author: CARTER, C.J.

text:
    STATE of Louisiana v. Daminco A. BOZEMAN.
    No. 2008 KA 1077.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, Thomas Daigle, Assistant District Attorney Paincourtville, LA, for Plaintiff/Appellee, State of Louisiana.
    Mary E. Roper, Baton Rouge, LA, for Defendant/Appellant, Damineo A. Boze-man.
    Before: CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

|2The defendant, Damineo A. Bozeman, was charged by bill of information with possession of a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967 C. The defendant pled not guilty. The defendant filed a motion to suppress the evidence seized, which was denied. Following a jury trial, the defendant was found guilty as charged. He was sentenced to five years at hard labor. The State filed a habitual offender bill of information, and following a hearing on the matter, the defendant was adjudicated a fourth felony habitual offender. The trial court vacated the underlying five-year sentence and sentenced the defendant to thirty years at hard labor. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.

FACTS

On November 9, 2005, several members of the Assumption Parish Sheriffs Office SWAT team were conducting street sweeps in high-drug areas based mostly on anonymous narcotics complaints. Following a lead based on a complaint by a landowner of property on Pleasant Lane in Belle Rose, the officers drove to the area. The landowner, who owned property with rental trailers on it, identified the defendant by name as someone who was selling drugs in that area. The defendant’s girlfriend, Sabrina Bradford, lived in one of the rental trailers on Pleasant Lane, and the defendant stayed with Sabrina about five or six days a week.

At about 6:30 p.m., five officers in two vehicles turned onto Pleasant Lane. Sergeants Hayes Coddou and Byron Parker and Deputies Tyson Mire and Cliff Crochet were in the lead vehicle. Lieutenant Michael “Mike” |nBrown was following in a second vehicle. They observed the defendant standing in the open driver’s side doorway of a Mitsubishi Galant, which was parked half on the road and half off the road. Sabrina was the owner of the Ga-lant. The Galant was directly across the street from Sabrina’s trailer. The officers approached the defendant, and Sergeant Coddou asked him for some form of identification, which the defendant refused to produce. Sergeant Coddou again asked the defendant for his identification. The defendant again refused, cursed at Sergeant Coddou, and made a very quick move toward the center console of the vehicle. The officers grabbed the defendant and tried to pull him out of the vehicle. After several minutes of struggling, the officers subdued the defendant, Mirandized him, and handcuffed him. Because it was dark, Sergeant Coddou used his flashlight to look inside of the vehicle through the windshield. He observed three rocks of crack cocaine in a plastic bag inside the opened center console. Lieutenant Brown also observed the cocaine in the center console with his flashlight. Sergeant Coddou retrieved the cocaine from the vehicle. The three rocks of crack cocaine weighed a total of 13.55 grams.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the trial court erred in denying his motion to suppress evidence. Specifically, the defendant contends that he was illegally seized by the police when they stood around him, effectively preventing him from walking away prior to any criminal activity being observed and prior to the drugs being discovered.

|4Trial courts are vested with great discretion when ruling on a motion to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

The Fourth Amendment of the United States Constitution and Article I, Section 5, of the Louisiana Constitution protect persons from unreasonable searches and seizures. The police may not, therefore, make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct. State v. Dobard, 2001-2629, p. 3 (La.6/21/02), 824 So.2d 1127, 1129. Additionally, while the police may briefly detain and interrogate an individual in a public place, they may make such an investigatory stop only if it is based upon reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal activity. See La. Code Crim. P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Dobard, 2001-2629 at p. 3, 824 So.2d at 1129-1130.

The threshold issue is whether the initial encounter between the police and the defendant constituted a seizure within the meaning of the Fourth Amendment. If there was no seizure, the Fourth Amendment is not implicated. If there was a seizure, however, such an investigatory stop must be based on reasonable suspicion that a person is committing, has committed, or is about to commit an offense. See La.Code Crim. P. art. 215.1 A.

Ir,In State v. Oliver, 457 So.2d 1269, 1271 (La.App. 1st Cir.1984), we stated:

The Fourth Amendment protects citizens against unreasonable searches and seizures, but not every encounter between a citizen and a policeman involves a “seizure.” Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968). “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877. “As long as a reasonable person would feel free to disregard the encounter and walk away, there has been no ‘seizure.’ ” State v. Ossey, 446 So.2d 280, 285 (La.1984[) ] (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983));[] State v. Belton, 441 So.2d 1195, 1199 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Furthermore, if a citizen after being approached by law enforcement officers consents to stop and answer questions, there is no Fourth Amendment violation. “If there is no detention — no seizure within the meaning of the Fourth Amendment— then no constitutional rights have been infringed.” Florida v. Royer, 103 S.Ct. at 1324.

Sergeant Coddou testified at both the motion to suppress hearing and the trial. According to his trial testimony, Sergeants Coddou and Parker, along with Deputies Mire and Crochet, were in an unmarked Jeep Cherokee when they approached the defendant. The officers were wearing bulletproof vests with the word “Sheriff’ on the front and back. They observed the defendant standing in the open driver’s side door of a Mitsubishi Galant parked halfway on and halfway off the road. Shortly thereafter, Lieutenant Brown, also wearing Sheriffs Office apparel, arrived in a separate vehicle. Sergeant Coddou and the other three officers exited the Jeep, which was |r,pulled up behind the Galant. The officers identified themselves, and Sergeant Coddou asked the defendant for his identification. Sergeant Parker testified at trial on direct examination that he stood behind Sergeant Coddou and he (Parker) and the other officers made “a horseshoe shape around him, just for support.” On cross-examination, Sergeant Parker was asked, “Officer Parker, you testified that y’all formed like a horseshoe around Mr. Bozeman?” He responded, “Yes, sir.” Lieutenant Brown testified at trial that Sergeant Coddou was “faced up” with the defendant, “and the other officers kind of like made a maybe [sic] a half circle around him in the entry of the doorway.” Lieutenant Brown further testified that, when the four officers approached the defendant, he (Brown) walked to the passenger side of the Galant and stood there. When the defendant refused to produce identification, Sergeant Coddou again asked him for some form of identification. The defendant responded, “F[ — ] no,” and made a quick move toward the inside of the vehicle. According to Lieutenant Brown, Sergeant Parker, and Deputies Crochet and Mire, no officer drew his weapon.

Based on the foregoing, we find the defendant was seized pursuant to an investigatory stop. The officers involved in the stop were not on routine patrol; rather, they were part of the Sheriffs Office SWAT team conducting “street sweeps” and, based on narcotics complaints, specifically targeting the |7high-drug area where the defendant was spotted. The defendant was approached by five officers. Four of the officers spread out around the defendant, while another officer positioned himself on the other side of the vehicle behind the defendant. Lieutenant Brown testified at the motion to suppress hearing that, after the defendant first refused to produce his identification, “[w]e advised him that we needed identification to check and make sure he wasn’t wanted or a wanted person or anything like that.” We find that under these circumstances a reasonable person would not have felt free to disregard the encounter and walk away. See State v. Mareno, 530 So.2d 593, 600 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (1988) (where this court stated that “[ejxamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”). Since the defendant was seized within the meaning of the Fourth Amendment, we must determine whether the officers had reasonable suspicion to effect the investigatory stop.

In making a brief investigatory stop on less than probable cause to arrest, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police, therefore, must articulate something more than an inchoate and unpartic-ularized suspicion or hunch. United States v. 8Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only “ ‘some minimal level of objective justification.’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)). A reviewing court must take into account “the totality of the circumstances — the whole picture,” giving deference to the inferences and deductions of a trained police officer “that might well elude an untrained person.” Cortez, 449 U.S. at 417-418, 101 S.Ct. at 695. The court also must weigh the circumstances known to the police “not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Cortez, 449 U.S. at 418, 101 S.Ct. at 695; State v. Huntley, 97-0965, pp. 2-3 (La.3/13/98), 708 So.2d 1048, 1049 (per curiam).

At the motion to suppress hearing, Lieutenant Brown testified that the drug task force was in the Belle Rose area based on anonymous complaints about suspected narcotics dealings there. He further testified that the defendant was named as a possible suspect who was dealing drugs. Sergeant Coddou testified at the motion to suppress hearing that the officers drove down Pleasant Lane because Sheriff Wag-uespack had received phone calls from the landowner of the rental trailers on that street informing Sheriff Waguespack that the defendant was selling drugs. Thus, the presence of the officers on Pleasant Lane was based not merely on anonymous calls about drug activity but on the call of a self-identified citizen informant who identified the defendant by name as a person selling drugs in that area. Citizen informer reports based on firsthand knowledge carry a high indicia | 9of credibility in the determination of probable cause. State v. Morris, 444 So.2d 1200, 1203 (La.1984). The citizen informer is a presumptively inherently credible source. Id.

Sergeant Coddou testified at trial that Pleasant Lane was a very narrow street. When they turned onto the street, they observed a group of trailers to the right and the defendant standing in the open door of Sabrina’s vehicle. Sabrina’s vehicle was immediately across the street from her trailer. The officers did not observe anyone else on the street. Whether the officers had a “minimal level of objective justification” to detain the defendant turns on the totality of all of the circumstances known to them: a vehicle parked halfway on the road with someone standing in the driver’s side door; the tip by the landowner citizen informer who identified the defendant by name as someone selling drugs in the area; and the defendant’s presence not only in an area known to the officers for its high level of narcotics activity but directly in front of the trailer that sat on the property owned by the complaining landowner. We find the coalescence of these circumstances gave the officers a particularized and objective basis for detaining the defendant “to maintain the status quo momentarily while obtaining more information.” State v. Fauria, 393 So.2d 688, 690 (La.1981). See Huntley, 97-0965 at pp. 3-4, 708 So.2d at 1050.

Accordingly, the officers conducted a valid investigatory stop, and the seizure of the cocaine was, therefore, legally proper. We find no abuse of [ indiscretion by the trial court in denying the defendant’s motion to suppress the evidence. The assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

DOWNING, J., concurs.

      . The defendant does not contest the straggle with the police while in the vehicle, the subsequent arrest, or the discovery of the drags under plain view.

      . State v. Ossey, 446 So.2d 280, 285(La.), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984).

      . In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence giVen at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).

      . At the motion to suppress hearing, Sergeant Coddou testified that, upon asking the defendant a second lime for identification, the defendant responded, "F[ — ] you.”

      .Rontrell Wise testified at the motion to suppress hearing and at trial. Rontrell testified he was standing outside near Sabrina’s trailer when the officers turned onto Pleasant Lane. According to Rontrell, Sergeant Coddou and Deputies Mire and Crochet had their weapons drawn when they approached the defendant and yelled at him to "hit [the] ground.”

      . Although not argued by the defendant, we note that when the defendant turned and made a quick move toward the center console of the vehicle, the officers clearly were justified in restraining the defendant. Given the totality of the circumstances, the officers had no way of knowing whether the defendant might have been reaching for a weapon. See State v. Sylvester, 2001-0607, pp. 5-6 (La.9/20/02), 826 So.2d 1106, 1109 (per cu-riam).


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge

license: Public Domain

text:
    STATE of Louisiana in the Interest of J.S.
    No. 2008-CA-1401.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.

      Hector A. Linares, Juvenile Regional Services, New Orleans, LA, for J.S.
    Leon A. Cannizzaro, Jr., District Attorney, Brandi Dohre, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge

|, J.S. appeals his adjudication of delinquency for possession of marijuana. After review of the record in light of the applicable law, we reverse the appellant’s adjudication of delinquency and sentence and remand the matter to the Juvenile Court for the Parish of Orleans for a new trial.

PROCEDURAL HISTORY AND RELEVANT FACTS

On 29 January 2008, J.S. was arrested for possessing one plastic bag of marijuana. On 22 February 2008, J.S. was charged by a petition with violating La. R.S. 40:966, relative to possession of marijuana. Due to failure of service, J.S. did not appear at his initial hearing scheduled for 10 March 2008. The state filed a Notice of Intent to Offer into Evidence the State’s Criminalist Report pursuant to La. R.S. 15:499-501 on 12 March 2008. J.S. failed to appear for his rescheduled initial hearing on 21 May 2008, and a warrant was issued for his arrest. J.S. was then arrested pursuant to the warrant and appeared for his initial hearing on 30 June 2008. At the hearing, J.S. entered a denial to the offense charged in the petition and an adjudication hearing was set for 22 July 2008.

On 16 July 2008, counsel for J.S. filed a Motion to Suppress Evidence in addition to Minor-Respondent’s Motion for PreTrial Discovery and for Bill of |2Particulars. On 17 July 2008, counsel for J.S. filed a subpoena request with the Clerk of Juvenile Court requesting a subpoena be issued to William Giblin, the criminalist who tested the marijuana following J.S.’s arrest.

On 22 July 2008, a motion to suppress and adjudication hearing was held in this matter. In order to establish that it had a constitutional right to stop J.S. and seize evidence against him, the state offered the testimony of Officer Jamani Roy, a four-year veteran of the New Orleans Police Department. Officer Roy testified that on 28 January 2008, he was assigned to the Fifth District and was on patrol in a marked police unit when he observed J.S. standing alone on the corner of Abundance and Marigny Streets. According to Officer Roy, during the two-and-a-half years he had been assigned to the Fifth District, he had made numerous arrests for drug and weapons possession on that street corner and the area was known to him as a high crime and drug-trafficked area. Due to the known high drug activity in the area, and seeing J.S. standing alone on the corner, Officer Roy determined that a field investigation was warranted.

Officer Roy further testified that as he continued traveling on Marigny and approached its corner with Abundance; when he was approximately six to eight feet from J.S., he observed J.S. discard an object onto the ground. After J.S. discarded the object, Officer Roy exited his vehicle and directly approached the item, which he opined to be marijuana. Officer Roy then detained J.S., recovered the discarded bag and placed J.S. under arrest.

The state then offered into evidence the clear plastic bag containing vegetable matter that was discarded by J.S. and seized following his arrest. Defense counsel objected to the introduction of this evidence on the ground that the state failed to meet its burden of proof that the evidence was seized in a |;⅞constitutional manner. The trial court denied defense counsel’s motion to suppress and admitted into evidence the clear plastic bag containing vegetable manner.

Pursuant to La. R.S. 15:501(b)(l), the state then offered into evidence the crimi-nalist’s certificate of analysis as prima fa-cie proof that the evidence collected at the time of J.S.’s arrest tested positive for marijuana. In response, defense counsel advised the court that, in compliance with the statutory time delays set forth in La. R.S. 15:501(b)(l), on 17 July 2008, the defense subpoenaed the criminalist to testify at the 22 July 2008 adjudication hearing. The juvenile court overruled the defense’s objection and admitted the criminalist’ certificate of analysis into evidence.

At the conclusion of the hearing, the juvenile court found the state proved beyond a reasonable doubt that J.S. was a delinquent in possession of marijuana.

J.S. filed an application for supervisory writs to this court on 26 August 2008, challenging the juvenile court’s denial of J.S.’s motion to suppress evidence, which was denied on the basis that J.S. had an adequate remedy on appeal following the trial court’s rendering of a judgment of disposition. On 16 September 2008, J.S. appeared before the juvenile court and was sentenced to secure care commitment for a period of time not to exceed six months. Thereafter, J.S. timely filed the instant appeal.

DISCUSSION

Assignment of Error Number 1

14J.S. argues that the trial court abused its discretion in denying his motion to suppress the evidence on the ground that the evidence seized from him was the result of an illegal imminent stop. We disagree.

A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Howard, 00-2405, p. 3 (La.App. 4 Cir. 4/11/01), 787 So.2d 404, 407; State v. Johnson, 98-2544, p. 5 (La.App. 4 Cir. 11/17/99), 748 So.2d 527, 530.

The Fourth Amendment of the U.S. Constitution and Art. I, § 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. In an effort to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. State v. Tucker, 626 So.2d 707, 710 (La.1993); State v. Sykes, 04-1199, 04-0947, p. 4 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 158. Thus, evidence abandoned by a citizen and recovered by the police as a direct result of an unconstitutional seizure may not be used in a resulting prosecution against the citizen. Tucker, 626 So.2d 5at 710; State v. Chopin, 372 So.2d 1222, 1224 (La.1979). If, however, a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen’s right to be free from governmental interference, then the property may be lawfully seized and used against the citizen in a resulting prosecution. Tucker, 626 So.2d at 710; Sykes, 04-1199, 04-0947, p. 4, 900 So.2d at 159-160; Chopin, 372 So.2d at 1224; State v. Ryan, 358 So.2d 1274, 1275 (La.1978). “It is settled that the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place.” Sykes, 04-1199, 04-0947, p. 4, 900 So.2d at 160; State v. Britton, 93-1990, p. 2 (La.1/27/94), 633 So.2d 1208, 1209. Mere communications between an officer and a citizen do not implicate Fourth Amendment concerns where there is no coercion or detention. Sykes, 04-1199, 04-0947, p. 4, 900 So.2d at 160. The police have the same right as any citizen to approach an individual in public and to engage him in conversation under circumstances that do not signal official detention. Id.; Britton, 93-1990, p. 2, 633 So.2d at 1209. “[I]t is only when the citizen is ‘actually stopped’ without reasonable cause or when ‘a[n] [actual] stop without reasonable cause is imminent’ that the ‘right to be left alone’ is violated, thereby rendering unlawful any resultant seizure of abandoned property.” Tucker, 626 So.2d at 710-711; State v. Belton, 441 So.2d 1195, 1199 (La.1983); Chopin, 372 So.2d at 1224.

An “actual stop” occurs when an individual submits to a police show of authority or he is physically contacted by the police. Tucker, 626 So.2d at 712. An “imminent actual stop” occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. Id.

|fiIn the instant case, the testimony from the combined motion to suppress hearing and trial on the merits reveals that Officer Roy was alone in his marked police unit when he approached the intersection of Marigny and Abundance Streets. As J.S. saw the police unit approaching, while continuing freely in his movements, he discarded an object to the ground. After having already observed J.S. discard the object, Officer Roy stopped his vehicle three to four feet away from where J.S. was standing on the street corner and exited the police unit. Officer Roy then secured J.S., retrieved the previously discarded bag and placed J.S. under arrest. Under these facts, we conclude that J.S. had not been “actually stopped” at the time he discarded the evidence.

Thus, the determinative question in the ease at bar becomes whether an actual stop of J.S. was “imminent,” or whether police used force that was “virtually certain” to result in an “actual stop,” prior to J.S. discarding the bag containing vegetable matter. In determining whether an “actual stop” of an individual is “imminent,” the focus must be on the degree of certainty that the individual will be “actually stopped” as a result of the police encounter. Tucker, 626 So.2d at 712. This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop. It is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an “actual stop” of the individual is “imminent.” Id.

|7To determine whether police used force that was “virtually certain” to result in an “actual stop” of the individual, the court may consider: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with them weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. at 712-713.

Applying these factors to the instant case, the testimony reveals that Officer Roy, traveling alone, was several feet away from J.S. and remained inside the police unit at the outset of the encounter. As Officer Roy was the only police officer on the scene, clearly J.S. was not surrounded by the police. The record is devoid of testimony that Officer Roy had his weapon drawn at this or any other point during the encounter. More importantly, at the time J.S. actually discarded the object to the ground, he had a lead of several feet between himself and Officer Roy, who remained in the police unit, and no evidence exists indicating that J.S. was not free to leave at that point. Considering these facts, we conclude that an actual stop of J.S. was not “virtually certain” or “imminent” to occur at the time he abandoned the evidence.

|8Based on the facts adduced at the hearing, we find that Officer Roy’s actions did not constitute either an actual stop or an imminent actual stop and, thus, J.S. abandoned the bag prior to any unlawful intrusion into his right to be left alone from governmental interference. Accordingly, we hold that J.S. was not unconstitutionally seized and, therefore, the juvenile court properly denied J.S.’s motion to suppress. This assignment of error is without merit.

Assignment of Error Number 2

J.S. assigns as error the juvenile court’s admitting into evidence, over objection, the criminalist’s certificate of analysis as prima facie evidence of its contents and proper custody contrary to the provisions of La. R.S. 15:501. Specifically, J.S. argues that the certificate was not admissible as prima facie proof because defense counsel had subpoenaed the criminalist who made the certificate five days in advance of trial. We find, and the state concedes, this assignment of error has merit.

La. R.S. 15:501 governs whether a crimi-nalist report shall be admitted without testimony and provides as follows:

A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
B. (1) The party against who such certificate is offered shall be permitted to subpoena on cross-examination, the person who performed the examination or analysis of the evidence. If the Insubpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.
(2) When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena issue to the person who performed the examination or analysis, the request shall be in writing and contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

The statute is clear and unambiguous. Under the statute, a certificate of a crimi-nalist may be received into evidence as prima facie proof of its contents if the party seeking to introduce the certificate gives ten days prior written notice of intent to offer proof by certificate, unless the party against whom such a certificate is offered requests a subpoena of the person who made the certificate at least five days prior to the commencement of trial. In the event such a subpoena is requested, the certificate “shall not” be prima facie proof of its contents.

In the case sub judice, the record evidences that the state timely provided notice of intent to use the criminalist report on 12 March 2008, pursuant to La. R.S. 15:499-501. The record further establishes that on 17 July 2008, five days prior to the trial scheduled for 22 July 2008, counsel for J.S. requested that a subpoena be served upon the criminalist to appear for the trial of this matter, and included a certification that defense counsel intended in good faith to conduct the cross-examination of the criminalist.

At trial, the state offered the criminalist’s report into evidence. Defense counsel objected to its admission on the ground that J.S. had complied with the | mstatutory requirements to preserve his right to cross-examination of the criminalist by timely requesting the subpoena for the criminalist in accordance with La. R.S. 15:501 B(l). In overruling defense counsel’s objection, and admitting the criminalist report into evidence, the juvenile court indicated the record was devoid of a subpoena. The court further stated it was overruling the objection on the basis that it had established a cut-off date of 15 July 2008 for filing and since the purported subpoena was not requested until 17 July 2008, it was untimely.

Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.

La.C.Cr.P. art. 3.

Because La. R.S. 15:501 B(l) specifically prescribes a time period for filing a request for subpoena — five days prior to trial — pursuant to La.C.Cr.P. art. 3, we find the juvenile court was without authority to shorten defense counsel’s timeframe for filing in order to be timely. See State v. Eros Cinema, Inc., 262 La. 706, 719-720, 264 So.2d 615, 620 (La.1972). The appellate record, however, contains both the subpoena request filed by defense counsel on 17 July 2008, which includes a certification by defense counsel that he intended in good faith to cross-examine the criminalist, and the subpoena. Accordingly, under the express terms of the statute, the certificate was not admissible as prima facie proof of, its contents.

_J_yOnce the defendant subpoenas the person who made the certificate five days prior to trial, the state is made aware that the certificate will not be admissible into evidence in lieu of the testimony of the person who made the certificate. It is then incumbent upon the state to procure the attendance of the person who made the certificate for trial and to offer his or her testimony to establish the results of the examination as proof of an element of the offense charged. See Burroughs, 511 So.2d at 783. As the state conceded in its brief on appeal, once a defendant timely requests the subpoena — as the record reflects that J.S. did in the instant case — the certificate of analysis has no evidentiary value and it’s the state’s burden to call the relevant witness to prove the elements of the crime charged. Id. See also Cunningham, 04-2200, p. 17, 903 So.2d at 1121. Moreover, the defendant need not ask for a continuance when the subpoenaed witness fails to appear at trial. Id.

We find that the juvenile court erred in admitting into evidence the criminalist certificate as prima facie proof of its contents and proper custody. Accordingly, the adjudication of delinquency and sentence of J.S. must be set aside. See Burroughs, 511 So.2d at 783.

For the reasons assigned, the conviction and sentence of J.S. are reversed and the case is remanded to the Juvenile Court for the Parish of Orleans for a new trial.

REVERSED AND REMANDED.

      . Specifically, defense counsel argued that, according to the testimony of Officer Roy, at the time the stop became imminent, J.S. had not engaged in any suspicious or illegal activity that would render a stop constitutional.

      . La. Const. Art. I, § 5 provides in part:
      Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.

      . A person is "seized” within the meaning of the Fourth Amendment and La. Const. Art. I, § 5 only when the law enforcement official, by means of physical force or show of authority, has in some way restrained the liberty of the citizen. State v. Sims, 426 So.2d 148, 152 (La.1983).

      . "This inquiry is necessary for those situations wherein the police attempt to seize an individual but the individual neither submits to the police show of authority nor is physically contacted by the police. Under these circumstances, despite the absence of an 'actual stop’ as defined above, our constitution might still mandate a finding that the individual had been seized if an 'actual stop' of the individual was 'imminent.' ” Tucker, 626 So.2d at 712.

      . Compare, State v. Zielman, 384 So.2d 359 (La.1980)(an actual stop was imminent and defendants had been seized when defendants' vehicle was suddenly surrounded by marked patrol cars with their lights flashing) and Chopin, supra (an actual stop was imminent when the police swung their car around into defendant's path and stopped within three or four feet of defendant) with Tucker, supra (no actual stop imminent and defendant not seized as of time of abandonment of evidence when two officers approached in police car stopping several feet from where defendant was standing on street corner and one officer sprang from car ordering defendant to halt and prone out, but rather than submit to show of police authority, defendant continued freely in his movements, discarding a bag containing contraband); State v. Jackson, 01-1062 (La.App. 4 Cir. 2/13/02), 812 So.2d 139 (no actual stop imminent where the officers merely approached a group of men, including the defendant, and the defendant walked away and threw something over a fence); State v. Duplessis, 391 So.2d 1116 (La.1980) (an actual stop was not imminent where police parked their car ten feet away from where defendant was standing and approached him on foot) and Ryan, supra (an actual stop not imminent where police officer sprang from police unit and approached defendant who was suspiciously concealing object in one hand); see also State v. Dobard, 01-2629 (La.6/21/02), 824 So.2d 1127 (the officer’s subjective intent to stop anyone in a bar was irrelevant because the defendant abandoned the drugs upon seeing the officers enter the bar and identified themselves).

      . While the subpoena request and the actual subpoena misidentify the name of the defendant, both contain the proper case number for this proceeding.

      . See State v. Cunningham, 04-2200, p. 17 (La.6/13/05), 903 So.2d 1110, 1121, wherein the Supreme Court held that a defendant merely has to subpoena the person who performed the examination or analysis of the evidence. If the defendant requests the subpoena at least five days prior to trial or if the person subpoenaed responds to the subpoena, the provisions of the statute provide that the certificate shall not be prima facie proof of its contents or proper custody. See also City of Shreveport v. Burroughs, 511 So.2d 782 (La.App. 2 Cir. 1987), wherein the conviction was set aside due to the trial court's error of admitting the criminalist certificate into evidence and accepting it as proof of its contents when defendant had subpoenaed the persons who made the certificate more than five days prior to trial, but the witnesses failed to appear for trial.

      . Due to our findings relative to J.S.'s second assignment of error, we pretermit discussion of this third assignment of error.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Kevin LAWRENCE.
    No. 2008-KA-1317.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for State/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| [The defendant, Kevin Lawrence, appeals his conviction for two counts of simple burglary and one count of attempted simple burglary in violation of La.Rev.Stat. 14:62 and La. Rev. State. 14:(27)62. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

The defendant was charged by bill of information on May 25, 2006, with four counts of simple burglary of a vehicle, three counts of attempted simple burglary of a vehicle, and one count of possessing or receiving a stolen vehicle. He was never arraigned, but after dismissal of some of the charges, a jury of six persons found him guilty of the remaining two counts of simple burglary and one count of attempted simple burglary on May 8, 2008. The defendant was initially sentenced to twelve years on the two counts of simple burglary and six years on the attempted burglary charge. The State filed a multiple bill, the defendant pleaded guilty to being a second offender on January 8, 2008, and the original sentence was vacated. According to the sentencing transcript, the trial court then sentenced the ^defendant to serve six years on count 1 (the attempted simple burglary) with credit for time served; on counts 2 and 3 (the simple burglary verdicts) the trial court sentenced the defendant to serve nine years each, again with credit for time served. These sentences are to run concurrent to each other and to the attempted burglary sentence. After a May 21, 2008, hearing on the defendant’s motion to reconsider sentence, the trial court denied the motion.

Assignment of Error

In his only assignment of error, the defendant argues that the evidence is insufficient to support his conviction. In assessing the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). Specifically, this court must consider the record as a whole and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Smith, 94-1502, p. 2 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078, 1081.

Pertinent to this case, the essential elements of La.Rev.Stat. 14:62 and 14:60 are unauthorized entry into a vehicle with the intent to commit a felony or any theft therein or, respectively, the specific intent to commit a crime and an act or omission of an act for the purpose of and tending towards the accomplishment of this object.

The following evidence was adduced at trial. On the night of June 20, 2005, Detective Michael Sam of the New Orleans Police Department (NOPD) received a call from police dispatch regarding vehicle burglaries being observed in progress in | nthe 6900 Block of Catina Street, New Orleans, Louisiana. According to the dispatcher, a white male wearing a hat, a blue shirt and shorts had been seen burglarizing cars. Detective Sam immediately traveled to the 6900 block of Catina Street, in full uniform while driving an unmarked car, and observed and arrested the defendant, who met the description and was the only person on the street at that hour.

Detective Sam then met separately with Edward Philips and Robert Turner who each told him that they would be able to identify the person they saw breaking into cars that night. Separate field identifications were conducted and both victims positively identified the defendant. According to Detective Sam, despite the fact that the defendant is African-American, neither victim hesitated in identifying him as the person they witnessed breaking into the cars. When questioned as to the discrepancy in the ethnicity described in the original dispatch and his arrest of the defendant, Detective Same testified that both witnesses identified the defendant, that he was wearing the clothing described in the dispatch, and that while the defendant was not “white,” he was “very light complected” and could easily be mistaken for a white male.

After arresting the defendant, the detective inspected a Ford Ranger belonging to Philips and confirmed that the vehicle had been rummaged through, as had a Toyota 4Runner which belonged to Rebecca Mooney. He further discovered that the locking mechanism of a Chevrolet Tahoe that belonged to Turner had been damaged. In addition, Detective Sam found a vehicle registration card and a cell phone approximately five yards from the spot where he detained the defendant.

|4Philips testified that on June 20, 2005, he was living at Catina and Walker Streets in the Lakeview District of New Orleans and owned a black Ford pickup truck. At approximately 1:00 A.M., Philips went outside to smoke a cigarette and observed someone, later identified as the defendant, inside his truck parked approximately twenty yards away. He immediately called 911 and remained on the phone as he watched the defendant break into other vehicles. Philips testified that he continued to watch the defendant move from vehicle to vehicle until the police arrived. When questioned about the disparity between the reported ethnicity and the actual ethnicity of the burglar, Philips stated that the burglar was wearing a baseball cap, that there was “orange lighting” in the area, and that he was uncertain at the time of the 911 call as to the ethnicity of the burglar. Philips asserted, however, that the defendant was the only person on the street that night and that he accurately described the burglar’s clothes as he broke into cars and was able to positively identify the defendant during the identification procedure as the person who broke into his car. Finally, Philips testified that he never gave permission for the appellant to enter his vehicle.

Turner testified that in June 2005, he and Philips were roommates and that he had a 1999 conviction for attempted possession of LSD. On the night of June 20, 2005, Turner was on the balcony with Philips when he observed a person, later identified as the defendant, burglarizing his roommate’s vehicle and then attempt to enter his own (Turner’s) vehicle. Turner watched as the defendant entered and sat in a SUV further down the block and then, shortly after the defendant exited the SUV, observed the police arrive and arrest the defendant. Turner testified that when he was asked by the officer as to whether he could identify the person now in custody as the person he saw breaking into vehicles, he stated that he was able to |,-,positively identify the defendant because the defendant was the only person on the street that night, because he was able to recognize the defendant’s build, and because the clothes the defendant was wearing were the same clothes that he wore when he was observed breaking into vehicles.

Ms. Mooney testified that on June 20, 2005, she was living in Lakeview and owned a 2004 Toyota 4Runner which was parked on Catina Street and the following morning she discovered all the contents of her glove compartment and console on the front seat. She testified that she left the doors unlocked but gave no one permission to enter the vehicle.

The defendant argues that this evidence is insufficient to sustain his conviction because of the irreconcilable conflict between the initial dispatch report that the burglaries were being committed by a white man and the fact that he is African-American. The initial misidentification of the perpetrator’s ethnicity in the dispatch report does not of itself undermine the validity of the defendant’s conviction. In this case, the defendant was in the courtroom and, apparently, the jury found it credible that the initial ethnic misidentification was due to his light complexion and the street lighting.

It is axiomatic that credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. Therefore, “absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 (citations omitted). Nothing in the record suggests that jury’s credibility determination was clearly wrong. Philips testified that when he went out on his balcony to smoke a cigarette he observed someone, later | ^identified as the defendant, inside his truck parked approximately twenty yards away. He immediately called 911 and remained on the phone watching the defendant break into other vehicles until the police arrived and arrested him. The other eyewitness, Turner, also testified that he watched from the balcony as a person, later identified as the defendant, burglarized his roommate’s vehicle, attempted to enter his own (Turner’s) vehicle, entered and exited another SUV further down the block, and then was arrested by the police. Both Philips and Turner testified that the defendant was the only person on the street that night and once in custody they were able to identify him because of his build and because he was wearing the same clothes that he had on as they observed him breaking into vehicles. The arresting police officer, after verifying that neither Philips nor Turner hesitated in identifying the defendant as the man they watched breaking into the vehicles, noted that while the defendant was not of the ethnicity described in the initial dispatch, he was “very light complected” and could easily be mistaken for a white male. Accordingly, we find no merit in the defendant’s assignment of error.

Error’s Patent

A review of the record reveals that the clerk of court incorrectly entered the defendant’s sentences but because the sentencing transcript reflects the correct sentence, this error is harmless. See State v. Brown, 97-2260 (La.App. 4 Cir. 10/6/99), 746 So.2d 643 (in the event of a conflict between a minute entry and a transcript, the transcript controls).

In addition, a review of the record reveals that the defendant was never arraigned. However, “[a] failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, [7and it shall be considered as if he had pleaded not guilty.” La.Code Crim Proc. art. 555.

Conclusion

After review of the record in light of the applicable law and arguments of the parties, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: Judge DENNIS R. BAGNERIS, SR. McKAY, J.,

text:
    Jennifer KURZ v. Amanda MILANO, Allstate Insurance Company and National Automotive Insurance Company.
    No. 2008-CA-1090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.

      William E. Mura, Christopher H. Sherwood, Warren A. Forstall, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Kenneth E. Pickering, Pickering & Co-togno, New Orleans, LA, for Defendant/Appellant, National Automotive Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD).
   Judge DENNIS R. BAGNERIS, SR.

L Jennifer Kurz filed suit against her uninsured/underinsured motorist carrier, National Automotive Insurance Company (“NAIC”), for injuries she sustained in an automobile accident on September 8, 2006. NAIC filed a motion for summary judgment contending that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law because UM coverage was validly rejected by the insured. The motion for summary judgment was denied on June 17, 2008. NAIC now appeals.

We first note that the denial of a summary judgment is an interlocutory judgment that is not expressly appealable by law. The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ. See Ganier v. Inglewood Homes, Inc., 06-0642 p. 2 (La.App. 4 Cir. 11/08/06), 944 So.2d 753, 755. We have, in the past, and in the interest of justice, exercised our supervisory jurisdiction by converting interlocutory appeals into applications for supervisory writs. Considering that |2NAIC timely filed its appeal within the delays allowed for applying for supervisory writs, we will convert the appeal to a writ and consider NAIC’s assignments of error under our supervisory jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

On August 3, 2006, John Young applied to NAIC for insurance through Graham Insurance Services of Gretna. In connection with the insurance application, Mr. Young executed an uninsured/underin-sured motorist bodily injury coverage form rejecting “UM” coverage; however, at the time of rejecting the UM coverage, the line on the form calling for the policy number was left blank.

Following plaintiffs automobile accident, she filed this action against NAIC alleging that it was her uninsured/underinsured motorist carrier. NAIC filed a motion for summary judgment alleging that the UM waiver form was valid despite the fact that it did not contain the policy number. In support of the motion for summary judgment, NAIC submitted: (1) the Commissioner of Insurance bulletin LIRC 98-03, which provided that when a policy number is not available, “the space for the policy number may be left blank or a binder number may be inserted”; (2) the affidavit of Stephen C. Schrempp, President of NAIC, who stated that because the policy number did not exist at the time the uninsured motorist selection/rejection form was signed, it could not have been included in the blank space provided on the uninsured motorist selection/rejection form; (3) a copy of the UM waiver form signed by Mr. Young on August 3, 2006; and (4) a copy of Mr. Young’s automobile insurance policy declarations for the period of August 6, 2006 to February 6, 2007.

After a contradictory hearing, the trial court denied NAIC’s motion for summary judgment, finding the UM waiver form “invalid pursuant to Gray v. 3American Nat. Property & Cas., Co. 2007-1670 (La.2/26/08) 977 So.2d 839 and that uninsured motorist coverage is available equal to the limits of liability coverage under the policy.”

NAIC assigns the following two assignments of error: (1) the trial court erred when it denied its motion for summary judgment, where at the time the UM rejection form was executed the policy number did not exist; and (2) the trial court’s denial of the motion for summary judgment constitutes legal error in light of Carter v. State Farm Mut. Auto. Ins. Co., 2007-1294 (La.10/5/07), 964 So.2d 375.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. 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 material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

|4The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

DISCUSSION

The issue before this Court is the validity and effectiveness of an uninsured motorist waiver form which does not contain the policy number. NAIC argues that the recent decision of the Louisiana Supreme Court in Gray v. American Nat. Property & Gas. Co., 2007-1670 (La.2/26/08), 977 So.2d 839 is distinguishable from the case sub judice and that because no policy number existed at the time of application and execution of the UM rejection form, the uninsured motorist waiver form was properly executed. Plaintiffs counter argument is that the lack of a policy or binder number as well as a policy in effect providing coverage when the UM form was executed invalidates the UM form.

Under the UM coverage statute, La. R.S. 22:680, “the requirement of UM coverage is an implied amendment to any automobile liability policy, even' when not expressly addressed, as UM coverage will be read into the policy unless validly |r>rejected.” Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Id. UM rejection “shall be made only on a form prescribed by the commissioner of insurance.” La. R.S. 22:680(l)(a)(ii). Specifically, the statute provides, in part:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

La. R.S. 22:680(1)(a)(ii).

Because the UM coverage statute is to be liberally construed, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Duncan, 06-363 at p. 4-5, 950 So.2d at 547. Thus, a determination of whether NAIC was entitled to summary judgment depends on whether it carried its burden of producing factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., by producing a valid UM coverage form by which the named insured under the policy, Mr. Young, rejected such coverage.

In Duncan, the Louisiana Supreme Court addressed the issue of whether the UM coverage form, prescribed for selection of UM coverage by the commissioner |r,of insurance, must contain the insurance policy number in order for a waiver to be effective. The Supreme Court addressed the six tasks entailed in the commissioner of insurance’s form that they found were pertinent for a valid rejection of UM coverage: 1) initialing the selection or rejection of coverage chosen; 2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident; 3) printing the name of the named insured or legal representative; 4) signing the name of the named insured or legal representative; 5) filling in the policy number; and 6) filling in the date. Duncan, 06-363 at p. 11-12, 950 So.2d at 551. The Supreme Court ultimately found that the “failure to fill in the policy number on the form prescribed by the commissioner of insurance invalidates the UM waiver, and consequently, the UM coverage is equal to the liability limits of the policy.” Id., 06-363 at p. 16, 950 So.2d at 554.

However, since Duncan, the Louisiana Supreme Court has concluded that filling in the policy number is not essential to a valid UM coverage waiver where the evidence establishes that no policy number was available at the time of the execution of the UM coverage form. Carter v. State Farm Mut. Auto. Ins. Co., 2007-1294 (La.10/05/07), 964 So.2d 375. Specifically, in Carter, the Louisiana Supreme Court noted “this case is factually distinguishable from Duncan v. USAA Ins. Co., 06-0363 (La.11/29/06), 950 So.2d 544, because the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time UM waiver form is completed.” The Insurance Commissioner Bulletin LIRC 98-03 specifically provides, “[i]n the case where a policy number is not available, the space for the policy number may be left blank or a binder number |7may be inserted.” Further, in Gray v. American Nat. Property & Cas. Co., 07-1670 at p. 11 n. 2, 977 So.2d at 847 n. 2, the Louisiana Supreme Court stated:

Following Duncan, this court acknowledged in Carter v. State Farm Mutual Automobile Ins. Co., 07-1294 (La.10/5/97) [sic], 964 So.2d 375, that ‘the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time UM waiver form is completed.’ In fact, Insurance Commissioner Bulletin LIRC 98-03 provides as follows: ‘In the case where a policy number is not available, the space for the policy number may be left blank or a binder number may be inserted.’ The record in this case indicates that the policy number was available when the UM selection form(s) were signed. Therefore, we will continue to refer to the “six tasks” necessary for a valid UM selection form in this case. We note however that a case where the policy number is not available, only five “tasks” would be necessary for a valid UM selection form. (Emphasis added)

Unlike in the Gray decision, where the UM selection form “did not meet the requirements imposed by the Insurance Commissioner,” the UM form in this case followed the regulations provided by the Insurance Commissioner. The only blank on the NAIC UM coverage form was the space for the policy number, which did not exist at the time the UM waiver was executed. Mr. Schrempp’s affidavit establishes that the policy number was not available when Mr. Young signed the UM rejection form. Mr. Schrempp’s affidavit stated that the policy number was later assigned by NAIC after receipt of the application for insurance and written on the application. Thus, NAIC produced factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., that Mr. Young | ^rejected UM coverage by initialing and signing the UM coverage form, indicating he did not want UM coverage.

At that point, the burden shifted to plaintiff to rebut the presumption that Mr. Young knowingly rejected UM coverage. Because plaintiff presented no evidence to counter the valid UM coverage form, we conclude that there are no genuine issues of material fact, and that NAIC is entitled to judgment as a matter of law.

For these reasons, we reverse the judgment of the trial court, which denied NAIC’s motion for summary judgment. We find that the failure to fill in the policy number on the form prescribed by the commissioner of insurance, when no policy number existed at the time, did not invalidate the UM waiver. Because we find no genuine issue of fact regarding whether the form at issue was “properly completed and signed” and because plaintiff presented no evidence to rebut the presumption that Mr. Young rejected UM coverage, we hereby grant NAIC’s motion for summary judgment and find that Mr. Young validly waived UM coverage.

APPEAL CONVERTED TO A WRIT; Judgment REVERSED.

McKAY, J., dissents.

McKAY, J.,

dissents.

hi respectfully dissent from the majority’s decision to grant this writ and reverse the trial court’s denial of summary judgment. The defendants have failed to show that they have complied with the six tasks required by Gray v. American Nat. Property & Cas. Co., 2007-1670 (La.2/26/08), 977 So.2d 839. Accordingly, there remain genuine issues of material fact and the mover is not entitled to judgment as a matter of law.

      . The parties do not dispute that the UM coverage form signed by Mr. Young was in the form prescribed by the Commissioner of Insurance.


author: DAVID S. GORBATY, Judge. BELSOME, J.,

text:
    SMITH STAG, L.L.C., Smith/Cooper Holdings II, LLC, and Jones Swanson, Huddell & Garrison, L.L.C. f/k/a Jones, Verras & Freiberg, L.L.C. v. WILSON & MEYER CUSTOM THEATER INTERIORS, L.L.C., Michael C. Wilson, Jr., Melinda Wilson, Jason Hales, Lakeside National Bank, and Claire Tully & Associates, Inc.
    No. 2008-CA-1251.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.

      Kyle D. Schonekas, William P. Gibbens, Sara A. Johnson, Schonekas Winsberg Evans & McGoey, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Christopher S. Mann, William P. Wynne, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellee, Lakeside National Bank.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

Lin this appeal, plaintiffs contend that the trial court erred in sustaining the exception of lack of personal jurisdiction filed by Lakeside National Bank (“Lakeside”). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of various contracts entered into between the plaintiffs and some of the defendants, not including Lakeside, regarding the construction and/or renovation of properties in Miami, Florida and New Orleans, Louisiana. Plaintiffs allege that two of the defendants, Michael C. Wilson, Jr. and Wilson & Meyer Custom Theater Interiors, LLC (“Wilson & Meyer”), took their money but failed to provide the services for which the payments were intended.

Plaintiffs assert that they wired money from their bank accounts to Wilson & Meyer’s bank account at Lakeside, a Texas bank that operates solely from a single office located in Rockwall, Texas. According to plaintiffs, Melinda Wilson, an employee of Lakeside and another co-defendant, processed these wire transfers and transferred the wired funds, pursuant to Wilson & Meyer’s instructions, to another account controlled by Wilson & Meyer. Plaintiffs allege that Lakeside is responsible for the activities of Melinda Wilson under the doctrine of respondeat \.2superior, and further that Lakeside was negligent in supervising Melinda Wilson’s employment activities.

Lakeside filed an exception of lack of personal jurisdiction, arguing that Lakeside does not have sufficient minimum contacts to satisfy general jurisdiction. The trial court sustained the exception, dismissing all claims against Lakeside with prejudice. In its reasons for judgment, the court concluded that no amount of discovery would uncover any facts that establish jurisdiction because Lakeside has only one office located in Rockwall, Texas. Plaintiffs filed a Motion for New Trial, which was denied. Plaintiffs subsequently filed this appeal.

DISCUSSION

Plaintiffs assert that the trial court erred in finding that it did not have jurisdiction over Lakeside. According to plaintiffs, the trial court failed to consider the allegations of specific jurisdiction, which is available when a suit arises out of or is related to the defendant’s contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Plaintiffs argue that Melinda Wilson purposefully caused a consequence in Louisiana by diverting wire transfers coming from Louisiana to Texas. In addition, Melinda Wilson communicated with her husband about diverting the money, and her husband was in New Orleans on several occasions when money was sent to Lakeside. Since Melinda contacted her husband in Louisiana to further the fraud, plaintiffs aver, the court has specific personal jurisdiction over her, and thus has jurisdiction over her employer under the doctrine of respondeat superior.

In reviewing a judgment on an exception of lack of personal jurisdiction, the factual findings underlying the judgment are reviewed only for manifest error. Martin-Creech v. Armstrong, 42,649 (La.App. 2 Cir. 9/12/07), 965 So.2d 624. The ^application of the facts to established rules of law is a legal question, and thus, the legal issue of personal jurisdiction over a non-resident by a Louisiana court is subject to de novo review.

The Louisiana Long Arm Statute provides, in part, that “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and the Constitution of the United States.” La. R.S. 13:3201(B). The intent of this Long Arm Statute is to “extend personal jurisdiction of Louisiana courts over nonresidents consistent with the due process clause of the Fourteenth Amendment,” which requires that the nonresident defendant have sufficient minimum contacts with the forum state, “such that the maintenance of the lawsuit does not offend traditional notions of fair play and substantial justice.” Jasper v. National Medical Enterprises, Inc., 94-1120 (La.App. 1 Cir. 6/23/95), 657 So.2d 604 (citations omitted). These minimum contacts must be sufficient for the nonresident defendant to “reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

In the instant ease, the trial court properly found that plaintiffs did not and could not sustain their burden of establishing sufficient minimum contacts to exercise either specific or general personal jurisdiction over Lakeside. Lakeside has but one office, which is located in Texas. It does not do business in Louisiana, has no office in Louisiana, has no employees in Louisiana, and has no assets in Louisiana. Lakeside does not advertise in Louisiana and does not solicit customers in Louisiana. In short, Lakeside is a local, independent bank serving the citizens of Rock-wall County, Texas with no connection to the state of Louisiana whatsoever.

|4Plaintiffs’ cause of action against Lakeside is based solely on the alleged actions of Melinda Wilson, a Lakeside employee. Melinda Wilson is a Texas domiciliary and resident and has no contacts with Louisiana. In this matter, her only alleged role was transferring funds in Texas, after plaintiffs voluntarily transferred funds from Louisiana to Texas, from the account of Wilson & Meyer, a Texas limited liability company, to the account of Michael Wilson, a domiciliary and resident of Texas. Plaintiffs do not allege that Lakeside or Melinda Wilson conducted any activities in Louisiana regarding the issues that form the basis of this lawsuit. Therefore, the alleged negligent acts for which plaintiffs seek to hold Lakeside responsible occurred in Texas, not Louisiana.

Drake v. Laboratory Corp. of America, 2007 WL 776818 (E.D.N.Y. Mar.13, 2007), involved a situation very similar to the one at hand. In that case, the court found that it could not establish jurisdiction over Lab-Corp, Kevin Wilson’s employer, as a result of the tortuous actions of Kevin Wilson, because all of Kevin Wilson’s allegedly conspiratorial acts occurred outside the forum state, even though Kevin Wilson allegedly conspired with co-conspirators acting within the forum state. The same reasoning applies here. Melinda Wilson did not act within the state of Louisiana, even though her alleged co-conspirators did. As such, even under Drake, jurisdiction is not proper over Melinda Wilson or Lakeside in Louisiana. The trial court did not err in sustaining the exception of lack of personal jurisdiction.

Plaintiffs argue that the trial court erred in failing to permit jurisdictional discovery.

It is well established that trial courts have vast discretion in the regulation of pre-trial discovery. Krepps v. Hindelang, 97-980 (La.App. 5 Cir. 4/15/98), 713 5So.2d 519. Decisions made by the trial court in these matters will not be overturned absent a clear abuse of that discretion. Moak v. Illinois Central Railroad Co., 93-0783 (La.1/14/94), 631 So.2d 401.

Plaintiffs’ suit was filed on January 18, 2008. Plaintiffs served Lakeside on April 29, 2008. Lakeside filed its exception of lack of personal jurisdiction on June 4, 2008. The exception was heard on July 11, 2008, and judgment sustaining the exception was entered on July 23, 2008. At no time during the months before the exception was sustained did plaintiffs serve a single interrogatory or request for production on Lakeside. Similarly, plaintiffs never once requested depositions of Lakeside or any of its employees. Plaintiffs did not file a motion to continue the hearing date on the exception. Under these circumstances, where plaintiffs had time to conduct discovery prior to the rule on Lakeside’s exception but chose not to, it is clear that the trial court did not abuse its discretion in failing to permit jurisdictional discovery.

In their final assignment of error, plaintiffs aver that the trial court erred when it dismissed Lakeside with prejudice. They argue that, if this court does not reverse the trial court’s judgment, the judgment should be amended to dismiss the suit without prejudice, so that plaintiffs may re-file their suit against Lakeside in another jurisdiction.

Louisiana Code of Civil Procedure article 932 states: “When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” We therefore amend the judgment of the trial court to dismiss plaintiffs’ claims against Lakeside “without prejudice.”

| c,CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed as amended.

AFFIRMED AS AMENDED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

hi respectfully dissent with regard to the majority’s finding that the trial court did not abuse its discretion in disallowing jurisdictional discovery. While it is well-settled that a trial court has vast discretion with respect to pre-trial discovery, Krepps, supra, the jurisdictional issue is at the heart of Appellants’ allegations regarding the telephone conversations between Michael and Melinda Wilson involving the diversion of funds while Michael was in Louisiana.

Moreover, Appellants have set forth sufficient facts to establish specific personal jurisdiction in this case. “Specific jurisdiction exists when ‘a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.’ ” Drake v. Laboratory Corp. of America Holdings, 2007 WL 776818 (E.D.N.Y. March 13, 2007)(quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Although Melinda Wilson’s actions occurred in Texas, Ms. Wilson communicated with Michael Wilson, who traveled to New Orleans in furtherance of the alleged scheme to defraud Appellants.

| .¿The majority cites Drake, supra, in support of its holding that specific personal jurisdiction is improper under these facts and circumstances. The court in Drake acknowledged that the plaintiff cited cases for the proposition that acts within New York, the forum state, by a co-conspirator of an out-of-state defendant could subject the out-of-state defendant to personal jurisdiction in New York. Drake, supra at *11. In Drake, however, the court found that the plaintiffs allegations of conspiracy were insufficient to support the exercise of personal jurisdiction because he did not allege that any of the conspiracy defendants committed a tort in New York. Id. Conversely, in this case, Appellants allege that defendant Michael Wilson, while in Louisiana, conspired with Melinda Wilson in furtherance of the fraudulent scheme. Specifically, Appellants allege that while in New Orleans, Michael Wilson directed Appellants to deposit money into the Wilson & Meyer account at Lakeside in Texas, which Ms. Wilson facilitated.

La. R.S. 13:8201 provides, in pertinent part (emphasis added):

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

| ^Accordingly, if Ms. Wilson acted as Mr. Wilson’s agent in the alleged conspiracy as his co-conspirator, her actions fall within the provisions of La. R.S. 13:3201(A)(3), making the exercise of specific personal jurisdiction proper. Under the doctrine of respondeat superior, Louisiana would likewise have jurisdiction over Lakeside as Ms. Wilson’s employer. For the foregoing reasons, I respectfully dissent.

      . The New York statute regarding personal jurisdiction over non-residents provides that the state shall exercise its long-arm jurisdiction over a non-domiciliary who personally or through his agent commits a tortious act within the State. See N.Y. C.P.L.R. § 302. New York jurisprudence has defined "agent” to encompass a defendant's co-conspirators in certain circumstances. See Chrysler Capital Corp. v. Century Power Corp., 778 F.Supp. 1260 (S.D.N.Y.1991); Lehigh Valley Indus., Inc. v. Birenbaum, 389 F.Supp. 798 (S.D.N.Y.1975).
      Although the Louisiana Supreme Court as well as this Court's jurisprudence is silent as to whether an "agent” under La. R.S. 13:3201 potentially encompasses a co-conspirator, at least one Louisiana court has rejected this theory. See Dietz v. Dietz, 2008 WL 5351049 (W.D.La.9/24/08) at *3 (stating that "[t]he undersigned has found no support for the proposition that the Louisiana Supreme Court would adopt the conspiracy theory of jurisdiction to satisfy the minimum contacts prong of the inquiry.”).

      . As a side note, it is conceivable that personal jurisdiction issues may inevitably become obsolete with advances in technology and the pervasiveness of the World Wide Web. See Ryan W. Scott, Minimum Contacts, No Dog: Evaluating Personal Jurisdiction for Nonparty Discovery, 88 Minn. L.Rev. 968, 991-92 (2004)(discussing advances in technology and its effect on courts’ subpoena power):
      Personal jurisdiction limits for nonparty discovery might seem quaint in light of technological developments that dramatically reduce the burdens of nonparty testimony and document production. Some observers contend that advances in technology have rendered strict territorial limitations on the subpoena power of courts obsolete.

        Scott, supra, at 991-92. See also Cathaleen A. Roach, It's Time to Change the Rule Compelling Witness Appearance at Trial: Proposed Revisions to Federal Rule of Civil Procedure 45(e), 79 Geo. L.J. 81 (1990).


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Howard COBB, Appellant.
    Nos. 43,910-KA to 43,912-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.
    Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

I,Howard Cobb was indicted, by separate bills, for aggravated rape of a victim under the age of 13, La. R.S. 14:42 A(4), and molestation of a juvenile with incidents occurring over a period of more than one year, La. R.S. 14:81.2 D, and charged by bill of information with 38 counts of pornography involving juveniles, La. R.S. 14:81.1. Pursuant to a plea agreement, he pled guilty to forcible rape, La. R.S. 14:42.1, molestation of a juvenile and one count of pornography involving juveniles; the district court sentenced him to 40 years, 20 years and 5 years respectively, all at hard labor and to run concurrently. Cobb now appeals his sentences as excessive; we affirm.

According to the presentence investigation (“PSI”) report, in June 2007, the 58-year-old Cobb’s granddaughter reported to her grandmother, from whom Cobb had been divorced for 30 years, that Cobb showed her a picture of his genitals on his cell phone. At the sheriffs office, the granddaughter added that Cobb had shown her pornographic pictures on his home computer and exposed himself to her while swimming. A search of Cobb’s house uncovered 38 photos of underage girls, various sex toys and porn movies, and computer images of nude teenage girls, apparently downloaded from the Internet.

The investigation led to four girls between the ages of 10 and 17. These victims told the Springhill Police that Cobb, a friend of their families, had been hiring them to clean his house, during which time he showed them sex toys, took nude pictures of them, exposed himself to them and engaged two of them in oral and vaginal sex. The 10-year-old victim stated that |2Cobb first had sex with her when she was 9; the 17-year-old victim said this first happened to her when she was 11. One victim confirmed that 25 of the photos were of her; another identified herself in 13 photos, but said she did not recall when they were taken because Cobb had given her so much alcohol that she passed out.

Cobb told the agent who prepared the PSI that he would take the girls to buy school supplies or give them money to get something to eat. He admitted having oral sex with a girl under the age of 13, but said he did not want to hurt them anymore. At his Boykin hearing, he stated, “I just want to do the right thing, sir.”

By motion to reconsider sentence and now on appeal, Cobb urges the district court failed to give adequate consideration to his age and clean criminal record; the lack of evidence that he inflicted any physical harm or enduring psychological harm on any victim; and his need of rehabilitation for an obvious sexual addiction. He submits that a noncustodial environment, involving probation with extended monitoring for his addiction, would have been more appropriate for 58-year-old first-time offender.

A punishment is constitutionally excessive under La. Const. Art. 1, § 20, if it makes no measurable contribution to acceptable penal goals, is nothing more than a purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379. The sentencing court is required to | stake cognizance of the guidelines of La. C. Cr. P. art. 894.1, but is not required to give specific matters any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. The benefit accruing from a favorable plea bargain will often justify the imposition of even the maximum sentence for the offense of conviction. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Hollins, 43,168 (La.App. 2 Cir. 4/30/08), 981 So.2d 819.

The district court correctly stated Cobb’s age and first-felony status, but found that these mitigating factors paled beside the enormity of his misconduct: “You had sexual intercourse on at least more than one occasion with victims that were under the age of 13.” The court also noted that this offense, as defined in R.S. 14:42 A(4), carried a possible death penalty until the recent case of Kennedy v. Louisiana, — U.S. -, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), which reduced it to mandatory life on federal grounds. The benefit of the plea bargain, which lowered Cobb’s exposure from death or life in prison to 40 years at hard labor for forcible rape, fully supports the maximum sentence imposed. The dismissal of 37 counts of pornography involving juveniles was another significant benefit. Although the aggregate sentence of 40 years at hard labor appears not to address the goal of rehabilitation, and may well be a life sentence for a 58-year-old defendant, we cannot say that it was an abuse of the district court’s discretion or a violation of Cobb’s constitutional rights. The assigned error lacks merit.

14We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For these reasons, Howard Cobb’s convictions and sentences are affirmed.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Patricia DAVIS v. FORTIS BENEFITS INS. CO., et al.
    No. 08-1080.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Jarvis J. Claiborne, Opelousas, LA, for Plaintifl/Appellant, Patricia Davis.
    Scott N. Hensgens, Carroll Devillier, Jr., Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA, for Defendant/Appellee, Washington National Life Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| ,This case involves a claim for dependent life insurance benefits by the plaintiff-appellant, Patricia Davis, against the defendant-appellee, Washington National Insurance Company (Washington National). The trial court granted the defendant’s motion for summary judgment on the bases that the decedent was no longer a “dependent” under the policy because of a divorce which preceded the alleged dependent’s death and, further, because Washington National had not renewed the policy prior to the alleged dependent’s death. Ms. Davis filed this appeal. We affirm the trial court’s judgment granting the motion for summary judgment in favor of Washington National.

I.

ISSUE

We must decide whether the trial court committed legal error in granting summary judgment in favor of Washington National.

II.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Patricia Davis, worked for the St. Landry Parish School Board as a teacher’s aide. In 1999, she applied for $40,000.00 of dependent life insurance coverage on her husband, Morris Davis, Jr., under her group policy with the school board. The school board’s insurer at that time was Washington National. The policy clearly defined an “eligible dependent” as the spouse of an insured employee or the insured employee’s unmarried child of a specified age. On July 30th and August 6th of 2003, Washington National sent letters to the school board notifying it that Washington National was exiting the group benefits business and would not be renewing its group insurance contract with the school board. The |2effective date of non-renewal was October 1, 2003. The notifications provided detailed information that Fortis Benefits Insurance Company (Fortis) would pick up the school board’s coverage.

In September 2003, before the October 1, 2003 effective date of non-renewal with Washington National, Ms. Davis submitted an application to Fortis, through the assistant superintendent of the school board, for coverage of her life insurance policy on Morris Davis. Accordingly, Ms. Davis’ payroll-deducted premiums began going to Fortis. The Fortis policy provided that the eligible dependent must be the “lawful husband” or unmarried child of the insured employee. Dependent coverage as to both insurers respectively, first Washington National and then Fortis, ended when the policy terminated or when a dependent was no longer eligible.

On June 9, 2004, Ms. Davis obtained a final divorce from Morris Davis. Ms. Davis did not provide notification to either insurer of her divorce from Morris Davis, and she continued to have the life insurance premiums deducted from her paychecks by the school board.

Morris Davis subsequently married another woman. He died on November 29, 2004. His death certificate listed his surviving spouse as Jeanette Rideau.

The trial court granted summary judgment to Fortis, the insurer at the time of the divorce and the death of Morris Davis, in December 2006. This appeal concerns Washington National’s motion for summary judgment.

Jain.

LAW AND DISCUSSION

Standard of Review
When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.”

Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought 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 material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof imposed upon a movant for a motion for summary judgment are set forth in the Louisiana Code of Civil Procedure:

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

La.Code Civ.P. art. 966(C)(2).

|,Notice of Non-Renewal

Ms. Davis first argued that she never received a notice of non-renewal from Washington National; rather, the notice was sent to the school board. The trial court pointed out that the school board was the insured and found no requirement that employees be individually notified by the insurer of non-renewals such as those herein. Nor do we. More specifically, under La.R.S. 22:636, the cancellation of a policy by an insurer “may be effected as to any interest” by written notice “actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than thirty days prior to the effective date of the cancellation.” La.R.S.22:636(A)(l)(a) (emphasis added).

In this case, the notice of non-renewal was provided to Ms. Davis’ employer, to the attention of a Ms. Fontenot, as a person in charge of the subject of the insurance, on July 30, 2003, more than sixty days before the effective date of non-renewal on October 1, 2003. Therefore, the thirty-day notice of La.R.S. 22:636(A)(l)(a) is more than met. Ms. Davis cited no law in support of her position on notice. Likewise, we found no law under the present facts requiring that a notice of non-renewal of a group policy must go directly from the insurer to the individual employees of the insured. Moreover, it is clear that Ms. Davis was timely notified of the non-renewal because she applied for coverage with Fortis on September 10, 2003, before the effective date of Washington National’s non-renewal on October 1, 2003.

| .^Retained Premium Payments

Ms. Davis next argued that Fortis kept her premium payments and that this conduct is evidence of an implied contract, thereby, proving coverage on the dependent life insurance claim. With no support for her position, she argues that Washington National is liable for the death benefit, even though it was the first insurer and it properly terminated coverage over a year before Morris Davis died and approximately eight months before he became an ineligible dependent due to divorce. We disagree for many reasons. As a threshold matter, at the time of the divorce, and at the time of Morris Davis’ death, premiums were being paid to Fortis, not to Washington National; and, Washington National has no affiliation with Fortis as a parent or subsidiary or as a merged or acquired entity.

Further, Ms. Davis withheld the fact of the divorce from Fortis, whose knowledge in any event cannot be imputed to the preceding insurer, Washington National. Ms. Daws had her payroll deduction of the premiums continued of her own volition without interruption. Ms. Davis cannot now say that it was the insurer’s duty to specifically notify her that divorce tei’minated coverage or that she must notify the insurer in case a dependent becomes ineligible. An insured is presumed to know the provisions of her coverage. See Stephens v. Audubon Ins. Co., 27,658 (La.App. 2 Cir. 12/6/95), 665 So.2d 683, writ denied, 96-0066 (La.2/28/96), 668 So.2d 363. In this case, the record reveals that when the insurer, Fortis, called her about the claim, Ms. Davis refused to divulge the information regarding the divorce. Fortis learned the facts on its own via the divorce decree and the death certificate, both of which were filed into the record by both insurers. Accordingly, Ms. Davis’ second argument is without merit.

| Affidavits and Attachments

Finally, Ms. Davis contends that it was error for the trial court to admit into evidence the affidavit of Ioanna Archer Raughton, the claims adjuster for Con-seco Services, L.L.C. (Conseco), which is the administrative service for Washington National. Without explanation, Ms. Davis argues that the affidavit was not made on personal knowledge. Ms. Davis further argues that the attachments to the affidavit were not certified, amounted to hearsay, and violated La.Code Civ.P. art. 967. Again, we disagree. The affidavit of Ms. Raughton identifies herself and her position as Claims Adjuster II with Conseco and explains the relationship between Con-seco and Washington National. Ms. Raughton further states that she knows the facts surrounding the coverage based upon personal knowledge and that she has reviewed the documents which are in her custody, care, and control. She describes the contents and provisions of each attached letter of notice, insurance application, and insurance policy and states at the bottom of her sworn affidavit that everything contained therein is true and correct to the best of her knowledge, information, and belief. Both the death certificate and the Judgment of Divorce, which were not generated by Washington National, bear stamps certifying that they are true copies.

We have held that an insurance policy attached to the affidavit of an insurer’s staff attorney was properly considered in ruling on the insurer’s summary judgment motion where, in his affidavit, counsel swore that the attached policy was [ 7a true and correct copy of the one over which litigation arose, notwithstanding that such contract may not have been separately certified or verified. Tabb v. La. Health Servs. & Indem. Co., 352 So.2d 771 (La.App. 3 Cir.1977), writ granted, 354 So.2d 1386(La.), rev’d on other grounds, 361 So.2d 862 (La.1978).

In Settoon v. St. Paul Fire & Marine Insurance Co., 331 So.2d 73 (La.App. 1 Cir.1976), the first circuit held that the only certification required, with regard to an affidavit in support of a motion for summary judgment, is that copies of the papers referred to in the affidavit be attached to, or served with, the affidavit. The Settoon court found that Article 967 does not require certified evidence to prove every statement made by an affiant in support of a motion for summary judgment. See also, Yarbrough v. Fed. Land Bank Ass’n of Jackson, 616 So.2d 1327(La.App. 2 Cir.1993). And see, Broadbridge v. Perez, 565 So.2d 1090 (La.App. 4 Cir.1990) (although DOTD documents did not have a certified or true copy stamp on them as did the accident report, the letter of the operations specialist for the district in which the accident occurred stated that the documents were copies of official DOTD records; this was found to be certification, or the equivalent of certification).

The only evidence offered by Ms. Davis to oppose the insurer’s motion for summary judgment was her own one-page affidavit with no attachments. Ms. Davis’ affidavit contained a list of the unsupported arguments discussed above, regarding notice and acceptance of payments, and her unjustified beliefs that she should have been specifically notified that coverage would terminate upon divorce and that it was her obligation to notify the insurer of same.

Louisiana Code of Civil Procedure Article 967(B) provides in pertinent part as follows:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest |son the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Accordingly, once both parties have completed their pleadings, depositions, and attachments, summary judgment will be granted only if the issues of fact presented “are so patently insubstantial as to present no genuine issues” of material fact; a mere allegation without substance will not preclude the rendering of summary judgment. City of Baton Rouge v. Cannon, 376 So.2d 994, 996 (La.App. 1 Cir.1979) (quoting Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179, 181 (La.App. 4 Cir.), writ refused, 261 La. 462, 259 So.2d 914 (1972)).

According to our review of the facts and law in this case, the affidavits and attachments of Washington National demonstrate that divorce terminated the eligibility of Moms Davis as a dependent under the policy, that Fortis was the insurer at the pertinent times, not Washington National, and that notice was timely given to the school board, who gave notice to the employees. Ms. Davis has not provided any law or evidentiary support for the naked allegations in her affidavit, all of which are negated by the evidence in the record. We, therefore, conclude that Ms. Davis has failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Accordingly, there is no genuine issue of material fact to preclude summary judgment in favor of Washington National.

IV.

CONCLUSION

Based upon the foregoing, the Judgment of the trial court is affirmed. Costs of this appeal are assessed against Patricia Davis.

AFFIRMED.

      . Ms. Davis never acted independently as an insured. Ms. Davis’ application to Fortis was transmitted to Fortis with a cover letter from the school board, signed by the school board's assistant superintendent; It listed the school board as the applicant and the insured. When Ms. Davis filed a claim for the death benefits with Fortis, she did so through Tara Fontenot, a school board administrator who signed the claim as the authorized policyholder. When Washington National notified the school board of its non-renewal and provided the name of its successor, the two letters of notification went to the attention of Tara Fontenot.

      . Louisiana Code of Civil Procedure Article 967 provides in pertinent part as follows:
      A. 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 matters stated therein.... Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.