author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Leroy DAVIS, Appellant.
    No. 45,556-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Louisiana Appellate Project by Edward Kelly Bauman, Leroy Davis, for Appellant.
    James Edward Paxton, District Attorney, Linda Lee Kincaid Watson, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

| jLeroy Davis was convicted at jury trial of the second degree murder of his wife. He received the mandatory sentence of life imprisonment at hard labor without benefits. He appeals. We affirm in all respects.

FACTS

In January of 2007, the defendant told police that his wife, Annette Davis, had been missing for two days. Annette’s vehicle was soon discovered after a plea for help was aired on the local news. Two months after her disappearance, her body was found in a shallow grave off Newell Ridge Road, northwest of Newellton. She died from blunt force trauma to her head.

TESTIMONY AND EVIDENCE

1. Officer Clarence Hall of the New-ellton Police Department testified that:

• on Tuesday, January 16, 2007, around 7:30 p.m., Leroy Davis flagged him down and told him that he needed to speak with the police chief;
• since the police chief was unavailable, Officer Hall had Davis come to the police station to speak with him;
• Davis mentioned something about needing another cell phone;
• after a brief conversation, the officer left to answer an alarm call;
• after completing that call, he was again flagged down by Davis, at which time they returned to the station and talked some more;
• Davis told the officer that his wife had been missing for a couple of days;
• the officer called Annette’s cell phone, but no one answered;
• he then called Annette’s place of employment and was told that she was not there;
12* he kept trying to call Annette’s cell phone until after midnight, at which time he called the sheriffs office to advise that the lady was missing;
• Detective John Matthews came to the Newellton Police Department to speak with Davis; and
• he (Hall) spoke with Annette’s son, who told him that Davis had been recording Annette’s telephone conversations and that his mother had asked him to pass this information on to the sheriffs office.

2. Detective John Matthews of the Tensas Parish Sheriffs Office testified that:

• he first spoke with Davis early Wednesday morning, January 17, 2007, at the Newellton Police Department;
• Davis told him that he hadn’t seen his wife since Sunday, January 14, when he left to take his daughter to college;
• Davis gave him a written statement detailing what he did on that Monday;
• Davis then gave a statement detailing what he did on that Tuesday;
• at this point, Davis conveyed to Detective Matthews his fear that someone had kidnapped his wife on her way to work;
|3* he (Matthews) reported his findings to Sheriff Ricky Jones early the next morning, whereupon the two made several phone calls to the hospital where Annette worked and also contacted the news media with a request for the public’s assistance in finding Annette or her car;
• the television station’s story led to the discovery of the vehicle in Madison Parish;
• he interviewed Davis’s sister, Jackie Sardinas, who said that he had contacted her Monday, asking to be picked up from a truck stop in Tallu-lah;
• the next morning, she admitted lying the day before about picking up her brother from a truck stop, admitted that he had actually called her a few days earlier and had her drive out to Highway 603, telling her that if his truck ever broke down, he would need her to pick him up right there;
• she then told Matthews that she actually picked up Davis about a quarter of a mile north of that area on that Monday;
• Ms. Sardinas took him to the exact location where she had picked him up;
• using photographs, Matthews showed the jury the area in question, pointing out the close proximity to where Annette’s vehicle was found;
• Matthews never asked Davis if his car had broken down in that area; and
• He had never heard about a farmer jumpstarting the defendant’s truck.

3. Tensas Parish Sheriff Ricky Jones testified that:

• he became involved in the case after a Newellton police officer contacted him;
• as soon as he read defendant’s first statement he knew that Davis was guilty;
• the tipoff was the attempt to set up such an elaborate alibi;
14* he contacted a local news station and gave them a picture of Annette and a detailed description of her car, in an appeal to the public for help;
• because of the media’s help, the car was located in Madison Parish;
• he went to the scene, finding a pair of white Crocs shoes in the car;
• the car, registered in Annette’s name, had a flat tire;
• Louisiana State Police became involved, with Trooper Harwell as lead investigator;
• Davis told officers that they would receive a “sign of his innocence”;
• a letter addressed to Jones was received a short while later by Harwell;
• the letter said Annette was okay because, “God takes care of his own”;
• the mailing contained a cell phone;
• Davis gave verbal consent for the police to search his home;
• Harwell found a drop of blood on a shoe in the hallway;
• a search warrant was secured, the execution of which revealed blood splatters on the walls and carpeting in the hallway, on picture frames, on a bookshelf, with most of the blood found on the carpeting;
• Davis admitted recently purchasing carpet runners in the hallway;
• State Police Crime Lab personnel cut a piece of the carpeting for testing, which showed that the blood had soaked through the carpeting and padding, leaving a stain on the concrete foundation of the floor;
• Davis said that he did not know what was splattered on the wall;
• Davis was interviewed several more times;
• the police received another letter, triggering another search of the Davis home for the typewriter or printer that generated the correspondence;
• no physical evidence was found to link Davis to the letters, and the only print discovered was that of Sheriff Jones;
[ -• when asked by Davis whether they had received any signs, the officers responded in the negative;
• within a few weeks, three anonymous letters were received by the officers;
• the third letter in regard to Annette (referred to therein by her first name, Melanie) stated that she was doing well, was sorry for what she had done, but that she wanted to start a new life, requesting that her family stop wondering about her whereabouts, as she did not want to be found;
• a Crime Stoppers caller from Ouachita Parish claimed to have discovered a grave at the intersection of Highways 888 and 575;
• he (Jones), Matthews, and Chief Deputy Rushing went to the site, noting that the corners of the grave were marked by bricks, and a pipe with artificial flowers was stuck into the ground;
• the pipe and flowers were located above the body’s head, leading him (Jones) to reason that whoever left them knew how the body was arranged;
• he contacted the State Police Crime Lab, who in turn contacted Mary Man-hein, a nationally known expert in forensic anthropology;
• in court, he identified the gravesite on a map, locating it just west of Newell-ton, off Highway 888, down a turn row, next to a cemetery;
• he stayed while the female body, wrapped in plastic and tied with rope, was excavated from the grave;
• the body was in a River Region shirt, with a necklace inscribed with an “A”;
• the body had a black garbage bag on her head;
• the autopsy reported the cause of death to be blunt force trauma to the head;
• Ms. Manhein identified the body as Melanie Annette Davis;
• Davis was arrested the day after the body was found and identified;
• an inmate, Craytonia Badger, later wrote him (Jones) about a conversation he had with Davis in jail, during which Davis admitted ^attempting to murder his wife on three separate occasions, the first two being unsuccessful;
• Badger’s credibility was enhanced by his coming forward with information not known to the general public — that the defendant had AIDS;
• Davis told Badger of his wife’s unfaithfulness;
• he (Davis) also told Badger that digging the grave took several days;
• Juanita “Pete” Mizell thought she saw Davis driving his wife’s car on the Monday in question, January 15, 2007, on a bridge on Highway 888, near where Annette’s body was later discovered;
• he (Jones) admitted that no other suspects were developed;
• there was neither DNA nor any fingerprints linking Davis with the letters;
• the only circumstantial evidence linking the letters to Davis was that Davis had told police they would receive a sign that he was innocent;
• he had never arrested the defendant before, and he was unaware of any domestic problems between Davis and Annette;
• Davis cooperated with police by giving voluntary statements, and by giving verbal consent for the search of his home;
• no weapon was ever recovered at the defendant’s home, and no physical evidence linked Davis to the crime, other than her blood being at his home;
• the last person to know that Annette was alive was her son, who spoke to her on the phone in the late afternoon on the Monday in question;
[ 7» Ms. Sardinas and Davis both placed him at home on Monday at 6:30 p.m.;
• he was at a lodge meeting sometime around 7:00 or 7:30 p.m.;
• Davis went to a bar afterwards;
• on Tuesday, Davis went to work, then drove around north Louisiana, visiting a loan company, a bank, a gasoline station, and a man about Jeep repairs;
• no physical evidence tied Davis to the gravesite;
• concerning Badger’s information, he (Jones) never confirmed with prison officials that Badger and Davis had any contact, nor did he confirm whether or not Davis had perpetrated domestic violence on Annette in the past;
• Badger received no benefit for supplying the information on Davis;
• no neighbors saw the defendant load anything into a car;
• he did not know whether police had checked phone records to see if Davis had tried to call his wife during this time frame;
• a person was indeed arrested for the theft of Davis’s cell phone;
• it was very possible that Davis did not leave fingerprints because he was wearing gloves, and his DNA would have been all over the crime scene anyway, as it was his own home;
• since the gravesite was outdoors, any DNA could have washed away;
• no evidence was ever found that any other suspect was ever in the home of the defendant and Annette, during this time frame;
• if there had been domestic abuse between Davis and Annette, it was quite possible that no one else knew, not even family members;
• Annette was having an affair with a man named Richard Dunmore, who had solid alibis for his whereabouts during the critical couple of days; and
• the conversations with Davis about “signs of innocence” was during the same relatively short time frame during which the letters came.

|s4. Investigator Rob Rushing of the Tensas Parish Sheriffs Office testified that he was present when the defendant made a statement on January 17, 2007, though Officer Harwell was the officer who actually took the statement. Rushing authenticated the videotape of this statement, which was taken on Wednesday, the day after Annette was reported missing. The tape was then played in open court.

Officer Rushing testified that at the time the statement was recorded, the case concerned a missing person. He stated that the Louisiana State Police were not called in until Annette’s abandoned car was found; however, his office continued to assist in the investigation.

He testified that he found some of the information Davis told him to be true, and some false. The defendant admitted to having extramarital affairs and told police that his wife did as well. It appeared from the information given to police by Davis that Annette had infected him with HIV, but during their investigation, police discovered that Davis got sick first. Davis told him he went to a lodge meeting on Monday in his 1998 Oldsmobile, which was later confirmed. Davis also said in his statement that he never argued with his wife, which fact was discredited during the police investigation that revealed that the two argued quite often.

Police also discovered that Davis did not travel through Delhi and go to a truck stop in Tallulah, although he had said this in his statement. Davis also said during his statement that when his sister dropped him off that evening at home, neither Annette nor her vehicle was there; however, witnesses (Richard Dunmore, Demarco Dunmore, and Jackie Sardinas) [¡¡stated that Annette’s vehicle was there that evening. Jackie Sardinas stated that her car was there when she dropped her brother off. Richard Dunmore said he saw Ms. Sardinas drop Davis off and noticed that Annette’s car was at home.

5. Deputy Jack McMillan of the Ten-sas Parish Sheriffs Office interviewed Emma Bass as part of his investigation. He stated that Ms. Bass was a friend and coworker of Annette’s. Ms. Bass told Deputy McMillan that she had received a phone call from the defendant wherein he told her his whereabouts on Tuesday. Ms. Bass thought it was strange that he called because they weren’t close. In fact, at one time, he had accused her of knowing that Annette was having an affair.

Deputy McMillan also interviewed a person by the name of Craig Jones on January 19, 2007. Jones told McMillan that he had seen Davis’s truck parked on Highway 575 on Tuesday morning around 11:00 a.m., and that a shovel was in the bed of the truck. By evening, the vehicle was gone. Deputy McMillan, who is familiar with the area, stated that the area where Jones told him he saw Davis’s truck was approximately 200 yards from where Annette’s body was found.

Deputy McMillan also interviewed Juanita Mizell. She told him that she lived on Newell Ridge Road (Highway 888). She stated that on Monday, January 15, 2007, sometime around dusk, while she was making a turn onto Highway 575 from Highway 888, she noticed a vehicle parked on Highway 888, parked on a bridge. The vehicle didn’t have its lights on and the trunk was open. A person dressed in camouflage was standing on the | inrail of the bridge. The person turned and waved at her and she recognized the person to be the defendant. She stated that she knew Davis because she went to school with him. She estimated that she saw Davis around 6:00 or 7:00 p.m. Mizell said the car was a silver car, and that it was the same model of car that a Chelsea Carden (an acquaintance of Mizell’s) drove. Deputy McMillan located Carden’s vehicle and confirmed that it was the same make and model as Annette’s vehicle. Deputy McMillan testified that the bridge is approximately one to two football fields from the gravesite where the police found Annette’s body.

On cross-examination, Deputy McMillan admitted in the notes he took during Mi-zell’s interview on February 1, 2007, he had not written that Mizell identified the man on the bridge as Davis. This fact was present only in his March 22, 2007, report.

After the jury found Davis guilty of second degree murder, the trial court denied his motion for judgment of acquittal and for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to run concurrently with any other sentence.

DISCUSSION

Sufficiency

Our law on sufficiency of the evidence is well settled.

|nThe circumstantial evidence is overwhelming, and the verdict is amply supported by this record. Consider:

• how unlikely it would be for a person to live in a home for days and not notice the sight and smell of a blood-soaked hallway; • how the timing of Davis’s purchase of the runner for the hall appears especially devious;
|1¾* how defendant’s predictions of exonerating “signs,” closely followed by three self-serving letters, are about as phony as it gets;
• how his frenetic efforts at establishing successive contradictory alibis worked against him;
• how bragging to another inmate could produce nuggets of information known only to the killer;
• how Davis’s actions early on were anything but those of a concerned husband of a missing wife;
• how his story that Annette’s car was gone Monday night was denied by his own sister and Richard Dunmore;
• how unexplainable it looks for the DNA of Davis and his wife to be mixed together at two places in Annette’s car;
• how Juanita “Pete” Mizell identified the defendant with Annette’s car, as he was dumping something off the bridge located between the gravesite and his home (denied by defendant); and
• how Annette’s car was found only 200 yards from where he had left his truck.

Pro Se Assignments

Davis lists seven assignments, the first six being primarily in the nature of argument, or stream of consciousness. There’s really nothing to discuss.

The first six assignments:

1. Defendant was prejudiced that the ADA’s opening statement alleged this was a crime of passion, ignited by defendant’s wife having an affair;
|132. A misstatement concerning “Pete” Mizell’s identification of him on the bridge and the Crime Stoppers call being undisclosed Brady material;
3. Alleged conflicts in the testimony of the state crime lab personnel and Sheriff Jones, about whether or not his fingerprints were on the envelope of the mysterious letters received by him;
4. None of the “sign” letters could be traced to his home;
5. The state tried to prove he was on a bridge on the Monday in question;
6. The state disclosed a handwritten note to Sheriff Ricky Jones.

Impliedly, defendant’s assignment of error number seven hints at a true issue, ie., a permutation of an allegation of ineffectiveness of counsel, in that his lawyer didn’t call as witnesses the 28 names that the defendant had given to a paralegal. Defendant’s pro se filing does not favor this court with an explanation as to how any of these witnesses would or could have helped his case. More than half of these witnesses were law enforcement officers or associated with the prosecution’s case, and many of the 23 witnesses actually testified.

A fair reading of the transcript clearly reveals that the defense lawyer aggressively and effectively represented the defendant. We decline to second-guess defense counsel’s trial strategy.

CONCLUSION

The evidence here is circumstantial, yet overwhelming. It is hard to | ^conceptualize a circumstantial case any stronger than this. It was proven beyond a reasonable doubt that this defendant killed his wife, Melanie Annette Davis.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Davis wrote that on Monday, he woke up around 6:30 a.m., went to work, left work around 3:00 or 3:30 p.m., went to Wal-Mart for about 30 minutes and then came home around 6:00 or 6:30 p.m., with his wife not being present at the house. Later he went to a lodge meeting, stopped at a bar afterwards, and returned home again around 10:00 p.m. During this statement, Davis never mentioned that his truck broke down or that his sister picked him up to bring him home. Detective Matthews testified that Davis also never mentioned that he drove his wife’s vehicle, or was near Newell Ridge Road, on that date.

      . Davis wrote that on Tuesday, January 16, he got up and arrived at work at around 8:00 a.m. He stayed for a short period of time and then left somewhere between 9:00 or 9:30 a.m. to go to die Tower Loan in St. Joseph to complete a loan application. He then went to Tensas State Bank in Newellton to make a deposit. He got gas and activated a cell phone in Shreveport. He then left Shreveport and called Verizon in reference to his early report that his cell phone was missing. He then drove to Monroe, where he had a daughter (or two' daughters) who went to college, gave them each $20.00, and drove home. He revealed nothing at this point about his truck breaking down at the intersection of Highway 888 and 575. Davis told Matthews that he had contacted the hospital where his wife worked on Tuesday evening to see if she had come in for her shift. He also told Matthews that he called his wife's friend, Emma Bass, who told him that she had seen Annette driving her car on Monday night on her way to work. Ms. Bass later denied telling Davis that she saw Annette on that Monday evening.

      . This location turned out to be about two-tenths of a mile south of where Annette’s vehicle was later discovered.

      . Davis told Craytonia Badger that he had picked up two barrels and some cement and intended to incapacitate his wife, put her in the barrels with cement, and throw her into the Mississippi River. He said the plan failed because as he was trying to beat his wife unconscious, his daughter walked in. The second attempt involved rat poison in her food, but she didn't eat supper that evening. He finally killed her by hitting her with something. He buried her in a shallow grave.

      . Later testimony of crime lab personnel showed additionally that DNA of both defendant and victim were mixed in two locations in her car: the steering wheel cover and a portion of the left rear carpet in the trunk.

      . No fingerprints, no shoe prints, and no DNA evidence.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

        Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      The Jackson standard neither permits a reviewing court to second-guess the rational credibility determinations of the fact finder at trial, State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 362, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

      . Particularly the bogus version of where his sister took him, and the refuted information about Emma Bass telling him that she passed Annette on the way to work that Sunday.

      . Because of his wife’s alleged infidelity.

      . She testified clearly about the encounter.

      . The farmer who called Crime Stoppers discovered the grave.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a landmark case requiring prosecutors to provide exculpatory evidence to the accused.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Rodney Keith FUQUA, Plaintiff-Appellant v. Shelly Bryant FUQUA, Defendant-Appellee.
    No. 45,555-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Loomis & Dement by: Albert E. Loom-is, III, for Appellant.
    Donald L. Kneipp, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

11Keith Fuqua appeals a judgment ordering him to pay a basic child support obligation of $2,419.62 per month for his three children. For the reasons expressed, we amend and affirm.

Factual Background

Keith and Shelly Fuqua got married in August 1997. They had three children: Mary Taylor in 1999, Margaret Grace in 2001, and Hayes Alexander in 2006.

During their marriage, Keith and Shelly appeared to enjoy an affluent life in Lincoln Parish. Keith’s parents, Rodney and Betty Fuqua, are the longtime owners of Fuqua Paper Supply LLC (“FPS”), Ru-ston’s leading supplier of paper, plastics and food service disposables. Although he was never an owner, manager or director or FPS, Keith had worked for his folks since 1992. By early 2007 he was FPS’s purchasing agent, making about $6,500 per month, including salary, gasoline allowance, vehicle insurance, health insurance for his family, and tuition at private Cedar Creek School. He also had the use of a company vehicle, a 2007 Chevy Silverado crew cab 4-door truck.

In addition, in the late 1990s Keith and Shelly, along with Monroe venture capitalist Frederick Huenefeld and his wife, started their own business, Fuqua Maintenance Service LLC (“FMS”), a janitorial service for local companies. By early 2007, Keith’s compensation package from FMS was $10,500 per month. Meanwhile, Shelly worked part time selling dresses for CAbi LLC, a direct sales company. Keith and Shelly bought a large, new home on a 1.5-acre tract in Creek’s Edge Subdivision, sent the ^children to Cedar Creek, and Shelly and the kids spent a lot of time at Squire Creek Country Club.

For reasons not disclosed in this record, Keith left the domicile in April 2008 and filed this petition for an Art. 102 divorce and incidental matters in June 2008. The children remained with Shelly in the Creek’s Edge house. By interim order of November 2008, Keith agreed to pay the mortgages and insurance on the house; auto insurance premiums on the community’s Chevy Suburban, which Shelly retained; up to $400 a month for fuel; $750 a week allowance for Shelly; up to $160 a month for her cell phone; and once-a-week maid service provided by FMS.

Keith promptly fell behind, leading Shelly to file a contempt rule. In a subsequent pleading, Keith alleged that the recent economic downturn had hit him very hard: his income from FPS (his parents’ company) had been cut 50%, business at FMS (his own company) was so diminished that he could no longer take any cash draws, and the couple was unable to pay their 2008 federal and state taxes. He added that he was doing his best to support Shelly and the kids, but Shelly’s spending was out of control. In March 2009, the court declined to hold Keith in contempt, but ordered him to pay a deficiency of $1,924 and an attorney fee of $750.

In early August 2009, Keith and Shelly filed a joint motion to partition their stock in FMS. The court approved this, enabling them to sell their respective 25% undivided shares to their business associates, the Huenefelds, for $175,000 each. Shelly testified that she banked her money, |swhile Keith directed Huenefeld to make his check payable to his father, Rodney Fu-qua. Keith immediately used over $121,000 of the proceeds to repay his father for various loans and over $27,000 to buy the company truck he had been using since the separation. This left him only about $26,000 from the sale of his interest in FMS.

Synopsis of Testimony

At the hearing on the rule to fix child support, Keith testified that since he signed the interim order, his business had totally collapsed. Since early 2009, his salary from FPS had been reduced to $1,625 a month gross, and he named several former FPS clients who had dropped their service. He admitted that FPS still paid the kids’ health insurance premiums, his $5,000 a year medical savings account and a gas allowance, and his parents were still paying the kids’ Cedar Creek tuition. He also admitted he was renting a house from his parents at $1,800 a month. He estimated that all told, his income from FPS was slightly under $2,000 a month. He also testified that he had recently received one-time backpay from FMS of $6,300.

Keith explained that he was currently making ends meet only by exhausting the proceeds of the FMS sale. From that lump sum, he had paid his father for loans and advances which he itemized at $121,361.75, even though there were no notes or papers to document these debts. He also insisted that he paid his father fair market value (Kelley Blue Book) for the Silverado, and then one-half of the Cedar Creek tuition, leaving him only about $20,000. He added that the business climate was so poor that he ^expected to leave FPS, and named several local businesses where he had submitted job applications, but thus far he had received only one return call. Finally, he testified he now wants the kids to go to public school, Glen View Elementary, that he was trying to sell the house in Creek’s Edge, despite Shelly’s urgent request to keep it, and that he needed about $3,000 a month to live “without frills.” He argued that based on the parties’ finances, his child support should be $510 a month.

Rodney Fuqua corroborated much of Keith’s testimony, adding that he was now 71 years old and intended to retire, although he had taken no steps to sell FPS. Most of all, he testified, he could not continue loaning Keith money indefinitely.

Shelly testified that during the marriage, Keith handled all the finances, so she had no idea how he made his money. She admitted she earned only about $1,000 a month selling dresses, but she could not take a full-time job because she needed to be at home with the children. She assumed that no matter what, Keith’s folks would continue paying the kids’ Cedar Creek tuition, and admitted she had told someone that their house was not on the market.

Dr. Sally Thigpen, the court-appointed child psychologist, testified (among other things) that when she' first interviewed them, Keith and Shelly said they would pay one-half of the kids’ Cedar Creek tuition.

Action of the Trial Court

By written reasons, the district court set out the background facts, noting that because the prior order was by stipulation and without prejudice, ^neither party had to prove a change of circumstances; the only issue was child support under La. R.S. 9:315. The court accepted that until about February 2009, Keith’s annual compensation package from FPS and FMS totaled $17,000 a month; from February through July 2009, it dropped to $12,175 a month; in August, he received cash of $175,000 for his interest in FMS; and since then, he claimed to be earning only $1,625 a month from FPS. The court rejected Keith’s claim that $121,244 of the capital payment “was properly paid to his father,” as there was no documentation, many of the debts appeared to be community obligations or gifts, and many of the claimed expenses were “inflated.” The court opined that “the funds invested at 6% per annum will generate interest income of $10,500 per year, or a total of $875 per month,” which it imputed to both parties’ incomes. The court further found that Keith’s potential income should be imputed to him under R.S. 9:315 C(5)(b), citing these reasons:

(1) Keith has demonstrated an ability to engage in lucrative entrepreneurial ventures; (2) Keith shows rental expenses of $1,800 per month, which suggests to the court that he anticipates earning significant funds to support an upscale lifestyle; (3) he has a history of earnings in excess of $200,000 on an annual basis.

The court found that Keith’s earning capacity was $125,000 a year, to which it added the 6% interest on $175,000, for a total of $135,500 a year, or $11,290 a month. It fixed Shelly’s income at $1,000 a month from CAbi plus the 6% on the $175,000, or $1,875 a month. According to the court’s worksheet calculation, the basic support obligation was $2,489.80, of which Keith’s 85.76% share was $2,419.62. A monthly premium of $331.59 directly to the insurer to maintain the children’s health and hospitalization | r,policy was included in the sum.

Keith has appealed, raising six assignments of error.

Discussion: Income Potential

By four of his assignments of error, Keith urges the court erred in imputing an earning potential of $125,000 a year. He contends that contrary to R.S. 9:315 C(5)(b), the court made no specific finding that he was underemployed or unemployed, did not propose that such a finding was necessary to impute income, and did not find he was at fault or guilty of neglect in causing his current condition. He argues that a finding of voluntary underemployment was reversed in Luplow v. Luplow, 41,021 (La.App. 2 Cir. 2/28/06), 924 So.2d 1135, on the rationale that the obli-gor spouse was in good faith, and that the same rationale applies here. By his second assignment, Keith urges the court erred in finding that he had a demonstrated ability to engage in lucrative entrepreneurial ventures; he submits that in reality he was never anything more than his dad’s gofer at FPS. By his fourth assignment, Keith urges the court erred in finding that his long-established rental expense of $1,800 a month suggested in any way that he anticipated earning significant funds in the future; he shows that he rented this house months before his income tanked and it simply does not equate with an expectation of enhanced income. By his fifth assignment, he urges the court erred in relying on his earning history. He argues that voluntary underemployment is a question of good faith of the obligor spouse, Arrington v. Arrington, 41,012 (La.App. 2 Cir. 4/26/06), 930 So.2d 1068, and nothing in the record shows that he was in bad faith or at fault in the business downturn that ruined his finances.

Shelly responds that the court’s finding that a parent was in good or bad faith in reducing his income is factual and subject only to manifest error review. Durfee v. Durfee, 44,281 (La.App. 2 Cir. 5/13/09), 12 So.3d 984. She submits that the court was not plainly wrong to find that Keith previously made over $200,000 a year at FPS and FMS, or to use this as a gauge of his income potential. She also argues that even though they sold their interest in FMS, Keith did not show that he could no longer work there at a significant salary; at $78,000 a year, Keith was far from a gofer at FPS; and FMS was successful, even if it was only a janitorial service. Further, the timing of Keith’s job search, and the immediate diversion to his father of most of the proceeds of the sale of FMS, strongly support the court’s finding of a bad faith effort to avoid his support obligation. Finally, she contends the court was entitled to treat the $1,800 a month rent house as proof of some financial means on Keith’s part. She concludes that the court did not abuse its discretion in finding him voluntarily underemployed and fixing his income potential at $125,000 a year.

If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. La. R.S. 9:315.11 A. Income includes potential income, if a party is voluntarily unemployed or underemployed. La. R.S. 9:315 C(5)(b). A party is not adeemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. Id.

Voluntary underemployment is a question of good faith of the obligor parent. Durfee v. Durfee, supra, and citations therein. Whether the obligor is in good faith in reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the trial court’s wide discretion. Id. The trial court also has wide discretion in resolving factual issues. Id.

There is no merit to Keith’s threshold claim that the district court failed to make a specific finding of voluntary underemployment or to state that such a finding was needed to impute his potential income. The court expressly found “an effort by Keith to impoverish himself to reduce his child support obligation” and that “Keith’s potential income should be imputed to him pursuant to R.S. 9:315 C(5)(b).” The only issue is whether the court abused its discretion in applying the statute to this record.

The evidence was admittedly conflicting. This court is fully aware of the national economic downturn that sharply affected businesses in north Louisiana in 2008 and 2009, and continues to do so; the downturn lends considerable weight to Keith’s claim of diminished income at FPS and FMS irrespective of his individual performance. Also, his lucrative post in a small, family-owned business may well be hard to replicate in the outside, corporate world. Against these circumstances, however, is the fact that Keith and Shelly (with the Huenefelds) formed their own company which, Reven in the financial downturn, was worth $700,000; this shows no mean entrepreneurial ability. The way Keith handled the proceeds of the sale of FMS, even on the impassive record, raises considerable questions as to his good faith in that no debts to his father were documented and many appear to be gifts or community obligations. This case is not about Rodney Fuqua’s business judgment, but given the family relationship, the decision to slash Keith’s salary while handling others differently could well have been a mutual agreement intended to minimize Keith’s income. Contrary to Keith’s argument, his continued $1,800 house rent and other expenses are inconsistent with a claimed monthly income of $1,956. Savage v. Savage, 36,138 (La.App. 2 Cir. 6/12/02), 821 So.2d 603.

On full review, we cannot say the district court was plainly wrong in finding Keith voluntarily underemployed and in imputing his potential income under R.S. 9:315 C(5)(b). The figure imputed, $125,000, admittedly strains the upper limit of the district court’s discretion. This court sees both parties living far beyond their collective means and notes that the award is subject to modification upon proof of a material change in circumstances. La. R.S. 9:311 A(l); Strange v. Strange, 42,318 (La.App. 2 Cir. 6/20/07), 960 So.2d 1223. On the instant record, however, we cannot say the imputation of $125,000 is an abuse of the court’s vast discretion. These assignments lack merit.

Interest Income

By his third assignment of error, Keith urges the district court erred in imputing income to each party based on 6% interest on the $175,000 each | inreceived from the sale of FMS. Keith contends there was absolutely no evidence to support this interest rate; he suggests that the advertised rate on a $100,000 CD is under 1%, and savings accounts are even less than that. By his sixth assignment, he urges the court erred in its calculation of the child support obligation worksheet.

Shelly responds that Keith offered no evidence regarding prevailing interest rates and failed to identify the financial institutions he consulted regarding those rates. She concedes that a CD or savings account would not pay 6%, but suggests that “investing in stock or in mutual funds would accrue a much higher interest” and thus the court did not abuse its discretion in imputing 6%.

There is no record evidence to support the court’s finding that the parties can earn 6% interest on a principal of $175,000. With this total absence of evidence, the imputation of $10,500 a year to both parties is plainly wrong and manifestly erroneous. The prevailing interest rates are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, and hence are subject to judicial notice. La. C.E. art. 902 B(2); Southern Bell Tel v. Louisiana Public Serv. Comm’n, 187 La. 137, 174 So. 180 (1937). As in Southern Bell, this court takes judicial notice that interest rates now paid by banks, thrifts and credit unions are nearly negligible. The record is equally void of evidence that the parties are sophisticated investors who could place what is perhaps their largest asset in high-risk securities. This portion 'of the judgment is reversed.

In With this conclusion, we also find merit in Keith’s sixth assignment of error. We must recalculate the obligation without imputing the interest as income. Shelly’s monthly income of $1,000 plus Keith’s of $10,416.67 yields a combined monthly income of $11,416.67. Of this total, Keith’s share is 91.24%. According to the table in R.S. 9:315.19, the basic support obligation for three children at this income level is $2,285. Keith’s share of the basic support is therefore $2,084.85. The judgment is amended accordingly.

Conclusion

For the reasons expressed, we amend the judgment to provide that Keith Fuqua shall pay child support in the full sum of Two Thousand, Eighty-Four and 85/100 ($2,084.85) dollars per month, of which Three Hundred, Thirty-One and 59/100 ($331.59) dollars is to be paid to the health insurance company to maintain the children’s health and hospitalization. In all other respects, the judgment is affirmed.

Costs are assessed one-half to each party.

AMENDED AND AFFIRMED.

      . Keith attached receipts for frequent outings at Squire Creek Country Club and prodigious charges at drugstores, lending some weight to this assertion.

      . The district court limited each side to 1 hour and 15 minutes to present its case.

      . The word is misspelled in both briefs as "gopher,” the word for a burrowing rodent.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Bobby Ray INGRAM, II, Appellant.
    No. 45,546-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Wiener, Weiss & Madison, by M. Allyn Stroud, Tutt & Stroud, by A.M. Stroud, III, Kyle M. Robinson, for Appellant.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| T Bobby Ray Ingram, II, appeals his conviction and sentence by the 26th Judicial District Court, Parish of Webster, State of Louisiana. Ingram was convicted of manslaughter, a violation of La. R.S. 14:30.1 and sentenced to 28 years’ hard labor. For the following reasons, we remand the matter to the trial court for further proceedings as directed.

Facts

Ingram was charged with second degree murder as a result of the shooting death of his ex-wife, Kimberly “Kim” Ingram on October 18, 2006. The defendant’s first trial ended in a mistrial due to a medical emergency. At the conclusion of his second trial, by a vote of 10-2, the jury voted to convict Ingram of manslaughter on the following evidence adduced at trial.

Ingram and his first wife, Kim, were married for 14 years and had three children. The couple divorced in 2002, and initially they shared the physical custody of their children. In 2006, Ingram remarried; he and his new wife, Nancy Ingram, had one child together. They lived in a rural area north of Minden in the same home where Ingram and Kim lived during their marriage.

Testimony established that Ingram and Kim had a contentious relationship. As a result, Kim was not allowed onto the In-grams’ property, and this acrimonious situation led Ingram and Nancy to build a gate, and then a fence, between the highway and their property. Custodial exchanges of the children were done while Kim was parked outside the gate near the road.

|2On the morning of Wednesday, October 18, 2006, Ingram and Nancy were in Shreveport shopping for a new car. They returned home early that afternoon to a letter they received from Ingram’s attorney relaying new demands from Kim concerning various custody and property matters. In the letter, Kim asked for sole custody of their daughter, her portion of Ingram’s 401K account accrued during their marriage and the return of some personal property. In response, Ingram called Kim at her workplace. He told Kim that he withdrew his previous consent to an informal request by Kim to take their youngest child to Kim’s high school reunion on the upcoming weekend, a weekend when he would normally have physical custody of the child. He also told Kim that he was not going to be able to give their oldest son a ear because he would need additional money to pay a lawyer to fight Kim’s demands. Reportedly, Kim asked Ingram to keep the children out of their disputes.

After this call ended, Kim then called Ingram’s residence seven times from 1:15 p.m. until 1:58 p.m. Nancy and Ingram ignored most of these calls, but finally Nancy answered the phone, at which point Kim demanded to know the whereabouts of her oldest son who was living with Nancy and Ingram. Nancy told Kim that the young man was not there. Nancy testified that Kim said that when she was finished with her client (Kim was a hairdresser in Minden), she would be on her way to see Nancy and Ingram. Neither Nancy nor Ingram went out to lock their gate; Nancy testified that she did not do so “because of numerous times she threatened me she didn’t follow up on it after I had her arrested at my salon.”

| RAbout twenty minutes later, Kim drove up to the Ingram’s home and parked at the end of the driveway near the highway. When she arrived, Kim called the house again and Nancy answered the phone. Nancy testified that “She [Kim] said she was going to wait at the end of the driveway until I left and then she — once I got on public property she was going to kick my ass.” Nancy then told Kim to “come on down the - driveway.” Nancy testified that she made this statement to Kim in an effort to have Kim arrested for threatening her. Kim waited in her car at the end of the driveway for several minutes and then Nancy called Kim back and told her to leave. At that point, Kim told Nancy that she was going to wait there until her oldest son arrived home on the school bus. Nancy testified that Kim demanded that Nancy come out to her “so she could kick [Nancy’s] ass.”

Kim then drove her car down the In-grams’ long driveway and skidded to a stop in the front yard only a few feet from the front door. Kim got out of her car, leaving her purse inside and leaving the driver’s side door open, and came up onto the front porch of the Ingrams’ residence. Nancy saw Kim through a front window and called out to Ingram, who was in the kitchen, saying “She’s here.”

The Ingrams’ front entranceway had two doors: a glass storm door and a wooden main door. The wooden main door was open, and the storm door was shut. Nancy testified that she walked up to the storm door and cracked it open “a few inches” to speak with Kim. Nancy testified that she never left the residence. At this time, according to Nancy, Kim was standing outside the house on the front porch but at the storm door. When hNancy opened the storm door, she said to Kim “I’ve had it,” and Kim responded “I’ve had it.” Nancy testified that she and Kim then called each other “bitches,” that Kim called Nancy a whore, and that Nancy told Kim to leave. Nancy never saw Kim with a weapon.

In the meantime, Bobby Ray called 911; the call was received at 2:45 p.m. An audio recording of this conversation was admitted into evidence along with two different transcripts. Phone records show that the Ingrams received a call from a car dealership immediately thereafter, which call only lasted a few seconds and then disconnected.

During Nancy and Kim’s argument, the dispute became physical, and the women began fighting on the floor inside the house at the threshold just inside the front door. Nancy testified that Kim knocked her to the floor and then proceeded to hit Nancy and pull her hair. At trial, Nancy further explained that Kim was on top of her and that she (Nancy) was trying to protect her face by putting her arms up.

Ingram testified that he was still in the kitchen on the phone when he heard Nancy make “a blood-curdling scream” and heard “a loud bang” so he hung up with 911 and grabbed the deer rifle that had been left in the kitchen after a recent hunt. He said he went into the hallway where he saw the two women on the floor. He said that “She (Kim) was holding her (Nancy) with one hand and hitting her with the other, and Nancy was screaming.” At that point, Ingram called out to Kim. Ingram testified:

| SI didn’t think, I just, I ran, I grabbed her [Kim], I think I was screaming “get off of her, get off of her, get out.” I grabbed her [Kim] by the hair and I pulled up, and when I pulled up, I guess she pulled up on Nancy and Nancy screamed louder and I let go and it got her attention off of Nancy, and then she lunged at me and I was pulling back and I fired.

Ingram further explained that “[W]hen I [let go], Kim turned up and lunged towards me, or made an aggressive motion towards me, and I pulled back and I fired.” He said that the rifle was at his hip when he fired. Nancy said that she wasn’t able to see up until Ingram pulled Kim up and off of her; she explained that when she was finally able to see, she saw only her husband’s side and the rifle. Nancy testified that, “I saw Bob’s eyes got big like he got scared and jump, jumped back, and I felt pressure back on my legs like maybe she [Kim] was coming forward, and then the gun went off.” During the investigation on the day of the shooting, Nancy denied seeing Kim reach for the gun.

The bullet struck Kim in the bottom of her right arm, perforated the arm and entered her upper right torso through her right breast. The bullet destroyed the breast implant in that breast and then traveled upward through her torso into her heart. The bullet fragmented and did not exit her body. Kim Ingram was dead.

Immediately, Ingram called 911; the call was received at 2:46 p.m. — only one minute after the first call was received. His first statements to the dispatcher were: “Yeah, she came in the house and she started fighting and I shot her! I need an ambulance quick!” Nancy took the phone | (¡from Ingram and relayed to him instructions from the dispatcher about giving CPR. Neither he nor the paramedics who arrived shortly after the 911 call were able to revive Kim.

During the second conversation with 911, the dispatcher asked Nancy if she was injured, to which Nancy replied “[S]he came in and attacked me, I mean, I might have some scratches on me but I’m not injured.” Subsequent photos of Nancy showed that she had what appears to be fingernail scratches on her upper chest.

The photos of Kim taken at the scene show her body entirely within the home, at the front door, lying on her back with her head near the door. She has what appear to be small pieces of tissue covering her jeans from her waist down to her knees. The photos also show that the front of the right leg of Kim’s jeans was wet from her upper thigh down to her knee.

As noted, the jury convicted Ingram of manslaughter. The defense filed a post-verdict motion for acquittal, urging that the evidence showed that the shooting was done in self-defense. The trial court denied this motion stating its belief that viewing the evidence in the light most favorable to the State, the jury concluded that Kim Ingram’s entry into the home was lawful based on Nancy’s invitation to “come on down the driveway.”

Ingram also filed a motion for a new trial, citing four grounds. First, he contended that the verdict was contrary to the law and evidence. Ingram argued that the evidence was insufficient to support the verdict. Second, he maintained that the trial court’s admission of the laboratory drug test report |7into evidence over Ingram’s objection was error. Third, he urged that juror misconduct during deliberations necessitated a new trial, or at the least an evidentiary hearing on the issue (which request the trial court denied). Finally, Ingram argued that the ends of justice would be served by granting a new trial. The defendant argued that the state’s forensic expert had no factual basis to support his opinion that Kim was in a defensive posture when she was shot. Further, the defense argued that the prosecutor’s change to the 911 transcript was prejudicial. Finally, the defense alleged that the prosecutor, Sherburne Sentell, III, had a personal relationship -with Kim and had used the power of his office to, among other things, “quickly [dispose] of a pending drug charge against Barre Simpson,” Kim Ingram’s boyfriend. The trial court denied Ingram’s motion for new trial.

At sentencing, the trial court indicated that it had reviewed the presentence investigation report prepared in this matter along with various letters, including a letter from Ingram, and a presentence memo from the defense. The trial court observed that Ingram was 40 years old and that his only prior criminal record was a single traffic violation. The defendant had lived in Minden since he was in high school, had served with the Army National Guard and had an extensive and steady work history. The trial court noted that the many letters sent to it were “about half-and-half’ in favor of and opposed to harsh punishment for Ingram and that Ingram’s children were among those who were opposed to a long jail sentence.

The trial court took into account the great suffering of Ingram’s children, but noted that Ingram had shot an unarmed woman at close range |Rwith a high-powered rifle. The court stated that it found several factors in support of a longer sentence: a lesser sentence would deprecate the seriousness of the crime; Ingram was in need of correctional treatment that could be provided most effectively by his commitment to an institution; Ingram used violence in the commission of the offense; and, Ingram should have contemplated that his conduct would cause serious harm.

In mitigation, the trial court found that Ingram had no criminal history and that his imprisonment will, in many respects, entail an excessive hardship on his dependents. For those reasons, the court sentenced Ingram to serve 28 years’ imprisonment at hard labor, and Ingram subsequently filed a motion to reconsider sentence. The trial court denied the motion, and Ingram now appeals.

Discussion

Ingram rafees several assignments of error, discussion of which are pretermit-ted due to the issue of potential juror misconduct at the trial. On that issue, Ingram argues that the trial court mishandled his motion for new trial and urges that the trial court should have granted, in the least, his request for an evidentiary hearing because of events that transpired with the jury near the close of trial. Considering the extraordinary facts alleged by Ingram regarding this assignment of error which appear to be unique in Louisiana jurisprudence on the issue of juror misconduct, we conclude that the trial court erred in failing to conduct an evidentiary hearing on the matter.

|9In his memo in support of his motion for new trial, Ingram stated:

The facts set forth in this motion were discovered by defendant’s attorneys on August 21, 2009, and could not have been discovered by any means available to defendant or his attorneys prior to the return of the verdict. The source of the factual allegations set forth in this motion is a juror, who, on his/her own initiative, contacted defendant’s attorney, A.M. Stroud, III (footnote omitted).
On Saturday, August 15, 2006[sic], the trial of this matter was still ongoing. During the lunch recess, the juror seated in the second row, seat 8 (hereafter, “Juror No. 8”), made an unauthorized entry of a dwelling, while armed with a baseball bat, for the purpose of confronting her boyfriend, who was present in the dwelling with another woman. She threatened bodily harm if the boyfriend did not leave and if the other said anything. She then left the house and returned to jury duty. Juror No. 8 then shared the facts related to her unauthorized entry of a dwelling with other members of the jury, before and/or during deliberations.
During deliberations, another juror pointed out that Juror No. 8 was in a position similar to Kimberly Ingram, in that she had entered, in an aggressive and unlawful manner, the home of another without permission and Juror No. 8 agreed. Ultimately, Juror No. 8 voted to convict defendant of second degree murder.

Ingram argued that this juror’s statements to the other jurors “irrevocably tainted the jury’s deliberations by causing extraneous matters unrelated to the evidence to be considered during the process of jury deliberations, and in particular created the substantial risk that other members of the jury would perceive that if they determined that defendant was not guilty on the basis of justifiable homicide, they would be implicitly, if not explicitly, condemning Juror No. 8’s conduct.”

1inThe trial court held a hearing on Ingram’s motion for new trial, which additionally contained a request for an eviden-tiary hearing to consider the matter of this juror’s alleged conduct. The trial court allowed Ingram to make a proffer in conjunction with his motion, which proffer stated in part:

[Juror No. 8] would have been called to inquire about her actions as related to counsel by the foreman of the jury. Specifically, she would have been asked about the “baseball bat” incident involving her boyfriend and another woman, occurring while she served as juror.

In addition, Ingram proffered the affidavit of the jury foreman, which stated in part:

AFFIANT also advised [defense counsel] that a female juror had been telling others during recesses that she suspected her boyfriend was having an affair and was taking advantage of her service on the jury in order to visit with his suspected paramour.
On Saturday, August 15, 2009, the trial of this matter was still ongoing. AFFIANT related that the juror, during the lunch recess, made an unauthorized entry into the house of the alleged paramour. The juror made the entry while armed with a baseball bat. The juror found the boyfriend in bed with the other woman, therefore confirming her suspicions. She then told the woman to be quiet and listed [sic] to what she had to say. After telling her boyfriend she would deal with him later, she left and returned to jury service.
AFFIANT indicated that the juror acknowledged to him and others that she had placed herself in the same position as Kimberly Ingram, as both had entered homes without authority.
AFFIANT believes that this external matter disrupted the subsequent deliberations of the jurors, allowed the jurors the benefit of a “recreation” of the crime, and more importantly, allowed them to use this evidence in its deliberations to compare the juror’s position at the house she entered to that of Kim Ingram; i.e., the juror lived; Ms. Ingram did not.

Ultimately at the hearing on Ingram’s motion, the trial court denied his motion for new trial on this issue concluding that Juror No. 8’s fy statements were essentially those of the juror’s personal experiences like those in State v. Sanders, 33,778 (La.App.2d Cir.10/04/00), 769 So.2d 183, and not the sort of extraneous or outside influences contemplated by La. C.E. art. 606(B), which provides:

B. Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

In Sanders, supra, the defendant was convicted of attempted murder as a result of a drive-by shooting. On appeal, the defendant claimed that his jury was improperly influenced by the comments of one juror, relayed to the other jurors, about his own experience as the victim of a drive-by shooting and his medical knowledge about the type of injury suffered by the victim. In Sanders, we rejected the defendant’s argument of juror misconduct, stating, in part: “Essentially, an impermissible ‘outside influence’ is an unauthorized communication or overt act by a third party which creates an extraneous influence on the jury. However, even if such acts occur they are subject to harmless error analysis.” Id. at 187 (citation omitted). Whereas a trial court’s decision on a motion for new trial rests within the sound discretion of the trial judge, we believe that the trial court’s complete reliance on Sanders, without first conducting an evi-dentiary hearing to flesh |1?out the facts behind these very serious allegations, was an abuse of discretion considering the unique situation of this particular case.

Notably, in and of itself, juror misconduct is not grounds for an automatic mistrial; prejudice must also be established. State v. Day, 414 So.2d 349 (La.1982); State v. Richardson, 33,272 (La.App.2d Cir.11/01/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151. However, we observe the holding in a writ opinion by the Louisiana Supreme Court in State v. Barber, 1997-2749 (La.04/24/98), 708 So.2d 1054. In that case, from the limited facts stated by the supreme court, it appears that alternate jurors were present during deliberations. As a result thereby, the case was remanded to the trial court for an evidentiary hearing to determine if the outcome was affected by the presence of alternate jurors and to what extent the outcome was affected. In rendering its ruling, the supreme court in Barber relied on La. C.E. art. 606(B), and concluded as follows:

Louisiana courts are “required to take evidence upon well-pleaded allegations of prejudicial juror misconduct....” State v. Graham, 422 So.2d 123, 131-132 (La.1982); State v. Horne, 679 So.2d 953, 958 (La.App.2d Cir.08/21/96), writ denied, 688 So.2d 521 (La.02/21/97); State v. Sanders, 539 So.2d 114, 121 (La.App. 2d Cir.), writ denied, 546 So.2d 1212 (La.1989); State v. Duncan, 563 So.2d 1269, 1272 (La.App. 1st Cir.1990); See also State v. Searile, 643 So.2d 455, 457-458 (La.App. 3rd Cir.10/05/94). At the conclusion of the hearing, the trial court shall determine whether a new trial or other appropriate relief is required, reserving to the parties a right to seek review of the ruling.

See also, State v. Anderson, 2008-962 (La.App. 3d Cir.02/04/09), 2 So.3d 622, writ denied, 2009-0518 (La.11/20/09), 25 So.3d 786.

11sThe instant case is a strikingly atypical case of jury misconduct and definitely distinguishable from Sanders, supra. Here, a juror allegedly committed a crime during the course of the trial, which crime was reminiscent of the facts of the case being tried. Had this case been truly analogous to Sanders, this juror’s actions would have occurred prior to Ingram’s trial, and she would have potentially brought her life experience with her to the trial. Counsel for both parties would have had the opportunity to question the juror during voir dire and make a determination of whether they considered her a suitable juror despite her life experiences. Instead, as alleged by Ingram, Juror No. 8, while in the midst of the trial committed a home invasion herself and then, living to tell about it, allegedly returned to the jury room and shared her experience with other jurors. Notably, the jury is the fact-finder and the judge of the witnesses’ credibility. The jury’s fact-finding process is seriously called into question when one of the jurors — allegedly—commits a crime during the trial and then comes back and relates it to the rest of the jury, and the jury then discusses the similarity between the juror’s actions and the instant case.

Because this is such a novel situation and because Ingram clearly may have been prejudiced by the conduct of Juror No. 8 if the allegations are determined to be true, the most cautious and reasonable course of action by the trial court would have been to hold an evidentiary hearing to determine what happened with Juror No. 8 and the other jurors. Although the result may ultimately be unfavorable to Ingram (i.e., if the trial court determines after an evidentiary hearing that there was no juror misconduct or that even 114if there was, Ingram was not prejudiced), to proceed without considering this issue is the sort of thing that serves to undermine the public’s confidence in the criminal justice system. If true, the allegations made concerning Juror No. 8’s actions during the final stages of Ingram’s trial merit serious consideration. Failure to hold an eviden-tiary hearing to inquire into the facts surrounding the allegations which sound prejudicial on their face was clearly in error.

Conclusion

Considering the foregoing, this case is remanded to the trial court for an eviden-tiary hearing to determine whether or to what extent the alleged conduct by Juror No. 8 may have been an improper extraneous influence on the jury which served to prejudice Bobby Ray Ingram. At the conclusion of the hearing, the trial court shall determine whether Ingram is entitled to a new trial as a result of juror misconduct or other appropriate relief is required, reserving to the parties the right to seek review of the ruling. See State v. Barber, supra.

REMANDED FOR FURTHER PROCEEDING.

      . The fact that two different transcripts exist is an issue raised by Ingram on appeal. Apparently, between the first and second trials, the assistant district attorney made a slight change to the 911 call transcript without informing defense counsel. The altered transcript did not come to light until the second trial of the matter, and Ingram argues that as a result of the altered transcript he is entitled to a new trial.


author: STEWART, J.

text:
    Rebecca CLARK, Plaintiff-Appellant v. CHRISTUS HEALTH NORTHERN LOUISIANA d/b/a Christus Schumpert, Defendant-Appellee.
    No. 45,663-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      William A. Jones, Jr., for Appellant.
    Cook, Yancey, King & Galloway by S. Price Barker, Michael D. Lowe, for Appel-lee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

11 When her nurse practitioner position was eliminated four months after she was hired, the plaintiff, Rebecca Clark, sued the defendant, Christus Health Northern Louisiana d/b/a Christus Schumpert (hereafter “Schumpert”). Alleging that she had an employment contract for a fixed term of two years, Clark asserted a claim for breach of contract and an alternative claim of detrimental reliance. The trial court denied both claims upon finding that the parties had not entered a fixed term employment contract. Clark now appeals. For the following reasons, we affirm.

FACTS

Jean Pitts, the clinical program manager for Schumpert’s Cancer Treatment Center (“CTC”), contacted Clark in September 2007 to inform her that a nurse practitioner position had become available in the GYN oncology department. Clark had previously done a clinical rotation at Schumpert while completing her nurse practitioner studies and had completed an online job application in March 2007. When Pitts contacted her about the CTC position, Clark was employed as a nurse practitioner pursuant to a “Collaborative Practice Agreement” with Dr. Edward R. Coleman and Dr. Mark F. Dollar at their clinic in West Monroe. The agreement had a 90-day term beginning on July 24, 2007, and ending on October 24, 2007, at which time it was subject to amendment and renewal. Clark returned Pitts’ call and began discussions about the job at the CTC.

Clark learned that one physician, Dr. Connor, had left the CTC and that a new GYN oncologist, Dr. Ricky Owers, had just started. Dr. Owers had recommended hiring a nurse practitioner to assist with the CTC’s [2patient load. Clark met with Dr. Owers to find out more about the job and to tour the CTC. She was interested in the position if the money was right.

Pitts first offered Clark the position at a salary of $75,000 a year. Clark turned it down. Clark then negotiated with Jennifer Varnadore, the CTC’s new director. After a number of conversations with Var-nadore, Clark agreed to accept the position at a salary of $81,000, plus additional on-call pay, a sign-on bonus, and reimbursement of moving expenses. None of Clark’s negotiations with Schumpert personnel addressed the issue of fixed term employment.

To confirm Clark’s decision to accept the CTC job, Matthew Berg, a regional recruitment manager for Schumpert, sent her an offer letter by email on October 18, 2007. The offer letter states in relevant part:

We are prepared to offer you a base salary of $81,000 annually (to be paid on a bi-weekly basis) as a Nurse Practitioner in the above stated unit. We are also prepared to offer you a sign-on bonus of $2,500, which also requires a signed commitment to remain employed at [Schumpert] for two years, as well as call pay of $75 on weekday nights and $150 on weekends. You are also eligible for up to $2500 in reimbursable moving expenses. The bonus payment is subject to applicable taxes. Your formal start dated (sic) is to be determined by you and Jennifer but to be no later than November 26, 2007.

Clark signed the offer letter on October 18, 2007, indicating her acceptance of the CTC position.

On Friday, October 19, 2007, Clark reported to Schumpert for a pre-employment physical, at which time she learned that Dr. Connor would be returning to the CTC and became concerned about whether her job was still available. She contacted Dr. Owers, who paged Jean Pitts, who then allegedly spoke to Carolyn Moore, Schum-pert’s Chief Operating Officer. | .According to Clark, Pitts contacted her on October 24, 2007, to say that the position was still open. Clark then notified her employers, Dr. Coleman and Dr. Dollar, that she would no longer be working at their clinic. The date coincided with the end of the 90-day term under the Collaborative Practice Agreement she had with them.

On October 29, 2007, Clark became a Schumpert employee and attended orientation. Included among the forms that new employees were required to read and sign was the “HR SERVICES HANDBOOK ACKNOWLEDGMENT STATEMENT,” which states in relevant part:

I understand that employment with CHRISTUS Schumpert Health System may be terminated by either myself or CSHS, with or. without cause, at any time. All Associates are employed for an indefinite term.

Clark signed the acknowledgment statement.

On October 31, 2007, Clark was presented with and signed the “CHRISTUS SCHUMPERT HEALTH SYSTEM RECRUITMENT INCENTIVE AGREEMENT” (hereafter the “RIA”), which states in relevant part:

THIS AGREEMENT is entered into between Christus Schumpert Health System (CSHS) and, Rebecca Clark, Nurse Practitioner (Appearer) ... The effective date of this agreement is 10/29/07. Whereas CSHS wishes to provide financial incentive to Appearer to become and remain an employee of CSHS and Appearer wishes to take advantage of this offer, they do hereby agree as follows:
1. Appearer agrees to accept full time employment beginning 10/29/07, with CSHS as a Nurse Practitioner for a period of not less than 24 months or 4,160 hours, whichever is achieved first, continuous employment. Should the Lassociate voluntarily terminate during this 12-month period, the full incentive amount will be deducted from the final paycheck. If the final paycheck(s) is not sufficient to cover the amount due, the Appearer will be required to pay the balance in full.
2. Appearer will receive a recruitment incentive in the amount of $2,500. This recruitment incentive is payable in a lump sum of $2,500 after successful completion of the 90 day probationary period which is 1/29/08.
3. The recruitment incentive will be taxed according to IRS guidelines.
4. I understand the above conditions and authorize a pre-determined amount to be deducted from my final paycheck(s) if I do not meet these conditions.
5. I agree to maintain the existence and terms of this recruitment agreement in confidence and not to disclose it.

Testimony from Clark and Jackie Whitaker, who was in Schumpert’s human resources department, established that Whitaker went over the RIA with Clark and explained that Clark had to sign the RIA to obtain the bonus and that Clark would have to repay the bonus if she left Schum-pert before two years. When asked if the issue of a two-year fixed term of employment ever came up during her conversation with Whitaker, Clark testified, “No. It was a different document.”

Clark worked at the CTC until March 3, 2008, when she was called to Jennifer Var-nadore’s office and told that her position had been eliminated due to budget issues.

Alleging that she had a two-year fixed term employment contract, Clark filed suit against Schumpert for breach of contract on April 29, 2008. | sAs an alternative cause of action, she claimed detrimental reliance based on alleged promises that Dr. Connor’s return would not affect her employment. Clark also sought payment of wages due at termination along with statutory penalties and attorney fees under La. R.S. 23:631 et seq.

After a bench trial, the trial court rendered a written ruling concluding that Clark failed to meet the burden of proving that there was a meeting of the minds on fixed term employment. The trial court found that Clark had at least 13 conversations with Schumpert personnel before accepting the position during which the subject of fixed term employment never came up. Moreover, Clark never mentioned fixed term employment when she heard that Dr. Connor was returning and asked whether she still had a job, when she learned that Schumpert was looking at the CTC’s budget, or when she learned from Varnadore that her position had been eliminated. The court found no credible evidence that Clark really thought she had a two-year fixed term contract in light of the fact that she never brought it up at any of these times. The trial court also found that neither the October 18, 2007, offer letter nor the RIA showed that the parties agreed to be bound for a fixed term. According to the trial court, a complete reading of these documents showed that “the time period of two years (24 months) is in connection and consistent with the obligation to repay the incentive bonus if an employee leaves before the term, rather than guaranteeing two year contract of employment.” Because there was no consent or meeting of the minds as to fixed term employment, the trial court found that Clark was an “at will” employee. The trial court denied Clark’s claims for breach of 1 fiContract and detrimental rebanee but awarded her $31,111.57 plus attorney fees for Schumpert’s failure to timely pay sums due at termination. Judgment was signed on January 22, 2010.

Clark now appeals the denial of her breach of contract claim. She argues that the trial court erred in failing to apply the principles of contract interpretation and in fading to find that the contract, specifically the RIA, established a two-year fixed term for employment.

DISCUSSION

The relationship between an employer and an employee is contractual. Employers and employees are free to negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. Chapman v. Ebeling, 41,710 (La.App.2d Cir.12/13/06), 945 So.2d 222; Fletcher v. Wendelta, Inc., 43,866 (La.App.2d Cir.1/14/09), 999 So.2d 1223, writ denied, 2009-0387 (La.4/13/09), 5 So.3d 164. The essential elements of an employment contract include (1) consent, (2) giving of services in the form of labor, and (3) a fixed price. Vining v. Bardwell, 482 So.2d 685 (La.App. 1st Cir.1985), writ denied, 487 So.2d 439 (La.1986).

When the parties are silent as to the term or duration of an employment contract, then the employment is presumed to be “at will.” Quebedeaux v. Dow Chemical Co., 2001-2297 (La.6/21/02), 820 So.2d 542; Fletcher, supra. Employment “at will” is explained in La. C.C. art. 2747:

A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for doing so. 17The servant is also free to depart without assigning any cause.

Employers may dismiss “at will” employees at any time and for any reason without incurring liability for wrongful discharge. Saacks v. Mohawk Carpet Corp., 2003-0386 (La.App. 4th Cir.8/20/03), 855 So.2d 359, writ denied, 2003-2632 (La.12/12/03), 860 So.2d 1158.

In contrast to “at will” employment, La. C.C. art. 2749 provides:

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

This article refers to fixed term employment where the parties agree to be bound for a set duration during which the employee is not free to depart without assigning cause and the employer is not free to dismiss the employee without assigning a reason. Chandler v. Kenyan, 38,084 (La.App.2d Cir.12/19/03), 862 So.2d 1182. Because employment is presumed to be “at will,” an employee who alleges a fixed term contract has the burden of proving that there was a meeting of the minds on the length of time of the employment. Id.

Consent to form a contract requires a meeting of the minds. Worley v. Chandler, 44,047 (La.App.2d Cir.3/4/09), 7 So.3d 38; Chapman, supra. The existence or nonexistence of a contract is a question of fact not to be disturbed unless clearly wrong. Worley, supra; Chapman, supra.

At issue is whether Clark and Schumpert had a meeting of the minds on her employment being for a fixed term of two years as alleged by Clark. Referring to the RIA, Clark asserts that this “form contract” plainly | Restablishes a two-year contract of employment and that any ambiguity or doubt should be interpreted against Schumpert without resort to parol evidence of the parties’ intent. Clark maintains that this is a matter of contract interpretation that is subject to a de novo review on appeal. However, Schumpert maintains that this matter presents a question of contract formation, which is an issue of fact subject to review for manifest error.

We will begin with examining the documents signed by Clark in connection with the offer of employment to determine whether they show that the parties consented to or intended a fixed term employment contract. This requires application of the principles of contract interpretation.

The interpretation of contracts, which is the determination of the common intent of the parties, is guided by the general rules set forth in La. C.C. arts. 2045-2057. Creamer Brother’s Inc. v. Hicks, 43,808 (La.App.2d Cir.12/3/08), 998 So.2d 846, writ denied, 2009-0315 (La.4/3/08), 6 So.3d 774. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Courts are bound to enforce a contract as written. Shepard v. Phycor of Ruston, Inc., 29,181 (La.App.2d Cir.5/7/97), 711 So.2d 288.

Though Clark’s brief focuses on language in the RIA in arguing that she had a two-year fixed term contract, she testified that the offer letter she received and signed on October 18, 2007, was the fixed term contract and that it was backed up by the RIA. The offer letter set forth the annual Rsalary, the additional call pay, as well as the availability of reimbursable moving expenses up to $2,500, and a “sign-on bonus of $2,500 which also requires a signed commitment to remain employed at CSHS for two years.” A reading of the offer letter as a whole shows that the reference to two years was in connection with the sign-on bonus. No term was attached to the offer of the employment. Nothing in the letter specifies or suggests that Schumpert offered guaranteed employment to Clark for a fixed duration of two years during which it could not terminate her without cause and Clark could not leave without cause.

After she began working at Schumpert, Clark signed the RIA on October 31, 2007. It states that Schumpert “wishes to provide financial incentive to Appearer to become and remain an employee.” The incentive is the $2,500 sign-on bonus referred to in the October 18, 2007, offer letter. Schumpert’s offer is the sign-on bonus, not guaranteed employment. The RIA is Clark’s signed commitment to remain at Schumpert for two years as required to qualify for the sign-on bonus. To get the sign-on bonus, Clark agreed “to accept full time employment beginning 10/29/07, with CSHS as a Nurse Practitioner for a period of not less than 24 months or 4,160 hours, whichever is achieved first, continuous employment.” In turn, Schumpert agreed to provide financial incentive for Clark to become and remain its employee by paying the sign-on bonus upon Clark’s completion of a 90-day probationary period. The RIA is not an offer by Schumpert of guaranteed or fixed term employment for two years. In fact, the RIA states that if Clark voluntarily terminates her employment within two years, she must repay the |inbonus. This recognition that Clark might voluntarily terminate her employment within the two-year term belies the assertion that the RIA is a fixed term contract of employment during which Clark is not free to leave and Schumpert is not free to dismiss her without assigning cause.

Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Therefore, the RIA language evidencing Clark’s acceptance of full time employment for a period of not less than 24 months must be interpreted in light of the other provisions of that contract. Doing so shows that the RIA is not an employment contract whereby the parties consented to the giving of services in the form of labor for a fixed price. Clark had already consented to accept the nurse practitioner position at the salary and additional on-call pay offered by Schumpert in the offer letter. Instead, the RIA pertains only to the sign-on bonus. The RIA is Schumpert’s offer of a sign-on bonus, not guaranteed employment for a fixed term. Clark’s declared intent to remain at Schumpert for two years so as to qualify for the sign-on bonus does not mean that Schumpert agreed to employ Clark for a fixed term of two years.

Clark argues that the RIA is a form contract drawn up by Schumpert and must be interpreted against it. La. C.C. art. 2056 provides that in case of doubt, a contract executed in a standard form provided by one party must be interpreted in favor of the other party. First, this is not a case where doubt exists. The contract language is clear, explicit, and unambiguous. In return for Clark’s signed commitment to remain a Schumpert employee for lutwo years, Schumpert agreed to pay a sign-on bonus of $2,500. Clark also agreed to pay back the bonus if she voluntarily left before the two-year period. Neither party committed to a fixed term contract of two years whereby Schumpert could not fire Clark without cause nor Clark could leave without cause.

Second, the RIA is not the type of form contract, typically a contract of adhesion, to which La. C.C. art. 2056 would apply. As explained in Shepard, supra, citing Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865 (La.1976), an adhesion contract is typically a standard small print form prepared by a party with superior bargaining power for adherence or rejection by a weaker party. Such contracts raise the question of whether the weaker party actually agreed to its terms. Though the RIA is a form contract used by Schumpert, it is not an adhesion contract. Clark is a highly educated person who actively negotiated her employment with Schumpert. In fact, nothing in the record indicates that Clark was required to sign the RIA unless she chose to accept the sign-on bonus. Had Clark not accepted the sign-on bonus, there would be no basis for her argument that she had a fixed term contract. As explained, the reference to the two-year time period in the offer letter and the RIA is only in connection with the sign-on bonus offer and not with the offer of the nurse practitioner position.

On her first day as a Schumpert employee on October 29, 2007, Clark signed Schumpert’s “HR Sendees Handbook Acknowledgment Statement” indicating that she read, understood, and agreed to Schumpert’s guidelines, policies and procedures. The Acknowledgment Statement explained that |12either Clark or Schum-pert could terminate employment, with or without cause, at any time and that employment is for an indefinite term. Thus, the Acknowledgment Statement made clear that Clark was an “at will” employee. Neither the offer letter that preceded Clark’s signing of the Acknowledgment Statement nor the RIA signed afterward provides fixed term employment contrary to Schumpert’s “at will” employment policy.

In Chandler, supra, an offer of employment signed by the chief operating officer of a grocery store chain set forth the salary levels for a two-year period. After his termination, Chandler filed suit seeking the salary and bonuses for the remainder of the two-year period covered by his employment contract, which he claimed was a fixed term contract. However, Chandler had also signed a statement in an orientation kit which expressly stated that his employment was “at will” and could be terminated at any time. The trial court concluded there was no fixed term contract and this court affirmed that determination. Construing the employment offer and the signed orientation statement together, this court found that Chandler was an “at will” employee. The offer of employment did not specify that it was an employment contract for a fixed term of two years but merely set forth what Chandler would be paid if he remained employed for two years.

Similarly in this case, neither the offer letter nor the RIA specified that the parties agreed to a fixed term of employment for two years. Instead, as found by the trial court, the two-year term referenced in the offer letter and the RIA was in connection with the sign-on bonus and Clark’s obligation to pay back the bonus if she left before two years. The | ^expression of Clark’s commitment to Schumpert for purposes of obtaining the $2,500 sign-on bonus does not equate to a meeting of the minds by the parties on a fixed term employment contract for two years. Our de novo review of the offer letter and RIA pursuant to the principles of contract interpretation does not convince us that either is a fixed term employment contract.

Additionally, the record supports the trial court’s factual finding that the parties did not have a “meeting of the minds” on fixed term employment. As found by the trial court, the record established that Clark had experience with fixed term contracts and was working under such a contract prior to her employment with Schumpert. Though Clark testified that she wanted long-term employment with Schumpert, the issue of fixed, term employment was not a part of her negotiations with Schumpert. In numerous conversations with Schumpert personnel prior to her acceptance of the position, when she learned that Dr. Connor would be returning, and when told that her position was eliminated, Clark did not mention that she wanted, had, or believed she had a fixed term employment contract. Clark’s husband, Keith Clark, testified that he understood from his wife that she was obligated for 24 months to receive the job perks, meaning the sign-on bonus. He said they both assumed the obligation was equal. Clearly, an assumption is not a meeting of the minds.

The testimony of Schumpert employees was that Schumpert has an “at will” employment policy. Matthew Berg, who emailed the offer letter to Clark and who was no longer employed at Schumpert at the time of trial due 114to his job being cut around the same time as Clark’s, testified that neither the offer letter nor the RIA was a two-year employment contract. Berg had also signed an RIA and been given the sign-on bonus. He understood the RIA to mean the bonus was his to keep if he stayed at Schumpert for two years and that he would have to repay the bonus if he quit during that time. He testified that the RIA was not an employment contract. Varnadore and another employee, Nicole Williams, likewise testified that they signed offer letters similar to Clark’s and the RIA when hired. They testified that neither document guaranteed employment for a set duration. Also, Jackie Whitaker testified that she went over the RIA with Clark and explained to her that the two-year commitment was for the sign-on bonus and that the bonus would have to be paid back if Clark left within the two-year period.

We find that Clark did not meet the burden of proving that she had a fixed term employment contract with Schum-pert. The reasonable and commonsense reading of the offer letter and the RIA shows that the two year period related to the sign-on bonus. The trial court’s finding that the parties did not have meeting of the minds on fixed term employment is not clearly wrong.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court. Costs of appeal are assessed against the plaintiff, Rebecca Clark.

AFFIRMED.

      . The reference to a 'T2-month period” was established at trial to be a typographical error. The RIA should be read as referring to a 24-month period.