author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Willis J. LEWIS.
    No. 10-KA-1022.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margareta M. Lahme, Attorney at Law, Broussard, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| -Willis Lewis was charged in a bill of information by the Jefferson Parish District Attorney with three counts of indecent behavior with a juvenile, in violation of LSA-R.S. 14:81(A)(2). He pled not guilty at his arraignment. Defendant subsequently filed a motion to quash the bill of information and a motion to suppress evidence arguing: 1) the applicable statute was unconstitutionally vague, 2) the State violated defendant’s right to privacy and entrapped him into the commission of a crime, and 3) the governmental misconduct involved a violation of due process. Defendant also filed an amended motion to suppress the evidence with a memorandum in support thereof.

After a hearing, the trial court denied defendant’s motions. At that time, defendant moved to seek supervisory writs related to the trial court’s denial of his motions, and the court granted his motion. By decision rendered on January 20, 2010, this Court granted defendant’s writ in part only in relation to the issue regarding the applicable statute’s constitutionality. State v. Lewis, 09-1081 (La.App. 5 Cir. 01/14/10) (unpublished writ disposition). This Court found that the | ¡¡Attorney General’s office did not receive notice of the issue as required by LSA-R.S. 49:257(C). Ultimately, the trial court’s denial of the motion to quash was vacated and remanded to issue the Attorney General’s office the proper notice and an opportunity to respond to the constitutional challenge to the statute. The Court denied the writ in all other respects.

On January 21, 2010, the trial court again denied defendant’s motion to quash after it received proper notice documenting that the Attorney General’s Office did not wish to respond to the matter. On that same day, defendant withdrew his not guilty plea and pled guilty under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to seek review of the governmental misconduct issues regarding entrapment, which were argued in his motions to quash the bill of information and suppress the evidence. Defendant’s guilty plea was accepted by the trial court and he was sentenced to four years with the Department of Corrections. This timely appeal follows.

As the defendant did not proceed to trial on the merits, the pertinent facts were deduced from the bill of information, the waiver of rights form, and the guilty plea colloquy. On January 14, 26, 28, 2009, respectively, defendant transmitted an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text or images to a person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender with the intention of arousing or gratifying the sexual desires of either person.

|4By this appeal, defendant argues that the evidence produced by the State would be insufficient to convict him beyond reasonable doubt, under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), because all of the evidence was produced through the State’s misconduct. He further submits that he did not intend to commit the crimes and he would not have but for being entrapped by the State’s investigators.

Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079, pp. 7-8 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459, (citing State v. Wingerter, 05-697, pp. 5-6 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665). A plea of guilty by its nature admits factual guilt and relieves the State of the necessity to prove it by a contested trial. State v. Smith, 07-815, p. 4 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 824 n. 3, writ denied, 08-927 (La.11/14/08), 996 So.2d 1088 (citing Crosby, supra). Therefore, a defendant cannot challenge the sufficiency of the evidence after he pleads guilty. Id. See also State v. Robinson, 09-1269, p. 6 (La.App. 4 Cir. 5/12/10), 38 So.3d 1138, 1141.

We are therefore unable to review defendant’s claims that the evidence was insufficient to support his conviction. However, there is a basis for review of the trial court’s ruling on the motion to suppress. In Smith, 07-815 at 2, 4, 982 So.2d at 823-24 n. 1, 8, although the defendant’s argument was related to sufficiency of the evidence, which was unreviewable, this Court reviewed defendant’s motion to suppress finding that the defendant specifically reserved his right to appeal the denial of his motions and, further, that the motion to suppress was only one pre-trial motion filed and ruled upon. Similarly, in the instant case, the defendant reserved his right, under Crosby, to appeal the issue of governmental misconduct |5relative to entrapment, which was raised in his motions to quash the bill of information and to suppress the evidence.

Pursuant to Crosby, supra, a defendant may reserve his right to appeal an adverse prior ruling of the trial court. Id. A defendant who fails to specify which pretrial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196 (per curiam ).

We find that defendant has preserved for review both the pre-trial ruling denying the motion to quash and the ruling denying the motion to suppress, as the issue of governmental misconduct relative to the entrapment defense was argued in both motions.

In his brief, defendant argues that he was entrapped by investigators, who contacted him in a chat room while pretending to be a 14-year-old female. Defendant asserts that he was not predisposed to committing a crime, and he did not believe that he was conversing with a minor because people on the internet often assume false identities. Defendant argues that he did not intend to commit a crime and that he was induced by the State when he otherwise had no propensity to commit a crime.

The State argues that the trial court properly denied defendant’s motion to suppress on the entrapment grounds. In support of its argument, the State cites State v. Bates, 301 So.2d 619, 621 (La.1974), which held that a motion to suppress may not be utilized to raise an entrapment defense in advance of trial.

On October 26, 2009, the trial court heard defendant’s motions to quash the bill of information and to suppress the evidence. Neither the defendant nor the State called any witnesses at the hearing. In lieu of argument, the defendant | fisubmitted and relied upon Defense Exhibit 1, which consisted of his original combined motions to quash the bill of information and to suppress the evidence, his amended motion to suppress the evidence and supporting memorandum, the interview with defendant, and documents generated by the investigator. The trial court then denied defendant’s motion to quash, finding that the issue of the constitutionality of the statute had been litigated and declared valid.

In his motion to quash, defendant raised the affirmative defense of entrapment. Defendant also argued that the State should be prohibited from prosecuting defendant due to its own misconduct. Specifically, defendant asserted that investigators violated his privacy, free speech, and due process rights by using information from the Internet in order to obtain a search warrant.

Defendant sought relief with this Court from the trial court’s rulings denying his motions to quash the bill of information and to suppress evidence. On January 14, 2010, this Court granted writs with instructions for the trial court to properly notify the Attorney General’s Office of the constitutional challenge to the applicable statute, and to allow his Office the opportunity to respond. The writ application, in case number 09-K-1081, was denied in all other respects and provided the following with respect to defendant’s motion to quash the bill of information on the entrapment grounds:

The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534; State v. Perez, 464 So.2d 737, 739-40 (La.1985). In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on |7the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Perez, supra. Therefore, the trial court did not err in denying the motion to quash the bills of information on the defense of entrapment or the alleged lack of intent ...
Accordingly, for the reasons stated, the writ application is granted solely for the purpose of vacating the ruling denying the plea of unconstitutionality. The case is remanded to the District Court consistent with the views expressed herein regarding notice to the Attorney General’s Office. The writ application is otherwise denied.

Thereafter, the Louisiana Supreme court denied writs in the matter.

This Court has already decided that defendant was not entitled to raise an entrapment defense in a pre-trial motion to quash the bill of information in case number 09-1081. In the same case, this Court has also previously decided that defendant’s alleged constitutional violations (free speech, privacy, and due process) were meritless and, further, that the government did not engage in misconduct which would require a bar to prosecuting defendant.

Under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Doussan, 05-586, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339 n. 4, writ denied, 06-608 (La.10/13/06), 939 So.2d 372. The law of the case doctrine is discretionary. State v. Lathers, 09-20, p. 3 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, 1070, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841. The denial of a supervisory writ application does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. Lathers, 09-20 at 3, 15 So.3d at 1070-71; State v. Jacobs, 04-1219, p. 7 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006). | ^Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Jacobs, supra.

In the present case, except for information derived from the hearing on the motions to quash and suppress the evidence, this Court does not have the benefit of further information discovered at trial because the case did not proceed to trial.

After review of the record and all applicable law, we find that this Court’s ruling on defendant’s motion to quash, specific to the entrapment defense, which was issued on defendant’s pre-trial writ application, should not be disturbed. See State v. Louis, 05-141, p. 5 (La.App. 5 Cir. 7/26/05), 910 So.2d 464, 467 (where this Court declined to reconsider its prior ruling on the same issue since the defendant pled guilty before any trial testimony was taken and there was nothing additional for it to consider and the defendant failed to present evidence to show that this Court’s prior disposition was patently erroneous or produced unjust results). See also State v. Jones, 08-306, p. 7 (La.App. 5 Cir. 10/28/08), 998 So.2d 173, 177, writ denied, 08-2895 (La.9/4/09), 17 So.3d 947, cert. denied, — U.S. -, 130 S.Ct. 1519, 176 L.Ed.2d 126 (2010) (where this Court applied the law of the case doctrine and declined to reconsider the trial judge’s denial of motions because a review of the subsequent trial record showed that no new facts were produced that would indicate that the prior writ determination was patently erroneous, or that it produced unjust results); State v. Lande, 06-24, pp. 28-29 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 299, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154 (where this Court declined to reconsider issues under law of the case after finding that the defendant neither offered any new arguments or jurisprudence that suggested that this Court’s pri- or rulings were erroneous nor had he cited any evidence presented at trial that would change the rulings); State v. Hollimon, 04-1195, p. 4 (La.App. 5 Cir. 3/29/05), 900 So.2d 999, 1001 (where this Court declined to reverse its previous ruling, recognizing that it had thoroughly analyzed the issue raised by the defendant previously and that there was no new evidence to warrant reconsideration of the same issue).

Accordingly, we decline to reconsider this Court’s prior ruling on this issue since there is nothing additional for us to consider. We find that defendant failed to present any new arguments, jurisprudence, or evidence to warrant reconsideration of the same issue or to suggest that the prior writ determination was patently erroneous, or that it produced unjust results.

In his prior writ application, defendant also requested review of the trial court’s denial of his motion to suppress the evidence. However, the “law of the case” doctrine does not apply to this issue because the defendant did not include a copy of his amended motion to suppress the evidence and memorandum in support of the amended motion. Therefore, this Court did not review those documents in making its decision.

In the motion to suppress evidence, defendant alleged that the evidence the investigators gained from their search on the Internet to produce the search warrant was unconstitutionally obtained and should be suppressed. The trial court found that the issue was an issue to be taken up at trial. Defense counsel then stated: “... entrapment itself may be an issue for trial, and the courts have many times suggested that. But I believe this issue prior — the action of the police to actually get there, is a constitutional issue for this motion.” Ultimately, the court denied the motion to suppress evidence finding that there was nothing alleged by defendant to suggest that the search warrants were illegally executed or improperly obtained.

|inThe statutory ground for a motion to suppress evidence is an unconstitutional search and seizure. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes, 08-719, p. 6 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 09-816 (La.1/8/10), 24 So.3d 857. When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. LSA-C.Cr.P. art. 703(D); State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599. Further, the trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of evidence clearly favors suppression. State v. Bellow, 07-824, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, 829. In addition, the plea of entrapment is a defense on the merits and may not be raised in a motion to suppress the evidence in advance of trial. State v. Copelin, 07-790, p. 5 (La.App. 4 Cir. 12/12/07), 974 So.2d 49, 52, writ denied, 08-104 (La.6/6/08), 983 So.2d 916 (citing State v. Bates, 301 So.2d 619 (La.1974)).

When the trial court denied defendant’s motion to suppress pursuant to the entrapment defense, it asserted that it believed that this particular issue was an issue for trial. Moreover, defense counsel accepted this contention. Therefore, we find that the trial court properly denied defendant’s motion as it related to the entrapment defense. Defendant raises no other issues regarding the motion to suppress evidence in its appellate brief other than entrapment. This assignment is therefore without merit.

A review of the record for errors patent pursuant to LSA-C.Cr.P. art. 920 reveals no errors which require corrective action. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

1 n Accordingly, for the reasons assigned herein, the conviction and sentence of defendant Willis Lewis are hereby affirmed.

AFFIRMED

      . It is noted that the State argues that defendant’s guilty plea was not made pursuant to Crosby. The State cites State v. Smith, 09-168 (La.App. 5 Cir. 6/23/09), 19 So.3d 509, noting that defendant only made reference to a Crosby plea after the colloquy concluded and that the guilty plea form was void of any notation or stipulation that the plea was entered into under Crosby.

      However, the guilty plea form in the instant case explicitly stipulates that the plea was made pursuant to Crosby. Specifically, defendant noted that the sentence was "4 years [sic] 4 years suspended under Crosby [sic] issue of governmental misconduct [sic] entrapment.” In addition, the trial court did discuss the Crosby plea in its colloquy with defendant. In particular, when the court notified defendant of his sentence, he also instructed the defendant that the plea would be under Crosby.

      Therefore, we find Smith to be distinguishable and that the State’s argument lacks merit.

      . The motion to quash the bill of information on the constitutionality of the statute was again denied after the trial court received evidence that the Attorney General's Office was notified and did not wish to respond to the issue.

      . It is noted that defendant argued the entrapment defense as well as other constitutional issues in his writ application. Among the constitutional issues argued, addressed, and denied by this Court were violations of defendant’s freedom of speech, privacy, and due process rights.

      . See State v. Lewis, 10-332 (La.9/24/10), 45 So.3d 1071.

      .Although defendant alleged several issues regarding governmental misconduct in his writ application, which included entrapment and various constitutional violations, he does not argue anything other than entrapment in the current appeal. Therefore, any other issues that defendant might have raised as an assignment of error based on governmental misconduct may be considered abandoned by the panel. See State v. Jefferson, 03-820, p. 9 (La.App. 5 Cir. 1/27/04), 866 So.2d 931, 937, writ denied, 04-0727 (La.9/24/04), 882 So.2d 1166. (citations omitted).


source: Caselaw Access Project

license: Public Domain

text:
    Peter WILLIAMS v. Carolyn ROWE-TREAUDO & Christian Academy.
    No. 11-CA-46.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.
    Rehearing Denied Nov. 17, 2011.

      Brett E. Emmanuel, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Collins C. Rossi, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

1 ¡.Defendants, Carolyn Rowe-Treaudo and Conquering Word Ministries d/b/a Conquering Word Christian Academy, seek review of the worker’s compensation court’s May 25, 2010 judgment in favor of claimant, Peter Williams. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from an accident that occurred on August 14, 2007 at Conquering Word Christian Academy (“CWCA”), which is a school that was formed and operated by Carolyn Rowe-Treaudo. Pri- or to that date, a vehicle struck a brick wall of CWCA’s building. Peter Williams asserts that he was working as a “jack of all trades” or handyman at CWCA in 2007 and that Ms. Rowe-Treaudo asked him to assist in repairing the wall. According to Mr. Williams, while he was performing his duties, the brick wall collapsed, causing injuries to his head, back, right knee, right hip, and right shoulder.

After the accident, Ms. Rowe-Treaudo brought him to see Dr. Michael Russo, and she paid for this doctor visit. However, she did not pay for any further medical treatment or any wages lost as a result of this accident. Mr. Williams filed |sa Disputed Claim for Compensation against CWCA and Ms. Rowe-Treaudo, seeking disability benefits and medical expenses, as well as penalties and attorney fees for defendants’ arbitrary and capricious actions.

Trial was held on March 10 and 29, 2010. At trial, Carolyn Rowe-Treaudo testified that she owns the nonprofit corporation of Conquering Word Ministries. She testified that a car damaged a brick wall of their building on the last day of summer school in 2007. She stated that her husband, Roland Treaudo, is in charge of maintenance at CWCA and that he temporarily repaired the wall with plywood until they could get a professional masonry brick layer to properly repair the wall.

Ms. Rowe-Treaudo testified that she rented property to Mr. Williams and he attended their church, but he never worked at the school. Mr. Williams would sometimes come to the school to discuss why he did not have the money to pay his rent. She stated that on August 14, 2007, Mr. Williams “just came off the street and unfastened the temporary wall,” but he was not repairing it. She testified that she did not direct Mr. Williams to perform any work with regard to the damaged wall. Ms. Rowe-Treaudo admitted that she took Mr. Williams to Dr. Russo’s office on the day of the incident and that she paid for his medical care that day. However, she stated that she did this because he was a part of their ministry, not because he was an employee of CWCA.

Roland Treaudo testified that he is married to Carolyn Rowe-Treaudo, and his job is to perform the maintenance work at CWCA. Mr. Treaudo admitted that Mr. Williams did some work for him and his wife, but he stated that the work was not at CWCA; rather, the work was always performed away from the school property. He testified that Freddie Thornton assisted him with maintenance work at the school, and Mr. Williams did not. Mr. Treaudo testified that after the brick 14wall was struck by a vehicle, he shored it up with plywood and two by fours. He stated that Mr. Williams was never asked to help and did not help to fix the wall.

Peter Williams testified that on August 14, 2007, he was working for Ms. Rowe-Treaudo at CWCA. He indicated that he was basically a handyman at the school and that he performed general maintenance, repair, and cleaning tasks. He stated that he did not fill out an employment application or tax forms, but they worked out an informal agreement whereby he would work eight hours per day and forty hours per week. He testified that Ms. Rowe-Treaudo paid him approximately $820 per week in cash.

Mr. Williams testified that after the brick wall was struck by a vehicle, he boarded it up and Mr. Treaudo helped him. Ms. Rowe-Treaudo asked him to help repair the brick wall by doing preparation work, such as clearing away broken bricks and cutting sheetrock, but not the brick work. While performing his duties, the wall collapsed and bricks hit him, causing injuries to his head, shoulder, leg, hip, and knee. Ms. Rowe-Treaudo took him to see Dr. Russo and paid for the initial visit, but he did not receive any other compensation or benefits from defendants.

Mr. Williams testified that he used to live at one of the properties owned by Ms. Rowe-Treaudo. When he was behind on his rent and told Ms. Rowe-Treaudo that he was not getting enough hours at his job, she said she had work for him doing general maintenance and repairs. Thereafter, he worked at CWCA for close to a year and Ms. Rowe-Treaudo also sent him on jobs at other locations. Mr. Williams admitted that he did not fill out a time sheet, punch a time clock, or keep a daily record of his hours, but he stated that Ms. Rowe-Treaudo kept a record of them.

IsGwendolyn Keller testified that she worked at CWCA as a teacher from August 2006 to May 2008. She identified a copy of her school identification card, a copy of her May 15, 2008 pay check, and a letter from Ms. Rowe-Treaudo indicating that she was a teacher in CWCA’s Preschool Development program from August 2006 to May 2008. Ms. Keller testified that Mr. Williams worked at the school and that he repaired broken things, built furniture for the playground, fixed a hole in a wall in the hallway, fixed plumbing in the bathrooms, changed light bulbs, and took out trash. She testified that when Mr. Williams was injured while working on the brick wall, she heard a noise and, when she went to see what was going on, Mr. Williams was sitting on the stairs bleeding.

On May 25, 2010, the worker’s compensation judge rendered a judgment in favor of Mr. Williams, finding, in pertinent part, that:

1) Mr. Williams was injured by accident during the course and scope of his employment on August 14, 2007.
2) Mr. Williams is entitled to temporary total disability benefits from August 4, 2007 through September 18, 2007.
3) Mr. Williams is entitled to payment of all medical and transportation expenses.
4) Mr. Williams has permanent scarring and disfigurement and is entitled to 50 weeks of compensation for this scarring.
5) Mr. Williams’ average weekly wage is $320.00.
6) Defendants did not reasonably controvert the claim and failed to timely pay worker’s compensation benefits.
7) Mr. Williams is entitled to $6,000 for multiple penalties and $6,000 for attorney fees from defendants for failing to timely pay medical expenses and weekly indemnity benefits. All costs are assessed against defendants as well.
8) Carolyn Rowe-Treaudo, CWCA, and Conquering Word Ministries failed to have worker’s compensation insurance on August 14, 2007, and thus, Mr. Williams is entitled to a 50 percent increase in the amount of weekly compensation owed.
|f,9) The case is being transferred to Baton Rouge for defendants’ failure to have worker’s compensation insurance and for the discrepancy in testimony by the employer concerning employment and payment of wages.
Defendants appeal this judgment.

LAW AND DISCUSSION

In their first assignment of error, defendants contend that the worker’s compensation judge erred in finding that Peter Williams was an employee of CWCA at the time of the accident and/or a compensable injury occurred within the course and scope of employment. They assert that Ms. Rowe-Treaudo had rental property and that Mr. Williams was her tenant, but he was never an employee of Ms. Rowe-Treaudo or CWCA. They state that there are no personnel records, time cards, contracts, paycheck stubs, identification card, or other evidence to show that Mr. Williams was their employee. Accordingly, defendants claim that they did not owe any compensation or medical expenses to Mr. Williams, and thus, the worker’s compensation court’s judgment was in error.

Mr. Williams responds that his testimony, along with the testimony of Gwendolyn Keller, established that he was in fact an employee of CWCA at the time of the accident. He further argues that the worker’s compensation judge evaluated the credibility of the parties and found him to be more credible than Ms. Rowe-Treaudo.

Pursuant to LSA-R.S. 23:1044, a person who renders services in any trade, business or occupation covered under the Worker’s Compensation Law is presumed to be an employee of the person for whom he rendered such services. Dustin v. DHCI Home Health Services, Inc., 95-1989 (La.App. 1 Cir. 5/10/96), 673 So.2d 356, 359. This presumption may be rebutted by proof that there was no contract of employment, either express or implied, between the alleged employee |7and alleged employer. Gotto v. ARA Living Center; 570 So.2d 1172, 1174 (La.App. 5 Cir.1990), writ denied, 571 So.2d 634 (La.1990); Shelvin v. Waste Management, Inc., 580 So.2d 1022, 1026 (La.App. 3 Cir.1991). The employer bears the burden of proof in overcoming the statutory presumption and showing that a claimant was not an employee for worker’s compensation purposes. Olivier v. Olivier Builders, 09-208, p. 9 (La.App. 3 Cir. 9/9/09), 19 So.3d 573, 581, writ denied, 09-2189 (La.12/11/09), 23 So.3d 918.

In worker’s compensation cases, appellate review is governed by the manifest error or clearly wrong standard. Harrington v. Hebert, 00-1548, p. 6, (La.App. 3 Cir. 5/23/01), 789 So.2d 649, 652-653; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Under this standard of review, an appellate court may only reverse a worker’s compensation judge’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Winborne v. Sanderson Farms, 06-2272, p. 4 (La.App. 1 Cir. 9/14/07), 971 So.2d 342, 345.

Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Cannet v. Franklynn Pest Control Co., Inc., 08-56, p. 5 (La.App. 5 Cir. 4/29/08), 985 So.2d 270, 274. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Winborne v. Sanderson Farms, 06-2272 at 4, 971 So.2d at 345; Lafleur v. Alec Electric, 04-0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied, 05-276, 05-277 (La.4/8/05), 898 So.2d 1287, 1288.

|sIn the present case, CWCA is a school which undoubtedly requires maintenance services and repairs at times in order to operate. There was conflicting testimony regarding whether or not claimant, Peter Williams, was employed by CWCA to perform maintenance services at the time of the accident. Ms. Rowe-Treaudo and Mr. Treaudo testified that Mr. Williams was not an employee of CWCA and was never asked to perform work at the school. On the other hand, Mr. Williams and Ms. Keller testified that Mr. Williams was, in fact, an employee of CWCA and that he performed maintenance services and repair work there. The worker’s compensation judge apparently chose to believe the testimony of Mr. Williams and Ms. Keller over the testimony of Ms. Rowe-Treaudo and Mr. Treaudo. As stated above, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly wrong.

Although Mr. Williams did not provide documentation to substantiate his employment, he contends that Ms. Rowe-Treaudo did not require him to complete an employment application or sign in or out daily. He claims that Ms. Rowe-Treaudo kept a record of his hours and paid him $8 per hour for approximately 40 hours per week. The worker’s compensation judge apparently chose to believe Mr. Williams’ testimony. Even if this Court were to evaluate the evidence differently, we cannot say that the worker’s compensation judge’s findings were unreasonable and thus, we cannot disturb her findings on review.

Ms. Rowe-Treaudo and CWCA rely on Campora v. Falstaff, L.L.C., 01-2014 (La.App. 4 Cir. 6/12/02), 823 So.2d 389, writ denied, 02-1918 (La.10/25/02), 827 So.2d 1160, in support of their position that they rebutted the presumption that Mr. Williams was an employee of CWCA. In that case, the claimant, Mr. Campora, asserted that he had been hired by Mr. Boes, a partial owner of Falstaff, to remove and sell scrap metal, and he was injured when he fell 1 nfrom a ladder on the Falstaff premises. Id. at 1-2, 823 So.2d at 391. Mr. Campora sought worker’s compensation benefits from Falstaff and was awarded benefits from the worker’s compensation court. The Fourth Circuit reversed, finding that Falstaff had rebutted the presumption of employment created by LSA-R.S. 23:1044. The Court noted that Falstaff presented ample evidence of its employment procedures, including applications for employment, payroll, tax, and insurancé information, and demonstrated that it kept these records for all employees, but that it had no such records for Mr. Campora. Campora v. Falstaff, L.L.C., at 3-4, 823 So.2d at 392. In addition, Mr. Boes denied that he hired Mr. Campora and disavowed any knowledge of an arrangement between them to sell scrap metal. Id.

We agree with Mr. Williams that while some of the facts in Campora are similar to the facts of the instant case, they are distinguishable. In Campora, the Fourth Circuit noted that in addition to the lack of a paper trail evidencing employment, there also were no employees of Falstaff to testify on Mr. Campora’s behalf. Campora v. Falstaff, L.L.C., 01-2014 at 6-7, 823 So.2d at 393. However, in the present case, Gwendolyn Keller testified on Mr. Williams’ behalf and supported his position that he was an employee of CWCA. Further, Ms. Rowe-Treaudo and CWCA did not present ample evidence of its employment procedures, as was done in Campora. Also, unlike Campora, in the present case, the alleged employer took the claimant to the doctor when the accident occurred and paid for the initial visit.

Each worker’s compensation case must be decided on its own particular facts as to whether or not an employment relationship exists. Harrington v. Hebert, 00-1548 at 5-6, 789 So.2d at 653. Considering the particular facts set forth by the testimony and evidence in the instant case, we cannot say that the worker’s | ^compensation judge’s finding of an employment relationship is clearly wrong or manifestly erroneous. Accordingly, defendants’ first assignment of error is without merit.

In their second assignment of error, Ms. Rowe-Treaudo and CWCA assert that the worker’s compensation judge erred in assessing penalties and attorney fees as a result of CWCA failing to reasonably controvert Mr. Williams’ claim. They contend that no compensation or medical benefits were paid due to the fact that CWCA reasonably contested the existence of an employer/employee relationship. They claim that the worker’s compensation judge’s finding that their failure to pay was unreasonable was manifestly erroneous.

When an employer has failed to pay worker’s compensation benefits, the proper standard for review of that decision is whether the employer reasonably controverted the claim. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 889. A claim for worker’s compensation is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under LSA-R.S. 23:1201, a court must ascertain whether the employer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay the benefits allegedly owed. Arias v. Certified Coating, Inc., 05-446, pp. 6-7 (La.App. 5 Cir. 2/14/06), 924 So.2d 298, 302-303. Whether the refusal to pay benefits warrants the imposition of penalties and attorney fees is a factual question, which we will not disturb in the absence of manifest error. Roberts v. Thibodaux Healthcare Center, 05-774, p. 9 (La.App. 1 Cir. 3/24/06), 934 So.2d 84, 91; Noel v. Home Health 2000, Inc., 01-1543, p. 2 (La.App. 3 Cir. 5/8/02), 816 So.2d 955, 957.

In the May 25, 2010 judgment, the worker’s compensation judge found that defendants failed to reasonably controvert Mr. Williams’ claim and failed to timely pay worker’s compensation benefits. The worker’s compensation judge had evaluated the credibility of the witnesses and found that Mr. Williams was an employee of Ms. Rowe-Treaudo and CWCA, and that he was injured during the course and scope of his employment. Defendants did not present any pertinent evidence or argument, other than denial of employment status, to show that Mr. Williams’ claim was reasonably controverted.

Considering the record before us, we cannot say that the worker’s compensation judge was manifestly erroneous or clearly wrong in finding that defendants failed to reasonably controvert Mr. Williams’ claim and in assessing penalties and attorney fees against defendants. Accordingly, this assignment of error is without merit.

In their third assignment of error, Ms. Rowe-Treaudo and CWCA claim that the worker’s compensation judge erred in assessing multiple penalties and attorney fees as a result of CWCA’s failure to timely pay medical bills, medication expenses, and weekly indemnity benefits. Defendants did not brief the issue of why multiple penalties should not be assessed. Rather, they stated simply that the award of penalties should be reversed, because Mr. Williams was not an employee of CWCA and, as such, there was a reasonable basis to controvert the claim and refuse to pay benefits.

Considering our ruling that the worker’s compensation judge did not err in finding that Mr. Williams was an employee of Ms. Rowe-Treaudo and CWCA, and h^that they failed to reasonably controvert his claim, we find no merit in the argument presented in the third assignment of error.

After considering Peter Williams’ Motion for Attorney Fees, we order that it is hereby denied.

DECREE

For the foregoing reasons, we affirm the May 25, 2010 judgment of the worker’s compensation court, and we deny Peter Williams’ Motion for Attorney Fees.

AFFIRMED; MOTION FOR ATTORNEY FEES DENIED

      . Mr. Williams admitted that some time before the accident, he "slacked off” and was only working about 20 to 30 hours per week. However, the amount of the weekly benefits awarded is not complained of on appeal.


text:
    George ALONZO and wife Lisa Alonzo v. SAFARI CAR WASH, INC.
    No. 11-CA-111.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.

      Anthony L. Glorioso, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Michael R. Zsembik, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡.Plaintiffs George and Lisa Alonzo appeal from a trial court ruling granting summary judgment in favor of defendant, Alien Car Wash, LLC. For the reasons stated herein, we affirm.

In their petition, plaintiffs allege that George Alonzo was a customer of Safari Car Wash on September 9, 2008 when he slipped in a puddle of water outside the customer restroom and sustained injuries. Plaintiffs alleged that this unreasonable and hazardous condition was caused by defendant’s employees who tracked water into the building, and that defendant had actual or constructive knowledge of the danger. Lisa Alonzo also sought damages for the loss of love and affection sustained as a direct consequence of injuries sustained in the fall by her husband George. Defendant, Alien Car Wash, LLC, incorrectly named as Safari Car Wash, Inc., answered the petition and denied the allegations, and further propounded discovery to plaintiff.

Following the deposition of plaintiff George Alonzo, defendant moved for summary judgment on the grounds that plaintiffs deposition testimony | .^contradicted the allegations of his petition. Defendant further argued that plaintiff failed meet his burden of proof on summary judgment. Specifically, defendant points out that plaintiff stated that he was unsure what caused his fall, but that he guessed it was water. Plaintiff opposed the motion, and attached medical records as well as his own affidavit stating that he was taking pain medication at the time of the deposition. He further averred in the affidavit that he slipped while exiting the restroom and noticed that his pants, shoes and socks were wet after the fall. He also stated the floor was concrete without a non-skid surface and he did not see any floor mats. The motion was initially denied by the trial court.

Defendant subsequently filed a second motion for summary judgment on the same grounds with additional evidence submitted in support thereof, and this motion was granted by the trial court by judgment signed on August 18, 2010. It is from this judgment that plaintiffs now appeal.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991); Pizani v. Progressive Ins. Co., 98-225, p. 3 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). If the adverse party fails to produce factual support sufficient to show that he will be able to meet hisLevidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Hyman v. East Jefferson General Hosp., 04-1222, pp. 3-4 (La.App. 5 Cir. 03/01/05), 900 So.2d 124, 126.

The applicable law, La. R.S. 9:2800.6, provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3)The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

In order to recover damages for the slip and fall, plaintiffs have the burden of proving all three of the requirements of La. R.S. 9:2800.6(B), and the failure to prove any is fatal to the cause of action. In order to meet the burden, plaintiffs must make a positive showing of the existence of the condition prior to the fall. The defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. La. R.S. 9:2800.6 does not Lprovide for a shifting of the burden. See, White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081, 1086.

In its motion for summary judgment, defendant argued that plaintiffs failed to meet their burden of proof that there was a “condition” on defendant’s premises which caused Mr. Alonzo to slip and fall. Defendant attaches to the motion the deposition testimony of George Alonzo who, when asked what caused him to slip, stated as follows:

I guess the floor was damp. I didn’t really see it, because I — you know, I wasn’t looking down when I walk.

Mr. Alonzo further stated that he assumed the floor was wet, but that he did not look on the floor after the fall to see what he would have slipped on. Defendant contends that based on this testimony, plaintiffs are unable to meet the requirement of La. R.S. 9:2800.6(B)(1) to prove the existence of a condition which presented an unreasonable risk of harm.

In opposition to the motion, plaintiffs submitted medical evidence that George Alonzo was taking pain medication on the date of his deposition testimony. They also submitted an affidavit of George Alonzo who stated that after the fall, he noticed that his clothing was wet. Plaintiffs argue that this circumstantial evidence is sufficient to establish the existence of a hazardous condition. Further, plaintiffs contend that the condition of the floor was hazardous because it was concrete without an anti-skid surface, there were no mats or carpet in place, and defendant’s employees were allowed to enter the building in wet clothes and shoes.

In its second motion for summary judgment, defendant submitted the deposition testimony of Dr. Keith Larkin, George Alonzo’s treating physician, who Instated that the medication prescribed to Mr. Alonzo on the date of the deposition would not have affected his cognitive abilities.

The record in this case indicates that George Alonzo testified that he was unable to identify the condition of the floor in defendant’s premises on the date of the fall. Although plaintiffs cite to circumstantial evidence to overcome their burden of proof, we fail to. find that plaintiffs’ claim that the floor must have been wet to be sufficient to meet plaintiffs’ burden of proof in this matter. Further, defendant submitted competent evidence that Mr. Alonzo’s testimony on the date of the deposition was not impaired, and we therefore decline to consider the affidavit insofar as it contradicts plaintiffs prior statement during discovery.

For the reasons stated herein, we find that defendant established a lack of factual support for an essential element of the Alonzos’ claim and, thereafter, plaintiffs failed to establish that they would be able to satisfy their evidentiary burden of proof at trial. Summary judgment was properly granted. The judgment of the trial court is therefore affirmed.

AFFIRMED


author: COOKS, Judge.

text:
    STATE of Louisiana v. Shawn SHELTON.
    No. 11-22.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 28, 2011.

      Van H. Kyzar, District Attorney, Natch-itoches, LA, for State of Louisiana.
    Louisiana Appellate Project, G. Paul Marx, Lafayette, LA, for Defendant.
    Shawn Shelton, Angola, LA, Pro Se.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| PROCEDURAL HISTORY

On August 15, 2007, a grand jury indicted Shawn Shelton (Shelton), charging him with the second degree murder of Justin James (James) on October 30, 2005. The indictment alleged the murder was committed during the perpetration or attempted perpetration of forcible rape. Shelton pled not guilty on November 17, 2008. An amended indictment/bill of information was filed on February 5, 2010, revising the charge to manslaughter, a violation of La. R.S. 14:31(A)(2)(a).

The jury convicted Shelton of manslaughter on March 19, 2010. He was previously convicted in Nevada for the kidnapping and sexual assault of a fourteen-year-old boy, and was serving a sentence of thirty-five years to life in prison. Shelton committed this crime during the investigation of James’ homicide. The trial court sentenced Shelton to thirty years at hard labor on June 23, 2010, to run consecutively to the Nevada sentence. Shelton appeals his conviction. We affirm.

FACTS

On October 29, 2005, the victim, James, and his friend, Justin Wise (Wise), were drinking beer and watching television at the home of the victim’s sister’s boyfriend, about a 45-minute drive from Natchitoch-es. Two other friends, Josh Collins (Collins) and Brent McDaniel (McDaniel), called and asked James and Wise to come to their apartment in Natchitoches. The victim and Wise left for Natchitoches around 9:30 or 10:00 p.m.

The young men visited on the balcony of the third-floor apartment for two or three hours and saw Shelton at the apartment complex. According to Wise, Shelton said he had flown in from Hollywood, and someone had stolen his black ^Hummer vehicle. Collins, however, testified that Shelton told them he was waiting for a friend to return with the Hummer. McDaniel recalled people at the apartment complex gathered around a black Hummer. This was the same vehicle owned by Shelton in which Nevada police found cameras, and photos of young males, nude from the waist down. Some of the photos were taken inside Shelton’s Hummer.

When it “got kind of late,” Wise went inside and went to sleep on the couch, while James remained on the balcony of the third-floor apartment. At some point, James woke Wise and told him that Shelton had invited him to come down to his apartment; he asked if Wise wanted to go. Wise declined, and at 3:35 a.m. on October 30, 2005, the victim called Collins’s cell phone from a number Shelton identified in a written statement as his. Collins told the victim to come up to his apartment, and he then went to sleep. James never returned to Collins’ apartment.

During the early morning hours, James sent several messages to the telephone of his sister, Destiny James (Destiny), from an AOL account. Although Destiny believed the messages were received around 4:00 a.m. to around 6:00 a.m., a printout of the messages introduced into evidence showed they were sent from 2:01 a.m. to 4:26 a.m. The messages indicated James had met “a pretty cool dude” named Shawn Shelton who was a producer for a movie company. The messages were sent from Shelton’s computer.

Contrary to his representations to James, Shelton was no movie producer. Kirk Kepper (Kepper), a movie producer, actor, and principal in Skinny Giraffe Productions, filming a movie in Natchitoches at the time of the victims’ death, testified. According to Kepper, Shelton was originally hired for security work associated with the movie, and then worked as a runner and production assistant. Kepper told him he would have the “vanity title” of assistant producer when the movie was released. He further testified that Shelton had not been employed with | ?,Kepper for approximately three weeks to a month pri- or to his meeting James on October 29, 2005.

The record reveals Shelton was anything but a “cool dude” or movie producer. Shelton was a former California police officer convicted of sexually assaulting a fourteen-year-old boy in Nevada while the current charge was pending. He was later convicted and is serving a thirty-five year to life sentence in prison. Shelton used subterfuge to lure the young boy in Nevada to accompany him. In that episode, Shelton posed as a law enforcement officer investigating a crime. Shelton used a Polaroid camera to take pictures of the Nevada boy as part of his scheme to sexually assault him. Other photos of young men nude from the waist down were found in Shelton’s possession in his black Hummer. These young men appear to be in drug induced states while being sexually assaulted.

Kepper was driving Shelton’s black Hummer to Natchitoches on October 30, 2005 after staying overnight in Lafayette with the Hummer when he received a call from one of Shelton’s roommates, saying something was wrong at the apartment. Apparently the roommate was unable to make a 911 call and “was kind of freaked out.” Kepper was then successful in calling 911.

Randy Williams of the Natchitoches Police Department was dispatched to the Frog Pond Apartments in response to the 911 call. Upon arrival at Shelton’s apartment, he saw the victim, nude from the waist down, wearing only two t-shirts, lying on the floor with his legs inside a bedroom and the rest of his body extending into the living room. Shelton appeared to be performing CPR on him. Williams noticed a brownish substance in front of the closet in the bedroom with a blanket on top of part of it, and he saw drag marks on the floor leading from Shelton’s bed to where the body was lying in the doorway. He testified it appeared to him that someone made an effort to clean the scene and hide the substance on the floor.

14James arrived dead at the hospital. He died as the result of ingesting lethal quantities of morphine and cocaine allegedly distributed or dispensed to him by Shelton. Williams testified that he observed the victim’s body at the hospital while it was being examined by the assistant coroner. He observed that there was a shiny substance on the victim’s rectum and that his rectum appeared “opened”. He further testified that the victim’s “rear end” was “very clean,” which he found very odd, considering that in his experience when a person dies their bowels empty and, as he stated, “that’s not the part you want to look at.” In his experience, the area was too clean under the circumstances.

Detective Corporal Jayson Linebaugh of the Natchitoches Police Department also responded to the call. He took a statement from Shelton in which he claimed he woke up and saw the victim on the floor. He claimed the victim did not respond when he tried to wake him, and that the victim vomited when he tried to rouse him. Testimony at trial established that a brown substance, which appeared to be the victim’s vomit, was observed on the pillow case, comforter, and afghan in Shelton’s room. Shelton further stated that earlier in the evening, the victim asked if Shelton had a computer to email his sister. Shelton claimed he went to bed, but the victim kept coming in throughout the night, using the computer while he slept. According to Shelton, when he found James, he was not breathing, and he tried to revive him with CPR.

Linebaugh testified that it looked like someone had unsuccessfully tried to clean the brown stain on the carpet in the bedroom and that he too observed smear marks “like it had been ground down into the carpet.”

Testimony by James’ sister and friends established that James was not a drug user and had not used drugs in their presence on the day he died. They also testified that James was not a homosexual and to their knowledge did not engage in | ^homosexual activity. To their knowledge James was only interested sexually in females.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We have discovered one error patent on the face of the record. The trial court imposed sentence immediately after denying the Motion for Post-Verdict Judgment of Acquittal and the Motion for New Trial without waiting the required twenty-four hour period and without a waiver from the defendant, contrary to the provisions of La.Code Crim.P. art. 878.

The sentencing hearing was held almost three months after the jury rendered its verdict. Shelton filed a sentencing memorandum. He also filed his motions for acquittal and new trial ahead of the hearing and, on the morning of the hearing, filed a Motion for Continuance. After hearing arguments the motions for acquittal and new trial were denied. Shelton’s Motion for Continuance was then heard and was also denied. It was based upon his assertions that he needed more time to review certain documents in the pre-sen-tence investigation report to address certain alleged discrepancies. After the denial of the continuance, both sides worked out the alleged discrepancies in the report and the hearing proceeded. Shelton did not object to proceeding with the sentencing hearing and did not mention the twenty-four hour delay time period. Shelton submitted evidence and argument in favor of mitigating his sentence. His attorney orally objected to the sentence imposed as excessive, but neither Shelton in his pro se brief, nor his appellate counsel, have raised excessive sentence as an assignment of error nor has either raised the issue of the failure of the court to wait twenty-four hours after the denial of the motions for acquittal and for new trial.

IfiThe trial court did not expressly ask if defendant was ready to proceed with sentencing and defense counsel did not make any expression which might be considered an express waiver of the twenty-four hour waiting period. We have, however, previously held that in the absence of an express waiver there can be an implied waiver by the defendant. In examining this record we find there was an implied waiver. This case is much like State v. Taves, 02-709 (La.App. 3 Cir. 1/15/03), 846 So.2d 1, affirmed in part, reversed in part on other grounds, 03-518 (La.12/3/03), 861 So.2d 144. As in Taves, defense counsel in this case was well aware that sentencing would be taken up at the scheduled hearing after the court heard his motions for acquittal and new trial. As we discussed above, the motion for continuance was based on the desire to have more time to review the pre-sentence investigation report and did not make any mention of the twenty-four hour requirement as a basis for a continuance. Also, as in Taves, defense counsel declared his intent to introduce evidence at the sentencing hearing and was successful in clearing up some alleged discrepancies in the pre-sentence investigation report. He also argued for leniency and presented what he considered mitigating factors. Likewise, as in Taves, Shelton does not “raise as error the trial court’s failure to delay sentencing and did not allege prejudice.” Id. at 1252. In Taves, we did find the sentence excessive but that finding was reversed by the Louisiana Supreme Court. As we noted in State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62, in the Taves case “the supreme court reversed this court’s finding of excessiveness and reinstated the sentences without any mention of the trial court’s failure to abide by the delay required by La.Code.Crim.P. art. 873.” We find there was an implied waiver of the twenty-four hour waiting period and further find that Shelton makes no argument claiming prejudice resulting from the failure to delay sentencing for |7the required twenty-four hour period. As Shelton suffered no prejudice and impliedly waived his right to the twenty-four hour delay, the error patent is harmless.

ASSIGNMENT OF ERROR NO. 1

Shelton argues the Amended Indictment/Bill of Information was defective in that it failed to specify a particular offense and instead listed multiple possible offenses and did not allege any specific facts or specify his conduct which formed the basis of the indictment. He argues the Bill of Information should have been quashed. Initially, Shelton was indicted by a grand jury on a charge of second degree murder. The State, on its own initiative, amended the Indictment to a charge of manslaughter. Shelton never filed a Motion to Quash but filed a motion attempting to compel the state to elect and state a single offense on which to proceed. The trial court denied that motion finding the state is not compelled to choose a single theory to proceed. Because he failed to file a Motion to Quash, Shelton cannot raise this issue for the first time on appeal. See State v. Gainey, 376 So.2d 1240 (La.1979). Despite this procedural bar, however, we recognize that the state constitution does provide that an accused must be informed of the nature and cause of the accusations against him. La. Const. Art. 1, Section 13. These requirements are embodied in the Louisiana Code of Criminal Procedure Articles 464 and 465. A review of the record shows that even if Shelton had properly filed a motion to quash, the state more than adequately complied with the requirements. The Amended Indictment/Bill of Information specifically cited the manslaughter statute and listed every predicate offense the state alleged might be applicable. Shelton was well-informed of the crime with which he was being charged and the specific nature of the underlying offenses which the state maintained were applicable. There was extensive pre-trial discovery in the case and Shelton points 18to nothing which would demonstrate he was confused or did not understand the basis of the charge against him or the alleged grounds upon which the state based the charges for which he was being tried. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2 and PRO SE ASSIGNMENTS OF ERROR ONE THROUGH FIVE

Shelton alleges his constitutional right to due process was violated because the State presented no evidence of his act or intent regarding a homicide, “ignored its own investigation and concocted an absurd and insupportable theory,” and misled the jury by confusion and inadmissible other crimes evidence. In his pro se brief, he argues proof of the crimes of manslaughter, simple rape or attempted simple rape, sexual battery or attempted sexual battery, or possession or distribution of Schedules II and IV dangerous substances was never established, and the circumstantial evidence against him insufficiently proved no reasonable hypothesis of innocence.

First, he argues the victims friends should not have been allowed to testify that he did not use drugs and was not a homosexual. Shelton never objected to that testimony at trial and, therefore, may not raise it now for the first time on appeal. La.Code Crim.P. art. 841.

The gist of the remainder of Shelton’s argument in these assignments of error is that the evidence was insufficient to convict him because the State did not show a rape or sexual assault was perpetrated or attempted on the victim and did not directly relate the drugs found in the victims body to Shelton. He also asserts in his pro se assignment of error number two that the State made improper remarks in its opening statement in violation of La. Code Crim.P. arts. 766-769. He asserts the State falsely stated in opening that he was a flunky and not a producer as he had | fltold James. Testimony at trial from Kepper supports the prosecution’s conclusion. There is no merit to this assignment of error.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521, (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

It is the factfinder’s role to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most Imfavorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. -, -, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

Nevertheless, it is not the function of the appellate court to reassess credibility of witnesses or reweigh the evidence:

[The supreme court has] repeatedly cautioned that the due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder only to the extent necessary to guarantee the fundamental protection of due process of law.

State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted).

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

Manslaughter under La.R.S. 14:31(A)(2)(a) is “[a] homicide committed, without any intent to cause death or great bodily harm ... [w]hen the offender is | ^engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.... ” The State .contended Shelton committed a homicide by distributing or dispensing morphine, cocaine, and alprazo-lam to James for the purpose of raping him.

Randy Williams of the Natchitoches Police Department testified the victim was found nude from the waist down wearing only two t-shirts when the officer arrived at the apartment. He saw the body at the hospital right after the victim was pronounced dead. The assistant coroner for Natchitoches Parish turned the victim on his side, exposing his rectum. Williams saw “some kind of substance there and his rear end was opened.” He testified the substance was shiny, “almost like uh, Vaseline or something to that effect.”

James Parker, an investigator for the coroners office, also examined the body at the hospital on October 30, 2005. He, too, saw a viscous, glistening substance on the skin surface around the anus that he felt might be a lubricant but he did not collect a sample of the glistening substance. He did not notice anything abnormal regarding the appearance of the rectum.

Kelly Raley, qualified as an expert in forensic DNA analysis, testified she had tested the penile, oral, and rectal swabs taken during the victim’s autopsy. She found the victim’s DNA in a sperm cell on the penile swab and prostate specific antigen (PSA) from an unknown donor on the rectal swab. According to Raley, PSA is found in male urine and seminal fluid. Raley explained that it is not scientifically possible to determine whether the PSA was the victim’s or from another person.

Defendant presented Dr. Richard Kamm (Dr. Kamm) of the Line Avenue Clinic in Shreveport as an expert in anatomic pathology and clinical pathology. 112Pr. Kamm was first contacted regarding this case by the Natchitoches Parish District Attorney’s office. Correspondence from the District Attorney’s office furnished Dr. Kamm with the report of death, certificate of death, the Natchitoches Parish EMS ambulance run report with statements and coroner’s notes, the drug screen report of the Natchitoches Parish Hospital, the autopsy report, and the St. Louis University Toxicology laboratory report which indicated particular interest in what the toxicology results showed “as to time and quantities of drugs ingested.”

Dr. Kamm, based on these documents, testified the victim’s blood screen was positive for morphine, an opiate; alprazolam, a drug from the benzodiazepine family; cocaine; cocaine metabolites; and Lido-caine. He believed the Lidocaine was administered during resuscitation attempts. An unknown number of Lortab, an opiate, and Restoril, a drug in the benzodiazepine family, were missing from Sheltons prescription bottles for those medications. Additionally, cocaine metabolites indicated alcohol was in the victim’s bloodstream at the time the cocaine was ingested. The presence of multiple breakdown products indicated to him that the cocaine was taken over a period of time, perhaps in only two administrations, with the last being within four hours of the victim’s death. As noted above, James was in Shelton’s room during such time period.

Dr. Kamm opined that the victim’s body had not been able to break down all of the morphine at the time of his death, indicating it was taken “fairly recently” before his death. The Alprazolam was not found in a lethal level, but morphine was present in lethal amounts.

Dr. Kamm explained morphine is most commonly injected or inhaled. Because the documents provided to him indicated that the victims body showed no injection marks anywhere, he believed the victim most likely inhaled it. The autopsy report indicated no pills or capsules were found in the victim’s stomach. |13He opined the victim could have vomited any pills or capsules he may have consumed, decreasing the gastric contents found during the autopsy. Dr. Kamm’s procedure in that event would be to examine any vomitas found near a victim. In this case, no testing was done on the brown substance found on the carpet, underwear, afghan, pillow case, belt, wash cloth, t-shirt, shoes, comforter, or socks in Defendant’s apartment. Further, Dr. Kamm testified the toxicology reports showed “there was not one massive dose” of cocaine. Rather, the victim “had experienced it at least on multiple occasions, maybe only two.” Further, he believed “the ingestion of this overdose was less than four hours prior to death” but he could not exclude 24 hours as “an outside time” for the earlier ingestion(s), based on the presence of the metabolites. He stated that “inhalation is a voluntary event,” and in his opinion “its very difficult to get [people] to inhale something they don’t want to.” Nevertheless, it was his opinion that James had ingested the cocaine by inhalation as the reports did not identify any injection marks.

The State admitted two photographs previously deemed inadmissible, on the showing made in that writ application, by this court over Shelton’s objection in an effort to show similarity between this purported crime and the situations shown in the photographs. State v. Shelton, an unpublished writ decision bearing docket number 09-819 (La.App. 8 Cir. 10/22/09). Dr. Kamm believed “from the limited amount of information [he saw],” the unidentified individual portrayed in Exhibit S-34 appeared to be unconscious. He admitted the individual could be either intoxicated or unconscious, or, the individual could simply be “laying there,” or, the photograph could be posed.

Further, with regard to James wearing no pants when authorities arrived at the apartment, Dr. Kamm testified he “couldn’t make any real accusation or any real | M thing out of it as to whether it was done by someone else or by the individual or what was going on.”

Dr. Frank Peretti (Peretti), associate medical examiner/forensic pathologist for the State of Arkansas, performed the autopsy on James on October 31, 2005. He completed his autopsy report on December 15, 2005. He was qualified as an expert at trial in the field of forensic pathology. Dr. Peretti concluded that in his opinion no oral or anal sex occurred with this victim because no sperm was found on the oral cavity, no saliva was found on the penile swab, and no sperm was present on the anal swab.

Regarding the presence of PSA on the victims rectal swab, Dr. Peretti offered his opinion by an explanation. Because PSA is found in the semen and male urine, but contains no DNA, the donor cannot be identified. He opined one logical explanation which might explain the presence of PSA:

When males die, there is [sic] little muscles in the seminal vesicles around the prostate, and because we go through rigor mortis quite fast, 99% of men ... after males die they ejaculate. And a lot of times ... we see it every day, it sort of dries and it runs down. So, a lot of it, what we see is ... the deceased[’s] PSA.

Dr. Peretti also believed the slippery, glistening substance seen by Randy Williams and James Parker was dried ejaculate of the victim. He specifically “looked for foreign material, in case there was a lubricant.” Neither Dr. Peretti nor the crime lab found anything. If a lubricant had been present, he believed he “would’ve seen it on the slide.”

Additionally, Dr. Peretti found the victims anus to be atraumatic. Dr. Charles Curtis, the Natchitoches Parish coroner, told Dr. Peretti “they were looking for” evidence of forcible sodomy; Dr. Peretti “spent an extra details and to looking for [sic], and it’s not there. He was not sodomized, there was no trauma, whatsoever, and there was no sperm.” Dr. Peretti believed anyone who thought the lifianus was dilated or “somewhat opened in comparison with its normal state” was wrong. He expressed his opinion that if the victim never experienced sodomy before, any insertion of a penis into his anus would have caused a tear, regardless of whether he was in a drugged state. Although Dr. Peretti testified in his opinion no rape occurred, he could not tell from his examination whether an attempted rape or attempted sexual battery took place.

Because other substances associated with morphine were not present, Dr. Per-etti felt the victim took pure morphine at the time of his death. The presence and amounts of cocaine in the blood, urine, and vitreous fluid indicated to him that the victim was using the drug at least twenty four hours prior to his death. Dr. Peretti explained the chemicals travel from the blood to the vitreous fluid and then are eliminated through the urine. He believed the victim’s first cocaine use occurred at least twenty four hours prior to his death because a cocaine metabolite, cocaethylene, was present in all three fluids. The toxicology report showed the blood was negative for alcohol but positive for benzodiaze-pines, cocaine and its metabolites, and morphine. The vitreous fluid contained cocaine and its metabolites, and the urine was positive for cocaine, its metabolites, and morphine.

The State placed great weight in its closing argument on the fact that the victim was found nude below the waist and his pants were never recovered. The rest of the victim’s clothes were in the apartment next to Shelton’s bed including James’ underwear, socks, shoes, and belt. No one asserts that James arrived in Shelton’s apartment without pants. Further, the State’s expert testified that it is not likely the victim had the coordination to remove his shoes and pants in his severely drugged state. The State maintained Shelton removed the victim’s pants. The State further maintained that Shelton removed the pants from the apartment because they contained incriminating evidence. The record does not indicate that any 11ssearch was ever made for the pants. Nevertheless, consistent with this assertion, the officers who responded to the 911 call testified that it appeared to them an effort was made to clean up the victim’s vomit and to hide what could not be cleaned up with a blanket thrown over the vomit. They further testified that visible drag marks on the carpet indicated the victim was dragged from the area near Shelton’s bed to the area in the doorway where he was lying when the officers arrived. Additionally, one officer and the assistant coroner testified that the victim’s posterior was very clean, which is unusual under the circumstances, that they observed a shiny, viscous substance on the victim’s rectum, and that the rectum appeared open at the time of their exam immediately after the victim was brought to the hospital. Evidence showed that James was in Shelton’s apartment for many hours prior to his death and showed that he had been drinking alcohol several hours prior to meeting Shelton.

It was for the jury to judge the credibility of the witnesses, including expert testimony, in reaching its conclusions. Based on the evidence presented at trial the jury could reasonably conclude that Shelton’s hypothesis of innocence was not reasonable. Given the evidence of Shelton’s prior criminal conviction for sexually assaulting a young male, his photographing of young males nude from the waist down while engaging in sexual contact with them, the fact that the victim’s family and friends testified James was not a drug user, had not used drugs on the day in question, and did not engage in homosexual behavior, the observations of the officers immediately after the incident which included attempts to hide and/or destroy evidence, finding this young male victim nude from the waist down, severely impaired on multiple drugs and alcohol, with what appeared to a police officer and the assistant coroner who examined the victim first at the hospital to be [17a shiny lubricant on his rectum, we cannot say the jury acted unreasonable in reaching its verdict.

Likewise, we reject Shelton’s assertions that the photographs and other crimes evidence should not have been introduced. This evidence was very relevant as to motive, intent, preparation, plan, system and absence of mistake or accident. See La.Code Evid. art. 404(B) and State v. Archield, 09-1116 (La.App. 3 Cir. 4/7/10), 34 So.3d 434. We will not disturb the trial court’s ruling as to the admissibility of such evidence in the absence of a clear showing of abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326. We find no abuse of the trial court’s discretion as the record reveals the evidence was very probative as to Shelton’s actions regarding James. The facts surrounding James’ death include many similarities with Shelton’s other conviction for sexually assaulting a young male, and his photographing of other young males nude from the waist down, along with his victims, including James, being in drug induced states. The evidence is relevant and highly probative as to Shelton’s motive, intent, and manner of carrying out his predatory sexual activities.

Shelton attempts to make much of Dr. Peretti’s testimony in that he opined no sexual assault occurred. The jury was free to weigh all of the evidence, including accepting or rejecting Dr. Peretti’s testimony. State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973. The autopsy report of Dr. Frank Peretti indicated the “investigation of the circumstances of death revealed that the decedent was at an acquaintances home when he was found slumped over his computer.” None of the testimony at trial supported this statement in Peretti’s report. Even Shelton’s statement, admitted at trial, said:

118I fell asleep and awoke at approx [sic] 9:00 am where I found him (Justin) snoring on the floor near my bedroom desk. At about 10-11:00 am (not sure on the time) I tried to wake him, he was still snoring. As I shook him he began to vomit. I couldn’t wake him & found no pulse.

The investigating officers testified they found James lying on the floor in the doorway of Shelton’s apartment and also found drag marks in the room and vomit hidden under a blanket near the bed indicating James’ body had been moved from Shelton’s bed to the door. There was also what appeared to be vomit on the pillow case, comforter, and afghan in Shelton’s bedroom. We note also that even Dr. Peretti admitted he could not say whether James was a victim of an attempted rape or sexual assault, and he could not rule out that possibility. The record reveals substantial evidence from which the jury could reasonably conclude that James was the victim of at least an attempted rape or sexual assault and that his death occurred during the attempted perpetration of such crime(s) while he was rendered incapable of resisting due to a drug-induced state instituted by Shelton. There is sufficient evidence to support the verdict of manslaughter.

CONVICTION AFFIRMED.