text:
    STATE of Louisiana in the Interest of D.S.
    No. 11-KA-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Joseph R. McMahon, Jr., Andrew Doss, David Wheeler, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellee.

      Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| gDefendant appeals from his adjudication as a delinquent for armed robbery in violation of LSA-R.S. 14:64, and his disposition of placement in the Office of Juvenile Justice, Secure Care, for three years. For the reasons that follow, we affirm the adjudication and the disposition.

On November 24, 2010, D.S., age 16, was charged by petition in juvenile court with armed robbery in violation of LSA-R.S. 14:64. The adjudication hearing was held on January 19, 2011. During the hearing, D.S. moved for a directed verdict, which was denied. At the conclusion of the hearing, the judge adjudicated D.S. delinquent as charged. After the denial of defendant’s motion for new trial, the court entered a judgment of disposition that D.S. be placed in the Office of Juvenile Justice, Secure Care, for three years. Following the denial of his motion to reconsider and reduce his sentence as excessive, defendant’s motion for appeal was granted.

The following facts were elicited from the trial in this matter. On November 17, 2010, Herman Stevens, an employee of Domino’s Pizza, went to 1641 42nd Street, Apartment B, to deliver pizzas and was the victim of an armed robbery.

|sThe order for the pizza was placed at 5:55 p.m. from phone number (504) — 487— 9752. Mr. Stevens testified that he was supposed to deliver two large pizzas to someone named “Corey.” The total was $30.96, which would be paid for with cash upon delivery. He testified that he arrived at the address and a young black male, who was approximately 16 years old, was standing outside of the apartment. The person asked Mr. Stevens if they were hiring and then asked about the price of the pizzas. Mr. Stevens told him the price was $30.96, and the young person put his hand in his pocket and kept it there.

Mr. Stevens testified that while waiting for the person to hand him the money for the pizzas, he observed two other individuals come from the walkway off of “Newport.” He described the individuals, who were both wearing “hoods.” One of the individuals was black and was described as “kind of tall.” He appeared to be about 18 years old. The other individual was short, about 5'6", and appeared to be either 16 or 18 years old. Mr. Stevens described him as having light skin and weighing between 150 and 175 pounds. He believed the individual was smaller than him. Mr. Stevens said his own weight was 260 and that he was 6'3". He described the individual’s clothing as a cotton white or gray hooded jacket with black pants or jeans. He explained the jacket as a “sweatshirt type” with a zipper. Mr. Stevens testified that he realized that this individual was Spanish when he began speaking with an accent and said, “Give that shit up.”

Mr. Stevens testified that the Spanish individual pointed a gun at him the entire time he was making the delivery. He explained that he went into his bag and got the pizzas. The gunman told him to give the pizzas to the person who had been standing in front of the apartment door. Mr. Stevens gave the pizzas to him and walked away. While walking away, he heard the robber say ‘You give that shit up too.”

14Mr. Stevens testified that he was mostly concerned with the black gun and, therefore, was not looking at the gunman’s face. Mr. Stevens was not able to identify the robber in a photographic lineup because he did not see the robber’s face, but he was able to identify the robber by his voice. At the adjudication hearing, D.S. repeated the statements three times each that Mr. Stevens testified that the Spanish male said during the robbery. Mr. Stevens testified that D.S.’s voice sounded like the voice he heard the night of the robbery. Also, D.S. stood up and Mr. Stevens agreed that D.S. had the same build and was the same height as the Spanish male that robbed him. On cross-examination, Mr. Stevens was asked if he would be surprised to learn that D.S. was 5'2" and weighed 145 pounds, noting that he said earlier that the robber was 5'6" and between 150 and 175 pounds.

Detective Harold Pendergast of the Kenner Police Department was involved in the robbery investigation. He testified that the investigation into the phone number used to order the pizza delivery revealed that the cell phone used belonged to Reinaldo Delgado Sanchez, D.S.’s father. The phone records showed that the number (504)-487-9752 called Domino’s. The records revealed that the address of D.S.’s father was 4201 Arkansas. The records showed that the first call into Domino’s came at 5:45 and then the second call was at 5:52. Domino’s then called the number back at 5:56.

Detective Pendergast went to meet with D.S.’s father at 4201 Arkansas. The homeowner informed him that the father had been renting from her but had since moved out. However, at that time, D.S.’s father pulled up in his vehicle. Officer Junie Munoz was able to serve as a Spanish translator. The State presented a map that included the 4201 Arkansas location as well as the location of the robbery. Detective Pendergast testified that the two locations were both “within the block.” | ^Detective Pendergast learned from D.S.’s father that he had a new phone and gave his other phone to his son who lived at 4111 Delaware Avenue, Apartment 28, with his mother.

Detective Pendergast testified that he went to this address to look for the phone, the clothing described in the robbery, and a possible weapon. He testified that D.S. fit the description of the Spanish male who committed the robbery. Also, this address was about two-tenths of a mile from the location of the robbery.

D.S.’s mother consented to a search of the residence. Detective Pendergast recovered clothing from the residence. He found a gray sweatshirt upstairs on the stair rail near D.S.’s bedroom and a pair of dark jeans or blue jeans inside of D.S.’s bedroom. He believed the sweatshirt, could be cotton, but noted that the sweatshirt did not have a zipper. Although no weapon was discovered, a projectile was found. D.S.’s cell phone was also retrieved. Detective Pendergast testified that this was the phone that was used to make the calls to Domino’s.

D.S. was arrested on charges of armed robbery. Detective Pendergast testified that D.S. told him that they “couldn’t prove anything with his phone number.”

D.S.’s father testified that he had transferred his phone to his son, who lived at 4111 Delaware, Apartment 11, about seven months before. It was transferred to his son before November 17, 2010. The phone number was (504)^487-9752.

Officer Mark Stein of the Kenner Police Department testified that he was a patrol officer assigned to investigate the robbery. He learned from other officers and from the investigation that the location where the robbery occurred was a vacant residence.

D.S. testified that he weighs 145 pounds and is about 5'2" or 5'2 ½". D.S. testified that he never had a gun. He explained the bullet that was found in his |fihouse was from when he was shot in the leg with a “40 Gloek” when he was 14 or 15 years old. He explained that he went to a party and got into an argument with someone. D.S. said that about 5:00 on November 17th, he was playing basketball in the parking lot next to his house with his friend, J.B., against others for money. He said that there was one light, but no big lights to play after dark. He agreed that the time had changed and it would have been dark when he was still playing at 5:55 p.m. He then said there were lights on each side. He said he put his phone on the side when they were playing to make sure it would not break when he was playing. He testified that he could not keep his eye on it when he was playing and that someone could have picked up the phone and made a call. He testified that after he played basketball he went “up the street” and asked a friend if he had his phone and was told that he did not. He took the same route to look for it and when he got back he found his phone somewhere around the basketball court. He said he had no idea who had his phone. D.S. agreed that he heard Mr. Stevens say where the robbery took place and that the robber came from the Newport Place direction, which was where he said he was.

D.S. admitted that he owned black pants, but said the sweatshirt found belonged to his mother. D.S. denied that he made the call to Domino’s pizza and denied robbing Mr. Stevens. He admitted that the phone that made the call was found in his room. He said that he lived about .2 miles from where the robbery took place. He also admitted that his father had lived about 30 feet from the location of the robbery, but did not live there anymore. D.S. said he spent weekends with his father when he did live there. He testified that he would not know if the apartment was vacant. He testified that he was 16 years old and preferred that he be described as Cuban instead of Hispanic.

|7In his first allegation of evidence, D.S. argues the evidence presented did not support the delinquency adjudication and the judge erred in failing to grant a directed verdict of acquittal at the close of the State’s case. D.S. contends that the victim could not make an identification and never expressed positively that D.S.’s voice was the actual voice he heard. He argues that the phone records that were introduced without any evidentiary foundation pursuant to LSA-C.E. art. 803(6) did not establish that it was D.S. that made the calls, even though the records showed the calls were placed by D.S.’s phone. He further contends that the seized clothing did not support a finding that D.S. committed the robbery. He notes that the police did not find a gun. He concludes that only his phone links him to the armed robbery.

“In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” LSA-Ch.C. art. 883. The constitutional standard for testing the sufficiency of evidence requires that the evidence, direct or circumstantial, or a mixture of both, 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 have been proven beyond a reasonable doubt, in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. D.W., 09-855, pp. 5-6 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1053. In a juvenile delinquency proceeding, the State’s burden of proof is the same as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition. Id.

IsThe rule as to circumstantial evidence is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State ex rel D.W., supra. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

In juvenile proceedings, the scope of review on appeal extends to both law and facts. See LSA-Const. art. V, § 10(B); State ex rel. D.F., 08-0182, p. 5 (La.App. 1 Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 08-1540 (La.3/27/09), 5 So.3d 138. The Louisiana Fourth Circuit Court of Appeal has held that the “clearly wrong-manifest error” standard of review should be used to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State ex rel. C.N., 11-0074 (La.App. 4 Cir. 6/29/11), 69 So.3d 711, 714.

Although appellate review of juvenile cases extends to law and fact, the juvenile judge observes the conduct and demeanor of the witnesses and is in a far better position to determine credibility and weigh the evidence. State ex rel. C.J., 10-1588, pp. 3-4 (La.App. 4 Cir. 4/20/11), 63 So.3d 1133, 1137 (quotation omitted). Thus, the appeals court should afford great deference to the judge’s findings of fact and to the judge’s determination of witness credibility and weight to be given their testimonies. Id. The fourth circuit recognized that courts of appeal may not reverse findings of the trial court unless manifestly erroneous or clearly wrong. Id.

D.S. was adjudicated delinquent of armed robbery in violation of LSA-R.S. 14:64. “Armed robbery is the taking of anything of value belonging to another | (|from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” LSA-R.S. 14:64(A). “The elements of armed robbery are: (1) the 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.” State ex rel. C.J., 10-1350, p. 7 (La.App. 4 Cir. 2/9/11), 60 So.3d 46, 51 (quotation omitted). Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Rowan, 97-21, p. 4 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1054.

In the present case, we find that the State presented sufficient evidence of the elements of the armed robbery. The State proved that there was a taking of pizzas, valued at $30.96, from Mr. Stevens who was delivering the pizzas. It demonstrated that the robber took the pizzas by intimidation while armed with a gun. Further, the State established that D.S. was the gunman that robbed Mr. Stevens. The State further proved that D.S.’s phone was used to place the order for delivery of the pizzas to the vacant apartment where the robbery occurred. This phone had been transferred to him by his father and was found in his residence after the robbery. Clothes matching the description of the clothing worn by the gunman were also found in D.S.’s residence, either near his bedroom or in his bedroom, and that there was only a minor discrepancy as to whether the grey sweatshirt contained a zipper. Further, D.S. matched the description of the Spanish male that robbed Mr. Stevens. His weight and height were very similar to that of the person Mr. Stevens described as the robber. The height may have been different, but within a few inches. Mr. Stevens did testify that he was focused on the gun during the robbery. D.S.’s mother and father both lived near the location hoof the robbery, and D.S. admitted he was near the scene of the robbery around the time it took place.

Finally, D.S. repeated the words Mr. Stevens claimed he heard the robber speak. Mr. Stevens stated that D.S.’s voice matched the robber’s voice, which appears to have been distinguishable by his accent. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. S.B., 31,-264, p. 7 (La.App. 2 Cir. 9/25/98), 719 So.2d 1121, 1126-27. Voice identification has been found as reliable and sufficient evidence of identity. See State v. Steward, 42,705, p. 10 (La.App. 2 Cir. 2/13/08), 975 So.2d 829, 835.

Although D.S. presented a hypothesis of innocence in explaining his alibi and the whereabouts of his phone, it appears that the juvenile court did not accept his version as credible. D.S. claimed while he was playing basketball he left his phone unattended, and that anyone could have used the phone to make the call and place the order. After searching for his phone following the basketball game, he discovered the phone when he returned to the “basketball court.” The court decided that the phone evidence was “very damning.” The judge believed D.S.’s story was “ridiculous” that the phone may have been picked up and then he went to search for it in the exact direction that the victim claimed the gunman came from. The judge believed the three were in “cahoots” and set up the robbery. The judge also believed that although the victim was unable to recognize the robber’s face, he was able to pick out a voice and knew the gunman was a Hispanic male. The judge believed the general description matched, noting that the height may have been a few inches off. The judge appears to have blamed any inaccuracy to the fact that the victim was terrified by the gun being pointed at his face. Accordingly, the judge rejected D.S.’s hypothesis of innocence of the possibility that the phone In was taken. The judge was in the best position to make these credibility findings after hearing the testimonies of the witnesses, including D.S.

In conclusion, the entirety of the evidence is sufficient to support the adjudication of armed robbery. This assignment of error is without merit.

In his second allegation of error, D.S. alleges the disposition is constitutionally excessive and was imposed without consideration of mitigating factors in the record. D.S. argues he was 16 years old and had no previous delinquency adjudications. He contends that there is no indication that he is either mentally or socially challenged so that rehabilitation is not possible. He claims the judge failed to consider his personal background or mitigating factors in this case, such as his parental involvement, his current school record, and the lack of any prior offenses, in imposing a term of imprisonment that would mean that D.S. would spend almost all of his remaining teenage years in custody. He argues that instead in her reasons for judgment, the judge focused entirely on the offense, the community, and personal ramifications of such a crime. He concludes nothing in the record supports the sentencing choice.

At the disposition hearing, the probation officer recommended mandatory secure care pursuant to the statutes, for a period of time for the court to determine. The defense did not present any witnesses, although it was given the opportunity to do so. Counsel then requested as lenient of a sentence as possible. The court noted that D.S. held a gun to another person’s head in return for something as foolish as a pizza and believed that he forfeited his right to live in the community. The judge believed this was a serious, heinous, and violent offense that changes the victim’s life forever. The judge believed that he would be a risk to the safety of the community. The judge acknowledged she had to consider what was best for public safety and the community against what was best for D.S. The judge also | ^commented that if the individual had been armed, that D.S. could have been shot, noting that his actions posed danger to the victim and to himself. The court commented that it would not tolerate a teenager in possession of a firearm and using it against a good citizen of the community who was working and trying to do something constructive. After the disposition, counsel orally moved to reconsider and reduce the sentence as excessive. The court denied the motion, and D.S. objected.

The Louisiana Constitution of 1974, Art. I, Sec. 20 prohibits “cruel, excessive, or unusual punishment.” State ex rel. D.W., 09-555 at 21, 47 So.3d at 1061 (quotation omitted). “In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.” LSA-Ch.C. art. 901(A); State ex rel. D.W., supra, (quotation omitted).

Much discretion is granted to the court in juvenile matters due to the special nature of the proceedings. State ex rel. S.J., 10-990 (La.App. 5 Cir. 5/24/11), 66 So.3d 1142, 1145. A juvenile court has much discretion, because of the special nature of the proceedings, but the juvenile court must balance the needs of the child with the best interest of society. State ex rel. T.S., 04-1111, p. 5 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 79-80. “The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.” LSA-Ch.C. art. 901(B); State ex rel. D.W., supra, (quotation omitted). The commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate if, there is an undue risk that during the period of a suspended commitment or probation the |ischild will commit another crime, the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment, a lesser disposition will deprecate the seriousness of the child’s delinquent act, or the delinquent act involved the illegal carrying, use, or possession of a firearm. State ex rel. D.W., 09-855 at 21-22, 47 So.3d at 1061 (citing LSA-Ch.C. art. 901(C)).

In the present case, D.S. was found delinquent of armed robbery in violation of LSA-R.S. 14:64. LSA-Ch.C. art. 897.1(B) provides the following:

After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.

The robbery occurred on November 17, 2010. The record indicates that August 21, 1994 was D.S.’s birthday. As such, it appears that article 897.1(B) would apply to the instant case.

The Louisiana Supreme Court has held that juvenile courts are authorized to use discretion in determining the term of commitment to the custody of juveniles adjudicated guilty of armed robbery. State ex rel. A.M., 98-2752 (La.7/2/99), 739 So.2d 188, 191. We do not find that the court abused its discretion with this disposition. Louisiana Children’s Code article 901, subsections (A) through (D) provide the general disposition guidelines the Court is to consider when imposing a sentence upon a juvenile. D.S. argues that the judge failed to consider mitigating factors applicable to him. However, article 901(E) provides the following:

The general disposition guidelines set forth in Paragraphs A through D of this Article do not apply when a child has been adjudicated a delinquent for the violation of ... R.S. 14:64, armed robbery in accordance with Article 897.1.

[14In the present case, the evidence presented shows that the robbery of the pizza delivery person was planned. The call was placed to Domino’s to lure the delivery person to a vacant apartment location for commission of the robbery. It was staged that someone would be waiting by the apartment for the pizzas. D.S. and another individual appeared to have been watching for the arrival of the pizzas to know when to approach. D.S. wore a “hood” and used a gun to accomplish the crime. Further, this armed robbery involved a 16-year-old who pointed a gun at someone for pizzas. The record reflects there was also a simple battery petition that was dismissed by the State when D.S. was adjudicated guilty of armed robbery.

Given the testimony of the probation officer at the disposition hearing as well as the predisposition investigation report, and considering the judge’s wide discretion afforded in juvenile matters, we find that the disposition imposed was not excessive. As such, this assignment of error lacks merit.

This Court has determined that in juvenile cases, LSA-C.Cr.P. art. 920 mandates an error patent review whether or not defense counsel asked for it. State ex rel. T.S., at 9, 900 So.2d at 82. This review reveals the following.

The judge failed to advise D.S. of the two-year prescriptive period for seeking post-conviction relief as mandated by LSA-C.Cr.P. art. 930.8. We advise D.S., by this opinion, that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 and 922. State ex rel. D.W., 09-855 at 26, 47 So.3d at 1063.

Further, the judge did not sentence D.S. pursuant to LSA-Ch.C. art. 897.1(B), which provides that he should have been confined in secure placement | ^without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. No restrictions of benefits were imposed at the disposition hearing. Likewise, the minute entry of the disposition does not reflect that the disposition included any restriction of benefits. However, these restrictions are mandatory and the trial court is without discretion in their imposition. Accordingly, we remand this matter for correction of the disposition to provide that defendant’s confinement be served without benefit of parole, probation or suspension of sentence.

For the above discussed reasons, the defendant’s adjudication and disposition are affirmed and the matter is remanded for correction of the disposition to provide that defendant’s confinement be served without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.

AFFIRMED AND REMANDED

      . In order to maintain the confidentiality of the proceedings, as required by LSA-Ch.C. art. 412, initials are used for all of the juveniles involved.

      . The Louisiana Children’s Code refers to a judgment of disposition rather than a sentence. LSA-Ch.C. arts. 678(A) and 684(A).

      . It is noted that D.S.’s brief alleges facts unsupported by the record that have not been considered for purposes of this memorandum. Further, evidentiary arguments regarding the phone records are not proper for the first time on appeal. The records were not objected to on this basis at the time of admission.

      . See State v. S.B., supra.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steven HOLDEN.
    No. 11-KA-497.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kenneth Bordelon, Jeffrey Lagarde, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER, Judges.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Steven Holden, appeals his conviction of two counts of armed robbery while armed with a firearm. For the reasons which follow, we affirm defendant’s convictions, but vacate the habitual offender sentence and remand for resentencing.

STATEMENT OF THE CASE

On November 6, 2009, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Steven Holden, and co-defendants, John Robinson and Chadwick Walton, with two counts of armed robbery while armed with a firearm in violation of LSA-R.S. 14:64 and 14:68.3. At the arraignment, defendant pled not guilty. On November 10, 2009, defendant filed various pre-trial motions including a motion to suppress the statement(s), motion to suppress the evidence, and motion to suppress the identification.

On March 4, 2010, the trial court heard and denied defendant’s Motions to Suppress the Statement and Identification. On September 14, 2010, defendant filed a Motion to Reveal the Deal, seeking the identity and content of any deal struck with any State witnesses expected to testify at trial, including co-defendants Robinson and Walton, for the purpose of revealing witness bias. In response, the State notified defendant that with respect to Robinson, the bill of information was amended to two counts of accessory after the fact to armed robbery to which | ^Robinson pled guilty. With respect to Walton, the bill of information was amended to exclude the five-year firearm enhancement pursuant to LSA-R.S. 14:68.3, leaving two counts of armed robbery to which Walton pled guilty. On September 21, 2010, defendant’s motion to reveal the deal was deemed satisfied and this matter proceeded to trial.

A jury trial was held, and the following testimony was presented. Deputy Joshua Collins of the Jefferson Parish Sheriffs Office testified that on September 17, 2009, he was dispatched to the 500 block of Marion Street in Harvey, Louisiana, to meet with two victims of an armed robbery, Stephen Meaux and Christopher Prince. Upon arrival, Deputy Collins spoke with the victims who provided a description of the two suspects who had robbed them at gunpoint and of the vehicle that had been stolen. Once it was discovered that the armed robbery occurred at Gerry’s Place, about four blocks away, Deputy Collins and the two victims relocated back to the scene of the crime where a detailed description of the incident was obtained.

Deputy Collins was advised by a fellow police officer that the stolen vehicle had been located two miles from where the armed robbery had taken place. Upon receiving this information, Deputy Collins drove the two victims to the location of the stolen vehicle and where co-defendant Walton had been apprehended. Without hesitation, both victims made a positive identification of Walton, who matched the description of one of the perpetrators originally given by the victims. Once a positive identification had been made, Deputy Collins received notice that another officer had apprehended a possible second suspect in a white Grand Prix automobile approximately one mile from their current location. Deputy Collins relocated the victims to the location of the white Grand Prix where three ^individuals had been detained. Of the three suspects, the victims positively identified the defendant, Steven Holden, as one of the perpetrators.

Next, Deputy Jeffrey Reynolds testified that at approximately 3:15 a.m. on September 17, 2009, he received a radio dispatch concerning an armed robbery at Gerry’s Place that involved a stolen vehicle. Rather than reporting to the scene of the robbery, Deputy Reynolds drove to the Woodland West Subdivision, a known location for the disposal of stolen vehicles, located approximately five miles from Gerry’s Place. While in search of the stolen vehicle, Deputy Reynolds received a second dispatch call regarding a white Pontiac Grand Prix bearing license plate number SGE-539, reported to have been involved in the robbery. Deputy Reynolds eventually located the Pontiac Grand Prix in the Woodland West Subdivision. After calling additional units for back-up, Deputy Reynolds pulled the vehicle over and handcuffed the occupants who were later identified as John Robinson (co-defendant), Steven Holden (defendant), and Brittney Autry (Robinson’s girlfriend). Deputy Collins then met Deputy Reynolds at the Woodland West Subdivision with the victims, who positively identified defendant, Steven Holden, as one of the two robbers. After arresting the defendant, Deputy Reynolds conducted a search of the Pontiac Grand Prix. Co-defendant, Chadwick Walton’s Louisiana identification card was found inside the vehicle and it was later learned that Mr. Walton was the driver of the stolen vehicle.

Chadwick Walton testified for the State. He testified that he pled guilty to two counts of armed robbery pertaining to the subject incident involving defendant. Additionally, Mr. Walton testified that he was neither offered nor did he receive a deal from the State in exchange for his testimony or his guilty plea, other than the deletion of the five-year enhancement under LSA-R.S. 14:64.3 from the bill of information.

IsMr. Walton went on to testify that he committed the instant crime of armed robbery with his friends John Robinson and Steven Holden (the defendant), on September 17, 2009. He testified that he was “driving around” with John Robinson (the driver), and defendant (front seat passenger), in a white Pontiac Grand Prix. Both he and the defendant were armed. While driving down Eighth Street towards Gerry’s Place, the men saw two white males talking in the parking lot. Having planned on committing a robbery that evening, Mr. Robinson stopped the car while Mr. Walton and the defendant jumped out and ordered the two men to the ground at gunpoint. Mr. Walton searched one of the men, while the defendant searched the other, taking their keys, phones and wallets. Mr. Walton then jumped in the truck of the victim he had just searched and drove off while the defendant went back to the white Grand Prix. Mr. Walton followed the Grand Prix with Mr. Robinson and the defendant inside, back to his house, where they searched the stolen truck for valuables. At this time, Mr. Walton instructed Mr. Robinson and the defendant to follow him to a nearby location where he could ditch the truck and rejoin Mr. Johnson and the defendant in the Grand Prix. However, before reaching that location, a police unit began following them, prompting Mr. Walton to split off from the Grand Prix in an attempt to evade the police officers. At this time he also threw his gun, and the items taken from the victims, out of the truck. After making a turn down a dead-end street, Mr. Walton jumped out of the vehicle and ran but was later apprehended.

One of the victims, Stephen Meaux, testified that in the early morning hours of September 17, 2009, he was having band practice with his friend Christopher Prince at Gerry’s Place. After band practice, Mr. Meaux and Mr. Prince were outside in the parking lot talking when a man with dreadlocks wearing a white shirt and a larger man in a black shirt approached them with guns and ordered them to | figet down on the ground. While on the ground, Mr. Meaux observed Mr. Prince looking up at the suspects who yelled for him to put his head down. Mr. Meaux testified that the man with the dreadlocks took his wallet, phone, and keys. After advising the robbers that the nearby truck was his, the man with the dreadlocks took off in his truck. Mr. Meaux did not know where the defendant fled and testified that he never saw a white Grand Prix.

After the robbers fled the scene, Mr. Meaux and Mr. Prince ran to Mr. Meaux’s grandmother’s house located a few blocks from Gerry’s Place where they notified the police about the armed robbery. The police arrived at Mr. Meaux’s grandmother’s house where they provided the officer with details of the armed robbery. Both Mr. Meaux and Mr. Prince were then driven by the police officer to the location where Mr. Meaux’s truck had been recovered. Mr. Meaux positively identified Mr. Walton, the suspect with the dreadlocks, as the person who had stolen his truck. Mr. Meaux and Mr. Prince were then transported to a second location where three people had been stopped in a white Grand Prix. Mr. Meaux positively identified the defendant as the second robber but was unable to identify Mr. Robinson, the driver, as a participant in the robbery. Mr. Meaux was then taken back to his truck where, upon searching the truck found Mr. Prince’s keys and also discovered that his snare drum, some clothing, speaker cables, and his I-Pod were missing.

Mr. Meaux testified that the area around Gerry’s Place was very well lit, thus, he had no difficulty seeing the men clearly as they came around the corner to rob them. According to Mr. Meaux, he even looked “them straight in the face for a good while” before they demanded that they lay face down on the ground. Mr. Meaux then positively identified the defendant in open court as the heavy set male who had robbed him and Mr. Prince at gun point on September 17, 2009.

17Christopher Prince was the last witness to testify. Mr. Prince testified that on September 17, 2009, he had finished band practice and was talking to Mr. Meaux in the parking lot of Gerry’s Place when he heard footsteps and noticed Mr. Meaux looking at something behind him. Upon turning around, two men with guns approached them and ordered them to remove their belongings from their pockets and get down on the ground. Mr. Prince testified that he was able to see the two men clearly because the area was very well lit and the perpetrators were only four or five feet away from him. Since Mr. Prince didn’t believe the two men were going to shoot him, he made it a point to raise his head from the ground and look directly at them. The bigger of the two men, the defendant, was positively identified by Mr. Prince in open court as the individual who had robbed him at gun point of his wallet, keys and cell phone. According to Mr. Prince, the defendant attempted to steal his car but was unable to unlock it so he took off running while the second robber with dreadlocks, Mr. Walton, drove off in Mr. Meaux’s truck.

Mr. Prince and Mr. Meaux called the police who brought them to the location where Mr. Meaux’s truck had been located by the police. Mr. Prince positively identified Mr. Walton as the perpetrator who had stolen Mr. Meaux’s truck. Mr. Prince testified that he and Mr. Meaux were then transported to a second location where he positively identified the defendant as the other individual who had robbed them.

The defendant rested without presenting any evidence. On September 21, 2010, defendant was found guilty by a twelve-person jury of two counts of armed robbery. On October 12, 2010, defendant filed a motion for new trial, and alternatively to arrest the judgment, which the trial court denied. Thereafter, the trial court sentenced defendant to 50 years at hard labor, on each of the 2 counts, to be served concurrently, in the Department of Corrections, without the benefit of Isprobation, parole, or suspension of sentence. In addition to the 50-year sentences imposed, the court also sentenced the defendant to an additional 5 years at hard labor on each of the 2 counts pursuant to LSA-R.S. 14:64.3, to be served concurrently, and consecutive to the 50 years, without benefit of probation, parole, or suspension of sentence.

On that same date, October 12, 2010, the State filed a multiple offender bill of information alleging the defendant to be a second felony offender. After a hearing was conducted on December 3, 2010, the trial court found that the State had met its burden of proving defendant to be a second felony offender. The trial court then vacated the underlying sentence on count one, and sentenced the defendant to serve 75 years at hard labor, without the benefit of probation or suspension of sentence, to be served concurrently with the 50-year sentence previously imposed on the second count, with credit for time served. On December 6, 2010, defendant filed a Motion to Reconsider sentence which was subsequently denied by the trial court. The defendant now appeals.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that despite having filed a motion to reveal the deal regarding the anticipated testimony of co-defendant, Chadwick Walton, prior to trial, the State failed to disclose the fact that Mr. Walton had been booked on additional felony charges of attempted burglary of an inhabited dwelling and simple burglary, that were pending in the District Attorney’s Screen Division at the time of trial. The only alleged “deal” surrounding the testimony provided by Mr. Walton at trial was a waiver of the five year enhancement under LSA-R.S. 14:64.3. After the trial, the assistant district 19attorney assigned to the case was informed of the pending charges and also learned that the screener had decided to accept charges of attempted simple burglary of an inhabited dwelling and criminal damage in the felony amount of over five hundred dollars. Thus, the defendant asserts that the State’s suppression of this critical impeachment and/or leverage evidence surrounding Mr. Walton’s credibility and motivation to cooperate with the State was a violation of defendant’s due process and constituted grounds for a motion for new trial which was erroneously denied by the trial court.

In response, the State argues that defendant waived his right to assert that a motion for a new trial should have been granted based on the State’s concealment of impeachment evidence, because the defendant failed to assert said objection at trial and thus, waived his right to assert it on appeal. Alternatively, the State argues that had defense counsel cross-examined Mr. Walton with regard to the alleged impeachment evidence withheld from the defendant, such testimony would not have affected the guilty verdict due to the overwhelming evidence of guilt presented at trial. Thus, the State contends that the guilty verdict rendered at trial was not attributable to any alleged error regarding defendant’s confrontation rights.

The basis for defendant’s first assignment of error rests on a wholly new objection raised for the first time by defendant on appeal, thus, we find that defendant’s assignment of error is not properly presented for appellate review. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Uniform Rules, Courts of Appeal, Rule 1-3. In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841(A). |inBoth this Court and the Louisiana Supreme Court have recognized that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999, p. 11 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Winfrey, 97-427, p. 23 (La.App. 5 Cir.10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict, then resorting to appeal on errors that might easily have been corrected by an objection. State v. Rodriguez, 02-334, p. 42 (La.App. 5 Cir.1/14/03), 839 So.2d 106, 134, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061; State v. Simmons, 03-20, p. 31 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1261; State v. Hines, 02-397, p. 25 (La.App. 5 Cir. 9/30/02), 829 So.2d 530, 539. Since the defendant did not raise this objection at trial, he failed to preserve the issue for appellate review.

Moreover, Brady challenges, like the one asserted in defendant’s brief, present fact-based judgments that cannot be adequately first made on appellate review. United States, v. Gonzales, 436 F.3d 560, 580 (5 Cir.2006). That is why Brady challenges must be brought to the district court’s attention, winnowed by the trial judge, and made part of the record through a motion for new trial. See United States v. Chomey, 63 F.3d 78, 80-81 (1st Cir.1995); United States v. Jones, 112 Fed.Appx. 343, 344 (5 Cir.2004); State v. Spears, 350 So.2d 603 (La.1977). In this case, the grounds asserted by defendant in his written motion for new trial filed on October 12, 2010, were based on defendant’s objection that: “The evidence does not support a conviction of the crime(s) charged and further, the State of | nLouisiana has failed to prove beyond a reasonable doubt that the defendant was in fact the person who committed the crime(s); The guilty verdict is contrary to the law and evidence. Further, the State presented insufficient evidence of crime(s) being committed by defendant.” Defendant’s written motion for a new trial is void of defendant’s newly asserted objection, raised for the first time in his appeal, that a new trial should be granted premised upon the State’s failure to disclose impeaching evidence in a timely fashion. Moreover, it is important to note that after a lengthy hearing surrounding the alleged “impeachment evidence” regarding the State’s witness, Mr. Walton, defense counsel did not object to the newly discovered evidence, nor did he request the trial court take same into consideration with regard to his pending motion for new trial. In fact, when offered the option for oral argument at the hearing on defendant’s motion for new trial, the defense chose to rest on his written motion.

Further, the trial court’s ruling addressed only the objections raised in defendant’s written motion. Specifically, the trial court ruled “that there was, indeed, enough evidence to support the conviction of a crime, and that the State did meet its burden of proof regarding the identity of the perpetrators of this crime. The Court finds that the Guilty Verdict is not contrary to the law and evidence; therefore, the Motion for New Trial is going to be denied.”

Thus, because defendant made no objection to the State’s alleged failure to disclose impeachment evidence in the trial court, we find that the defendant has failed to preserve this issue for review on appeal.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that it was error for the trial court to fail to declare a mistrial when the jurors indicated that they could not reach a verdict. Specifically, the defendant asserts that after having received a note 112from the jury stating “[w]e cannot come to a decision. We are hung,” it was reversible error for the trial court to instruct the jury of the following: “All right. Let me impress upon you that you have only been deliberating for two hours. I also want to impress upon you the importance of this case and I am going to urge you to come to an agreement. And I am going to return you to deliberate.” According to the defendant, the trial court should have accepted the fact that the jury was deadlocked and ordered a mistrial. Instead, the defendant argues the trial court gave the jury an improper Allen charge which ordered them to come to an agreement.

In response, the State argues that because no objection was made at trial to the instructions given to the jury, nor was a request for a mistrial ever made, defendant waived his right to assert this alleged trial court error on appeal. Additionally, even if not proeedurally barred, the State further argues that the judge’s jury instructions were permissive and did not rise to the level of an improper Allen charge, nor did they imply that the court would not accept a mistrial.

In State v. Eugene, 03-1128 (La.App. 5 Cir. 1/27/04), 866 So.2d 985, writ denied, 04-0515 (La.1/14/05), 889 So.2d 263, this Court found that the defendant is not entitled to raise, for the first time on appeal, that the trial judge erred in giving the jury a prohibited Allen charge after the jurors declared they were deadlocked, since defendant did not preserve it for appeal by making a contemporaneous objection or a timely motion for mistrial. In the present case, the jurors retired to deliberate at 7:27 p.m. After deliberating for less than two hours, the jury sent out a note to the judge which read “we cannot come to a decision. We are hung.” Before bringing the jury out, the trial judge advised all | iscounsel of the jury instruction she intended on providing to the jury. With no objection lodged by either side, the trial judge instructed the bailiff to bring the jury back into the courtroom where, at 9:24 p.m., she provided them with the following instructions:

THE COURT: All right. Everyone be seated. Ladies and Gentlemen, I have received a note from you that says we cannot come to a decision, we are hung. Is that correct?

(ALL INDICATE AFFIRMATIVELY)

THE COURT: All right. Let me impress upon you the fact that you have only been deliberating for less than two hours. I also want to impress upon you the importance of this case and I am going to urge you to come to an agreement. And I am going to return you to deliberate.

Once again, no objection was lodged by the defendant with regard to the trial court’s instructions, nor was a mistrial requested. At 10:30 p.m. the jury returned a verdict of guilty of armed robbery on each of the two counts charged.

In this case, defendant failed to make a contemporaneous objection to the judge’s jury charge at trial, and/or assert a timely motion for a mistrial, thus, defendant has failed to preserve for appellate review his claim that the trial judge erred in giving the jury a prohibited Allen charge after the jurors declared they were deadlocked during deliberations. LSA-C.Cr.P. art. 775; LSA-C.Cr.P. art. 841. Thus, we find the defendant’s second assignment of error is not properly before this Court.

ERROR PATENT DISCUSSION

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

|14We find the trial court failed to render a determinate habitual offender sentence as required by La.C.Cr.P. art. 897.

After finding defendant to be a second felony offender, the trial court vacated the underlying sentence on count one, and sentenced the defendant to serve 75 years at hard labor, without the benefit of probation or suspension of sentence, with the sentence to be served concurrently with the 50-year sentence previously imposed on the second count, with credit for time served. However, the trial court did not specify whether the defendant’s habitual offender sentence on count one included an enhanced term of imprisonment under LSA-R.S. 14:64.3, which renders this sentence indeterminate.

LSA-R.S. 14:64.3 provides, in pertinent part:

“When a dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.”

After a review of the record, we find defendant’s sentence is indeterminate because the trial judge did not state whether the 75-year sentence included the firearm enhancement. Because the sentence imposed by the court is indeterminate and constitutes error patent, we vacate the sentence, and remand for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under LSA-R.S. 14:64. 3.

Accordingly, we affirm defendants convictions on counts one and two, affirm defendant’s sentence on count 2, and vacate defendant’s 11fihabitual offender sentence and remand the matter to the trial court for resentencing.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED;MATTER REMANDED FOR RESENTENCING

      . The trial court failed to specify whether the defendant’s habitual offender sentence on count one included an enhanced term of imprisonment under LSA-R.S. 14:64.3 which renders this sentence indeterminate. See error patent section for further discussion.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . La.C.Cr.P. art. 879 provides: "If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence."


author: JUDE G. GRAVOIS, Judge. JOHNSON, J.,

text:
    Judith A. FUNDERBURG v. SUPERIOR ENERGY SERVICES, INC.
    No. 10-CA-517.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2011.

      Piercy J. Stakelum, III, Paola P. Corra-da, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    David G. Radlauer, Judith V. Windhorst, Neely Sharp Griffith, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

IgPlaintiff Judith A. Funderburg appeals the trial court’s grant of summary judgment in favor of defendant, Superior Energy Services, Inc. (“Superior”), dismissing her claim against Superior for the tort of conversion of certain stock options that were awarded to her in a community property partition agreement she entered into with her former husband, Charles Funder-burg. After thorough consideration of the record and the applicable law, for the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of Superior.

FACTS AND PROCEDURAL BACKGROUND

Charles Funderburg and Judith Funder-burg were divorced in April of 2003 after almost 29 years of marriage. During their marriage, the Funderburgs lived under the legal regime of community property. In September of 2003, they entered into a community property partition agreement, which was homologated and approved by the trial court assigned to their divorce proceeding through a consent judgment rendered on September 26, 2003. In the partition agreement, Mr. |sFunderburg granted Mrs. Funderburg “[a]ny and all stock options of Superior Energy Services, Inc., registered in the name of CHARLES PETER FUNDERBURG.” These stock options had been granted to Mr. Funder-burg in a Stock Option Agreement between Superior and Mr. Funderburg dated July 15, 2000. Mr. Funderburg received the stock options as a result of his employment with Superior. The stock options were exercisable until July 15, 2005.

In February of 2004, Mrs. Funderburg contacted Superior and inquired about the stock options. Superior initially refused to send Mrs. Funderburg any information about the stock options because they had been granted to Mr. Funderburg and remained in his name on the company records. On February 17, 2004, at Superior’s request, Mrs. Funderburg faxed to Julie Isacks, an employee of Superior, a portion of the partition agreement, including the part that referenced the transfer of the stock options to her. On that same date, Ms. Isacks faxed a copy of the Stock Option Agreement to Mrs. Funderburg. She gave it to her financial advisor. She did not contact Superior further at that time regarding the Stock Option Agreement or the stock options.

On August 30 and 31, 2004, Mr. Funder-burg exercised the stock options, in contravention of the partition agreement and the consent judgment, netting him $12,417.41. In early September of 2004, Mrs. Funder-burg learned that Mr. Funderburg had exercised the stock options. She subsequently filed this lawsuit against Superior for conversion. Specifically, Mrs. Funder-burg claims in her suit that she was the owner of the stock options in question through the partition agreement and the consent judgment, and that Superior illegally converted the stock options by allowing Mr. Funderburg to exercise them. After Superior |4prevailed on an exception of non-joinder of an indispensable party, Mrs. Funderburg filed a supplemental and amending petition adding Mr. Funderburg as a party-defendant to her lawsuit.

In due course, Mrs. Funderburg filed a Motion for Partial Summary Judgment seeking a ruling from the trial court that a non-assignability clause contained in the Stock Option Agreement did not bar the transfer of the stock options to her through the partition agreement, nor her right to subsequently exercise the stock options. Superior countered with its own Motion for Summary Judgment, asserting that because the stock options granted to Mr. Funderburg were non-transferable, Mrs. Funderburg never obtained the right to instruct Superior as to their exercise, and thus there could be no conversion. The trial court heard both motions on November 11, 2009, and, after taking the matter under advisement, rendered a judgment on December 3, 2009 denying Mrs. Funderburg’s motion and granting Superior’s motion. The trial court issued written reasons for judgment on December 21, 2009. This timely appeal followed.

On appeal, Mrs. Funderburg argues that the trial court erred by concluding that the stock options were non-transferable. She argues that the trial court erred in relying on In re Succession of Moss, 00-62 (La. App. 3 Cir. 6/21/00), 769 So.2d 614, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462, where the Third Circuit held that restrictions on stock transfers in a closely held corporation are binding on a non-contracting spouse as a community obligation, which case she argues is distinguishable from this case. She also argues that Mr. Funderburg was enjoined from exercising the stock options as a result of various temporary restraining orders and injunctions she obtained against Mr. Fun-derburg that she sent to Superior. Mrs. Funderburg also argues that both the Stock Option Agreement and |sthe Stock Incentive Plan under which it was issued allow for the transfer of the stock options within the context of a community property partition. Finally, Mrs. Funderburg argues that the trial court erred in interpreting LSA-C.C. art. 2653, claiming that her alleged lack of notice of the non-transferability clause contained in the Stock Option Agreement made the non-transferability clause unenforceable as to her. Mrs. Funderburg concludes that there are genuine issues of material fact, thereby precluding the rendering of summary judgment herein in favor of Superior.

ANALYSIS

In determining whether summary judgment is appropriate, the appellate court reviews evidence de novo. Under such standard, the appellate court looks at pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in making an independent determination that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. In conducting this de novo review, we are guided by the burdens of proof imposed upon a movant in a motion for summary judgment, which are set forth in LSA-C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Superior’s Motion for Summary Judgment asserted that it was entitled to judgment as a matter of law because Mrs. Funderburg will not be able to meet her | fiburden of proving the necessary “posses-sory interest” element of conversion. Superior argued that the non-transferability clause contained in the Stock Option Agreement precluded the transfer of the stock options to Mrs. Funderburg, the partition agreement and the consent judgment notwithstanding, and thus she never obtained the right to exercise the stock options.

The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion.

Louisiana civil law conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.

The Stock Option Agreement granted Mr. Funderburg the “right, privilege and option” to purchase a certain number of shares of Superior stock at a specified price per share for a period of five years from the date of issue. Paragraph VI of the Stock Option Agreement, entitled “Non-Transferability,” states:

The Option granted hereby may not be transferred, assigned, pledged or hy-pothecated in any manner, by operation of law or otherwise, other than by will or by the laws of descent and distribution and shall not be subject to execution, attachment or similar process.

|7The Stock Option Agreement was issued under the authority of Superior’s 1999 Stock Incentive Plan. The Stock Option Agreement references the Stock Incentive Plan both in its title and in several of its paragraphs. Particularly, Paragraph VII of the Stock Option Agreement, entitled “Inconsistent Provisions,” states:

The Option granted hereby is subject to the provisions of the [Stock Incentive] Plan as in effect on the date hereof and as it may be amended. In the event any provision of this Agreement conflicts with such a provision of the [Stock Incentive] Plan, the [Stock Incentive] Plan provision shall control.

The Stock Incentive Plan was administered by “the compensation committee of the Board of Directors of Superior, or by a subcommittee of the compensation committee” (hereinafter, the “Plan Committee”). Section 10.2 of the Stock Incentive Plan provides:

10.2 TRANSFERABILITY OF INCENTIVES. Options granted under the Plan shall not be transferable except:
(A) by will;
(B) by the laws of descent and distribution; or
(C) in the case of stock options only, if permitted by the Committee and so provided in the Incentive Agreement [i.e., the Stock Option Agreement] or an amendment thereto, (i) pursuant to a domestic relations order, as defined in the Code, (ii) to Immediate Family Members, (iii) to a partnership in which Immediate Family Members, or entities in which Immediate Family Members are the sole owners, members or beneficiaries, as appropriate, are the only partners, (iv) to a limited liability company in which Immediate Family Members, or entities in which Immediate Family Members are the sole owners, members or beneficiaries, as appropriate, are the only members, or (v) to a trust for the sole benefit of Immediate Family Members. “Immediate Family Members” shall be defined as the spouse and natural or adopted children or grandchildren of the participant and their spouses. To the extent that an incentive stock option is permitted to be transferred during the lifetime of the participant, it shall be treated thereafter as a non-qualified stock option.
Any attempted assignment, transfer, pledge, hypothecation or other disposition of an Incentive, or levy or attachment or similar process \ ¿upon the Incentive not specifically permitted herein, shall be null and void and without effect.

(Emphasis added.)

Corporate regulations cannot interfere with the operation of laws that establish community ownership rights. Mr. Funderburg was granted the stock options during the existence of the couple’s community property regime. Under Louisiana’s community property laws, prior to execution of the partition agreement, Mrs. Funderburg owned an undivided one-half community interest in the stock options. In the partition agreement, Mr. Funder-burg transferred his undivided one-half community interest in the stock options to Mrs. Funderburg. Superior does not dispute that the stock options qualified as community property. Superior contends, however, that Mrs. Funderburg’s ownership rights in the stock options, both prior to and after execution of the partition agreement, did not give her the right to exercise the stock options.

Superior relies on In re Succession of Moss, supra, to support its argument that the non-transferability clause contained in the Stock Option Agreement is binding on Mrs. Funderburg. In In re Succession of Moss, the decedent husband and his business partner formed a closely held corporation during the decedent’s marriage. A “transfer upon death” restriction that was contained in the company’s Articles of Incorporation and in a Shareholders’ Agreement between the shareholders required that upon the death of either shareholder, his stock had to be offered for sale to the surviving shareholder at book value. The decedent’s wife argued that under Louisiana’s community property laws, she was not bound by the “transfer upon death” restriction. The Third Circuit held otherwise, finding that although the decedent’s wife was entitled to ownership of her community interest |9in the stock, her ownership was subject to the transfer restriction, and thus she was required to offer the stock for sale to the surviving shareholder at book value.

We find that under the rationale of In re Succession of Moss, supra, Mr. Funder-burg could indeed transfer and assign his undivided one-half community interest in the stock options to Mrs. Funderburg through the partition agreement; such transfer and assignment was, however, burdened by and subject to all of the terms and conditions contained in the Stock Option Agreement and the Stock Incentive Plan.

According to Section 10.2 of the Stock Incentive Plan, quoted above, the stock options in question were not transferable except under certain limited circumstances and conditions as provided for therein, including, as noted above, transfers pursuant to a “qualified domestic relations order, as defined in the Code,” to an “immediate family member,” specifically including a spouse, “if permitted by the [Plan] Committee and so provided in the Incentive Agreement [i.e., the Stock Option Agreement] or an amendment thereto”. Thus, by the terms of the Stock Incentive Plan under which the Stock Option Agreement was issued, the stock options were in fact transferable, but only subject to and in accordance with the procedures, terms and conditions as described in Section 10.2 of the Stock Incentive Plan.

This conclusion that the stock options were indeed transferable under certain procedures, terms and conditions does not compel, however, a finding that, under the particular facts of this case, Superior converted the stock options in question. In order for there to have been a conversion by Superior, Mrs. Funderburg first has to prove that she had a possessory interest in the stock options, i.e., that she had the right to exercise the stock options at the time Mr. Funderburg exercised them. For Mrs. Funderburg to have obtained the right to exercise the stock options, Section | in10.2 of the Stock Incentive Plan, quoted above, required not only that a qualified domestic relations order be issued and that the transferee be someone described by Section 10.2, but also that the Plan Committee permit the transfer. In other words, an application requesting an amendment to the Stock Option Agreement naming Mrs. Funderburg as the op-tionee thereof in place of Mr. Funderburg had to be made to and approved by the Plan Committee for the transfer of the stock options from Mr. Funderburg to Mrs. Funderburg in the partition agreement to be effective as to Superior.

From the record, it is clear and undisputed that Mrs. Funderburg made no such application to the Plan Committee. On February 17, 2004, Mrs. Funderburg faxed Ms. Isacks at Superior several pages of the partition agreement, though not a complete copy. Shortly thereafter on that same day, Ms. Isacks faxed Mrs. Funder-burg a copy of the Stock Option Agreement. In various depositions admitted as exhibits to the motions for summary judgment, Mrs. Funderburg admits that after she received the faxed Stock Option Agreement from Ms. Isacks, she made no other contact with Superior through the time Mr. Funderburg exercised the stock options. More than six months after Mrs. Funderburg received the faxed Stock Option Agreement from Ms. Isacks, Mr. Fun-derburg contacted Superior and exercised the stock options. Such action by Mr. Funderburg is highly reprehensible in light of the partition agreement he entered into with Mrs. Funderburg and the consent judgment. However, because it is undisputed from the record that no further steps were taken by Mrs. Funderburg to comply with Section 10.2 of the Stock Incentive Plan, the stock options were never in fact transferred to Mrs. Funderburg’s name on the books of Superior, and thus she never obtained the right to exercise them. Accordingly, Mrs. Funderburg will not be able to prove as a matter of law that Superior converted the stock options.

|nMrs. Funderburg also argues that the various temporary restraining orders and injunctions that she sent at different times to Superior sufficiently put Superior on “notice” that Mr. Funderburg no longer had the right to exercise the stock options. It is unnecessary, however, for this Court to determine the effective life and enforceability of those injunctions or whether Mrs. Funderburg properly raised this issue in the trial court. Clearly, as noted above, Section 10.2 of the Stock Incentive Plan required Mrs. Funderburg to make an application to the Plan Committee requesting an amendment to the Stock Option Agreement naming her as the op-tionee thereof in place of Mr. Funderburg for the transfer of the stock options from Mr. Funderburg to her in the partition agreement to be effective as to Superior, which, as noted above, she undisputedly did not do.

Mrs. Funderburg also claims that under LSA-C.C. art. 2653, she is not bound by the non-transferability clause contained in the Stock Option Agreement because she did not have notice of the same when the partition agreement was executed. The deposition testimony attached to the motions for summary judgment clearly establishes that well before she executed the partition agreement, Mrs. Funderburg in fact had possession of a copy of the Stock Option Agreement in the family safe. She admitted that she retained possession of the family safe and the copy of the Stock Option Agreement contained therein once Mr. Funderburg left the family home. Having admitted prior possession of a copy of the Stock Option Agreement, Mrs. Funderburg cannot under the particular facts of this case claim lack of knowledge or notice of the provisions of the Stock Option Agreement.

| T ¡¿Based on our thorough consideration of the record and the applicable law, we find that no genuine issues of material fact exist as to Mrs. Funderburg’s lack of pos-sessory rights with respect to her right to exercise the stock options in question. Thus, she will not be able to prove that the stock options transferred to her in the partition agreement with Mr. Funderburg were converted by Superior. Accordingly, Superior is entitled to judgment as a matter of law on its Motion for Summary Judgment.

CONCLUSION

For the above reasons, we affirm the trial court’s grant of summary judgment in favor of Superior.

AFFIRMED

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

hi respectfully disagree with the majority and would reverse the granting of summary judgment in favor of defendant, Superior Energy Services, Inc. (“Superior”). I believe there are genuine issues of fact that preclude summary judgment at this time.

The basis of Superior’s motion for summary judgment hinged on whether Mrs. Funderburg had a possessory interest in the stock option for purposes of conversion. Superior’s argument rested solely on the premise that the non-transferability clause in the Stock Option Agreement between Mr. Funderburg and Superior prohibited the transfer of the stock options. As such, Superior claimed Mr. Funderburg could have never validly transferred the stock options to Mrs. Funderburg, even through a community property partition agreement. Superior maintained that nothing in the community property laws gave Mr. Funderburg the right to ignore the express terms of the contract, which prohibited the assignment of his contract interests.

Because corporate regulations cannot interfere with the operation of laws that establish community ownership rights, the non-transferability clause in the Stock Option Agreement could not and did not prevent Mr. Funderburg from transferring the stock option to Mrs. Funderburg in a community property partition agreement. Thus, I do not find Superior is entitled to judgment as a matter of law on the issue of whether Mrs. Funderburg could |2meet her burden of proving a possessory interest in the stock option for the purposes of conversion.

To support the granting of summary judgment in favor of Superior, the majority relies on Paragraph 10.2 of the 1999 Stock Incentive Plan to find Mrs. Funder-burg did not comply with Superior’s requirements to properly transfer the stock option and, thus, she did not have a pos-sessory interest at the time of the alleged conversion. Superior never made this argument either in its motion for summary judgment or at the motion hearing. Because Superior’s sole argument was that the stock option could never be transferred, there is no evidence regarding the procedure required to comply with the part of Paragraph 10.2 relied upon by the majority that purportedly allows for the transferability of the stock option “if permitted by the Committee and so provided in the Incentive Agreement or an amendment thereto ... pursuant to a domestic relations order.”

I find too many questions of fact exist at this time regarding the applicability of Paragraph 10.2. While the majority suggests the onus was on Mrs. Funderburg to comply with Paragraph 10.2, there is no evidence regarding who is responsible for initiating the approval and/or amendment process or whether there is a triggering event that initiates the process. Additionally, there is no evidence regarding the time frame for the process. Further, because there is no evidence regarding the approval process, questions exist as to whether the process contradicts community property laws. For example, if the Committee is allowed to reject the transfer between spouses, such action potentially interferes with community property laws. Absent evidence of the approval and/or amendment process under Paragraph 10.2, this Court cannot determine whether Superior is entitled to summary judgment as a matter of law. In my opinion, these issues, which were never | praised by Superior in its motion for summary judgment, present issues of fact that preclude summary judgment at this time.

For these reasons, I would reverse the granting of summary judgment in favor of Superior.

      . Mr. Funderburg’s employment with Superi- or ended in July of 2001.

      . Mr. Funderburg netted this amount in a cashless transaction in which the appropriate number of shares of Superior stock were sold for the market stock price at the time the stock options were exercised, with the excess amount received over the stock option price being given to Mr. Funderburg.

      . Mrs. Funderburg has only appealed the trial court’s grant of Superior’s Motion for Summary Judgment. She has not appealed the trial court’s denial of her Motion for Partial Summary Judgment.

      . Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So.2d 1229, writ denied, 96-0693 (La.4/26/96), 672 So.2d 910.

      . Alvarez v. Ciasen, 06-304, p. 3 (La.App. 5 Cir. 10/31/06), 946 So.2d 181, 183.

      . Ultra Fabricators, Inc. v. MC Bank and Trust Company, 97-1947 (La.App. 1 Cir.9/25/98), 724 So.2d 210, 214.

      . Dual Drilling Co. v. Mills Equip. Investments, Inc., 98-0343, 98-0356 (La.12/1/98), 721 So.2d 853, 857.

      . Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 173 (La.1956).

      . The issue of whether the injunctions were properly before the trial court was contested by the parties.

      . C.C. art. 2653 states: "A right cannot be assigned when the contract from which it arises prohibits the assignment of that right. Such a prohibition has no effect against an assignee who has no knowledge of its existence.”


author: MARC E. JOHNSON, Judge.

text:
    SHOW-ME CONSTRUCTION, LLC v. WELLINGTON SPECIALTY INSURANCE COMPANY, Waguespack and Associates Insurance Agency, Timothy Waguespack, and Star Professional.
    No. 11-CA-528.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2011.

      Kearney S. Loughlin, Attorney at Law, New Orleans, LA, for PlaintiffiAppellant.
    George P. Hebbler, Jr., Kelly F. Walsh, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

hThis appeal arises from the sustaining of peremptory exceptions of no right of action and no cause of action against Appellant/Plaintiff, Alan Whitesides, and in favor of Defendant, Wellington Specialty Insurance Company (‘Wellington”), in the 24th Judicial District Court, Division “B”. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Whitesides formed Show-Me Construction, L.L.C. (“Show-Me”) for the purpose of doing business repairing and renovating Hurricane Katrina damaged homes in the New Orleans area, which included the repair and replacement of roofs. In April 2006, Show-Me was engaged in repairing the damaged home located at 4644-4646 Fairfield Drive in Metairie, Louisiana. Show-Me hired a subcontractor, Braulio Estrella d/b/a Star Professional Roofing to assist in the repair of the roof. On April 21, 2006, a rainstorm moved into the area of the damaged home, and the property and contents were damaged as a result of the storm.

The owners of the damaged home made a claim against Show-Me for repair of the damages caused by the rainstorm. Show-Me allegedly voluntarily paid for the damages itself and sought reimbursement from Wellington, which was Show-jMe’s3 insurance provider. In a letter dated May 30, 2006, Wellington denied Show-Me’s claim for payment on the basis of the open roof property damage exclusion in the policy.

On April 20, 2007, Show-Me filed a petition for damages, breach of contract and breach of fiduciary duty against Wellington, Waguespack & Associates Insurance Agency, Inc., and Star Professional. Show-Me did not timely request service upon Wellington and Waguespack. As a result, the trial court rendered a judgment dismissing Show-Me’s claims against Wellington and Waguespack without prejudice on January 2, 2009.

On May 11, 2007, Show-Me filed an affidavit of dissolution to cease the existence of the limited liability company.

On January 15, 2009, Show-Me filed a second petition for damages against Wellington seeking damages associated with payment for the damaged residence. On May 3, 2010, Show-Me filed its first supplemental and amending petition adding Mr. Whitesides as a plaintiff, in which he asserted claims as an insured under the policy.

On July 8, 2010, Wellington filed declina-tory exceptions of lis -pendens and/or res judicata and peremptory exceptions of no right of action and no cause of action. The trial court sustained the exceptions of lis pendens and res judicata against Show-Me and dismissed its claim with prejudice. The trial court also sustained the exceptions of no right of action and no cause of action against Mr. Whitesides with prejudice. The instant appeal by Mr. White-sides followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Whitesides alleges the trial court erred in 1) sustaining the peremptory exception of no right of action and dismissing his claim, 2) sustaining the peremptory exception of no cause of action, and 3) sustaining the peremptory [.¡exception of no cause of action without giving him an opportunity to amend his petition.

LAW AND ANALYSIS

No Right of Action

In his very brief argument, Mr. White-sides alleges the trial court erred in sustaining Wellington’s exception of no right of action because he was insured by Wellington under Show-Me’s insurance policy as the sole member and manager. As such, Mr. Whitesides argues that he asserted claims in his own name as an insured who was owed a defense against and coverage for the underlying property damage claims by Wellington.

An action can only be brought by a person having a real and actual interest which he asserts. LSA-C.C.P. art. 681. The peremptory exception of no right of action tests whether the individual bringing an action has the capacity or legal interest in judicially enforcing the right asserted. LSA-C.C.P. art. 927 A(5). A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. First Bank and Trust v. Duwell, 10-481 (La.App. 5 Cir. 12/14/10); 57 So.3d 1076, 1078, writ denied, 10-2826 (La.2/11/11); 56 So.3d 1005. An appellate court reviews an exception of no right of action de novo. Id.

In the supplemental and amending petition filed by Show-Me, Mr. White-sides was added as a plaintiff. Additionally, the amending petition added the allegations that 1) Wellington issued a policy of liability insurance covering Show-Me and Mr. Whitesides; 2) Show-Me and Mr. Whitesides inured the benefit of Star Professional’s policy with Western Heritage Insurance Company and added it as a defendant; and 3) Wellington was justly indebted to Show-Me and Mr. Whitesides jointly, severally and in solido, for all damages incurred. No other allegations |fiwere made on behalf of Mr. Whitesides.

From a plain reading of the supplemental and amending petition, Mr. Whitesides does not assert a right of action against Wellington. There is no assertion that Mr. Whitesides personally incurred any damages that would give him a real and actual interest in the action. All of the allegations in the petition and supplemental and amending petition assert that Show-Me, not Mr. Whitesides, incurred damages for a breach of the policy by Wellington.

Additionally, Mr. Whitesides did not have the capacity to personally file an action against Wellington under Show-Me’s policy. Under “SECTION II — WHO IS AN INSURED” of the policy, subsections “l.a” and “l.c” provide that sole owners and members of the limited liability company are insured only with respect to the conduct of the business. “A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.” LSA-R.S. 12:1320(C). Thus, pursuant to the law and the language of the policy, Mr. Whitesides, as the sole member, could not file an action against Wellington to enforce Show-Me’s policy. Prior to the filing of the second petition for damages in 2009, Show-Me had filed an affidavit to dissolve the limited liability company in 2007. Since Show-Me ceased to exist prior to the filing of the petition, Mr. Whitesides lacked the procedural capacity to file an action against Wellington either on behalf of Show-Me as the sole owner or as the sole member.

As such, we do not find the trial court erred in sustaining the peremptory exception of no right of action against Mr. Whitesides.

|fiWo Cause of Action

Mr. Whitesides alleges the trial court erred in sustaining Wellington’s peremptory exception of no cause of action because the face of the petition alleges: 1) Mr. Whitesides was insured by Wellington; 2) Wellington breached its obligation to him; and 3) he was damaged as a result of the breach. In the alternative, Mr. Whitesides alleges that, even if the petition required further amendment, the trial court erred by not allowing such an amendment before dismissing the action.

A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. DiLeo v. Hansen, 09-974 (La.App. 5 Cir. 6/29/10); 45 So.3d 1120, 1122-1123. The function of the exception of no cause is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. No evidence may be introduced to support or controvert the exception raising the objection of no cause of action, LSA-C.C.P. art. 931, and for the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true. Id. In reviewing a trial court’s ruling on a peremptory exception of no cause of action, the appellate court should conduct a de novo review because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Id.

In the instant matter, we agree with the trial court that Mr. Whitesides failed to assert a cause of action that personally afforded him a remedy. Mr. Whitesides sued Wellington as an insured in the capacity of the sole member of Show-Me. There was no allegation asserted that Mr. Whitesides was damaged by any acts or omissions of Wellington. As a result, Mr. Whitesides did not assert a basis for 17which he personally had a cause of action.

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. Kent v. Epherson, 03-755 (La.App. 5 Cir. 12/9/03); 864 So.2d 708. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. Id. Even if a petition fails to state a cause of action, or if under the allegations, the party asserts ing the action lacks the procedural capacity to assert it, if the grounds of the objection can be removed by amendment, the plaintiff should be allowed to amend his demand. Id. Where amendment would be a vain and useless act, however, amendment of the petition is not required prior to dismissal of the action. The decision to allow amendment is within the sound discretion of the trial court. Id.

Here, it would have been a vain and useless act to allow Mr. Whitesides to amend his petition. Even if Mr. White-sides had been given the opportunity to amend his petition to state a cause of action, the defect that he lacked the procedural capacity to assert the claim would still remain. Therefore, we do not find the trial court erred in dismissing the Mr. Whitesides’ action without allowing an amendment to the petition.

DECREE

For the foregoing reasons, the exceptions of no right of action and no cause of action filed by Wellington Specialty Insurance Company are sustained. Alan White-sides’ petition for damages is dismissed with prejudice. Mr. Whitesides is to bear the costs of this appeal.

AFFIRMED

      . Assignment of error numbers two and three are being discussed jointly.