R.S. 27:27.1(H) to argue that casinos have no duty to identify compulsive or problem gamblers. The trial on the exceptions was held on September 29, 2010. The trial court sustained the exceptions in open court, and the judgment was reduced to writing on October 8, 2010. In addition to ruling on the exceptions, however, the judgment further provided, “IT IS FURTHER ORDERED that Plaintiff has 90 days to complete discovery and to amend its Petition to state a cause of action against these Defendants.”

NOLA 180 then moved for a new trial on October 18, 2010. However, on November 24, 2010, the parties confected a consent judgment wherein the trial court vacated the above-referenced portion of the judgment, substituting it with the following: “IT IS FURTHER ORDERED that Plaintiff has ninety days to complete discovery and to amend its Petition to state a cause of action and a right of action against these Defendants.” (Emphasis Added). Treasure Chest noted its intent to seek supervisory review of the November 24th consent judgment. This Court granted the writ in part and denied it in part, finding that the trial court erred in granting discovery before the defects in the petition were cured. NOLA 180 v. Treasure Chest Casino, LLC., 10-1093 (La. App. 5 Cir. 1/27/11) (unpublished writ).

Thereafter, NOLA 180 filed a supplemental and amended petition on March 15, 2011. Treasure Chest reurged its exceptions of no right and no cause of action. I/The exceptions were heard on May 27, 2011, and were granted in open court. NOLA 180 appeals the trial court’s ruling. Discussion

First Assignment of Error

NOLA 180 asserts three theories of recovery against Treasure Chest. It claims relief under the Louisiana Unfair Trade Practices Act (“LUTPA”), in tort for general negligence, and under the “Abuse of Rights” doctrine. It contends that the trial court erred by granting Treasure Chest’s exception of no cause of action.

In reviewing a trial court’s ruling on a peremptory exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Wood v. Omni Bancshares, Inc., 10-216 (La.App. 5 Cir. 4/26/11), 69 So.3d 475, 479, citing, Ramey v. DeCaire, 03-1299, p. 7-8 (La.3/19/04), 869 So.2d 114, 119.

The purpose of the exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Id., citing, Albarado v. Abadie, 97-478, p. 2 (La.App. 5 Cir. 11/12/97), 703 So.2d 736, 740. (citation omitted). Cause of action, as used in the context of the peremptory exception, means the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Id.

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Therefore, an exception of no cause of action is triable solely on the face of the petition. Wood, supra. All well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the | ¡¡exception must be overruled. Id.; See also Lambert v. Riverboat Gaming Enforcement Div., 96-1856, p. 4 (La.App. 1 Cir. 12/29/97), 706 So.2d 172,175.

Louisiana Unfair Trade Practices Act

The LUTPA, embodied in La. R.S. 51:1405 et seq., makes “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. La. R.S. 51:1405. A practice is “unfair” when it offends established public policy and when the practice is unethical, oppressive, unscrupulous or substantially injurious. Hernaez v. Mothe Life Ins. Co., 09-147, p. 7 (La.App. 5 Cir. 11/10/09), 28 So.3d 454, 458; see Risk Management Services, LLC v. Moss, 09-632, p. 11 (La.App. 5 Cir. 4/13/2010), 40 So.3d 176,185.

As this Court has explained:

[A]cts which constitute unfair or deceptive practices are not specifically defined in the statute and are determined by the courts on a case-by-case basis.... In order to recover damages for a claim made under this act, a plaintiff must prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.... For conduct to be unfair it must offend established public policy.... Fraud, deceit and misrepresentation constitute deceptive practices ....

Hemaez, supra, at 458.

Traditionally, Louisiana courts have limited causes of action under LUTPA to consumers and business competitors. See Risk Mgmt. Serv., LLC v. Moss, 09-632 p. 10 (La.App. 5 Cir. 4/13/10), 40 So.3d 176, 184 (“a right of action exists under LUT-PA only for consumers or business competitors”); Levine v. First Nat. Bank of Commerce, 02-1114, p. 5 (La.App. 5 Cir. 4/29/03), 845 So.2d 1189, 1193 (an action under LUTPA is a personal right of action applying only to direct consumers or to business competitors); Davis v. Manpower Int’l, Inc., 623 So.2d 946, 947 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1173 (La. 1993) (“plaintiff was not a business competitor of the defendant within the meaning of the Unfair Trade Practices Act”); Vermilion Hosp., Inc. v. Patout, 05-82, p. 4 (La.App. 3 Cir. 6/8/05), 906 So.2d 688, 692 (“Louisiana courts, both state and federal, have uniformly held the personal right of action granted under LUTPA applies only to direct consumers or to business competitors”); and Schenck v. Living Ctrs.-East, Inc., 94-2514 (E.D.La.2/21/1996), 917 F.Supp. 432, 438 (“the statute [LUTPA] protects consumers and business competitors”).

More recently, however, the Louisiana Supreme Court expanded LUTPA to grant a right of action to “any person, natural or juridical, who suffers an ascertainable loss as a result of another person’s use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Cheramie Serv., Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 6 (La.4/23/10), 35 So.3d 1053, 1057. The Supreme Court added, “[ajlthough business consumers and competitors are included in the group afforded this private right of action, they are not its exclusive members.” Id. (citation omitted). Thus, in keeping with this holding, we find that a private right of action exists under LUTPA for all persons. However, to sustain a cause of action under LUTPA, Cheramie promulgated a two-prong test: 1) the person must suffer an ascertainable loss; and 2) the loss must result from another’s use of unfair methods of competition and unfair or deceptive acts or practices.

There is no dispute here that NOLA 180 has sustained an ascertainable loss in excess of $667,000, thereby satisfying the first prong under Cheramie. The next inquiry, however, is whether NOLA !80’s loss resulted from Treasure Chest’s unfair or deceptive trade practices.

In order for a practice to be unfair, it must offend established public policy and be unethical, oppressive, unscrupulous, or substantially injurious. The allegations set forth in NOLA 180’s petition, however, fail to show, that Treasure |7Chest committed any egregious actions that are inherently fraudulent, unethical, or deceitful or that offend established public policy. On the contrary, the Second Circuit, in Strong v. Eldorado Casino Shreveport Joint Venture, 46,464, p. 9 (La.App. 2 Cir. 8/10/11), 73 So.3d 967, stated that Louisiana’s public policy favors strictly regulated legalized gaming to promote the state’s economic development. This sentiment, which is codified in La. R.S. 27:202(B)(1), provides, that “[t]he development of a controlled gaming industry is important to the development of the economy of the state of Louisiana in that it will assist in the continuing growth of the tourism industry and thus will benefit the general welfare of our citizens.” Moreover, La. R.S. 27:42(A)(1) and (3) provides:

A. The legislature hereby finds and declares to be the public policy of this state that:
(1) The development of a historic riverboat industry is important to the economy of the state of Louisiana in that it will assist in the continuing growth of the tourism industry and thus will benefit the general welfare of our citizens and create new jobs. It is the intent of this Chapter to utilize Louisiana resources, goods, and services in the operation and construction of riverboats to the extent allowable by law, as defined in this Chapter.
* * * *
(3) The nature of the riverboat industry is such that the operation of riverboats on the waters of the state of Louisiana while allowing certain gaining activities will result in many benefits to the state with no significant detriment to the citizens of the state.

Thus, these statutes reveal that the Louisiana legislature strongly favors and supports the gaming industry and has found that gaming has no significant detriment to the citizens of this state.

Nevertheless, NOLA 180 alleges that Treasure Chest fostered Ms. Thompson’s gambling at the casino by assigning her a “handler” host and by giving her complimentary services, i.e., lodging, food, spa services, etc. These | sactions, however, constitute normal business practices in the gaming industry. And Louisiana jurisprudence has declined to find a LUTPA violation when the alleged conduct was simply a “normal business relationship.” JCD Mktg. Co. v. Bass Hotels and Resorts, Inc., 01-1096 (La.App. 4 Cir. 3/6/02), 812 So.2d 834, 842.

Accordingly, we find that NOLA 180’s petition fails the second prong of Cheramie. The factual allegations in the petition do not show that NOLA 180’s loss resulted from Treasure Chest’s unfair methods of competition and unfair or deceptive practices. Thus, the trial court correctly determined that NOLA 180 has no cause of action under LUTPA.

Duty of Care

Next, NOLA 180 contends that Treasure Chest breached its duty of care when it failed to identify Ms. Thompson as a compulsive or problem gambler. To rebut this argument, Treasure Chest cites La. R.S. 27:27.1(H), which provides, “[t]he provisions of this Section shall not require the board, division, licensees, permittees, the casino gaming operator, and the employees thereof to identify problem or compulsive gamblers which is an activity that requires medical and clinical expertise.” Notably, however, section C(4) of that statute provides that casinos shall provide a comprehensive program that shall “[pjrovide procedures for the training of all employees that interact with gaming patrons in gaming areas to report suspected problem gamblers to supervisors who shall be trained as provided in this Paragraph.” At first blush, these two sections appear contradictory. However, subsection (C)(4) deals with the reporting of suspected problem gamblers, while section (H) deals with the identification of problem or compulsive gamblers — which the statute expressly states requires medical or clinical expertise.

| aAs NOLA 180 recognizes, Louisiana jurisprudence is absent on the specific issue presently before this Court. No Louisiana court has specifically determined whether, in cases such as this, casinos owe a duty of care to third persons who sustain a loss through the criminal acts of another when such criminal acts occurred away from the casino’s premises. The Eastern District of Louisiana, however, in Sherman v. Harrah’s New Orleans Casino, et al., 06-2379, (E.D.La.2/12/2008), (unpublished order) has discussed whether casinos have a duty to identify compulsive or problem gamblers. We recognize, as does NOLA 180, that Sherman was before the court on a motion for summary judgment. We, nevertheless, find the court’s reasoning compelling. In that case, the court stated:

The Court notes the specific language of the provision, in which the legislature expressly stated that identifying problem or compulsive gamblers “is an activity that requires medical and clinical expertise.” The legislature explicitly refused to require a casino or its employees to identify problem gamblers; consequently, the Court refuses to impose a duty on a casino employee which has not been imposed by the legislature .... To do so would require the Court to impose a greater duty on a casino than the law requires. (Emphasis Added).

NOLA 180 contends that Sherman is inapplicable here because the court only discussed a casino’s duty to its own patron. It stands to reason, however, that if a casino has no duty to protect a patron from himself, neither does it have a duty to protect a third party from whom the patron may have allegedly stolen funds.

Generally, there is no duty to protect others from the criminal activities of third persons. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). Yet, NOLA 180 contends that Treasure Chest had a duty to protect it from Ms. Thompson’s criminal acts. The cases upon which NOLA 180 relies, however, are inapplicable to the facts of this case. See Hams, supra (three armed robbers entered Pizza Hut and injured two patrons and killed another); Gardner v. Griffin, 97-0379 (La.App. 1 Cir. 4/8/98), 712 So.2d 583 (plaintiff sustained injuries after being attacked in city/parish’s parking garage); and Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993) (plaintiff was raped in the poorly lit parking lot of her apartment complex). In each of those cases, the third-party criminal act occurred on the defendants’ premises. In this case, however, the third-party criminal activity, i.e. the embezzlement, occurred before Ms. Thompson entered the casino, presumably on NOLA 180’s premises. It is well settled that there is no duty to control the actions of a third person and thereby prevent him from causing harm to another unless some special relationship exists to give rise to such a duty. Enter. Transp. Co. v. Veals, 532 So.2d 917, 921 (La.Ct. App.1988). In this case, no special relationship existed between NOLA 180 and Treasure Chest.

We, therefore, find that the trial court correctly determined that Treasure Chest did not owe a duty of care to NOLA 180. NOLA 180 was not Treasure Chest’s patron, was never victimized on Treasure Chest’s premises, and had no special relationship with Treasure Chest.

Abuse of Rights

Finally, NOLA 180 asserts a cause of action under the “Abuse of Rights” doctrine. It alleges that Treasure Chest abused the exercise of its legal right by promoting and fostering Ms. Thompson’s compulsive and addictive gambling. This doctrine, which was first promulgated in Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.1977), applies only when one of the following conditions are satisfied:

(1) the predominant motive for exercise of the right is to cause harm;
(2) there is no serious or legitimate motive for exercise of the right;
|n(3) the exercise of the right violates moral rules, good faith, or elementary fairness; or
(4) the exercise of the right is for a purpose other than that for which it was granted.

Steier v. Heller, 31,733 (La.App. 2 Cir. 5/5/99), 732 So.2d 787, 791.

NOLA 180 contends that it has a cause of action under the third abuse of rights factor. This argument, however, is contingent upon a finding that Treasure Chest had a duty to identify Ms. Thompson as a problem gambler. Yet, we have already determined that such a diagnosis requires medical or clinical expertise, which is something Treasure Chest is not qualified to do. See La. R.S. 27:21.1(H). The abuse of rights doctrine has been invoked sparingly in Louisiana. Id. at 790. It is a civilian concept which is applied only in limited circumstances because its application renders unenforceable one’s otherwise judicially protected rights. Id. The trial court correctly determined that such doctrine is inapplicable here.

This Court has previously held that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Guidry v. Hanover Ins. Co., 09-220 (La.App. 5 Cir. 11/10/09), 28 So.3d 426, 429, writ denied, 09-2701 (La.2/26/10), 28 So.3d 272. After carefully reviewing the record and law applicable to this case, we find that the trial court was correct in its determination that the factual allegations set forth in the petition do not entitle NOLA 180 to relief under LUTPA, abuse of rights, or in tort. Therefore, this assignment of error is without merit.

112iSecond Assignment of Error

Next, NOLA 180 contends that the trial court erred by granting the exception of no right of action.

The peremptory exception of no right of action tests whether the plaintiff has the capacity or legal interest in judicially enforcing the right asserted. 3218 Magazine, L.L.C. v. Lloyds of London, 08-727 (La.App. 5 Cir. 2/25/09), 10 So.3d 242, 243 (citation omitted). An exception of no right of action assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Id. In this case, however, we have already determined that the petition fails to state any causes of action. Therefore, this assignment of error is rendered moot.

Conclusion

For the reasons stated above, we find that the trial court did not err in granting the exceptions of no cause and no right of action. NOLA 180’s petition does not state a cause of action under LUTPA, because it has failed to show that its loss resulted from Treasure Chest’s unfair methods of competition and unfair or deceptive practices. We further find that the trial court correctly determined that Treasure Chest did not owe a duty of care to NOLA 180. NOLA 180 was not Treasure Chest’s patron, was never victimized on Treasure Chest’s premises, and had no special relationship with Treasure Chest. And finally, we find that the abuse of rights doctrine is inapplicable in this case. Accordingly, the judgment appealed from is affirmed.

AFFIRMED

      . Ms. Thompson was subsequently convicted of "theft from an organization receiving federal funds" in violation of 18 USC § 666(a)(1)(A) in the United States District Court in the Eastern District of Louisiana.

      . The parties agreed that the Consent Judgment obviated the need for a hearing on NOLA 180's motion for new trial.