author: COOKS, Judge.

text:
    STATE of Louisiana v. Kent Dale SIMON.
    No. 10-1111.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Kent Dale Simon.
    Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   COOKS, Judge.

| j Defendant appeals his conviction for attempted sexual battery. For the following reasons, we affirm Defendant’s conviction.

FACTS AND PROCEDURAL HISTORY

Defendant, Kent Dale Simon, was arrested for alleged sexual battery of a minor. He was subsequently charged with sexual battery, in violation of La.R.S. 14:43.1. Defendant entered a plea of not guilty. Jury selection commenced, and after the jury was selected, the State amended the bill of information to reflect the victim’s date of birth. The jury returned a verdict of attempted sexual battery. Defendant was then sentenced to serve twelve and one-half years at hard labor, without benefit of probation, parole, or suspension of sentence. An oral motion to reconsider sentence was made and denied. A written motion to reconsider sentence was filed and also denied. A motion for appeal was filed and subsequently granted.

Defendant is now before this court asserting four assignments of error, contending the trial court: 1) should have denied the State’s Motion to Amend the charge once trial had started; 2) erred in allowing testimony from the trial to be replayed to the jury in violation of La. Code Crim.P. art. 793; 3) erred in denying a Motion for New Trial because the evidence in this case did not prove the truth of the charge beyond a reasonable doubt, and the State used a booking photograph of him in closing; and 4) erred in sending the jury back into deliberation after being notified there was an eight to four deadlock.

ANALYSIS

I. Assignment of Error No. 3

In his third assignment of error, Defendant contends the trial court erred when it denied a Motion for New Trial, because the evidence in this case did not prove the 12truth of the charge beyond a reasonable doubt. He argues there was no proof of the ages of the alleged victim and Defendant; therefore, the statutory requirements of those elements of the offense could not be established. Further, Defendant contends the State used a booking photograph of him in closing, tearing it up. Defendant notes although his counsel did not object to the use of the booking photograph, his counsel was not aware that a booking photograph was used until after the verdict and thus cannot be held to the contemporaneous objection rule under these circumstances.

We initially note Defendant did not file a Motion for New Trial. At the sentencing hearing, defense counsel asked that the matter be refixed because he wanted to file a Motion for New Trial. He asserted that a mug shot was used during closing arguments, torn into four pieces by the State, and put back together like the pieces of a puzzle and the trial court gave an Allen charge during jury deliberations. The trial court subsequently told defense counsel that he could take the matters up on appeal, and he had ample opportunity to file a Motion for New Trial; thus, sentencing would not be continued.

Although the Defendant did not file a Motion for New Trial, he raises issues of sufficiency of the evidence. When multiple issues are raised on appeal and sufficiency of the evidence is one of the alleged errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

The Defendant was convicted of attempted sexual battery. Sexual battery is defined as:

... the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
|a(l) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

La.R.S. 14:43.1(A).

An attempt to commit a crime occurs when: “[a]ny person who, having a specific intent to commit a crime, does ... an act for the purpose of and tending directly toward the accomplishing of his object....” La.R.S. 14:27(A). Thus, the State must prove Defendant did an act for the purpose of and tending directly toward touching M.G.’s anus.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

[T]he testimony of a single witness, absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. The credibility of the witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the trier-of-fact’s sound discretion and will not be re-weighed on appeal. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138.

State v. Jeter, 09-1004, pp. 3-4 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043-44.

During trial, the State played a video of the child advocacy center interview with M.G. During that interview, M.G. stated she was six years old and her birthday was November 18. M.G. told the interviewer that the events at issue occurred on a day she and her family went to the Zoo of Acadiana after school.

M.G. further stated that on the day she went to the zoo, her mother went out and left her and her brother with Defendant. While she was sleeping in her mother’s bed, the Defendant pulled down her pants. She then woke up, and Defendant used his hand to touch “in” her “behind,” which “hurted.” Defendant then left the room, and she pulled up her pants and got under the bed. Defendant washed his hands and came back into the room. At that time, Defendant said A.G., M.G.’s mother, was going to hurt him because he had lost her daughter. Defendant subsequently bent down to get his hat and saw M.G. under the bed. Defendant made her come out from under the bed, and he kept asking her what was wrong. M.G. stated she told Defendant she wanted her mother. M.G. first told her brother about the incident. She indicated that she waited to report the incident because she was scared and thought her mother would be mad at her.

On diagrams presented to her by the interviewer, M.G. circled the part of her body that was touched by the Defendant and the part of his body that was used to touch her. She used a brown marker to draw a line down the center of her buttocks and circled the Defendant’s finger.

At trial, M.G. testified that she was seven years old. M.G. recounted the events she described during the child advocacy interview. She also recalled that her mother was at the store when this occurred. When her mother got home, M.G. was sitting on the floor, and her brother was sleeping. Defendant was also sitting on the | ¿floor asking her what was wrong.

M.G. testified she first told her older brother, K.G., what the Defendant had done because she was scared to tell her mother. During trial, the State played a video of the child advocacy interview of KG. During that interview, K.G. stated M.G. told him Defendant pulled down her pants and touched her body. She also told him not to tell their mother. K.G. stated the events occurred while his mother brought her boyfriend to work during the summer. This was the only time Defendant watched him and his sister. K.G. testified he was nine years old at the time of trial. He further testified that M.G. told him Defendant pulled down her pants, and he told their mother. He thought the events occurred when he and his sister were out of school.

A.G., KG.’s mother, testified that she knew Defendant because her ex-boyfriend’s sister had a child with him. A.G. testified that the offense occurred in October 2008 and she was told of the events in March 2009. A.G. testified that K.G. told her Defendant pulled down M.G.’s pants. A.G. then asked M.G. about the incident. A.G. testified that M.G. told her after they got home from Boo at the Zoo, she woke up, and Defendant had pulled down her pants and was “messing” with her. Defendant then left the room, and M.G. hid under the bed.

A.G. testified that after returning from the zoo, the kids fell asleep in her bed. Defendant and Shannon knocked on the door. Defendant said they had too much to drink and wanted to crash on the couch. A.G. agreed. Shannon later asked A.G. to take him to the store. Defendant volunteered to watch M.G. and K.G. When A.G. got home, she noticed that the door of her home was closed and locked, which she had not done when she left. She found Defendant sitting on the floor of her bedroom with M.G. in his lap. Defendant stated he had gone outside to smoke, and, upon returning, could not find M.G. Defendant stated that he found her under the bed. A.G. asked | fiM.G. if everything was okay, and she indicated that it was. M.G. never told A.G. she was out of bed because she had a nightmare.

Defendant testified he was twenty-three years old. Defendant denied touching M.G. in an inappropriate manner in October 2008 or any other time. Defendant recalled drinking with co-workers in late October 2008 and subsequently going to the home of A.G. Defendant testified he brought Shannon to A.G.’s residence that night, because A.G. was holding some marijuana that had been sent for Shannon. A.G. denied holding or using marijuana.

Defendant testified that Shannon wanted A.G. to take him somewhere, and he volunteered to watch M.G. and K.G. After Shannon and A.G. left, he smoked marijuana outside then went back inside the house. He eventually went to check on the children and did not see M.G. Defendant looked through the house for M.G. for approximately five minutes. He went back into A.G.’s room, scratched his head, and his hat fell. When he bent down to pick it up, he heard M.G. crying. He then found her under the bed. Defendant asked M.G. what was wrong, and she said she wanted her mother. M.G. then crawled from under the bed into the Defendant’s arms. M.G. cried and continued to say she wanted her mother. Defendant testified it was about three to four minutes from the time he found M.G. until A.G. returned home. Defendant testified M.G. told A.G. that she had a bad dream.

Defendant testified that he had been convicted of simple criminal damage to property and driving while intoxicated in June 2009.

In brief to this court, Defendant contends that M.G.’s testimony was the “total of all evidence offered.” He also argues no other witness could support her claim and, her conduct was inconsistent with that claim. Defendant contends that when M.G.’s mother returned home M.G. was sitting in his lap, despite her claim that she |7had gone under the bed. Defendant further argues “[t]hat makes no sense, as if she were hiding from him, she would not be quietly sitting in his lap.” Further, Defendant asserts the factual issues, including the information that M.G.’s mother was gone for only minutes, and M.G. likely had a bad dream, impair confidence in the verdict. Defendant concludes there is too high a potential for the verdict to be a mistake, as the report was delayed for months. Lastly, he contends M.G.’s testimony is insufficient to convict him of attempted sexual battery.

We note the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical evidence. State v. Leyva-Martinez, 07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La.1/30/09), 999 So.2d 747. M.G. stated the Defendant touched “in” her “behind” and it hurt. She also drew a line down the center of her buttocks and circled the Defendant’s finger when asked to indicate on a diagram what part of her body the Defendant touched and what part of his body was used to touch her. The jury heard all testimony in this matter and obviously found M.G.’s version of the events credible. That credibility determination should not be second-guessed by this court. Accordingly, we find the evidence, when viewed in the light most favorable to the State, supports the verdict rendered by the jury. See State v. Bertrand, 03-2069 (La.App. 4 Cir. 4/28/04), 874 So.2d 905.

Date of the Offense

Defendant also contends the State failed to present evidence regarding the date on which the alleged events actually occurred. In State v. Vidrine, 08-1059 (La.App. 3 Cir. 4/29/09), 9 So.3d 1095, writ denied, 09-1179 (La.2/26/10), 28 So.3d 268, the defendant was convicted of indecent behavior with a juvenile under the age of fifteen and sexual battery of a juvenile under the age of fifteen. On appeal, the State | ^maintained that dates were not essential to the crimes of which the defendant was convicted; therefore, the fact that the time frames were not specifically satisfied by the victim’s testimony was not an essential issue. The State cited La. Code Crim.P. art. 468, which provides as follows:

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.
All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.

In our opinion in Vidrine, we stated:

[I]t is well settled in Louisiana jurisprudence that the State is not required to present evidence proving the date of the offense when it is not an essential element of the crime. State v. Yossett, 41,926 (La.App. 2 Cir. 4/25/07), 956 So.2d 109, writ denied, 07-1110 (La.11/21/07), 967 So.2d 1155.

Id. at 1103.

In State v. Yossett, 41,926 (La.App. 2 Cir. 4/25/07), 956 So.2d 109, writ denied, 07-1110 (La.11/21/07), 967 So.2d 1155, the second circuit found the actual date on which the offense of sexual battery was alleged to have occurred was not an essential element of the crime.

Based on the above-cited cases, we agree the date of the offense is not an essential element of attempted sexual battery.

Age

In setting forth the assigned error, Defendant asserts there was no proof of the ages of the alleged victim and himself; thus, the statutory requirements of those J^lements of the offense could not be established.

Defendant did not discuss this issue in the body of his brief; thus, the issue is abandoned and cannot be considered by this court. Uniform Rules — Courts of Appeal, Rule 2-12.4.

Booking Photograph

Defendant notes that a picture of himself at the time of booking was torn into four pieces. During its closing argument the State used the torn photo to demonstrate that the facts in the case fit together like a puzzle. Defendant contends this suggested he was the puzzle the jury had to solve, and his mug shot was repeatedly shown to the jury as a suggestion of criminality and culpability, even though it was never admitted as evidence. Defendant further cites La.Code Crim.P. art. 774, which provides that closing arguments must be confined to the evidence admitted, to the lack thereof, to conclusions of fact that the State or Defendant may draw therefrom, and to the law applicable to the case. Defendant contends that using a picture of him as a prop is not allowed. Defendant contends it was prejudicial and reversible error to base the verdict on this to any extent, however, minimal.

No objection was made by defense counsel at the time the photograph was shown to the jury. Accordingly, Defendant waived review of the issue on appeal by failing to object during closing argument or immediately thereafter. La.Code Crim.P. art. 841; State v. Johnson, 604 So.2d 685 (La.App. 1 Cir.1992), writ denied, 610 So.2d 795 (La.1993).

II. Assignment of Error No. 1

In his first assignment of error, Defendant contends the trial court should have denied the State’s motion to amend the charge once trial started. He notes the amendment set forth the victim’s date of birth. Defendant contends that defense | incounsel objected to the amendment, noting the amendment was substantive under La.Code Crim.P. arts. 487 and 761. Further, Defendant asserted the amendment added facts not previously alleged or pled in the case after jeopardy attached.

The State counters that adding the victim’s date of birth to the bill of information did not affect how the Defendant prepared his defense in the case; therefore, the amendment was one of form, not substance.

Louisiana Code of Criminal Procedure Article 487(A) provides for the amendment of defective indictments, in pertinent part, as follows:

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

In State v. Johnson, 93-894. p. 3 (La.6/3/94), 637 So.2d 1033, 1034-35, the supreme court discussed the amendment of bills of information as follows:

La. Const. 1974, Art. I, § 13 provides that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” This requirement protects the accused’s right to prepare a defense and exercise fully his rights of confrontation and cross-examination. State v. Germain, 433 So.2d 110 (La.1983). The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. State v. Marcal, 388 So.2d 656 (La.1980); State v. Meunier, 354 So.2d 535 (La.1978). Accordingly, the state may not substantively amend a bill of information to charge a new offense once trial has begun. La.C.Cr.P. art. 487; Cf, State v. Roberts, 319 So.2d 317, 320 (La.1975), rev’d on other grounds, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), on remand, 340 So.2d 263; State v. Bluain, 315 So.2d 749 (La.l975)[.]

InLouisiana Code of Criminal Procedure article 761 provides that “[a] jury trial commences when the first prospective juror is called for examination.”

After the jury was selected, the State moved to amend the bill of information to “reflect the correct date of birth of the victim.” The State then noted it did not believe the bill of information included that data. Defense counsel objected to the timeliness of the amendment, indicating the jury had been sworn. The following occurred during a discussion regarding La. Code Crim.P. arts. 487 and 761:

MS. NAQUIN (Assistant District Attorney): Your Honor, it looks like Code of Criminal Procedure Article 487.
MS. NAQUIN: It states that the Court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
MR. OUSTALET (Defense Counsel): Your Honor, if I may, 487 says before the trial begins, the Court may order an indictment amended with respect. After the trial begins, a mistrial shall be ordered on the ground of a defect of substance. Article—
THE COURT: A defect of substance, and you’re saying the commencement of trial was when the jury was sworn last night?
MR. OUSTALET: Code of Criminal Procedure Article 761 states that the commencement of trial — a jury trial commences when the first prospective juror is called for examination.
THE COURT: All right. The trial has begun, Ms. Naquin. Is this a — is—the question then is is this a defect of substance.

The State asserted the amendment was not substantive. The victim’s date of birth would determine which sentencing provision applied to Defendant, and, if the 112victim was under the age of twelve, “then it triggers higher penalties.” Defense counsel stated the amendment was substantive because it called into question the proposed penalties. The trial court overruled defense counsel’s objection and allowed the State to amend the bill of information to include the victim’s date of birth. Defense counsel then objected to the ruling.

In State v. Glover, 98-2632 (La.App. 1 Cir. 9/24/99), 754 So.2d 1044, writ denied, 99-3200 (La.4/7/00), 759 So.2d 94, the defendant was charged with attempted first degree murder and armed robbery. After the jury was sworn, the defendant made an oral motion to quash the indictment on the basis of double jeopardy. On the second day of trial, defense counsel asked that the motion to quash be held in abeyance, and that the trial court consider a motion in arrest of judgment. The trial court found the motion to quash was the correct procedural vehicle. Count one of the indictment was subsequently quashed, and defense counsel objected, but did not state the specific grounds for the objection. The defendant was subsequently convicted of armed robbery.

On appeal, the defendant contended the amendment of the bill of information constituted an amendment of substance. The first circuit noted that article 487 provided that a mistrial should be ordered in a case where trial had begun and a substantive amendment was made to the indictment. It then stated: “However, defense counsel in this situation never requested a mistrial. The parties obviously disagreed about the correct procedural vehicle to assert, although they all agreed the bill of information as originally filed constituted double jeopardy.” Id. at 1047. The first circuit stated that despite the confusion over the correct procedural vehicle to utilize, the defendant received relief. Further, the defendant did not claim prejudice and did not request a mistrial. It then found there was not reversible error in the 1 ^failure to grant a mistrial in “this situation” despite the fact that trial had actually commenced. Id. at 1048.

Defendant contends a mistrial should have been granted in this matter. Defendant in the case at bar merely objected to the amendment and read the applicable code article. He did not move for a mistrial. Based on the ruling in Glover, if the amendment was substantive, Defendant failed to request a mistrial; thus, he was not entitled to same. For these reasons, this assignment of error lacks merit.

III. Assignment of Error No. 2

In his second assignment of error, Defendant contends the trial court erred in allowing testimony from the trial to be replayed to the jury in violation of La. Code Crim.P. art. 793. During deliberations, the jury sent a note to the trial court asking to see the video of M.G.’s interview. The jury subsequently watched the video. He contends the lack of objection is immaterial, as this amounted to a structural trial error and could not be considered harmless because it was absolutely prohibited. The State counters that viewing of the videotape was a physical examination of an object or document received in evidence, not the repeating of trial testimony; thus, there was no error.

Louisiana Code of Criminal Procedure Article 793 provides, in pertinent part, as follows:

A. Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

The error complained of by Defendant is a trial error subject to the | contemporaneous objection rule. . Defense counsel failed to object to the jury’s viewing of the videotape during deliberations; thus, the error was waived. La. Code Crim.P. art. 841. State v. Collor, 99-175, p. 12 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 103, writ denied, 00-1487 (La.3/9/01), 786 So.2d 116. Accordingly, this assignment of error will not be considered.

IV. Assignment of Error No. 4

In his fourth assignment of error, Defendant contends the trial court erred in sending the jury back into deliberations after being notified there was an eight to four deadlock. Defendant further contends the compelling nature of the court’s instruction led to a verdict that was in fact a compromise, and the trial court erred in giving a prohibited “Allen Charge” to the prejudice of his due process rights.

However, it is not necessary for us to determine if the charge at issue was an Allen charge, as Defendant failed to object to the charge at the time it was given. Therefore, he waived review of the issue on appeal. State v. Eugene, 03-1128 (La. App. 5 Cir. 1/27/04), 866 So.2d 985, writ denied, 04-515 (La.1/14/05), 889 So.2d 263; State v. Caston, 561 So.2d 941 (La.App. 2 Cir.1990). Accordingly, this assignment of error will not be considered.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Felton HURST, Jr.
    No. 10-1204.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.

      James C. Downs, Harold A. Van Dyke III, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Felton Hurst, Jr.
    Felton Hurst, Jr., Louisiana State Penitentiary, Angola, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

hln 2009, Felton Hurst, Jr., was charged with the following counts: 1) aggravated battery with a dangerous weapon, a violation of La.R.S. 14:34; (2) aggravated battery with a dangerous weapon, a violation of La.R.S. 14:34; (3) simple robbery, a violation of La.R.S. 14:65; (4) carjacking, a violation of La.R.S. 14:64.2; (5) purse snatching, a violation of La.R.S. 14:65.1; and, (6) simple criminal damage to property, a violation of La.R.S. 14:56(B).

After a bench trial, Hurst was found guilty of attempted aggravated battery in count one, guilty as charged in counts two through five, and guilty of simple criminal damage under $500.00 in count six. For these convictions Hurst received the following consecutive sentences: (1) six months in parish jail; (2) ten years at hard labor; (3) seven years at hard labor; (4) twenty years at hard labor, without benefit of parole, probation, or suspension of sentence; (5) twenty years at hard labor, without benefit of parole, probation, or suspension of sentence; and, (6) six months. The trial court denied a motion to reconsider sentence.

I.

ISSUES

(1) We shall consider whether Hurst’s conviction of attempted aggravated battery was a patent error where Hurst was charged with an aggravated battery;
(2) after concluding that the verdict of attempted aggravated battery was non-responsive to the charge of aggravated battery and is a non-crime, we shall examine whether Hurst should be acquitted of the aggravated battery because of double jeopardy where the trial court explicitly acknowledged that it had reasonable doubt as to whether Hurst committed an aggravated battery;
(3) then, we shall consider whether Hurst’s sentence for purse snatching was a patent error where the trial [2court sentenced him to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence; and,
(4) finally, we shall consider whether the maximum consecutive sentences for Hurst’s convictions are excessive where all of the convictions are based on the same act or transaction and where the trial court examined in detail factors warranting consecutive sentences.

II.

FACTS

On the evening of June 7, 2009, the victim and her mother traveled to Alexandria, Louisiana to go shopping and play bingo. After the victim parked her vehicle on the side of Bingo World, Hurst approached the victim, began pulling on the strap of her purse, and told her to give him her money. Hurst then punched the victim in the left eye, and the two began to struggle and fight for her purse and keys. Hurst gained possession of the victim’s purse. Hurst then retrieved the key, got into the victim’s car, and attempted to leave. The victim and her mother continued to struggle with Hurst through the opened door, trying to pull him from the car. When Hurst managed to start the car, he put it in reverse, knocking the victim’s mother to the ground. Hurst proceeded to smash the victim’s car into nearby vehicles. Two civilians attempted to stop Hurst, and law enforcement arrived soon thereafter.

III.

LAW AND DISCUSSION

A) Errors Patent

(1) Non-responsive Verdict and Double Jeopardy

In State v. Mayeux, 498 So.2d 701 (La.1986), the defendant was charged with aggravated battery, and the jury returned a verdict of attempted aggravated Isbattery. The appellate court held that the attempted aggravated battery was a non-responsive verdict. As a result, the appellate court reversed the conviction, set aside the sentence, and ordered an acquittal to be entered for aggravated battery. State v. Mayeux, 485 So.2d 256 (La.App. 3 Cir.), rev’d, 498 So.2d 701 (La.1986). The supreme court affirmed the appellate court’s ruling vacating the conviction and setting aside the sentence. Nevertheless, it reversed the appellate court’s ruling ordering an acquittal:

[T]he verdict of the jury was unresponsive to the crime charged and purported to convict of a crime not specifically designated by our legislature. Further we conclude it is beyond the scope of our appellate power to modify the illegal verdict in any fashion. Accordingly, we find the verdict to be wholly invalid and without legal effect to convict or acquit the defendant of aggravated battery or of lesser included responsive offense.
DOUBLE JEOPARDY
[W]e conclude the Fifth Amendment does not bar retrial when a jury’s verdict, containing a nonwaivable defect, must be set aside by an appellate court. The jury rendered an illegal verdict. It purported to convict of a crime unresponsive under art. 814 and unspecified in our criminal law. It amounted simply to conviction of a non-crime. As such it could operate neither as a conviction nor acquittal. Naturally it should not have been received by the trial judge. After having been received, the verdict may not be modified or reformed on appeal. Accordingly, the appropriate action is to set aside the conviction and remand for retrial.

Mayeux, 498 So.2d at 704-05.

Following the supreme court’s decision, the defendant was retried and convicted of aggravated battery. Eventually, the federal district court reversed the conviction based on double jeopardy. Mayeux v. Belt, 737 F.Supp. 957 (W.D.La.1990). The federal court concluded that the jury in the first trial was given a full 14opportunity to return a verdict on the greater charge but, instead, found the defendant guilty of attempt. The court pointed out that the trial court had instructed the jury that a verdict of attempt could be returned if the jurors were not convinced that Mayeux was guilty of aggravated battery, and the jury acquitted Mayeux of aggravated battery. The federal district court concluded that the second trial put the defendant in jeopardy a second time.

In State v. Campbell, 94-1268 (La.App. 3 Cir. 5/3/95), 657 So.2d 152, aff'd in part & vacated in part, 95-1409 (La.3/22/96), 670 So.2d 1212, two defendants were indicted for jury tampering. The jury returned a verdict of attempted jury tampering. The defendants’ motion for arrest of judgment because the crime of attempted jury tampering did not exist was denied. The defendants appealed.

This court explained that the elements of attempted jury tampering “support a conviction for the completed offense, and that this is exactly what the legislature desired in enacting the statute. Any attempt at jury tampering is subsumed into the statute.” Id. at 155. Consequently, this court vacated the defendants’ convictions and set aside the sentences. Then, this court followed the federal court’s decision in Mayeux, 737 F.Supp. 957, and ordered that acquittals be entered.

The State appealed. The supreme court affirmed this court’s ruling vacating the convictions and setting aside the sentences based upon the non-responsive verdicts. Campbell, 670 So.2d 1212. Nevertheless, the supreme court reversed this court’s ruling that ordered acquittals on the original charges. Id. The court explained that attempted jury tampering is jury tampering under Louisiana law. Id. Thus, whether the defendants communicated or attempted to communicate with a juror through an intermediary for the purpose of influencing the outcome of the trial, “the jury’s return of the purportedly lesser verdicts of attempt [did not] necessarily and implicitly” acquit the defendants of any material element of the | ¿crimes charged. Id. at 1214. Thus, the supreme court concluded that a retrial of the defendants would not constitute double jeopardy. Id.

Here, Hurst was charged with an aggravated battery but was convicted of attempted aggravated battery. This verdict was non-responsive. Furthermore, attempted aggravated battery is not specified as a crime in Louisiana, making the verdict illegal. Accordingly, we reverse the conviction of attempted aggravated battery and set the sentence aside.

Like the defendant in Mayeux, Hurst was charged, among other things, with aggravated battery. Like the Mayeux trial court, the trial court here found Hurst guilty of attempted aggravated battery. Unlike Campbell, where the supreme court, distinguishing Mayeux, concluded that attempted jury tampering is jury tampering, attempted aggravated battery is certainly not an aggravated battery. Finally, unlike Campbell or Mayeux, the trial judge specifically found: “I do have a reasonable doubt as to whether or not an aggravated battery was committed. ...” (emphasis added).

Thus, we again express the sentiment previously articulated: “[w]hile we would prefer to follow the ruling of the Louisiana Supreme Court in State v. Mayeux, ... we refuse to waste the limited judicial resources of this state in vain and futile acts.” Campbell, 657 So.2d at 156. Therefore, we enter an acquittal on the charge of aggravated battery.

(2)Excessive Sentence

The trial court imposed an illegally excessive sentence on the conviction of purse snatching. The trial court sentenced Hurst to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence. Louisiana Revised Statutes 14:65.1 does not prohibit the benefits of probation, parole, or | (¡suspension of sentence. Although the trial court has discretion to refuse to suspend the sentence, the trial court does not have discretion to deny parole eligibility when the penalty provision does not authorize such a denial. Accordingly, this court amends Hurst’s sentence to delete the denial of parole. See State v. Yancy, 98-2798 (La.5/31/96), 673 So.2d 1018; State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193. See also State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42 (stating that an appellate court should not rely on the self-activating provisions of La.R.S. 15:301.1 when the trial court imposes limits beyond those statutorily authorized). This court also instructs the trial court to make an entry in the minutes reflecting this change. See State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519.

(3)Post-Conviction Relief

The record indicates that the trial court did not advise Hurst of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, we order the trial court to inform Hurst of the provisions of Article 930.8 by sending appropriate written notice to Hurst within ten days of the rendition of this opinion and to file written proof in the record that Hurst received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

(4) Minutes

The minutes of sentencing are in need of correction. The transcript of the sentencing proceeding reflects that the trial court imposed Hurst’s sentence for carjacking without the benefit of parole, probation, or suspension of sentence. Nevertheless, the court minutes do not reflect this. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62 (citing State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624). Thus, we instruct the trial court to amend the minutes of sentencing to correctly reflect the sentence the trial court imposed on the conviction of carjacking. See State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352.

B) Excessive Sentence as Cruel or Unusual Punishment

(1) Imposition of Maximum Sentences

“No law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const, art. 1, § 20.

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). The following factors help to decide whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment[,] and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501). Although a comparison of sentences imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Id. (quoting State v. Batiste, 594 So.2d 1, 3 (La. App. 1 Cir.1991)). Because the trial |scourt is in the best position to evaluate the aggravating and mitigating factors of a particular case, “it is within the purview of the trial court to particularize the sentence.” Id. Finally, “[a]s a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169 (citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991)).

Here, the trial court considered more than the violent nature of Hurst’s actions when it imposed maximum sentences. For each conviction, the trial court provided in detail the various facts that impacted its decision to impose maximum sentences. The court also cited related jurisprudence in support of its decision.

Moreover, the trial court considered Hurst’s criminal history that included a conviction for purse snatching, multiple drug convictions, and a felon in possession of a firearm conviction. The trial court also observed that Hurst’s conduct created a risk of death or great bodily harm to more than one person, resulted in significant injury to the victims, and showed no regard for the possible consequences of his actions. Last, the trial court found that Hurst should have known that the victims were incapable of effectively resisting him because of the surprise nature of the attack. Considering the trial court’s thorough recitation of the aggravating facts and the jurisprudence, the trial court did not err in imposing the maximum sentences for these offenses.

(2) Imposition of Consecutive Sentences

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively |9unless the court expressly directs that some or all of them be served concurrently.

La.Code Crim.P. art. 883. Before the trial court may impose consecutive sentences, it “must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040 (citing State v. Pittman, 604 So.2d 172 (La.App. 4 Cir. 1992), writ denied, 610 So.2d 796 (La.1993)). The following factors may be considered:

the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the defendant’s apparent disregard for the property of others, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain.

State v. Thibodeaux, 05-1187, pp. 8-9 (La. App. 3 Cir. 3/1/06), 924 So.2d 1205, 1211, writ denied, 06-700 (La.10/6/06), 938 So.2d 65 (quoting State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010) (citations omitted).

Here, before imposing consecutive sentences, the trial court first acknowledged the application of Article 883. Next, the trial court noted that Louisiana courts have adhered to the general rule of imposing concurrent sentences for crimes arising from a single course of criminal conduct. The court also added that under Article 883, consecutive sentences may be imposed on Hurst based on his extensive criminal record, the violent nature of his conduct, and the obvious risk he poses to public safety.

The trial court then discussed in great detail the factors it considered in determining whether consecutive sentences were warranted:

|inIn State versus Massey [08-839 (La. App. 3 Cir. 12/10/08), 999 So.2d 343] the Third Circuit applied the factors to be considered by the trial court when imposing consecutive sentence. Number one, the defendant’s criminal history. Mr. Hurst’s criminal history is extensive. He has previous convictions of Purse Snatching, Possession Of Cocaine, Attempted Possession Of A Firearm By A Convicted Felon, Possession Of Marijuana Second Offense. In this case he’s been convicted of Attempted Aggravated Battery, Aggravated Battery, Simple Robbery, Carjacking, Purse Snatching, and Simple Criminal Damage to Property Under Five Hundred. The gravity ... another factor is the gravity or seriousness or dangerousness of the offense. Certainly the victim impact statements have demonstrated the impact this violent crime had and the continuing cause at ha, the continuing pain it causes the victim.
The viciousness of the attack: Mr. Hurst attacked several, attacked innocent women for several minutes, refusing to stop, in fact getting into their car and still refusing to stop, endangering several bystanders, hitting one of the victims with the car, and refusing to stop until the tires of the car were shot out.
The harm done to the victims: Both, ah, Jennifer Thomas and Patricia Nelson have been forever changed by this attack. Ms. Thomas is, Ms. Thomas is in counseling for post-traumatic distress disorder and has purchased a firearm for her personal safety. She no longer trusts anybody and takes medi, medicine for anxiety. Patricia Nelson lives with the fact she was run over by a car and is scared when people approach her. She suffered serious personal injury for which she continues to incur out of pocket expenses.
Another factor is whether the Defendant constitutes an unreasonable risk of danger to the public. Clearly Mr. Hurst has demonstrated with his history that he’s, he’s an unusual risk of danger to the public because he continues to engage in violent crimes, particularly purse snatching. Another factor is the Defendant’s apparent disregard for the property of others. It goes without saying after sitting through the trial that Mr. Hurst had no regard for the vehicle he used to try to escape, he refused to stop, he caused damage to the vehicle. He certainly had no regard for the physical well being of the victims in this matter.
Another factor is the potential of the Defendant’s rehabilitation. Mr. Hurst’s criminal history and his continued commission of violent crimes indicates to this court there is no potential for rehabilitation. He was ^previously on probation for purse snatching, had his probation revoked. While on probation he committed three more felonies including Attempted Possession of a Firearm by a Convicted Felon. Applying the foregoing factors the sentences in this case will run consecutive.

We conclude that the trial court adequately expressed its reasons for imposing consecutive sentences. The record quoted above demonstrates the particular justification required for the imposition of consecutive sentences. Accordingly, this assignment of error is without merit.

IV.

CONCLUSION

Hurst’s conviction of attempted aggravated battery is reversed, and his sentence is set aside. We order an acquittal to be entered for aggravated battery. Hurst’s sentences for aggravated battery, simple robbery, carjacking, and simple criminal damage under $500.00 are affirmed. Hurst’s sentence imposed on the conviction of purse snatching is amended, deleting the portion of the sentence prohibiting parole. The trial court is instructed to note the amendment in the court minutes. Thus, Hurst’s sentence for purse snatching is affirmed as amended. Additionally, the trial court is directed to inform Hurst of the provisions of article 930.8 by sending an appropriate written notice to Hurst within ten days of the rendition of this opinion and to file written proof in the record that Hurst received the notice. Finally, the trial court is instructed to amend the minutes of sentencing to correctly reflect the sentence imposed by the trial court on the conviction of carjacking.

CONVICTION OF ATTEMPTED AGGRAVATED BATTERY IS REVERSED, AND SENTENCE IS SET ASIDE. JUDGMENT OF ACQUITTAL FOR AGGRAVATED BATTERY IS ENTERED. SENTENCEJjjFOR PURSE SNATCHING IS AMENDED. ALL OTHER SENTENCES ARE AFFIRMED.


text:
    Jonathan STELLY v. MORROW, MORROW, RYAN & BASSET, et al.
    No. 10-1353.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.
    Rehearing Denied May 11, 2011.
    Maurice Le Gardeur, Le Gardeur Ltd., Covington, LA, Adam S. Lambert, New Orleans, LA, for Plaintiff/Appellant, Jonathan Stelly.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendants/Appellees, Morrow, Morrow, Ryan & Basset, et al.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   COOKS, Judge.

| TThis case arose from the treatment of Jonathan Stelly by Dr. Mehmood Patel, a cardiologist who worked and performed surgeries at Lafayette General Hospital. Dr. Patel began treating Jonathan when he was a young child and placed him on Tenormin, a high blood pressure medication. In 2002, when Jonathan was twenty-four (24) years old, Dr. Patel performed an angiogram allegedly because he detected a low heart rate. Dr. Patel then informed Jonathan he would require insertion of a permanent pacemaker. The pacemaker was installed by Dr. Patel in January, 2003.

Subsequent visits with other cardiologists called into question the necessity of the pacemaker implanted in Jonathan. It was eventually determined he did not need it, and it was turned off. Jonathan, a professional baseball player, alléged the installation of the unnecessary pacemaker ended his baseball career and may keep him from pursuing his chosen second profession in the United States Navy. A medical malpractice suit was filed on his behalf against Dr. Patel.

Defendants represented Jonathan along with many other plaintiff patients of Dr. Patel. Subsequent to his treatment of Jonathan, Dr. Patel was convicted of performing numerous unnecessary cardiologic procedures and billing Medicare and Medicaid. He was sentenced to ten years in prison for the offenses. Eventually a class action settlement was approved by the District Court of Lafayette. Notice was sent to Jonathan regarding the terms of the Class Action Settlement, along with the following letter, which read in part:

The criminal trial of Dr. Patel is scheduled for August 28, 2008. If we do not accept this settlement and Dr. Patel is convicted, then his insurance company will pay nothing since the policy does not apply to intentional acts of wrongdoing. For this reason, we do not think we will be able to recover anything from Dr. Patel other than the available insurance policy.

According to Jonathan, after reading this letter, he felt compelled to accept what he |2believed to be his only viable avenue for relief. He completed the forms to participate in the class settlement.

Defendants then retained a medical doctor, Dr. Harris Lappin, to review the individual medical claims of the class members to place them in tiers for settlement purposes. According to Jonathan, Dr. Lappin was not provided with sufficient information to evaluate his condition properly, which Dr. Lappin acknowledged in an email sent to defendants. However, rather than waiting for additional information, Dr. Lappin decided to “write a report for the inappropriate catheterization and invasive studies — -just not for the pacemaker.” Consequently, Jonathan was placed in the lowest tier of plaintiffs, and received only a small part of what he contends he was entitled.

At the request of defendants, Jonathan and his undersigned counsel signed a stipulation which allowed the settlement to move forward, but reserve Jonathan’s right to move forward with the case against his former attorneys. The stipulation specifically provided that in return for allowing the class to be settled by removing his objection, Jonathan’s waiver would not be used as a defense, bar, estoppel, etc. to the claim for damages for the amount of the allocation.

Defendants filed a motion for summary judgment on several grounds: (1) there is no evidence to support a finding of medical malpractice on Dr. Patel’s part; (2) Jonathan’s participation in the class action settlement process estops him from pursing this action against Defendants; and (3) Jonathan did not have his legal position impaired by any actions/inactions of Defendants. Jonathan was granted a | .¡Motion to Continue, over Defendants’ objection, in order to have more time to obtain an expert medical opinion.

On June 28, 2010, the hearing on the motion for summary judgment was held. The trial court granted the motion, finding that Jonathan was in the same legal position before and after his discharge of Defendants as counsels and, therefore, there was no legal malpractice committed. The trial court specifically stated that at the moment Jonathan discharged his previous counsel and hired his current counsel, his claim had not been finally determined. Thus, at that time Jonathan had the right to fully pursue his medical malpractice claim and “malpractice didn’t exist at the time of [Defendants’] discharge.”

Jonathan appealed the trial court’s ruling, asserting the following assignments of error:

1. The lower court committed an error of law when it granted summary judgment to the defendants-appellees, despite the existence of a valid countervailing affidavit from a licensed and recognized expert witness filed on behalf of the plaintiff-appellant.
2. The lower court committed errors of law when it failed to apply the correct legal standard of care for medical practitioners and failed to apply the correct definition of the medical term “contraindicated” as a “harmful” action falling below the recognized standard of care for medical practitioners.
8. The lower court committed an error of law when it prematurely considered summary judgment when no opportunity for discovery whatsoever had been given to plaintiff.
4. The lower court committed an error of law when it accepted the defendants-appellees’ brief and oral argument based upon an unpublished opinion and considered that unpublished opinion as precedent in deciding the case sub judice.

| ¿ANALYSIS

At the summary judgment hearing, the trial court elucidated his reasons for granting Defendants’ motion for summary judgment:

THE COURT: Here’s my problem with your interpretation of the stipulation. To me — To me the question of whether or not Mr. Ryan committed malpractice, the facts that dictate that decision — whether or not he committed malpractice in his representation of Mr. Stelly, the facts that dictate that conclusion have to have existed while he was his lawyer.
In other words, after he discharged Mr. Ryan the question that I have to— or the fact-finder would have to decide in this case is did Ryan commit malpractice. Well, at that moment when he was discharged his claim had not been finally determined. He hired you. He had the right to pursue the claim. And who knows what would have come of it. But I don’t think I can go past that moment in time to determine whether or not Mr. Ryan committed malpractice.
But [the stipulation] can’t bootstrap your client into a malpractice case when malpractice didn’t exist at the time of Ryan’s discharge.
I’m going to grant the motion.

The record reveals the trial court specifically found that at the time Jonathan discharged Defendants as his attorneys, his claim had not yet been fully determined, and, when he hired his current counsel, he still had the right to pursue his claim in the matter, i.e., challenge his allocation in the class. Thus, the trial court held no' legal malpractice existed at the time of discharge since Jonathan still had all of his rights available in the underlying medical malpractice claim and his legal position was unchanged. In none of Jonathan’s listed assignments of error, nor in the entirety of his appellate brief, does he discuss the trial court’s stated reasons for its decision. Instead, he chooses to reprise issues which were argued below, but did not form any part of the trial court’s basis for judgment. Despite this, in the interests of justice we will address the propriety of the trial court’s grant of summary judgment.

|Jn order to state a claim for legal malpractice, a plaintiff must allege (1) there was an attorney-client relationship, (2) the attorney was negligent in the representation of the client, and (3) the negligence caused the plaintiff some loss. Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d 1109 (La.1982); Dinger v. Shea, 96-448 (La.App. 3 Cir. 12/11/96), 685 So.2d 485. Plaintiff has the burden of proving the existence of damages and the causal connection between them and the negligent act by a preponderance of the evidence.

The Louisiana Supreme Court in Costello v. Hardy, 03-1146 (La.1/21/03), 864 So.2d 129, held that summary judgment is proper as to the third element of a plaintiffs legal malpractice claim, i.e., the “absence of factual support for an essential element of plaintiffs claim: loss or damages.” The supreme court found the plaintiff in Costello would be unable to prove any loss as a result of any alleged legal malpractice. The trial court reached the same conclusion in the present case and granted summary judgment in favor of Defendants.

The cases have consistently held that when an attorney’s client is in the same legal position before and after the attorney is removed from the representation, there can be no legal malpractice. In Oyefodun v. Spears, 95-1472 (La.App. 4 Cir. 2/15/96), 669 So.2d 1261, writ denied, 96-669 (La.4/26/96), 672 So.2d 672, the court found the plaintiffs claim was still viable for almost one year after the defendant attorney was discharged. Therefore, the court held plaintiffs legal rights were unchanged as a result of the defendant attorney’s acts/omissions and affirmed the grant of summary judgment dismissing the legal malpractice claim.

In Dark v. Marshall, 41,711 (La.App. 2 Cir. 12/13/06), 945 So.2d 246, the court therein considered whether legal malpractice occurred when a claim allegedly filed late by the defendant attorney was still viable when the defendant attorney | (¡withdrew from representation. The court found the claim at issue had not prescribed before the defendant attorney withdrew; thus, there was no loss caused by the alleged negligence because the claim could still be filed after the withdrawal.

See also Hudspeth v. Smith, 42,647 (La. App. 2 Cir. 11/7/07), 969 So.2d 793, wherein summary judgment was affirmed dismissing a legal malpractice claim on the basis the plaintiff failed to show how the complained of acts resulted in any loss to her; and Hartz v. Farrugia, 2009 WL 901767 (E.D.La.2009), where the federal court relied on Oyefodun for the proposition that the defendants were not liable for loss of a claim that remained viable after the date the representation ended.

The trial court correctly found no legal malpractice existed at the time of Defendants’ discharge as attorneys of record since Jonathan still possessed all of his rights in the underlying medical malpractice action and his legal position was unchanged.

The language in the stipulation relied upon by Jonathan’s counsel is not sufficient to bar admission of the evidence regarding Jonathan’s available option to protect his right to a larger portion of the settlement funds by seeking a tier reclassification. The stipulation simply says the “waiver” could not be used. The stipulation was not broad enough to include any reference to the class action proceedings except perhaps Jonathan’s erroneous placement in tier 3.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant.

AFFIRMED.

      . The stipulation provided as follows:
      The undersigned stipulate that the waiver by Jonathan Stelly of his objection to his class action allocation in the matter, Barbara Pellerin, et al. v. LAMMICO, et al., Docket No. C-20084712, 15th Judicial District Court, will not be used as a bar, defense, estoppel, or in mitigation of Mr. Stelly's claim for damages herein for the amount of said allocation.

      . Defendants filed for writs to this court, which were denied. Writs were then sought to the Louisiana Supreme Court, which have been stayed, pending the outcome of this appeal.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Tyrone HUNTER, Appellant.
    No. 46,194-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Carey J. Ellis, III, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

|TThe defendant, Tyrone Hunter, was charged by bill of information with one count of possession with intent to distribute a Schedule I controlled dangerous substance (CDS), marijuana, a violation of LSA-R.S. 40:966(A)(1), and one count of possession with intent to distribute a Schedule II CDS, cocaine, a violation of LSA-R.S. 40:967(A)(1). Pursuant to a plea agreement, the defendant pled guilty as charged and the state agreed not to file an habitual offender bill. For the marijuana conviction, defendant was sentenced to 30 years of imprisonment at hard labor and a fíne of $6,000 plus court costs, or 60 days in prison in lieu of payment. For the cocaine conviction, he was sentenced to 30 years at hard labor with the first two years to be served without benefit of parole, probation or suspension of sentence and fined $6,000 plus court costs, or 60 days in prison in lieu of payment. The two sentences were to run concurrently. The court denied defendant’s motion to reconsider sentence. Pursuant to State v. Crosby, 338 So.2d 584 (La.1976), the defendant appeals the denial of his motion to suppress the evidence. For the following reasons, we amend the sentences to vacate that portion of each sentence imposing jail time in default of payment of the $6,000 fine and costs, and as amended, we affirm.

FACTS

The following facts were elicited from the witness testimony at the hearing on the motion to suppress. On March 9, 2008, Shreveport Police Corporal Briana Rivera and her partner, Officer Christian Hicks, were investigating a series of burglaries in the fairgrounds area of the city. The officers had been given a description of suspects in a burglary at a business |2located in the vicinity and were looking for two black men and one white woman who might be driving a maroon or dark red car. Corporal Rivera and Officer Hicks were on Midway Avenue when a green car, driven by a black male with a white female passenger, passed their unit. Although the car did not match the description given, the officers decided to follow the vehicle because of the proximity to the business that had been burglarized.

While following the car, the officers were stopped by a light at the intersection of Midway and Hearne Avenues. The driver of the green car drove through the intersection, but had to wait for a passing train. The driver then made a U-turn across double yellow lines and drove away. Cpl. Rivera stated that she saw the driver make the illegal U-turn and believed he had taken evasive action in an effort to elude the marked police car. After other officers in the area located the car, Cpl. Rivera conducted a traffic stop of the vehicle in the 6700 block of Linwood Avenue.

Cpl. Rivera approached the driver, who was identified as the defendant, and asked for the vehicle registration. Rivera later testified that when defendant opened the glove compartment to obtain the documentation, she observed a clear plastic bag containing what appeared to be cocaine. The defendant tried to conceal the plastic bag in his right hand as he dropped it on the passenger-side floorboard. Officer Hicks, who was on the passenger side watching the defendant reach into the glove compartment, later testified that he also saw defendant remove the plastic bag that appeared to contain cocaine and drop it on the floorboard. Because of the presence of the suspected illegal drugs, the defendant and the passenger |Rwere removed from the vehicle. Cpl. Rivera handcuffed the defendant, advised him of his Miranda rights and placed him in the patrol car. Rivera then retrieved the plastic bag from the floorboard of the vehicle and noticed another plastic bag located between the passenger seat and the center console. Inside that bag were a number of smaller blue bags that appeared to contain cocaine. During a search of the vehicle’s interior, Cpl. Rivera also found a brown paper bag containing suspected marijuana in a pocket on the back of the passenger seat. The materials found were later tested and determined to be cocaine and marijuana. One plastic bag contained 5 grams of crack cocaine, the other contained a total of 4.5 grams of crack cocaine and the paper bag contained 29.8 grams of marijuana.

Subsequently, the defendant was charged with separate counts of possession with intent to distribute marijuana and possession with intent to distribute cocaine. Defendant filed a motion to suppress the drug evidence seized during the search, alleging that the police officer lacked authority to conduct a warrantless search of his vehicle. After a hearing, the district court denied the motion, finding that the traffic stop was valid and that the officer was authorized to search the vehicle after arresting defendant for possession of drugs. As a result of the plea bargain, defendant pled guilty as charged and the state agreed not to charge him as a multiple offender. For each count, the defendant was sentenced to 30 years at hard labor, and fined $6,000 plus court costs, or 60 days in prison in lieu of payment. For the conviction of possession of cocaine with intent to distribute, the first two years of the sentence were to be served without benefit of parole, Rprobation or suspension of sentence, and the sentences were to be served concurrently. The defendant appeals the denial of his motion to suppress.

DISCUSSION

The defendant contends the district court erred in denying his motion to suppress. Defendant argues that because the state failed to prove that he committed a traffic violation giving the police reasonable suspicion to stop the vehicle, the traffic stop was not legitimate and the subsequent search was not justified by the plain view exception.

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. A search and seizure conducted without a warrant issued on probable cause is unreasonable unless the warrantless search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Johnson, 32,384 (La. App.2d Cir.9/22/99), 748 So.2d 31. The plain view doctrine is an exception to the warrant requirement. The plain view exception renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is | ^immediately apparent; and (3) the officer has a lawful right of access to the object. State v. Gipson, 45,121 (La. App.2d Cir.4/14/10), 34 So.3d 1090.

A violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Davis, 09-452 (La.App. 5th Cir.1/26/10), 31 So.3d 513. If a police officer observes a traffic infraction, then the subsequent stop for that offense is clearly legal. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Barnard, 37,032 (La. App.2d Cir.5/14/03), 847 So.2d 99. The subjective intent of the officer making the traffic stop is irrelevant, as long as he observed the traffic violation. Whren, supra. Flight, nervousness or a startled look may be a factor under LSA-C.Cr.P. art. 215.1 in finding a reasonable cause to stop a person. State v. Furlow, 34,339 (La.App.2d Cir.2/28/01), 780 So.2d 602, writ denied, 01-0889 (La.3/15/02), 811 So.2d 895. When a roadway is divided into two or more lanes for traffic, a vehicle shall be driven within a single lane and shall not be moved until such movement can be made safely. LSA-R.S. 32:79.

When a police officer makes a lawful arrest of an individual, that officer is authorized, without more, to search the arrestee and his wingspan, or lunge space, for weapons and evidence. State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So.2d 230. If a lawful arrest is made of the occupant of a vehicle, then law enforcement is permitted to search the entire passenger compartment when it is reasonable to believe the vehicle contains evidence of the offense of arrest. Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127,158 L.Ed.2d 905 (2004).

In this case, both officers testified at the hearing on the motion to | ^suppress that they observed the defendant commit the traffic violation of improper lane usage when he made an illegal U-turn across the double yellow lines. In addition, the officers believed that defendant made the U-turn to flee the area and avoid contact with the police. The officers’ observation of the traffic violation and defendant’s apparent flight from the area provided the officers with reasonable suspicion to stop the vehicle.

Upon making a valid traffic stop, the police officers were lawfully in a position to observe in plain view the clear plastic bag containing cocaine. The evidence of drugs gave the officer probable cause to arrest the defendant and then to search the interior of the vehicle for weapons and evidence as an incident to the lawful arrest. Therefore, the search of the automobile and the seizure of the drugs satisfied the constitutional guidelines for a warrantless search. Consequently, the district court did not abuse its discretion in denying the defendant’s motion to suppress. This assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that the district court improperly imposed jail time contingent on the payment of the fine and court costs. An indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144. A defendant’s indigence may be discerned from the record. See State v. Williams, 484 So.2d 662 (La.1986); Tillman, supra. The record shows that defendant is indigent because he was represented at trial and on appeal by the indigent defender’s office. ^Accordingly, we shall vacate that portion of each sentence imposing jail time in default of payment of the fine and costs.

CONCLUSION

For the foregoing reasons, we amend the sentences to vacate that portion of each sentence imposing jail time in default of payment of the $6,000 fíne and costs, and as amended, the defendant’s convictions and sentences are affirmed.

AMENDED AND AFFIRMED AS AMENDED.


author: BROWN, Chief Judge.

text:
    Cassandra Sue Maxine SMITH, Plaintiff-Appellant v. Warren Slade HOLTZCLAW, Defendant-Appellee.
    No. 46,278-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Charles W. Strickland, for Appellant.
    Linda L. Smith, for Appellee.

      Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ¶ Cassandra Sue Maxine Smith and Warren Slade Holtzclaw are the parents of KMS, who was born on August 25, 2009. Smith and Holtzclaw were never married. On December 14, 2009, Smith filed a petition to establish custody and for child support. In her petition, Smith sought sole custody, or alternatively joint custody with her named as the domiciliary parent, subject to supervised visitation rights in favor of Holtzclaw. An answer was filed by Holtzclaw on January 11, 2010.

A hearing was held on January 21, 2010. Smith and Holtzclaw entered into a consent judgment whereby Smith was designated as the domiciliary parent and Holtzclaw was granted graduated “supervised” visitation. The judgment also set forth the agreed to terms regarding income tax declarations and child support.

In May 2010, Holtzclaw received a letter from Smith which indicated that she intended to marry Laucas Vining and relocate to Kemp, Texas. Holtzclaw, in response to Smith’s request to relocate with KMS, filed a Motion for an Order Preventing Temporary Relocation of Child and Requesting an Order Preventing Permanent Relocation; and a Motion for Change of Domiciliary and Principal Custody, Change of Child Support, and Modification of Prior Judgment. A hearing on these matters was set for July 22, 2010. On the day of the hearing, the parties held a conference with the judge in his chambers and reached a compromise. Thereafter, in open court, Smith withdrew her request to relocate and her attorney stated for the record the stipulated terms of modification to the existing custody order and joint custody implementation plan. The new terms increased Holtzclaw’s | {.visitation rights, time, and frequency and set forth other terms of the custody implementation plan. • Nothing was said concerning “supervised” visitation.

Thereafter, the parties were unable to agree on the form and content of the consent judgment. Specifically at issue was whether the requirement that Holtzclaw’s visitation be supervised survived the subsequent modification. The trial court, after reviewing the transcript from the July 22, 2010, hearing, determined that the requirement that visitation be supervised was not part of the compromise. An amended joint custody implementation plan reflecting such was signed on November 4, 2010, and from this judgment Cassandra Smith has appealed.

Discussion

A consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing the hope of gain against the fear of loss. McDaniel v. McDaniel, 567 So.2d 748 (La.App. 2d Cir.1990). A consent judgment has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. Mobley v. Mobley, 37,364 (La.App.2d Cir.08/20/03), 852 So.2d 1136.

A trial court’s finding of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Rachal v. Rachal, 35,074 (La.App.2d Cir.10/12/01), 795 So.2d 1286. Under the manifest error standard of review, the only issue to be resolved by the appellate court is whether the trial court’s conclusion was a reasonable one. Carr v. Oake Tree Apartments, 34,539 (La.App.2d Cir.05/09/01), 786 So.2d 230, writ denied, 01-1682 (La.09/21/01), 797 So.2d 675.

Smith’s contention is that the agreed to compromise only modified the joint custody implementation plan, and since the issue of supervision was never addressed, the original requirement of supervised visitation was still in effect. Holtzclaw argues that the statement dictated in open court by Smith’s attorney reflect the parties’ agreement, and since supervision was not mentioned it is not part of the compromise.

The trial court noted that the amended joint custody implementation plan was the result of Holtzclaw’s motion to be named the domiciliary parent and Smith’s request to relocate. Instead of one party potentially getting far less than they desired, the two parents compromised. Smith would withdraw her request to relocate, Holtzclaw would no longer seek to be designated the domiciliary parent, and he would receive longer and more frequent visitation periods. Both parties agreed to the changes in the visitation terms, and at no time did Smith mention that she desired the visitation to be supervised. The trial court also noted that supervised visitation is generally only required when a parent has serious issues — such as substance abuse or emotional problems — or, as in the present matter, when the parent is not quite old enough or mature enough to care for a newborn baby. The trial court further stated that in the latter scenario supervision is usually only required for a reasonable amount of time, and it noted that KMS was already over a year old. Taking these observations into consideration, the trial court determined that the restriction of supervised | ¿visitation was not a negotiated aspect of the amended joint custody implementation plan.

Based upon our review of the record and the trial court’s stated reasons, and considering that all aspects of the visitation terms other than supervision were precisely discussed and dictated for the record by Smith’s attorney, we do not find that the trial court committed manifest error in reaching its conclusion.

Conclusion

For the foregoing reasons, the amended joint custody implementation plan, as signed by the trial court, is affirmed.


author: LOLLEY, J.

text:
    SUCCESSION OF Harold Lloyd STARKS. David Harold Starks, Plaintiff-Appellee v. Charski Wescott, Defendant-Appellant.
    No. 46,233-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      W. James Singleton, Shreveport, LA, Robert L. Pittard, for Appellant.
    Ray C. Mayo, Jr., for Appellee.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| iCharski Wescott appeals a judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana dismissing his claims to annul the probated testament and remove the testamentary executor, David Harold Starks, in the Succession of Harold Lloyd Starks. For the following reasons, we reverse the trial court’s judgment.

Facts

On March 11,1966, Harold Lloyd Starks executed a last will and testament in proper testamentary form (the “testament”). At that time, Starks was married to Fre-derica Sidenburg Starks, and they had two children: David and Deborah. Twenty-three years later, Harold Starks fathered a third child out-of-wedlock: Charski Wes-cott, the plaintiff in this matter. Starks’ testament made no provision for the subsequent birth of a child.

In January 2004, the First Judicial District Court determined Harold Starks to be the natural and biological father of Wescott. Harold Starks subsequently died on May 20, 2004, and his testament was filed for probate in the First Judicial District Court on August 23, 2004. Starks’ older son, David, was confirmed as executor for the succession, to serve without bond or security. The trial court issued Letters of Executorship to David.

Wescott filed his Petition to Annul Probated Testament or in the Alternative, to Remove Testamentary Executor. In his petition, Wescott claimed that Starks’ testament was revoked as a result of his birth on February 11, 1989, relying on La. C.C. art. 1705, which, at the time, stated:

A testament is revoked by the posteri- or birth of a child to the testator or by the subsequent adoption of a child by the | ^testator, unless the testator has declared in the testament that such an event shall not revoke the testament; provided however, that in no event shall this article be interpreted in such a manner as to impinge on the legitime of a forced heir.

David Starks, as executor, opposed the petition and argued that art. 1705 was repealed in 1999. After a hearing on the matter, the trial court rendered judgment against Wescott, and this appeal ensued.

Discussion

On appeal, Wescott raises one assignment of error, arguing that the trial court erred in failing to nullify the probated testament of his father that was previously revoked by operation of law in effect at the time of his birth. Pursuant to the former La. Ch.C. art. 1705, Wescott submits that Starks’ testament was revoked by operation of law at the moment of Wescott’s birth, and the subsequent repeal of the article and enactment of new revocation articles did not serve to revive the revoked testament. We agree.

As noted, previously La. C.C. art. 1705 served to revoke a testament upon the posterior birth of a child to the testator, unless the testator had made a contrary declaration to uphold the testament. However, the Louisiana Civil Code articles addressing the revocation of testaments was amended and reenacted by Act 1421 of 1997, effective July 1, 1999. That revision divided the types of testamentary revocations into either (1) a revocation of an entire testament (La.C.C. art. 1607) or (2) a revocation of a legacy or other testamentary provision (La.C.C. art. 1608). Louisiana C.C. art. 1705, which is at issue in this appeal, was repealed and no similar provisions for posterior born children were made in the revisions.

1-¡Currently, Art. 1609 permits a testator to revoke a testament, and later to revoke that revocation, unless the first revocation resulted from destruction of the testament, subsequent inter vivos disposition of the property, or the divorce of the testator. The revocation of Starks’ testament did not occur in any of those three ways — the revocation in this case occurred by operation of law upon Wescott’s birth. Starks himself did not take any affirmative action to revive the revoked testament prior to his death. Thus, the question arises: could the revocation (which occurred by operation of law) be later revoked by operation of law, upon the repeal of art. 1705, and subsequent enactment of new revocation articles in 1999? The parties appear to have no dispute that Starks’ testament was revoked as a result of Wescott’s birth in 1989, only whether the revocation survived the revision to the revocation articles in 1999.

Although there is no jurisprudence directly on point regarding the precise issue presented, the First Circuit case, In re Succession of Clark, 2008-1278 (La.App. 1st Cir.02/13/09), 6 So.3d 266, writ denied, 2009-0580 (La.05/13/09), 8 So.3d 568, is persuasive by analogy. In Succession of Clark, the court declined to give retroactive effect to La. C.C. art. 1608(5), which states:

Revocation of a legacy or other testamentary provision occurs when the testator:
⅜ * ⅜ ⅜
(5) Is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.

RWinston Clark executed his testament on January 18, 1995, wherein he bequeathed all of his property to his wife, Mary Beth. In doing so, he disowned his son, Brian. Winston and Mary Beth were divorced in October 2003, and Winston died in November 2005. At the time of his death, Winston had not changed his will despite his divorce. Mary Beth, now the decedent’s ex-spouse, filed a petition to probate Winston’s testament. Subsequently, Brian filed a petition to declare that the testament had been revoked by operation of law, seeking to give La. C.C. art. 1608(5) (enacted July 1, 1999) retroactive effect to the testament executed prior to the change in law. As noted by the Succession of Clark court:

Although this provision was in effect on the date of Winston’s death, November 26, 2005, it was not in effect when Winston executed his testament on January 18, 1995. Article 1608(5) is a new provision and was a part of the revised law of successions adopted by 1997 La. Acts, No. 1421, § 1, which had an effective date of July 1, 1999. Thus, the issue of whether Brian has stated a cause of action under this provision depends on whether Article 1608(5) is applicable to a testament that was executed prior to the legislation’s effective date when the testator’s death occurred after that effective date.

Id. at 268-9. The Succession of Clark court concluded that art. 1608(5) should not be given retroactive effect, “especially since the testament was executed prior to the effective date of this law.” Id. at 269.

Although the holding in Succession of Clark served to uphold the testament in that case, and the case sub judice seeks to annul the testament, the legal reasoning in Clark is still applicable. Both cases address the applicability of a change in the law after the execution of a testament. Although the appellee argues that the changes to the succession articles on revocation should be given retroactive effect to uphold the testament, it is a | Swell-settled rule of statutory interpretation that substantive laws apply prospectively only. La. C.C. art. 6; Grambling State University v. Walker, 44,995 (La.App.2d Cir.03/03/10), 31 So.3d 1189. Despite the appellee’s contention that the current revocation articles are not substantive law, it is clear that they are. “Substantive laws,” for purposes of determining whether a law should be applied retroactively, are those which .establish new rules, rights, and duties, or change existing ones. Id. at 1194. The articles on revocation address the substantive rights of testators and those inheriting from them and they should only be applied prospectively, unless specifically stated otherwise.

Succession of Clark demonstrates an instance where the appeal court refused to give a new revocation article retroactive effect. Here, the same analysis applies. We recognize the well-founded legal precept that the intent of a testator is an important consideration in the interpretation of a testament; however, we cannot ignore applicable law in order to uphold a testament that was revoked by operation of law. Starks’ testament was written 23 years prior to the birth of Wescott; thus it is apparent why he was not mentioned in the testament. Notably, there was no evidence given at the trial court regarding Starks’ intent; i.e., other than his testament written 23 years prior to Wescott’s birth, there was no evidence suggesting that he did not want to provide for his third child and that Starks necessarily wished his revoked testament to be revived.

| ^Conclusion

For the foregoing reasons, the judgment of the trial court is reversed. All costs of this appeal are assessed to David Harold Starks.

REVERSED.