author: CHARLES R. JONES, Judge.

text:
    Gary PARTELLO v. NUNEZ CONSTRUCTION.
    No. 2011-CA-0122.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 22, 2011.

      Jack E. Truitt, The Truitt Law Firm, Covington, LA, for Louisiana Construction & Industry Self Insurance Fund.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

|,The Appellant, Louisiana Construction & Industry Self Insurance Fund (LCI), seeks review of the judgment of the Office of Worker’s Compensation (OWC), holding that LCI had to defend Nunez Construction, LLC (Nunez), and that LCI could not deny Nunez insurance coverage. We now reverse and remand, finding that the OWC erred in granting declaratory relief to Nunez, and in failing to render a decision on the confirmation of the motion to confirm default judgement.

LCI was the insurer of Nunez when Gary Partello alleges that he was injured in a work-related accident on or about May 7, 2007, while employed by Nunez through a sub-contractor, Carl E. Woodward, LLC. (CEW). Mr. Partello filed a claim for compensation on October 1, 2007, in the OWC in the Parish of Orleans. Mr. Par-tello later amended his claim and named CEW and LCI as defendants.

LCI subsequently filed a cross-claim (re-conventional demand) against Nunez alleging that it did not have a duty to defend, and that it was entitled to indemnification from Nunez because of the actions of Nunez. LCI further alleged that Nunez failed to comply with the agreed membership terms of LCI, to the |2prejudice of LCI, and that Nunez had to reimburse any amounts LCI may be required to pay.

Nunez was properly served with the cross-claim, but failed to make an appearance in court. LCI obtained a preliminary default judgment against Nunez, and the motion to confirm the preliminary default was heard in June of 2010. Nunez did not appear at the hearing, but CEW did appear and fully participated in the hearing. At the hearing, LCI presented the OWC with testimony from a third party agent from Avizent, Yvonne Rosen, regarding the procedures and policies required to be followed by each member, and the actions and failure to comply by Nunez regarding this particular incident.

In the confirmation hearing for the preliminary default against Nunez, LCI orally requested to expand the pleadings to determine the issue of coverage based on the testimony of Ms. Rosen. CEW objected to the expansion of the pleadings and the OWC sustained the objection. However, the OWC rendered a declaratory judgment finding that LCI may neither avoid coverage nor a defense for its insured, Nunez. LCI timely appealed the judgment of the OWC.

LCI asserts two assignments of error: 1) that the OWC erred in finding that LCI owed a defense and coverage to Nunez because this controversy was not properly before the court based on La. C.C.P. arts. 862 and 1708, since the request to expand the pleadings of LCI were denied; and 2) the OWC erred in failing to confirm the default judgment holding that LCI is entitled to indemnification from Nunez Construction, LLC, to the extent that the actions and failings of Nunez have prejudiced LCI, for any amounts it may be made to pay pursuant to La. C.C.P. arts. 1701 and 1702.

| sIn the first assignment of error, LCI argues that the OWC erred in finding that LCI owes a duty to defend and cover Nunez because the OWC denied the oral request during the preliminary hearing to expand the pleadings to include coverage. LCI argues that the OWC unilaterally went beyond the scope of the pleadings in finding that LCI owed a defense and coverage to Nunez which were not before the OWC.

“In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the ‘manifest error-clearly wrong* standard.” Dean v. Southmark Const., 2003-1015, p. 7 (La.7/6/04), 879 So.2d 112, 117 (quoting Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10). Additionally the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698, p. 7 (La.1/14/94), 630 So.2d 706, 710.

In the present case, the OWC was presented with testimony from Ms. Rosen regarding the policy and procedures for injuries to be covered by the membership in LCI, and the court was also presented copies of the policy as well as the Agreement signed by Nunez regarding these procedures and the consequences of not complying with various provisions within the policy and the Agreement. Part D of the Agreement states:

... A member accepts and agrees to be bound in solido for all obligations of Louisiana Construction & Industry Self Insurers Fund contained in the Indemnity Agreement, and any and all amendments thereto adopted or which may hereafter be adopted by the Board of Trustees of the Fund.

1 ¿Parts W and X state in part:

w) It is acknowledged, accepted and understood that all claims will be reported immediately, (within 48 hours upon a member notification), to the fund or its designee. Failure to report your claims immediately that result inprejudicing [sic] the fund in any way the member will be held liable and responsible to reimburse the fund for all cost related to the claim.
x) It is acknowledge, accepted and understood that if any member in any way prejudices the Fund due to its failure to fully cooperate and/or interferes with the Fund and its designee on any claims investigation for works? compensation benefits for its covered employees the Member will be held liable and responsible to reimburse the fund for all cost and damages related to the claim.

The terms of the policy summarized in the Agreement are clear and unambiguous regarding the duties of Nunez for claims that arise where LCI must investigate and provide coverage in the event of Workers’ Compensation litigation. The Louisiana Civil Code provides that if the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La. C.C. Art. 2046. “Each provision in a contract must be interpreted in the light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. Art. 2050. Whether or not a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 11-13 (La.1/14/94), 630 So.2d 759, 764. The contract in this case was clear and unambiguous where the terms of the policy and the duties of Nunez were agreed upon with a signature by the company. The OWC erroneously disregarded the Agreement and Policy presented by the Appellant, therefore the judgment granted in favor of Nunez was manifestly erroneous or clearly wrong.

IfiThe second assignment of error LCI asserts is that the OWC erred in failing to confirm a default judgment holding that the LCI is entitled to indemnification from Nunez, to the extent the actions and failings of Nunez have prejudiced LCI, for any amounts to be paid. LCI argues that the terms of the Agreement were unambiguous and clear which Nunez had agreed and signed on as being a member of LCI, and that Nunez knew what the consequences were of violating certain terms specified in the agreement. In the agreement each member is obligated to report any accidents to LCI to ensure that LCI can properly investigate the accident and handle the claim. Ms. Rosen, on behalf of Avizent, also testified that the failure of a member to timely report an accident would result in prejudice to LCI. For instance, Ms. Rosen testified that LCI would be limited in time to question witnesses and investigate the accident itself when a member delays notifying LCI. She further testified that LCI would be unable to monitor and/or coordinate the medical treatment of the claimant.

LCI argues that these terms that were agreed to by Nunez are also within the LCI Insurance Policy and the LCI Membership Acknowledgement and Indemnity Agreement. The obligation of the insured to cooperate with the defense of the claim is specified in the Insurance Policy and the Agreement. Despite the language within both of the documents, Nunez did not report the accident until nine months after the accident and after LCI did not receive notice of the claim. Ms. Rosen testified that a representative of Avizent attempted to contact Nunez on numerous occasions by phone and mail, and never received a response. Thus, Nunez failed to cooperate and hampered the defense of the claim by not providing the personal file of Mr. Par-tello or any of the requested information, and Ms. Rosen could not move forward with its investigation of the alleged accident. Additionally, Nunez entered |fiinto an agreement with CEW wherein Nunez agreed to indemnify CEW, which would also negatively impact LCI in the event of an adverse ruling.

LCI also asserts that a breach of these terms of the agreement could result in the denial of coverage, in particular when the insurer is prejudiced, and that the duties of the insured to cooperate with the insurer are implied in the insurance policy itself.

The OWC was silent regarding the second assignment of error which was the issue initially before the court. Therefore, we remand this issue back to the OWC for further review consistent with the findings of this court.

DECREE

For the reasons stated above, we reverse that part of the judgement wherein Louisiana Construction & Industry Self Insurance Fund is held liable to defend and provide coverage to Nunez Construction, and we remand for further review by the Office of Workers’ Compensation consistent with the findings of this court.

REVERSED AND REMANDED


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alvin R. GREEN.
    No. 2010-KA-1355.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 22, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Alvin R. Green, appeals his conviction for possession of cocaine, a violation of La.Rev.Stat. 40:967. After review of the record in light of the arguments of the parties and applicable law, we affirm the defendant’s conviction and remand the matter back to the trial court for imposition of the mandatory fine.

Relevant Facts and Procedural History

On June 22, 2005, the New Orleans Police Department (NOPD) executed search warrants for two residences, 2123 Des-londe Street and 1028 Caffin Avenue. On January 11, 2006, as a result of evidence seized pursuant to the search, the defendant was charged with possession of more than 400 grams of cocaine. He failed to appear for his arraignment on May 19, 2006, and a capias was issued for his arrest. He finally appeared in court on September 4, 2009, and entered a plea of not guilty. The trial court denied the defendant’s motions to suppress the evidence and statement on December 3, 2009. After a two-day trial, a jury found him guilty as charged on January 20, 2010. His motion for a new trial was denied on February 25, 2010, and he was sentenced to serve fifteen years at hard labor, to run concurrently with the sentence imposed in case number 487-734.

12Assignment of Error 1

In his first assignment of error, the defendant argues that the trial court erred in denying his motion to suppress because there was no probable cause to support the search warrant for 1028 Caffin Avenue.

In accordance with La.Code Crim. Proc. art. 162(A), a search warrant is issued “upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts that establish the cause for the issuance of the warrant.” Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Green, 2002-1022, p. 7 (La.12/4/02), 831 So.2d 962, 968 (citations omitted). The magistrate judge’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference and therefore is reviewed under the totality of the circumstances standard to determine only if a substantial basis existed to support the finding of probable cause. Id. at 8, 831 So.2d at 969. There is a presumption that the warrant will be upheld and although the probable cause determination requires something more than bare suspicion, it does not require evidence sufficient to support a conviction and “as the name implies, deals only with probabilities.” Id. at 9, 831 So.2d at 969. Thus, the probable cause determination need not meet the demands of the reasonable doubt or preponderance standards but, rather, involves factual and practical considerations of everyday life “on which average men, and particularly average police officers, can be expected to act.” Id. at 9, 831 So.2d at 970 (citation omitted).

|sIn this case, the affidavit/application for the search warrant completed by Detective Evans includes the following information. On June 20, 2005, detective Evans met with a reliable confidential informant whose information in the past had led to the arrests of individuals involved in illegal narcotics trafficking. The informant told Detective Evans that a black .male named Alvin distributed crack cocaine from two residences, 1028 Caffin Street and 2123 Deslonde Street, on a twenty-four hour basis. Based on the informant’s personal observation within the previous twenty-four hours, customers approached Alvin at either location to purchase their desired amount of cocaine. After receiving this information, Detective Evans made a controlled buy with the informant. He drove the informant to the area of 1028 Caffin Avenue. The informant knocked on the door of the Caffin Avenue residence and Alvin answered the door. After a brief conversation, the informant handed the currency to Alvin who went back inside, returning moments later. After a brief conversation, the two men entered a brown vehicle and drove to 2123 Des-londe Street. Both men exited the vehicle. Alvin entered the residence alone, returning to hand the informant a clear plastic bag. Alvin then went back inside the residence and the informant returned to the undercover vehicle. Once inside, the informant gave Detective Evans a clear plastic bag containing several pieces of what purported to be crack cocaine.

The search warrant affidavit concludes with Detective Evans’ statement that, based on the information received by the informant and corroborated by the controlled buy, it was his belief that crack cocaine and the proceeds from the sales thereof were being secreted within and distributed from both residences, 1028 Caffin Avenue and 2123 Deslonde Street.

|/Thus, Detective Evans’ observations confirmed the credibility of information given by the informant and the informant’s reliability. The defendant was at the Caf-fin Avenue residence when the informant knocked and took the informant’s money while still at the Caffin Avenue residence. The defendant and the informant then proceeded to the Deslonde Street residence where the defendant handed the informant a plastic bag containing several pieces of crack cocaine. Considering the totality of the circumstances set forth in the search warrant affidavit, there was a fair probability that evidence of a crime would be found inside either residence and, accordingly, we find no error in the trial court’s determination that probable cause existed to support issuance of a search warrant or in denying the defendant’s motion to suppress the evidence. This assignment of error is without merit.

Assignment of Error 2

In his second assignment of error, the defendant argues that the evidence is insufficient to support his conviction because it does not show that he had dominion or control over the cocaine seized at 1028 Caffin Avenue. We review for sufficiency of the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Brown,, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Thus, we must determine if “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Id. (citation omitted). In this case, to support a conviction for possession of a controlled dangerous substance in violation of La. Rev.Stat. 40:967, the evidence must show that the defendant knowingly and intentionally possessed the drug, but constructive possession is sufficient to support the conviction. Id. The following 1 factors are pertinent to the determination of whether a defendant exercised the requisite dominion and control: (1) the defendant’s knowledge that illegal drugs are in the area; (2) the defendant’s relationship with one found to be in actual possession; (3) the defendant’s access to the area where drugs were found; (4) the defendant’s physical proximity to the drugs; and (5) evidence that the area was frequented by drug users. Id. (citation omitted).

The following evidence was adduced at trial. The search warrants for the two residences, 2123 Deslonde Street and 1028 Caffin Avenue, were executed simultaneously on June 22, 2005. Detectives Evans and Vappie executed the warrant at the Deslonde Street residence and Sergeant Phillips and Detective Jackson executed the warrant at the Caffin Avenue residence. The defendant and his brother were at the Deslonde Street residence where the defendant lived. No narcotics were found in the residence. Accordingly, Detectives Evans and Vappie relocated to the Caffin Avenue residence, taking the defendant and his brother. At the Caffin Avenue residence, Detective Jackson found a small digital scale, a .22 Derringer handgun, and over $1000.00. A phone card and ID with defendant’s name were found inside the residence along with a picture of the defendant with a woman, who was later identified as Cynthia Winding. Ms. Winding arrived.at the residence shortly afterwards.

The officers called a K-9 unit to the scene. No drugs were found inside the residence. The K-9 alerted the officers to something inside an unlocked shed that was located behind the residence. Inside a Crown Royal bag, the officers found a .380 handgun. Inside a black tool box, they found a plastic bag containing seven individual plastic bags each containing what appeared to be cocaine. After securing the contraband, Detective Evans approached the defendant (who was Rbeing detained) and informed him of what the officers had found. The defendant replied, “I’m going to take my charge.” He was subsequently arrested. No fingerprints were lifted.

Detective Evans took the seized contraband to the Central Evidence and Property Room located at police headquarters. He identified an unsigned copy of the receipt that was given to him by the property room on June 22, 2005, and the return on the search warrant, both of which listed the property seized. Lieutenant Montev-erde, the assistant commander of the property room, testified that the property room was located in the basement of police headquarters and flooded in the aftermath of Hurricane Katrina, destroying the evidence except for the cash and weapons.

Captain Harry O’Neal, an expert in the analysis of narcotics, testified that on June 28, 2005, he personally retrieved the evidence from the property room and performed the analysis on the narcotics seized from the Caffin Avenue residence. The evidence consisted of one clear Ziploc bag containing seven clear plastic bags that each contained a white substance and all seven bags tested positive for cocaine; the combined total weight of the cocaine was 429.6 grams. Captain O’Neal showed the jury a single plastic bag containing a sand-like matter in the amount of 400 grams as a demonstration of the amount of cocaine seized from the Caffin Avenue residence.

Ms. Winding testified that she lived at the Caffin Avenue residence, that she had known the defendant for a long time and that he came by weekly to say hello. She stated that at the time of the search, the two other apartments in her building were occupied and that her neighbors had frequent visitors. According to Ms. Winding, although her neighbors and their visitors sometimes went inside the shed, 17she never saw the defendant go inside the shed. Ms. Winding denied that the money found by police was given to her by the defendant, asserting that she had saved the money by working two jobs. She also denied knowing Detective Weathersby, a detective who stopped by the residence during the search to see what was happening. On rebuttal, however, Officer Evans testified that Ms. Winding told him that the money was given to her by the defendant and that Detective Weathersby was the pastor at Ms. Winding’s church.

Thus, although the defendant testified, denying any knowledge of the drugs found at the Caffin Avenue residence or having made any statement to police, when viewed in the light most favorable to the prosecution the evidence shows that the defendant was frequently at his friend’s residence on Caffin Avenue where his identification card, phone card, and a picture of him with Ms. Winding were found along with evidence indicative of illicit drug trafficking, a small digital scale, a handgun, and more than $1000.00 in cash. In addition, the evidence shows that the shed where the narcotics and another gun were found was unlocked at all times and, as there was no gate, easily accessible from the street. Although Ms. Winding indicated she never saw the defendant enter the shed, her testimony that she worked two jobs suggests that she was frequently absent from the residence and unable to monitor access to the shed.

Finally, there is the defendant’s confession that “I’m going to take my charge” after being informed by Detective Evans of the evidence found at 1028 Caffin Avenue. Though the defendant denied making the statement, the jury clearly found Officer Evan’s testimony more credible and the fact-finder’s credibility determination is entitled to great weight and will not be disturbed unless |8it is contrary to the evidence. State v. Johnson, 2009-0259 (La.App. 4 Cir. 9/16/09), 22 So.3d 205. Here, the jury’s determination is not contrary to the evidence.

Thus, viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found that the defendant knowingly exercised dominion and control over the narcotics found on Caffin Avenue and thát this assignment of error is without merit.

Assignment of Error 3

The defendant’s third assignment of error is two-fold. He asserts that it was error for the district court to permit the State to introduce demonstrative evidence and that it was error for the district court to permit use of other crimes evidence.

First, the defendant argues that even though the chain of custody was not established or a proper foundation made, the district court allowed prejudicial demonstrative evidence to be shown to the jury as a substitute for the missing cocaine. In considering whether demonstrative evidence is admissible over an objection that it is unduly inflammatory, the issue is whether the proffered evidence is relevant to any material issue in dispute, and if so, whether its probative value exceeds its probable prejudicial effect. State v. Manieri, 378 So.2d 931 (La.1979). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. Code Evid. art. 401. To be admissible, demonstrative evidence must be identified and authenticated. RLa.Code Evid. art. 901. Thus, it must first be established that the object sought to be introduced is more probably than not connected with the case, but a lack of positive identification of demonstrative evidence or its chain of custody goes to the weight of the evidence, not to its admissibility, and the connection of the evidence to the case is a factual matter determined by the trier of fact. State v. Richardson, 96-2598, p. 4 (La.App. 4 Cir. 12/17/97), 703 So.2d 1371, 1373 (citations omitted).

In this case, the State introduced demonstrative evidence in the form of a single plastic bag containing a sand-like matter that resembled powdered cocaine. The district court overruled the objection of defense counsel, finding that the evidence was probative. However, the demonstrative evidence did little to prove that defendant possessed the original cocaine found on Caffin Avenue and, thus, its admission was error. However, the error was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (for an error to be harmless, it must be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict). The demonstrative evidence did not contribute to the verdict and there was no attempt by the State to connect the evidence to the crime. The jury knew that the original cocaine had been destroyed and that the use of the demonstrative evidence was only to illustrate the amount of cocaine seized from Caffin Avenue. Further, Captain Harry O’Neal definitively established that the amount of cocaine seized from Caffin Avenue weighed more than four hundred grams and the defendant confessed to possessing the cocaine.

|inNext, the defendant argues that the district court erred by allowing the introduction of other crimes evidence that implied he distributed cocaine. He urges that evidence of the weapons and cash along with Detective Evans’ testimony regarding the “street value” of the seized cocaine, and his testimony as to the origin of the $1000.00 seized from Ms. Winding’s residence were improperly admitted as other crimes evidence.

Notably, no objection was lodged when the evidence of the weapons and cash was admitted. Counsel objected to the detective’s testimony regarding the “street value” of the cocaine on relevancy grounds and as to the origin of the $1000.00 seized from the Caffin Avenue residence on hearsay grounds. Accordingly, because counsel failed to object to the evidence and testimony as impermissible other crimes evidence, these claims have not been preserved for appellate review. La.Code Crim. Proc. art. 841.

The defendant also argues that the district court erred by denying his motion for mistrial after Detective Evans testified regarding a controlled purchase. The evidence at issue concerns Detective Evans’ rebuttal testimony as to what he told Detective Weathersby upon Weath-ersby’s arrival at the Caffin Avenue residence. Specifically, Detective Evans stated:

Chief Weathersby stated that Ms. Winding was in his congregation and asked what was going on. I advised the Chief-Captain at the time that I had made a controlled purchase. I had served him with a search warrant—

Defense counsel immediately objected and moved for a mistrial, arguing that it was inadmissible other crimes evidence. The State countered that no specific reference to the defendant committing another crime was made and the court agreed, noting that it stopped the testimony immediately. _[ult then denied the motion for mistrial and admonished the jury to disregard all testimony concerning the conversation between Detectives Evans and Weathersby.

When a remark or comment is made by a witness that directly or indirectly refers to another crime committed or alleged to have been committed by the defendant and the trial court is not satisfied that an admonition is sufficient to assure the defendant a fair trial, a mistrial may be granted. La. Code Crim. Proc. art. 771; State v. Sartain, 98-0378, p. 10 (La.App. 4 Cir. 12/1/99), 746 So.2d 837, 845. A mistrial is a drastic remedy, however, and only authorized where substantial prejudice will otherwise result to the defendant. State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. This determination (of whether prejudice has resulted) is within the sound discretion of the trial court. Id.; see also State v. Nicholson, 96-2110, p. 13 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 180 (trial court’s ruling on whether or not to grant a mistrial because of comments by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion).

In this case, Officer Evans’ reference to a controlled purchase was an isolated event that did not directly implicate the defendant. Moreover, the jury was immediately admonished to disregard all testimony concerning the conversation between Detectives Evans and Weathersby. As such, the trial court did not abuse its discretion in the denying the motion for mistrial and this assignment of error is without merit.

11 fErrors Patent Review and Assignment of Error Number 4

A review of the record reveals two patent errors. First, the defendant was convicted of possession of more than 400 grams of cocaine, a violation of La.Rev. Stat. 40:967(F)(l)(c) which provides for a mandatory fine of not less than two hundred and fifty thousand dollars, nor more than six hundred thousand dollars. In sentencing the defendant, the district court failed to impose a fine as mandated and, in accordance with State v. Williams, 2003-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, must be remanded for imposition of the mandatory fine.

Second, there is no indication that the defendant waived the mandatory twenty-four delay between the denial of his motion for new trial and sentencing as provided by La. Code Crim. Proc. art. 873. However, the failure to observe the twenty-four-hour delay mandated by Article 873 is harmless where the defendant does not complain of his sentence on appeal. State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991). Although the defendant argues pro se that his sentence of fifteen years is excessive, because no motion to reconsider sentence was filed in district court and no objection was lodged when the sentence was imposed, the defendant is precluded from raising the claim of excessive sentence on appeal. State v. Tyler, 98-1667, p. 14 (LaApp. 4 Cir. 11/24/99), 749 So.2d 767, 775.

Moreover, the defendant received the minimum sentence he could receive as a first offender. The failure of the trial court to observe the mandatory twenty-four hour rule is harmless where the sentence imposed was mandatory in nature. State v. Seals, 95-0305, p. 17 (La.11/25/96), 684 So.2d 368, 380. In this case, because the defendant received the mandatory minimum under La.Rev.Stat. 40:967, the court’s failure to observe the statutory delay is harmless error.

Conclusion

| i;jThe defendant’s conviction and sentence are affirmed and the matter is remanded to the district court for imposition of the mandatory fine.

CONVICTION AFFIRMED; REMANDED.

      . Detective Weathersby came to the scene because a concerned member of the church congregation called him.

      . The defendant also argues for the first time on appeal that proving the existence of the cocaine through the use of an unsigned copy of an evidence card denied him his right to confront the evidence against him in violation of the Confrontation Clause of the Sixth Amendment. We do not consider issues raised for the first time on appeal and, in any event, the Confrontation Clause applies only to witnesses who bear testimony and is therefore inapplicable.

      . Though appellate counsel extensively argues that the chain of custody was not established, the use of demonstrative evidence presumes a break in the chain of custody of the original cocaine, which was destroyed by Hurricane Katrina.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. R.A.L.
    No. 10-1475.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 2011.

      James C. Downs, District Attorney, Ninth Judicial District Court, Monique Y. Metoyer, Alexandria, LA, for State-Appel-lee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant Appellant, R.A.L.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

\,FACTS

On January 24, 2008, a grand jury returned a bill of indictment charging the defendant, R.A.L., with aggravated rape, a violation of La.R.S. 14:42, and aggravated incest, a violation of La. R.S. 14:78.1.

On March 27, 2009, the defendant filed a pro se motion asking that he be granted a new attorney. Following a hearing on April 9, 2009, the court granted that motion.

On March 1 and 2, 2010, the trial court heard several pre-trial motions including a Motion to Exclude Evidence of Lustful Disposition at which the defendant’s oldest daughter, not the victim, testified. The court denied the defendant’s motion.

Later that same day, the defendant entered an Alford plea to a reduced charge of forcible rape and to aggravated incest. He received an agreed-upon sentence of twenty-five years on each count. A written plea agreement, signed by the defendant, as well as a written sex-offender registry notification, also signed by the defendant, were filed into the record in open court at the time the plea was taken.

On March 29, 2010, the defendant filed a motion to withdraw his guilty plea. A hearing was held on May 24, 2010, and the court ordered counsel to submit briefs. The court issued written reasons for judgment on July 26, 2010, and specifically found the defendant’s guilty plea was knowing and voluntary.

The defendant appeals from the trial court’s denial of his Motion to Withdraw Guilty Plea, assigning six assignments of error.

| ASSIGNMENTS OF ERROR
1. Appellant’s Alford pleas were not knowingly and intelligently entered and are thus constitutionally infirm.
2. The plea agreement offered by the state and entered into in this case was invalid and unenforceable at it called for the imposition of a constitutionally excessive sentence for aggravated incest.
3. The trial court erred in advising Appellant of the incorrect penalty range for the offense of aggravated incest.
4. The trial court erred in failing to advise Appellant of the sex offender registration and notification requirements prior to the acceptance of his best interest pleas.
5. The trial court erred in denying Appellant’s Motion to Withdraw Guilty Plea.
6. The double jeopardy clause of both the state and federal constitutions were violated when punishment was imposed upon Appellant for both aggravated incest and the “prohibited act” of forcible rape from the same course of criminal conduct.

ERRORS PATENT

In accordance with La. Code Crim. P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record we find one error patent regarding the sentence for aggravated incest. Because it is also an assigned error, it will be discussed below.

ASSIGNMENT OF ERRORS ONE THROUGH FIVE

The defendant’s first five assignments of error are related as they all pertain to whether his guilty pleas were knowingly and intelligently entered. The defendant’s pleas were entered pursuant to a plea bargain between the state and the defendant. The state agreed to reduce the charge of aggravated rape, which carried a life sentence, to the charge of forcible rape with an agreed-upon sentence of twenty-five years. The defendant also agreed to plead guilty to the offense of aggravated incest | awith a twenty-five year sentence that would be concurrent to the sentence for forcible rape. This was a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), wherein R.A.L. maintained his innocence as to the charges but agreed that entering the plea was in his best interest considering the evidence the state would produce against him and the possible consequences of being found guilty of the offenses charged. R.A.L. signed a Plea of Guilty and Waiver of Rights form, which set forth not only the rights he was waiving by pleading guilty but also the terms of the plea and also signed a Sex Offender Notification form. Both were filed in the record in open court at the time the plea was taken. It is clear from a review of the record that the Sex Offender Notification form was provided to the defendant after the court had accepted the pleas of guilty and imposed the agreed-upon sentences, but during the same proceeding. Neither the defendant nor his attorneys voiced any objection to the court as to the timeliness of the signing or filing of the Sex Offender Notification form.

Louisiana Code of Criminal Procedure Article 559(A) provides that a court “may permit a plea of guilty to be withdrawn at any time before sentence.” A trial court may only set aside a guilty plea after sentencing when the facts surrounding the guilty plea render it constitutionally infirm. State v. Smith, 406 So.2d 1314 (La.1981), State v. Rios, 95-961 (La.App. 3 Cir. 3/6/96), 670 So.2d 708; State v. Filer, 99-626 (La.App. 3 Cir. 9/20/00), 771 So.2d 700, writ denied, 00-2918 (La.9/21/01), 797 So.2d 63. The trial court is vested with broad discretion in determining whether or not to allow the withdrawal of a guilty plea, and its decision will be reversed only if that discretion is abused or arbitrarily exercised. State v. D.G.H., 07-524 (La.App. 3 Cir. 10/31/07), 969 So.2d 1254.

LThe defendant sets forth two separate arguments that he claims renders the guilty pleas constitutionally infirm. The first is that he was misinformed by his attorney, the prosecutor, and the court of the correct sentencing range for the offense of aggravated incest. At the time the guilty plea was entered, the possible penalty for aggravated incest was a minimum of twenty-five years and a maximum of ninety-nine years with at least twenty-five years to be served without benefit of parole, probation, or suspension of sentence. There is no question that this sentencing range is inapplicable to the case before us. The correct sentencing range is that which was in effect at the time of the commission of the crime, between January 1,2000, and December 31, 2003. At the time of the commission of the crime the penalty for aggravated incest was significantly less; La.R.S. 14:78.1(D) provided that “A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.” There were no restrictions on parole eligibility contained in the statute.

The defendant argues that his guilty plea is constitutionally infirm because the plea agreement called for the imposition of a sentence that exceeded the possible maximum sentence provided at law. He argues that because that portion of the plea agreement which provides for a twenty-five year hard labor sentence on the aggravated incest charge cannot be enforced, the law requires the plea, conviction and sentence to be vacated. We disagree.

In State v. Alexander, 95-1099 (La.App. 3 Cir. 12/26/96), 687 So.2d 527, this court addressed the validity of a guilty plea which included a plea bargain sentence which exceeded the maximum legal sentence. There the court stated:

|sWe recognize that an illegal sentence may sometimes invalidate a plea agreement and require that the defendant’s guilty plea be withdrawn. State v. Rios, 95-961 (La.App. 3 Cir. 3/6/96), 670 So.2d 708. When a guilty plea rests on a promise or agreement of the prosecutor or trial court, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. State v. Manchester, 545 So.2d 528 (La.1989); [State ex rel.] Hughes v. Court of Appeal, First Circuit, 526 So.2d 223 (La.1988); State v. Taylor, 535 So.2d 1229 (La.App. 3 Cir.1988).
Nevertheless, we find that the cases in which an illegal sentence resulted in the withdrawal of a guilty plea universally involve illegally lenient sentences. The case sub judice is distinguishable in that it involves an illegally excessive sentence. The defendant in the instant case agreed to a sentence in excess of the sentence he will ultimately receive. The inability of the state to fulfill its promise inures to the defendant’s benefit, and causes no prejudice to defendant.
Since the defendant agreed to the excessive sentence of five years with an additional 160 days, it is only logical to assume that he would have agreed to the lesser sentence of five years. We find that the illegally excessive sentence did not induce the defendant to accept a plea agreement that he would have otherwise refused, and the state’s failure to fulfill its promise of excessive imprisonment is not a material breach of the agreement. See State v. Reeves, 613 So.2d 1061 (La.App. 3 Cir.), writ denied, 619 So.2d 543 (La.1993).

Id. at 528-529.

In Alexander, the court found the consideration for the guilty plea was that the defendant receive a probated sentence— which he did. In the matter before us the consideration for the plea was that the defendant’s sentencing exposure be reduced from a mandatory life sentence on the charge of aggravated rape to a maximum twenty-five years. That was accomplished by amending the indictment to a charge of forcible rape and sentencing the defendant to twenty-five years, concurrent, on each of the offenses. The defendant has shown no prejudice was a result of the error in the sentencing. We find, therefore, this argument is without merit.

We do find, however, that the sentence is illegally excessive and must be | ^corrected. In accordance with La.Code Crim.P. art. 882, we will vacate the twenty-five year sentence imposed for the offense of aggravated incest. The defendant will be sentenced to five years at hard labor for the offense of aggravated incest. This sentence is to run concurrently with the sentence the defendant is serving for forcible rape, and he is to be given credit for time served.

The defendant’s second argument as to the validity of the guilty plea pertains to whether he was properly notified of the sex offender notification and registration requirements at the time the guilty plea was entered as set forth in La.R.S. 15:543.

Louisiana Revised Statutes 15:543(A) provides:

The court shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter. For purposes of this Subsection, the court shall use the form contained in R.S. 15:543.1 and shall provide a copy of the registration and notification statutes to the offender. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders.

The court is required to review the record as a whole and to look at the totality of the circumstances surrounding the plea to determine whether a guilty plea was free and voluntary and whether a defendant’s waiver of rights was knowingly and intelligently made. In State v. Calhoun, 96-786 (La.5/20/97), 694 So.2d 909, the Louisiana Supreme Court stated that the failure of a trial court to advise a defendant of the registration requirement is one factor that can be considered to undercut the voluntary nature of a guilty plea when considering the “totality of the circumstances” under which the plea was taken. The supreme court discussed their ruling in Calhoun in State v. Blanchard, 00-1147, p. 4 (La.4/20/01), 786 So.2d 701, 704 (alteration in original), where they stated:

17With regard to the trial court’s failure to address Louisiana’s sex offender registration and notice provisions at the time respondent entered his pleas, we made our observation as to the importance of a similar failing in Calhoun in the context of testimony by the petitioner at the hearing on his pro se motion to withdraw his guilty plea that he had “learned of the registration requirements only after he had entered his guilty pleas and, then, only after someone had informed his wife of the sex offender registration laws.” Calhoun, 96-0786 at 4, 694 So.2d at 912. However, we cautioned in Calhoun that “[t]o-day, we conclude only that the district court’s failure to timely notify a defendant of the registration requirements is a factor that can undercut the voluntary nature of a guilty plea....” Id., 96-0786 at 9, n. 6, 694 So.2d at 914.

The supreme court went on to determine that under the “totality of the circumstances” in Blanchard the voluntariness of the plea was not undercut by the trial court’s failure to address the sex offender registration and notice provisions at the time the guilty plea was entered and found the trial court did not abuse its discretion by denying the defendant’s motion to withdraw his plea.

In the matter before us, the defendant was represented by two attorneys and had the benefit of an investigator who had been working with his case. Both attorneys were present in court when the plea was entered. The state amended the bill of indictment from aggravated rape to forcible rape and the defendant replied affirmatively that it was his intention to plead guilty to the offenses of both forcible rape and aggravated incest. The defendant identified his signature on the guilty plea form and stated he understood what was on the form. He denied being under the influence of drugs or alcohol. The trial judge informed him of his right to be represented by counsel, of his right to a trial jury, of his right to confront the witnesses against him, of his right to subpoena witnesses, and of his right against self-incrimination. The defendant affirmatively responded that he understood these rights and that by pleading guilty he was waiving those rights. The court further explained that the state would have to prove the defendant’s guilt beyond a reasonable doubt | Rand reviewed the elements of the offenses to which the defendant was pleading as well as the sentencing range for those offenses. The defendant indicated he understood what the state would have to prove and the potential sentences. The state set forth a factual basis for the plea. The defendant denied committing the offenses but indicated to the court he believed it to be in his best interest to plead guilty. The defendant specifically responded to the court that he was pleading guilty to each of the charges. The court accepted the pleas and imposed the stipulated sentences. The defendant further stated he had given up all rights to appeal the convictions and sentences. The state then presented the Sex Offender Registration form which the defendant and judge both signed and which was filed in the record along with the guilty plea form. Mr. Lewis was provided a copy of that form at that time. Following the discussion regarding the sex offender registry form, and its signing and filing, the court asked if the parties had anything else to discuss. Both the state and defense counsel responded in the negative. The defendant raised no questions at that time.

Reviewing the totality of the circumstances, we find there was no abuse of discretion in the trial court’s ruling that the guilty pleas were knowingly and intelligently entered. We note that in the Motion to Withdraw Guilty Plea, it is set forth that the defendant was a special education student and did not understand the ramifications of his pleas or his options. The motion does not specifically claim he did not know he would have to register as a sex offender. At the hearing on that motion, however, it was established that the defendant is a high school graduate. The defendant clearly and correctly explained the definition of “best interest” when questioned regarding his understanding of a “best interest plea.” Although he denied Iflknowing he had to register as a sex offender upon his release, he did not testify that he would not have entered these pleas had he known of that. He voiced no objection during the guilty plea colloquy based on any lack of knowledge. When given the opportunity by the court to bring forth any issues near the end of the taking of the plea he said nothing. Although his sister testified that he consistently, throughout the plea, indicated he did not want to plead guilty, this is not supported by the record before us and is not supported by the testimony of his attorney.

It is clear that the defendant maintains his innocence, hence the Alford plea. It is also clear from a review of the record and the testimony that the defendant decided to plead guilty after realizing his oldest daughter was going to testify against him and that testimony had been ruled admissible at the La.Code Evid. art. 412.2 hearing. It is clear from a review of the record that his motivation in entering the plea was to avoid a life sentence on the charge of aggravated rape and, by his own statements, to keep his daughters from having to testify.

The defendant argues that the sentencing issue of the aggravated incest charge and the timeliness of the defendant learning of the sex offender registry combine to undercut the voluntariness of the plea when considering the totality of the circumstances. We disagree. We have fully discussed the sentencing issue above and will not repeat that discussion here except to note the defendant’s primary concern was to avoid a life sentence of the more serious charge. His willingness to enter a plea to a concurrent twenty-five year sentence certainly indicates he would willingly enter a plea to a concurrent sentence of less than twenty-five years. Further, the defendant was notified of the requirements of the sex offender registry at the hearing where the guilty pleas were taken, and he had the opportunity to raise any objections |inhe had to any lack of knowledge or understanding at that time. He did not do so.

Based on our review of the record we find no abuse of discretion on the part of the trial court in denying the defendant’s Motion to Withdraw Guilty Plea.

ASSIGNMENT OF ERROR SIX

In his final assignment of error the defendant argues that he was subjected to double jeopardy when he entered pleas of guilty and was punished for both aggravated incest and forcible rape since the forcible rape was the “prohibited act” which would have had to have been proved in the prosecution of the aggravated incest charge under La.R.S. 14:78.1(B). If the charges of forcible rape and aggravated incest had arisen from one alleged isolated incident we would agree. That is not the case.

The bill of indictment reflects one count of aggravated rape, later reduced to forcible rape pursuant to the plea bargain, and a separate court of aggravated incest. Each of these offenses was alleged to have occurred during the same time period, January 1, 2000 — December 31, 2003. When reciting the facts to support the plea, the prosecutor stated in part as follows:

BY MS. METOYER: ... you would hear from the victim herself, BL date 12-3 of '91, who would indicate to the Court that during the time approximately, I believe, that she was in the third or fourth grade, that her father began to, ah, rape her, penile to vaginal penetration. That this went on for over a two year period of time in between the 1st day of January of 2000 and 31st day of December of 2003.

The victim’s recorded statement, which appears in the record, reflects multiple offenses that occurred during the time period set forth above. There was not a single incident for which the defendant was charged with two separate crimes. Rather, he was charged with only one count each for separate offenses rather than for all the Inoffenses he allegedly committed. This argument, therefore, lacks merit.

CONCLUSION

We find no abuse of the trial court’s discretion in denying the defendant’s Motion to Withdraw Guilty Plea and affirm the defendant’s convictions. We do find that the defendant’s sentence for aggravated incest of twenty-five years at hard labor exceeds the sentencing range in effect at the time of the offense. In accordance with Louisiana Code of Criminal Procedure Article 882, we hereby vacate the previously imposed sentence for the offense of aggravated incest of twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant is hereby sentenced to five years at hard labor for the offense of aggravated incest. This sentence is to run concurrently with that imposed for the offense of forcible rape. He is given credit for time served. We remand this case to the trial court with instructions to enter the new sentence into the minutes of court.

CONVICTIONS AFFIRMED; SENTENCE FOR AGGRAVATED INCEST VACATED; SENTENCE FOR AGGRAVATED INCEST IMPOSED; AND REMANDED WITH INSTRUCTIONS.


text:
    STATE of Louisiana in the Interest of C.N.
    No. 2011-CA-0074.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

IrC.N., a juvenile, appeals to this Court a judgment of the Juvenile Court for the Parish of Orleans adjudicating her delinquent for the charged offense of La.Rev. Stat. 14:34.3, battery of a school teacher. For the reasons provided below, we affirm.

Factual and Procedural History

Rebecca Sloboda is a teacher at Charles Drew Elementary School on St. Claude Ave. in New Orleans. On March 10, 2010, shortly before the school day was to end, Ms. Sloboda brought her eighth grade class outside for the last ten minutes of class. When she walked out of the school entrance, she saw C.N., a female student (D.O.B. 8/22/1995), fighting with another student, though it appeared to Ms. Sloboda that C.N. was clearly the aggressor. C.N. was on top of the other student, a male, grabbing him by his dreadlocked hair, pushing and hitting him. Ms. Sloboda witnessed C.N.’s actions towards the male student, and immediately ordered her to stop, telling her “you need to stop, you need to let him go.” The fight eventually broke up, and the male student got off the ground and ran back into the school building.

Ms. Sloboda did not make it to the entrance before the male student entered the building, but reached the door before C.N. She stood in the doorway and gave 12additional verbal warnings to C.N. that she needs to stop, and that she cannot go back in the building. C.N. ignored those warnings, and ran over Ms. Sloboda. Ms. Sloboda got up and again told her “[C.N.], you need to stop.” C.N. grabbed Ms. Slo-boda by her shoulders and pushed her forcefully into a wall, and her head bounced against the wall. C.N. then ran into the building.

Ms. Sloboda immediately went upstairs to relay the entire incident to the school principal, and the assistant principal of the school called the New Orleans Police Department (NOPD). Because the incident took place at the very end of the school day, Ms. Sloboda stayed at the school until 6:00 p.m. but left when no officer had arrived by then. On the next morning, March 11, 2010, at approximately 10:17 a.m., NOPD Officer Nathaniel Phillips arrived at the school, and Ms. Sloboda reported the incident to her. An incident report was created. Shortly thereafter, C.N. was placed under arrest for battery of a school teacher.

On March 30, 2010, C.N. was charged in the Juvenile Court for the Parish of Orleans via delinquency petition with one count of battery of a school teacher. La. Rev.Stat. 14:34.8. The petition, on its first page, states that the incident took place on “Thursday, March 11, 2010 at approximately 10:17 a.m.” However, the attached Screen Action Form labels the date of offense as “3/10/10.” On April 21, 2010, C.N. appeared before the juvenile court for an initial hearing and entered a denial of the petitioned charge of battery of a school teacher.

The trial of the matter was held on September 8, 2010. The state first called Officer Phillips to testify at trial. Officer Phillips confirmed going out to Charles Drew Elementary the morning after the incident and preparing an incident report. The state then called Ms. Sloboda, who testified to the incident with C.N. as described above. Following the direct and cross examination of Ms. Sloboda, the Estate sought leave of court to amend their petition to cure a defect of form. The state sought to cure a defect in the petition that stated that the incident occurred on March 11, 2010 at 10:17 a.m., and amend it such that the proper incident date and time of March 10, 2010 at 3:50 p.m. was reflected in the petition. Counsel for C.N. objected to the state’s request, arguing that the proposed amendment is tantamount to “alleging that another battery occurred.” The trial court, after confirming that no changes would be made to the actual charge of battery on a school teacher, granted the state’s request:

The Court: Okay, I am going to grant the State’s request for leave to amend the petition to March 10, 2010 date and to the stated time, which is again, Ms. Cooper?
Ms. Cooper: March 10, 2010 at 3:50 p.m.
The Court: At 3:50 p.m. And the reasons for the leave to amend is that all of the factual information contained and count one of the petition filed on March 30, 2010 is the same factual information and is represented by the State, none of the factual information has changed. The only information that has changed is the date of the incident, which is one date prior to the incident and records from the police report reflect that this matter was actually investigated on March 11th, so the March 11th date is not an unreasonable date to have included in the petition. So, the Court grants the State’s request for leave to amend, (emphasis added).

Next, the defense called C.N. as a witness. C.N. testified that she was pulling the male student’s hair, but that they were “just playing.” After closing statements offered by both parties, the trial court provided additional reasoning as to granting the state’s request to amend their petition:

Okay, the Court notes that earlier it granted the State’s leave to amend the petition to March 10, 2010. And I want to put also in the record that pursuant to the motion and order for subpoena duces tecum dated May 10, 2010 filed by Defense Counsel, it does note the correct date, March 10th date of the alleged incident and notes that the March 11th date is when the incident was actually investigated, so this information, these |4allegations further support the fact that the leave to amend, which was granted by this Court did not result in substantial prejudice in this case, (emphasis added).

The trial court then adjudicated C.N. delinquent for the charge offense of battery on a school teacher. At the disposition hearing of December 1, 2010, C.N. was committed to the Department of Public Safety and Corrections for a term of six months. The juvenile court suspended the entire term of the sentence and placed C.N. on 6 months of active probation. The judge warned C.N. that she was to return home immediately after school, and that her school attendance would be strictly monitored. She was not to be anywhere besides at home when school was not in session. C.N. now appeals to this Court the adjudication of delinquency for the offense of battery on a school teacher.

State’s Burden of Proof, Appellate Standard of Review

The state’s burden of proof in a juvenile proceeding, just as in a criminal proceeding against an adult, is to prove beyond a reasonable doubt that the child committed a delinquent act alleged in the delinquency petition. La. Ch.Code art. 883; State in the Interest of S.O., 2010-0551, p. 2 (La.App. 4 Cir. 9/3/10), 49 So.3d 1, 3. This standard is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of C.B., 2009-1114, p. 6 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 528. As a court of review, we grant great deference to the juvenile court’s actual finding, credibility determination, and assessment of witness testimony. State in the Interest of W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the | .^defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897, p. 18 (La.4/12/05), 907 So.2d 1, 22. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678, (La.2/27/84). This appellate standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 2000-1810, pp. 4-5 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of T.C., 2009-1669, p. 2 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260.

Assignments of Error

Appellant’s first argument on appeal is that of insufficiency of the evidence. Appellant argues that the state failed to prove beyond a reasonable doubt the delinquency of C.N. for the act of battery upon a school teacher. Secondly, | ^appellant argues that the trial court erred in allowing the state to amend the delinquency petition during the middle of C.N.’s trial.

Discussion

Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. La.Rev.Stat. 14:33. Battery of a school teacher is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a school teacher acting in the performance of employment duties. La. Rev.Stat. 14:34.3. Though there are no reported opinions of cases concerning the offense of battery of a school teacher, a simple review of these statutes shows that in order to convict a defendant under La. Rev.Stat. 14:34.3, the state must prove beyond a reasonable doubt: 1) an intentional use of force or violence by the offender; 2) that the use of force or violence was without the victim’s consent; 3) that the offender has reasonable grounds to believe the victim is a school teacher; and 4) the school teacher was in the performance of her employment duties as a teacher.

In the adjudication hearing, it is clear that the trial court found the testimony of Ms. Sloboda to be clearly more credible than that of C.N., who said that Ms. Slobo-da first grabbed her, and that she was merely “playing” with the male student. Ms. Sloboda precisely described the fight she witnessed between C.N. and the male student. She testified that C.N. knocked her down, and then grabbed her by her shoulders and pushed her into a wall, causing her head to slam against the wall as well. This establishes beyond a reasonable doubt an intentional use of force or violence by C.N. The act of pushing Ms. Sloboda against a wall was not 17refuted or questioned by C.N. Secondly, Ms. Slobo-da testified that C.N. did not have her consent to push her or use any other force against her.

Next, we find that Ms. Sloboda’s testimony of the incident clearly established beyond a reasonable doubt that C.N. knew she was a teacher, and that she was acting in her capacity as a teacher. Ms. Sloboda vocalized to C.N. her authority by demanding that she stop fighting and stop running into the school to pursue the male student she was fighting with. We find no abuse of discretion in the trial court’s determination that Ms. Sloboda was a more credible witness than C.N. Appellant’s first assignment of error is without merit.

Next, we find no error in the trial court’s decision to allow the state to amend its delinquency petition during the trial. La. Ch.Code art. 846, which pertains to the amendment of delinquency petitions, provides as follows:

Art. 846. Amendment of petition
A. With leave of court, the petitioner may amend the petition at any time to cure defects of form.
B. With leave of court, prior to the adjudication hearing, the petitioner may amend the petition to include new allegations of fact or requests for adjudication. However, if such leave is granted, the child may request a continuance of the adjudication hearing. A continuance may be granted for such period as is required in the interest of justice.
C. After jeopardy begins pursuant to Article 811, a petition shall not be amended to include new allegations of fact or requests for adjudication.

In the matter sub judice, we agree with the trial court’s conclusion that amending the petition to reflect the correct date of the charged incident is clearly a mere defect of form. No prejudice whatsoever was done onto the juvenile defendant. The police Screen Action Form clearly labeled the date of offense as “3/10/10.” While in certain situations, allowing a prosecuting body to change the |8date of offense in the middle of a trial could have serious consequences to justice, this matter is not one of them.

The state did not attempt to amend the charged offense, or raise a second instance of battery. No new allegations were raised. There has always been one charged offense, and that is the battery of Ms. Sloboda, during the performance of her duties as a teacher. It has been known to all parties at all times that the offense took place on March 10, 2010, at 3:50 p.m. The exact date and time of the offense is not essential to the offense in which C.N. was charged and adjudicated delinquent for. State v. Lawson, 393 So.2d 1260 (La.1981). Therefore, the mistake regarding the date on which the offense occurred could be amended at any time. State v. Brown, 96-2302 (La.App. 4 Cir. 4/9/97), 692 So.2d 1360, 1362-1363. Consequently, appellant’s remaining assignment of error is without merit.

Conclusion

We find no error in the sufficiency of the evidence presented by the state used to prove beyond a reasonable doubt that C.N. is delinquent for the act of battery of a school teacher. We find no error in the trial court’s decision to amend the delinquency petition to reflect the correct date and time of the offense, a date and time already known by all parties.

Decree

The judgment of the juvenile court and disposition of sentence is affirmed.

AFFIRMED.