text:
    STATE of Louisiana v. Matthew R. SCOGGINS.
    No. 2010-KA-0869.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    Jeffrey M. Burg, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellant, Matthew R. Scoggins.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ^STATEMENT OF CASE

On December 19, 2008, the State filed a bill of information charging the defendant, Matthew R. Scoggin, with molestation of his eight-year old niece, I.B., a violation of La. R.S. 14:81.2. The bill of information indicated that the alleged offense occurred during the period of August 1, 2008 through August 30, 2008. The defendant pled not guilty at his arraignment on January 28, 2009.

On September 28, 2009, the State filed a notice of intent to offer evidence of other similar acts involving sexually assaultive behavior pursuant to La. C.E. art. 412.2. This behavior included unadjudicated acts of molestation committed by the defendant upon another juvenile victim several years prior to the charged offense. The trial court granted the State’s request on October 14, 2009.

On November 17, 2009, the defendant filed a Motion to Quash the State’s subpoena to Reverend Henry Hudson, the defendant’s minister, on the grounds that compelling his testimony would violate the “clergyman’s privilege” of La. C.E. art. 511. After taking preliminary testimony from Reverend Hudson, the court granted |⅞⅛ part and denied in part the defendant’s motion, allowing Reverend Hudson to be called for the limited purpose of confirming that a meeting took place between him, the defendant and others. The State applied for supervisory review from this Court, which reversed the trial court’s ruling, holding the La. C.E. art. 511 privilege did not extend to this situation, and thus Reverend Hudson could testify in full.

Thereafter, the defendant sought review of that ruling to the Louisiana Supreme Court, which granted writs and reinstated the trial court’s original ruling limiting Reverend Hudson’s testimony. Also on that date, the State moved to amend the bill of information to expand the dates of the charged offense from January 1 through October 12, 2008. The defendant moved to quash on the grounds that the State’s expansion of its factual predicate to allege incidences occurring prior to the August, 2008 sentencing amendment of the molestation statute placed him at risk of receiving a life sentence under the old provision, which mandated a grand jury indictment. After hearing argument on the issue on November 18, 2009, the trial court denied the defendant’s motion to quash. On November 19, 2009, following a two day jury trial, the jury found the defendant guilty of indecent behavior with a juvenile.

On January 14, 2010, the defendant filed a Motion in Arrest of Judgment based on the grounds that charges had improperly been instituted by bill of information rather than by grand jury indictment.

On July 15, 2010, the trial court denied the motion and sentenced the defendant to a term of fifteen years, at hard labor, without benefit of parole, ^probation, or suspension of sentence for the first ten years, and placed the defendant on active probation for the remaining five years. The defendant’s Motion for Reconsideration of Sentence was denied on February 22, 2010. On March 1, 2010, pursuant to the defendant’s Motion to Correct Illegal Sentence, the trial court amended the defendant’s sentence to include the provision that his custody for the last five years of his sentence would be suspended to allow for probation.

STATEMENT OF FACT

During the 2008-2009 school year, third grade teacher, Ms. Anna Pignato, taught the victim language arts and math in the gifted program at Magnolia Trace Elementary in Mandeville. On October 13, 2008, the victim, along with other students, viewed a thirty minute video entitled ‘Tes, you can say No” which was a dramatization of a child experiencing problems with a sexually abusive uncle. The video was a tutorial in assertiveness to prevent sexual abuse. After the presentation, one of Ms. Pignato’s students reported to her that the victim told the student that the defendant inappropriately touched her genital area. Ms. Pignato spoke with the victim and confirmed that the victim had in fact made the allegation. Further questioning the victim, Ms. Pignato learned that the victim had not told anyone about the improper touching before she viewed the video. Ms. Pignato reported the incident to the school’s guidance counselors, Susan Bro-cotta and Tobin Keeth, which concluded Ms. Pignato’s involvement in the matter.

Ms. Tobin Keeth was a six year guidance counselor at Magnolia Trace Elementary School during the 2008 school year. Her job entailed providing the school children with age-appropriate sexual abuse prevention education, which ^includes the use of video presentations. After receiving a report from Ms. Pignato, Ms. Keeth spoke with the victim. Ms. Keeth then arranged a meeting with the victim’s parents to allow the victim to tell them what she had told the teachers. The victim’s parents were devastated and sickened by the victim’s revelation.

B.B., the victim’s mother, is the defendant’s wife’s sister. The families had a close relationship before she learned that the defendant molested her daughter. B.B.’s sister and the defendant often baby sat B.B.’s children at the defendant’s home and hosted family dinners. B.B.’s children enjoyed visiting their cousins, the defendant and his wife. B.B. had no suspicion as to the defendant’s behavior. She believed that the defendant was a doting uncle to her children. B.B. has not spoken to her sister since B.B. learned of the molestation. There is no relationship or communication between the two families.

On October 13, 2008, B.B. received a call from Ms. Keeth requesting that B.B. come to the school for a meeting with Ms. Keeth and the victim. B.B. was horrified and sickened by the victim’s revelation. The victim was nervous, fidgety and crying at the time she told her mother about the molestation because the defendant told the victim that their encounters were to be a secret between them. B.B. learned that victim told her younger brother, E.B., what the defendant had done to her. The following day, B.B. contacted personnel at the Children’s Advocacy Center, who advised her to speak with NOPD Sgt. Lorenzo. Then, Sgt. Lorenzo put her in touch with Officer Jonay Ross. Within a week of the revelation, B.B. and the victim were seen at the Child Advocacy Center. As a staff member interviewed the victim, B.B., her husband and young sons waited in another room. After the interview, a staff physician performed a physical exam on the victim.

|sDr. Adrienne Atzemis, an expert in the field of child abuse pediatrics, spoke with the victim at Children’s Hospital on October 20, 2008. That interview, along with the victim’s medical history, was audio taped. The victim provided Dr. Atzemis with a detailed history of hand to vaginal contact by the defendant.

The victim is the defendant’s niece and was seven years old at the time the defendant began touching her vagina. The touching occurred more than once and took place in various locations. The defendant would make certain that no one was around and then place the victim on a bed or chair and remove her pants/skirt and underwear to touch her. The defendant referred to victim’s vagina as the “sweet spot”, and he told her not to tell anyone about the touching because it was a secret between them. The victim kept her silence about the defendant’s behavior until she viewed a video at her school about a young boy subjected to inappropriate touching by his uncle. The video made the victim uncomfortable so she told her teacher about her uncle’s behavior. The teacher consulted the school counselors, who in turn contacted the victim’s parents. After the victim revealed the “secret” to her teacher, the victim felt relieved. The victim remembers recounting the inappropriate behavior to a doctor after her parents learned of it from her school.

Nineteen year-old C.Y. and her family were friends with the defendant and his family. She would often spend the night at the defendant’s house as a youngster of eight or nine years old. On one of those occasions, she awoke to find the defendant with his hand in her pants touching her vagina. She did not know what was going on but she knew it was not right. As she got older and took sex education classes, she realized that what the defendant did to her was wrong so she told her parents in June 2008. She made the decision to tell her parents as a result of medical testing by Dr. Andy Burka. During the session with Dr. Burka, she | ^replied affirmatively to a questionnaire which asked if she had ever been sexually assaulted. She told Dr. Burka of the inappropriate touching because her feelings of embarrassment and not wanting to hurt or make trouble for the defendant had been building over the years, and she finally had to let it out.

G.Y., C.Y.’s father, until the last year and half, had been life-long friends with the defendant. He also knew the defendant’s wife and children. His friendship with the defendant and his family ended in June 2008 when he learned the defendant had molested his daughter. G.Y. and his family, especially his daughter, were devastated by the defendant’s behavior. After months of trying to decide what to do about the molestation, G.Y. and his wife decided to consult a counselor, who suggested that they enlist the aid of an intermediary, someone who could make their feelings known to the defendant. They sought the aid of the Reverend Henry Hudson at Trinity Episcopal Church, as the intermediary so that they could face the defendant as accusers. At Reverend Hudson’s suggestion, G.Y. and his wife prepared a statement and arranged a meeting between them, Reverend Hudson and the defendant on November 24, 2008. The meeting was not called for spiritual advice or counseling. G.Y. and his wife were concerned that the defendant may become violent if they confronted him alone. When the defendant read the statement, he dissolved in tears and said, “I tried — I tried to be a good man but I’ve made so many mistakes and I’m so, so sorry.” The meeting lasted five or six minutes, after which G.Y. and his wife left Reverend Hudson to counsel the defendant. In August 2009, G.Y. and his wife met with the District Attorney about the defendant’s molestation of their daughter.

|7Reverend Henry Hudson participated in a meeting on November 24, 2008, in his office at Trinity Episcopal Church between the defendant and G.Y. and his wife. The defendant’s wife was unable to participate in the meeting. Reverend Hudson advised the attendees that he considered the meeting confidential, and he said that he would not disclose to anyone else anything that was discussed in the meeting.

Mrs. Dorsey Scoggin, the defendant’s wife, and the defendant were married for twenty-four years and have two children. I.B. is Mrs. Scoggin’s niece, and I.B.’s mother is Mrs. Scoggin’s younger sister. Mrs. Scoggin categorically denied that the defendant inappropriately touched I.B. On November 25, 2008, Mrs. Scoggin wrote a letter to G.Y. and his wife, in which Mrs. Scoggin spoke of the allegation as “heartbreaking.” Mrs. Seoggin’s letter also thanked G.Y. and his wife for their mercy and kindness.

ERRORS PATENT

Pursuant to La.C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, the only possible patent error is discussed as Assignment of Error Number 1.

ASSIGNMENT OF ERROR NUMBER 1

The trial court erred in allowing the prosecution to proceed on a bill of information when the charge of molestation of a juvenile charging acts occurring before the August 15, 2008, amendment of La. R.S. 14:81.2’s sentencing provisions required indictment by grand jury. This issue appears to be res nova based upon the facts of this case.

Act 33 of the 2008 session of the Louisiana Legislature amended the sentencing range for molestation of a juvenile from twenty-five years to life to Ltwenty-five to ninety-nine years, effective August 15, 2008. Additionally, La.C.Cr.P. art. 382(A) mandates that a prosecution for an offense punishable by life imprisonment be instituted by indictment by a grand jury. Moreover, La. Const, art. 1, § 15 requires that a defendant be indicted by a grand jury when a crime is punishable by life imprisonment. Just as important, the general rule is that the penalty in effect at the time of the commission of the offense is applicable. State v. Dick, 2006-2223 (La.1/26/07), 951 So.2d 124, citing State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518. However, this case differs from the Dick and Sugasti cases in that those cases, unlike the present case, involved the entire sum of the acts constituting the charged offense occurring prior to the date on which the new sentencing provisions took effect.

In this case, the defendant was charged in a single count bill of information referencing acts constituting the crime of molestation of a juvenile that occurred during the period of January to October 2008— incidents that occurred both before and after August 15, 2008, when the amended sentence took effect. Because the various incidents of misconduct constitute a single count, it is impossible to split those incidents occurring before and after August 15, 2008, respectively.

More importantly, the defendant in this case was not subject to the risk of lifetime imprisonment if convicted of the crime charged. The trial court considered the defendant’s maximum sentencing exposure in conjunction with his Motion to Quash filed the first day of trial. The trial court determined that a life sentence in this case was not being sought by the State and included that fact in jury instructions. To that end, the trial court instructed the jury that the defendant’s possible sentence upon conviction was a minimum of twenty-five to ninety-nine years in prison. There was no confusion as to the defendant’s possible sentencing | nrange. In fact, when the victim was asked by defense counsel whether anyone told her how long the defendant could go to jail, she responded: “A minimum of twenty-five years and no more than ninety-nine years.”

The policies underlying the requirement of a grand jury indictment for offenses punishable by lifetime imprisonment are not brought into play in this case because the defendant herein was never subject to life imprisonment. However, it should be noted that the undeniable existence of a tangible and indivisible portion of the corpus delicti, or the fact that a crime has been committed, was properly charged by bill of information.

It is reasonable that the logic underlying the trial court’s determination in this matter — that a defendant charged with a single count of conduct that required, in part, indictment by grand jury and permitted, in part, institution by information, and did not subject the defendant to life imprisonment upon his being charged by bill of information — is reasonable under the facts of this case.

Given the facts of this case, the defendant has failed to meet his burden of demonstrating that his conviction warrants reversal because he was charged in a bill of information with molestation of a juvenile. This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment of error, the defendant complains that the trial court erred in admitting other crimes evidence relating to an earlier incident of juvenile molestation.

Initially, the defendant claims that the trial court erroneously permitted the testimony of C.Y.’s parents related to an earlier instance in which the defendant inappropriately touched C.Y. as evidence of the defendant’s lustful disposition toward children. He also claims that the State failed to give him proper notice of the anticipated testimony and failed to demonstrate that the testimony would be probative rather than prejudicial pursuant to La. C.E. art. 403’s balancing test.

La. C.E. art. 412.2 provides in part:

Evidence of similar crimes, wrongs, or acts in sex offense cases
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes

In State v. Williams, 2002-1030 (La.10/15/02), 830 So.2d 984, the Supreme Court decided that La. C.E. art. 412.2 does not require the trial court to conduct an evidentiary hearing prior to ruling on the admissibility of evidence or prior instances of sexually assaultive behavior committed by the defendant. Moreover, a trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), |u655 So.2d 1326. Nevertheless, the defendant’s argument is groundless. The record herein indicates that the State filed a notice under La. C.E. art. 412.2 six weeks prior to trial indicating that it intended to present evidence of an unadjudicated instance or instances of sexually assaultive behavior committed by the defendant against C.Y. occurring between 1997 and 1999, at the defendant’s residence. In response, the defense filed a motion in limine requesting a hearing on the State’s notice and objecting to its lack of basis for the trial court to render a decision. Five days prior to trial, the State supplemented its notice with a notice of evidence detailing the nature, time and location of the alleged prior acts, as well as identifying the complainant — albeit by her initials — C.Y. The State’s notice exceeded the specificity required by law. Therefore, the defendant did not suffer any prejudice.

Next, the defendant complains that the trial court failed to hold the State to its burden of proving, by clear and convincing evidence, that the defendant committed the previous act against C.Y.

La. C.E. art. 1104 sets forth the burden of proof in such instances:

State v. Prieur; pretrial; burden of proof
The burden of proof in a pretrial hearing held in accordance with State v. Prieur, 277 So.2d 126 (La.1973), shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.

In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the United States Supreme Court found that the burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is a preponderance of the evidence. However, when given the chance to clarify the burden of proof issue |12in State v. Rose, 2006-0402 (La.2/22/07), 949 So.2d 1236, the Louisiana Supreme Court declined.

With the Legislature expressing its intent to hold the State to a preponderance of the evidence burden on this issue via La. C.E. art. 1104, and considering that the Louisiana Supreme Court has not addressed the burden of proof under La. C.E. art. 1104, it is not unreasonable to conclude that the State’s burden of proof for introducing other crimes evidence at trial is by a preponderance of the evidence.

Concluding, under this assignment of error, the defendant claims that the trial court erred by improperly weighing the probative value of the proffered evidence against its risk of prejudice to him under La. C.E. art. 403. The defendant reasons that the single incident involving C.Y. occurred ten years prior to the instant offense and fails to demonstrate his lustful disposition toward children. Further, he contends that the introduction of the evidence only confused and misled the jury and constituted an undue waste of time.

As discussed ante, the State’s supplemental notice satisfied La. C.E. art. 403 by either evidentiary burden in demonstrating both the relevance and probative value of the evidence relating to the defendant’s lustful disposition toward children. Moreover, the evidence satisfied the four-prong balancing test of United States v. Enjady , 134 F.3d 1427 (10 Cir.1998) (the En-jady balancing test contains an evaluation, asking: (1) whether the prior act had been clearly proven; (2) how probative the evidence is to the material fact it is introduced to support; (3) how seriously the parties are disputing the material fact; and (4) whether less prejudicial evidence is available to the government. Enjady, 134 F.3d 1427).

As noted earlier herein, the State supplemented its notice with a notice of evidence detailing the nature, time and location of the alleged prior acts, as well as identifying the complainant and revealing what her anticipated trial testimony would be. Other Louisiana appellate courts have found evidence proffered under La. C.E. art. 412.2 properly admitted in the trial court to show a defendant’s lustful disposition toward children. See State v. Cotton, 42,509 (La.App. 2 Cir. 9/19/2007), 965 So.2d 1016; State v. Verret, 2006-1337 (La.App. 1 Cir. 3/23/07), 960 So.2d 208; State v. Mayeux, 2006-944 (La.App. 3 Cir. 1/10/07), 949 So.2d 520; and State v. Patterson, 2005-560 (LaApp. 5 Cir. 1/31/06), 922 So.2d 1195.

As for the defendant’s contention that the single instance of his assaultive behavior toward C.Y. was so remote in time as to have no probative value, the fact that the other acts or crimes happened some time before the offense for which the defendant is on trial is not sufficient, in and of itself, to require the exclusion of the evidence. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. State v. Jackson, 93-0424 (La.1993), 625 So.2d 146. In this case, the evidence relating to the defendant’s abuse of I.B. and C.Y. suffices to prove his lustful disposition toward children — I.B. and C.Y. were both under the age of thirteen when molested by the defendant; they were molested in the same manner and under the same circumstances, in the defendant’s home.

The State’s use of C.Y.’s testimony served to fortify this case wherein the sole witness to the defendant’s acts in the instant crime was the victim, who was eight years old at the time of the incidents and nine years old when she testified. There was no physical or medical evidence that I.B. had been molested or that the defendant was the party responsible. I.B.’s mother was subjected to scathing cross examination in an attempt to assail her credibility as a witness and a mother. The State’s chances of a successful prosecution would have been reduced without the testimony of C.Y., G.Y. and Rev. Hudson establishing that the defendant had a lustful disposition to children like I.B. Moreover, the witnesses’ corroborative testimony served to properly focus the jurors’ attention on the likelihood that the defendant molested I.B.

Finally, as for the defendant’s contention that the evidence of other crimes was more prejudicial than probative, he complains that three of the eight prosecution witnesses were called in regard to the prior incident. However, he fails to show how that fact constituted an undue waste of time.

Of the 194 pages of the record containing the trial testimony of the State’s witnesses, only twenty-nine pages are dedicated to testimony relating to the defendant’s inappropriate behavior with C.Y., with the remaining 85% of the testimony relating solely to the accusations relating to I.B.

11fiNor has the defendant articulated how the taking of writs based upon Rev. Hudson’s invocation of the clergyman’s privilege constituted undue delay directly attributable to the State’s election to offer the other crimes evidence.

Even assuming the trial court did err in admitting the other crimes evidence relating to C.Y., the error is harmless. A court’s erroneous admission of other crimes evidence is a trial error that is subject to harmless analysis and does not warrant reversal where the defendant’s conviction is not attributable to the error. State v. Walker, 1999-2868 (La.App. 4 Cir. 10/18/00), 772 So.2d 218. I.B. positively, unambiguously and consistently identified the defendant as the person who molested her. The supporting witnesses verified the internal consistency of I.B.’s testimony and corroborated the circumstances evidencing the defendant’s opportunity to commit the charged acts. Even disregarding C.Y.’s testimony, the evidence in this case overwhelmingly proves the defendant’s guilt beyond a reasonable doubt of indecent behavior involving I.B. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Concluding, the trial court did not abuse its discretion by allowing the State to introduce testimony and other evidence at trial relating to the defendant’s prior molestation of C.Y. The defendant had sufficient notice of the nature of the evidence sought to be admitted; the State sufficiently demonstrated the probative nature of that evidence by either applicable standard; and the court correctly determined that the evidence was more probative than prejudicial under La. C.E. art. 403. This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 3

By this assignment of error, the defendant argues that the trial court erred in admitting and/or limiting the testimony of Reverend Henry Hudson under the [ 1fi“clergymen’s privilege”. The defendant asserts that the trial court erred by permitting G.Y. to testify concerning the communications between the defendant and G.Y. which occurred during their meeting with Rev. Hudson. The defendant also argues that the trial court compounded its mistake by not allowing Rev. Hudson to more fully testify so as to refute GY.’s testimony concerning his conversation with the defendant.

This issue has been litigated previously on writs in both this Court and in the Louisiana Supreme Court.

Following a pre-trial hearing on November 17, 2009, at which Rev. Hudson testified, the district court ruled that the defendant had waived any privilege as to the contents of the meeting because he allowed Rev. Hudson to disclose what had been discussed with Dorsey Seoggin, who was not at the meeting. However, the trial court limited Rev. Hudson’s testimony to the fact that a meeting took place between G.Y., S.Y. and the defendant and his wife but allowed G.Y. and S.Y. to testify fully concerning what was said at the meeting.

The State sought writs in this Court arguing that the trial court had improperly limited its questioning of Rev. Hudson in spite of the court’s ruling that no privilege existed. The defendant filed an opposition contending that all parties understood the meeting to be for purposes of spiritual counseling; that Dorsey Scoggin’s status as a privileged communicant was understood by all of the participants despite the fact she was not present at the meeting; that Rev. Hudson’s subsequent disclosure to her of the details of the meeting did not act to waive the privilege; and that the defendant’s subsequent disclosure to her of the same was further protected by the spousal privilege.

|17This Court granted the State’s writ and determined that the meeting was not for spiritual guidance purposes and thus that no privilege existed, and further that Rev. Hudson was open to full examination as to the contents of the meeting. See State v. Matthew Scoggins, unpub. 2009-1568 (La.App. 4 Cir. 11/18/09), in which this Court held:

We are bound by the Supreme Court’s decision in State v. Gray, 2004-1197 (La.1/19/05), 891 So.2d 1260. The tests are:
Whether the clergyman privilege of La. C.E. art. 511 applies is determined under a totality of the circumstances test, in which all of the following requirements must be shown to exist: (1) it must be determined that the person to whom the communication was received is a “clergy man;” (2) it must be determined that the purpose of the communication was to seek spiritual advice or consolation; (3) it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication; and (4) even if those explicit requirements of the article are met, it must also be determined whether or not the communicant waived the application of the privilege.

Id., p. 11, 891 So.2d at 1167.

Under the four conjunctive tests in Gray and based upon the record before us, we do not find that the second test is satisfied and/or the privilege has been waived. Reverend Hudson’s testimony is not subject to the La. C.E. art. 511 clergyman’s privilege in this case. See also State v. Berry, 324 So.2d 822 (La.1975).

State v. Matthew Scoggins, 2009-1563, p. 1.

Thereafter, Rev. Hudson sought review of this Court’s ruling in the Louisiana Supreme Court, arguing that the purpose of the meeting had been spiritual guidance, and thus the privilege existed; that neither the defendant nor Rev. Hudson had waived the privilege by disclosing the contents of the meeting to Dorsey Scoggin; and that the trial court had acted properly in limiting Rev. Hudson’s testimony. The Supreme Court granted the writ and reinstated the original ruling of the trial court finding that any privilege had been waived by Rev. Hudson’s disclosure of the contents of the meeting to Dorsey Scoggin, and thus that G.Y. and S.Y. could testify regarding the defendant’s statements made at that meeting. See State v. Matthew Scoggins, unpub. 2009-2489 (La.11/18/09).

Once again, on appeal the defendant raises the same error, based upon the same law and facts, and asks this Court to revisit its previous decision; however, because this issue has already been litigated before this Court and the Louisiana Supreme Court, this assignment of error is barred from consideration on appeal by the “law of the case” doctrine. The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21 (La.App. 1 Cir. 6/29/82). This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid re-litigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). The defendant herein cannot show that in light of the subsequent trial record, that the determination of this issue was patently erroneous and produced an unjust result. State v. Humphrey, 412 So.2d 507, 523 (La.1981). This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 4

By this assignment, the defendant argues his sentence for indecent behavior with a juvenile is excessive.

In State v. Cassimere, 2009-1075 (La.App. 4 Cir. 3/17/10), 34 So.3d 954, this Court noted:

In State v. Landry, 03-1671, pp. 7-9 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240, this Court set forth the standard for reviewing an excessive sentence claim:
La. Const, art. I, § 20 explicitly prohibits] excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App.4 Cir.4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime, and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.

2009-1075, p. 5, 34 So.3d at 958-959.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1 and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

IznHowever, in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819 this Court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

In State v. Washington, 414 So.2d 313 (La.1982), the Supreme Court stated:

The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980) ...

Washington, 414 So.2d at 315.

In this case, the defendant was convicted of indecent behavior with a juvenile, a violation of La. R.S. 14:81, for which the sentencing range when the victim is under the age of thirteen and the defendant is over the age of seventeen, is a minimum of two to a maximum of twenty-five years at hard labor. His fifteen year sentence is less than ten years of the maximum and obviously within the legislatively prescribed range.

| ¾1 Although the defendant argues that the trial judge did not articulate the factors for his sentence, as mandated in La. C.Cr.P. art. 894.1, the trial judge sufficiently provided the factual basis therefor. At sentencing the trial judge stated:

Let me just say I’ve had a lot of time to think about what [the defendant’s] sentence was going to be in this case. I’ve thought about how there are many people who have been affected by this incident, how a family has been torn apart, where two sisters are not talking to each other, where a father will be removed from the household from his family. I thought about all of those things, but at the end of the day when it is all said the done[,] I think what is most important is the victim in the case. Although the incident that occurred with [C.Y.] was not necessarily charged in this case, it’s an incident that the Court cannot ignore. I also cannot ignore the description of the incidents by [I.B.]. The jury believed her, this Court believes her and now the [defendant] has admitted to this Court that there were some actions that he took that were inappropriate ...

While the trial judge also noted that she did not find the defendant to be “a horrible man” and acknowledged that he was “a gentlemen who has lived a good life” and who “has done a lot of good in the community,” she also said: “I do think that the [defendant] did something very bad to two girls, that those two little girls their lives will never [be] the same.” Moreover, the defendant addressed the trial judge, apologizing for “all the hurt and sorrow that [he had] caused and for “[his] wrong actions against [C.Y. and I.B.].” Asked by the trial judge what actions he was referring to, the defendant admitted that “[i]t was inappropriate touching.”

Though the trial judge did not discuss the factors enumerated in La.C.Cr.P. art. 894.1, the factors the trial judge did note were sufficient to provide a factual basis for the sentence imposed. State v. Bell, 2009-0588 (La.App. 4 Cir. 10/14/09), 23 So.3d 981(where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even when there has not been full Incompliance with La.C.Cr.P. art. 894.1) (the trial court need not recite the entire checklist of La. C.Cr.P. art. 894.1 but the record must reflect that the trial court adequately considered the guidelines).

The trial court also considered mitigating factors in choosing the appropriate term of years:

... I received letters from people who attended church with [the defendant]. I’ve received letters from people who worked with him. I also received letters from people who have known him all of them lives. They’ve been friends — childhood friends and have been friends from the crib because their parents were friends ...

The trial court was satisfied that it had “a full picture of the type of person that [the defendant] is”.

The only remaining inquiry is whether the defendant’s sentence is too severe in light of the particular defendant and the circumstances. On its face, the defendant’s fifteen year sentence — ten years less than the maximum allowed under law and only ten of which will be served in custody — cannot be said to shock the conscious or constitute the meaningless imposition of pain and suffering. The Louisiana Supreme Court has held that the imposition of the maximum sentence for indecent behavior with a juvenile is neither excessive nor grossly disproportionate, given the State’s compelling interest in protecting children from abuse at the hands of adults. See State v. Interiano, 2003-1760 (La.2/13/04), 868 So.2d 9.

The cases the defendant cites in support of his argument that his sentence is disproportionate are distinguishable from his case. State v. Castillo, 97-595 (La.App. 5 Cir. 11/25/97), 705 So.2d 751 (the defendant’s three year sentence or molesting a nine-year old female was the result of a plea agreement that spared the ^victim the necessity of testifying at trial); State v. M.L., Jr., 2009-392 (La.App. 3 Cir. 4/14/10), 35 So.3d 1183 (defendant’s four year sentence for indecent behavior with a female juvenile under thirteen years old declared excessive because it denied possibility of parole); State v. Brannon, 2007-431 (La.App. 3 Cir. 12/5/07), 971 So.2d 511 (defendant’s seven year sentence without parole for four counts of sexual battery was deemed not excessive because the defendant was the victims’ teacher and had betrayed the trust placed in him by students and parents).

Cases which are comparable to the defendant’s case include State v. Crabtree, 22,061 (La.App. 2 Cir. 10/31/90), 569 So.2d 0646 (defendant’s twelve year sentence for molesting his daughter was result of a plea agreement which spared him mandatory life sentence for more serious offense); State v. Bradham, 94-71 (La.App. 5 Cir. 5/31/94), 638 So.2d 428 (defendant convicted of indecent behavior with seven and ten year old victims and sentenced to fifteen years). In the present case, the jury convicted the defendant of abusing I.B.; however the court also took into account the defendant’s acts against C.Y., which demonstrated his propensity for sexually as-saultive behavior toward young girls. In State v. Mansell, 43,899 (La.App. 2 Cir. 2/25/2009), 4 So.3d 277, a first time offender’s sentence of twelve years for indecent behavior with a juvenile under the age of thirteen was not excessive.

Considering the facts and circumstances surrounding this case, the defendant’s sentence is not excessive. This assignment has no merit.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED

BONIN, J., concurs in the result only.

      . Throughout the record of these proceedings the defendant's name is spelled as "Scoggin” or "Scoggins”.

      . To protect the privacy of the victim and her parents, the victim will be referred to by her initials, I.B. and her parents by their initials, R.B. and B.B. Also, C.Y., another of the defendant’s victims, will be identified by her initials and her parents, G.Y. and S.Y., will be referred to by their initials.

      . State of Louisiana v. Matthew Scoggins, unpub., 2009-1563 (La.App. 4 Cir. 11/18/2009).

        . State of Louisiana v. Matthew Scoggins, 2009-2489 (La. 11/18/2009), 25 So.3d 779.

      . The defendant and his family were also members of the Trinity Episcopal Church congregation.

      . G.Y. identified the statement he and his wife prepared, and the Assistant District Attorney read the statement to the jury.

      . See State v. Lee, 2001-2082, pp. 6-7 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 623.

      . La. C.E. art. 403 provides:
      Art. 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

      . State v. Rose, 2006-0402 p. 12, 949 So.2d at 1243, n. 3:
      This court has not yet addressed the extent to which Article 1104 and the burden of proof required by the federal rules, as interpreted in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), has affected the burden of proof required for the admissibility of other crimes evidence. State v. Jacobs, 99-0991, p. 26 n. 15 (La.5/15/01), 803 So.2d 933, 952 n. 15; State v. Cotton, 00-0850, p. 11 n. 3 (La. 1/29/01), 778 So.2d 569, 578 n. 3. In the instant case, we need not reach the issue of the applicable burden of proof because we find that the State satisfied its burden under either the clear and convincing evidence standard or the preponderance of the evidence standard.

      . In United States v. Enjady, supra, defendant was convicted of aggravated sexual abuse. During trial, the State introduced evidence under Federal Rule 413 of a prior rape defendant allegedly committed through the testimony of the alleged victim. The defendant appealed claiming prejudicial error in the admission of the evidence of the prior rape. The United States Tenth Circuit found the trial court properly ruled the evidence admissible under Rule 413 and properly considered Rule 403 in balancing the probative value of the evidence against prejudice to the defendant. The court noted "the exclusion of relevant evidence under Rule 403 should be used infrequently, reflecting Congress' legislative judgment that the evidence 'normally' should be admitted.” United States v. Enjady, 134 F.3d at 1432.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    STATE of Louisiana in the Interest of AC v. MD.
    No. 2010 CA 1799.
    Court of Appeal of Louisiana, First Circuit.
    June 17, 2011.

      Barbara Travis Carter, Amite, LA, for Plaintiff/Appellee State of Louisiana, Department of Social Services, Support Enforcement Services.
    Walter P. Reed, District Attorney, Mack H. McCraney, Assistant District Attorney, Amite, LA, for Plaintiff/Appellee State in the interest of AC.
    Jonathan L. Johnson, Lake Charles, LA, for Defendant/Appellant MD.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

|2The acknowledged father of a child born out-of-wedlock appeals a judgment of the trial court dismissing his petition to revoke a formal acknowledgment of paternity executed shortly after the child was born. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On or about November 1, 2005, MD executed an acknowledgment of paternity for MKD, born on October 2, 2005, to AC. In 2007, proceedings were instituted by the State of Louisiana, Department of Social Services, on behalf of AC, through the District Attorney’s Office for the 21st Judicial District Court, to collect payments from MD for the support of MKD. The trial court signed a consent judgment stipulating to the amount of MD’s child support obligation on May 14,2008.

A little over a year later, on July 7, 2009, MD filed a petition to disavow paternity of MKD, wherein he requested that a rule to show cause be issued, ordering the parties to submit blood and tissue samples for genetic testing and that a judgment be rendered, decreeing that he was not the father of MKD. In response, the State of Louisiana, Department of Social Services, Support Enforcement Services (SES), filed exceptions raising several objections to MD’s petition, including unauthorized use of summary proceedings, no cause of action, and prescription. Prior to a hearing on the exceptions, and partially in response to the exceptions filed, MD amended his petition to change his disavowal action to an paction to revoke the acknowl-edgement of paternity. A peremptory exception objecting to the amended petition on the basis of no right of action was then filed on behalf of AC by the District Attorney’s Office for the 21st Judicial District. Thereafter, the trial court issued an interim judgment ordering the parties to submit to DNA testing to determine the paternity of MKD. The trial court continued the hearing on the exceptions and MD’s request to revoke the acknowledgment of paternity without date, pending the results of the DNA test.

The results of the DNA test revealed that MD could not “be the biological father of [MKD], since he and the child do not share necessary paternal markers in multiple genetic systems.” Thus, the probability of paternity was reported as 0.00%. MD then moved to have the hearing on the exceptions and his request to revoke the acknowledgement of paternity reset. Before the hearing could be held, however, SES filed a motion to withdraw from the proceedings, asserting that “the State should not be a party” to MD’s petition to revoke the acknowledgment of paternity. The trial court did not act on the motion; however, an unsigned, handwritten notation appears on the pleading, stating, “[t]he State is an indispensable party. Either SES or DA’s Office must represent custodial parent.” Nevertheless, on the date of the hearing, AC appeared without counsel, and MD, who had been deployed to Iraq, waived his appearance and was represented by counsel. After hearing statements from MD’s counsel and brief testimony from AC, the trial court denied MD’s request to revoke the acknowledgment of paternity. By a final judgment signed November 18, 2010, the trial court dismissed |4MD’s action to revoke his ac-knowledgement of paternity as being prescribed. It is from this judgment that MD appeals.

DISCUSSION

The sole question presented in MD’s appeal is whether the trial court legally erred in retroactively applying La. R.S. 9:406, as amended by 2008 La. Acts, No. 533, § 1, to divest him of the right to revoke his acknowledgement of paternity of MKD.

Article 196 of the Louisiana Civil Code, added by 2005 La. Acts, No. 192, § 1, and effective as of June 29, 2005, provides that “[a] man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father.” Moreover, at the time MD executed the acknowledgment of paternity, La. R.S. 9:392(A), outlining the content and requirements for an acknowledgment of paternity, provided, in pertinent part:

(7)(a) A party who executed a notarial act of acknowledgment may rescind the act, without cause, before the earlier of the following:
(i) Sixty days after the signing of the act, in a judicial hearing for the limited purpose of rescinding the acknowledgment.
(ii) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment is a party to the proceeding.
(b) Thereafter, the acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the father is not the biological father.
(8) All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future. [Emphasis added.]

|5No time limitation was provided in the statute for filing an action to revoke an acknowledgment of paternity based on the causes listed in La. R.S. 9:392(A)(7)(b).

In 2006, the Louisiana Legislature enacted La. R.S. 9:406, which became effective on June 13, 2006, to provide:

A. A person who executed an authentic act of acknowledgment may, without cause, revoke it before the earlier of:
(1) Sixty days of the signing of the authentic act of acknowledgment in a judicial hearing for the limited purpose of revoking the acknowledgment or declaration.
(2) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the authentic act of acknowledgment is a party to the proceeding.
B. At any time, a person who executed an authentic act of acknowledgment may petition the court to rescind such acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.
C. Except for good cause shown, the court shall not suspend during the pen-dency of this proceeding any legal obligations, including a support obligation, of the person who petitions the court to revoke or rescind the authentic act of acknowledgment under this Section. [Emphasis added.]

|fiIt was not until 2008, when the legislature amended La. R.S. 9:406, that a prescriptive limit was imposed for filing an action to revoke an authentic act of acknowledgment of paternity. Pursuant to the amended statute, a man must “institute [a] proceeding by ordinary process, within a two-year period commencing with the execution of the authentic act of acknowledgment of paternity” to prove by clear and convincing evidence one of the causes listed in La. R.S. 9:406(B)(1) as grounds for revoking the acknowledgment of paternity.

MD, who is not the biological father of MKD, executed an acknowledgment of paternity of MKD in November 2005; therefore, upon executing the acknowledgment of paternity, he acquired the right to revoke the acknowledgment pursuant to La. R.S. 9:392(A)(7)(b). At the time he acquired the right, no prescriptive time limitation existed for filing the action to revoke when the revocation was based on the fact that the movant was not the biological father. It was not until 2008, when La. R.S. 9:406 was amended, that the legislature created a prescriptive period limiting the time in which an action to revoke an acknowledgment of paternity could be filed. Thus, in order to find MD’s petition to revoke the acknowledgment of paternity prescribed, the trial court had to retroactively apply the amended version of La. R.S. 9:406.

No statute is retroactive unless it is expressly so stated. See La. R.S. 1:2. However, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws, which will be given retroactive effect in the absence of language showing a contrary intention. See La. C.C. art. 6. The legislation amending La. R.S. 9:406 contains no language expressly authorizing or limiting the retroactive application of its provisions. Therefore, since prescriptive limitations are remedial in nature and are usually 17treated as procedural, they are generally accorded retroactive application. Falgout v. Dealers Truck Equipment Co., 98-3150, p. 11 (La.10/19/99), 748 So.2d 399, 407; Lott v. Haley, 370 So.2d 521, 523 (La.1979)., Yet, even procedural laws are not accorded retroactive effect when such retroactivity would operate to unconstitutionally’ disturb vested rights. Cheron v. LCS Corrections Services, Inc., 04-0703, p. 12 (La.1/19/05), 891 So.2d 1250,1258.

When a party acquires a right, either to sue on a cause of action or to defend himself against one, that right becomes a vested property right and is protected by the due process guarantees of the state and federal constitutions. However, a newly-created statute of prescription that shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right, provided it allows a reasonable time for those affected by the act to assert their rights. Falg-out, 98-3150 at 12, 748 So.2d at 407-08. Even if there had been an existing period of limitation in this statute, the amendment of La. R.S. 9:406 did not provide a reasonable time for those affected to assert their rights following its enactment.

MD executed the acknowledgment of paternity in November 2005. Retroactive application of the amended version of La. R.S. 9:406 would result in a finding that MD’s right to revoke the acknowledgment of paternity had been prescribed as of November 2007, almost a year prior to the enactment of the amendment to La. R.S. 9:406. Thus, to retroactively apply the amended version of La. R.S. 9:406 to MD’s right of action to revoke, in the absence of any provision allowing him a reasonable time to assert his rights, would essentially divest MD of the vested right he had acquired and violate his constitutional rights. Accordingly, |Rthe 2008 amendment of La. R.S. 9:406, imposing a prescriptive limit on his right of action to revoke an acknowledgment of paternity, can only apply prospectively.

CONCLUSION

For the foregoing reasons, we hold that the 2008 amendment of La. R.S. 9:406 can only be given prospective application, and therefore, we reverse the judgment of the trial court dismissing MD’s petition based on prescription. We remand this matter to the trial court for further proceedings consistent -with this opinion. All costs of this appeal in the amount of $840.50 are charged to the State of Louisiana, Department of Social Services, Support Enforcement Services.

REVERSED AND REMANDED.

      . In the interests of privacy, we have used the initials of the parties involved in this matter. See Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2.

      .The record before us does not contain a copy of the acknowledgment of paternity executed by MD, but all of the parties admit that such an act was executed by MD on or about November 1, 2005.

      .Although SES was not specifically cited as a party in MD’s petitions, SES filed several exceptions objecting to MD’s petition to disavow paternity. Later, after amending the original petition, MD served the agency with both the original and amended petitions.

      . By a rule to show cause issued October 28, 2010, this court ordered the parties to show cause by briefs why the appeal should not be dismissed, as it appeared that the original judgment signed by the trial court on March 18, 2010, was defective because it lacked appropriate judgment (decretal) language as required by La. C.C.P. arts. 1911 and 1918. The appellate record was then supplemented with a reformed judgment containing proper judgment language. As a result, the appeal was maintained.

      . The current version of La. R.S. 9:392(A)(7) and (8) now provides:
      (7)(a) An alleged father who executed an authentic act of acknowledgment may revoke the act, without cause, before the earlier of the following:
      (i) Sixty days after the signing of the act, in a judicial hearing for the limited purpose of revoking the acknowledgment.
      (ii) A judicial hearing relating to the child, including a child support proceeding, wherein the alleged father who executed the authentic act of acknowledgment is a party to the proceeding.
      (b) Thereafter, the acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact, or error, or that the alleged father who executed the authentic act of acknowledgment is not the biological father.
      (c) Except for good cause shown, the court shall not suspend any legal responsibilities or obligations, including a support obligation, of the party or parties during the pendency of the proceeding authorized in this Section.
      (8) All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future.

      . The causes listed in the current version of La. R.S. 9:406(B)(1) are the same as those provided in La. R.S. 9:406(B) prior to amendment.

      . The legislation amending La. R.S. 9:406, 2008 La. Acts, No. 533, § 1, did not provide a specific effective date; therefore, the effective date of the amendment was August 15, 2008. See La. Const, art. Ill, § 19.


author: HUGHES, J.

text:
    Cynthia WEST v. WAL-MART.
    No. 2010 CA 2271.
    Court of Appeal of Louisiana, First Circuit.
    June 17, 2011.

      Joseph G. Albe, New Orleans, LA, for Claimant/Appellant Cynthia West.
    Scott F. Davis, Dax C. Foster, Metairie, LA, for Defendant/Appellee Wal-Mart Stores, Inc.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| ¡.This is an appeal from a judgment of the Office of Workers’ Compensation (“OWC”), denying a claim for workers’ compensation benefits. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 3, 2007 Cynthia West was employed as a “hauler” for the Wal-Mart distribution center in Robert, Louisiana, when she allegedly became dislodged from the forklift she was operating (though she did not fall to the ground) and suffered personal injury. Ms. West sought medical attention within two days of the alleged injury, and subsequently applied for workers’ compensation benefits from Wal-Mart, but her claim was denied. Thereafter, on July 23, 2007 Ms. West filed a “Disputed Claim for Compensation” with the OWC, seeking to collect workers’ compensation benefits, penalties, and attorney fees from Wal-Mart.

Following an April 15, 2010 hearing before the OWC, judgment was signed on August 5, 2010, denying her claim. In so ruling, the OWC judge found that the claimant had not carried her burden to prove that she was involved in an accident on January 3, 2007, which resulted in physical injury. Ms. West has appealed this judgment, assigning as error the failure of the OWC to apply a legal presumption of causation to entitle her to workers’ compensation benefits for the initial alleged injury and for subsequent successive injuries.

LAW AND ANALYSIS

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. See LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme, |3as adopted by the legislature, and must establish that the accident was employment-related, that the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001-0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851.

A worker’s testimony is sufficient to discharge the burden of proving an accident, provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances surrounding the alleged incident. Carter v. Lakeview Regional Medical Center, 2004-1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688; Penn v. Options, Inc., 2002-1987, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 557, 560. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 2010-0245, p. 5 (La.1/19/11), 56 So.3d 215, 219. See also Roberts v. Thibodaux Healthcare Center, 2005-0774, p. 11 (La.App. 1 Cir. 3/24/06), 934 So.2d 84, 92.

As in other civil cases, in reviewing the OWC judge’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004-0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, units denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447, p. 4 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only reverse an OWC judge’s factual determinations if it finds from the record |4that a reasonable factual basis for the finding does not exist or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 617 So.2d at 883. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfin-der, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Lafleur v. Alec Electric, 2004-0003 at p. 4, 898 So.2d at 478.

Following the conclusion of the trial in this matter, the OWC judge issued written reasons for ruling in favor of Wal-Mart, stating, in pertinent part:

Claimant was not in “good health” prior to the alleged accident on 1-3-2007. Therefore, she is not entitled to any presumption that the alleged accident was a cause of her injuries.
Claimant’s reporting of the accident was considered late by the employer even though claimant testified that she told another supervisor of the accident but he failed to write up the report. No one disputed that she told another supervisor but neither was there any [corroboration] of this self-serving statement. To further complicate the issue of whether claimant actually suffered an unwitnessed accident on that date, the first physician’s report post-accident did not specifically state that there was a work-related accident. In fact, it stated “no trauma”.
Claimant stated to the defendant’s human resources department head in January of 2007, and again at trial, that she did not really know if she had an “accident” on that date or not. The case law is clear that claimant’s assessment as to what is or is not an “accident”[] as defined by the Louisiana workers’ | ¿compensation laws is not determinative of whether [it] does or does not meet the definition of an “accident”.
Claimant’s treating physician Dr. Kal-dis did not begin to treat her until October of 2009, which was long after the accident of January of 2007. The initial treating physician Dr. Spiller did not specifically relate the injuries to the initial description of the “accident” by claimant. Her description was of repeated “jarring”.
Claimant’s description of the accident to Dr. Spiller was not the same as it was to Dr. Kaldis. It is unknown if claimant did not accurately describe the “accident” to Dr. Spiller or to Dr. Kaldis. This is a critical point and one on which this case turns. It is important to note that this OWC Court is not in any [way] suggesting any fraud by the claimant but merely that a long time elapsed between the accident and seeing Dr. Kaldis.
This OWC Court could not conclude that claimant suffered a work-related accident on January 3, 2007. Therefore, all other issues were then moot.

On appeal, Ms. West contends that no evidence was introduced before the OWC that disputed her “accounting of her accidents,” which she states included one specific incident of falling off a forklift on January 3, 2007 and additional incidents that injured her back when she was “jarred around a lot” while operating a forklift. Ms. West further contends that her medical records support her claim of injury. Additionally, Ms. West asserts on appeal that the OWC erred in failing to apply the “good health” presumption.

A disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident or that the nature of the accident raises a natural inference that such a causal connection exists. Thus, when there is proof of an accident and a following disability, without an intervening cause, it is presumed that the accident caused the disability. Crawford v. Pontchartrain Materials, 2006-1780, p. 6 (La.App. 1 Cir. 3/28/07), 960 So.2d 946, 950.

In determining whether a worker has borne his burden, the trier-of-fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. The determinations by a workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Crawford v. Pontchartrain Materials, 2006-1780 at pp. 6-7, 960 So.2d at 950-51; Kemp v. East Baton Rouge City Parish, 2002-2083, p. 5 (La.App. 1 Cir. 6/27/03), 858 So.2d 537, 541. See Ardoin v. Firestone Polymers, L.L.C., 2010-0245 at pp. 5-6, 56 So.3d at 219. Deference to a trier-of-fact’s findings, when based on a credibility determination, is particularly important, as only the factfinder can be aware of the variations in the demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. See Roberts v. Thibodaux Healthcare Center, 2005-0774 at p. 10, 934 So.2d at 91.

In the instant case, the OWC judge refused to apply the “good health” presumption in light of the plaintiffs history of similar symptoms (i.e., left and right leg pain in 2006), following a prior back strain for which she received treatment in July and August of 2005. Further, the OWC judge resolved credibility issues against the claimant, noting that the “accident” was unwitnessed and not well-corroborated, and placing great emphasis on the fact that when the claimant sought treatment two days post-accident, the treating physician recorded, “She denies any trauma.”

17This court has conducted a thorough review of the record presented on appeal, and under the particular facts and circumstances of this case, we are unable to say the trier-of-fact was clearly wrong in her decision. Therefore, the jurisprudence dictates affirmance of the OWC.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are to be borne by the claimant/appellant, Cynthia A. West.

AFFIRMED.

PARRO, and GUIDRY, JJ., concur.

      . An "accident” is defined by LSA-R.S. 23:1021(1) as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

      . Furthermore, we note that, in the absence of an "accident” that aggravates degenerative disc disease, it is expressly excluded from workers' compensation coverage pursuant to LSA-R.S. 23:1031.1(B), which provides:
      An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section. [Emphasis added.]

        See J.P. Morgan Chase v. Louis, 44,309 (La.App. 2 Cir. 5/13/09), 12 So.3d 440, 446-47. In the instant case, the OWC ruled that the claimant failed to prove that an "accident,” as defined by workers’ compensation law, occurred; thus, any developmental or degenerative disc disease would be excluded from coverage under Section 1031.1.


author: LOLLEY, J.

text:
    Corey Andrew BOZEMAN and Matthew Kyle Bozeman, individually and on behalf of their deceased father, Jerry Bozeman, Plaintiffs-Appellants v. UNION CARBIDE CORPORATION, et al., Defendants-Appellees.
    No. 46,425-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Blackwell & Associates, Baton Rouge, LA, by Brian F. Blackwell, for Appellants.
    S.P. Davis, Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, LA, for Appellee City of Shreveport.
    Corina E. Salazar, for Appellee Union Carbide Corp.
    Forman, Perry, Watkins, Krutz & Tardy, New Orleans, LA, by Tara L. Burregi, for Appellee Georgia Pacific Corp.
    Simon, Peragine, Smith & Redfearn, New Orleans, LA, by April A. McQuillar, for Appellee Bondex International.
    Sulzer & Williams, Covington, LA, by Robert E. Williams, IV, for Appellee Kelly-Moore Paint Co.

      Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

| j Corey and Matthew Bozeman, the surviving children of Jerry Bozeman, appeal the trial court’s judgment granting the City of Shreveport’s exception of no cause of action. For the following reasons, we reverse the trial court’s judgment.

Facts

Jerry Bozeman was employed by the City of Shreveport (the “City”) as a fireman from 1965 until he retired on December 31, 1998. On August 23, 2004, Jerry Bozeman was diagnosed with “diffuse malignant mesothelioma, desmoplastic type,” from which he died on February 11, 2005.

On August 22, 2005, Corey and Matthew Bozeman filed suit alleging that their father had contracted mesothelioma as a result of his exposure to asbestos during his employment with the City as a firefighter. While employed as a firefighter with the City, Bozeman was primarily housed at Fire Station No. 8, which was built in the 1920s. The appellants take the position that the fire station was constructed from a variety of asbestos-containing products and was in a chronic state of disrepair. As a result, the appellants state that their father was constantly exposed to those asbestos products. Additionally, they contend that their father was exposed to asbestos from the asbestos-insulated fire hoses.

Among several defendants, the Boze-mans named the City in its capacity as Jerry Bozeman’s employer under the theories of negligence and strict liability. Specifically, the Bozemans sought recovery from the City for wrongful death damages as well as a survival action claim. The lawsuit 12also named several manufacturers and suppliers of asbestos-containing materials in negligence and strict liability; however, those claims are not before the court on appeal.

Subsequently, the City filed a motion for summary judgment, arguing that the Bozemans’ claims fell under the Louisiana Workers’ Compensation Act. The City also filed exceptions of no cause of action and lack of subject matter jurisdiction. The trial court heard argument on the City’s filings and ultimately denied the motion for summary judgment and the exception of no cause of action as it pertained to the intentional tort claims and any claim asserting executive officer liability. However, the trial court granted the City’s exception of no cause of action as it pertained to the Bozemans’ wrongful death claims and any claim for non-intentional torts. The judgment was rendered on May 21, 2007, and signed on October 8, 2007 (the “2007 judgment”).

On June 18, 2009, the Bozemans filed in the trial court a motion for reconsideration of the 2007 judgment. The reasoning for the Bozemans’ motion was an opinion by the Louisiana Supreme Court in Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169 (La.05/22/09), 16 So.3d 1065, that, they claimed, overruled the reasoning used supporting part of the 2007 judgment. The motion for reconsideration was denied by the trial court in November 2009.

On April 12, 2010, the Bozemans filed a motion to designate the 2007 judgment as final for purposes of appeal. After a hearing on the matter, the | s2007 judgment was designated a final judgment on October 8, 2010. This appeal ensued.

Discussion

On appeal, the Bozemans raise three assignments of error, the first of which to be addressed is the timeliness of the appeal. As stated, the 2007 judgment granting the City’s exception of no cause of action was rendered on May 21, 2007, and signed on October 8, 2007. After a motion to designate this judgment final, the trial court designated it as such on October 8, 2010. The appeal was ordered on October 19, 2010, which the Bozemans argue makes it timely. They look to La. C.C.P. art. 1911 and 1915(B) in support.

Louisiana C.C.P. art. 1911 states as follows: “No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B).” Louisiana C.C.P. art. 1915(B)(1) states as follows:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

In the case sub judice, the Bozemans brought claims against several parties under varying theories of law; however, this specific portion of the litigation involves only the City. As to the City, the Boze-mans had different claims against it — some in negligence and some in intentional tort. The 2007 judgment against the City regarded the Bozemans’ wrongful death claims |4and any claim for non-intentional tort, but their claims of intentional torts by the City were not included. Thus, the 2007 judgment clearly was a partial judgment, because it pertained “to one or more but less than all of the claims.” La. C.C.P. art. 1915(B)(1). As such, it was not final until designated as such on October 8, 2010, at which point it finally became ap-pealable. The Bozemans appealed the judgment on October 19, 2010, well within the delay provided in La. C.C.P. art. 2087. So considering, the Bozeman’s appeal of the judgment was timely.

As to the merits of this appeal, we agree with the Bozemans that the trial court erred when it refused to revise the 2007 judgment granting the City’s exception of no cause of action. Notably, we have already determined that the 2007 judgment was not a final judgment until designated. Thus, pursuant to La. C.C.P. art. 1915(B)(2), the judgment was susceptible of being revised “at any time” and should have been as a result of the holding in Rando.

When the City originally brought its exception of no cause of action in the trial court, the prevailing jurisprudence by this court on La. R.S. 23:1031.1 and the issue of workplace asbestos-related illnesses was Adams v. Asbestos Corp., Ltd., 39,952 (La. App. 2nd Cir.10/28/05), 914 So.2d 1177. In Adams, this court had previously held that mesothelioma is a compensable occupational disease under the Louisiana Workers’ Compensation Act, barring those plaintiffs from asserting tort claims because of the exclusivity provision of the pre-1975 version of the Act. However, Adams was later specifically abrogated by the Louisiana Supreme ^Court’s holding in Rando, wherein it was concluded that mesothelio-ma resulting from contact with asbestos was not a covered “occupational disease” under the pre-1975 version of the Workers’ Compensation Act so as to be subject to the exclusive remedy provision of the pre-1975 version. The Bozemans contend that Rando should be given retroactive effect regarding the trial court’s judgment declaring they had no cause of action against the City under Adams for their claim of non-intentional tort. We agree.

The rule on retroactivity of judicial opinions can be found in Succession of Clivens, 426 So.2d 585 at 594 (La.1982), wherein the Louisiana Supreme Court determined that “unless a decision specifies otherwise, it is to be given prospective and retroactive effect.” Here, Rando was silent on whether it was to be applied retroactively. Previously, in Lovell v. Lovell, 378 So.2d 418 (La.1979), the court had noted the specific factors which should be considered in determining whether a decision should be given retroactive effect, determining that:

(1) the decision to be applied non-retroactively [i.e., prospectively] must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed.

In considering the Lovell factors as to this case, we see no reason to depart firom the general rule that judicial decisions are to be applied retroactively unless otherwise specified in the decision. The principle of Ifilaw considered in Rando was not new. It addressed an issue that had been bubbling in the circuit courts of appeal for some time. As the Supreme Court pointed out, the issue had been widely considered and the circuit courts of appeal were split. It was just a matter of time before the higher court would step in and decide the issue. Thus, this was not an issue that was new to the courts and had been considered by litigants before.

As relates to the second prong of the Lovell test, whether a holding of retroactive application will further or retard the purpose and effect of the rule fashioned in the judicial decision, we conclude that the retroactive application of Rando will surely further its holding, and a prospective-only application would just as surely retard it. The holding of Rando acknowledged the proper interpretation of La. R.S. 23:1031.1, and it served to allow plaintiffs an opportunity to assert tort claims and not be barred from asserting those claims because of the exclusivity provision of the pre-1975 version of the Act. The purpose and effect of that holding can only be furthered by a retroactive application of the decision.

Finally, we must weigh the inequity which will result from a retroactive application of Rando. Actually, it would appear most inequitable not to apply Rando retroactively. As observed already, the 2007 judgment was not a final judgment at all, and it was susceptible to revision under La. C.C.P. art. 1915(B)(2) at any time until a final judgment as to all the claims and all the parties was rendered; thus, as to these parties, it should not have been outside the realm of possibility for it to be changed. Additionally, we note that the law had not changed; Rando merely ^instructed this court that its previous application of the law as stated in Adams was incorrect. To deprive the Bozemans of their cause of action in the trial court based on an erroneous interpretation of the law is unfair. Notably, although the record does reflect that the Bozemans may have brought an action in the Office of Worker’s Compensation (District 1W, Shreveport) (the “OWC”), other than a reference to those proceedings during oral argument, there is nothing else of record indicating that the Bozemans’ claims have been conclusively addressed by that court. In the event that the Bozemans’ claims were addressed in an OWC proceeding, that might have some bearing on the outcome of their claims against the City, but we have no evidence of it on the record before us.

In light of the factors set forth above, we conclude that Rando should be given retroactive effect as it pertains to the facts at hand. The trial court erred in failing to revise the 2007 judgment sustaining the City’s exception of no cause of action with respect to the Bozemans’ claim for non-intentional tort, as it was rendered incorrect pursuant to the Louisiana Supreme Court’s decision in Rando.

Conclusion

So considering, the 2007 judgment in favor of the City of Shreveport is reversed with respect to the Bozemans’ claim for non-intentional tort, and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against the City of Shreveport in accordance with the provisions of La. R.S. 13:5112 in the amount of $2389.11, of which $25.00 is to be paid directly to the court of appeal.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.