author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Ricardo K. DUKES.
    No. 10-1455.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Bradley R. Burget, District Attorney, Ann S. Siddall, First Assistant District Attorney, Seventh Judicial District Court, Vidalia, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Ricardo K. Dukes.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Ricardo K. Dukes, was initially charged by bill of information with manslaughter, a violation of La.R.S. 14:31. He was later indicted by a grand jury with second degree murder, a violation of La. R.S. 14:30.1. Pursuant to a plea agreement, Defendant pled guilty to the amended charge of manslaughter. Defendant was sentenced to serve twenty-five years at hard labor, with credit for time served. Following a hearing, Defendant’s pro se motion to reconsider sentence was denied. Defendant now appeals asserting that his sentence is excessive. Defendant’s sentence is affirmed, however, we remand with instructions consistent with this opinion.

FACTS

The State set forth the following facts as a basis for Defendant’s guilty plea:

[O]n April 2nd of '08 the victim, Mr. Holmes, and the defendant were at the home of Carolyn Williams on John Dale Drive in Vidalia. At some point a disagreement began between Mr. Holmes and Mr. Dukes. The disagreement resulted, apparently, from what we can determine, in some pushing and shoving. We’re not sure. Mr. Homes [sic] entered into the bathroom. Mr. Dukes followed him into the bathroom. A knife, I’m going to use word, fight, occurred. Mr. Holmes suffered, in addition to a number of defensive wounds, suffered two separately, equally fatal stab wounds to the chest. Mr. Dukes had no wounds on him, no defensive wounds whatsoever. He left. Mr. Holmes expired shortly thereafter on the bathroom floor.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

The sentencing minutes state that the trial court informed Defendant that “he/ she has Two (2) years to file for POST CONVICTION RELIEF from the date this conviction becomes final.” According to the sentencing transcript, however, the trial | gcourt erroneously advised Defendant stating in pertinent part (emphasis added):

THE COURT:
All right, now that you’ve been sentenced, the Court will advise you that you have the right to appeal from the sentence and judgment of this Court.
You are further advised that if you desire to take an appeal a notice of appeal must be filed with the clerk of court within five days of this date. You are entitled to have an attorney represent you on appeal, and if you’re indigent, that is, financially unable to employ an attorney, the Court will appoint an attorney to represent you without any cost to you. If you’re unable to pay the cost of an appeal you also have the right to apply the Court for leave to appeal in forma pauperis, which, when granted would relieve you from having to pay the cost of the appeal.
The Court will advise you that there is a two year prescriptive period for filing post conviction relief applications including applications which seek an out of time appeal. An application for post conviction relief will not be considered if it’s filed more than three years after the judgment of conviction and sentence becomes final.
THE COURT:
I thought I said two; it’s two years to file your post conviction relief.

Louisiana Code of Criminal Procedure Article 930.8 provides that the two-year prescriptive period begins to run when the defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. art. 914 or 922. Louisiana Code of Criminal Procedure Articles 914 and 922 provide for the time period for filing an appeal as well as the time at which an appellate or supreme court judgment becomes final. According to the time periods set forth in those articles, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided that the defendant files neither an appeal nor a motion to reconsider sentence. Thus, the trial court in the present case erroneously advised Defendant regarding the prescriptive period of Article 930.8. Accordingly, the trial J^court is directed to inform Defendant of the correct prescriptive period by sending appropriate written notice to Defendant within ten days of the rendition of this opinion. Additionally, the trial court is instructed to file written proof in the record that Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Defendant argues that his sentence is excessive and that the trial court did not comply with La.Code Crim.P. art. 894.1. This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 [p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may 14provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Defendant pled guilty to manslaughter, which carries a maximum possible sentence of forty years at hard labor. As such, Defendant’s twenty-five-year sentence was just over one-half of the maximum sentence he could have received. Additionally, Defendant’s sentencing exposure was significantly reduced as a result of his plea agreement. Prior to his plea agreement, he faced life in prison for second degree murder.

At sentencing, the State offered into evidence the victim’s autopsy report, fifty-five photographs of the crime scene, and a video-taped confession of Defendant. The content of the video tape, however, was not considered due to its length. The State also urged the court to impose the maximum sentence, given the heinous nature of the crime. The victim’s mother also made a victim impact statement regarding the emotional pain she suffered as a result of the victim’s death.

Defendant urged the court to consider in mitigation that the altercation between he and the victim escalated under the influence of alcohol and other narcotics, that he did not have an extensive history of convictions, and that he was only thirty years old. Defendant also had a work history as a bag boy at a grocery store.

The trial court then stated for the record what it considered in sentencing Defendant, noting first that Defendant was classified as a second felony offender. |fiThe trial court considered the facts of the offense as reported by Defendant in his statement to an investigating officer. Defendant reported that on the day of the accident, he and the victim were at the house of Defendant’s girlfriend. Defendant alleged that both he and the victim had been drinking alcohol prior to the incident. According to Defendant, the victim started cursing at him and accusing him of doing something to his girlfriend. The victim and Defendant began arguing and then started fighting. The victim hit Defendant twice in the mouth. Defendant pulled out a knife to defend himself because he thought the victim was reaching for a knife in his pocket. Defendant then “hit” the victim before he could pull out his knife. Defendant saw the victim fall and noticed he was bleeding. At that moment, Defendant knew he had cut the victim. Defendant then left to check on his grandmother in Natchez, Mississippi, where he was later arrested. He did not know that the victim had died.

Next, the trial court referred to Defendant’s criminal history. In 1998, Defendant was arrested for various misdemeanors and felonies, only one of which had a disposition — possession of schedule II controlled dangerous substance, reduced to a misdemeanor. In 2004, he was convicted of simple assault and domestic violence and was sentenced to two years at hard labor, suspended, and placed on five years probation.

With regard to Defendant’s social history, the trial court noted his age, that both of his parents were deceased, and that he had an older brother and younger sister, as well as four step-siblings. Defendant completed high school and worked various odd jobs until 2001 through 2005 when he worked at Gallo Construction building pallets. At the time of his arrest, he was employed as a landscaper for Gallo Construction. Defendant never married and had no children. He started drinking | fiwhen he was seventeen years old, after his mother passed away, and he did not stop until the instant offense. Lastly, Defendant admitted to smoking marijuana, but indicated that he had not smoked in the five years prior to the offense.

The trial court then stated:

All right, the Court has considered this case and the presentence information, the discussions that were held with me by the state and the defense earlier today. I’ve reviewed the photographs. I’ve reviewed the autopsy report. It looks like, Mr. Dukes, this was a very horrible situation. The man had some terrible, terrible wounds and I can’t believe that you didn’t know that he was seriously injured.
You indicated you went to your grandmother’s house in Natchez and you didn’t know until they arrested you. But this man was very seriously injured and it’s over — for no reason. A life is gone. And that is a serious situation. You’ve seen this man’s sisters and his mother. They’ve suffered a loss that can’t be replaced.
I’m sure you have a family. I believe your mother has passed away and your father has passed away, but I’m sure you have some other relatives. I know you’ve got a brother and a sister and some step-siblings. But they have the hope of seeing you again, whereas, the mother and sisters of the victim don’t have that hope of seeing their loved one again on this earth.
I believe that when you take a human life then you have to pay a pretty substantial price for it. The District Attorney in this case and your attorney were able to arrive at a plea agreement whereby the mandatory life sentence would not be imposed. Had they convicted you of the second degree murder it would be life without parole. You’d spend the rest of your life in prison. But through the plea agreement that did not take place. I feel that I have to give you a substantial sentence due to the fact that there is a man’s life has been taken. I feel that that has to be accounted for. I know in your statement you’re still saying self defense, but there is no indication that that is the case. If you would, please stand for sentencing.
In this case, after considering all factors, the Court is going to — under the manslaughter article, the Court could impose a sentence of up to 40 years. You’re 31 years old at this time. The Court feels that 40 years would be basically a life sentence for him by the time he would get out — at 30 years old. He would not have much life left. The Court feels that a lesser sentence would be sufficient in this case to punish him for the wrong that he did.
|7A1so, the Court feels that there is some mitigation in the case because of the victim’s — the drugs and alcohol that was in his system. So I feel that there is some mitigation for that. Apparently, the picture I’m getting is that they were all participating in some alcohol, and possibly other substances. I don’t know about Mr. Dukes’s blood levels, whether he has consumed anything other than alcohol or not. But the picture I’m getting is probably all of them had consumed certainly some alcohol and possibly some other things. And that in my mind is a mitigating factor.

Several cases with similar facts and sentences were found in the jurisprudence. First, in State v. Levy, 08-1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135, this court affirmed a twenty-five-year sentence for manslaughter. The defendant was involved in a fist fight, striking the victim several times and leaving him battered on the floor. The victim was subsequently taken to the hospital where he died as a result of the beating. The trial court noted that the defendant did not have a criminal record. The trial court also considered the defendant’s mental health issues wherein he was found to be incompetent to proceed at one point in pre-trial proceedings. Lastly, the trial court considered the seriousness of the offense and the defendant’s lack of remorse.

In State v. Jones, 09-751 (La.App. 3 Cir. 2/3/10), 29 So.3d 689, this court affirmed a twenty-year sentence for manslaughter. The defendant had a prior conviction for simple burglary. The trial court also discussed the benefit of his plea agreement and noted that the offense was one of violence. Additionally, the court specifically noted, in its review of the mitigating and aggravating factors in La.Code Crim.P. art. 894.1, the defendant’s use of a dangerous weapon in the commission of the crime. Additionally, the defendant fore-seeably endangered human life by discharging a firearm, even though it may have been accidental. In mitigation, the trial court found that the circumstances were unlikely to reoccur.

Lastly, in State v. Campbell, 09-287 (La.App. 5 Cir. 11/24/09), 28 So.3d 470, writ denied, 10-2 (La.6/18/10), 38 So.3d 321, the defendant’s twenty-two-year sentence was affirmed after considering the trial court’s lengthy reasons for the sentence. The trial court noted that the defendant was a personable young man who did a foolish thing. The trial court opined that the defendant did not commit the offense in self-defense or defense of others. The trial court also considered that the defendant was young with no criminal record and would be middle-aged when he completed his sentence. The specific facts of the case were not provided, only that the trial court found a factual basis for the plea based on prior hearings and reports.

Considering our review of related jurisprudence, Defendant’s twenty-five-year sentence is comparable to sentences imposed under similar circumstances. Combined -with the benefit of his plea agreement, Defendant’s sentence is not excessive.

DECREE

Defendant’s sentence is affirmed and remanded with instructions to inform Defendant of the correct prescriptive period for seeking post-conviction relief by sending appropriate written notice to Defendant within ten days of the rendition of this opinion. Additionally, the trial court should be instructed to file written proof in the record that Defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Naddia and Randel MELDER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 11-98.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      Roy S. Halcomb, Jr., Broussard, Hal-comb & Vizzier, Alexandria, LA, for Plaintiffs/Appellants, Naddia and Randel Meld-er.
    Bonita Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Ap-pellee, State Farm Mutual Automobile Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and SHANNON J. GREMILLION, Judges.
   PETERS, J.

liTIie husband and wife plaintiffs, Ran-del and Naddia Melder, appeal the trial court’s grant of summary judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company (State Farm), dismissing State Farm from the litigation because its policy at issue in this litigation did not provide underin-sured/uninsured motorist (UM) coverage for the vehicle involved in the accident sued upon. For the following reasons, we reverse the trial court’s grant of summary judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On March 1, 2007, Mrs. Melder sustained serious personal injuries in a two-vehicle accident in Alexandria, Rapides Parish, Louisiana. At the time of the accident, she was driving a 2006 Nissan pickup truck with the permission of her employer, Grimes Industrial Supply, L.L.C. State Farm had an automobile liability insurance policy in force and effect insuring the 2006 Nissan at the time of the accident.

The matter now before us arises from a suit filed by the Melders against State Farm and their own private automobile insurer, Louisiana Farm Bureau Casualty Insurance Company, seeking to recover for the damages they sustained under the UM provisions of each policy. After both insurers answered the suit, State Farm filed a motion for summary judgment seeking dismissal of the Melders’ claim against it. In the motion, State Farm asserted that when Floyd Grimes, owner of Grimes Industrial Supply, purchased the insurance policy covering the 2006 Nissan, he rejected UM coverage under the policy. In response, the Melders filed a motion for summary judgment seeking a judicial determination that the State Farm Policy did provide UM coverage for the March 1, 2007 accident.

| ¡.Following a hearing on the motions, the trial court rejected the Melders’ motion and granted State Farm’s motion, dismissing it as a defendant in the litigation. The Melders appeal that judgment, raising four assignments of error, all of which relate to whether the trial court erred in not finding that genuine issues of material fact existed so as to preclude the grant of a summary judgment.

OPINION

The motion for summary judgment is a procedural device whose purpose is to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. The burden of proof on the motion for summary judgment remains with the movant. La. Code Civ.P. art. 966(C)(2).

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

La.Code Civ.P. art. 966(C)(2). The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of |srecovery. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (citations omitted).

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427. Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith, 639 So.2d 730.

The law pertaining to uninsured motorist coverage was recently summarized by this court in Ware v. Gemini Ins. Co., 10-594, pp. 4-5 (La.App. 3 Cir. 11/24/10), 51 So.3d 179, 181-82:

UM insurance is provided for by statute that embodies a strong public policy to give full recovery for the automobile accident victims. Duncan [v. U.S.A.A. Insurance Co.], 06-363 [ (La.11/29/06) ], 950 So.2d 544 (citing Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981); Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Henson v. Safeco Ins. Cos., 585 So.2d 534 (La.1991); Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982)). “Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected.” Id. at 547 (citations omitted). The
rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative .... A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.
La.R.S. 22:1295.
The UM statute must be liberally construed. Duncan, 950 So.2d 544 (citing Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213; Roger, 513 So.2d 1126). This requires a strict interpretation of the exceptions to coverage. Id. (citing Roger, 513 So.2d 1126). The insurer bears the burden of proving that the insured rejected the UM coverage or selected a lower limit. Id. (citing Tugwell, 609 So.2d 195).

The form the Commissioner prescribed involves six tasks:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Duncan, 950 So.2d at 551. If the insurer uses the prescribed form and “makes certain that it is properly completed and signed, then the insurer receives a presumption that the insured’s waiver of coverage was knowing.” Id. at 552.

In Gray v. American National Property & Casualty Co., 07-1670, p. 14 (La.2/26/08), 977 So.2d 839, 849, the supreme court elaborated on the importance of completing the form before it is submitted to the insured for signature.

We now hold that compliance with the form prescribed by the Insurance Commissioner involves more than the rote completion of the “six tasks” identified in Duncan [v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544] by someone at sometime. Instead, we find that, in order for the form to be valid, the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured’s representative signifies an acceptance of and agreement with all of the information contained on the form. An insurer who is unable to prove that the UM selection form was completed before it was signed by the insured simply cannot meet its burden of proving by clear and unmistakable evidence that the UM selection form is valid.

In support of its motion for summary judgment, State Farm filed a copy of Policy Number 120-3262-B21-18, which purports to be the policy it issued covering the 2006 Nissan. That policy specifically states that it provides no UM coverage. Additionally, State Farm filed a copy of what appears on the surface to be a properly-|completed5 and signed Uninsured/Un-derinsured Motorist Bodily Injury Coverage Form (UM selection form) wherein Mr. Grimes rejected UM coverage on the 2006 Nissan. In the section of the UM selection form where the choices are to be made, Mr. Grimes’ initials appear in the blank stating that “I do not want UMBI Coverage.” Additionally, his name is printed in the appropriate blank and his signature appears on the appropriate line. The blank set aside for an appropriate policy number is filled in as 18-1825-H52, and the blank line for the date the form was signed bears the date of “8/21/06.”

State Farm also produced two affidavits and the deposition testimony of Mr. Grimes. In the affidavits, Mr. Grimes asserted that the 2006 Nissan was titled in the name of Grimes True Value Hardware, L.L.C., a limited liability company owned by him and Frank Grimes; that it was used by Grimes Industrial Supply, L.L.C., the entity employing Ms. Melder; that he was “involved in the management and day-to-day operations” of both limited liability companies; that he contacted the State Farm insurance agent concerning purchasing an automobile liability insurance policy; and that he is a named insured under the policy. Additionally, Mr. Grimes asserted in his affidavits that when he was presented with a UM selection form by his State Farm agent’s office, his name, the date of August 21, 2006, and the number 18-1825-H52 had already been printed in the appropriate blank; and that he reviewed the UM selection form and selected the appropriate block rejecting all UM coverage by placing his initials next to the appropriate block.

State Farm addressed the discrepancy between the temporary application number (18-1825-H52) and the policy number (120-3262-B21-18) with the affidavit of Vera Beckham, its Underwriting Section Manager who resides in the State of Missouri. Ms. Beckham asserted in her affidavit that when Mr. Grimes signed the UM coverage form on August 21, 2006, the procedure was that “[a]t a policy’s inception, a temporary application number is assigned to a policy at the agent’s office. This number is used to identify an application for coverage. Once the application is accepted by the underwriting department, a policy number is issued.” According to Ms. Beckham’s affidavit, State Farm issued the policy to “Floyd Grimes and Frank Grimes d/b/a Grimes True Value Hardware Store.” The DECLARATIONS PAGE of the policy itself reflects that the policy was issued to “GRIMES, FLOYD & GRIME [sic], FRANK, DBA GRIMES TRUE VALUE HDW STORE, 8322 HIGHWAY 71 N, PINEVILLE, LA 71360-2751”.

In his deposition testimony, Mr. Grimes testified that he had used the same Alexandria, Louisiana State Farm agent for both business and personal insurance for several years before the issuance of the policy at issue in this litigation and that he normally has nine or ten vehicles insured at the same time — either through his businesses or personally, and that the vehicles would be insured in separate policies. When questioned concerning completing the paperwork on a policy purchase, Mr. Grimes asserted that when he signed the UM selection form, it was always completely 17filled out except for his signature and the requirement that he initial the selection of coverage. When he purchased insurance for the 2006 Nissan, Mr. Grimes telephoned his State Farm agent from the automobile dealership to advise his agent of his intentions. He had no independent recollection of when the telephone conversation occurred or when he went to the agency to sign the appropriate papers.

State Farm also produced the deposition testimony of Stacy Anderson, an employee of the Alexandria, Louisiana State Farm agent whom Mr. Grimes contacted to have the policy issued. According to Ms. Anderson, she received a telephone call at 3:37 p.m. on August 21, 2006, and immediately entered the information provided into the computer to'obtain company approval. Ms. Anderson asserted in her deposition that after entering the information in the computer, State Farm provided her a temporary application number for use with the office paper work. She then used the information to prepare the UM selection form. In doing so, she printed Mr. Grimes’ name, the temporary application number, and the date on the UM selection form in the appropriate places. However, she did not recall being present when Mr. Grimes appeared to sign the form and initial the rejection box, and she did not know whether he came in on August 21, 2006, or sometime thereafter.

While the evidence is extensive concerning the relationship between Mr. Grimes and State Farm, we find that the trial court erred in granting the summary judgment dismissing State Farm as a defendant because a genuine issue of material fact exists as to Mr. Grimes’ authority to reject UM coverage. Simply stated, the policy purports to insure a vehicle belonging to Floyd and Frank Grimes, but Mr. Grimes sworn affidavit states that the ve-hide belongs to a limited liability company, [ ^Furthermore, the record contains no evidence of the authority by which Mr. Grimes executed the UM rejection, either on behalf of the limited liability company or the apparently non-existent partnership between himself and Frank Grimes. Given that unresolved material fact, the burden never shifted to the Melders in the summary judgment hearing.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment and remand the matter for further proceedings consistent with this opinion. We assess all costs of this appeal to State Farm Mutual Automobile Insurance Company.

REVERSED AND REMANDED.

      . The fact that this form complies with the requirements of the Commissioner of Insur-anee and La.R.S. 22:1406(D) is not disputed.

      . In this affidavit, Ms. Beckham provided the temporary application number as 18-1825-1152 instead of 18-1825-H52. She corrected this typographical error in a subsequent affidavit.

      . A certificate attached to the DECLARATIONS PAGE of the policy, prepared on State Farm letterhead stationary and executed by Kristin Mullins, State Farm's Underwriting Team Manager in its Missouri office, also asserts that the insurance policy on file with State Farm was issued to “Floyd Grimes & Frank Grime [sic] DBA Grimes True Value HDW Store” and cites the same Pineville, Louisiana address.

      . Ms. Anderson could not say with certainty who contacted her by telephone, but did obtain information concerning Mr. Grimes to be used in the necessary application to State Farm.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Ron Stewart MARTIN.
    No. 11-32.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      James David Caldwell, Attorney General, Terri R. Lacy, Assistant Attorney General, Baton Rouge, LA, for Plaintiff Appel-lee, State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant Appellant, Ron Stewart Martin.
    Ron Stewart Martin, Cottonport, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

On January 30, 2007, the Vernon Parish Grand Jury indicted Defendant, Ron Stewart Martin, with one count of second degree murder. Prior to trial, Defendant waived his right to a jury trial and moved to proceed via bench trial. Following trial on the merits, the trial court found Defendant guilty of manslaughter, in violation of La.R.S. 14:31.

Defendant now appeals his conviction. We affirm.

FACTS:

On November 25, 2006, Gladys Martin, a ten-week old infant, sustained injuries that caused her mother, Sheila Newhouse, to transport her to Beauregard Hospital. The doctors at Beauregard Hospital examined Gladys and eventually informed the family that they needed to medi-vac her to LSU at Shreveport.

On November 28, 2006, the medical staff at the LSU Medical Center in Shreveport determined that Gladys’s prognosis was fatal. At that point, Defendant was first interviewed by Vernon Parish detectives. In that interview, Defendant claimed that Gladys was in the care of Sheila when the injuries occurred. This fact was corroborated by Sheila.

After the family obtained a second opinion, life support was removed. Thereafter, an autopsy was performed on November 30, 2006, seeking the nature, extent, and possible cause of the Gladys’ injury and eventual death. Based on the information obtained through the autopsy and developed during the course of the investigation, Defendant was interviewed a second time.

The first portion of Defendant’s second interview was consistent with the information he relayed in the first interview. Defendant maintained that Sheila had dropped Gladys while giving her a bath; however, Defendant changed his story before the end of the interview. Defendant then said that it was he who had dropped the infant. Defendant explained that he and Sheila had originally stated it had been Sheila because he was scared he would get into trouble with his being on parole.

Defendant professed that the baby slipped out of his hands during a bath because she was slippery from the soap. When she fell, her head hit the side of the bathtub. Defendant said he picked up Gladys after she fell, took her into the bedroom, and called Sheila. Defendant also stated that he had consumed a six-pack of alcoholic beverages that day. Defendant agreed that the baby’s crying frustrated him, but it was not enough to make him intentionally hurt the infant.

Defendant was eventually arrested and charged with second degree murder of Gladys. At trial, several witnesses testified, including Dr. James Traylor, an expert in the field of forensic pathology. Dr. Traylor autopsied Gladys Martin in late 2006. Prior to starting his examination, Dr. Traylor had been informed that Gladys had been dropped in a bathtub. Dr. Tray-lor’s examination revealed that Gladys’ soft spot was bulging, which indicated swelling of the brain. There was a large linear skull fracture, about seven centimeters long, running backwards from behind the right ear. The fracture was initially obscured by the soft tissue hemorrhage caused by the bleeding associated with the skull fracture. After the tissue was removed, Dr. Traylor discovered the impact point just behind the right ear. It was one to one and a half centimeters in diameter, which is a little smaller than a dime. In addition, to the subdural hemorrhage, there was also a subarachnoid hemorrhage, which means there |swas blood located between the brain and the membrane covering it. The brain, itself, was swollen. Therefore, the autopsy showed that the cause of death was “blunt force injury to the head resulting in a linear skull fracture with all the other associated things.”

Dr. Traylor explained that, in falls, the brain is injured at the site of the impact as well as on the opposite side from the recoil caused by the impact. Though a baby’s brain slides around more easily because it is not fixed within the skull like an adult’s brain, there was no indication of a recoil injury in the instant case. Therefore, the evidence in Gladys’ autopsy was inconsistent with a fall. Further, according to Dr. Traylor, Gladys’ linear skull fracture could not have been the result of her being dropped, even from chest height.

Dr. Traylor explained that, at the time of the autopsy, he concluded that the infant’s death was caused by homicide. The death certificate, prepared by the coroner after reviewing Dr. Traylor’s autopsy report, reflected Dr. Traylor’s findings.

On cross-examination, Dr. Traylor explained that the surfaces of a porcelain tub would not have caused injuries consistent with those discovered during the autopsy because the injuries were caused by an object that had a point. However, Dr. Traylor did state that it was possible that the injury could have been caused by the baby sling shown in the bathtub in one of the photographs taken by detectives if the point of impact was a corner where pieces of the metal frame joined.

Dr. Traylor asserted that he ran gene testing on Gladys to make sure she did not suffer from osteogenesis imperfecta, commonly known as brittle bone disease. The results were negative for that disorder, but there was still a one percent chance that she had the disorder without it showing up in the test results. Dr. Traylor ^acknowledged that there was an ongoing debate in the medical field concerning pediatric head injuries.

On redirect examination, Dr. Traylor explained that the articles presented to him for discussion by the defense address the medical community’s tendency to assume that all traumatic brain injuries in children were inflicted. The articles stress that some of those injuries could have been accidental. Diagnoses, causal determinations, and autopsy findings are all somewhat dependent on the history provided to the doctors. In testimony initially proffered but later accepted into evidence, Dr. Traylor examined the bath seat and explained that there was arguably one area on the item that could have caused the injury; however, even dropping the infant onto it from a height of five feet would not produce the force required to inflict Gladys’ skull injury.

ASSIGNMENT OF ERROR NO. 1:

Defendant claims that the verdict is based on insufficient evidence where the State did not establish the cause of death. According to Defendant, the State merely relied on its evidence to suggest that the father was not truthful about how the accidental death occurred, without providing any evidence of what might have actually happened. Defendant also suggests that the State complained that the father did not go to the hospital enough during the baby’s treatment and relied on other innocuous facts as evidence that he did not love the child. None of these facts proved any conduct of Defendant which could have caused the baby’s death.

Further, the defense contends that the State’s expert was not credible and that the jury should have given greater weight to the evidence presented by the defense | ^showing the expert’s opinion was not reliable. Defendant complains that, ultimately, he was only convicted because the State showed he was a bad father.

The State responds that credibility determinations are within the purview of the finder of fact. Thus, the trial court, as the factfinder in the instant case, found the State’s witnesses to be credible after observing the witnesses, hearing the testimony, and inspecting the evidence presented at trial. The State maintains that its witnesses were credible and that the evidence was sufficient to support Defendant’s manslaughter conviction. Insofar as Defendant argues that the State’s expert witness was not reliable, the prosecution points out that Defendant did not challenge Dr. Tray-lor’s expertise at trial.

Following the trial, the trial court set forth its reasons for finding Defendant guilty of manslaughter:

All right, the Court has, of course, heard the case and after deliberating and considering the evidence and reviewing all that was presented, the Court would observe the following things, that is, when this — the mother was apparently on an errand to — for the father, Mr. Martin, in Oakdale and received this phone call while she was in the car with some friends and became upset because of the phone call and told them that she had to go home because something had happened. Now, that’s circumstantial evidence that what had happened was injury to her child. The mother jumps out of the car when they get to where her car was parked, before it even stopped, gets in her car and flies off to Pitkin. What does this concerned mother do for a woman who is upset about her child, presumably, because of what she had been told on the phone. We don’t know what that was, but based on her observations — the observations, her demeanor, she’s upset. What does she do? She goes in and makes arrangements to take her child to — immediately to take her child to the doctor or the hospital in Beauregard Parish. But she also proceeds to concoct this story with her boyfriend, father of the child, to where she’s the one who dropped the child while bathing it. I don’t have much sympathy for [the] mother. Ask yourself, what would precipitate these two to concoct this kind of story? But, they get to the hospital. Mr. Martin doesn’t go, I do find that unusual. Then the injuries are diagnosed as so serious that it has to be transported to Shreveport. They go to Shreveport, Mr. Martin goes with them up there, where they take the statement from him that corroborates the statement |figiven by the mother at the hospital two days before that she caused the injuries to the child. Then the child, of course, dies. Then we have the unrecorded statement by the Vernon Parish deputies, investigators.... [T]hat statement was taken before two deputies unrecorded where the defendant then says that he’s the one who dropped the child on the edge of the tub, a distance of about a foot. The coroner gets the case-not the coroner, the expert here, the forensic pathologist, the person who does the autopsy, and that’s — the autopsy reveals, of course, the fracture he described which is a severe fracture. The photographs verify that. Doctors describe the fracture, describe the mechanics of how fractures occur and what — how it affects the brain and the dynamics of a fracture. I listened to him pretty closely and at one point during — he described the difference between the force that the brain receives when the head is in motion and it strikes a solid object as opposed to when the head is at rest and force is applied to the head. I thought I understood him to say then that a fall couldn’t have caused this injury, that it had to be some force applied to the side of the head. But then he testified with respect to this little baby frame there that was in the tub that, well, it could — the fall on that thing could have caused — a fall on that could have caused it perhaps or he couldn’t rule it out or whatever he said. But the point is the doctor don’t know the dyna[m]ics of how it happened. All he can testify is what he kept saying up there that it was due to blunt force trauma and based on the nature of the trauma and the circumstances that he was aware of he had to pigeon hole it to these different categories shown on the death certificate and he happened to pigeon hole [it] in the homicide. There’s a lot of testimony about whether he— how [he] came up with that, but that’s— he had to do that based on the limited circumstances that he was presented with. Now, he kept saying that, but we belabored that point over and over and over and the bottom line is it’s not his position — that’s what I have to determine based on all the facts presented in this case whether it was homicide or not. Now, after the autopsy I believe the defendant was arrested and charged with — presented to a grand jury and they charged him with murder[,] and that’s- where we are today. But in — the Court in considering all of the evidence in this case, the defendant’s conduct is what the Court — is the only thing the Court has to focus on, not really the only thing, but it’s the main thing the Court focuses on in arriving at what happened to this ehild[,] and that’s circumstantial evidence is what I’m getting at. Circumstantial evidence is what I have to deal with here. I believe the circumstantial evidence that I put the most emphasis on is this agreement that was made between the two parents for her to go to the hospital and tell the doctors that she had caused this injury. I can— there’s no other reasonable explanation of that than to find beyond a reasonable doubt that this was done to protect the actual perpetrator, as it turned out later to be Ron Martin, and I do not believe that they would have concocted such a story if things had happened the way Mr. Martin said they happened when he gave his statement, supposedly |7fessing up to the — to investigators. I simply do not believe that is the way the injuries to this child occurred.
The Court finds beyond a reasonable doubt that the defendant is guilty of manslaughter under 31 — Revised Statute 31 ... A(2)(a).

It is not the function of the appellate court to reassess credibility of witnesses or reweigh evidence:

[The supreme court has] repeatedly cautioned that 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).

The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the |sJackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

“Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense.” State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983).

The statutory rule in evaluating the sufficiency of circumstantial evidence is, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. The Louisiana Supreme Court has explained the “hypothesis of innocence” stating:
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Johnson, 09-231, p. 6 (La.App. 3 Cir. 11/4/09), 21 So.3d 1159, 1164, unit denied, 09-2643 (La.5/21/10), 36 So.3d 230 (quoting State v. Chism, 436 So.2d 464, 469 (La.1983)).

The trial court found that Defendant was guilty of manslaughter under La.R.S. 14:31(A)(2)(a): “Manslaughter is: .... A homicide committed, without any intent to cause death or great bodily harm[ ] [w]hen the offender is engaged in the 19perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.... ” Second degree murder includes “the killing of a human being: .... When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or inflict great bodily harm.” La.R.S. 14:30.1(A)(2)(b). Thus, because cruelty to juveniles is one of the offenses listed in La.R.S. 14:30.1, it is excluded from the statutory definition of manslaughter.

However, Defendant could still validly be convicted of manslaughter based upon evidence sufficient to prove second degree murder because manslaughter is a responsive verdict to second degree murder under La.Code Crim.P. art. 814. “[A]n appellate court will not reverse a [factfinder’s] return of a responsive verdict, whether or not supported by the evidence, as long as the evidence is sufficient to support a conviction for the charged offense.” State v. Harris, 02-1589, p. 4 (La.5/20/03), 846 So.2d 709, 712-13.

Cruelty to juveniles includes, “[t]he intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense[.]” La.R.S. 14:93(A)(1).

The evidence most favorable to the prosecution shows that baby Gladys suffered terminal injuries while in Defendant’s sole care. The injuries consisted of blunt force trauma caused either by someone hitting the infant in the side of the head or slamming the child’s head against another object. Though Defendant and Ms. Newhouse initially claimed the baby had either hit her head on the side of the bathtub or on the floor of the bathtub in a fall, the fatal injury could not have been derived infrom either of those scenarios as Gladys’ autopsy yielded no evidence that the injuries were sustained in a fall. Also, notwithstanding Dr. Traylor’s testimony that he could not rule out the injury being caused by a spot located on the baby’s bath cot, Dr. Traylor continued on to say that dropping an infant onto the bath seat, even from a height of five feet, would not create enough force to inflict baby Gladys’ skull injury. Moreover, although the defense postulated that the infant’s injuries were due to normal handling of one afflicted with brittle bone disease, genetic tests showed only a one percent chance that the baby had brittle bone disease, and Dr. Traylor explained that, due to the elastic nature of infant bones, it would take more force to cause this injury to a baby than it would to cause the same or similar injury in an adult. Finally, Defendant’s initial efforts to conceal the fact that Gladys was harmed while in his sole care indicates a guilty conscience. See State v. Aymond, 08-1292, p. 16 (La.App. 3 Cir. 4/1/09), 8 So.3d 795, 803-04 (citing State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529); see also, State v. Williams, 42,803, p. 6 (La.App. 2 Cir. 12/5/07), 972 So.2d 1214, 1218, writ denied,, 08-144 (La.6/20/08), 983 So.2d 1271 (citing State v. King, 41,084 (La.App.2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411).

In another circumstantial evidence case involving the death of a child caused by non-accidental brain trauma, this court found sufficient evidence to support the defendant’s second degree murder conviction where the defendant was the only person with the opportunity to inflict the injury. State v. Miller, 06-595, pp. 6-8 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, 869, writ denied, 06-2577 (La.5/11/07), 955 So.2d 1278. As in Miller, there was sufficient evidence presented in the instant case Into support a conviction for second degree murder. Hence, a rational factfin-der could have found evidence sufficient to support the responsive verdict of manslaughter.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant also asserts that the State improperly shifted the burden of proof to the defense: “The State’s expert speculated about the injury to the baby and shifted the burden to the father to establish some causation when in fact there was no unambiguous fact supporting a finding of homicide.” Though Defendant’s brief initially sets forth this statement regarding the shifting burden of proof as an assignment of error, there is no corresponding argument contained in the brief. Accordingly, this assignment of error is waived. See Uniform Rules— Courts of Appeal, Rule 2-12.4.

ASSIGNMENT OF ERROR NO. 3:

Defendant asks this court to consolidate this appeal with that arising from his habitual offender adjudication and sentence: “The appeal should be consolidated with conviction and sentence in one single record with KA 10-0951.” Defendant posits that both appeals are inseparably joined as a matter of fact and law. Defendant maintains that all sentencing proceedings, including enhanced sentence proceedings, are part of the offense for which the sentence is being imposed.

The State replies that it has no objection to the cases being consolidated. However, it points out that Defendant did not file a motion to quash the habitual offender bill of information objecting to the use of a second docket number while the cases were still before the trial court. The prosecution adds that the defense also failed to file a motion to consolidate the cases for purposes of appeal and that |12Pefendant has further failed to specifically state what, if any prejudice, he has suffered from the dual docket numbers and appeal.

As noted by the State, the record is devoid of any attempt by Defendant to consolidate the cases in either the trial court or this court prior to the filing of his brief. Further, even though Defendant generally and conclusorily alleges prejudice, he lists no specific or particular prejudice. Finally, as Defendant’s appeals in the instant case were considered in conjunction with each other, there was no actual prejudice to Defendant.

Accordingly, this assignment of error is without merit.

PRO SE ASSIGNMENTS OF ERROR NOS. 2, 4, 6-8, & 10:

Defendant argues several assignments of error that appear to attack the sufficiency of the evidence. In Pro Se Assignment of Error No. 2, Defendant urges, “[t]he Defendant, Ron S. Martin did stipulate to Gladdie (Gladys) [being] in his care, but prosecution’s expert witness could not say when exactly the injury occurred.” In Pro Se Assignment of Error No. 4, Defendant asserts, “[p]rosecution presented punching or slamming my baby, but was disproven by Defendant’s presentation of Goldsmith & Plunkett (Defense Exhibit No. 1) and Defendant’s objection, and Defendant’s statement of the causation of what happened.” In Pro Se Assignment of Error No. 6, Defendant claims, “[t]he State complained of, and alleged numerous scenarios, but none was [sic] proven beyond a reasonable doubt.” In Pro Se Assignment of Error No. 7, Defendant contends, “State’s expert witness declared that a slip, drop, or fall could not be ruled out.” In Pro Se Assignment of Error No. 8, Defendant alleges, “[t]he accidental slip from Defendant’s arms was found to have caused a linear fracture to my babies [sic] skull, but expert witness testified that | ^fracture had enlarged due to the swelling of Gladdie’s brain and medical intervention.” In Pro Se Assignment of Error No. 10, Defendant complains that the pathologist only investigated the cause of death stated by law enforcement: Detective only gave pathologist one (1) causation of my babies [sic] condition, and coersed [sic] the pathologist through the entire autopsy, and pathologist wasn’t allowed to make his own professional opinion. Detective’s [sic] never gave the pathologist the truth as another causation of her condition. In violation of law, and holding’s [sic].

The argument in Defendant’s pro se brief is restricted to discussing the sufficiency of the evidence. Defendant maintains both that the prosecution failed to prove Defendant was guilty of any criminal activity and that he was convicted because he had prior felonies. Defendant contests both the credibility of the State’s evidence and the prosecution’s failure to present any evidence favorable to the defense. Defendant further questions the qualifications of the judge and asks this court to vacate his conviction.

As discussed in Assignment of Error No. 1, when the sufficiency of the evidence is reviewed in the light most favorable to the prosecution, any rational factfinder could have found evidence sufficient to support the responsive verdict of manslaughter.

Accordingly, these assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR NO. 1:

Defendant asserts, “[t]he alleged crime scene was not secured and people were inside the house to taint the evidence, or rearrange or move evidence.” Defendant does not include any argument concerning this statement in his pro se brief, and there is no objection on the record at pages cited by Defendant. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4; see also La.Code Crim.P. art. 841.

PRO SE ASSIGNMENT OF ERROR NO. 3:

Defendant alleges, “Defendant’s credibility was attacked without Defendant testifying in violation of Defendants [sic] rights.” As before, Defendant does not include any argument concerning this statement in his pro se brief, and there is no objection on this basis in the record at the page cited by Defendant. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4; see also La.Code Crim.P. art. 841.

PRO SE ASSIGNMENT OF ERROR NO. 5:

Defendant contends, “[t]he witnesses, Hope Gaskin, Kendra Calcóte, and Pam Newhouses’ [sic] statements and testimony is [sic] heresay [sic], and should have been dismissed as such under that rule.” Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.

PRO SE ASSIGNMENT OF ERROR NO. 9:

Defendant claims, “[d]efense objected to witnesses reading from record’s [sic], progress report’s [sic], synopsis’ [sic] verbatim which is in violation of law. Defenses’ continuing objection.” Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.

|15PRO SE ASSIGNMENT OF ERROR NO. 11:

Defendant urges, “[prosecution’s expert witness, Dr. James Traylor, a forensic pathologist was only allowed to give testimony on the fact a death occurred not to the nature of the death.” Defendant cites La.Code Crim.P. art. 101 in support of this argument.

Under La.Code Crim.P. art. 101, the coroner is required to investigate suspicious deaths:

The coroner’s jury and inquest are abolished.
The coroner shall conduct an investigation concerning the manner and cause of any death when informed that death has resulted from violence or accident, or under suspicious circumstances.
The coroner may conduct an investigation concerning the medical aspects of any case that may involve medical evidence and in which there is a reasonable probability that a criminal statute has been violated and shall do so when ordered by the court. This order may be issued ex parte by the court either on its own motion or on application by the district attorney.

Therefore, contrary to Defendant’s contention, La.Code Crim.P. art. 101 does not prohibit experts in forensic pathology from testifying as to their findings concerning the cause and manner of death.

Accordingly, this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO. 12:

Defendant asserts, “[t]he introduction of State’s exhibit No. 16 was improperly introduced by prosecution and wasn’t told to the defense for the chance to defend against.” Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error was waived. See Uniform Rules — Courts of Appeal, Rule 2-12.4.

| ^Moreover, the defense’s initial objection to State’s Exhibit No. 16 was that the record did not show that it was the bath seat actually used by Defendant and Ms. Newhouse to bathe their infant daughter. The defense was allowed to traverse Ms. Newhouse about whether the bath seat was the one used to bathe Gladys, and Ms. Newhouse confirmed that it was Gladys’ bath seat. When State’s Exhibit No. 16 was finally admitted into evidence, there was no objection by the defense. Accordingly, Defendant is also barred from raising this issue on appeal as there was no contemporaneous objection. See La.Code Crim.P. art. 841.

DECREE:

Defendant’s conviction is affirmed.

AFFIRMED.

      . Defendant has separately appealed his habitual offender sentence which we have decided this day in an unpublished opinion entitled State of Louisiana v. Ronald S. Martin and bearing docket number KA 10-951 (La.App. 3 Cir. 6/1/11), 2011 WL 2149781.