author:
      PER CURIAM.
      CLARK, J.,

text:
    In re Jerome W. DIXON.
    No. 2010-B-1950.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      Charles Bennett Plattsmier, G. Fred Ours, Baton Rouge, LA, for Applicant.
    Clary & Overton, LLP, James Ronald Clary, Jr., Jerome Wayne Dixon, for Respondent.
   PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jerome W. Dixon, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Dixon, 09-0734 (La.5/29/09), 10 So.3d 1222.

PRIOR DISCIPLINARY HISTORY AND SUBSTANCE ABUSE HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history and substance abuse history.

Respondent was admitted to the practice of law in Louisiana in 1988. In 1995, respondent was publicly reprimanded and ordered to complete fifteen hours of continuing legal education in the area of law office management for conduct involving incompetence, neglect, and failure to cooperate with the ODC in its investigations. Also in 1995, respondent began a recovery program for alcoholism and drug abuse.

In 1999, the court accepted a petition for consent discipline transferring respondent to disability inactive status, deferred, subject to two years of probation with supervision by the Lawyers Assistance Program (“LAP”). Respondent’s misconduct involved issuing numerous bad checks from his office account and client |2trust account between 1993 and 1995, which misconduct was the direct result of alcoholism and drug abuse. In re: Dixon, 99-1743 (La.10/1/99), 744 So.2d 618.

In August 2005, respondent relapsed after ten years of sobriety. He entered a detox facility in January 2006 but again relapsed soon thereafter. From February 2006 until September 2006, respondent sought treatment at the O’Brien House, a halfway house for recovering alcoholics and drug addicts. In 2007, respondent relapsed twice, and on November 1, 2007, he entered the Louisiana Health & Rehabilitation Options Social Detox facility in Baton Rouge. On November 6, 2007, following detox, he returned to the O’Brien House and completed a six-month treatment program. On December 17, 2007, respondent signed a five-year LAP contract.

In 2008, the court suspended respondent from the practice of law for one year and one day, with all but six months deferred, followed by one year of unsupervised probation, for neglecting a legal matter, altering a public record, and making false statements to the ODC, all of which occurred between January 2003 and February 2005. In re: Dixon, 08-1618 (La.12/2/08), 996 So.2d 1029.

In March 2009, the ODC filed a petition to place respondent on interim suspension at the expiration of his six-month suspension issued in December 2008. The petition for interim suspension was based on the same misconduct that forms the basis of the formal charges in the instant matter. On May 29, 2009, the court ordered that respondent be suspended from the practice of law on an interim basis to take effect at the expiration of his suspension. In re: Dixon, 09-0734 (La.5/29/09), 10 So.3d 1222. Respondent’s interim suspension took effect on June 17, 2009.

^UNDERLYING FACTS

Count I — The Trust Account Matter

Between December 1, 2006 and May 30, 2008, respondent maintained two client trust accounts, one at Chase Bank and one at Liberty Bank. The ODC’s auditor, Ronald White, audited the accounts. Mr. White’s November 2008 audit report indicated there were more than 200 unexplained entries in the accounts because respondent failed to keep complete records of the accounts. The report also indicated there were multiple instances of commingling of respondent’s funds with client funds and multiple instances of conversion of client and/or third-party funds.

With respect to the commingled funds, the audit report indicated respondent left approximately $91,000 of his fees in the trust accounts. Mr. White also indicated respondent paid personal and/or office expenses from the trust accounts.

With respect to the converted funds, Mr. White’s report indicated the following: 1) approximately $890 was paid to clients or third-party medical providers from the wrong trust account (the settlement funds were deposited in the other trust account); 2) approximately $2,185 was not paid to third-party medical providers; 3) approximately $4,100 was not paid to clients; 4) a $7,300 settlement check was not deposited in either trust account; and 5) a $4,667 settlement check was deposited into one of the trust accounts on October 19, 2007, but the account did not have sufficient funds to pay the client until November 18, 2007. The report also indicated that, on several occasions, the trust accounts had negative balances. Mr. White further indicated that, in many cases, he found no supporting documentation to prove the amounts on settlement disbursement statements were actually disbursed.

Respondent’s accountant, Brian Blackwell, conducted his own audit and provided a response to Mr. White’s audit report in May 2009. In his response, Mr.

LBlaekwell determined all clients and third parties were paid in full after he analyzed respondent’s trust account records, interviewed respondent, and called clerk of court offices and third-party medical providers. Mr. Blackwell also indicated that respondent took his fees from the trust accounts “in partial payments or increments over time.” Mr. Blackwell agreed that respondent’s trust account records were disorganized, stating he encountered “a document problem, a support problem, a bookkeeping problem, the ability to accurately determine, you know, how [respondent] took his fees.”

The ODC alleged respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.15(a)-(e) (safekeeping property of clients or third persons), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count II — Respondent’s Criminal Conviction

In February 2008, during respondent’s six-month substance abuse treatment program at the O’Brien House, he paid a woman $20 to have sexual intercourse with him. A police officer interrupted the sexual act, and both respondent and the woman admitted that respondent had paid $20 in exchange for sexual intercourse. Respondent subsequently received a misdemeanor summons for prostitution. In his pre-ar-gument brief to this court, respondent indicated he pled no contest to the charge, which was subsequently dismissed pursuant to La. C. Cr. P. art. 894.

| sThe ODC alleged respondent violated Rule 8.4(b) of the Rules of Professional Conduct.

Count III — The Woods Matter

In October 2005, Reva Woods paid respondent $500 to handle her bankruptcy matter. Respondent failed to appear in bankruptcy court to represent Ms. Woods at a creditors’ meeting in February 2006, and a show cause order was issued against him. In the meantime, the creditors’ meeting was rescheduled in March 2006. Again, respondent failed to appear, but he did arrange for attorney Hansel Harlan to represent Ms. Woods at the creditors’ meeting. In June 2006, the bankruptcy court ordered respondent to refund $100 of the $500 fee to Ms. Woods because of his failure to represent her at the creditors’ meeting. Respondent failed to comply with the court’s refund order until February 2009, when he sent Ms. Woods a $100 money order.

The ODC alleged respondent violated Rules 1.5(f)(5) (failure to refund an unearned fee), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In March 2009, the ODC filed formal charges against respondent. Respondent answered the formal charges, admitting some misconduct while denying other lfimisconduct. The matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee in October 2009.

Hearing Committee Report

After reviewing the testimony and evidence presented at the hearing, the hearing committee found the following:

The Trust Account matter — The committee found that according to Mr. White’s audit, there were substantial improper transactions in respondent’s trust accounts, including multiple instances of commingling and conversion of client and/or third-party funds. Although respondent testified at the hearing that he had inadequate knowledge of how to maintain his trust accounts, the committee found this testimony was not credible because, in 1994, respondent was publicly reprimanded and ordered to complete additional hours of continuing legal education in the area of law office management. Respondent stipulated that he failed to maintain and preserve the trust accounts and financial records as required by Rule 1.15(a), and his conduct was knowing. Respondent has a prior disciplinary offense from 1999 stemming from his failure to maintain the required separation of funds and his use of trust account funds to pay personal expenses. Respondent testified that he deposited his own funds into the trust account to make up for missing funds in violation of Rule 1.15(b). Respondent’s testimony and/or Mr. White’s audit report established violations of Rules 1.15(c), 1.15(d), and 1.15(e). Such conversion of client funds constitutes either theft or unauthorized use of a movable, both of which are criminal offenses in violation of Rule 8.4(b). Conversion also constitutes conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c). 17Respondent also violated Rule 1.3 by failing to accurately account for and disburse client funds.

Respondent’s criminal conviction — The committee made factual findings consistent with the underlying facts set forth above. Accordingly, the committee found respondent violated Rule 8.4(b). The committee also found respondent acted intentionally.

The Woods matter — The committee made factual findings consistent with the underlying facts set forth above. Additionally, the committee found that Ms. Woods was not paid until after she filed a disciplinary complaint and some ten months after the ODC notified respondent of the complaint. Respondent’s excuse was that he “thought” he had paid her but had no receipt. The committee found this explanation not credible and determined respondent “deliberately delayed (perhaps stubbornly), as long as possible, the refund of this money.” There was a judicially-determined unearned portion of the fee respondent was ordered to refund. His failure to promptly refund this unearned portion after being ordered to do so is a violation of Rules 1.5(f)(5), 3.4(c), 8.4(c), and 8.4(d).

The committee further determined respondent knowingly and intentionally violated duties owed to his clients, the public, and the legal system. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined permanent disbarment is the baseline sanction.

In aggravation, the committee found the following factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim, substantial experience in the practice of law (admitted | s1988), and illegal conduct. The committee did not find any mitigating factors present, noting its belief that “Respondent’s chance of relapse at this stage is fairly high and does not justify any further risk to the public.” The committee also stated that the facts show respondent has “an historic inability to resist the temptation to convert client funds.” Finally, the committee indicated “[n]othing in mitigation supports a deviation from the sanction called for.”

Under these circumstances, and in light of respondent’s “multiple and intentional instances of a breach of the attorney trust account and substantial actual and potential harm to the public,” the committee recommended respondent be permanently disbarred.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing the matter, the disciplinary board determined the hearing committee’s factual findings do not appear to be manifestly erroneous. The board also determined the committee correctly applied the Rules of Professional Conduct, except that the board found respondent did not violate Rules 1.15(c), 1.15(d), or 1.15(e).

Specifically, the board determined respondent violated Rule 1.3 by failing to maintain, account for, and keep appropriate records of client funds in his trust account and by failing to properly segregate those funds from his own. He violated Rules 1.15(a) and 1.15(b) by leaving his fees in the trust accounts and depositing his own money into the trust accounts, resulting in commingling of funds. He also violated Rule 1.15(a) by depositing client settlement funds into one trust account and 1 ^disbursing the funds from the other trust account, resulting in conversion. Additionally, he set up automatic withdrawals from his trust accounts to pay personal and business expenses, resulting in conversion. However, the board noted the record does not show that client and third parties were not paid. The board also found that respondent’s claim of ignorance of the trust accounting rules is not believable. The board further determined respondent violated Rules 8.4(b) and 8.4(c) by converting client funds. He additionally violated Rule 8.4(b) by engaging in prostitution, which constitutes criminal conduct. Furthermore, respondent violated Rules 1.5(f)(5) and 8.4(c) by failing to immediately refund the unearned portion of Ms. Woods’ fee, despite being ordered to do so by the bankruptcy court. Additionally, respondent violated Rules 8.4(c) and 8.4(d) by deliberately delaying the refund to Ms. Woods.

With respect to Rules 1.15(c), 1.15(d), and 1.15(e) in Count I, the board determined respondent did not violate these rules because there is not clear and convincing evidence that he failed to deposit into or improperly withdrew from his trust accounts payments for advanced fees or expenses. There is also not clear and convincing evidence that respondent failed to notify clients or third parties of the receipt of settlement funds or promptly disburse the funds. Finally, the record does not contain complaints from clients or third parties that respondent failed to pay them.

After considering the above rule violations, the board concluded respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the legal profession. He caused significant potential harm to his clients and third parties by mismanaging his trust accounts. He also caused actual harm to Ms. Woods and the legal system by failing to promptly refund the unearned fee. The board determined the “heartland” of respondent’s misconduct is his mismanagement of his trust accounts, and the other misconduct only serves to enhance whatever |,0sanction is appropriate for the trust account mismanagement. Upon review of the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

The board found the following aggravating factors: prior disciplinary offenses, a dishonest or selfish motive (only with respect to Count III), a pattern of misconduct, multiple offenses, substantial experience in the practice of law, and illegal conduct. Regarding mitigation, the board rejected the mitigating factor of mental disability or chemical dependency because respondent failed to establish a causal connection between his dependency and his misconduct. Instead, the board found respondent suffers from personal or emotional problems but assigned the factor very little weight because of the lack of a causal connection. See In re: Stoller, 04-2758 (La.5/24/05), 902 So.2d 981.

In addressing the issue of an appropriate sanction, the board reviewed the court’s sanction guidelines for misconduct involving conversion of client funds as set forth in Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986). The board concluded “[tjhere are a greater number of factors in this matter that are consistent with the three-year range provided by Hinrichs, namely the lack of actual harm to the clients. However, the extensive duration of Respondent’s conduct, the magnitude of the risk of damage to clients and third-parties, and the Respondent’s prior discipline for similar misconduct pushes the matter into the disbarment range.” The board determined, however, that permanent disbarment is not warranted under any of the permanent disbarment guidelines established by the court in Supreme Court Rule XIX, Appendix E.

Under these circumstances, the board recommended respondent be disbarred.

1 nRespondent filed an objection to the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the record reveals respondent mishandled his client trust accounts, resulting in commingling and conversion of funds. Respondent also engaged in a criminal act and failed to promptly refund a $100 unearned fee after he was ordered to do so by a bankruptcy judge. Based on this misconduct, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the | ^seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties to his clients, the public, the legal system, and the legal profession. He caused potential harm to his clients and third parties and actual harm to Ms. Woods and the legal system.

The following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. The only mitigating factor supported by the record is respondent’s personal and emotional problems.

We agree with the board that the “heartland” misconduct in this matter is respondent’s mishandling of his trust accounts. Our 1986 opinion in Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), is the landmark case in which the following range of sanctions was established for varying degrees of conversion of client funds:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinaiy or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client |ismay not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made. [Internal citations omitted.]

Following these guidelines, we find a three-year suspension is appropriate. Accordingly, we will suspend respondent from the practice of law for three years. Pursuant to Supreme Court Rule XIX, § 24(A), the suspension shall be made retroactive to June 17, 2009, the effective date of respondent’s interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Jerome W. Dixon, Louisiana Bar Roll number 18587, be and he hereby is suspended from the practice of law for three years, retroactive to June 17, 2009, the date of his interim suspension. All costs and expenses in the matter are assessed 114against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CLARK, Justice, dissents in part with, written reasons.

CLARK, J.,

dissenting.

hi respectfully dissent from the majority’s holding that suspends respondent from the practice of law for a period of three years. Believing this sanction to be too lenient, I find disbarment to be appropriate. First, I find significance in respondent’s extensive history of disciplinary conduct. He received a public reprimand in 1995 and engaged in misconduct that led to his transfer to disability inactive status in 1999, which was deferred for a two-year supervisory probation period with the LAP program. Respondent then experienced several relapses after maintaining sobriety for ten years, resulting in another LAP contract. Thereafter, in 2008, he was suspended from the practice of law again and placed on probation for neglecting a legal matter, altering a public record, and making a false statement to the Office of Disciplinary Counsel. Once more, he was placed on interim suspension in 2009. These numerous brushes with our disciplinary system provide ample evidence of a pattern of misconduct that is likely to be unchanged by rehabilitation efforts or time.

Presently, respondent is before this court due to allegations relative to the mismanagement of client funds, neglect of a client matter, and the commission of a criminal act. The hearing committee found respondent’s testimony not to be credible regarding his alleged “inadequate knowledge” of the handling of trust accounts. The hearing committee discredited this assertion of ignorance due to his 1995 reprimand concerning the same issue, as well as his familiarity with this violation in 1999. The hearing committee stated respondent “has an historic inability to resist the temptation to convert client funds.” It also found “[rjespondent’s chance of relapse at this stage [ gis fairly high and does not justify any further risk to the public.” Moreover, the hearing committee found respondent acted intentionally with regard to his criminal conduct, which constituted a violation of Rule 8.4(b). I agree with the determinations made by the hearing committee. Lastly, I believe actual harm was caused to Ms. Woods and the legal system insofar as two and one-half years passed before responded paid Ms. Woods the court-ordered restitution.

Due to respondent’s lengthy history of misconduct and his apparent inability to alter his misconduct, I adopt the recommendations of the hearing committee and the disciplinary board that a harsher sanction is warranted. Accordingly, I would disbar respondent.

      . Respondent’s medical records indicate he smoked crack cocaine daily until he entered the facility. A doctor at the facility diagnosed respondent with cocaine dependency.

      . Mr. Blackwell admitted that respondent commingled funds by leaving his fees in the trust accounts and, over time, writing smaller checks to himself or to pay personal expenses.

      . The parties stipulated that the bankruptcy trustee and Mr. Harlan helped Ms. Woods with her paperwork and guided her through the process. They also stipulated that respondent arranged for other attorneys to handle most of his bankruptcy clients during this time period.

      . In his letter to Ms. Woods, respondent stated, "My attorney has instructed me to send you this money order for $100.00. I honestly believe I gave you this amount in cash the last time we were in court for your case. I believe I am paying you twice, but my attorney has instructed me to pay you again and retain proof of payment.’’

      . In In re: McClanahan, 09-1883, fn. 9 (La.2/5/10), 26 So.3d 756, the court established that disbarment, and not permanent disbarment, is the most serious sanction available as a baseline sanction,

      . Supreme Court Rule XIX, § 24(A) provides, in pertinent part:
      In matters where a lawyer who has been placed on interim suspension and is then suspended for the same misconduct that was the ground for the interim suspension, at the court’s discretion, the lawyer's term of suspension may be applied retroactively to the effective date of the interim suspension.


source: Caselaw Access Project

author:
PER CURIAM.
     JOHNSON, J., KNOLL, J.,

license: Public Domain

text:
    STATE of Louisiana v. Edward Charles JACKSON.
    No. 2009-K-2406.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      James D. Caldwell, Attorney General, James C. Downs, District Attorney, John T. Giordano, Assistant District Attorney, for Applicant.
    Mark Owen Foster, LA Appellate Project, for Respondent.
   PER CURIAM.

liThe state charged defendant by bill of information with armed robbery in violation of La.R.S. 14:64, and with possession of a firearm by a convicted felon, La.R.S. 14:95.1. Defendant waived a jury and following a bench trial, the court found him guilty as charged on both counts, after expressing its opinion that while it did not believe much of the testimony offered by the victim of the armed robbery, it believed even less about what defendant had to say in his own testimony. The court sentenced defendant on each count to 10 years imprisonment at hard labor without parole, probation, or suspension of sentence. The state thereafter filed an habitual offender bill charging defendant as a fourth or subsequent felony offender. The trial court adjudicated defendant as a fourth offender, vacated the 10-year sentence on the armed robbery count, and resentenced him to 99 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, in a split panel decision, the Third Circuit affirmed defendant’s conviction for possession of a | ¿firearm by a convicted felon but reversed his conviction for armed robbery on grounds that the state had “failed to prove beyond a reasonable doubt the element of taking,” required by La. R.S. 14:64. State v. Jackson, 09-0045, p. 9 (La.App. 3rd Cir.10/7/09), 19 So.Sd 631, 637 (Amy, J., dissenting). We granted the state’s application to review that decision and reverse with respect to defendant’s conviction for armed robbery because, for all of the trial court’s misgivings about the credibility of both the victim and defendant, we agree with Judge Amy that “the [police] officers’ testimony regarding the reporting of the event coupled with the victim’s testimony supports the conviction under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard.” Jackson, 09-0045, p. 1 (Amy, J., dissenting).

The evidence at trial established that on the afternoon of November 18, 2005, Alexandria police officers Danny Davis and Keith Mouliere responded to the report of an armed robbery occurring at the Crown Hotel located on McArthur Drive in Alexandria. The hotel had become an enclave for evacuees from New Orleans following Hurricane Katrina. Defendant and Kenneth Williams were among the evacuees and had rented separate rooms at the hotel. They knew each other only in passing and from one occasion on which defendant, a licensed barber, had cut Williams’s hair, leading to an unpaid debt of some $10 or less. The officers approached Room 511 of the hotel and defendant met them at the door. Before the officers could give him his Miranda rights, defendant volunteered, “Man, that guy owed me nine dollars,” referring to the prior haircut, and explained that “the reason he had taken the money from the victim was because that the victim had owed him money for a haircut.” Officer Davis recalled that defendant appeared “very communicative ... polite, actually.” After receiving his Miranda rights, defendant signed a consent form authorizing the search of his hotel room. When the officers [swent inside, Davis observed a small barbeque pit in the room and pulled off its hood. He found a box of .32 caliber shells lying on the grill. At that point, defendant, who had originally denied using a gun to collect on his debt, told the officers that they could find a gun in the dresser. According to Officer Mou-liere, once they retrieved the handgun from a dresser drawer, defendant hung his head and stated, “Look, that guy owed me nine dollars. Well, he gave me nine dollars, and I know I wasn’t going to get paid, so I took his money.... I took my pistol, and I got my money.”

The victim, Keith Williams, who was at the time of trial confined in the parish prison on a parole violation for one of his three prior felony convictions, readily acknowledged that he had owed defendant for a haircut and had sought him out that afternoon to make good on his debt. However, Williams claimed that he had considerably more cash than $10 in his pocket, testifying that he had just received $300 in FEMA money when he approached defendant’s room in the hotel. “I went to pull the money out and pay him,” Williams testified, “and he ... pulled a gun out and told me to get the hell on and don’t come back around there.” Williams testified that he left, but defendant “took my money.” Williams went back to his room, and told a friend what had happened. His friend then called the desk clerk who in turn called the police.

Defendant testified at trial that when the victim approached him on that afternoon outside of his room, Williams informed him he had $8.00 in his pocket and that he wanted to put $2.00 towards the haircut debt and to “get him anything for $6.00.” Defendant assumed Williams meant drugs and he told the victim to give him the cash. Defendant testified that he pocketed the $8.00 for the unpaid debt on the haircut but denied using a gun or making any threats to collect the money owed him. Defendant acknowledged that the signature on the consent form authorizing the |4 search of his hotel room appeared to be his, but he flatly denied signing the form and suggested that the officers had forged his signature by copying it from other documents scattered about the room because he was a freelance writer as well as a licensed barber. Defendant also denied any knowledge of the box of shells Officer Davis found in the barbeque pit, claiming he “didn’t see them,” and denied informing the officers that they could find a gun in the dresser, or that he knew anything about the firearm they retrieved from the dresser drawer. He also flatly denied telling the officers that he had used the gun to collect the victim’s money, claiming that the victim had lied about the robbery and loss of $300. “It wasn’t really a disagreement,” defendant maintained, “he just owed me for a haircut. It wasn’t no bad vibes or nothing pertaining to that.” On the other hand, defendant readily acknowledged that he had six prior felony convictions. “Old things come to pass,” he informed the court, “new things come to exist.”

At the close of the testimony, the trial court expressed its concern “that the victim in this case, his testimony, well, it leaves a lot to be desired.” In fact, the court frankly doubted “he’s had $300 in his life,” and found that much of the victim’s testimony simply “was not credible.” On the other hand, the court did not believe | s“anything [defendant] said” in his “completely incredible” trial testimony, as opposed to statements he made on the scene to Officers Davis and Mouliere. In the court’s view, defendant spoke freely and credibly to the officers about resorting to self help in collecting on his debt “because he didn’t think anything was wrong with that.” However, the court observed that, “there is no self-help in Louisiana. You cannot get a gun to collect a debt.” Because the officers appeared completely credible in their testimony with respect to defendant’s statements to them that he had used a gun to take some amount of money from the victim in satisfaction of the unpaid debt, and that the gun concealed in the dresser to which defendant directed the officers was the weapon used in the crime, the court found defendant guilty on both counts.

On appeal, the Third Circuit panel readily affirmed defendant’s conviction for possession of a firearm by a convicted felon. Jackson, 09-0045 at 6-7, 19 So.3d at 635 (“[Biased upon the fact that the gun was found in the hotel room, which the Defendant occupied, buttressed with the testimony of Officers Davis and Mouliere that the Defendant pointed out the location of the handgun and the handgun was found in that location, we conclude sufficient evidence was presented by the State to convict the Defendant of possession of a firearm by a convicted felon.”). As for the armed robbery conviction, the majority conceded that both defendant and Williams agreed that some amount of money changed hands on that afternoon, whether it was the $9.00 to which defendant referred in statements to the police officers on the scene, the $8.00 to which he referred in his testimony, or the $300 FEMA payment the victim claimed that he lost. Nevertheless, it was “unclear from the record the events that took place between the victim seeking and finding the Defendant to repay him and the Defendant obtaining possession of the money.” Jackson, 09-0045 at 9, 19 So.3d at 636-37. Given this uncertainty, the majority concluded that the state had | ^failed to prove that a taking accomplished by the use of force or intimidation occurred. Id. Dissenting, Judge Amy emphasized that Williams testified “that the defendant came to collect money ... while armed with a gun,” and that according to Officers Davis and Mouliere, “defendant admitted using a gun to collect the money.” The trial court “found this latter testimony regarding the reporting of the event credible,” and Judge Amy concluded that it was “inappropriate to reassess this evaluation on appeal.” Jackson, 09-0045 at 1, 19 So.3d at 639-40 (Amy, J., dissenting).

We agree with Judge Amy that the record provides no reason for intruding on the rational credibility determinations made by the trial judge. An appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. The due process, rational trier of fact standard announced in Jackson seeks to preserve “‘the factfinder’s role as weigher of the evidence’ ” by requiring an appellate court to review “ ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. -, -, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (2010)(quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). We have therefore repeatedly declined to “second-guess the credibility determinations of the trier of fact,” State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983), in determining, as Jackson requires, whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. To the extent that Jackson announced an objective standard for reviewing the sufficiency of the evidence from the perspective of a hypothetical rational, pro-prosecution trier of fact, jjthe decision “does not require scrutiny of the reasoning process actually used by the factfinder — if known.” Jackson, 443 U.S. at 319, n. 13, 99 S.Ct. at 2789.

In the present case, the thought processes by which the court arrived at its decision are known, and the reasons articulated by the court for its verdict offer particularized assurances, if any are needed, that the court reached a verdict any rational trier of fact could render. The trial court rejected the testimony of defendant in its entirely, not simply on the basis of what his six prior felony convictions had to say about his generally credibility, but also because defendant’s explanation for how his signature came to be on the consent-to-search form, the result of a claimed forgery on the part of Officers Davis and Mouliere, appeared so implausible that it was not worthy of belief. Only slightly less tenuous was defendant’s claim that he knew nothing about the box of shells underneath the lid of his barbeque pit or the handgun in the dresser drawer.

On the other hand, the trial court accorded a full measure of credibility to the testimony of the officers with respect to defendant’s statements on the scene because the court rationally concluded that defendant spoke freely to the officers in the belief that he had done nothing wrong by taking his gun to collect on his unpaid debt. Defendant’s statements to the officers corroborated the victim’s testimony that he had used a gun to obtain some amount of money from Williams. Despite the court’s concerns about this aspect of the victim’s testimony, it did not matter whether defendant took merely a few dollars as the price of a haircut or $300 in FEMA money because the offense of armed robbery involves the “taking of anything of value belonging to another from the person of another.” La.R.S. 14:64(A) (emphasis added).

| sIt also did not matter that the dispute took place over a debt owed by the victim to defendant. Whatever defendant’s subjective beliefs, the trial court correctly observed that resort to armed self-help on a claim of right to payment of a debt offered no defense or justification to what defendant conceded to the officers had been a taking of the victim’s money by force of arms. Defendant made no claim that the money he took from his victim in satisfaction of the debt actually belonged to him. In the absence of any evidence that the accused sought to reclaim his own property, of. State v. Mejia, 141 N.J. 475, 662 A.2d 308, 318 (1995)(“[A] defendant charged with theft or robbery may present evidence proving that the property taken was the defendant’s and not the ‘property of another’ ”); State v. Authement, 21,737, 139 La. 1070, 72 So. 739, 740-41 (1916)(that a defendant’s taking of property under a bona fide claim of right is not larceny “is well settled law.”), the overwhelming weight of modern authority holds that a creditor who collects on a debt by the use of force commits the offense of robbery, which, in Louisiana, becomes an armed robbery when the offender using force or intimidation is “armed with a dangerous weapon.” La.R.S. 14:64(A); see, e.g., People v. Tufunga, 21 Cal.4th 935, 90 Cal.Rptr.2d 143, 987 P.2d 168, 178 (1999)(“As several courts have observed, the proposition that a claim of right negates the felonious intent in robbery not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied.”)(internal quotation marks and citation omitted); State v. Mejia, 662 A.2d at 320 (“[T]he emerging trend in other jurisdictions rejects the claim-of-right defense to robbery because ... it encourages disputants to resolve disputes on the streets through violence instead of through the judicial system.”)(internal quotation marks |fland citations omitted); Crawford v. State, 509 S.W.2d 582, 584-86 (Tex.Crim.App.1974) (“To hold otherwise would be establishing a dangerous doctrine, since it would authorize the accused not only to decide his own injury or damage but to enforce the collection thereof by force and violence .... contrary to the policy of our form of government.”)(internal quotation marks and citation omitted).

In the present case, the trial court exercised its discretion as fact finder "to weigh the credibility of the witnesses and concluded rationally that defendant took something of value belonging to Keith Williams by force and intimidation while armed with a dangerous weapon, and did so without justification, thereby committing the crime of armed robbery in Louisiana. Accordingly, the decision of the court of appeal is affirmed to the extent that it upheld defendant’s conviction for possession of a firearm by a convicted felon, but is reversed to the extent that it vacated defendant’s conviction for armed robbery. Defendant’s conviction and sentence for armed robbery are reinstated and affirmed, and this case is remanded to the district court for purposes of execution of sentence.

CONVICTION AND SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON AFFIRMED; CONVICTION AND SENTENCE FOR ARMED ROBBERY REINSTATED AND AFFIRMED; CASE REMANDED.

JOHNSON, Justice, dissents and assigns reasons.

KNOLL, Justice, dissents and assigns reasons.

JOHNSON, J.,

dissents and assigns reasons.

1¶1 dissent from the majority’s determination, and would affirm the court of appeal’s decision in its entirety. In my view the evidence is insufficient to convict the Defendant of armed robbery.

The court of appeal correctly affirmed Defendant’s conviction for possession of a firearm by a convicted felon reasoning that: “[Bjased upon the fact that the gun was found in the hotel room, which the Defendant occupied, buttressed with the testimony of officers Davis and Mouliere that the Defendant pointed out the location of the handgun and the handgun- was found in that location, we conclude sufficient evidence was presented by the State to convict the Defendant of possession of a firearm by a convicted felon.” State v. Jackson, 09-0045 at 6-7, 19 So.3d at 635.

With regard to the armed robbery conviction, I agree that the State failed to prove beyond a reasonable doubt there was a “taking” as contemplated by La. R.S. 14:64. To convict a Defendant of armed robbery, the State must prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App.2d Cir.11/2/01), 799 So.2d 684. State v. McGinnis, 07-1419, p. 11 (La.App. 3 Cir. 4/30/08), 981 So.2d 881, 890 (quoting State v. Ellis, 42, 520, pp. 4-5 (LaApp. 2 Cir. 9/26/07), 966 So.2d 139, 144).

At the close of the testimony, the trial court expressed its concern that “... the victim in this case, his testimony, well, it leaves a lot to be desired.” In fact, the court frankly doubted “he’s had $300 in his life,” despite Kenneth Williams’ testimony that he was robbed of the $300.00 proceeds from a FEMA check, and found that much of the victim’s testimony simply “was not credible.”

The court of appeal correctly concluded that the state had failed in its burden of proof that a taking, accomplished by the use of force or intimidation occurred. It is unclear from the record exactly what transpired. Both Defendant and the victim acknowledged that money (perhaps $8.00) was owed to Defendant for a haircut. Testimony diverges over whether Defendant sought out the victim to collect the debt, or whether the victim went to Defendant’s room to pay a portion of the debt owed. The evidence is not sufficient to prove an armed robbery.

KNOLL, J.,

dissenting.

hi dissent from the majority opinion, which imposes a life sentence for armed robbery based an alleged crime involving less than ten dollars.

I primarily dissent because I do not believe the prosecution met its burden of proving “beyond a reasonable doubt each element of the offense.” Clark v. Arizona, 548 U.S. 735, 766, 126 S.Ct. 2709, 2729, 165 L.Ed.2d 842 (2006). One of the necessary elements of armed robbery is the “the taking of anything of value belonging to another.” La.Rev.Stat. § 14:64. I agree with the court of appeal in concluding the State failed to establish, beyond a reasonable doubt, that the accused “took” anything from Kenneth Williams against his will. It is undisputed that Williams owed the defendant between eight and ten dollars, which Williams went to pay. Williams testified:

I went to give him the money. He was down by another room, so he— instead of him asking me for the money, I went to pull the money out and pay him, and he told — pulled a gun out and told me to get the hell on and don’t come back around there.

If, as Williams claims, he repaid his debt to Jackson voluntarily, then Jackson did not commit a “taking” under La.Rev.Stat. § 14:64. Although the testimony of the police officers suggests that Williams refused to pay, the police officers did not 12witness the alleged crime. I believe that the victim’s own testimony creates a “reasonable doubt” as to whether the element of a taking was met.

I am also troubled by the inherent injustice of imposing a life sentence on defendant on such scant evidence for a crime involving, at most, ten dollars. La.Code of Crim. Proc. art. 61 grants very broad pros-ecutorial discretion to district attorneys, who are not duty-bound to prosecute each defendant to the fullest extent of the law. “A concept imbedded in our system of law enforcement is prosecutorial discretion. Prosecuting agencies have broad powers in deciding whether to institute a prosecution in a given case.” State ex rel. Guste v. K-Mart Corp., 462 So.2d 616, 620 (La.1985). Instead, district attorneys have broad discretion to enter a nolle prosequi or, where appropriate, to proceed under a lesser offense.

Indeed, there are circumstances where a prosecutor may be ethically required to pursue something other than the most severe sanction. The “responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” Plaquemines Parish Commission Council v. Perez, 379 So.2d 1373, 1387 (La.1980); accord, State v. Hamilton 478 So.2d 123, 127 n. 7 (La.1985). I believe this is just such a case. The amount in controversy is so small, and the circumstances of the alleged crime so uncertain, that the instant prosecution and the grossly disproportionate sentence do not further the ends of justice. I therefore respectfully dissent.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . After his original sentencing but before his resentencing as an habitual offender more than two years later, defendant filed a pro se motion for a new trial on grounds of newly discovered evidence. He attached to the motion an affidavit executed by Kenneth Williams in which he claimed that defendant "never took any finances from me through threat,” that he had become angry at defendant because "he kept $8.00 that I had given him and I tried to press into his Motel Room,” that he owed defendant the money for a haircut, and that once he made the complaint against defendant, he "feared to stand up and say he did not take the money from me.” The affidavit further claimed that Williams is a diagnosed schizophrenic and that disease often made him do things that he later regretted.
      The trial court denied the motion summarily on the day that defendant filed it and the Third Circuit affirmed that ruling on appeal after finding that the motion was untimely. Jackson, 09-0045 at 13, 19 So.3d at 639 ("In this case, the Defendant filed his motion for new trial based on newly discovered evidence more than one year after the verdict was rendered and more than one year after the underlying sentence was imposed.”). Defendant has not sought review of that aspect of the court of appeal’s decision in this Court.

      . State v. Sykes, 364 So.2d 1293, 1297 (La.1978).

      . State v. Melerine, 236 La. 930, 109 So.2d 471, 479 (1959).

      . Compare the $8 Jackson allegedly stole with the burden the taxpayers will bear to keep him incarcerated for the remainder of his life. Today, it costs the state of Louisiana $54 per day, or nearly $20,000 per year, to keep each inmate in prison. Michelle Millkollen, Panel Asks Why So Many Inmates, Baton Rouge Advocate, July 30, 2010, at Al. See also Jon Craig, Kasich, GOP: Ohio Can Cut Way Out of Deficit, Cincinnati Enquirer, December 12, 2010 (Each Ohio inmate costs the state $66 per day, or $24,000 per year).


author: PER CURIAM.

text:
    STATE of Louisiana v. Grady N. GREENE.
    No. 2009-K-2723.
    Supreme Court of Louisiana.
    Jan. 19, 2011.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, for Applicant.
    Edward R. Greenlee, New Orleans, LA, for Respondent.
   PER CURIAM.

LThe state charged defendant by bill of information with theft in an amount over $500 in violation of La.R.S. 14:67. After defendant waived trial by jury, the trial court found him guilty of the lesser included offense of unauthorized use of a movable, La.R.S. 14:68. The trial court sentenced defendant to five years’ imprisonment at hard labor, the maximum term for the offense. On appeal, the Fourth Circuit reversed defendant’s conviction and sentence on grounds that in a dispute arising from a contract to repair and renovate a home in New Orleans following Hurricane Katrina, the state failed to prove the requisite intent to defraud to support defendant’s conviction for a criminal offense involving the unauthorized use of the victim’s money and that “the dispute that existed between the parties was civil in nature not criminal and should have been handled in a civil proceeding, where any damages owed by either party could be properly assessed under the terms of the contract.” State v. Greene, 08-1318, p. 10 (La.App. 4th Cir.11/12/09), 26 So.3d 274, 280 (Belsome, J., dissenting). We granted the state’s application to review the decision below and reverse because we agree with Judge Belsome that viewing the evidence in a light most favorable to the prosecution, and giving due deference to the factual findings made by the trial judge in reaching his verdict, the evidence supported the verdict returned by the court.

No significant dispute exists with respect to the essential facts of this case, although the extent to which defendant and Karen Blanks became involved at a personal as well as professional level was sharply contested. Defendant, a self-described contractor, came to New Orleans in March 2006, after friends urged him to take advantage of the opportunities presented by the reconstruction underway in the city following Hurricane Katrina. A mutual friend had given defendant Karen Blanks’s name and after defendant arranged a meeting, and then began a personal relationship with Blanks, discussions turned to reconstructing Blanks’s storm-ravaged home. Blanks testified that defendant represented himself as a licensed contractor in Louisiana, doing business as Grady Greene Construction LLC, and they agreed on a total price of $67,000 for the work. The revised contract was signed on August 14, 2006, on a form supplied by defendant, at the top of which was his letterhead, “Greene General Contractor Services,” next to the statement, “Licensed and Insured LA # R-1344-2005.” Defendant signed as a general contractor, and the agreement spelled out in detail four phases in the repair of the residence. On August 14, 2006, Blanks had an initial payment of $25,200 transferred from her bank to defendant’s account as a deposit on the contract. Two days later, defendant obtained a building permit, but he did not begin work on the home until September 2006, when he parked |aa trailer in front of the house and went about cutting down a tree in the back and removing a damaged fence.

However, in the course of the preliminary work, defendant informed Blanks that the floors were not level, that removal of the fireplaces, as contemplated in Phase II of the contract, was impossible without repairing the foundation first, and that it was pointless to drywall the interior, Phase III of the contract, without first leveling the house. On October 6, 2006, defendant presented Blanks with an estimate of $6,800 to repair the foundation. Blanks obtained estimates from two other contractors, both of whom said the fireplaces could be safely removed without leveling the house. However, in the opinion of one of the contractors, the house was, in fact, “off centered by approximate degree and requires centering,” and that the structural correction “should be accomplished prior to continued work on residence, especially prior to installation of drywall material.” Nevertheless, Blanks testified that the contractor had called to reassure her work could proceed on removing the chimneys, and that she had other work around the house besides hanging drywall she expected defendant to do while she found someone to level the house. Blanks then instructed defendant to remove the fireplaces. Defendant explained that, notwithstanding the opinions of other contractors, removing the fireplaces would be dangerous to him and his crew without prior foundation repair. He also noted he would have to obtain an estimate for the chimney removal, although the removal had been specified in Phase II of the contract, and Blanks, acceding to the plan, instructed him to continue with other tasks in the contract.

However, within a week, Blanks noticed that no other work had been done on the property. She attempted to contact defendant over the next 10 days but was ^unsuccessful. On October 27, 2006, Blanks then delivered to defendant at his residence a letter outlining what was expected of him. Four days later, on October 31, 2006, Blanks confronted defendant at home and informed him he was fired and the contract terminated. Blanks also sent defendant a termination letter by certified mail and demanded to be repaid the outstanding deposit balance within 24 hours, or she would contact the District Attorney’s Office. That same day, Blanks ordered two of defendant’s workers off the property. In her estimation, although defendant had been on the job for two months, he had done “very little work,” beyond removing a fence, cutting down a tree, and removing some wood lathe from the walls, and, from what she could see, “that was all.”

Two weeks after she fired defendant, Blanks made a formal complaint to the Economic Crimes Department of the Orleans Parish District Attorney’s Office. Detective Byron Francois met with defendant on December 6, 2006, and inquired if he had considered repaying Blanks. Defendant acknowledged that he owed Blanks the deposit less $4,800 for work already performed and submitted a written proposal offering to repay Blanks $20,000 at the rate of $5,000 a month beginning on December 31, 2006. Defendant told Francois that he could not repay any faster because he had used Blanks’s money to pay work crews, buy materials, and pay himself on other, unrelated, jobs he was currently working, but also that he could pay Blanks $5,000 by the end of the month.

Francois met with Blanks to determine if defendant’s repayment plan was acceptable; however, Blanks informed Francois that the terms were unacceptable to her. Blanks testified that she needed to receive at least $10,000 per month because she was paying both rent and a mortgage. She also testified that defendant had | ^informed her that he did not “use money from one person’s account to another one to do any construction on any other person’s house.” Thus, “since no work was done on my house,” Blanks saw no reason why defendant could not meet the terms of her demand for repayment, less the amount claimed by defendant for the work performed on the house. With negotiations at a standstill, Detective Francois arrested defendant on December 20, 2006, 11 days before the date of his first proposed payment.

Defendant testified at trial that, in fact, he often worked two jobs simultaneously, but never more than two, that he had apprised Blanks of the practice, and that she had no objection “whatsoever.” According to defendant, out of the original deposit which went into the only bank account he had at the time, he paid his work crew on the Blanks project and also “used those funds for another project that I had going, which is a common practice among contractors, that you have one or two jobs going and that sometimes you commingle funds to cover them, to keep both jobs going. That’s exactly what I did.” Defendant conceded that even after Blanks had fired him at the end of October 2006, he continued to draw $1,500 a week against the Blanks deposit as his own salary in November and December 2006, “depending on what [his] personal needs were.” Defendant testified that the other project he had underway during November and December 2006, was for a Herman Sparks, and he identified Defense Exhibit Five, as a check from Sparks to him in the amount of $9,600, which he had “offered to pay to Ms. Blanks during the month of December.” R., Tr., p. 125.

The check from Sparks formed the linchpin of the defense offered at trial that the case was a civil matter to sort out in a good faith dispute over progress on the house which came to an end mid-October 2006, when defendant reported that the | r,structure was not level and that he could not safely remove the chimneys, and certainly could not drywall the interior, until it was leveled. However, at the close of the testimony, the trial court rejected that defense and found defendant guilty of the lesser offense of unauthorized use of a movable. The trial judge did not convict him of theft as originally charged because “the specific intent to permanently] deprive at the outset of this agreement was not in my mind proven beyond a reasonable doubt.” However, the court found “that at some point during the course of the proceedings ... [defendant] clearly used her money by fraudulent means, practice or representations for his own personal gain.”

In reversing the trial court and setting aside defendant’s conviction, the court of appeal majority concluded that “[t]he evidence failed to exclude the reasonable probability that Mr. Greene and Ms. Blanks had a legitimate business dispute as to how best to proceed with the repairs and renovation of Ms. Blank’s [sic] home, and that she terminated Mr. Greene’s services after he was reluctant to proceed in the manner suggested by Ms. Blanks.” Greene, 08-1318 at 10, 26 So.3d at 280. The majority further observed that

“[l]ending legitimacy to Mr. Greene’s concerns about the condition of the property, one of the contractors that Ms. Blanks consulted confirmed Mr. Greene’s assessment of the need to level the foundation.” Id. While acknowledging that defendant’s “actions of applying the money advance by Ms. Blanks to another job or drawing on the money to pay himself, viewed in the light most favorable to the State, could constitute evidence of fraudulent and/or criminal conduct,” the majority noted that the state had not charged defendant with misapplication of payments by a contractor in violation of La.R.S. 14:202, and concluded that “[a] rational trier of fact, viewing the evidence in the light most |7favorable to the prosecution could not find that fraudulent intent was proven beyond a reasonable doubt.” Greene, 08-1318 at 10-11, 26 So.2d at 280-81. Dissenting, Judge Belsome had no dispute with the majority’s factual account of the circumstances surrounding the dispute, but found that the majority had gone astray because “we are not permitted to substitute our interpretation of the evidence for that of the fact finder.” Greene, 08-1318, p. 2, 26 So.3d at 282 (Belsome, J., dissenting)(citing State v. Pigford, 05-0477, p. 6 (La.2/22/06), 922 So.2d 517, 521). On that basis, Judge Belsome would have deferred to the trial court’s finding that defendant “ ‘clearly used [the victim’s] money by fraudulent means, practices or representations for his own personal gain.’ ” Id.

The majority on the court of appeal panel began with the correct premise but erred for the reasons articulated by Judge Belsome. The crime of unauthorized use of a movable is “the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.” La.R.S. 14:68. The crime is a lesser and included offense of theft “because theft includes all the elements of unauthorized use — plus the intent to deprive permanently (instead of only temporarily) the owner of his property.” State v. Reeves, 342 So.2d 605, 608 (La.1977). The offense of unauthorized use is therefore part of Louisiana’s merger of the traditional common law crimes of larceny, embezzlement, and obtaining by false pretenses. See R.S. 14:67, Offl Rev. Cm’t (“This section [defining the offense of theft] has the effect of combining the traditional offenses of larceny, embezzlement, and obtaining by false pretenses.... [TJhere seems to be absolutely no reason why today the fundamental notion that it is |ssocially wrong to take the property of another, in any fashion whatsoever, cannot be stated ... clearly and simply....”). The offense is principally aimed at the unauthorized use of automobiles (i e., “joyriding”). State v. Gisclair, 382 So.2d 914, 916 (La.1980)(“It is clear that the choice of the term ‘movables’ in the statute was due to the lack of another term to describe the tangible objects covered under prior laws [e.g. using animal of another, automobile of another, milking cow of another].”). However, money is a corporeal moveable, capable of being taken or used in an unauthorized manner. State v. Anderson, 07-0752, p. 6 (La.App. 5th Cir.2/6/08), 979 So.2d 566, 570. As with the greater offense of theft, the crime of unauthorized use requires the taking of the property of “another,” and we have construed the statute to require a showing of mens rea or criminal intent, “since the ‘evil’ state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another).” State v. Bias, 400 So.2d 650, 652-53 (La.1981). The state may present direct or circumstantial evidence of fraudulent intent, Bias, 400 So.2d at 652, and in cases of circumstantial evidence, when the fact finder “reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

In the present case, the court of appeal majority found, in effect, that the trial court did not act reasonably in rejecting the defendant’s hypothesis of innocence that the dispute with Ms. Blanks over repayment of the deposit money was simply a matter for the civil courts to sort out and not for the criminal courts. However, the evidence at trial left no question that defendant misrepresented himself at the outset |nof his relationship with Blanks by holding himself out as a licensed contractor in Louisiana. The state called Carl Bourque, a Residential Compliance Supervisor for the State Licensing Board for Contractors, to establish that defendant was not, in fact, registered with the Board as a home improvement contractor and had never applied for a license. Defendant made no effort to rebut Bourque’s testimony. Thus, although the contract prepared by defendant conformed to the specific requirements for such agreements when they are for an amount of more than $7,500 or more, La.R.S. 37:2175.1(A)(“Ev-ery agreement to perform home improvement contracting services, as defined by this Part, in an amount in excess of seventy-five hundred dollars [but not in excess of seventy-five thousand dollars] shall be in writing and shall include_”), Louisiana law prohibited defendant from entering into the contract in the first place because “[n]o person shall undertake, offer to undertake, or agree to perform home improvement contracting services unless registered with and approved by the Residential Building Contractors Subcommittee of the State Licensing Board for Contractors as a home improvement contractor.” La.R.S. 37:2175.2(A). Louisiana law also precluded defendant from “[ojperating without a certifícate of registration issued by the subcommittee,” La. R.S. 37:2175.3(A)(1), and from “[mjaking any material misrepresentation in the procurement of a contract or making any false promise likely to influence, persuade, or induce the procurement of a contract,” La.R.S. 37:2175.3(A)(4), or “[mjaking a false representation that the person is a state licensed general contractor.” La. R.S. 37:2175.3(A)(8); cf. La.R.S. 14:202.1(A)(2)(the offense of home improvement fraud is committed when, inter alia, a contractor or his agent or employee uses “any deception, false pretense, or false promise to cause any |inperson to enter into a contract for home improvements.”). The purpose of the licensing requirements for contractors in Louisiana generally “is the protection of the health, safety, and general welfare of all those persons dealing with persons engaging in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful, and fraudulent acts of contractors with whom they contract.” La.R.S. 37:2150.

Given defendant’s initial misrepresentations to Blanks, we need not address his claim that industry practice did not preclude him from commingling funds from several ongoing projects in a single bank account, thereby permitting him to use funds from one project on another project with or without the knowledge or consent of the owners. Similar claims have been made in other cases, see, e.g., State v. Ferrari, 398 So.2d 804, 808 (Fla.1981)(up-holding statute prohibiting fraudulent misapplication of contract funds by a building contractor against the argument, inter alia, that “the cash flow realities of the construction business frequently mandate that a contractor engaged in numerous projects use funds advanced for one job to pay subcontractors or suppliers on another .... it is common practice for a contractor to use incoming funds to discharge his most pressing obligations and replace them later with the proceeds of other jobs.”), and the jurisprudence has distinguished between a contractor’s conversion to his own use of unrestricted advance payments, and theJjjconversion of an advance payment earmarked for a specific construction purpose, e.g., purchase of lumber or other building materials. See 3 Wayne R. LaFave, Substantive Criminal Law, § 19.6(d), pp. 103-04 (2nd ed. 2003)(Because the property converted must belong to “another,” one who borrows money and then converts the borrowed sum to his own use is not guilty of embezzlement, even though, when the time comes to repay the loan, he is unable to do so.... So too a building contractor who receives from the landowner an advance payment on the contract and who thereafter spends the money for his own purposes and does not fulfill the contract, is not guilty of embezzlement, unless the money is earmarked to be used only for a construction purpose.”)(footnotes omitted); People v. Parker, 235 Cal.App.2d 100, 108, 44 Cal.Rptr. 909, 914 (1965)(defendant, a residential developer, committed theft by embezzlement when he took payments from home buyers for the specific restricted purpose of delivering the money to a title company and converted it to his own use in his building firms); State v. Joy, 121 Wash.2d 333, 851 P.2d 654 (1993) (affirming counts of theft by embezzlement involving contractor’s conversion to his own use of advance payments intended to purchase specific materials such as cabinets but reversing theft convictions on counts involving contractor’s conversion of advance payments not earmarked for any specific construction purpose).

However, whatever the common practice in the industry, it cannot include misrepresentations with regard to state licensing requirements which go beyond mere “puffing” in contract negotiations, Pizza Hut, Inc. v. Papa John's Intern., Inc., 227 F.3d 489, 496 (5th Cir.2000)(discussing various definitions of “puffing,” or exaggerated claims made by a seller that no reasonable buyer would take seriously), 112and constitute material misrepresentations in violation of state law intended to protect Louisiana homeowners against incompetence and fraud. Cf. United States v. New South Farm & H. Co., 241 U.S. 64, 36 S.Ct. 505, 507, 60 L.Ed. 890 (1916)(“[W]hen a proposed seller ... assigns to the article qualities which it does not possess ... but invents advantages and falsely asserts their existence, he transcends the limits of ‘puffing’ and engages in false representations and pretenses.”). On the evidence presented at trial, any rational trier of fact could find that defendant took the advance payment on the contract from Ms. Blanks by fraudulently representing himself as a licensed general contractor in Louisiana, and by that act alone, committed the offense of unauthorized use of a movable in violation of La. R.S. 14:68, when he took the $25,000 deposit from her. Moreover, as the trial court noted in its reasons for judgment, nothing in what then transpired undercut the inference of fraudulent intent arising from defendant’s initial misrepresentations. By defendant’s own accounting, he continued to draw on Blanks’s advance money in November and December, depending on what his personal needs were, until he had completely depleted the advance, although he had performed relatively little work on the house, she had fired him at the end of October, demanded the rest of her deposit back, and threatened to take legal action. The court of appeal majority acknowledged that defendant’s testimony on this point, viewed in a light most favorable to the state, could constitute evidence of fraud. In fact, the trial court reasonably found that it was evidence of fraudulent intent when it returned its verdict.

Under these circumstances, as noted by Judge Belsome in his dissent, it was not appropriate for the court of appeal majority to substitute its own appreciation of what the evidence at trial did or did not prove for that of the fact finder. State v. Robertson, 96-1048, p. 1 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990). Defendant may or may not have also violated La.R.S. 14:202 (misapplication of payments to material-men), although no evidence in the record suggests that he failed to pay his work crew while paying himself, and there were evidently no materialmen to satisfy because so little work was done on the house. However, the state in any event had plenary discretion to decide how and under what statute it would proceed. La.R.S. 14:4(l)(prosecution may proceed under either provision, in the discretion of the district attorney, when the offender’s conduct is “[criminal according to a general article of this Code ... and also according to a special article of this Code....”). The state’s choice to charge defendant with the crime of felony theft, encompassing the lesser included felony offense of unauthorized use, reflected the significant, and for all that appears permanent, economic loss incurred by Ms. Blanks.

Accordingly, the decision below is reversed, the defendant’s conviction and sentence are affirmed, and this case is remanded to the district court for purposes of execution of sentence.

COURT OF APPEAL DECISION REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED

      . The bracketed language was added by 2007 La. Acts 398, which made no other significant change in the statute.

      . However, this statute, enacted by 2008 La. Acts 292, was not in effect at the time of the acts charged against defendant in the present case.

      . As part of this regulatory scheme, La.R.S. 37:2175.4 provides administrative penalties for any contractor who is registered, or is required to be registered, for any violation of the provisions relating to home improvement contracting. The penalties may amount to 25% of the total contract price. Bourque testified that defendant had, in fact, been assessed the maximum 25% penalty on the total contract price of $67,000, plus the costs of the administrative hearing leading to that penalty. However, when defense counsel objected as to the relevancy of that part of the supervisor’s testimony, the trial judge sustained the objection and ruled that it would not take evidence of the administrative action into account in reaching a verdict.


text:
    In re Pressley C. CALAHAN.
    No. 2010-B-2729.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Pressley Charles Calahan, a disbarred attorney.

UNDERLYING FACTS

By way of background, on May 17, 2006, this court disbarred respondent for misconduct that included defrauding a legally blind woman into signing a contingent fee agreement, forging an endorsement on a settlement check, forging a signature on an affidavit, making a false accusation in a pretrial memorandum that a police sergeant may have had a sexually intimate relationship with a convicted felon, and blatantly violating the confidentiality rule regarding complaints filed with the Judiciary Commission. In re: Calahan, 06-0005 (La.5/17/06), 930 So.2d 916.

In October 2007, The Daily Iberian newspaper reported that respondent was arrested for continuing to practice law after being disbarred and was charged with five counts of unlawful practice of law. On January 22, 2009, respondent pled no contest to eight counts of unlawful practice of law, four counts of filing false public ^records (in violation of La. R.S. 14:133), 0ne count of forgery (in violation of La. R.S. 14:72), and one count of public intimidation (in violation of La. R.S. 14:122).

DISCIPLINARY PROCEEDINGS

In December 2009, the ODC filed one count of formal charges against respondent. The formal charges alleged that in pleading no contest to the above-described criminal conduct, respondent violated the following provisions of the Rules of Professional Conduct: Rules 5.5 (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations of the formal charges were admitted and proven by clear and convincing evidence. The committee found respondent engaged |sin the practice of law while disbarred. Subsequently, he was convicted of eight counts of unlawful practice of law, four counts of filing false public records, one count of forgery, and one count of public intimidation, as indicated by the documentary evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found respondent knowingly and intentionally violated duties owed to the public, the legal system, and the legal profession. Respondent engaged in serious criminal conduct, which created the potential for significant harm.

In aggravation, the committee found pri- or disciplinary offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and refusal to acknowledge the wrongful nature of the conduct. The committee determined there are no mitigating factors.

After also considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, the committee recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation. However, respondent submitted a letter asserting that he was unaware of the disciplinary proceedings against him. He also asserted that, because he is disbarred, the disciplinary board lacks jurisdiction in this matter and that it is improper for the board to consider his no contest plea in these proceedings.

Disciplinary Board Recommendation

After review, the disciplinary board determined the factual allegations of the formal charges were proven by clear and convincing evidence. The board also determined respondent’s argument that his no contest plea should not be used against |4him in these proceedings overlooks Supreme Court Rule XIX, § 19(A) and § 19(E). Therefore, respondent’s certificate of conviction, as evidenced by the ODC’s exhibits, provides conclusive proof of his guilt of the crimes of unauthorized practice of law, filing false public records, forgery, and public intimidation. Furthermore, respondent’s argument that the board lacks jurisdiction, as he is disbarred, is without merit based on Supreme Court Rule XIX, § 6(A) because his conduct subsequent to his disbarment amounted to the practice of law and constitutes violations of the Rules of Professional Conduct. Under these circumstances, the board agreed with the hearing committee that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

|sThe board also adopted the committee’s conclusion that respondent knowingly and intentionally violated duties owed to the public, the legal system, and the legal profession. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

The board found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1990). The board agreed with the committee that no mitigating factors are present.

After also considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as case law involving similar misconduct, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and | ^mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Here, respondent pled no contest to charges that he practiced law after being disbarred, filed false public records, committed forgery, and engaged in public intimidation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

Respondent knowingly and intentionally violated duties owed to the public, the legal system, and the legal profession. His conduct had the potential to cause serious harm. The baseline sanction for this type of misconduct is disbarment.

Aggravating factors present include pri- or disciplinary offenses, a dishonest or selfish motive, multiple offenses, substantial experience in the practice of law, and illegal conduct. The record does not support any mitigating factors.

Turning to the issue of an appropriate sanction, we find respondent’s conduct falls squarely within Guidelines 8 and 9 of the permanent disbarment guidelines. These guidelines provide as follows:

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Respondent continued to practice law following his disbarment, thereby implicating Guideline 8. He also engaged in conduct involving filing false public records, committing forgery, and engaging in public intimidation. Therefore, Guideline 9 is also applicable, as his misconduct, which is both serious attorney |7misconduet and serious criminal misconduct, was preceded by his disbarment for prior instances of serious attorney misconduct.

Respondent’s misconduct following his disbarment clearly demonstrates he lacks the fitness to engage in the practice of law in this State and, therefore, should not be given an opportunity to seek readmission.

Accordingly, we will adopt the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Pressley Charles Calahan, Louisiana Bar Roll number 20057, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . According to respondent, the charges stemmed from five letters he sent to the owners of a cemetery next to a cemetery he maintains. The letters requested that the owners of the adjoining cemetery stop soliciting donations from the family members of people buried in the cemetery he maintains.

      . Rule XIX, § 19(A) provides in pertinent part:
      Upon learning that an attorney has been convicted of a crime, whether the conviction results from a plea of guilty or nolo contendere or a verdict after trial, disciplinary counsel shall secure a certificate of such conviction from the applicable clerk of court.
      Rule XIX, § 19(E) provides in pertinent part:
      At the hearing before a hearing committee, the certificate of the conviction of the respondent shall be conclusive evidence of his/her guilt of the crime for which he/she has been convicted. The sole issue to be determined at the hearing shall be whether the crime warrants discipline and, if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he/she was convicted as determined by the statute defining the crime.

      . Rule XIX, § 6(A) provides:
      Any lawyer admitted to practice law in this state, including any formerly admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Rules of Professional Conduct or any other Rules or Code subsequently adopted by the court in lieu thereof, and any lawyer specially admitted by a court of this state for a particular proceeding, as well as any lawyer not admitted in this state who practices law or renders or offers to render any legal services in this state, is subject to the disciplinary jurisdiction of this court and the board.


text:
    In re Benjamin PLENER.
    No. 2011-OB-0257.
    Supreme Court of Louisiana.
    Feb. 16, 2011.
   PER CURIAM.

|TAfter reviewing the evidence and considering the law, we conclude petitioner, Benjamin Plener, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

^CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


author: PER CURIAM

text:
    In re Remy J. DONNELLY.
    No. 2010-OB-0847.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   PER CURIAM

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Remy J. Donnelly, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his prior arrests, mostly for alcohol-related offenses, and the reported findings of a substance abuse evaluation by the Lawyers Assistance Program (LAP) indicating his history of alcoholism and the recommendation that he enroll in a treatment program and participate in LAP. Petitioner then applied to this court for admission to the practice of law. On April 27, 2007, we transferred the matter to the Office of Disciplinary Counsel (“ODC”) to conduct an investigation and appointed a commissioner to take character and fitness evidence. In the course of the ODC’s investigation, it was discovered that petitioner did not disclose all of his arrests when he applied to law school in 2008. However, prior to any hearing in that matter, petitioner filed a motion to withdraw his application for admission to the bar. We granted the motion on August 20, 2007. In re: Donnelly, 07-0669 (La.8/20/07), 962 So.2d 1078.

In April 2010, petitioner filed the instant application seeking admission to the practice of law. We then remanded this matter to the Committee on Bar | gAdmissions Panel on Character and Fitness to conduct an investigation and re-appointed a commissioner to take character and fitness evidence.

The commissioner conducted a hearing in December 2010, at which petitioner introduced evidence demonstrating that he had enrolled in and successfully completed an intensive outpatient program for the treatment of substance abuse, as well as a one-year aftercare program. Petitioner also introduced evidence demonstrating his compliance with the terms and conditions of his recovery agreement with LAP.

Following the proceedings, the commissioner filed his report with this court. The commissioner made a factual finding that petitioner carried his burden of proving rehabilitation not only from his alcohol-related issues, but also from the lack of candor he demonstrated in his admitted omissions from his law school application. Based on these findings, the commissioner recommended that petitioner be conditionally admitted to the practice of law, subject to the terms and conditions of his LAP agreement. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation, particularly his credibility findings, and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana on a conditional basis. The term of this conditional admission shall be for the remaining period of petitioner’s LAP agreement, and shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of his LAP agreement. Within thirty days prior to the expiration of the conditional admission, and after consultation with the Executive Director of IsLAP, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Theo GEORGE.
    No. 2011-KK-0325.
    Supreme Court of Louisiana.
    Feb. 23, 2011.
   PER CURIAM.

| jTIie introduction of evidence of unadju-dicated juvenile offenses is allowed under both C.E. arts. 404(B) and 412.2. Whether the introduction of such offenses is allowed, however, is controlled by C.E. art. 403, which reads:

Although 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.

Here, the trial judge found that, although defendant’s prior unadjudicated act of attempted forcible rape, committed when he was fifteen years of age, would be highly probative in defendant’s present trial of forcible rape by revealing defendant’s modus operandi and lustful disposition, introduction of the evidence would be barred because of its prejudicial nature. The judge said:

[I]t is a featherweight balancing test for me, because I find the information to be highly probative. And I also think it’s highly prejudicial. And so if I find both of them to be equal, then which one tips over? And I think it’s the prejudicial effect that I have to lean towards.

| ¡^Article 403, though, does not allow for the exclusion of relevant evidence if its probative value is equal to its prejudice. Instead, the evidence of defendant’s prior unadjudicated act of forcible rape should have been ruled inadmissible only if “its probative value is substantially outweighed by the danger of unfair prejudice.” Therefore, the trial judge abused her discretion by barring introduction of defendant’s prior unadjudicated juvenile act of attempted forcible rape.

The court’s ruling barring introduction of the alleged victim’s testimony as to the unadjudicated offense is reversed.

REVERSED.