author: TERRI F. LOVE, Judge. ARMSTRONG, C.J., MURRAY, J.,

text:
    Cedric Marin SMITH v. Carmen Y. PILLOW-SMITH.
    No. 2010-CA-0167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.

      Juana M. Lombard, Lombard Law Firm, New Orleans, LA, for Plaintiff/Ap-pellee.

      Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Morris Lee & Bayle, L.L.C., New Orleans, LA, for Defen-dantyAppellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

| ¶ Carmen Pillow-Smith appeals the judgment of the trial court denying her request to hold Cedric Smith in contempt for failure to pay child support and failure to return the minor children. Ms. Pillow-Smith further assigns error to the trial court for denying her request for attorney’s fees, and for curtailing the trial testimony of Mr. Smith at the trial court’s discretion. We find no error in the findings of the trial court except for the issue of attorney’s fees and costs. Therefore, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL BACKGROUND

In 2003, pursuant to a Consent Judgment between Carmen Pillow-Smith and Cedric Smith, Mr. Smith was ordered to pay $1,982.00 in child support and other monthly expenses. The parties were awarded joint physical custody of the minor children with Ms. Pillow-Smith being designated as the primary domiciliary pai'-ent. A Judgment of Divorce was entered April 13, 2004.

Before the divorce was finalized in 2004, Ms. Pillow-Smith filed a contempt action alleging Mr. Smith’s failure to pay child support pursuant to the Consent Judgment, which resulted in a 2005 Judgment ordering Mr. Smith to pay a base |2child support obligation of $2,550 per month and an additional $500 per month toward the arrearages owed for past-due child support. In 2006, Ms. Pillow-Smith filed a contempt action due to Mr. Smith’s failure to return the minor children at the end of his summer visitation. The trial court found Mr. Smith in contempt and ordered him to post a bond in the amount of $3,950.00 pursuant to La. R.S. 9:342, to assure compliance with future visitation orders.

In 2009, Ms. Pillow-Smith filed a Rule for Contempt alleging Mr. Smith’s failure to pay court ordered child support, arrear-ages, tuition, and health insurance costs. Prior to the hearing on Ms. Pillow-Smith’s Rule for Contempt, the parties made several stipulations, including: that the child support obligation shall be $2,050.00 per month; that the balance of Mr. Smith’s arrearage for failure to pay child support totaled $27,603.65; that Mr. Smith shall pay Ms. Pillow-Smith the sum of $2,500, representing damages incurred by her for his failure to pay the minor children’s school tuition in 2004; and, that Ms. Pillow-Smith will carry health insurance for the minor children.

The parties further stipulated that the following issues were deemed moot: Mr. Smith’s motion to modify a July 2005 judgment; Mr. Smith’s motion to order Ms. Pillow-Smith to attend custody evaluations; Mr. Smith’s rule for contempt for Ms. Pillow-Smith’s failure to complete the custody evaluation; Mr. Smith’s motion as to why Cydney Smith (“Cydney”) was not enrolled in school; and Mr. Smith’s request for attorney’s fees and court costs regarding Cydney’s school enrollment.

On October 8, 2009, the matter proceeded to trial on the following issues: 1) contempt for Mr. Smith’s failure to pay child support; 2) contempt for Mr. Smith’s failure to return Cydney following her summer visitation in August 2009; 3) Ms. Pillow-Smith’s request to forfeit the existing bond; and 4) Ms. Pillow-Smith’s ^request for Mr. Smith to post a new bond in the amount of $10,000.

The trial court ruled as follows: 1) Mr. Smith’s failure to pay child support did not constitute contempt; 2) Mr. Smith’s failure to return Cydney following her summer visitation in August 2009, did not constitute contempt; 3) Ms. Pillow-Smith’s request to forfeit the existing bond was denied; and 4) Ms. Pillow-Smith’s request for Mr. Smith to post a new bond in the amount of $10,000 was denied. All of these rulings were appealed by Ms. Pillow-Smith.

CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT

Ms. Pillow-Smith alleged in her Rule for Contempt that Mr. Smith failed to consistently pay child support and sought to hold Mr. Smith in contempt for this alleged failure. The trial court noted that it was undisputed that Mr. Smith had failed to consistently pay child support, but found that Mr. Smith was not in constructive contempt for his failure to pay the full amount of child support ordered. Ms. Pillow-Smith alleges that the trial court erred in failing to find Mr. Smith in contempt.

Constructive contempt of court includes “wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224. A trial court is vested with “great discretion to determine whether a party should be held in contempt for willfully disobeying” a child support order. Fink v. Bryant, 01-987, p. 7 (La.11/28/01), 801 So.2d 346, 350. The trial court’s “decision will only be reversed when the appellate court can discern an abuse of that discretion.” Stephens v. Stephens, 30,498, p. 5 (La.App. 2 Cir. 5/13/98), 714 So.2d 115, 118.

In the trial court’s reasons for judgment, it noted that the testimony of Mr. | ¿Smith demonstrated that he made direct contributions towards the expenses of the minor children despite his failure to consistently meet his child support obligation. The trial judge reasoned:

He maintained health insurance for the children, car insurance for both Ms. Pillow-Smith, and their oldest son, Cedric, Jr., and he paid for all expenses regarding the children’s airfare, school tuition, lunch, and uniforms. His testimony further revealed that the parties were also going through bankruptcy proceedings during this time. As a result, the Court finds that Mr. Smith paid various expenses for his family well beyond the basic child support obligation. The Court is taking into consideration that so much was paid for other expenses, and finds that while Mr. Smith did not pay the amount specifically ordered, his failure to pay was not willful.

Accordingly, the trial court found that Mr. Smith did not commit willful contempt of court.

“A proceeding for contempt for refusing to obey the court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule.” Howard v. Oden, 44,191, p. 12 (La.App. 2 Cir. 2/25/09), 5 So.3d 989, 997. Rather, “[t]he object of a contempt proceeding” is the vindication of the “dignity of the court.” Id. Moreover, in order to find a party' guilty of constructive contempt, the trial court must find “that he or she violated the order of the court intentionally, knowingly, and purposely, without justification.” In re S.L.G., 40,858, p. 3 (La.App. 2 Cir. 1/25/06), 920 So.2d 363, 366.

We do not find that the record establishes that Mr. Smith violated the child support order intentionally, knowingly, and purposely, without justification. Although Mr. Smith was conscious of his duty to obey the court’s order, the record does not reveal that he was willful in failing to make child support payments in purposeful violation of the court’s order. Mr. Smith testified that there were times 15when he paid less than the court ordered child support, but at other times he paid more than the court ordered child support in addition to making direct contributions to the support and maintenance of the minor children by purchasing items such as clothes, haircuts, school books, and school lunches.

Our review of the record indicates that the trial court properly exercised its discretion as to the contempt issue for Mr. Smith’s failure to pay child support. Accordingly, we will not disturb the ruling of the trial court on this issue.

CONTEMPT FOR RETURN OF CHILD AND COMPLIANCE BONDS

Ms. Pillow-Smith’s 2009 Rule for Contempt sought to hold Mr. Smith in contempt for his failure to return the minor child Cydney at the end of her summer visitation. Further, Ms. Pillow-Smith sought an order from the trial court requiring forfeiture of Mr. Smith’s 2006 bond as well as posting by Mr. Smith of an additional bond in the amount of $10,000.00 to assure future compliance with visitation orders. The trial court did not make a finding of contempt and denied both bond requests. Ms. Pillow-Smith assigns error to the trial court’s decision not to hold Mr. Smith in contempt and its denial of her two bond requests.

If good cause is shown, “a court may, on its own motion or upon the motion of any party, require the posting of a bond or other security by a party to insure compliance with a child visitation order and to indemnify the other party for the payment of any costs incurred.” La. R.S. 9:342. Where the record reflects that a non-domiciliary parent refuses to comply with the visitation schedule and orders of the court, the requirement of a bond under La. R.S. 9:342 is proper. See Hodges v. Hodges, 02-0489, p. 8 (La.App. 3 Cir. 10/2/02), 827 So.2d 1271, 1276. “‘[T]he determinations of a trial court judge in child custody matters is entitled to great weight.’ ” Leard v. Schenker, 09-1438, p. 3 (La. App. 4 Cir. 3/24/10), 35 So.3d 1152, 1154, quoting Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La.1986).

In the trial court’s reasons for judgment, the trial judge found that “Mr. Smith did everything he could to try to get Cydney on the plane back to Nashville,” and that Mr. Smith was not in contempt for failing to return Cydney in violation of the court’s order. Accordingly, the trial court denied Ms. Pillow-Smith’s request to forfeit the existing bond as well as her request for Mr. Smith to post a new bond.

The record adequately supports the trial court’s finding that Mr. Smith was not in contempt for failing to timely return Cyd-ney to Ms. Pillow-Smith’s custody. Over the summer of 2009, Mr. Smith filed to reset a hearing on his request for a modification of custody. In furtherance of that request, Mr. Smith obtained an ex parte order from the trial court allowing him to retain physical custody of Cydney pending a final ruling on his request for modification of custody. Ms. Pillow-Smith appealed that order and same was ultimately vacated by this Court, which directed that Cydney be immediately returned to the custody of Ms. Pillow-Smith.

Mr. Smith thereafter made three trips to the airport on three separate occasions in an effort to get Cydney to board a plane to Nashville. Mr. Smith’s testimony at trial demonstrated his efforts to return Cydney to Ms. Pillow-Smith’s custody despite Cydney’s adamant Refusal to return to Nashville: on the first occasion Mr. Smith enlisted the assistance of the Transportation Security Administration and the Jefferson Parish Police, on the second attempt Cydney was so hysterical and distraught that the airline refused to allow her to board the plane, and finally Mr. Smith sent Cydney to the airport accompanied by his assistant, at which time she boarded a plane to Nashville and returned to the physical custody of Ms. Pillow-Smith.

1 yBecause the trial court found that Mr. Smith was not in contempt, it denied Ms. Pillow-Smith’s request to forfeit Mr. Smith’s 2006 bond. The trial court accordingly reasoned that there was no need for Mr. Smith to post a new bond since the existing bond was still in effect. It was within the trial judge’s discretion to find that Mr. Smith did not act contemptuously in regard to his efforts to return Cydney, and the record reasonably supports such a finding. Therefore, we will not disturb the trial court’s findings in this regard.

ATTORNEY’S FEES AND COURT COSTS

Ms. Pillow-Smith contends that the trial court erred by not awarding her attorney’s fees and court costs due to Mr. Smith’s failure to pay child support and for his alleged failure to timely return Cydney to her custody. In support of these assignments of error, Ms. Pillow-Smith cites to La. R.S. 9:375(A) and La. R.S. 13:4611(l)(e)(iv) (allowing a court to punish a parent who has violated a visitation order by requiring that parent to pay all court costs and reasonable attorney fees of the other party).

La. R.S. 13:4611(l)(e)(iv) provides:

(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(e) In addition to or in lieu of the above penalties, when a parent has violated a visitation order, the court may order any or all of the following:
(iv) Require the parent violating the order to pay all court costs and reasonable attorney fees of the other party.

Because La. R.S. 13:4611(l)(e)(iv) is premised on a finding of contempt, which is not present in this case, we must address whether La. 9:375(A) entitled |sMs. Pillow-Smith to attorney’s fees and costs. La. R.S. 9:375(A) provides:

A. When the court renders judgment in an action to make executory past-due payments under a spousal or child support award, or to make executory past-due installments under an award for contributions made by a spouse to the other spouse’s education or training, it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.

The record reflects that the trial court found that Mr. Smith’s violations were not wilful. However, this finding does not equate with a finding a good cause preventing the award of attorney’s fees and costs. Therefore, we remand for the trial court to determine whether good cause was established to negate an award of attorney’s fees and costs to Ms. Pillow-Smith.

TESTIMONY

Ms. Pillow-Smith maintains that the trial judge erred in stopping the cross-examination of Mr. Smith after he testified on his own behalf. “When a party complains on appeal of improperly excluded evidence, that party must proffer that evidence.” Briscoe v. Briscoe, 25,955, p. 6 (La.App. 2 Cir. 8/17/94), 641 So.2d 999, 1004. “Failure to do so results in a waiver of the right to complain of the exclusion on appeal.” Id.

The record reveals that counsel for Ms. Pillow-Smith did not make a formal objection when the trial judge determined that she had heard enough of Mr. Smith’s testimony. Nor did counsel for Ms. Pillow-Smith proffer what evidence her continued examination of Mr. Smith would have elicited. Therefore, this assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed with the exception of the finding on attorney’s fees and costs. Accordingly, we remand for ^proceedings consistent with this opinion regarding the good cause requirement to justify not awarding attorney’s fees and costs.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

ARMSTRONG, C.J., concurs in part and dissents in part.

MURRAY, J., concurs in part and dissents in part with reasons.

ARMSTRONG, C.J.,

concurs in part and dissents in part.

I,Upon my review of the record in its entirety, I would affirm the judgment of the trial court.

MURRAY, J.,

concurs in part and dissents in part with reasons.

Ill write separately to address the majority’s decision to remand the matter for the trial court to determine whether good cause was established to justify the trial court’s failure to award attorney’s fees to Ms. Pillow-Smith pursuant to La. R.S. 9:375(A). I do not believe a remand is necessary because we can infer from the evidence in the record and from the trial court’s reasons for judgment that good cause was established to the satisfaction of the trial court

The judgment reflects that Mr. Smith stipulated to the amount of past due child support prior to the hearing. The hearing proceeded on four issues concerning whether Mr. Smith should be held in contempt and whether he should be made to forfeit his bond and/or to post a new bond. Mr. Smith prevailed on all four issues. The trial court declined to hold him in contempt for his failure to consistently pay child support because he had paid expenses for his children “well beyond the basic child support obligation,” despite the fact that the parties were going through bankruptcy proceedings at the same time; therefore, the trial court found that his failure to pay was not willful. Similarly, the trial court declined to hold Mr. Smith in contempt for failing to return Cydney timely after her summer |2visitation because the court found that Mr. Smith “did everything he could to try to get Cydney on the plane back to Nashville.”

Considering the circumstances as painstakingly detailed by the trial court in its written reasons, I believe a determination of good cause to justify the court’s failure to award attorney’s fees is implicit in the court’s judgment, and I find no abuse of discretion in the trial court’s failure to make such an award. In my view, remanding the matter for the trial court to make an explicit determination on this issue is an unnecessary waste of judicial resources.

Accordingly, I dissent from the majority’s remanding of this matter for a determination as to an award of attorney’s fees and costs; in all other respects, I concur in the majority’s opinion.

      . The record does not contain a copy of Ms. Pillow-Smith’s 2009 Rule for Contempt. Only the Sheriff's Return and the Affidavit of service filed by Ms. Pillow-Smith’s counsel appear in the record. Thus, the content of Ms. Pillow-Smith's Rule for Contempt has been inferred by other pleadings and the trial transcript.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rosetta JACKSON, et al. v. Robert A. MYER, et al.
    No. 2010 CE 2108.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 19, 2010.
    Ronald R. Johnson Baton Rouge, LA, for Plaintiffs/Appellants, Rosetta Jackson and Mary Lacour.
    Victor J. Woods, Jr. Baton Rouge, LA, for Defendant/Appellee, Robert A. Myer.
    James C. Dewey New Roads, LA, for DefendanVAppellee, Lanell Swindler Landry, Clerk of Court for Pointe Coupee Parish.
    William E. Crawford, Jr. Baton Rouge, LA, for Defendant/Appellee, Jay Dard-enne, Secretary of State of the State of Louisiana.
    William P. Bryan, III, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee, Shanika Olinde, Registrar of Voters for Pointe Coupee Parish.

      Thomas A. Nelson, New Roads, LA, pro se.
    Gary Fabre, New Roads, LA, pro se.
    Walter Warr, Jr., New Roads, LA, pro se.
    Charlotte Fabre, New Roads, LA, pro se.
    Jason Collins, New Roads, LA, pro se.
    Before CARTER, C.J.; GUIDRY, PETTIGREW, GAIDRY and WELCH, JJ.
   PER CURIAM.

| sThis suit is brought under the Louisiana Election Code, and pursuant to La. Rev.Stat. Ann. § 18:1409, we give this appeal expedited consideration.

FACTS AND PROCEDURAL HISTORY

The primary election for the mayor of New Roads was held on October 2, 2010. In the November 2, 2010, run-off election, Robert A. Myer was elected mayor of New Roads. On November 10, 2010, the plaintiffs filed the present suit. In response, several of the named defendants filed peremptory exceptions raising the objections of res judicata, peremption, no right of action, and no cause of action. See La. Code Civ. Proc. Ann. art. 927. On November 15, 2010, the trial court signed a judgment sustaining the exceptions objecting to peremption and no cause of action and dismissing the plaintiffs’ suit. The plaintiffs appeal, and for the reasons that follow, we affirm the trial court judgment.

DISCUSSION

In evaluating the trial court judgment, the material facts are undisputed, and the issues before this court are purely legal. When reviewing questions of law, the appellate court simply determines whether the trial court was legally correct or legally incorrect. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1 Cir. 9/27/96); 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96); 692 So.2d 375.

Despite the plaintiffs’ characterization of this suit as one contesting an election, we find no error in the trial court’s determination that the | allegations of the plaintiffs’ petition are in actuality an objection to the candidacy of Myer. The petition clearly challenges Myer’s qualifications as a candidate for mayor of New Roads, and the plaintiffs specifically seek relief under La. Rev.Stat. Ann. § 18:494, including the disqualification of Myer.

A party seeking relief under the Election Code must bring himself within the strict provisions of the law governing election suits. Forum for Equality PAC v. City of New Orleans, 04-1842 (La.App. 1 Cir. 8/23/04); 887 So.2d 45, 47, writ denied, 04-2185 (La.9/2/04); 886 So.2d 1084. The legislature in drafting and enacting the Election Code sought to expedite contests involving candidacy. See Dale v. Louisiana Secretary of State, 07-2020 (La.App. 1 Cir. 10/11/07); 971 So.2d 1136, 1145. The short time delays are in the interest of the electorate, not the private litigants. City of Donaldsonville v. State, 99-1582 (La.App. 1 Cir. 6/23/00); 764 So.2d 339, 344, writ denied, 00-2257 (La.10/27/00); 772 So.2d 654.

“An action objecting to candidacy shall be commenced in a court of competent jurisdiction within seven days after the close of qualifications for candidates in the primary election.” La.Rev.Stat. Ann. § 18:493. After the expiration of the time period set forth, “no action shall be commenced objecting to candidacy based on the grounds for objection to candidacy | .^contained in R.S. 18:492.” La.Rev.Stat. Ann. § 18:493. Further, La.Rev.Stat. Ann. § 18:1405(A) provides:

An action objecting to candidacy shall be instituted not later than 4:30 p.m. of the seventh day after the close of qualifications for candidates in the primary or first party primary election. After the expiration of the time period set forth in this Section, no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.

The period set forth in La.Rev. Stat. Ann. § 18:1405(A) is peremptive. See Evans v. West, 357 So.2d 916, 918 (La.App. 2d Cir.1978). Peremption is a period of time fixed by law for the existence of a right, and unless that right is timely exercised, the right is extinguished upon the expiration of the peremptive period. La. Civ.Code Ann. art. 3458. With peremptive statutes, after the limit of time expires, the cause of action no longer exists; it is lost. Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900); Evans, 357 So.2d at 918. Qualifying for the October 2, 2010, primary election for mayor of New Roads ended on July 9, 2010. The plaintiffs’ objection to candidacy, brought after the election, is clearly outside the time delays set forth in La. Rev.Stat. Ann. §§ 18:493 and 18:1405(A), and the plaintiffs’ cause of action is lost. Peremption may not be renounced, interrupted, or suspended. La. Civ.Code Ann. art. 3461.

Finding no legal error in the trial court’s judgment, we affirm. All costs associated with this appeal are assessed against the plaintiffs/appellants, Rosetta Jackson and Mary Lacour.

AFFIRMED.

      . Moreover, the plaintiffs allege they are registered voters and qualified electors in Pointe Coupee Parish; however, they do not allege, nor is there anything in the record to indicate, any of the plaintiffs were candidates in the election for mayor of New Roads. Although a "qualified elector” may bring an action objecting to the candidacy for an office in which the plaintiff is qualified to vote, only a "candidate” can bring an action contesting an election. La.Rev.Stat. Ann. § 18:1401(A)-(B). Accordingly, the plaintiffs lack standing to contest the election results. See La.Code Civ. Proc. Ann. art. 927.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Curt E. JOHNSON.
    No. 10-196.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 24, 2010.

      Jeffery J. Trosclair, Assistant District Attorney, Franklin, LA, for the State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant Curt E. Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

Curt E. Johnson (Defendant) was convicted by a jury of six persons of driving while intoxicated, fourth offense, a violation of La.R.S. 14:98. Defendant was sentenced to serve twenty years at hard labor, without benefit of probation, parole, or suspension of sentence. He appeals his conviction and sentence, alleging his conviction is null because he was tried by an insufficient number of jurors and, alternatively, if his conviction is valid, his sentence is excessive. In accordance with the provisions of La.Code Crim. P. art. 920, we review all criminal appeals for errors patent on the record. We find there is an error patent on this record which requires reversal of Defendant’s conviction. For reasons stated below, we reverse Defendant’s conviction, vacate his sentence, and remand the case for a new trial before a jury of twelve persons.

LEGAL ANALYSIS

Defendant was charged by bill of information with driving while intoxicated, fourth offense. He previously pled guilty to other third and fourth offense DWU charges in 2004. On the prior conviction of third offense DWI, Defendant was sentenced to fifteen years at hard labor, with all but thirty days suspended, and placed on probation for three years. Defendant was also sentenced for the previous fourth offense DWU to fifteen years at hard labor, with all but sixty days suspended, and placed on probation for five years. These sentences were to be served consecutively. Defendant was on probation for these offenses when he was arrested and charged with the current fourth offense DWI. As part of each of the previous sentences, Defendant was required to undergo an evaluation to determine the nature and extent of his substance abuse disorder. His sentences in 2004 both required four to six | aweeks of inpatient treatment for his substance abuse disorder and home incarceration for the suspended portions of his sentences. The record contains the transcript of his prior guilty pleas and sentencing establishing these facts.

Under the provisions of La.R.S. 14:98(E)(4)(a), Defendant was subject to a mandatory prison sentence at hard labor for a minimum of ten years and a maximum of thirty years for the current offense. The statute provides:

If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

La.R.S. 14:98(E)(4)(a) (emphasis added)

The Louisiana Constitution Article I, Section 17 (emphasis added), provides:

[A] case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.

The State admits in brief the law requires this Defendant be tried before a jury of twelve persons and it was error to try him before a jury of only six persons. In State v. Nedds, 364 So.2d 588 (La.1978), the Louisiana State Supreme Court held that a jury verdict rendered by either more or less than the correct number of jurors is null. Although the Louisiana Supreme Court partially abrogated the decision in Nedds in its more recent decision State v. Jones, 05-226 (La.2/22/06), 922 So.2d 508, upholding a conviction by a unanimous verdict of twelve in a case requiring only six jurors, the law has not changed regarding the impropriety of trying a criminal defendant before a jury of six when a jury of twelve is required. Because Defendant, charged with fourth offense DWI, was previously required to participate in substance abuse treatment and was placed on home incarceration the law mandates he be tried |3before a jury of twelve persons. As Defendant was tried before a jury of only six persons, contrary to the provisions of our State Constitution requiring trial by twelve jurors for his offense, his conviction is null and is hereby set aside; his sentence is vacated; and the matter is remanded for a new trial. Defendant’s assignment of error asserting his sentence is excessive is moot.

CONVICTION VACATED, REMANDED FOR NEW TRIAL.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana in the Interest of T.H.
    No. 2010-CA-0962.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      Joshua Perry, New Orleans, LA, for Appellant, T.H.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|;T.H. appeals his adjudication of delinquency for second degree kidnapping, a violation of La. R.S. 14:44.1 B(l), for which he was committed to secure care for a period not to exceed two years. In this appeal, T.H. argues that the prosecution misrepresented a response to the Bill of Particulars that resulted in prejudice to his defense. T.H. also argues that there was insufficient evidence to support his delinquency adjudication for second degree kidnapping beyond a reasonable doubt. Because we agree with the juvenile judge that the prosecution supplemented its answer to the Bill of Particulars the week prior to the adjudication hearing, and because we find that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that T.H. committed the offense, we affirm the adjudication as well as the disposition. We explain our decision below.

I

Sometime after midnight [ A.Y. ], a young tourist in New Orleans, was headed toward her Mid-City hostel. Walking on the neutral ground of Canal Street, she crossed paths with T.H., who called out to her. Ignoring him, Ms. ^Yencha continued on. The next moment, T.H. had grabbed her from behind, and she began to struggle and scream. To stop her screaming, T.H. placed one hand over her mouth. T.H. kept his other arm across her throat, lifted her off her feet, and carried and dragged her across Canal Street and then some distance down North Rocheblave Street. The next thing Ms. Yencha knew, T.H. was running away. She sustained an injury to the back of her head in the struggle.

This attack was witnessed by Detective Harry Stovall, who was driving down Canal Street at the time. Detective Stovall, who was off-dnty on that early morning, observed T.H. approach Ms. Yencha from behind, lift her off her feet, and carry her away as she struggled against him. Detective Stovall made a U-turn and followed T.H. and Ms. Yencha to North Rocheblave Street, where T.H. had by that time thrown Ms. Yencha to the ground. He was punching and choking her. When Detective Stovall pulled his vehicle to the area where T.H. was attacking Ms. Yen-cha, T.H. jumped up and ran back toward Canal Street. Detective Stovall initially pursued T.H. on foot and called for assistance.

T.H. was soon discovered hiding behind a large bush or tree near the 100-block of South Rocheblave Street by Officer Isiah Shannon and his partners. Once T.H. had been apprehended, both Detective Stovall and [ A.Y. ] identified him near the scene as the perpetrator.

II

In order to adequately review T.H.’s allegation that his defense has been prejudiced by a discovery violation, we look more closely at the procedural history of this case. After his arrest on November 28, 2009, T.H. was charged by ^^delinquency petition on December 8, 2009, with one count of second degree kidnapping. On December 10, 2009, a Motion for Pre-Trial Discovery and Bill of Particulars was filed by T.H.’s prior trial counsel, requesting information regarding “Identifications of Youth and Others,” particularly the names and addresses of “all witnesses who have made an out-of-court identification.” On December 30, 2009, the prosecution responded to the motion, stating in part that, “[a]t this time, the state is not aware of any identifications of the youth or others.” The police report, which contains information of out-of-court identifications of T.H., however, had also been given to defense “counsel of record” by this date.

On January 20, 2010, T.H.’s present counsel enrolled as his trial counsel. On February 24, 2010, the prosecution amended its discovery answer with respect to out-of-court identifications, instructing the defense to “[pjlease see police report regarding any identifications made of youth and others.”

At the adjudication hearing on March 2, 2010, defense counsel gave an opening statement in which he related that reasonable doubt exists because there were no out-of-court identifications of T.H. During the hearing he continued to object to the introduction of any testimony of any out-of-court identifications made on the morning of the attack. Arguing surprise, defense counsel denied ever being served with the prosecution’s supplemental answer to the bill of particulars.

T.H. argues that the prosecution’s failure to reference the police report in its first answer to the bill of particulars, coupled with his own counsel’s failure to receive the supplemental answer, constitutes a discovery violation that prejudiced his defense. “The trial court’s discretion in rulings related to discovery and the dynamics of a trial is considerable.” State v. Taylor, 98-2243, p. 5 (La.App. 4 Cir. 1/26/00), 759 So.2d 112, 115. Reversal of the trial court is warranted Ronly when there has been an abuse of discretion and resulting prejudice suffered by the defendant. Id. at 114.

Here, the juvenile judge made a factual finding that the supplemental answer had been filed by the prosecution with someone from Juvenile Regional Services, the organization providing counsel to T.H., on February 24, 2010, which was the week prior to the adjudication hearing. Citing ongoing problems with JRS procedure, the juvenile judge noted that once filings were given to someone from that office, it is that person’s responsibility to ensure that appropriate counsel receives it. We see no reason for finding that the juvenile judge abused his discretion in finding that the prosecution’s supplemental answer was served, the week prior to the adjudication hearing, on someone with authority to receive it, from the JRS office. Accordingly, there has been no “misrepresentation” by the prosecution that would require reversal. Cf. State v. Allen, 94-2262 (La.1995), 663 So.2d 686.

Additionally, we note that the information sought by T.H. was contained in the police report that was turned over to defense counsel on December 30, 2009. The defense may have learned of the two identifications from the police report, which has not been included in the record but which the defense admits contains this information. The defense may have also learned of Ms. Yencha’s identification of T.H. during a phone call made to her by a defense investigator.

T.H. nonetheless asserts that this was an error by the juvenile judge and that his defense was prejudiced as a result. He suggests that the prosecution’s introduction of eyewitness identification evidence was a “surprise.” We are not | ^persuaded by the claim of surprise. First, as we noted above, the out-of-court identifications were actually recorded in the police report and thus actually known (or surely should have been known) to T.H.’s counsel well before the adjudication hearing. Second, there was no effort to preserve for our review any proffered evidence of surprise, such as T.H.’s investigator’s having been furnished with misleading or contradictory information concerning the out-of-court identifications in his pretrial telephone interview with Ms. Yencha. And third, counsel for T.H., upon being “surprised”, did not seek a recess of the hearing to prepare for this turn of events. La.C.Cr.P. art. 708 (applicable through La. Ch.C. art. 803). The only remedy sought was the exclusion of the relevant and probative evidence of the out-of-court identifications, see La. C.E. arts. 401 et seq., without the burden of showing that the identifications were either unfairly suggestive or unreliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Having determined that there is no basis for finding error in the juvenile judge’s determination that the prosecution timely supplemented its answer to T.H.’s Bill of Particulars, we find that there was no “misrepresentation” by the prosecution that would warrant reversal in this case.

Ill

We now turn to T.H.’s claim that the evidence at the adjudication hearing was insufficient to adjudicate him delinquent for second degree kidnapping. We first note that the prosecution must prove all of the essential elements of La. R.S. 14:44.1 beyond a reasonable doubt in order to adjudicate T.H. delinquent. See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also La. Ch.C. art. 883. We also note that the scope of our review in juvenile delinquency matters extends to both the law and the facts. See La. Const, art. V, § 10(B); State ex rel. Batiste, 367 So.2d 784, 788 (La.1979). Because T.H. ai'gues that the evidence is insufficient to support a delinquency adjudication beyond a reasonable doubt, we apply the manifestly erroneous or clearly wrong standard to test the sufficiency of the evidence. See State in the Interest of D.R., 10-0405, p. 3 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 929.

T.H. argues that the prosecution failed to present sufficient evidence that he committed second degree kidnapping pursuant to La. R.S. 14:44.1, which states:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

T.H. specifically asserts that the prosecution failed to establish section B(l) of the statute, which requires “[t]he forcible seizing and carrying of any person from one place to another.” For the following reasons, we find that there was sufficient evidence that T.H. carried Ms. Yencha from one place to another.

|7At the adjudication hearing, two witnesses testified that T.H. grabbed Ms. Yencha and carried and dragged her to another street. Ms. Yencha testified that she was “grabbed from behind and carried off, dragged off down a side street.” Additionally, Detective Stovall testified:

I had the occasion to be traveling down Canal Street, driving down Canal Street when I saw the victim walking along Canal Street and the defendant walking up behind her. As I continued my driving and my approach became closer to the victim and the defendant, I saw the defendant grab the victim from behind, lift her off her feet. I saw that she was violently struggling with the defendant trying to free herself from his grab, but he proceeded to carry her away ...
... Like I said, I saw him carrying her away. When I saw that, I made a U-turn on Canal Street to come back and investigate my observation. By the time I made the U-turn to return to the defendant and the victim he had then carried her from Canal Street onto Ro-cheblave. I then turned onto Roehe-blave Street and I saw the defendant and the female as they were about— entering the rear lot of a business that was right on the corner of Canal and Rocheblave. I then saw the defendant basically just — the female was struggling violently. I saw the defendant, he must have couldn’t hold onto her any longer. He just threw her to the ground, straddled her and began to punch and choke her ...

Detective Stovall, who had first seen Ms. Yencha walking on the neutral ground of Canal Street, observed T.H. lift, drag, and carry her across the street and some distance down North Rocheblave.

T.H. does not contest these facts, but rather he suggests that the evidence is insufficient to establish the crime of second-degree kidnapping, particularly the element that the victim be carried “from one place to another.” This is occasionally referred to as the “asportation” element of kidnapping. Although “the distance traveled during the forcible seizure [is not required to] be any particular length,” the term “from one place to another” requires evidence that the offender “relocated |sthe victim from one physical setting or environment to another.” State v. Davillier, 99-1204, p. 1 (La.12/10/99), 752 So.2d 149, 150.

In this case, T.H. picked up, carried, and dragged Ms. Yencha from the neutral ground of Canal Street, across the street, and down North Rocheblave for at least the length of a building before throwing her to the ground. Ms. Yencha was transported by T.H. against her will from the physical setting of Canal Street to the physical setting of a parking lot on North Rocheblave. A finding that T.H. carried his victim “from one physical setting or environment to another” is not manifestly erroneous. Under these circumstances, the prosecution has shown evidence that T.H. carried Ms. Yencha “from one place to another” sufficient to support an adjudication of delinquency for second degree kidnapping.

DECREE

The adjudication of T.H. as a delinquent for the second degree kidnapping of [ A.Y. ] is affirmed. The disposition judgment committing T.H. to secure care for a period not to exceed two years is also affirmed.

AFFIRMED.

      . The juvenile judge stated: "I take Ms. [ADA’s name] at her word that she's an officer of the court. I know that she would not tell me an untruth about filing it with your office.”


author: CHARLES R. JONES, Judge.

text:
    Carrie Burse MERRILL v. GREYHOUND LINES, INC.
    No. 2010-CA-0834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      Carrie Burse Merrill, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge DENNIS R. BAGNERIS, SR.).
   CHARLES R. JONES, Judge.

_[¿Pro se plaintiff, Carrie Merrill, appeals the judgment of the Office of Workers’ Compensation (“OWC”), dismissing her claim against Greyhound Lines, Inc. (“Greyhound”). We reverse and remand finding that the OWC erred in not finding that the degenerative disease Ms. Merrill presently suffers from was aggravated and caused to be symptomatic by her work-related injury.

The facts surrounding Ms. Merrill’s work-place accident are not in dispute. In December 2006, Ms. Merrill, a Greyhound bus driver, injured her back in a fall down some stairs. Greyhound paid temporary total disability benefits to Ms. Merrill from December 2006, until March 4, 2007, at a rate of $282.91 per week. Greyhound discontinued paying disability benefits on the basis that Ms. Merrill was released to return to sedentary work. Ms. Merrill was offered sedentary employment with Greyhound in March 2006, but she declined the offer.

Ms. Merrill filed a disputed claim for compensation in June 2007. The matter was brought for trial before the OWC on March 9, 2010.

None of the doctors who treated or examined Ms. Merrill testified at trial. The medical records of Dr. R. Douglas Bostick, Dr. Bradley Bartholomew, Dr. Morteza Shamsnia, Dr. Michael Puente, and Dr. Robert Applebaum were |2introduced into evidence. Dr. Applebaum’s deposition was also introduced. The medical opinions presented by the parties were conflicting as to whether Ms. Merrill was able to return to work. The medical opinions were also conflicting as to whether Ms. Merrill’s continued complaints of pain, and need for back surgery were related to the accident or to degenerative changes in her back. Ms. Merrill argued that the work-related accident aggravated the pre-exist-ing condition in her back.

Ms. Merrill testified that on the day of the accident, in connection with her job as a Greyhound bus driver, she was leaving a hotel in Houston on her way back to New Orleans. She testified that she “came down a flight of steps, hit the second step on the second flight of steps, and just fell down the rest of them.” She further testified that she landed on her back and immediately experienced back pain. On the bus ride back to New Orleans, Ms. Merrill was able to sit on a cushion, but stated that within an hour and fifteen minutes into the trip, she began to have pain all over her body.

Upon her return to New Orleans, Ms. Merrill reported the incident to her supervisor, Oscar Washington, and notified the hotel of the incident. She subsequently sought medical treatment at the University Medical Center emergency room. In January 2007, she began treating with Dr. Bostick, an orthopedist. Thereafter, Ms. Merrill treated with neurologist, Dr. Shamsnia, and neurosurgeon, Dr. Bartholomew. Throughout her treatment, Ms. Merrill complained of pain in her back, neck, and shoulders, radiating to both arms. At Greyhound’s request, Ms. Merrill was examined by neurologist, Dr. Puente, and neurosurgeon, Dr. Appleb-aum, wherein she related the same complaints of pain.

| ¡¡Ms. Merrill denied any prior injury to her neck. She testified as to two previous minor traffic accidents that caused her to experience low back pain, but specific details were not elicited. No evidence of prior medical treatment for back or neck injuries was presented.

Ms. Merrill testified that before the December 24, 2006 accident, she experienced only regular backaches if she lifted unusually heavy pieces of luggage. On those occasions, she stated she would take an over-the-counter medication and would always return to work.

At the time of the accident, Ms. Merrill worked as a bus driver for Greyhound for seven years without any documented neck or back problems. She explained that her daily duties included loading the bus, with luggage that could weigh up to seventy pounds. Her eight hour days also included driving the bus, as far as Atlanta or Houston.

Finally, Ms. Merrill testified that she could not go back to picking up fifty to sixty pound luggage as she did when driving for Greyhound. She stated that she believed she could work at a desk job if she was permitted to get up and walk around. When asked why she did not accept the sedentary position offered by Greyhound in March 2006, Ms. Merrill explained that at the time (three months after the accident) nobody knew what was wrong with her.

The OWC rendered judgment on March 24, 2010, dismissing the claim of Ms. Merrill against Greyhound with prejudice, finding that Ms. Merrill was no longer entitled to indemnity benefits beyond that which had been paid. The OWC further determined that Ms. Merrill’s need for surgery was related solely to degenerative changes in her back and were not related to her soft tissue job injury. Ms. Merrill’s timely appeal followed.

j4It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Dellavalle v. Dynegy Midstream Services, 2002-2479, p. 3 (La.App. 4 Cir. 5/28/03), 848 So.2d 716, 718, citing Bynum v. Capital City Press, Inc., 95-1395 p. 5-6 (La.7/2/96), 676 So.2d 582, 586.

The appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-elearly wrong” standard. Dean v. Southmark Construction, 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. If the factfin-der’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the fact-finder, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556.

Deference is due to the factfinder’s determinations regarding the credibility of witnesses “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

lfiWe note that Ms. Merrill has filed a pro se brief, which does not comport with the requirements of Rule 2-12.4, and it is unclear to us what her specific assignments of error are. Rule 2-12.4 of the Uniform Rules-Courts of Appeal requires an appellant’s brief to comply with certain requirements. The brief must include, among other things:

a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited and a short conclusion stating the precise relief sought.

Rule 2-12.4, Uniform Rules-Courts of Appeal. The Rule further provides that “[a]ll specifications or assignments of error must be briefed.” Id. If they are not briefed, “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.” Id. However, because Ms. Merrill is representing herself, we will examine the record using the applicable standard of review to determine whether the OWC erred.

An employee is entitled to compensation benefits if he suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. The Supreme Court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Buxton v. Iowa Police Department, 2009-0520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. The chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. The employee has the burden of proving, |fiby a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Id. at p. 12, 23 So.3d at 283; See also Feingerts v. American Cas. Co. of Reading, 2009-1209 (La.App. 4 Cir. 3/10/10), 34 So.3d 358.

Even if the claimant suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing condition to produce an injury resulting in a compensable disability. Pev-eto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689. The claimant may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the onset of the disabling symptoms. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324-25 (La.1985). Once the claimant has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing condition to produce the employee’s disability. Peveto, 93-1402 at pp. 2-3, 630 So.2d at 691.

After our thorough review of the record in the present case, particularly in light of the medical evidence outlined below, we find that the OWC erred in ruling against Ms. Merrill. More specifically, we find that the medical evidence clearly demonstrates that Ms. Merrill’s work-related accident caused an aggravation of a preexisting condition in her back, which necessitates surgery.

|7Ms. Merrill was seen by five (5) physicians during the course of her treatment: Dr. R. Douglas Bostick (orthopedist), Dr. Morteza Shamsnia (neurologist), Dr. Bradley Bartholomew (neurosurgeon), Dr. Michael Puente (neurologist), and Dr. Robert Applebaum (neurosurgeon). While Ms. Merrill presented herself for treatment with Doctors Bostick, Bartholomew and Shamsnia, Dr. Puente and Dr. Applebaum were doctors hired by a workers compensation insurer to examine Ms. Merrill.

Dr. Bostick, an orthopedist, treated Ms. Merrill from January 2007 to May 2007. Dr. Bostick suspected that degenerative disc changes had occurred. An MRI revealed that there were changes from cervical spondylosis with focal disc herniations causing ventral cord deformity at the C3-C4 and C4-C5 level, but there was no canal stenosis and multilevel neural fora-minal stenosis. He determined that the MRI results were “consistent with cervical disc disease at C4-5 and 5-6.” Throughout the course of her treatment, she complained of pain radiating down her right arm — especially in her shoulder — coming from the neck, and her pain did not subside. He discussed cervical epidural steroid injections as a possible treatment, but Ms. Merrill was not interested in this type of treatment. He informed her that she could perform sedentary work.

Dr. Shamsnia, a neurologist, treated Ms. Merrill from April 2007 to late January 2010. Ms. Merrill complained of suffering from pain consistently in her neck and lower back as well as shoulder pain radiating to her right arm. She suffered with muscle spasms in her right shoulder and tingling in her arms down to her fingertips. He found that her neck pain and right upper arm parasthesis was the result of her fall at work. She also complained of cervical pain radiating to both shoulders. He found that she was in severe pain and that she was unable to work. |s She was prescribed pain medication throughout the time she treated with Dr. Shamsnia. As a result of a myeleogram performed on October 21, 2009, he found evidence of a disc protrusion at C2-3, C3^4, and C4-5 level, involvement of the nerve root at C5-6 and C6-7 bilaterally. He also found evidence of some degenerative changes in the spine.

Dr. Bartholomew treated Ms. Merrill three times in a time period ranging from September 2008 to November 2009. She presented for treatment with Dr. Bartholomew complaining of continuing neck pain, and shooting pain to both her upper extremities and her fingers. She also suffered from constant posterior cervical pain going to the right shoulder area, with pain occasionally going to the left side. She consistently complained of neck pain, and pain in her upper extremities. She denied any past medical issues regarding her neck. As a result of some diagnostic tests, Dr. Bartholomew reached the following conclusions:

MRI report from 1/31/07 of the cervical spine shows a C2-3 focal protrusion, a C3-4 central herniation, C5-6 focal herniation to the left with deformity of the left cord, C5-6 loss of height and disc osteophyte complex, and a C6-7 mild bulge. I reviewed these films and agree with the findings. EMGs and nerve conduction on 3/4/07 showed right cervical radiculopathy. MRI scan report with flexion and extension of the cervical spine from 4/14/08 described C2-3 contained subligamentous herniation, a C3-4 prominent herniation, a C4-5 herniation, and C5-6 herniation to the left and C6-7 changes. There were also maybe some occipital cervical changes. I reviewed these films and agree with the findings.

Additionally, a discogram indicated that the C5-6 level was causing her symptoms and he recommended a C5-6 artificial disc surgery. He also reviewed a myelogram performed on October 21, 2009, and indicated in his reports that the myelograms results showed protrusion at C2-3 through C5-6 with a C5-6 |3disco/osteophyste complex with slightly less extreme findings of the same at C6-7. Dr. Bartholomew opined that degenerative changes were most noticeable at C5-6 and C6-7 levels.

Dr. Puente examined Ms. Merrill three times, once in 2007 and twice in 2008. She complained to him of pain in her shoulders, arms and hands, and more specifically complained of pain in both her right shoulder and hand. Dr. Puente determined that Ms. Merrill did have diffuse degenerative changes of the cervical spine that were of “chronic origin” and were not attributable to her work related injury. He noted no tenderness to the neck area, normal strength in both upper extremities, and no atrophy. He also concluded that Ms. Merrill did have occasional neck pain.

Lastly, Dr. Applebaum examined Ms. Merrill one time in September of 2009. She complained of pain in her neck, right shoulder and both hands. She also stated that she experienced tingling around her right elbow. She explained that she did not experience these problems prior to her December 2006 accident. Dr. Applebaum noted that she had minimal limitation of motion present in the neck, and some rigidity present in the cervical spine mainly in the left trapezius muscle. He also found compression of the cervical spine reproduced some pain at the base of the neck. He testified that he later reviewed the results of Ms. Merrill’s myelogram of October 21, 2009, and opined that she had a degenerative disease, the worst level being C5-6. He further testified that this disease possibly warranted a fusion instead of an artificial disc replacement that Dr. Bartholomew recommended. He testified that the need for surgery was related to her degenerative condition, not the December accident.

|inIn his testimony, Dr. Applebaum acknowledged that the work-related injury could have certainly aggravated or accelerated the degenerative changes in Ms. Merrill’s back, but that it would have resolved in three to six months since it was generally a “soft tissue injury”. In sum, Dr. Applebaum testified that the work-related accident caused a “temporary” aggravation of her pre-existing condition.

The medical evidence does not indicate, as stated by Dr. Applebaum, that Ms. Merrill suffered a “soft tissue injury” in the December 24, 2006 accident, which would have resolved in three to six months. In fact, none of the physicians involved in this case made a diagnosis of “soft tissue injury”. The only reference to a “soft tissue injury” in this record is found in Dr. Applebaum’s deposition.

Contrary to Dr. Applebaum’s statements concerning “soft tissue injury”, the January 31, 2007 MRI (conducted approximately one month after the accident) showed objective findings of disc bulging and her-niations in Ms. Merrill’s cervical spine. Similar objective findings were noted in subsequent diagnostic tests. The record also documents that on September 25, 2008 (ten months after the accident), Dr. Bartholomew expressed his opinion that Ms. Merrill’s work-related accident aggravated her pre-existing degenerative changes and caused herniation.

It is undisputed that Ms. Merrill suffers from a degenerative spinal disease. However, the record reveals that she was asymptomatic before the accident. Ms. Merrill’s symptoms of back, neck and shoulder pain — radiating into both arms and hands — began almost immediately after the accident, and were consistently expressed and documented in the report of every doctor for more than three years. Additionally, there is no medical evidence in the record to establish that Ms. Merrill’s work-related injury has resolved, or that an aggravation of her pre-existing degenerative condition was limited in duration. Ms. Merrill’s testimony |nthat she was in good health prior to the accident was clearly supported by the fact that she performed her job, which included a certain amount of heavy lifting and long periods of driving, without any problems. The record reflects no contradictions or inconsistencies in Ms. Merrill’s testimony to indicate that her credibility was called into question.

Based on the totality of evidence, we conclude that Ms. Merrill met her burden of proving by a preponderance of the evidence that her work-related accident caused an aggravation of her pre-existing back condition. Having met that burden, it then became Greyhound’s burden to rebut the legal presumption afforded Ms. Merrill, by producing evidence that it is more probable than not that the work-related injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce the claimant’s disability. See Peveto, 93-1402, pp. 2-3, 630 So.2d at 691; Walton, 475 So.2d at 325. Greyhound presented no such evidence. Accordingly, the OWC’s ruling, that Ms. Merrill’s need for surgery was related solely to degenerative changes in her back and not to her work-related injury, is not supported by the record and is clearly wrong.

DECREE

For the foregoing reasons, we reverse the judgment of the OWC and remand for further proceedings.

REVERSED AND REMANDED.


author: TERRI F. LOVE, Judge.

text:
    DUCKWORTH PROPERTIES, L.L.C. v. Clarence WILLIAMS and Irma Williams.
    No. 2010-CA-0244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      Javar K. Davidson, Davidson & Associates, LLC, New Orleans, LA, for Duck-worth Properties, L.L.C.
    Steven C. Gill, The Gill Law Firm, LLC, New Orleans, LA, for Clarence Williams & Irma Williams.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

|TDuckworth Properties, L.L.C. appeals the annulment of a default judgment against Clarence Williams and Irma Williams. The trial court granted the petition of Mr. and Mrs. Williams to annul the default judgment entered in favor of Duck-worth due to the improper practices of counsel for Duckworth. Because the record reflects that the trial court’s decision was reasonable, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 1, 2008, Irma Williams filed suit in the Civil District Court for Orleans Parish against Duckworth Properties, L.L.C. (“Duckworth”) for breach of contract. Mrs. Williams alleged in her petition that Duckworth failed to properly restore her home pursuant to their contract of July 6, 2006. Mrs. Williams further sought removal of a lien Duckworth had placed on her property for a sum it alleged she had failed to pay as per their contract.

Subsequently, on June 20, 2008, Duck-worth filed a suit against Mrs. Williams and her husband, Clarence Williams, in First City Court for breach of contract. Duckworth alleged in its petition that Mr. and Mrs. Williams (collectively referred to as “the Williamses”) failed to pay certain sums pursuant to the contract. Duck-worth’s suit against the Williamses arose out of the same 12transaction as that of the suit pending in Civil District Court against Duckworth.

On July 16, 2008, Duckworth obtained a default judgment against the Williamses. On April 7, 2009, the Williamses filed a petition to annul the default judgment pursuant to La C.C.P. art.2004, which was granted by the trial court at a hearing conducted on November 19, 2009. Duck-worth appeals the annulment, claiming that the trial court erred in granting same.

STANDARD OF REVIEW

“Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer.” Wright v. Louisiana Power & Light, 06-1181, p. 12 (La.3/9/07), 951 So.2d 1058, 1067. Our courts have examined each case from an equitable viewpoint to “ascertain whether allowing the judgment to stand would be inequitable or unconscionable” considering the practice by which the party was able to obtain the judgment. Alonso v. Bowers, 222 La. 1093, 64 So.2d 443, 444 (1953).

ANNULMENT

A final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art 2004(A). To determine whether a judgment has been obtained by actionable fraud or ill practices, it must be shown that: “(1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable.” Johnson v. Jones-Journet, 320 So.2d 533, 537 (La.1975). “[T]he article is not limited to cases of actual fraud or intentional wrongdoing”; however, it “is sufficiently broad to encompass” situations where:

a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where |3the enforcement of the judgment would be unconscionable and inequitable.

Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

Duckworth avers that no fraud or ill practices were employed in acquiring the default judgment against the Williamses, and that the trial court therefore had no basis upon which to annul the default judgment. In their petition to annul the default judgment, the Williamses alleged that Duckworth’s counsel engaged in ill practices by filing suit in First City Court and obtaining a default judgment against them while their suit was pending against Duck-worth in Civil District Court. In its oral reasons for judgment, the trial court found that the actions of Duckworth’s counsel amounted to ill practices.

Duckworth argues that, because the Williamses were properly served with its petition for breach of contract, entry of default judgment following the legal delays was proper. To support this position, Duckworth cites various cases where the defendant’s failure to act was the decisive factor in upholding default judgments.

Duckworth’s reliance on such cases is misplaced, however, because the case sub judice differs factually from those cited by Duckworth where the defendant pursues an action for nullity as a substitute for an appeal from a default judgment or as the solution to legal rights lost though one party’s negligence. Here, the Williamses do not dispute that they were served nor that they were obligated to respond. Rather, the Williamses sought annulment of the default judgment because of the alleged ill practices of Duckworth’s counsel.

Ill Practices

As referenced above, La. C.C.P. art.2004

|4is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.

Russell v. Illinois Cent. Gulf R.R., 96-2649 (La.1/10/97), 686 So.2d 817, 819, quoting Kem Search, 434 So.2d at 1070. The Louisiana Supreme Court has found it to be an ill practice when an attorney obtains a default judgment without attempting to notify the opposing attorney when the opposing attorney participated in the litigation proceedings and the defendants were actively attempting to defend their rights. Kem Search, 434 So.2d at 1070; Russell, 96-2649, 686 So.2d at 819.

Here, Duckworth took a default judgment against the Williamses in First City Court without notice to their attorney while their suit against Duckworth was pending in Civil District Court regarding the same contractual dispute. Although the Williamses had not participated in the First City Court litigation at the time the default judgment was entered there, their suit in Civil District Court itself demonstrated that they were actively attempting to defend their rights in the contract dispute.

In Power Mktg. Direct, Inc. v. Foster, 05-2023, p. 1 (La.9/6/06), 938 So.2d 662, 664, the Louisiana Supreme Court found that

[a] party’s failure to give notice to an opposing party of his intent to take a default judgment against the opposing party, who is actively participating in litigation pending in a foreign jurisdiction between the same parties arising out of the same factual basis and contesting identical questions of law, constitutes fraud or ill practice under La. C.C.P. art.2004. (Emphasis added).

There, a breach of contract action was filed by Power Marketing against Foster in the state of Ohio pursuant to a choice of law clause contained in the parties’ | r,contract. Foster, 05-2023, p. 2, 938 So.2d 662, 664. Then, while the Ohio suit was pending, Foster filed a suit against Power Marketing in the Fourth Judicial District Court in Louisiana. Foster, 05-2023, p. 3, 938 So.2d 662, 665. Power Marketing’s registered agent for service of process refused service, but Foster obtained a default judgment without advising Power Marketing’s counsel in Ohio. Foster, 05-2023, p. 4, 938 So.2d 662, 665. Power Marketing moved to annul the default judgment, and the trial court rendered judgment annulling the default judgment. Foster, 05-2023, pp. 5-6, 938 So.2d 662, 665-67.

The court in Foster reasoned that, even though Power Marketing undisputably did not participate in the Louisiana suit, its participation in the Ohio litigation by filing its pleading there clearly indicated its intent to participate in the litigation of the contested issues raised by Foster in the Louisiana suit. Foster, 05-2023, pp. 16-18, 938 So.2d at 673-74. The court emphasized the fact that the questions or issues contested arise out of the same contractual dispute between the same parties. Foster, 05-2023, p. 16, 938 So.2d at 673. The court concluded that it constituted ill practice for Foster to obtain a default judgment without attempting to notify Power Marketing when Power Marketing had participated in the litigation proceedings, albeit in Ohio. Foster, 05-2023, pp. 18-19, 938 So.2d at 674.

Although Foster involved a forum selection clause, which Foster violated when he filed suit in Louisiana, we do not find that fact dispositive of the outcome. The Supreme Court specified that its ruling in Foster was “in keeping with the spirit of Kem Search and Russell and our notions of fair play and equity.” Foster, 05-2023, p. 20, 938 So.2d at 675. Accordingly, we find that it constituted ill practice for Duckworth to take a default judgment against the Williamses in one jurisdiction while a suit arising out of the same contractual dispute was pending in |fianother jurisdiction.

Moreover, by taking a default judgment against the Williamses in the First City Court action, Duckworth’s counsel violated a local rule of court. Orleans Civil District Court Local Rule 6(4) states:

To achieve continuity of case management, and to avoid the appearance of forum shopping, it is the policy of the court that subsequent but related cases should be transferred to the division to which the original case was allotted, whether or not such earlier case is still pending. It shall be the duty of any attorney in such cases to call to the court’s attention the existence of such earlier case. (Emphasis added.)

Duckworth’s counsel failed to meet his obligation to call the pending Civil District Court case to the attention of the First City Court Judge. Because the actions of Duckworth’s counsel caused the default judgment to be rendered against the Williamses through ill practice, we find that the nullity was proper under La. C.C.P. art.2004.

Finally, Duckworth alleges that, because the Civil District Court suit was not properly served on his client until after entry of the default judgment, local Rule 6 should not apply, thereby negating the Williams’ argument that its counsel engaged in ill practices. The Civil District Court’s proceedings and record are not before us. Therefore, Duckworth’s argument regarding the insufficiency of service in that suit is immaterial. Duckworth had actual notice of the matter pending in Civil District Court when he filed Duckworth’s suit in First City Court. Lack of formal notice does not excuse Duckworth’s attorney from complying with the Civil District Court’s local rules regarding consolidation of the two related cases.

Although actual knowledge of the filing of a suit has no bearing on the necessity of citation and service, actual knowledge may affect the issue of ill 17practice. Palombo v. Palombo, 94-95, p. 6 (La.App. 3 Cir. 10/5/94), 643 So.2d 445, 448-49. Duckworth’s attorney admitted at the hearing on the petition to annul that he knew of the Civil District Court suit long before his client was formally served. Duckworth’s attorney therefore acted in violation of his Rule 6 duty to the Civil District Court when he took a default judgment in a related case in First City Court, which amounts to ill practice in the context of a La. C.C.P. art.2004 analysis.

We find that the circumstances under which the default judgment was rendered showed the deprivation of legal rights of the Williamses and that the enforcement of the default judgment would have been unconscionable and inequitable as regards to the disposition of their suit in Civil District Court.

DECREE

Applying the foregoing precepts to the facts of this case, we conclude that the Williamses were unfairly deprived of an opportunity to present their defenses and thereby lost legal rights because of a default judgment whose enforcement would be unconscionable and inequitable. Therefore, the judgment of the trial court annulling the default judgment against the Williamses is affirmed.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Robert MONROE.
    No. 2010-KA-0455.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defen-dani/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

|¶ The defendant appeals his conviction and sentence for attempted aggravated burglary. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

Shortly after 8 p.m. on November 20, 2008, Officer Walter Fuquay of the New Orleans Police Department (NOPD) responded to a report of a disturbance at the residence of Andrew Lockett, 1828 Washington Avenue, Apartment 6. Upon his arrival, Officer Fuquay observed Lockett, paralyzed and confined to a wheelchair, on the ground in front of the open door of his apartment and the defendant, Robert Monroe, and Shawntrell Hills on top of him. Officer Fuquay ordered the individuals to desist and placed the defendant and Ms. Hills in handcuffs. Officer Fuquay observed a Smith and Wesson .357 revolver in Lockett’s hand, ordered him to drop it, and placed him in handcuffs. During the search incident to the arrest, however, Officer Fuquay recovered from the defendant’s pocket a fully loaded speed loader of the type and design used for the ^revolver recovered from Lockett. He also noticed scuff marks and an apparent footprint on the lower half of the apartment door and a black hat inside the apartment.

On January 9, 2009, the defendant was charged with aggravated burglary and possession of a firearm. He pleaded not guilty and, after a bench trial on April 8, 2009, was found guilty of attempted aggravated burglary. On June 2, 2009, the State filed a multiple bill alleging that Monroe was a second offender. After pleading guilty to the multiple bill, the defendant was sentenced to serve eight years at hard labor.

Assignment of Error

In his sole assignment of error on appeal, the defendant apparently challenges the sufficiency of the evidence supporting his conviction for attempted aggravated burglary, conceding his unauthorized entry into the victim’s residence but arguing there is no evidence that he intended to commit a battery when he crossed the threshold into the residence. This argument is meritless.

Applicable Law

A challenge to the sufficiency of the evidence supporting a conviction is reviewed under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Thus, the issue before the court is whether, viewed in the light most favorable to the [¡¡prosecution, the evidence is sufficient to convince a rational trier of fact that all of the elements of the crime of attempted aggravated burglary have been proved beyond a reasonable doubt. Id. When, as in this case, circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982).

La.Rev.Stat. 14:60 provides in pertinent part that an “Aggravated burglary is the unauthorized entering of any inhabited dwelling ... where a person is present, with the intent to commit a felony or theft therein, if the offender:

(1) is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.... ”

Pursuant to La.Rev.Stat. 14:27, an “attempt” is defined in pertinent part as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of an tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

| ¿Review of the Evidence

The arresting officer and victim testified at trial, but no witnesses were called on behalf of the defendant. Accordingly, the following evidence was adduced at trial. Officer Fuquay testified as to the circumstances of the defendant’s arrest. Mr. Lockett testified that on the day of the incident, the defendant stopped him at the corner of Fourth and Dryades Street to ask him if he knew Ms. Hills and, shortly thereafter, Ms. Hills drove up in a truck and accused him of having knowledge pertaining to the murder of her son, “Little Drew.” Ms. Hills left the area and the defendant continued questioning victim about the murder of Little Drew. Later in the evening he was in his apartment watching television and heard the defendant and Ms. Hills ask a neighbor as to the location of his residence. There was a knock on his door and he opened it to find the defendant and Ms. Hills standing in his doorway. The defendant refused entry into his apartment, blocking the doorway with his wheelchair, and Ms. Hills started yelling at him that he knew something about her son’s death. The defendant repeatedly asked Mr. Lockett to “give [him] a name,” “playing” with the brown handle of a gun under his shirt. Finally, Ms. Hills told the defendant, “We didn’t come around here for all this talk. Handle your business.” When Ms. Hills momentarily distracted the defendant by warning him that someone was going to call the police, Mr. Lockett attempted to slam the door, but a broom fell into the doorway obstructing its closure. The defendant kicked the door in, forced his way into the |5apartment, pulled the gun from his waistband and pointed it at the Mr. Lockett, saying “I’m tired of all this talking. Something about to go down.” Mr. Lockett jumped at the defendant and, as the two men wrestled, grabbed the handle of the gun with his right hand and the barrel of the gun with his left hand as the defendant clung to the middle part of the gun. The defendant called to Ms. Hills for help and she came into the apartment and tried to seize the gun by poking Mr. Lockett in the eyes and scratching his face. The defendant then pushed Mr. Locket back towards the open door, causing him to fall on his left side still in possession of the gun. At this moment, as Ms. Hills was trying to stomp the gun from his hand, the police arrived. After the defendant was handcuffed, Mr. Lockett found the defendant’s black hat inside his apartment.

On cross-examination, Mr. Lockett conceded that, although he had never met the defendant before the day of the incident, Ms. Hills was a long-time acquaintance and there was no prior animosity between them. He conceded that neither the defendant nor Ms. Hills verbally threatened him, but on redirect stated that he took the comment “Handle [his] business” to mean that the defendant was to shoot him.

Discussion

The evidence in this case clearly supports the defendant’s conviction for attempted aggravated burglary. The evidence shows that the defendant entered an inhabited dwelling without authorization and, upon entry, pulled out a gun and began wrestling with the victim, a paraplegic. Thus, the trier of fact could reasonably infer that, beyond a reasonable doubt, when he entered the apartment the defendant intended to “use force or violence upon [the victim].” Because the | ^evidence supports a conviction for aggravated burglary, it is sufficient to sustain the conviction of the lesser included offense. See State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). The defendant’s assignment of error is without merit.

Errors Patent

A review of the record reveals no patent errors.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Ms. Hills was also charged with aggravated burglary as a result of the November 2008 incident involving Monroe and Lockett. The court found Ms. Hills guilty of attempted simple burglary of an inhabited dwelling.

      . The defendant’s motion for an out of time appeal was granted on December 10, 2009.

      . The defendant argues that the evidence is insufficient to prove he intended to commit an aggravated battery. Additionally, the defendant argues that the evidence is insufficient to prove he intended to intimidate a witness, as per La. R.S. 14:129.1. The defendant, however, was not charged with intending to intimidate a witness or with aggravated battery. Pursuant to the State’s bill of information, the defendant was charged with aggravated burglary of an inhabited dwelling where he was armed with a dangerous weapon and/or committed a battery upon Mr. Lockett while inside or leaving the residence.

      . A battery is defined in La.Rev.Stat. 14:33 as "the intentional use of force or violence upon the person of another.”

      . Intent may be inferred from the circumstances. See State v. Francis, 96-2389 (La.App. 4 Cir. 4/15/98), 715 So.2d 457.

      . Officers Giselle Russell and Joseph Pollard also testified. Officer Russell, supervisor of 911 operators and dispatchers, testified as to two 911 calls received in relation to the subject incident. Officer Pollard, an expert in the taking, examination and comparison of fingerprints, testified that he took fingerprints of the defendant on the day of trial and attempted to compare the defendant’s fingerprints to a certified copy of an arrest register in the name of Robert Monroe. However, the trial court did not allow the comparison, as there had not been any notice or discussion of the certification package at issue.