author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Catina P. BROWN.
    No. 10-KA-617.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, George C. Wallace, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|20n February 5, 2009, the Jefferson Parish District Attorney’s office charged defendant, Catina P. Brown, by bill of information with access device fraud, in violation of LSA-R.S. 14:70.4. Defendant pled not guilty to the charge , on February 9, 2009. On March 3, 2010, a six person jury found defendant guilty of a lesser charge, access device fraud of at least $300.00 but less than $500.00, and sentencing was set for March 29, 2010.

On March 25, 2010, defendant filed a motion for new trial alleging that the evidence produced at trial did not support the verdict. On March 29, 2010, the trial court denied defendant’s motion for new trial finding that the verdict was amply supported by the evidence. On the same day, the court sentenced defendant to |sthree years at hard labor prohibiting any reduction of the sentence for good time served.

The State then filed a multiple offender bill of information alleging that the defendant was a quadruple felony offender, to which she stipulated. On the same date, the district court vacated the original sentence and sentenced defendant to 20 years without benefit of probation or suspension of sentence, with the first three years to be served without benefit of good time. Defense counsel objected to defendant’s multiple offender sentence and gave the court oral notice of his intention to file a motion for an appeal. Defendant filed a written motion for appeal on March 30, 2010, which was signed by the trial judge on the same day. This appeal follows.

FACTS

Evidence was introduced at trial that Jack Grey, a 90 year-old man, found five unauthorized withdrawals when balancing his checkbook: four were credited to Tyler Brown’s account and one to Catina Brown’s AT & T account. At trial, Janet Grey Ryan, who was living in Houston, Texas, testified that the victim, her uncle, appointed her to have power of attorney over his affairs. Prior to his death in 2009, the victim lived alone at the Atrium, an assisted living facility for the elderly located in Metairie. Mrs. Ryan stated that although she took care of the victim’s affairs, he was mentally alert: he paid his own bills, which included his monthly rent check to the Atrium, and balanced his checkbook every month.

Mrs. Ryan testified that sometime in November of 2008, the victim called her regarding some irregularities in his Capital One Bank statements. After balancing his checkbook, the victim called Mrs. Ryan because he noticed that money was withdrawn from his account without authorization. Shortly after noticing the discrepancies in his bank statement, the victim notified Mrs. Ryan that |4one check was missing out of an unused pack of checks. Mrs. Ryan immediately phoned Capital One, who placed a hold on the account.

The next day, Mrs. Ryan went to Capital One in Houston and closed the victim’s account. Capital One assisted Mrs. Ryan in identifying five unauthorized withdrawals totaling $6,968.00: 1) on October 23, 2008, in the amount of $2000 from Chase E Pay for Tyler Brown; 2) on October 24, 2008, in the amount of $413 from AT & T Care Cellular for Catina Brown; 3) on November 3, 2008, in the amount of $4233.34 from Chase E Pay for Tyler Brown; 4) on November 6, 2008, in the amount of $202.95 from FPB Credit Card for Tyler Brown; and 5) on November 14, 2008, in the amount of $119.59 from FPB Credit Card for Tyler Brown. Additionally, Capital One assisted Mrs. Ryan in completing the necessary paperwork, which consisted of five Statements of Unauthorized ACH Debit Entry forms and an affidavit regarding the fraudulent withdrawals. Capital One further reversed the charges on November 17, 2008.

After executing the affidavit, Mrs. Ryan faxed it, along with all the bank records she had at the time, to the Jefferson Parish Sheriffs Office on November 17, 2008. Subsequently, the victim and Mrs. Ryan met with Detective Wright of the Jefferson Parish Sheriffs Office in reference to the bank withdrawals.

The victim spoke with Detective Wright about the incident, then Mrs. Ryan gave him the information regarding the action taken at the bank, including the names of the people who withdrew the funds.

On cross-examination, Mrs. Ryan testified that the victim was very private about his personal affairs and would not have given anyone else authority to use his account. Mrs. Ryan further testified that the victim kept his checkbooks in his dresser drawer and that she had never given defendant a check from her uncle’s |saccount. In addition, Mrs. Ryan named Tyler and Catina Brown as the people who withdrew the money from the bank.

Marco Demma, Senior Fraud Investigator with Capital One Bank, testified that there were five charges on the victim’s account, which were generated electronically via automated clearing house, or ACH. Mr. Demma identified the same charges Mrs. Ryan identified in her testimony. Mr. Demma could not determine who initiated the charges or whether the charges were accomplished by telephone or through the internet. However, he did indicate that the person originating the transaction would have to know the account number and the routing number at the bottom of the check in order to accomplish such a transaction on an account.

Detective Daniel Wright of the Jefferson Parish Sheriffs Office Economic Crime Unit testified that he was assigned to the victim’s case on November 18, 2008. On November 26, 2008, Detective Wright interviewed the victim, together with Mrs. Ryan, in person. The victim told Detective Wright that he received his bank statement in the mail in the later months of 2008 and noticed some debits, “which he did not do,” on his checking account. Therefore, he notified Mrs. Ryan, who has power of attorney over his personal and financial affairs, and she obtained the Capital One Bank records that listed the unauthorized transactions in his checking account. Mrs. Ryan supplied Detective Wright with all of the bank records, which showed the unauthorized transactions. One of the documents given to Detective Wright named Catina Brown and Tyler Brown, and they became the subjects of his investigation. Detective Wright eventually arrested Tyler Brown and defendant.

Defendant was arrested on December 26, 2008, at the Atrium, where she lived and worked, which was also the victim’s place of residence. Defendant | ¿waived her rights and denied any involvement in the offense. She acknowledged asking the victim whether or not he had a power of attorney because there was no record in the file. She also told Detective Wright that she would pay her bills and her son’s (Tyler Brown) bills online.

Detective Wright stated that defendant was cooperative with the investigation. Defendant voluntarily went online, using Detective Wright’s office computer and pulled up and printed her credit card records from Washington Mutual and Red Dot [sic]. Defendant’s bank statement showed that $413 to AT & T was charged to her account on November 20, 2008, which corresponds to one of the unauthorized transactions on the victim’s account. However, when asked about the charge on her account, she didn’t have an answer.

On cross examination, Detective Wright explained that although the transactions were in the names of Tyler Brown and Catina Brown, there was no way for him to tell who made those transactions. Detective Wright further testified that the reversal on the victim’s account was dated November 17, 2008, and defendant repaid AT & T the $418 on November 20, 2008.

Marie Scavo, the executive director at the Atrium, testified that she worked with defendant, whom she hired as the assistant marketer to give tours to the families of potential residents. Then defendant became the Director of Marketing, which consisted of the same duties as the assistant marketer but also included executing the contracts with those who decided to move into the facility. Ms. Scavo stated that defendant often worked at the front desk, where patients would drop off their monthly rent checks.

|7After rent payments were made at the front desk, a copy of the check was returned to the payor, and the check was either placed into a locked wooden box outside of Karen Keller’s (the Business Office Manager) door or, alternatively, slipped under her door. Defendant had a key to Ms. Scavo’s office, which provided defendant unlimited access to personnel files, human resource items, and the keys Ms. Scavo kept in her desk. The keys in Ms. Scavo’s desk provided defendant with access to the accountant’s office. Additionally, Ms. Scavo affirmed that “at one time” her office key also opened the door to Karen Keller’s office.

Ms. Scavo also agreed that Tyler Brown, defendant’s son and co-defendant, had the same access as defendant because he lived with defendant and also worked at the Atrium. Tyler Brown’s work duties mainly consisted of preparing meals, helping in the kitchen or dining room, delivering meals to rooms, and answering the phones. Ms. Scavo testified that at the time of the incident, she asked Tyler Brown what was going on and- he responded: “I don’t know, but I can’t see my mom go back to jail again.” Ms. Scavo also affirmed that it would not be unusual for defendant, as marketing director, to ask a resident for a power of attorney document in order to update his or her medical record.

Ms. Scavo also asserted that she received a letter from defendant. Ms. Scavo was not exactly sure of what the letter said because she only glanced at it. However, she indicated that it seemed to be an apology, which included a request for her to testify “truthfully.” Specifically, defendant requested Ms. Scavo to testify that defendant handled leases and contracts, but that she did not handle checks and did not have access to Jack Grey’s checks, which was not the truth.

Karen Keller, Business Office Manager at the Atrium, testified that she does the billing, collections, and payroll. She also knows defendant and Tyler Brown because they worked at the Atrium.

|sMs. Keller stated that her key ring contained the key to the locked box, where the checks were dropped, and Ms. Scavo’s office key ring contained keys to different locks and doors at the Atrium. Ms. Keller asserted that she had a key to Ms. Scavo’s office and Ms. Scavo a key to her office; therefore, they had access to the same things, except for the locked box that contained the checks. Ms. Keller stated that she collected the rent checks and processed them using a scanner in her office. Defendant would not handle a check unless she was at the front desk and took a payment from a resident. After defendant was arrested, Ms. Keller had the occasion to speak with Tyler Brown, who told her that his mom wanted him to take the “rap for everything that happened,” and that he was going to do so against his own will.

The defense called its only witness, Tyler Brown. Tyler Brown took sole responsibility for the access device fraud on Jack Grey’s account and denied ever having made a statement to Karen Keller regarding taking the “rap” for his mother. Mr. Brown explained that he stole a check from the victim and used it to pay four different bills, including his mother’s AT & T bill. Mr. Brown gained access when he delivered a meal to the victim’s room. The victim instructed Mr. Brown from his recliner to leave the meal on the kitchen counter. Mr. Brown saw victim’s checkbook on the counter and removed a check from the middle back of the book. Defendant further testified that his mother had given him $300 to pay her AT & T bill, but he pocketed the money for drugs and used the victim’s account information to pay the bill online. However, Mr. Brown’s affidavit states that defendant gave him approximately $400 in cash to pay off the AT & T bill.

Tyler Brown admitted that he pled guilty to the felony charge of access device fraud and denied that his mother had any involvement in the offense. After his mother was arrested, he turned himself in to the police without, first speaking to | nhis attorney. Upon being questioned by Detective Wright, Mr. Brown admitted that he committed the offense but did not go into detail or release any statements.

On cross examination, Mr. Brown said that he did not go into detail or release any statements when being questioned by the detectives upon the advice of his attorney. Mr. Brown also denied ever calling the State’s attorney, Mr. Wallace, sometime in November of 2009. Moreover, Mr. Brown denied being in Tennessee in late 2009 as it was a violation of probation. Then, rebuttal witness, Norman Schultz, testified that he retrieved a message that Mr. Brown left for Mr. Wallace on his voicemail on November 30th. Mr. Schultz testified that the call was made from a Tennessee number: 865-228-6120. The message was played in open court: “Mr. Wallace, this is Tyler Brown trying to contact you back again. I’m going to try and call back in 30 minutes. If you get this message any sooner, please contact me at 865-357-5380. Thank you.”

After conclusion of the testimony, the jury deliberated and returned a responsive verdict, convicting defendant of access device fraud in the amount between $300 and $500. After her motion for new trial was denied, defendant filed this timely appeal.

DISCUSSION

Defendant argues on appeal that the evidence was insufficient to uphold the conviction. Defendant further contends that Tyler Brown admitted to the crime, as the sole perpetrator; therefore, no rational trier of fact could have found defendant, Catina Brown, guilty beyond a reasonable doubt.

The State responds that it presented evidence from which the jury could have believed that the defendant persuaded her son to take responsibility for the offense. The State further maintains that the evidence was sufficient to support the | ^conclusion that defendant was guilty of a lesser charge of access device fraud in between $300.00 and $500.00, and that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. However, this requirement of LSA-R.S. 15:438 does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion 1 iithat the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).

On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. State v. Durand, 07-4, p. 8 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Defendant was charged with access device fraud in an amount over $500.00, in violation of LSA-R.S. 14:70.4. However, defendant was convicted of a lesser charge of access device fraud in an amount between $300 and $500.00. LSA-R.S. 14:70.4, reads, in pertinent part, as follows:

Access Device Fraud

A. No person shall without authorization and with the intent to defraud transfer an access device to another person.
B. (1) ‘Access device’ means a person’s social security number, driver’s license number, birth date, mother’s maiden name, checking account numbers, savings account numbers, personal identification numbers, electronic identification numbers, digital signatures, or other means of account access that can be used to obtain anything of value, whether contemporaneously or not.

As such, in order to support a conviction for access device fraud pursuant to LSA-R.S. 14:70.4, the State is required to prove that the defendant, with the intent to defraud, transferred an access device to another person without authorization. In addition, the State is required to prove the value of the misappropriation, since the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of such. In order to support the instant | |2conviction, the State needed to prove that the value of the misappropriation was in between $300 and $500.

The applicable statute requires that the State prove that defendant possessed the intent to defraud. The intent to defraud element requires specific intent. State v. Sosa, 05-213, p. 7 (La.1/19/06), 921 So.2d 94, 99, and State v. Porter, 454 So.2d 220, 225 (La.App. 3 Cir.1984), writ denied, 457 So.2d 17 (La.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1205, 84 L.Ed.2d 347 (1985). Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Woodhead, 03-1036, pp. 7-8 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, 999, writ denied, 04-598 (La.7/2/04), 877 So.2d 144 and State v. Graham, 420 So.2d 1126, 1127 (La.1982) (citing State v. Boyer, 406 So.2d 143, 150 (La.1981); State v. McDermitt, 406 So.2d 195 (La.1981); State v. Williams, 383 So.2d 369 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981); State v. Garner, 241 La. 275, 128 So.2d 655 (La.1961)). Further, specific intent is an ultimate legal conclusion to be determined by the fact finder and review of correctness of this determination is guided by the Jackson standard. State v. Lecompte, 371 So.2d 239, 243 (La.1979) and Sosa, 05-213 at p. 7, 921 So.2d at 99.

We find that the State presented sufficient evidence for the jury to conclude that the victim’s checking account number was transferred to another person in order to debit money from his account, without his consent, and that the value of the misappropriation was in between $300 and $500. Further, the State presented evidence that defendant colluded with her son to transfer the victim’s checking account number to another person, which resulted in the misappropriation of 1 1smoney from the victim. The State presented its case through the testimonies of Ms. Janet Ryan, the victim’s niece and power of attorney, Marco Demma from Capital One Bank, Detective Daniel Wright, and Marie Scavo and Karen Keller from the Atrium.

The State established that the victim’s checking account number was used to transfer money from his checking account via ACH debit to defendant’s AT & T account, without his consent. The 90-year-old victim, after balancing his checkbook, reported some unauthorized transactions to Janet Ryan, who had power of attorney over his account. The victim also informed Ms. Ryan that a single check was missing from an unused pack of checks. Ms. Ryan reported the unauthorized activity to Capital One Bank, who investigated and assisted the victim in reporting the matter. In total, there were five unauthorized transactions: four transactions which were credited to accounts in the name of Tyler Brown and one, in the amount of $413, which was credited to an AT & T account in the name of Catina Brown.

The defendant does not dispute that Jack Grey was the victim of access device fraud; she only contends that she had no knowledge or involvement in the crime. However, the record demonstrates that the State has presented evidence of defendant’s involvement.

Marie Scavo testified that, at the time of the incident, she talked to Tyler Brown who indicated to her that he “didn’t know what was going on but he couldn’t see his mom go back to jail again.” She also testified that she received a letter from defendant, which seemed to be an apology and a request for her to testify that defendant did not have access to the victim’s checking account information, which was untrue. Additionally, Karen Keller testified that she spoke to Tyler Brown after defendant was arrested and he communicated to her that his |14mom, the defendant, wanted him to take the “rap for everything that happened,” and that he intended to take responsibility.

The State further presented evidence that the victim had five unauthorized withdrawals from his checking account, one being credited to an AT & T account in the defendant’s name and further that defendant had access to the victim’s account information. Detective Wright testified that defendant stated that she pays her bills online, which is inconsistent with Tyler Brown’s testimony contending that his mom gave him cash to pay the phone bill. Detective Wright testified that the bank reversed the charges on November 17, 2008 and defendant repaid her $413 AT & T bill on November 20, 2008. When the detective asked her about the charge, she didn’t have an answer.

Conversely, defendant presented the testimony of her son Tyler Brown, who testified that he pled guilty to access device fraud and denied that his mother had any involvement in the crime. He admitted to stealing a check, which was consistent with Ms. Ryan’s testimony that victim informed her that a check was missing. Tyler Brown also denied ever talking to Karen Keller in reference to taking the blame for his mother. Tyler Brown further testified that defendant gave him $300 in cash to pay her phone bill, which he used for drugs instead. He then paid her phone bill using the victim’s checking account information that he stole out of his room from a checkbook. However, defendant presented a sworn affidavit, in which Mr. Brown admitted that his mother gave him $400 in cash to pay the bill, which is inconsistent with his testimony where he asserted that the amount was $300. Further, Tyler Brown testified that he attempted to use victim’s account information to pay off three credit card bills and his mother’s phone bill, which indicates he was responsible for four transactions.

|lfiOn cross examination, Tyler Brown denied calling Mr. Wallace, the State’s attorney, in November of 2009 and further denied being in Tennessee at that time because it was a violation of his probation. The State’s rebuttal witness, Mr. Schultz, played a voicemail from Tyler Brown to Mr. Wallace and further indicated that the call came from a Tennessee phone number.

The jury was presented with all of the evidence, and the jury apparently rejected defendant’s theory that Tyler Brown was the only party responsible in this crime. Testimony and a sworn affidavit were presented to indicate that Tyler Brown was the only person responsible for the crime. However, there were inconsistencies in Tyler Brown’s testimony regarding the amount of money his mother gave him to pay the AT & T bill. Further, Detective Wright testified that defendant admitted that she paid her bills online, which is inconsistent with Tyler Brown’s testimony that she gave him cash to pay the bill. Additionally, Tyler Brown asserted that he attempted four transactions, one to pay the AT & T bill for defendant; however, the State presented bank records of five transactions, four made to Tyler Brown’s account. This information corroborates the theory that defendant was responsible for one of the five transactions. Most significantly, the State presented evidence that Tyler Brown lied to avoid a probation violation. Additionally, evidence was presented that Tyler Brown did not want to see his mother return to jail and that he made an agreement with her to take responsibility for the crime.

Testimony was presented which showed that defendant and her son both had access to the victim’s account information. The jury reviewed the five ACH transactions admitted into evidence and deduced that the defendant was guilty beyond a reasonable doubt of access device fraud in between $300 and $500, |1fiwhich was for only one of the five transactions: the $413 AT & T transaction that was applied to defendant’s account.

The jurors clearly found the testimony of the State witnesses more credible than the testimony of the defense witness, Tyler Brown. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier-of-fact. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240, writ denied, 09-2394 (La.10/15/10), 46 So.3d 1282. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier-of-fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

Based on the foregoing, we find that the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of the essential elements of the crime beyond a reasonable doubt.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The following matter was discovered.

As noted by the State in its brief, the trial court erred in sentencing defendant under the habitual offender statute without diminution of the sentence for good time. Specifically, the trial court sentenced the defendant to 20 years at hard labor with the first three years being served “without benefit of good time.” Id.

117The provisions of LSA-R.S. 15:571.3(0 prohibit giving credit for good time served under particular circumstances. These provisions are directed to the Department of Corrections exclusively and the trial court, with limited exceptions, has no power to make eligibility determinations for diminution of sentence. See State v. Hotard, 04-1092, p. 1 (La.10/15/04), 885 So.2d 533, 534 (citing State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661); State v. Carey, 07-674, p. 6 (La.App. 5 Cir. 12/27/07), 975 So.2d 27, 30-31, writ denied, 08-0430 (La.11/10/08), 996 So.2d 1064; and State v. Jackson, 07-975, p. 14 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 254. Although the foregoing statute indicates that the defendant is not eligible for good time credit, that determination is to be made by the Department of Corrections. Id.

Accordingly, we amend defendant’s sentence to remove the provision prohibiting defendant from earning good time. See, State v. Carey, supra; State v. Jackson, supra. In all other respects, defendant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

      . The defendant’s son, Tyler Brown, was also charged on the bill of information with the same offense; however, he pled guilty on April 1, 2009.

      . It appears that Detective Wright incorrectly refers to some of defendant's printed records coming from "Red Dot or Brown Dot”; however, State’s Exhibit 11 reflects that the records were printed from greendotonline.com.

      . Also on rebuttal, Ms. Scavo identified this number to belong to Linda Ward, the wife of Tyler Brown’s uncle, who resided in Tennessee.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Carolyn NELSON.
    No. 10-KA-760.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

pon May 9, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carolyn Nelson, with possession of cocaine (Count 1) and possession of alprazolam (Count 2) in violation of LSA-R.S. 40:967 C and R.S. 40:969 C, respectively. Defendant was arraigned on May 10, 2007, and pled not guilty. On June 20, 2008, defendant withdrew her not guilty plea and pled guilty as charged. The trial judge sentenced defendant to imprisonment at hard labor for five years to run concurrently with the sentences in case numbers 06-5709, 07-996, and 07-6696, as well as any other sentences being served.

Also on June 20, 2008, the State filed a multiple bill alleging defendant to be a third felony offender, and defendant stipulated to those allegations. The trial judge vacated the original sentence on Count 1, and resentenced defendant under the multiple bill statute to imprisonment at hard labor for ten years to run |sconcurrently with the sentences in case numbers 06-5709, 07-996, and 07-6696, as well as any other sentences currently being served.

On May 24, 2010, defendant filed a “Memorandum of Support of Application for Post Conviction” seeking an out-of-time appeal, which the trial judge granted on June 8, 2010.

FACTS

Defendant entered a guilty plea to the charged offenses of possession of cocaine and possession of alprazolam. The bill of information alleges the offenses occurred on April 20, 2007. The probable cause affidavit provides the following facts leading up to defendant’s arrest:

A deputy stopped a truck for running a stop sign. While the deputy was interviewing the driver outside of the vehicle, the deputy observed three passengers moving inside of the vehicle. The deputy proceeded to the passenger side of the vehicle to speak with the front seat passenger. Upon the door opening, the deputy observed in plain view on the floor board of the vehicle a clear plastic bag containing an off-white rock-like object that he recognized as being consistent with crack cocaine. At that time, the deputy and other officers removed the passengers, which included defendant. A search incidental to arrest revealed that defendant had a clear plastic bag containing two clear plastic bags with a white powdery substance that the deputy recognized as being consistent with powder cocaine. The bag also contained three white pills that the deputy recognized as Xanax.

DISCUSSION

By her first assignment, defendant argues that the trial judge did not ascertain through a proper Boykin colloquy that she understood each of her rights before accepting her guilty pleas to Counts 1 and 2 and to the multiple bill. She | contends that the trial judge’s manner of determining whether her guilty plea was knowing and voluntary was not constitutionally sufficient and therefore constitutes reversible error. The State responds that the record shows the trial judge conducted a proper Boykin colloquy, and that the trial judge determined that defendant made a knowing, intelligent, and voluntary waiver of her rights before he accepted her guilty pleas.

If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

A guilty plea is not valid unless the defendant voluntarily and intelligently relinquishes his known rights. Before accepting a guilty plea, the trial court must make an “independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving.” State v. Pearson, 03-652, p. 5 (La.App. 5 Cir. 12/9/03), 861 So.2d 283, 287, writ denied, 04-166 (La.6/4/04), 876 So.2d 73, and cert. denied, 543 U.S. 1007, 125, S.Ct. 626, 160 L.Ed.2d 471 (2004).

| r,Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered to be free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Hebert, 02-884, p. 3 (La.App. 5 Cir. 12/30/02), 838 So.2d 30, 32. There also must be an express and knowing waiver of those rights. State v. Jones, 08-1158, p. 3 (La.App. 5 Cir. 2/25/09), 9 So.3d 893, 894. The waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. State v. Ursin, 98-435, p. 3 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249. The Louisiana Supreme Court has consistently stated that the knowing and intelligent nature of a defendant’s waiver of rights “ ‘depends upon the circumstances of each case.’ ” State v. Filer, 00-0073 (La.6/30/00), 762 So.2d 1080 (per curiam),

Counts 1 and 2

The transcript reflects that on June 20, 2008, defense counsel advised the trial judge that defendant wanted to plead guilty to all counts in the instant case and in case numbers 06-5709, 07-996, and 07-6696, with the agreement that defendant would be triple billed instead of quadruple billed. The colloquy between the trial judge and defendant reveals defendant was 40 years old at the time she entered the pleas and that she had obtained a GED. The trial judge confirmed that defendant’s attorney had advised defendant of her right to a trial by jury, right to confrontation, and right against self-incrimination and that defendant told her attorney she understood these rights. The trial judge advised defendant of the nature of the offenses to which she was pleading guilty, and he told defendant the maximum sentences he could impose on both counts. He inquired whether defendant or her family had been forced, intimidated, coerced, or induced by a promise or reward to plead guilty, to which defendant replied, “No, sir.”

| (¡The trial judge subsequently informed defendant of the sentences she would receive if she pled guilty. He advised defendant of her right to a trial by jury and her right to hire an attorney to defend her at trial or to have an attorney appointed if she could not afford one. The trial judge also advised defendant that if he accepted her guilty pleas, she would not have the right to assert any allegations or defects on appeal. He told defendant that she had the right to waive a trial by jury and be tried by the court alone. The trial judge ascertained that defendant had committed the crimes to which she was pleading guilty. Throughout the colloquy, the trial judge asked defendant if she understood her rights and the fact that she was giving them up by pleading guilty, to which defendant consistently responded, “Yes” or “Yes, sir.”

Afterward, the trial judge asked defense counsel if she had reviewed the waiver of rights form with defendant, to which defense counsel responded affirmatively. The trial judge confirmed that defense counsel’s signature appeared on the waiver of rights form. He asked defendant whether she had any questions regarding the rights she was waiving or the sentences that were going to be imposed, and she responded, “No, sir.” At the conclusion of the colloquy, the trial judge stated that he was entirely satisfied that defendant was aware of the nature of the crimes to which she had pled guilty, that defendant committed the crimes and understood the consequences of the guilty pleas, and that she had made a knowing, intelligent, free, and voluntary act of pleading guilty to the crimes. The trial judge also found that there was a factual basis for acceptance of the pleas. As such, he accepted defendant’s guilty pleas. The record indicates that defendant and her attorney did not make any objections to the guilty pleas, nor did defendant ask the | judge any questions or inform him that she did not understand the consequences of her guilty plea.

The record contains the waiver of rights form entitled “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty.” Defendant did not place her initials next to any of the rights listed on that form. Nevertheless, the form was signed at the bottom by defendant, defendant’s attorney, and the trial judge and filed into the record. Defendant’s attorney attested that she had informed defendant of her rights (including the three Boykin rights), that defendant was waiving them, and that she was entirely satisfied that defendant knowingly, willingly, intelligently, and voluntarily had entered guilty pleas knowing the consequences.

The paragraph above defendant’s signature provided that the foregoing form had been read to defendant and that her attorney and the trial judge had explained her rights to her and what rights she was waiving or giving up, as listed in the waiver of rights form. The paragraph further provided that defendant had been given every opportunity by the trial judge to ask questions in open court about anything she did not understand and about all of the consequences regarding her guilty pleas, and that she was completely satisfied with the explanations of her attorney and the trial judge. Defendant acknowledged that her act of pleading guilty was a knowing, intelligent, free, and voluntary act on her part, and that no one forced her to plead guilty.

|sThe paragraph above the trial judge’s signature stated that he had entered into the foregoing colloquy with defendant and that he was entirely satisfied that defendant understood the consequences of her pleas and that she had made a knowing, intelligent, free, and voluntary act of pleading guilty to the crimes listed in the waiver of rights form.

After review of the entire record, we find that the plea colloquy along with the well-executed waiver of rights form constitute a sufficient affirmative showing on the record that defendant was advised of her rights, that she understood them, and that she made a knowing and intelligent waiver of them. See State v. Pearson, supra, 03-652 at 5-7, 861 So.2d at 287-88.

Multiple Bill

LSA-R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the multiple offender bill of information, his right to a hearing, and his right to remain silent. State v. Haywood, 00-1584, p. 19 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582.

In the instant case, the transcript reflects that on June 20, 2008, after defendant entered the guilty pleas detailed above and was sentenced, the prosecutor said she was filing at that time a multiple bill alleging defendant to be a third felony offender. The transcript shows that the trial judge then read the waiver of rights form pertaining to the multiple bill into the record. That form indicated that defendant was pleading guilty to being a third felony offender based on the prior felony convictions contained in the multiple bill that was attached to the multiple bill form.

The waiver of rights form also indicated that by entering the guilty plea, defendant understood that she was giving up the right to have a hearing and force |flthe district attorney to prove she was the same individual who had the prior felony record; that the time period between the completion of the sentence for the prior felony and the date of the instant offense was ten years or less; and that if any prior conviction was the result of a guilty plea, that she was properly advised at that time of her right to a trial by jury, her right to cross-examine the State’s witnesses, and her right to remain silent at trial. The waiver of rights form provided that defendant understood she had the right to be represented by an attorney, and that if she could not afford one, one would be appointed for her. It also provided that defendant understood she had the right to remain silent throughout such a hearing and not have her silence held against her.

The form further provided that defendant understood that the sentencing range as a multiple offender was a minimum of 80 months and a maximum of ten years and that she would receive a ten-year sentence. Additionally, the form contained the statements, “I am satisfied with my attorney and the Court in them efforts to explain these rights. I am waiving these rights and understand the consequences of this guilty plea.” Lastly, the form set forth that defendant had not been forced, threatened, or coerced to enter this guilty plea, and that she understood all the possible legal consequences of pleading guilty and wished to plead guilty at that time.

After the trial judge read the waiver of rights form, he asked defendant’s attorney and defendant whether those were their signatures on the form, to which they responded affirmatively. The trial judge asked defendant if she had any questions, and defendant responded, “No.” Following the colloquy, the trial judge said that he accepted the guilty plea as having been knowingly, intelligently, freely, and voluntarily made by the defendant. Defense counsel then waived sentencing delays, and the trial judge vacated the original sentence on Count 1 and | inresentenced defendant under the multiple bill statute to ten years at hard labor without benefit of probation or suspension of sentence to run concurrently with the other sentences defendant was currently serving.

The waiver of rights form shows that defendant placed her initials next to each of the rights she was waiving, the sentencing range for being a third felony offender, and the ten-year sentence she would receive, that she was satisfied with her attorney and the court in their efforts to explain these rights, that she was waiving these rights, that she had not been forced or threatened or coerced to enter this guilty plea, and that she understood the possible legal consequences of pleading guilty and wished to plead guilty at that time. The signatures of defendant and defendant’s attorney are at the bottom of the form, as well as the signature of the trial judge who attested that the plea of guilty was accepted by the court as having been knowingly, intelligently, freely, and voluntarily made by defendant.

After a review of the record, we find that the plea colloquy along with the well-executed waiver of rights form constitute a sufficient affirmative showing on the record that defendant was advised of her rights, that she understood them, and that she made a knowing and intelligent waiver of them.

This assignment of error is without merit.

Defendant next argues that her adjudication as a third felony offender should be reversed and her ten-year sentence should be vacated because the trial judge illegally used a predicate offense that was more than ten years old. She indicates that her ten-year sentence is excessive because she was improperly found to be a third felony offender. Defendant lastly contends that the evidence was insufficient to prove that she was a third felony offender, noting that transcripts from the previous convictions were not entered into the record, and there was no indication l^that she was represented by counsel prior to pleading guilty to the predicate offenses.

The State responds that defendant is precluded from seeking review of her sentence because it was imposed in conformity with a plea agreement set forth in the record at the time of the plea. The State also responds that the issue is not preserved for appellate review because defendant failed to file a written response or make any objections to the multiple bill. Lastly, the State argues that the trial court and this Court have already considered and rejected defendant’s claims, and that defendant has not presented any new evidence to suggest this Court’s prior ruling denying her writ was in error.

On June 20, 2008, defendant advised the trial judge that she wanted to stipulate to being a third felony offender. By means of the waiver of rights form as well as the colloquy, defendant was advised of her multiple offender rights and that she would receive a ten-year sentence as a third felony offender. After accepting defendant’s stipulation to the multiple bill, the trial judge vacated the original sentence on Count 1 and re-sentenced defendant under the multiple bill statute to ten years at hard labor without benefit of probation or suspension of sentence to run concurrently with the other sentences defendant was currently serving.

On November 19, 2008, defendant filed a pro se “Motion for Reduction/Amendment of Sentence.” In that motion, defendant moved the trial court to reconsider, amend, or modify her sentence of ten years to a lesser number of years due to her exemplary achievements toward rehabilitation, including self-help, education, work performance, and conduct. On November 25, 2008, the trial judge denied her motion, stating that under LSA-C.Cr.P. art. 881, a sentence could not be amended once the defendant had begun serving it, and a trial court could only amend a felony sentence that was ordered without hard labor. The trial judge | 12also stated that a defendant could not seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea under LSA-C.Cr.P. art. 881.2 A(2). As such, the trial judge concluded that defendant was not entitled to relief as a matter of law.

Defendant subsequently filed another pro se “Motion for Reduction/Amendment of Sentence” on an unknown date. In that motion, defendant moved the trial judge to amend or reduce her sentence of ten years to a lesser term pursuant to a newly enacted law that reduced the sentences for crack cocaine convictions to make them more equal to those offenses involving powder cocaine. On April 8, 2009, the trial judge denied her motion, again citing LSA-C.Cr.P. art. 881 and art. 881.2 A(2) as procedural bars.

On May 20, 2009, defendant filed a pro se “Motion to Correct an Illegal Sentence.” In that motion, defendant argued , that her sentence was illegal because the State erred by using a conviction that was over ten years old to enhance the sentence, and because the sentence was excessive and grossly out of proportion with the five-year maximum sentence for a conviction for possession of cocaine. Defendant also noted that she was enrolled in a substance abuse program and had maintained a good attitude. On May 29, 2009, the trial judge denied defendant’s motion, stating that he had reviewed the record with close regard to the transcripts and the multiple bill and found no illegality in sentencing. The trial judge noted that the State enhanced defendant’s sentence with her past convictions, that no constitutional violation occurred, and that she was not entitled to relief from the trial court. The trial judge again stated that LSA-C.Cr.P. arts. 881 and 881.2 A(2) were procedural bars, and that as a matter of law, defendant was not entitled to relief.

| ^Defendant filed another “Motion to Correct Illegal Sentence” on July 8, 2009. In that motion, defendant argued again that the ten-year cleansing period prohibited the State from using the predicate offense of theft of goods over $100 to which she pled guilty in May of 1992. The trial judge denied the motion on July 20, 2009, again stating that he had reviewed the record, that there was no illegality in sentencing, that no constitutional violation had occurred, that her sentence was not illegal, and that she was not entitled to relief.

On August 4, 2009, defendant filed a notice of intent to apply for writs in connection with the trial judge’s denial of her “Motion to Correct Illegal Sentence,” that was granted. Defendant filed a writ with this Court arguing that she received ineffective assistance of counsel, because her counsel failed to object to the predicate offenses used by the State, and he failed to recognize that the State was barred from using the 1992 conviction for theft of goods as a predicate offense in the multiple bill. Defendant again contended that the ten-year cleansing period prohibited the State from using that predicate offense.

This Court denied defendant’s writ on October 22, 2009, stating that defendant’s motion asserted a claim for correction of a sentencing error, and not an illegal sentence. This Court found that pursuant to LSA-C.Cr.P. art. 930.3, there was no basis for review of claims of sentencing errors post-conviction, citing State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172 and, therefore, the trial court correctly denied that motion. This Court asserted that the error assigned in the writ application as it related to an ineffective assistance of counsel claim was not raised in the district court nor was it ruled upon. It noted that this ineffective assistance of counsel claim should be appropriately addressed through an application for post-conviction relief filed | uby defendant in the district court. State v. Nelson, 09-KH-759 (La.App. 5 Cir. 10/22/09) (unpublished writ disposition).

On May 11, 2010, defendant filed an Application for Post-Conviction Relief in the trial court. In her application, defendant argued that her attorney was ineffective when she failed to object during the enhancement hearing. The trial judge denied the application on May 25, 2010, stating in pertinent part:

In the case at hand, the Waiver of Constitutional Rights and Plea of Guilty form for the charges are in the record, signed by the petitioner, counsel, and the court, as is the transcript of the plea of guilty and sentencing. The plea of guilty to the multiple bill was informed and voluntary, and does not establish a basis for proving ineffective assistance of counsel. Additionally, the petitioner’s sentences are well below the maximum allowed by law.
In all post-conviction proceedings, the burden of proof is on the petitioner. LSA-C.Cr.P. art. 930.2. The petitioner fails to meet this burden. She has proven neither prong of the Strickland test. There is no evidence in the record suggesting prejudice or deficient performance by her attorney. The court finds no error in the habitual offender bill, in the predicate offenses used in the multiple bill, or in counsel’s performance. On the contrary, the record establishes that counsel performed with a high degree of effectiveness. Due to counsel’s efforts, petitioner received a greatly reduced sentence from the maximum sentence allowed in all charges. Significantly, the petitioner does not assert that she would have insisted on going to trial.
Upon review of the pleadings and the entire court record, the defendant’s claim of ineffective assistance of counsel is without merit. She is not entitled to post-conviction relief, [footnote added].

In the instant appeal, defendant argues that her adjudication as a third felony offender should be reversed and her ten-year sentence should be vacated because the trial judge illegally used a predicate offense that was more than ten years old. She indicates that her ten-year sentence is excessive because she was improperly found to be a third felony offender. Defendant lastly contends that the evidence was insufficient to prove that she was a third felony offender, noting that 1 istranscripts from the previous convictions were not entered into the record, and there was no indication that she was represented by counsel prior to pleading guilty to the predicate offenses.

The record shows that defendant did not file a written response challenging the validity of the prior guilty pleas as provided by LSA-R.S. 15:529.1 (D)(1)(b), nor did she raise these issues at the habitual offender hearing. Therefore, defendant has not preserved these issues for review and is precluded from presenting them to this Court on appeal. State v. Stevenson, 03-1146, p. 3 (La.App. 5 Cir. 2/10/04), 868 So.2d 811, 812, writs denied, 04-721 (La.9/24/04), 882 So.2d 1166, and 04-863 (La.10/1/04), 883 So.2d 1004.

Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Hartshorn, 09-47, p. 10 (La.App. 5 Cir. 11/10/09), 25 So.3d 172, 179, writ denied, 09-2654 (La.6/4/10), 38 So.3d 298. Because defendant stipulated to the allegations in the multiple bill and willingly and knowingly made an unconditional plea, she is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing. Id.

Moreover, the record reflects that defendant’s ten-year sentence was imposed in conformity with a plea agreement, and the ten-year sentence was within the statutory limits. LSA-C.Cr.P. art. 881.2 A(2) provides, “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that Article 881.2 A(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. State v. Guerra, 03-1071, p. 5 (La.App. 5 Cir. 12/30/03), 865 So.2d 154, 157. Based on |1fithe foregoing, we find that defendant is not entitled to appellate review of her sentence. Id.

This assignment of error is also without merit.

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); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review revealed no errors which require corrective action.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant Carolyn Nelson are hereby affirmed.

AFFIRMED.

      . Julie L. Collins was also charged with those same offenses in the same bill of information.

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

      . The record indicates that defendant pled guilty in the instant case, as well as in case numbers 06-5709, 07-996, and 07-6696. All four case numbers are listed on the waiver of rights form.

      . See, State v. Hebert, supra. In that case, defendant argued on appeal that the trial court erred by accepting his guilty plea without first advising him of his right to remain silent. Even though defendant did not place his initials next to the paragraph in the waiver of rights form pertaining to the three Boy-kin rights, he did place his initials next to the remaining questions. Although the transcript of the Boykin colloquy revealed that the trial judge did not specifically advise defendant of his right against self-incrimination, the transcript showed that the trial judge thoroughly reviewed the entire guilty plea form with defendant before accepting his plea. This Court found that the plea colloquy along with the well-executed waiver of rights form constituted sufficient affirmative showing on the record that defendant knowingly waived his privilege against self-incrimination. State v. Hebert, 02-884 at 3-7, 838 So.2d at 31-34.

      . It is noted that LSA-R.S. 15:529.1 was amended by the Louisiana Legislature in 2010; however, those amendments do not change the analysis herein.

      . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

      . It is noted that the merits of defendant’s claim regarding the cleansing period could not be addressed even if that issue had been properly raised, because the date of the commission of the offense of theft of good over $100 that defendant pled guilty to on June 21, 2002, and the date of discharge from the prior conviction are not in the record.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Gentry M. SYLVESTER.
    No. 2010-KA-1021.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    David F. Napoleon, David F. Napoleon, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

11 The defendant, Gentry M. Sylvester, has filed this appeal to challenge the sufficiency of the evidence presented at trial in support his conviction. For the reasons that follow we affirm the conviction and sentence.

On September 11, 2009, the state charged appellant with possession with intent to distribute cocaine. He entered a not guilty plea on September 28, 2009, and on December 16, 2009, thp district court found probable cause and denied the motions to suppress the evidence and statement. The appellant elected a bench trial and was found guilty of simple possession of cocaine. The district court denied the motions for new trial and for post-verdict judgment of acquittal. Appellant was sentenced to,serve three years at hard labor, to run concurrently with any other sentence he may be serving.

STATEMENT OF FACT

On July 9, 2009, Detective Derrick Burke and other officers executed a warrant at 9809 Gentilly Boulevard at approximately 3:15 p.m. The location was a salvage yard containing cars, a large trailer that was like a residence, and a storage shed. When the detective arrived, Arthur Williams, Roy Nicholas, and Steve | ?Powell were in the front part of the yard. The three men were advised of their Miranda rights. Detective Burke asked Williams whether anyone else was present, and Williams indicated that appellant was inside the trailer.

The officers knocked on the trailer door and announced themselves as police officers armed with a search warrant. The officers could hear movement, but no one opened the door; the officers forcefully entered the trailer. Appellant was found in the bedroom wearing only a pair of blue work pants. He was advised of his Miranda rights, and he indicated that he understood his rights. Appellant was then relocated to the front room of the trailer where the other three men were taken. All four men were again advised of their rights. Detective Burke asked whether appellant had a key to the storage shed; he advised the detective that Williams had a key.

After retrieving the key from Williams, the detective and Sergeant Jeff Sislo searched the shed. They found a black magnetic box over the front doorway. Inside the box, they found four pieces of crack cocaine. The officers then began a systematic search of the trailer. In the kitchen, they found two more magnetic boxes containing white residue and a knife containing white residue on the kitchen countertop. Inside a drawer in the kitchen was a plate containing crack cocaine and a bag of marijuana. In the bedroom an officer found a large piece of crack cocaine weighing twenty-four grams inside a roll of plastic alongside the bed. Found in a drawer in the bedroom were an individually wrapped piece of crack cocaine, $437.00, a box of sandwich baggies, and three pieces of mail addressed to appellant. Appellant was placed under arrest.

lsThe parties entered a stipulation that the substances seized from the trailer and shed tested positive for cocaine and marijuana.

Appellant’s wife, Denise Sylvester, testified that their marital address was 6332 Arts Street and that appellant receives mail there and sleeps there every night. She stated that the property on Gentilly Boulevard is in appellant’s name and that he has a key to the trailer located there. Ms. Sylvester indicated that they hoped to turn the trailer into a restaurant and bar.

Steve Powell testified that he works for appellant. He indicated that he and the others that work for appellant each take a night guarding the property. Usually they kept watch from the bedroom of the trailer.

Tyronne Brustie also works for appellant and lives at the yard. He testified that people would come to the yard often to visit Arthur Williams and would only stay for a couple of minutes.

ERRORS PATENT

A review of the record revealed that there were no errors patent.

ASSIGNMENT OF ERROR BY COUNSEL

By this assignment of error, counsel argues that the district court erred by denying appellant’s motion for new trial alleging that the verdict rendered was contrary to the law and evidence. Specifically, he argues that the state never established that he had possession of the crack cocaine because numerous people had access to the areas where the crack was recovered and no drugs were found on his person.

|4The Supreme Court set forth the standard for determining a claim of insufficiency of evidence in State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that 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.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires 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.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

To support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967, the state must prove that the defendant knowingly and intentionally possessed the drug. State v. Perron, 2001-0214, p. 6 (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. Id. citing State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. Perron 2001-0214, p. 6, 806 So.2d at 928 citing State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir.1990). Determination of whether a defendant had constructive possession depends on the circumstances of each case. Perron, 2001-0214, p. 6, 806 So.2d at 928, citing State v. Cann, 319 So.2d 396, 397 (La.1975). In determining whether defendant exercised the requisite dominion and control, factors which may be considered are his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users. Perron, 2001-0214, pp. 6-7, 806 So.2d at 928, citing State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir.1989).

In State v. Anderson, 36,969 (La.App. 2 Cir. 4/9/03), 842 So.2d 1222, the court found that the evidence was sufficient to establish the defendant’s constructive possession of contraband found in a residence pursuant to a search warrant. The state introduced evidence of the defendant’s ownership of the residence, utility bills, uniforms with the defendant’s name on them, and photographs of the defendant.

Also, in State v. Booth, 98-2065 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, this court found that the defendant had constructive possession of contraband found inside a residence after the defendant’s girlfriend was observed selling narcotics to an informant. The girlfriend was arrested and brought into the apartment, where the defendant was seated on the sofa. Narcotics were found in a wall-mounted space heater and inside a hat on top of a curio cabinet in the same room. A letter found in the apartment was addressed to the defendant and his girlfriend. Though the defendant testified that he lived at the apartment, he denied any knowledge of the narcotics found inside.

Here, the state clearly established appellant’s ownership of the trailer and property where the narcotics were found. It also established that he came to the property frequently. Notably, appellant was the only one inside the trailer when |fithe search warrant was executed. He was found in the bedroom where drugs, a size-able amount of money, and plastic baggies were found alongside personal letters addressed to appellant in a drawer, the personal letters making it likely that he was aware of the drugs placed inside the drawer. Also, magnetic boxes and a knife containing trace amounts of cocaine were found on the kitchen counter; a plate containing cocaine and marijuana was found in a kitchen drawer. Appellant had easy access to all of these areas. Importantly, when the officers announced themselves, they heard movement inside the trailer, but appellant did not answer the door. His failure to answer the door when the officers announced themselves appears indicative of guilty knowledge.

Though appellant was not found in physical possession of any narcotics, the jurisprudence cited above and the evidence establishes that he had constructive possession of the narcotics despite the fact that others had access to the area. Thus, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that appellant knowingly exercised dominion and control over the narcotics found on his property. Thus, this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR

By this assignment of error, appellant asserts that the police report was falsified in some manner by Detective Burke and that the state was aware of the false evidence. The argument set forth by the appellant is not well articulated. It appears that he is challenging the search based on the language in the search warrant.

Appellant implies that there is a smaller trailer in the front of the salvage yard that is gutted and lined with shelves containing tools. He seems to argue that 17this trailer was the subject of the search warrant and that he was not present in the trailer when it was searched. The larger main structure that is being turned into a restaurant and bar is on the other side of the property, and this is where he was located when the police arrived.

As proof, appellant has provided the police report including the narrative section of that report; however, the police report was not introduced into evidence at trial and cannot be considered by this court on appeal. See La.C.E art. 803(8)(b)(i).

For the reasons discussed we affirm the appellant’s conviction and sentence.

AFFIRMED.

      . The record shows that another motion for new trial was filed and denied on May 13, 2010. A pro se pleading was filed subsequent to the motion for new trial filed by counsel.

      . All three pieces of mail were from the Department of Public Safety, Office of Motor Vehicles, and were addressed to the Gentilly Boulevard address.

      . Mr. Powell admitted having a conviction for possession with intent to distribute PCP and a conviction for possession of a crack pipe.

        . Mr. Brustie admitted having a cocaine conviction and a burglary conviction.

      . Only the first page of the report is part of the record.


text:
    Jeffrey BRUMBERGER, M.D. v. TOURO INFIRMARY.
    No. 2010-CA-1221.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2011.

      Vallerie Oxner, Metairie, LA, for Plain-tiffiAppellant.
    Terrill W. Boykin, Kriste Taitón Utley, Shaundra M. Westerhoff, Boykin Ehret & Utley, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

[;Dr. Jeffrey Brumberger appeals the trial court’s granting of Touro Infirmary’s exception of prescription and the dismissal of his claims for unpaid wages.

In January of 2001, Dr. Brumberger was hired by Touro Infirmary to be a flex employee at a rate of $105.00 per hour without benefits. Dr. Brumberger worked in the emergency room. Emergency room doctors kept track of their hours through sign-in sheets that were tallied for payroll on a monthly basis. Dr. Brumberger identified discrepancies in the hours he worked and the hours he was paid for continuously during 2001 and 2002. According to Dr. Brumberger’s records, he was owed approximately 71 hours for 2001 and 60 hours for 2002.

Touro, in response to Dr. Brumberger’s repeated inquiries, assured him that the payroll records were being reviewed. In a letter dated November 19, 2002, Touro informed Dr. Brumberger that 34.5 hours of unpaid time had been discovered for the year 2002. Touro tendered a check for those hours on December 9, 2002. Although he accepted that check, Dr. Brum-berger expressed |2his concern over the remaining unpaid hours. At no time during this ongoing investigation into the unpaid hours did Touro deny that additional hours were owed.

On February 12, 2003, the director of human resources for Touro sent a letter to Dr. Brumberger assuring him that the unpaid hours for 2001 were being looked into. Trusting that Touro was continuing to look into the matter, Dr. Brumberger relied on that representation and continued to wait for the issue to be fully resolved. After patiently working with Touro’s human resources department without satisfaction, Dr. Brumberger filed suit on August 23, 2005.

In response to Dr. Brumberger’s suit, Touro filed an exception of prescription contending that claims for payment of salaries or wages are subject to a three-year prescriptive period. The trial court decided to set the matter for trial and address the exception of prescription at that time. After hearing testimony, the trial court granted the exception of prescription in favor of Touro dismissing Dr. Brumber-ger’s claims for all but 12 hours of disputed pay from August 2002. Additional testimony was given specifically addressing the remaining 12 hours of disputed pay from August 2002. The trial court found that Touro had paid those hours and dismissed that claim as well. For the reasons that follow, we affirm in part, reverse in part, and remand.

|3The first issue before this Court is whether prescription on Dr. Brumberger’s claims was interrupted by Touro’s ac-knowledgement of unpaid wages through an unconditional tender together with a letter from the Director of Human Resources regarding additional disputed wages.

Generally, the prescription period for wage disputes is governed by La. C.C. art. 3494 which states “an action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees ...” are subject to a liberative prescription of three years. Here however, Dr. Brumberger argues that Touro never denied that he was owed additional hours. To the contrary, Touro continuously represented that they were trying to reconcile their records with that of Dr. Brumber-ger’s. It was when Touro submitted payment for only a fraction of the hours that were contested that Dr. Brumberger realized his accounting of the hours he had worked was being challenged. Prior to that time, he contributed the shortage in the checks to poor record keeping and administrative procedures. He had no reason to think he needed to preserve his right.

It is well-settled that prescription can be interrupted by acknowledgment. La. C.C. art. 3464. The acknowledgment of a right in favor of a person can be written or verbal, express or tacit. Id. As recently stated by the Supreme Court in Titus v. IHOP Restaurant, Inc., 09-951 (La.12/1/09), 25 So.3d 761, a debtor’s acts of reparation or indemnity, unconditional offers or payment, or actions that lead the creditor to believe that the debt will not be contested is considered tacit 14acknowledgment. Id. at 765 (citing Bracken v. Payne and Keller Co., 06-0865 (La.App. 1 Cir. 9/5/07), 970 So.2d 582).

In the instant case, Touro assured Dr. Brumberger of its efforts to reconcile the hours he worked "with the hours that were paid. Proof of such efforts was the unconditional payment of 34.5 hours and the written correspondence from the director of human resources. Clearly, Touro acknowledged that mistakes or miscalculations had been made which resulted in a debt owed to Dr. Brumberger. Therefore, prescription did not run against Dr. Brum-berger’s claims while he was working with Touro to resolve the matter. We find that once payment was tendered in an unsatisfactory amount on December 9, 2002, prescription began to toll. Therefore, Dr. Brumberger’s suit filed on August 23, 2005, was timely.

In granting the exception of prescription, the trial court reserved the claim for hours worked in August of 2002 since the claim for those hours were clearly made prior to the three year prescriptive period set forth in La. C.C. art. 3494. After hearing additional testimony from Dr. Brumberger and the testimony of Chad Courrege, vice president of human resources for Touro, the trial court determined that Dr. Brumberger had been ae-curately paid for the hours he worked in the August 2002 pay period. Dr. Brum-berger presented his calculations and his pay stub for the contested pay period and Mr. Courrege submitted a computer-generated document indicating Dr. Brumber-ger had been compensated for the time he worked. The trial court ultimately determined that Touro had proved payment of the 12 hours and dismissed that claim.

|aThis Court reviews the trial court’s determination of fact under a manifestly erroneous/clearly wrong standard. Nolan v. Mabray, 2010-373, p. 9 (La.11/30/10), 51 So.3d 665, 672. “Further, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. (citing Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, 1117). Based on the testimony provided, this Coui't cannot find that the trial court erred in its determination that the August hours were paid. Therefore, as to the dismissal of the claim for those 12 hours, we affirm the trial court.

Because the trial court did not conduct a full trial on the hours owed to Dr. Brum-berger prior to the August 2002 hours, this court is unable to make any determinations as to the merits of those claims. Thus, the trial court’s ruling on the exception of prescription is reversed and the matter is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . At the time that the trial commenced, the exception of prescription was still pending. The trial court determined that much of the same testimony that would be offered at trial could be used to decide the issue of prescription. Therefore, the trial court proceeded with the trial on the merits initially stating that the issue of prescription would be resolved at' the close of the trial. However, once the plaintiff finished testifying on direct, Touro re-urged its exception of prescription.


author: PEATROSS, J.

text:
    MJH OPERATIONS, INC., d/b/a Mike’s Automotive, Plaintiff-Appellee v. Alexis LaJune MANNING & H & M Paint and Body, Inc., Intervenor-Appellant.
    No. 46,187-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      J. Spencer Hays, II, Bossier, City, LA, for Intervenor/Appellant, H & M Paint and Body, Inc.
    Thomas A. Wilson, Santi A. Parks, for Appellee Alexis LaJune Manning.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

11 Plaintiff, MJH Operations, Inc., d/b/a Mike’s Automotive (“Mike’s”), brought suit in Shreveport City Court against Defendant, Alexis LaJune Manning (“Ms. Manning”), to sequester and be recognized as the owner of a 1999 Lexus GS300 vehicle under a rental/purchase agreement between the parties. Intervenor/appellant, H & M Paint and Body, Inc. (“H & M”), intervened in the suit seeking to recover costs incurred for parts and labor to repair the vehicle after it had been wrecked in January 2010. Mike’s then filed a motion for summary judgment seeking to have the claims of H & M against Mike’s dismissed. Reserving H & M’s claims against Ms. Manning, the trial judge granted summary judgment, thereby dismissing H <& M’s claims against Mike’s. H & M appeals from this summary judgment. For the reasons stated herein, we affirm.

FACTS

On October 1, 2009, Mike’s and Ms. Manning entered into a rental/purchase agreement pertaining to a 1999 Lexus GS300 vehicle. In January 2010, Ms. Manning was involved in a wreck and took the vehicle to H & M to have the damage repaired. There is no dispute that Ms. Manning presented a copy of the rental/purchase agreement to H & M before H & M began repairs on the vehicle.

The rental/purchase agreement between Mike’s and Ms. Manning states that, if Ms. Manning made all of the rental payments owed under the 32-month term of the agreement, she would be permitted to exercise an option to purchase the vehicle after the expiration of the term by paying the title, transfer and licensing fees required to do so. The rental/purchase | ¡.agreement also provided that Mike’s had the option to terminate the agreement if Ms. Manning failed to make monthly payments during the rental term. The agreement further stipulated that Ms. Manning would be required to keep the vehicle free of any liens or encumbrances.

With regard to repairs, the rental/purchase agreement contains a “Maintenance” clause, which states in part:

The Renter at Renter’s sole expense must perform any and all maintenance or repairs to the rented Property. The Dealer cannot add repair costs to the rental purchase agreement. The Owner will not be responsible for any costs of repairs performed by Renter or at its request even though Owner retains title to the Property. (Emphasis added.)

After being presented with a copy of the rental/purchase agreement, H & M repaired the vehicle and issued to Ms. Manning an invoice for repairs, parts and labor in the amount of $3,892.36.

When she received the invoice, Ms. Manning told H & M that she did not have the money to pay for the repairs. Ms. Manning then stopped making monthly rental payments on the vehicle to Mike’s under the rental/purchase agreement. H & M retained physical possession of the vehicle for several weeks and added a storage fee in the amount of $224.00 to the original invoice for repairs, parts and labor.

After learning that Ms. Manning could not pay for the repairs, H & M began the process of acquiring a Permit to Sell the vehicle by filing an official report of storage of the vehicle with the Department of Motor Vehicles (“DMV”) of the State of Louisiana. On receiving information from the DMV that Mike’s was the owner of the vehicle, H & M issued to Mike’s a notice of intent to acquire ownership of the vehicle. Mike’s ^contacted H & M and was informed of the invoice for repairs, parts, labor and storage which had not been paid by Ms. Manning. Mike’s paid the storage fee of $224.00 to H & M and then filed suit against Ms. Manning to sequester and be recognized as the owner of the vehicle under the rental/purchase agreement, which ultimately led to the seizure of the vehicle.

On May 4, 2010, H & M filed a petition for intervention in the suit between Mike’s and Ms. Manning seeking to recover its costs incurred to repair the vehicle. Mike’s filed a motion for summary judgment requesting that H & M’s claims against Mike’s be dismissed. Ms. Manning has not answered or otherwise made an appearance in any part of the suit. On May 19, 2010, the trial judge issued a ruling recognizing Mike’s as the owner of the vehicle and entitling Mike’s to possession in rent of the vehicle until the hearing on the motion for summary judgment could be held. H & M did not appeal that judgment.

The summary judgment hearing was held two months later on July 14, 2010; and, as previously stated, the trial judge granted summary judgment in favor of Mike’s, dismissing H & M’s claims against Mike’s, but reserving H & M’s claims against Ms. Manning. In her oral reasons for judgment, the trial judge stated that H & M did not have a claim against Mike’s for the cost of the repairs to the vehicle because H & M was never authorized by Mike’s to make the repairs at Mike’s expense. Further, since Ms. Manning requested that H & M repair the vehicle and the rental/purchase agreement specified that Ms. Manning was responsible for payment of those [ ¿repairs, H & M’s proper right of action was against Ms. Manning.

This appeal ensued.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Roach Plumbing & Heating, Inc. v. Fairfield Towers, L.L.C., 44,551 (La.App.2d Cir.8/19/09), 17 So.3d 493; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sears, Roebuck and Co. v. Richardson, 32,951 (La.App.2d Cir.4/5/00), 759 So.2d 190.

Once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. To satisfy his burden of proof, the nonmov-ing party must not rely on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Hardy, supra. Once the motion for | ^summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Sears, Roebuck and Co., supra.

In its first assignment of error, H & M asserts that the trial judge erred in granting summary judgment in favor of Mike’s because there was a genuine issue of material fact in dispute as to whether or not Ms. Manning was authorized to act on behalf of Mike’s under the rental/purchase agreement. H & M urges that Ms. Manning was acting as an agent on behalf of Mike’s when she brought the vehicle to H & M to be repaired. We disagree.

It is undisputed that Mike’s, not Ms. Manning, is the owner of the vehicle. The first judgment rendered by the trial court in this case on May 19, 2010, recognized Mike’s as the owner of the vehicle and H & M did not appeal that judgment. Further, H & M does not dispute that it received a copy of the rental/purchase agreement from Ms. Manning prior to repairing the vehicle, which provides that Mike’s is the owner of and retains title to the vehicle during the entire term of the rental/purchase agreement.

As previously stated, the rental/purchase agreement contains a “Maintenance” clause which states that “[t]he Renter at Renter’s sole expense must perform any and all maintenance or repairs to the rented Property ... The Owner will not be responsible for any costs of repairs performed by Renter or at its request even though Owner retains title to the Property.”

It is clear from the language in the rental/purchase agreement that | there was no agency relationship between Mike’s and Ms. Manning wherein Ms. Manning was authorized to act on Mike’s behalf. H & M admitted to receiving a copy of the rental/purchase agreement from Ms. Manning prior to repairing the vehicle and was aware that Ms. Manning, not Mike’s, would be responsible for the costs of the repairs to the vehicle. In addition, it is clear from the record, specifically the affidavit submitted by Michael J. Hickey, the manager of Mike’s, that Mike’s did not request that H & M make the repairs, promise to pay H & M for the repairs, authorize Ms. Manning to have the repairs made at Mike’s expense or do any other action otherwise obligating Mike’s to H & M. McDonald v. Barker Auto Sales, Inc., 35,685 (La.App.2d Cir.2/27/02), 810 So.2d 1242. The trial judge applied the language of the rental/purchase agreement as written in the context of the entire record and did not err in her finding that Ms. Manning was never authorized to act as an agent on behalf of Mike’s.

H & M’s first assignment of error is without merit.

In its second assignment of error, H & M argues that the trial judge erred in failing to apply the law of negotionem gestio. La. C.C. arts. 2292-2297. H & M contends that a “quasi-contract” was formed between Mike’s and H & M when H & M repaired the vehicle at Ms. Manning’s request to the ultimate benefit of Mike’s. H & M further avers that Mike’s was unjustly enriched when H & M repaired the vehicle and Mike’s received, accepted and retained the benefit without paying H & M for the cost of the repairs. La. C.C. art. 2298; Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3d Cir.1974). We disagree.

|7La. C.C. art. 2292 defines negotiorum gestio, i.e., management of affairs, as “when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.”

When Ms. Manning took the vehicle to H & M to have it repaired, she was doing so for her own benefit, not for the benefit of Mike’s. Having damage to the vehicle repaired was one of Ms. Manning’s responsibilities under the rental/purchase agreement. Had Ms. Manning returned the vehicle to Mike’s in a wrecked condition, she would have had to pay Mike’s for the repairs it would have incurred to restore the vehicle to its original condition.

Additionally, Ms. Manning was aware that she was solely responsible under the “Maintenance” clause of the rental/purchase agreement for the payment of any maintenance and repair work done to the vehicle. Thus, it would have been unreasonable for Ms. Manning (or H & M) to believe that Mike’s would approve her decision to authorize repairs to be made to the vehicle at Mike’s expense and not her own.

There is also no merit to H & M’s argument that a “quasi-contract” was formed between Mike’s and H & M. When Ms. Manning brought the vehicle in to be repaired, H & M provided an estimate to repair the vehicle to Ms. Manning and repaired the vehicle at Ms. Manning’s request in exchange for Ms. Manning’s agreement to pay for the repairs once they were completed. H & M expected payment from Ms. Manning in accordance with that agreement, which is why H & M issued an invoice to Ms. Manning. | sThe fact that Ms. Manning did not uphold her end of the agreement to pay for the repairs completed by H & M does not give rise to a “quasi-contract” between Mike’s and H & M. Accordingly, we find that the trial judge did not err in failing to apply the law of negotiorum gestio in this case.

Further, we are not persuaded by H & M’s argument that Mike’s was unjustly enriched by the repairs made to the vehicle.

La. C.C. art. 2298 provides in relevant part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.

The remedy of unjust enrichment is subsidiary in nature and “shall not be available if the law provides another remedy.” Walters v. MedSouth Record Management, L.L.C., 10-0351 (La.6/4/10), 38 So.3d 245; Carriere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648. The unjust enrichment remedy is “only applicable to fill a gap in the law where no express remedy is provided.” Walters, supra; Mouton v. State, 525 So.2d 1136 (La.App. 1st Cir.1988), writ denied, 526 So.2d 1112 (La.1988).

After Ms. Manning failed to make the rental payments under the rental/purchase agreement, Mike’s terminated the agreement and seized possession of the vehicle as it was entitled to do under the agreement. McDonald, supra. While H & M may have been impoverished for 1 nonpayment of the repairs, any impoverishment was caused by Ms. Manning, not Mike’s. McDonald, supra. The record does not show that H & M made any genuine effort to collect from the person who actually caused the loss: Ms. Manning. Walters, supra; Carriere, supra; McDonald, supra; Mouton v. State. Further, H & M failed to enforce any other statutory remedies available to it, such as the repairman’s privilege on automobiles. La. R.S. 9:4501.

Accordingly, H & M’s second assignment of error is also without merit.

CONCLUSION

The judgment of the city court granting summary judgment in favor of MJH Operations, Inc., d/b/a Mike’s Automotive, is affirmed. Costs of this appeal are assessed to Intervenor/Appellant, H & M Paint and Body, Inc.

AFFIRMED.