author: DREW, J. /s/ John R. Harrison

text:
    David Rene DUGAS, M.D., W.J. Liles, M.D., Claude B. Minor, Jr., M.D., Benjamin M. Stage, M.D., Randolph H. Taylor, M.D., and Edward Worley II, M.D., Plaintiffs-Appellants v. Mike BREARD, Rhonda Haygood, and P. Gary Jones, M.D., Defendants-Appellees.
    No. 45,666-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 6, 2010.
    Rehearing Denied Oct. 28, 2010.

      Cook Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, Louisiana, Crawford & Joyce, by Brian E. Crawford, Monroe, Louisiana, for Appellants.
    Baker, Donelson, Bearman Caldwell & Berkowitz, PC, by Errol J. King, Jr., Lay-na S. Cook, Baton Rouge, Louisiana, for Appellees.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

11 Plaintiffs, six former members of the Board of Managers of Monroe Surgical Hospital, LLC (“the hospital”), have brought this quo wamnto proceeding against three defendants who now serve on the hospital’s Board of Managers. The trial court properly limited testimony to only the issues relevant to this extraordinary writ, and denied any relief to the plaintiffs. We agree with the ruling of the trial court, and annex its “Ruling on Motion Remaining Issue” as Appendix “A” to this opinion, adopting the excellent reasoning reflected therein.

FACTS

The hospital provided medical services in the Monroe area, being established as a limited liability corporation (“LLC”). The juridical entity has three classes of stock:

• Class “A” — Shareholders from the medical field;
• Class “B” — Nonmedical shareholders; and
• Class “C” — Shares reserved for other hospitals.

This chronology may help put the facts into context:

• April 1, 2006. The hospital, in order to secure needed funding, approves a Consent Resolution, which, among other things, approves the granting to Vantage Health Plan, Inc., an irrevocable right to assume voting control of the hospital, and is signed by seven of the eight managers, including three of the current plaintiffs/appellees. The resolution was also signed by 34 of the 44 | ?Class “A” (77%) member/physicians, including all six current plaintiffs/appellees.
• April 1, 2006. Pursuant to the Consent Resolution, the hospital grants a three-year Irrevocable Membership Interest Option to Vantage, in exchange for, among other things, $900,000, subject to a credit for any case management fees paid to the hospital.
• April 1, 2006 — August 20, 2008. Under management of the former board, the hospital operates for 28 months, with the business entity receiving far more than the total $900,000 from Vantage.
• August 20, 2008. Within the three-year option period, Vantage forwards written notice to the hospital, advising that it was triggering its rights to obtain voting control of the hospital.
• August 25, 2008. At a special meeting of the former board, attended by seven of the eight former board members, various actions are taken, without a dissenting vote, in furtherance of an orderly transition of hospital control to Vantage, immediately after which meeting all board members, except one, resign.
• August 28, 2008. Vantage hires Dr. Garland McCarty as the new CEO of the hospital.
September 10, 2008. At a subsequent meeting of the board, Dr. McCarty is selected/appointed to the board by Dr. Yarbrough, and then five other members of the board are selected by Dr. Yarbrough and Dr. McCarty — Dr. Robert Raulerson, Keith McRee, and the three defendants/appellees herein,
1. Dr. P. Gary Jones,
2. Mike Breard, and
3. Rhonda Haygood.
|3* May 16, 2009. Eight months later, the litigation commences, including this quo warranto suit.

DISCUSSION

A. Did the trial court lawfully grant the motion in limine, allowing only evidence germane to the propriety of the election process itself?

Plaintiffs argue that this matter must be reversed either because the trial court refused to consider the Consent Resolution, or because the trial court assumed it to be binding. We disagree either way.

We find that the trial court sagely granted the limitation sought by defendants. We concur in this ruling, relying upon the consistent reasoning of two of our cases, wherein we also approved the limitation of the inquiry to the narrow issue allowed by quo warranto. See Smith v. Cannon, 43,964 (La.App.2d Cir.12/28/09), 2 So.3d 1227; and Morris v. Thomason, 28,-238 (La.App.2d Cir.4/8/96), 672 So.2d 433.

Plaintiffs are sophisticated individuals, with various educational and professional achievements. In response to the Vantage takeover, the former board cooperated in the transition, resigned as managers, decided against or did not consider a derivative action, and then, much later, three of the former board members filed this quo warranto proceeding.

Hindsight is, of course, 20/20, but had the plaintiffs desired to protest the adoption of the Consent Resolution, an earlier derivative action may have been appropriate for a more generalized and expansive inquiry into |4any contested actions. Instead, the plaintiffs each acquiesced in and to the terms of the Consent Resolution. Now the plaintiffs complain about the very eventuality they each specifically approved, as a board member or a Class “A” stockholder, or both.

In reliance upon the Consent Resolution, Vantage has paid millions of dollars, and we are hesitant to deal with more than is on our plate now, viz., the narrow quo warranto inquiry. We find that the trial court properly found that the defendants were lawfully elected as board members by majority vote of the remaining board member(s), as per Section 6.02(f) of the Operating Agreement, which specifically calls for filling any vacancies on the Board of Managers by a majority vote of the managers.

B. Did the terms of the Operating Agreement prohibit the adoption of the April 2006 Consent Resolution, which resolution facilitated the replacement of the former membership of the Board of Managers?

Three years after Vantage’s initial $500,000 monetary investment, in April of 2006, and long after Vantage had poured another $2 million into the hospital, plaintiffs filed this suit, eight months after participating in their last hospital board meeting. The actual goal here is apparently to seek to undo the Vantage takeover, in effect claiming that their own acquiescence in the terms of the Consent Resolution, and indeed their own actions at their last board meeting, were unlawful. They can’t have it both ways. All told, Vantage had the legal right to control of the hospital through its Option, which was approved by the hospital. A deal is a deal.

IfiOn August 25, 2008, the former board, which included three of these plaintiffs, specifically approved the right of Vantage to exercise special voting rights of the Class “C” members, in order to appoint a new board. When the smoke cleared that day, only one board member was left, Dr. David Yarbrough, who had a hospital to run. The board positions urgently needed filling, and the remaining manager did so, pursuant to the Operating Agreement.

We find that the election/appointment of the three defendants to the Board of Managers was valid and lawful, in accordance with the Operating Agreement, as well as the resolutions passed at the August 25, 2008, board meeting.

We have reviewed the hospital’s election procedures, all of which appear necessary and reasonable, considering the Hospital Operating Agreement, as modified by the Consent Resolution, and considering the dire circumstances in which the hospital found itself in the spring of 2006.

C. Is the management of the LLC lawfully reposed in the present management?

What the former Board of Managers did on August 25, 2008, was to acquiesce in the natural end product of the contingent reorganization of the hospital approved long before, when the hospital desperately needed an | ^infusion of capital in order to keep the doors open. The new managers were selected in the same manner as always, by a majority vote of the managers, in accordance with the Operating Agreement. Testimony by the former CEO, Alan Daugherty, indicated that this same process had always been followed.

We find no error in the proceedings below. We affirm in all respects, at the cost of appellants.

DECREE

The judgment of the trial court is AFFIRMED, at the cost of plaintiffs.

APPENDIX “A”

I,DAVID RENE DUGAS, M.D., W.J. LILES, M.D., CLAUDE B. MINOR, JR., M.D., BENJAMIN M. STAGE, M.D., RANDOLPH H. TAYLOR, M.D., AND EDWARD WORLEY, II, M.D.

VERSUS

MIKE BREARD, RHONDA HAYGOOD AND P. GARY JONES, M.D.

FILED: January 22, 2010.

RULING ON MOTION REMAINING ISSUE

At the conclusion of the trial in this quo warranto suit the Court ruled that, from an objective viewpoint, the resignations of eight members of the Board of Managers of the Monroe Surgical Hospital LLC (“the Hospital”) on August 25, 2008, were not forced but were the voluntary actions of these individuals. To state this another way, it is not reasonable to believe that Vantage Health Care, who is not a party to this suit, or Dr. P. Gary Jones, forced the resignations of these Managers.

Thus, the only remaining issue is whether the present Managers improperly hold their positions because the vacancies subsequent to August 25, 2008 were filled contrary to law.

The Minutes of the Special Meeting Board of Managers on August 25, 2008, reflect that during the discussion period the following occurred:

The Board determined that in light of the circumstances and recent developments, the best action was to recognize the exercise of Vantage’s Option to Purchase the St. Francis Class C Units, expedite the redemption |2of the St. Francis Class C units and recognize amendment of the Operating Agreement to allow vantage special voting rights (as holder of the reclassified St. Francis Units) to appoint a majority (currently five (5) of the nine (9)) Board Members. It was suggested that Vantage be allowed to appoint Board Members in the interim to avoid any “vacuum” in management pending the time delay in closing the St. Francis Redemption.

This discussion was followed by these motions:

1. A motion was made by Dr. Taylor and seconded by Dr. Stage to authorized Alan Daugherty to pay the amount of approximately $118,000 to St. Francis pursuant to the Consent Decree with St. Francis in order to settle all outstanding interest payments with St. Francis, and may be paid in full for the Class C Units previously redeemed. Motion was approved. Dr. Marx abstained.
2. A motion was made by Dr. Taylor and seconded by Alan Daugherty to recognize the exercise of the Option by Vantage to acquire the 100 Class C Units currently held by St. Francis thus amending the Operating Agreement of the Company to reclassify the redeemed St. Francis Class C Membership Interests so that such Units may be transferred to Vantage and further to provide that Members owning Class C Membership Interests have special voting rights to appoint a majority of the Board of Managers, and further to close the sale of the 100 reclassified Class C Membership Interests to Vantage such that upon closing, Vantage shall own all (100%) of the Class C Membership Interests outstanding issued as of this date. Motion was approved. Dr. Marx abstained.
3. A motion was made that, to the extent there is any interim period prior to the redemption, reclassification, and closing of the resale of the Class C Units to Vantage, that the Company and/or the Board hereby authorize Vantage to exercise the special voting rights available to Class C Members to appoint a majority of the Board of Managers, ratifying any such appointments as necessary to maintain a full Board of Managers and implement the change of Board control pursuant to the exercise of Vantage’s option.
4. A motion was made by Dugas, seconded by Turner, to authorize Alan Daugherty to notify all parties of the exercise of the Option by Vantage. Motion approved.

IsAfter this meeting adjourned, eight members of the Board of Managers tendered their resignations, effective immediately. This action left Dr. David Arthur Yarbrough as the only remaining member of the nine member Board. The Hospital CEO, Alan Daugherty, also resigned.

In exercise of its voting rights, as recognized by the Board, Vantage hired Dr. Garland Edward McCarty as CEO of the Hospital on August 28, 2008. Dr. Yar-brough gave notice to Dr. McCarty of a Board meeting to be held on September 10, 2008, to fill the vacancies on the Board of Managers. As CEO of the Hospital, Dr. McCarty was also a member of the Board of Managers with voting rights under the Hospital’s Operating Agreement.

At the Board meeting on September 10, 2008, Dr. McCarty moved to appoint the defendants as members of the Board of Managers. This motion was seconded by Dr. Yarbrough. The defendants were elected by unanimous vote of the two Board members.

The plaintiffs contend that the intent of the parties to the Hospital’s Third Amended and Restated Operating Agreement, expressed through Section 6.07(a) & (b), was that new Managers had to be selected at a meeting of the Hospital’s Membership where all Members would have the right of input into the selection process, even though the ultimate decision of who should serve would rest with Vantage. Plaintiffs also attack the extent of rights actually acquired by Vantage when it exercised its option, specifically in the dilution of Qualified Physician Investors and employing a CEO.

The Court does not agree with or accept plaintiffs’ agreement.

14Section 6.02 (f) of the Hospital’s Operating Agreement provides that “[A]ny vacancy in any Manager position may be filled by a majority vote of the Managers.” Section 6.02 governs Selection of Managers and provides:

(b) the Managers shall include the following, each of whom shall be deemed a voting member of the Board of Managers:
(iii) the “Chief Executive Officer/Hospital Administrator” of the Company shall be entitled to (but shall not be required) to occupy a Manager’s position (the “CEO Manager”) for so long as he or she is employed by the Company in that office (or as otherwise provided in his or her Employment Agreement with the Company.)

The votes of Dr. McCarty and Dr. Yar-brough certainly constituted a “majority.” Even if Dr. McCarty was not considered a proper member of the Board, Dr. Yar-brough’s vote, if the only vote cast, would constitute a majority. Additionally, the previous Board gave Vantage the right “to appoint a majority of the Board of Managers.” See Minutes of Meeting of August 25, 2008, supra.

This Court has heretofore ruled in this quo warranto action it will only consider the authority of the Managers to hold their positions and will not consider the validity of the Consent Resolution which granted the Irrevocable Option Agreement. The extent of rights acquired by Vantage (not a party herein) when it exercised its option is beyond the scope of this suit.

For the above reasons, the demands of plaintiffs are rejected and the defendants | .^recognized as having been properly selected and elected as Members of the Board of Managers and, therefore, properly authorized to hold their positions. This action is dismissed at plaintiffs’ costs.

Monroe, Louisiana, this 22nd day of January, 2010.

/s/ John R. Harrison

JOHN R. HARRISON, JUDGE PRO TEMPORE

1 íSignatories to Consent Resolution — Early April, 2006

Name Serving as one of 8 Managers at the time? Signed as Manager? Consent Resolution signed by 7 of 8 former managers. Signed as Class “A” Member? 34 of 44 signed. Now a Plaintiff? Total of 6 Plaintiffs. Consent Resolution signed by all 6.

Dr. Minor, Plaintiff Yes No Yes Yes

Dr. Marx Yes Yes Yes Not a Plaintiff.

Dr. Taylor, Plaintiff Yes Yes Yes Yes

Dr. Ban-Yes Yes Yes Not a Plaintiff.

Dr. Yarbrough Yes Yes Yes Not a Plaintiff.

Dr. Dugas, Plaintiff Yes Yes Yes Yes

Dr. Stage, Plaintiff Yes Yes Yes Yes

Mr. Daugherty, CEO Yes Yes Not an “A” Member. Not a Plaintiff.

34/44 Class “A” Members (77%) Signed.

Dr. Liles, Plaintiff No Not a Manager. Yes Yes

Dr. Worley, Plaintiff No Not a Manager. Yes Yes

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . David Rene Dugas, M.D.; W.J. Liles, M.D.; Claude B. Minor, Jr., M.D.; Benjamin M. Stage, M.D.; Randolph H. Taylor, M.D.; and Edward Worley II, M.D.

      . C.C.P. Art. 3901. Definition
      Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.

      . Mike Breard, Rhonda Haygood, and P. Gary Jones, M.D.

      . At all relevant times, St. Francis Hospital owned these issued shares.

      . See Appendix B.

      . In order to secure the option to obtain control of the hospital, Vantage paid $500,000 immediately and agreed to pay $400,000 more if it exercised its option, less credits. Duly authorized by the Consent Resolution, the option was signed by then-CEO Alan Daugherty, on behalf of the hospital, and by P. Gary Jones, M.D., on behalf of Vantage.

      . In actuality, by the time Vantage exercised its option on August 25, 2008, it had paid approximately $2.5 million into the hospital. **

         *

      . One board member abstained on some of the resolutions.

      . Dr. David Yarbrough.

      . Consisting of only one person at the meeting's inception, Dr. Yarbrough.

      . The authority of the three named defendants to hold office on the Board of Managers.

      . Along with three former Class "A" Members.

      . Each plaintiff voted to approve the Consent Resolution in 2006.

      . $500,000 up front, to keep the hospital afloat, and $400,000 (less credits) upon exercising the option.

      . The other three plaintiffs signed the Consent Resolution as "Members” of the hospital.

      . "Any vacancy in any Manager position may be filled by a majority vote of the Managers[.]”

      . All former members of the Board of Managers signed the Consent Resolution, in one capacity or another.

      . The hospital was apparently facing imminent bankruptcy, due to deteriorating finances.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lavester GILMORE.
    No. 2010-KA-0059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, Counsel for Plain-tifiyAppellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant, Lavester Gilmore.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN.
   PAUL A. BONIN, Judge.

|) Lavester Gilmore was charged by bill of information with distribution of an imitation or counterfeit substance which is represented to be a controlled dangerous substance. See La. R.S. 40:964, Schedule II A(4), and 40:971.1 A. He appeals his conviction for attempted distribution of such a substance. See La. R.S. 14:27 and La.C.Cr.P. art. 814 A(54). He assigns two errors: the first concerning the legality of the verdict returned by the jury and the second claiming the evidence is legally insufficient for the conviction. Because we conclude that the jury returned a legal verdict and because we determine that a rational trier of fact could be convinced beyond a reasonable doubt of Mr. Gilmore’s guilt, we affirm his conviction.

I

While surveilling activity in the French Quarter, just after midnight, some undercover or plainclothes New Orleans police officers observed Mr. Gilmore in an exchange with James Salazar. The two men appeared to be checking whether |2they were being observed, so the officers hid behind a nearby SUV to continue their observation undetected by Mr. Gilmore and Mr. Salazar. The officers overheard Mr. Gilmore tell Mr. Salazar to go to a nearby ATM and get money after which he would give “it” to Mr. Salazar. Mr. Salazar then walked to the ATM. Being unsuccessful in using the ATM, Mr. Salazar started screaming and punching the machine. Mr. Gilmore called out to him, telling him to stop doing that, and warning that he would get them arrested.

Mr. Gilmore settled for the money Mr. Salazar already had on him. With his right hand, Mr. Salazar gave Mr. Gilmore what the police later determined to be fourteen dollars. With his left hand, Mr. Gilmore gave Mr. Salazar a small baggie of white powder.

The officers, who were experienced in narcotics matters, believed that they had just witnessed a narcotics transaction. Asked why he believed that, one of the officers explained:

Just because of the package, [sic] was a small package of white powder. It was, you know, wrapped in [sic] little plastic, which is consistent with small bags of either crack cocaine or powdered cocaine.

Another officer had seen, on several occasions in the past, narcotics packaged the same as the white powder in the instant case was packaged.

As it turned out, these experienced officers themselves had been fooled by the appearances of the substance and of the packaging. After the arrests of Mr. Gilmore and Mr. Salazar, the white powder was field tested and the testing revealed that the white powder substance was not a controlled dangerous |ssubstance. Over Mr. Gilmore’s objection, the prosecution introduced into evidence the report of a criminalist, revealing that the white powder tested negative for a controlled dangerous substance. The officers conceded that at no time did they overhear either Mr. Gilmore or Mr. Salazar utter either the word “cocaine” or a slang word meaning “cocaine.”

Donald Daly, custodian of bank records for Wachovia Bank, identified Mr. Salazar’s ATM withdrawal records, which showed that $400 was withdrawn from the French Quarter ATM at 12:19 a.m. Mr. Daly confirmed on cross examination that the withdrawal would have actually been made at 11:44 p.m. on the day before or about forty-five minutes before the officers, according to them, observed Mr. Gilmore.

II

We first consider the verdict that the jury returned in this matter. Mr. Gilmore noted an unexplained discrepancy in an addendum to the transcript of the trial. The addendum, which followed a transcription of verbatim proceedings, is not a verbatim entry. It appears to be a notation by the court reporter who prepared the transcript.

This addendum stated that the court charged the jury, that the jury retired to deliberate, and that the jury returned to open court with a verdict of “attempted possession of imitation controlled dangerous substance.” (emphasis supplied) Mr. Gilmore correctly argues that neither possession nor attempted possession of an imitation controlled dangerous substance (CDS) is a crime. La. R.S. 40:971.1 A provides in pertinent part:

|4It shall be unlawful for any person to produce, manufacture, distribute, or dispense any substance which is represented to be a controlled dangerous substance and which is an imitation controlled dangerous substance, or any controlled dangerous substance which is a counterfeit controlled dangerous substance.

See also State v. Legaux, 94-1536 (La.App. 4 Cir. 6/29/95), 658 So.2d 319, 322.

Attempted distribution of imitation or counterfeit CDS, however, is a responsive verdict to a violation of § 971.1 A. See La.C.Cr.P. art. 814 A(54). The minute entry from the day of trial, unlike the addendum, recites that the jury found the defendant guilty of attempted distribution of false CDS. A supplemental transcript was furnished to us after Mr. Gilmore raised the matter of the apparent discrepancy. The verbatim transcript set forth the following:

BY THE COURT:
Ladies and gentlemen, I have reviewed the verdict slips, and this is indeed a proper verdict.
BY THE CLERK (Ms. Friedman):
We, the jury, find the defendant guilty of attempted distribution of imitation controlled dangerous substances.

The trial judge found nothing objectionable in the jury’s verdict. See La.C.Cr.P. art. 813. Although the clerk of the district court, despite our request, was unable to furnish us with the jury verdict form, we are persuaded that the jury’s verdict was responsive to the offense charged and is lawful. We note that, except for this sole unexplained discrepancy in the addendum, there is no other indication in the record that the verdict is unresponsive or unlawful. Mr. Gilmore’s trial counsel made no objection to the verdict, either at the time of its return or later by a motion in arrest of judgment. See La.C.Cr.P. arts. 859(5) and 862. Moreover, |5at the time of Mr. Gilmore’s sentencing, his trial counsel stated that Mr. Gilmore had been convicted of attempted distribution of imitation CDS.

Accordingly, we conclude that the verdict is responsive and lawful, and Mr. Gilmore is not entitled to a new trial. See La.C.Cr.P. art. 862.

Ill

We next consider whether there is sufficient evidence of guilt beyond a reasonable doubt. The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560:

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” ... Instead, the relevant question 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 Johnson v. Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625, 32 L.Ed.2d 152 (1972).

(bold emphasis in original; italicized emphasis added; ellipsis indicate citations omitted).

A

We first put to rest Mr. Gilmore’s contention that we should disregard the police officers’ testimony because it is unworthy of belief. Without belaboring Mr. Gilmore’s accusations concerning the conduct of the officers, they center around money “missing” from the time of the ATM withdrawal of $400 until the seizure, |fiabout forty-five minutes later, of fourteen dollars as well as conflicting police testimony about which officer “processed” which of the arrested persons. Mr. Gilmore argues that this jury’s verdict was not rational and that this jury “should have been driven to have a reasonable doubt about [Mr. Gilmore’s] guilt by the complete lack of credibility of the police officers.”

But the United States Supreme Court has explained that this standard of review for sufficiency of evidence is highly deferential to the factfinder:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). Thus, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 2006-481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. “It is not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const., art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 11 (La.App. 4 Cir. 2/24/10), 32 So.3d 999.

| ./Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider, as Mr. Gilmore’s argues, the officers’ testimony. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise.

B

In determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we consider “in the light most favorable to the prosecution” not only the facts but also reasonable inferences drawn “from basic facts to ultimate facts.” See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

An essential element of the offense is the criminal intent required by La. R.S. 40:971.1 is implicit in the word “represented;” when one “represents,” he acts with intent. State v. Pierre, 500 So.2d 382, 385 (La.1987); State v. Davis, 02-2059, p. 5 (La.App. 4 Cir. 1/22/03), 839 So.2d 176, 179. Explaining that the culpable mental element in R.S. 40:971.1 is “the representation underlying the nature of the substance,” the Louisiana Supreme Court stated: “It is impossible for one to unknowingly represent that a substance is an illegal drug or narcotic. When one ‘represents,’ he acts with intent. Thus, the criminal intent required by the statute is implicit in the word ‘represented.’” Pierre, 500 So.2d at 384-385 (emphasis added).

However, “[t]he offender’s actual knowledge of the nature of the substance is irrelevant.” Pierre, 500 So.2d at 385. Under the facts of the instant case, the prosecution bore the burden of proving criminal intent by showing that Mr. Gilmore distributed, or attempted to distribute, a substance which he represented to |sbe a controlled dangerous substance, not that he knew that the substance which he represented was not the CDC he was representing it to be. See Pierre, supra, 385.

Mr. Gilmore questions whether the essential element of “representation” has been proven beyond a reasonable doubt. He pointedly argues that in nearly all the convictions upheld on appeal for a violation of § 971.1, the representation was verbal. Because he notes that there is no evidence that any verbal representation was made in this matter, he concludes that no rational trier of fact could conclude beyond a reasonable doubt that he is guilty of representing the substance as a CDS. We disagree. The cited decisions are authority for the proposition that a verbal misrepresentation is sufficient to prove the essential element of false representation; none purport, however, to be authority that a verbal representation is necessary to prove this element.

For example, in State v. Davis, supra, Detective Keating, who was undercover, exchanged twenty dollars for a pill that the defendant verbally represented to be ec-stacy. While there was a verbal communication by the defendant as to the nature of the substance, the court ultimately found that “[t]he fact that defendant sold this single tablet for twenty dollars evidences his intent to represent the product as the controlled dangerous substance Det. Keat-ing knew as ecstaey.” Davis, 839 So.2d at 180. The court in Davis held that all the evidence, viewed in the light most favorable to the prosecution, supported a finding beyond a ^reasonable doubt by any rational trier of fact that the defendant had distributed a tablet to the detective while knowingly representing it to be a CDS, when it was in fact an imitation CDS. Id. In this case, Mr. Gilmore gave Mr. Salazar a small bag of white powder in exchange for fourteen dollars. In light of this fact and the surrounding circumstances discussed in Part I, supra, we do not agree that evidence of a verbal representation is required in order to reasonably conclude that Mr. Gilmore represented that the baggie contained a CDS.

In State v. Jack, 02-0357, p. 2 (La.App. 3 Cir. 10/30/02), 829 So.2d 1089, 1090, the arresting officer identified the defendant as the person who gave her a rock (that appeared to be crack cocaine) in exchange for twenty dollars after she stated to the defendant’s brother that she wanted to purchase a “rock.” The defendant in Jack argued on appeal that the evidence against him was insufficient because he “made no representations” as to the content of the false narcotic. Jack, supra, 829 So.2d at 1091. The court found that, although the undercover officer and the defendant did not have a verbal exchange during the transaction, it was nonetheless reasonable to conclude that the defendant knew that the officer wanted to purchase crack cocaine “because the substance he gave her resembled crack cocaine.” Jack, supra, 829 So.2d at 1092. Likewise, we conclude that the evidence adduced at trial supports the reasonable inference that Mr. Salazar communicated to Mr. Gilmore his desire to purchase cocaine — and not a substance that merely looked like cocaine. See Jack, supra.

§ 971.1 itself, of course, does not require by its own terms that the representation be verbal. A rational trier of fact could have found that the suspicious actions of both Mr. Gilmore and Mr. Salazar, who appeared to experienced police officers to be engaged in a furtive narcotics transaction by | inexchanging a cocaine-appearing substance wrapped in packaging that mimicked the type of packaging used by drug dealers selling real cocaine for cash, was proof beyond a reasonable doubt that Mr. Gilmore represented the non-CDS substance as a CDS. Considering the circumstances, Mr. Gilmore’s representation can be established by his actions, the presentation of the substance and its packaging. The representation need not be verbal. Under these facts, along with Mr. Gilmore’s stated concern that Mr. Salazar’s action of banging on the ATM would get them both arrested, a rational trier of fact could have reasonably inferred that the only representation, verbal or otherwise, Mr. Gilmore was making to Mr. Salazar was that he was selling him a CDS.

Based upon our review of all of the evidence in the light most favorable to the prosecution, we find that any rational trier of fact viewing all of the evidence in that same light could have found Mr. Gilmore guilty beyond a reasonable doubt of all elements of the offense, including the element of false representation.

DECREE

Accordingly, for the foregoing reasons, the conviction and sentence of Lavester Gilmore is affirmed.

AFFIRMED.

      . We have, as we always do, also reviewed the record for errors patent and have found none. See La.C.Cr.P. art. 920(2).

      . Mr. Gilmore did not assign this as an error. See La.C.Cr.P. art. 920(1). See also Melendez-Diaz v. Massachusetts, 557 U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

      . There does not appear any formal requirement for filing the jury's verdict into the record. See La.C.Cr.P. art. 811.

      . Cases cited by Mr. Gilmore include: Davis, supra, (defendant said he had some ecstasy and sold the officer a tablet for twenty dollars); State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923 (an undercover officer asked defendant if he had "20 hard,” which the same officer explained at trial was street slang for twenty dollars worth of crack cocaine); State v. Taylor, 04-200, p. 3 (La.App. 5 Cir. 10/26/04), 888 So.2d 272, 275 (the undercover officer met the defendant, who he asked for "two '20's', street slang for two rocks of crack cocaine.”); State v. Robinson, 624 So.2d 1260, 1262 (La.App. 2 Cir.1993) (a confidential informant requested to purchase a "twenty cent rock.”); State v. Ray, 521 So.2d 582 (La.App. 1 Cir.1988) (the defendant replied that he had amphetamines); State v. McGee, 478 So.2d 249, 250 (La.App. 2 Cir.1985) (the defendant responded that they were not caffeine but "Black Mollies ... amphetamines.”), and State v. Ourso, 438 So.2d 1239, 1241 (La.App. 3 Cir.1983) (defendant "indicated that the white powdery substance within the packets was crystal.").


author: JAMES F. McKAY III, Judge.

text:
    Marion BAKER v. Ryan J. HURST, Allstate Insurance Company, Thomas Hurst and the XYZ Insurance Company.
    No. 2010-CA-0210.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2010.
    Donald F. deBoisblanc, Jr., Donald F. deBoisblanc, Sr., J. Rand Smith, Jr., New Orleans, Louisiana, Counsel for Plaintiff/Appellee.
    H. Minor Pipes III, Susan M. Rogge, Barrasso Usdin Kupperman Freeman & Sarver, LLC., New Orleans, Louisiana, Counsel for Defendant/Appellant, Liberty Mutual Fire Insurance Company.
    Wade A. Johnson, Law Offices of Harold G. Toscano, New Orleans, Louisiana, Counsel for Defendant/Appellee, Allstate Insurance Company.
    Robert M. Johnston, D. Russell Holwa-del, Guy H. Bumpas IV, Johnston Hoefer Holwadel & Eldridge, New Orleans, Louisiana, Counsel for Defendant/Appellee, Ryan J. Hurst.

      Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.
   JAMES F. McKAY III, Judge.

| j Liberty Mutual Fire Insurance Company appeals the judgment of the trial court granting Marion Baker’s and Allstate Insurance Company’s motion for summary judgment. The trial court found that the appellant’s homeowners’ policy was applicable as Ms. Baker’s injuries that resulted from an accident that did not arise from Mr. Hurst’s use of his vehicle. For the reasons that follow we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 17, 2008, Ryan Hurst and Marion Baker were guests at Nancy Isaac-son’s, a mutual friend’s, birthday party at 3504 Napoleon Avenue. Mr. Hurst had parked his Ford F-250 extended cab pickup truck next to the curb and adjacent to a driveway on South Galvez Street. Marion Baker’s Chevrolet van was parked in the driveway. As they were both leaving, Mr. Hurst discovered that he had locked his keys in his pickup truck. He found a piece of metal frame from which he fashioned a metal lock pick and used it to open the truck door. Once the door |2was opened he flung the metal lock pick away. Unbeknownst to Mr. Hurst the metal object ricocheted off of the truck bed into the air, entered Ms. Baker’s open driver side window, which was facing the truck’s cargo bed, and struck Ms. Baker in the eye. This accident caused Ms. Baker to sustain a severe injury to her eye lens which required surgery and resulted in permanent eye disability.

At the time of the accident, Mr. Hurst was living with his parents who had two policies of liability insurance from Liberty Mutual Fire Insurance Company (“Liberty Mutual”), a homeowners’ policy with $300,000.00 liability coverage and an automobile liability policy with $30,000.00 liability coverage. Ms. Baker filed suit against Mr. Hurst and Liberty Mutual in its two capacities, Liberty Guard Deluxe Homeowners’ and Liberty Guard Auto, alleging, alternatively, that one or the other policy provided liability coverage to Ryan Hurst, and also against Allstate Insurance Company, her UM policy insurer. Ms. Baker ultimately filed a motion for partial summary judgment against Liberty Mutual asserting that its homeowner’s policy insured Mr. Hurst for his negligent act. In response, Liberty Mutual filed a cross motion for summary judgment, asserting that its homeowners’ policy did not insure Mr. Hurst at the time of the accident because the accident was a result of the use of a vehicle under its automobile liability policy.

The trial court heard both of the motions and granted Ms. Baker’s partial motion for summary judgment and denied Liberty Mutual’s motion for summary judgment.

^ASSIGNMENTS OF ERROR

Liberty Mutual asserts that the trial court erred in finding (a) that the homeowners’ policy provided coverage to Mr. Hurst even though the policy contained a “vehicle use exclusion” clause and (b) that the homeowners’ policy provided coverage for the accident.

STANDARD OF REVIEW

Applicable jurisprudence and statutory authority have clearly established that appellate courts review summary judgment de novo.

DISCUSSION

Liberty Mutual seeks to restrict coverage to the automobile liability policy thus precluding coverage under the homeowners’ policy based on the exclusion clause and asserts that this exclusion clause operates to bar recovery under the homeowners’ policy. The homeowners’ policy specifically excludes coverage for personal liability and medical payments for bodily injury “arising out of the ownership, maintenance, use, loading or unloading of motor vehicles ... owned or |4operated by or rented or loaned to an ‘insured’ “An ‘insured’ means you and residents of your household who are: a. your relatives....”

The crux of the argument and the determinative issue is whether Mr. Hurst’s act of using a wire to gain access to his vehicle and throwing that wire into his truck bed constitutes, as contemplated by the policies, use or loading of the vehicle for the purpose of coverage under the homeowners’ policy or the automobile liability policy.

The trial court determined that Ryan Hurst’s action was negligent in ways separate and apart from the operation of the vehicle. Thus, he had an independent duty to exercise reasonable care in disposing of the metal wire. Therefore, the auto exclusion clause in the homeowners’ policy did not apply.

Ryan Hurst’s negligent act of throwing the metal object onto a hard surface, the truck bed, had no connection with the use of his truck and is not to be construed as a use of his vehicle. The Liberty Mutual automobile policy clearly established that there is coverage for negligent acts of it insured while in the “use” of his vehicle. The homeowners’ policy provides coverage because the injury did not involve “use” of the vehicle. Mr. Hurst’s may have been negligent in tossing the metal object but he was not negligent in operating or using his vehicle. The fact that the metal ricocheted off the truck bed after being thrown and before causing injury is merely incidental.

In the case of Terminix Services, Inc. v. State Farm Mut. Auto. Ins. Co., 01-720 (La.App. 5 Cir. 11/27/01), 803 So.2d 198, the court recounted in detail the | ^considerations to be made when making a determination of what “use” of a vehicle means. The meaning of the term “use” in vehicle liability insurance policies has been the subject of much litigation. It is well established that one need not be actually operating or driving a vehicle in order to be using it. Baudin v. Traders and General Insurance Company, 201 So.2d 379, 381 (La.App. 3rd Cir.1967), Tolleson v. State Farm Fire and Cas. Co., 449 So.2d 105, 108 (La.App. 1st Cir.1984).

Further, the jurisprudence of Louisiana has given a broad interpretation to the words “arising out of the ... use of the automobile.” The totality of the circumstances surrounding or leading up to an accident should be examined in determining if accident arose out of the “use” of the automobile or truck. By looking to what part the automobile played in the entire scheme the courts can determine if there is coverage, and if so, how far it will be extended. Each case must depend on its facts according to the part the automobile played in the scheme. U.S. Fidelity & Guar. Co. v. Burris, 240 So.2d 408, 409 (La.App. 2 Cir.1970).

In Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), the Supreme Court established the analysis to be used in determining whether an accident arose out of the “use” of an automobile. The Court noted that the “use” provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Thus, the courts are required to answer two separate questions:

|fi(l) Was the conduct of the insured of which the plaintiff complains a legal cause of the injury?

(2) Was it a use of the automobile?

In deciding the first of the two issues listed above — that is, whether the policy holder’s actions were a legal cause of the plaintiffs damages, the Court in Carter considered whether the insured person breached a legal duty imposed to protect against the particular risk involved. Id. at 1084. In so doing, the Court applied a lengthy and comprehensive duty/risk analysis. After detailing the policy holder’s duty not to circumvent barricades and drive on closed roads, a duty imposed by statutory law, the Court found that the risk of the ten-year-old passenger drowning was encompassed by that duty. Id. at 1086. In reaching that conclusion, the Court noted that the particular risk might have been unforeseeable, but nevertheless found that it was within the ambit of the duty because it was “easily associated with the rule relied upon and with other risks of the same type that are foreseeable and clearly within the ambit of protection.” Id.

Also in Carter v. City Parish Government of East Baton Rouge, supra followed in Kessler v. Amica Mutual Insurance Co., 573 So.2d 476 (La.1991), the Louisiana Supreme Court noted that the “arising-out-of use” provision was designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury.

The present matter is distinguishable from CaHer in that Carter did involve a homeowners’ policy. Apposite to this case is that Mr. Hurst was not driving his 17vehicle and the vehicle was clearly not the cause in fact of the injury to the plaintiff. The cause in fact of Ms. Baker’s injury was the negligent personal act/action of the defendant vis-a-vis throwing the metal wire pick in an unsafe manner. His negligent act of throwing the metal wire, not his negligent use of the vehicle, was clearly the legal cause of the injury, an action independent from the use of his truck. It was foreseeable that the act of throwing the metal wire, allegedly in a violent manner, could have adverse consequences. In this case a wire, negligently thrown by the defendant, ricocheted off of the truck bed into the plaintiffs open car window and seriously injured the plaintiff. This fulfills the first prong of the inquiry.

To meet the second prong of the Carter analysis, the vehicle must be central to the theory of liability. Courts should apply a common sense approach to determine whether the duty breached by the insured flowed from the automobile’s “use” under the policy language. Casso v. United Cabs, Inc., 96-0982, p. 5 (La.App. 4 Cir. 1/29/97), 688 So.2d 180, 183, citing Fertitta v. Palmer, 252 La. 386, 211 So.2d 282 (1968).

In order for the conduct to arise out of the use of the vehicle, the automobile must be essential to the theory of liability. The specific duty breached by the insured must flow from the use of the automobile. If the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of the |sautomobile. W.S. McKenzie and H.A. Johnson, Louisiana Civil Law Treatise, Volume 15, Insurance Law and Practice, § 65 (1986).

If our analysis was a “but not for analysis” the defendant’s argument might have some plausibility for its theory of liability. While the wire may have been essential to the use of the vehicle that connexity ended when the Mr. Hurst discarded it. The act of discarding the wire was negligence and the injury that followed was a direct result of this negligence. Given the totality of the circumstances and a common sense analysis we conclude, as did the trial court, that the duty that the defendant breached did not flow from the use of his truck. The truck was not essential to the issue of liability. Hence, the second prong of Carter has not been met.

CONCLUSION

Based on the above and forgoing we find that the plaintiff has met her dual burden of proving that there are no genuine issues of material fact and that she is entitled to a judgment as a matter of law. The trial court concluded that the plaintiff proved her theory of liability and that the homeowners’ policy applied to this incident, not the automobile liability policy. We agree with this determination and affirm the judgment of the trial court.

AFFIRMED.

      . The record reflects the Liberty Mutual Insurance Company appealed the judgment, not the party cast in judgment, Liberty Mutual Fire Insurance Company.

      . Allstate Insurance Company is Marion Baker’s U/M insurer.

      . A/k/a/ Liberty Guard Deluxe Homeowners’ and Liberty Guard Auto, respectively.

      . Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. "Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action' and shall be construed to accomplish these ends.” King v. Parish National Bank, 2004-0337 (La. 10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).
      A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Alexis v. Southwood Ltd. Partnership, 2000-1124 (La.App. 4 Cir. 7/18/01), 792 So.2d 100, 102. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must "make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Kashie FERNANDEZ.
    No. 2009-KA-1727.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   STATEMENT OF CASE

MICHAEL E. KIRBY, Judge.

| t On September 26, 2008, the State charged Kashie Fernandez with armed robbery and aggravated kidnapping. Defendant appeared for her arraignment, and the trial court modified the terms of her bond obligation, ordering that she be placed on a twenty-four curfew supervised through the TSAP program. The minute entry from this setting does not indicate whether defendant entered a plea.

Subsequently, the State amended count two of the bill of information to second degree kidnapping, and defendant pled not guilty to the amended charge. Evidence was taken on defense motions over three days; the court denied the motion to suppress the identification and found probable cause.

On May 13, 2009, the trial court revoked defendant’s original bond, removed her from the TSAP program, and increased her bond.

On the day of trial, the defense moved for a continuance arguing that several articles in the Times-Picayune that month had unfairly prejudiced defendant. The trial court denied the motion, and the case proceeded to trial. The jury found the defendant guilty of the responsive verdict of simple robbery and guilty as charged of second degree kidnapping. At the sentencing hearing, defendant’s mother, Kim |aJefferson, her pastor, Henry Jounson, Jr., and her uncle, Jewel Rushing, testified for her.

For simple robbery the trial court sentenced the defendant to seven years at hard labor in the custody of the department of corrections, and for the second degree kidnapping, the trial court sentenced defendant to forty years at hard labor, the first two years of the sentence were ordered to be served without benefit of probation, parole, or suspension of sentence. The sentences were ordered to be served concurrently. The defendant filed a motion to reconsider the sentences.

The state filed a multiple bill of information alleging that the defendant was a second felony offender, having previously been convicted of theft in 2002. Defendant pled guilty to the multiple bill on July 9, 2009. The court vacated its previous sentence for second degree kidnapping and re-sentenced defendant to forty years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant filed a motion to reconsider the multiple bill sentence, which the court denied.

STATEMENT OF FACT

Natalie Ross testified that in May of 2008 she was living in Slidell, Louisiana, with her fiancé, Wendell Cousin, and their infant daughter. Ross ran a successful hair salon from her house. Ross recounted how she grew up in the Gentilly Woods section of New Orleans, along with Cousin, whom she had known practically her entire life. Kashie Fernandez also grew up in the same neighborhood, and Ross had known her since she was thirteen years old.

Fernandez telephoned Ross in early May. The two talked at length catching up, and then Fernandez told Ross that she wanted to come to her house for a visit.) s Ross gave her directions. Ross thought it strange that Fernandez would want to come to her house after they had talked for so long, especially since Fernandez lived in Baton Rouge. Fernandez and her boyfriend stopped by the house later in the day for a brief visit of only about ten minutes. Apparently, the two almost left before coming in, as Ross saw the car leaving driveway as she came outside.

About a week later, early in the day on May 12, Ross received another telephone call from Fernandez, who related that she was in New Orleans and needed a ride. Ross was busy and unable to leave right away. She did nothing about the call. Over the course of the day, Ross received four more telephone calls from Fernandez. At 1:50 p.m., Fernandez called to see where Ross was and what was taking her so long; she called again shortly after 3:00 p.m. and again about an hour later and finally at 4:15 p.m. After telling Fernandez that she was coming to get her, Ross telephoned Cousin, who was in New Orleans East, and asked him to get Fernandez. Ross gave him Fernandez’s phone number, and he called Fernandez to get her exact location.

At trial, Ross identified phone records detailing the times that the calls were received.

Wendell Cousin testified that Ross called him and asked him to pick up Ka-shie Fernandez because Ross was unable to do so. Cousin agreed to pick up Fernandez. He called her on the phone, and she told him that she was in the Little Woods area off of Curran Boulevard by Sand Street. She was not able to provide a specific address and described the intersection where she was located.

When Cousin arrived at the location, he observed Fernandez and her boyfriend, whom he had met the week before in Slidell when they came to visit. Cousin pulled the car over and briefly looked down while he cleared the passenger |4seat of some personal belongings. When he looked up, he saw two men with guns standing at his window. Kashie’s boyfriend opened the passenger door and got in the car. He was armed and asked Cousin where the money was. He took six hundred dollars from Cousin, which Cousin said he had earned by painting at a neighbor’s house earlier in the week.

Then the two men in the street opened the driver’s side door and told Cousin to get out. They searched him and removed his wallet and all of his belongings. Fernandez was standing with her boyfriend on the other side of the car. She looked calm.

Cousin was then instructed to enter the backyard of the adjacent house. When they got to the backyard, he was made to lie on the ground face down, and the men bound his hands and feet and tied them together. There were four men altogether. While Cousin was on the ground, one of the men told Cousin that “she said, ‘You all have it.’ And we know that your fiancé and your baby are at the house. And if we don’t get nothing, we’re going to kill both of them.” Cousin believed the man was referring to Kashie.

When Cousin heard this, he cussed the men out, and one of them hit him in the head. After that, three of the men carried him to the car, which was backed up in the driveway. Upon reaching the car, they dropped him on the ground, and he heard one of them say, “Hold on, a neighbor.” A few seconds later he said, “Okay”, and then they threw him in the trunk. The car drove off, with the radio playing loudly and people were talking, but he could not hear what anyone was saying.

IsAfter a few minutes, the car stopped and everyone got out. Cousin heard the door open, and someone said, “Take care of your business and wipe the car down when you’re finished.” Cousin believed that he was going to be killed.

Cousin was able to loosen the knots behind his back and get his arms and legs free. The car began to move again, and when it stopped, Cousin pulled the inside trunk release, got out, and ran. Cousin saw a woman and her son standing on a nearby corner. He asked to use her phone and called Ross to tell her to get out of the house. Then Cousin called a friend, who arrived about forty-five minutes later and took him home. He found Ross across the street, safe. Cousin explained that he did not call the police right away because he was in a rage and wanted only to do something to hurt Fernandez.

Ross testified that after Cousin called her, she grabbed her baby and ran to a neighbor’s house; Cousin arrived about an hour later. Ross testified that he was acting crazy and talking about getting back at Fernandez. She was able to calm him down, and after first calling the Slidell Police Department, they traveled to New Orleans to report the crime.

Detective Darrell Doucette testified that he encountered Wendell Cousin and Natalie Ross when they arrived at the Seventh District Police Station to report a robbery and kidnapping. Cousin appeared very upset. Doucette observed that Cousin had a rope tied to one wrist. He could see indentions and abrasions from where his wrists were bound together. The rope was collected as evidence and admitted at trial. Photographs taken of Cousin at the station were presented to the jury. Later, Detective Doucette returned to the area and interviewed the few residents on the street. No one recognized a photograph of the defendant.

| fiCousin and Ross were able to identify the defendant only by her first name and part of her last name. Detective Doucette was able to identify Fernandez by visiting her neighborhood as directed by Cousin. With this information he compiled a photographic lineup. Cousin identified her from the lineup, and Detective Doucette obtained a warrant for her arrest.

Detective Doucette traveled with Wendell Cousin to Little Woods where the robbery took place, which Doucette explained remained mostly unoccupied after Hurricane Katrina. Detective Doucette identified photographs of the driveway and surrounding area that were taken by the crime lab.

The defense called Don Carter, an investigator, as a witness, and the State moved for a sidebar. In chambers, the court asked defense counsel to state the basis for calling the witness. Counsel explained that he engaged Don Carter to investigate Wendell Cousins’ statement that he earned the six hundred dollars taken in the robbery by painting for a man who lived across the street from his grandparent’s house. Counsel explained that Mr. Carter determined that there was only one house across the street from Cousin which was not abandoned, and that he interviewed the owner who denied knowing Wendell Cousin. Counsel explained that he had issued a subpoena for the neighbor at the previous trial setting but did not see him at that time. Counsel stated that he had placed a telephone call to the subject the previous evening but did not get a response.

The State objected to Investigator Carter testifying, on the basis that his testimony would be hearsay. The trial court agreed and ruled that Investigator Carter’s testimony would be inadmissible hearsay. Defense counsel noted his objection and moved for a mistrial on the basis that Ms. Fernandez was being 17denied the right to present a defense. The trial court denied the motion, and the defense rested.

ERRORS PATENT

A review of the record for errors patent reveals one. Neither the docket master nor the minute entries indicate that the defendant ever entered a plea on the charge of simple robbery. Although the docket master and minute entry from October 16, 2008, reflect that the defendant was arraigned, there is no indication that she actually entered a plea to either charge.

La.C.Cr.P. art. 8B1 provides in pertinent part that a defendant must be present at arraignment and when a plea is given. La.C.Cr.P. art. 555 provides, inter alia, that failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters the trial without objecting thereto. In such a case, it shall be considered as if he had pleaded not guilty.

The defendant has shown no prejudice resulting from the patent error. She did not object to the omission at her arraignment, at trial or on appeal. Because her plea of not guilty can be assumed, the failure of the record to show that she was arraigned on the charges in this case is harmless error. State v. Perez, 98-1407 (La.App. 4 Cir. 11/3/99), 745 So.2d 166.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the evidence was insufficient to support her convictions for second degree kidnapping and simple robbery. When issues are | ^raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55; State v. Shaw, 2007-1427 (La.App. 4 Cir. 6/18/08), 987 So.2d 398.

In State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877, the Louisiana Supreme Court discussed the standard of review for claims raising the sufficiency of the evidence as follows:

In reviewing the sufficiency of the evidence to support a conviction, we follow the due process standard of review enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that 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. Captville, 448 So.2d 676, 678 (La.1984). That standard “preserves the role of the jury as the factfinder in the case but it does not allow jurors ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ ” State v. Pierre, 93-0893 at p. 5 (La.2/3/94), 631 So.2d 427, 429. The jury is not allowed to engage in speculation based merely upon “guilt by association.” 93-0893 at pp. 5-6, 631 So.2d at 429. In order for the trier of fact to convict and for the reviewing court to affirm a conviction, the totality of the evidence must exclude reasonable doubt.
Under Jackson, all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. See State v. Jacobs, 504 So.2d 817, 820 (La.1987). When circumstantial evidence forms the basis of the conviction, the totality of such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. However, “Mypotheses of innocence are merely methods for the trier of fact to determine the existence of a reasonable doubt arising from the evidence or lack of evidence.” State v. Shapiro, 431 So.2d 372, 389 (La.1982) (on reh’g) (Lemmon, J., concurring). This circumstantial evidence rule is not a separate test from the Jackson standard; rather, La. R.S. 15:438 merely “provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilty 1 nbeyond a reasonable doubt.” State v. Wright, 445 So.2d 1198, 1201 (La.1984). “Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.” State v. Chism, 436 So.2d 464, 470 (La.1983).

Id., pp. 8-9, 823 So.2d at 889.

Defendant contends the evidence was insufficient to establish that she was directly concerned in the commission of either Cousin’s robbery or his second degree kidnapping. She argues that, at best, the State’s evidence demonstrates that she got Cousin to go to Sand Street after which she left and that there was no evidence that she intended to participate in anything that happened after she left. She further asserts there is no evidence that she agreed to or assisted with the use of force, or the plan to take Wendell Cousin anywhere in the car.

In order to convict a defendant of simple robbery, the State must prove that defendant: (1) took something of value (2) belonging to another (3) from the person of another (4) by use of force or intimidation. La. R.S. 14:65; State v. Florant, 602 So.2d 338 (La.App. 4 Cir.1992).

Second degree kidnapping, in pertinent part, is the forcible seizing and carrying of any person from one place to another, wherein the victim is imprisoned or kidnapped when the offender is armed with a dangerous weapon. La. R.S. 14:44.1(A)(5) & B(l).

La. R.S. 14:24 defines “principals” as “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crimef.]”

| ^Generally, courts reviewing a defendant’s conviction as a principal look to evidence of actions preceding the offense, during the offense, and after the offense. Often, the State is able to show a defendant helped plan the offense at issue, or knew of the plan before the offense, and elected to participate. See, e.g., State v. Peters, 553 So.2d 1026 (La.App. 4 Cir.1989) and State v. Johnson, 440 So.2d 197 (La.App. 3 Cir.1983).

Although La. R.S. 14:24 provides that all persons “concerned in the commission of a crime” are principals, there are important qualifications, as discussed by the Louisiana Supx-eme Court in State v. Pierre, 93-0893 (La.2/3/94) 631 So.2d 427:

Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Knowles, 392 So.2d 651 (La.1980). Mere presence at the scene is therefore not enough to “concern” an individual in the crime. State v. Schwander, 345 So.2d 1173 (La.1977). Moreover, “an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state.” State v. Holmes, 388 So.2d 722, 726 (La.1980).

Id. p. 4, 631 So.2d at 428.

In State v. Bridgewater, the Court also noted:

As a general rule, “liability [as a principal] will not flow merely from a failure to intervene;” however, “silence in the face of a friend’s crime will sometimes suffice when the immediate proximity of the bystander is such that he could be expected to voice some opposition or surprise if he were not a party to the crime.” 2 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 6.7(a) (1986) (Emphasis supplied).

Id., 2000-1529, pp. 11-12, 823 So.2d at 891.

Viewing the evidence in the light most favorable to the state, we find a reasonable juror could readily have concluded that the defendant was a principal to the robbery and kidnapping of Wendell Cousin. Fernandez’s actions preceding |T1and during the offense point directly to her knowing and voluntary participation in both crimes.

Although she was not armed and said nothing during the robbery, she was in the immediate proximity of the vehicle when the robbery took place and voiced no concern over her boyfriend’s actions. A rational juror could have concluded that by repeatedly calling Ross, Fernandez meant to lure Ross or Cousin to an isolated and nearly abandoned area, thereby evidencing that she knew of the offense before hand, helped to plan it and was in fact a principal to the crime.

Also, a reasonable jury could have found that the evidence proved Fernandez’s involvement dated back to her to initial visit the week before the robbery and that the basis for Fernandez’s earlier visit was to identify and locate Ross and Cousin’s Slidell home.

Although Fernandez was out of sight after Cousin was taken into the backyard, viewing the evidence in the light most favorable to the prosecution, a reasonable juror could have found sufficient evidence to demonstrate that Fernandez was “concerned with the commission of’ the second degree kidnapping.

First, any trier of fact should have been impressed by the fact that the perpetrators had the forethought to bring rope to bind the victim. It is clear that the perpetrators tied up Cousin to transport him easily without fear of his escaping. Accordingly, the evidence suggests that from the outset the plan included “the forcible seizing and carrying of’ the victim “from one place to another, wherein the victim is imprisoned or kidnapped.”

That Fernandez did nothing to conceal her involvement in the commission of the crime and stood by at the scene with no effort to conceal her identity, and that |12she was involved with the armed men, suggests she did not fear being identified to the police. This suggests that she believed Cousin was not going to be released.

Although Fernandez was out of sight when Cousin was tied up and put in the trunk, a reasonable juror could also have concluded that it was Fernandez who backed the automobile into the driveway from the street, thereby facilitating the kidnapping.

The evidence offered at trial points convincingly to the defendant’s knowing and voluntary participation in both the robbery and the kidnapping. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court abused its discretion when it denied her motion to continue the trial based on prejudicial pre-trial publicity. The record contains copies of two articles from the Times-Picayune website dated May 12 and May 13, 2009. These articles suggest that there was a link between two murders and Kashie Fernandez, as Wendell Cousin was a relative of the deceased couple. The two articles also reference the facts of Fernandez’s case.

Generally, motions for continuance are within the sound discretion of the trial court. La.C.Cr.P. art. 712.

Where there is a reasonable likelihood that prejudiced news media publicity prior to trial, will prevent a fair trial, the trial judge should continue the case until the threat abates or he should transfer it to another locality not so permeated with publicity_The defendant, however, must show that he will be specifically prejudiced if the continuance is not granted. (Citations omitted).

State v. Huizar, 414 So.2d 741, 748 (La.1982). In Huizar, the Court concluded, “The defense did not convincingly demonstrate that careful voir dire examination 11sof the prospective jurors could not result in a fair and impartial jury-” Id. at 748.

In State v. Young, 623 So.2d 689 (La.App. 4 Cir.1993), an article appeared in the newspaper which discussed the case and made mention of the defendant’s previous criminal history. The defendant moved to continue the trial, and the court took the motion under advisement, stating that if voir dire revealed that the prospective jurors had been contaminated, the court would take appropriate action. During voir dire, five members of the jury pool indicated that they had read that day’s newspaper. All stated they had not discussed the article with any other member of the pool. During voir dire the court dismissed the jurors who had read the story. On appeal, this Court found that the trial court did not abuse its discretion by denying the motion to continue the trial.

Here, in addressing the defendant’s motion, the trial court noted that there was no mention of the case in that day’s newspaper and there had not been any media on the subject that week. The court stated that it would address the subject during voir dire and denied the motion.

The transcript of the voir dire was not designated for appeal and is not contained in the record; however, the record does not reflect that any jurors were seated over defense objection or that any defense challenges for cause were denied.

Defendant has not demonstrated that she was unable to obtain a fair and impartial jury through the use of careful voir dire examination. The assignment of error lacks merit.

| uASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in failing to allow Don Carter to testify regarding the results of his investigation. Defendant suggests that her constitutional right to present a defense was impinged by the court’s eviden-tiary ruling.

Louisiana jurisprudence recognizes that under compelling circumstances a defendant’s right to present a defense may require admission of statements which do not fall under any statutorily recognized exception to the hearsay rule. State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198; State v. Gremillion, 542 So.2d 1074 (La.1989); see also Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). This right to present a defense, however, does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Mosby, 595 So.2d 1135 (La.1992); La. C.E. art. 403. Also, Louisiana Code of Evidence Article 103(A) provides, in part, that an error may only be predicated upon a ruling which excludes evidence if a substantial right of the party is affected.

In Gremillion, the defendant was prevented from introducing a statement by the victim to an investigating officer regarding the circumstances that led to his violent death and failed to implicate the defendant, who was a close friend of the victim. The Louisiana Supreme Court reversed the conviction. The Court agreed that the statement was hearsay and that it did not meet any applicable exception. However, citing Chambers v. Mississippi, the Court concluded that normally inadmissible hearsay may be admitted if it is reliable, trustworthy and relevant, and if the exclusion of such evidence would compromise the defendant’s right to present a defense. In Van Winkle, the defendant was accused of murder and was prevented from introducing testimonial evidence in support of the defense that an upstairs neighbor to the victim committed the crime, despite the existence of physical evidence supporting the defense. The conviction was also reversed.

In contrast to the foregoing cases, in State v. Stukes, 2005-0892 (La.App. 4 Cir. 10/25/06), 944 So.2d 679, this Court rejected the defendant’s claim that his right to present a defense was violated when he was not allowed to introduce hearsay evidence that was cumulative to his own testimony and the testimony of the investigating officer who took the defendant’s statement.

In Van Winkle and Gremillion, the excluded evidence was highly relevant in proving that someone else was responsible for the offense and created the compelling circumstances required in order to justify reversing the convictions. Stukes, on the other hand, demonstrates that despite a defendant’s claim that excluded evidence violated his right to present a defense, the defendant must demonstrate a tangible basis for concluding that his substantial rights were affected.

Defendant contends that the excluded testimony was critical because the case turned on Cousin’s testimony and Don Carter’s testimony was defendant’s |1fionly means of challenging Cousin’s credibility. Accordingly, defendant argues that her conviction should be reversed.

We do not find the hearsay testimony was so critical that the trial court should have allowed it. Cousin testified at length during the trial, and defendant conducted a full and unfettered cross examination of him. The ability to challenge Cousin’s credibility was certainly an element of the defense; but how Mr. Cousin earned the money that was stolen in the robbery was not central to question of defendant’s guilt. The evidence sought to be introduced falls well short of the type of evidence that was excluded in Van Winkle or Gremillion and provided reason for reversing the defendant’s conviction. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends her sentences are excessive. In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been mox-e appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Landry, 2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

In Batiste, at p. 18, 947 So.2d at 820, this Court further explained:

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resen-tencing is unnecessaxy even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the l'eeord supports the sentence imposed. La.C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be resexwed for the most egregious violators of the offense so chai-ged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

Convicted of second degree kidnapping and sentenced as a second felony offender, defendant was subject to a sentence of between ten and eighty years. La. R.S. 14:44.1; La. R.S. 15:529.1(A)(l)(a). On the chai'ge of simple robbeiy, defendant was subject to a maximum sentence of seven years.

Defendant argues that when examining the natui’e of the crime, the nature of the offender, and sentences imposed for similar offenses, that her sentences are excessive. Defendant also contends that because the entfre forty year sentence was | ^ordei-ed to be sei-ved without benefit of parole, when La. R.S. 14:44.1 only l-equires that the first two years be seiwed without benefits, that it is excessive. She also claims that she was not deserving of a maximum sentence for simple robbery.

In support of her argument that she was not deserving of the sentences she received, defendant notes that since her previous conviction in 2004, she completed her G.E.D. and went to nursing school. She notes that at the time of the offense she was employed and raising her two children, a teenager and a seven year old.

Defendant argues that her conduct during the offense was not severe, noting that she was not armed, made no threats against the victim’s family, and was not present when any were made or when Cousin was driven off in the trunk of his car. She also notes that Cousin was not seriously injured during the commission of the offense. In light of the foregoing, she argues that the only explanation for the length of her sentences was that the trial court was unduly influenced by the pretrial publicity.

Defendant notes that similar or less severe sentences have only been upheld in cases involving more serious conduct than that present here. In State v. Colbert, 2007-0947 (La.App. 4 Cir. 7/23/08) 990 So.2d 76, the defendant received the maximum sentence for attempted second degree kidnapping, twenty years, and this Court’s review of comparable sentences was as follows:

[I]n State v. Woodberry, 95-2402 (La. App. 4 Cir. 12/27/96), 686 So.2d 984, this court upheld a thirty-five-year sentence for the completed crime of second degree kidnapping where the defendant grabbed the victim at gunpoint, carried her off in his car, sexually assaulted her, and then robbed her. Other courts have upheld maximum sentences for the completed crime of second degree kidnapping where the kidnapping occurred in connection with other crimes. See State v. Office, 2007-193 (La.App. 3 Cir. 10/3/07), 967 So.2d 1185 (the defendant shot|i3at the victim as the victim tried to escape; he was convicted of second degree kidnapping and armed robbery) State v. Moore, 37,935 (La.App. 2 Cir. 1/28/04), 865 So.2d 227 (the defendant was convicted of armed robbery, second degree kidnapping, and attempted second degree murder, where he shot the victim and left the victim for dead; his consecutive maximum sentences on all counts were affirmed); State v. Brock, 37,487 (La.App. 2 Cir. 9/26/03), 855 So.2d 939 (the defendant, convicted of aggravated burglary and second degree kidnapping, entered the victim’s home, robbed her, forced her to go with him, then left her for dead; his concurrent maximum sentences on all counts were affirmed); State v. Lefeure, 02-592 (La.App. 5 Cir. 10/29/02), 831 So.2d 398 (kidnappings occurring during a robbery of a store; the defendant was convicted of armed robbery, second degree kidnapping, and aggravated burglary; the court upheld the maximum sentences on each count but amended the sentences to run concurrently rather than consecutively).

Colbert, pp. 30-31, 990 So.2d 94, (footnote omitted).

In Colbert, as here, the kidnapping occurred during an incident involving other crimes which was one of the factors supporting imposition of the defendant’s maximum sentence.

In State v. Fountain, 2007-1004, pp. 6-7 (La.App. 4 Cir. 1/23/08), 976 So.2d 763, 766-767 this court reviewed cases where the maximum sentence for simple robbery was imposed:

In State v. White, 35,235 (La.App. 2 Cir.10/31/01), 799 So.2d 1165, the court imposed on the defendant a seven year maximum sentence for simple robbery to be served consecutively with sentences for conspiracy to commit simple robbery and second-degree battery where the victim sustained broken jaws on both sides of the face requiring thousands of dollars in medical bills for reconstructive surgery.
In State v. Wilson, 660 So.2d 571 (La.App. 2 Cir.1995), the court imposed on the defendant, a first felony offender, a seven year maximum sentence where the defendant acted without provocation, using a ruse to lure the victim to him, used a gun during the robbery and before robbing the victim wrestled him to the ground and repeatedly struck him in the face. The defendant had previous misdemeanor arrests and convictions for possession of drugs and drug paraphernalia.
In State v. Capano, 466 So.2d 649 (La.App. 5 Cir.1985), the court imposed on the defendant the maximum seven year sentence where the defendant, who was sixteen at the time of the offense, had an extensive juvenile record and the pre-sentence investigation indicated that he committed crimes on a regular basis and that he would likely commit another crime if not committed to an institution for an extensive period of time.

In State v. Fountain, the robbery occurred in the parking lot of a convenience store. Defendant beat the victim until he was able to take his wallet and the victim suffered multiple facial fractures and a broken nose. Defendant also had a lengthy criminal history.

Here, despite the fact that defendant did not actually brandish a weapon or participate in binding Cousin, the trial court found that defendant was the “lynchpin,” noting that it was defendant who knew Cousin and Ross and that without her, the crime would never have taken place.

As further justification for defendant’s lengthy sentences, the court was impressed with the fact that even after defendant had visited with Cousin and Ross at their home and witnessed the life they were trying to make for themselves, she did not hesitate to proceed with the crime and telephoned Ross repeatedly in effort to complete the crime.

The court found that defendant’s callous disregard for the likely consequences of her actions upon Cousins or Ross overcame the positive testimony made on her behalf at the hearing.

The court’s comments at sentencing also reflect that it was disturbed by the perpetrators comments (“Take care of your business and wipe the car down when you’re finished.”) indicating they anticipated Cousin would be killed rather than released. Here, the court’s focus on the potential ramifications of the defendant’s | ⅞1 actions was in keeping with other courts’ emphasis on “the element of violence and danger to the person” in assessing the nature and gravity of an offense. State v. Taves, 2003-0518, p. 5 (La.12/3/03), 861 So.2d 144 (per curiam).

Mindful that “the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion,” it is clear from the sentencing transcript that the trial court did not reach its decision capriciously or arbitrarily. State v. Walker, p. 2, 799 So.2d at 462. Although the sentences imposed were quite lengthy and even though Wendell Cousin did not suffer significant physical injury, as was the case in several cases where the perpetrator received a lengthy sentence, and even though defendant did not have an extensive criminal background, the trial court’s reasons for sentencing defendant are supported by the record, and it is clear that the trial court did not abuse its discretion in sentencing defendant.

On the record before us, and particularly considering the reasons articulated by the court, we find that this midrange sentence of forty years without benefit of parole is neither grossly disproportionate to the crime nor a needless imposition of pain and suffering upon this defendant. Likewise, defendant’s seven year sentence for simple robbery is not excessive. The assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      . As noted previously, the defendant was subsequently arraigned and entered a plea of not guilty to the amended charge of second degree kidnapping.

      . In passing, the defendant claims that the testimony was admissible suggesting, without citation or authority, that it was not hearsay because it was offered as "impeachment testimony, not for the truth of the matter asserted.” A prior inconsistent statement by a witness can be admitted pursuant to La. C.E. art. 607 D(2) which permits the introduction of a prior inconsistent statement made by the witness for the limited purpose of attacking the witnesses’ credibility. However, Article 607 is not implicated here as Cousin did not make the statement sought to be introduced.
      Hearsay is defined as an oral or written assertion, other than one made by the declar-ant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. C.E. arts. 801 A(l) and 801 C. Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay evidence is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. State v. Everidge, 96-2665, p. 7 (La. 12/2/97), 702 So.2d 680, 685.