author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Darrell AMBEAU.
    No. 2008-KA-1191.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Robert L. Freeman, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, Michael Redmann, Legal Intern, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

_JjThe defendant, Darrel Ambeau (hereinafter “Defendant” or “Ambeau”) was charged with one count of violating La. R.S. 14:64, armed robbery, and one count of violating La. R.S. 14(27)64, attempted armed robbery. Ambeau appeared before the trial court for arraignment and pled not guilty to both charges. The trial judge found Ambeau guilty on both counts and later sentenced Ambeau to fifty years for the armed robbery conviction and twenty-five years for the attempted armed robbery conviction.

Ambeau appeals his sentence as excessive and seeks to have a minute entry corrected. Further, in a pro se assignment of error, Ambeau asserts that his conviction should be overturned due to insufficient evidence. We find no error in the trial court’s sentence imposition and affirm the defendant’s convictions and sentences. We remand this matter to the trial court for amendment of the minute entry to reflect that defendant’s two sentences are to run concurrently.

FACTUAL AND PROCEDURAL HISTORY

On March 6,1992, the State of Louisiana charged Ambeau by bill of information with one count of violating La. R.S. 14:64, armed robbery, and one count of violating La. R.S. 14(27)64, attempted armed robbery. Ambeau appeared |2before the trial court for arraignment and pled not guilty to both charges. Thereafter, the trial court heard Defendant’s motion to suppress and conducted a preliminary hearing. At the close of the hearings the trial court denied defendant’s motion and found sufficient probable cause to substantiate the charges brought against him by the State.

The State brought its case against Am-beau to trial, and Ambeau waived the jury and elected to have his ease tried before the trial judge. The State introduced two exhibits and presented testimony from three individuals. After the close of evidence, the trial judge found Ambeau guilty on both counts. On May 14, 1992, the trial court sentenced Ambeau, to fifty years for the armed robbery conviction and twenty-five years for the attempted armed robbery conviction. The sentences were to run concurrently and both were at hard labor without benefit of probation, parole, or suspension of sentence.

On September 11, 1992, the trial court adjudicated defendant a third-time felony offender as to the armed robbery conviction only. Ambeau was then resentenced to serve sixty-six and two-thirds years at hard labor without benefit of parole. The minute entries for May 14, 1992 and September 11, 1992 are largely illegible. However, examination of the September 11, 1992 entry shows that it contains information not included in the docket master summary. Accordingly, it cannot be ascertained from the record whether Am-beau’s counsel made any objections to the State’s evidence or to the trial court’s sentence. Nevertheless, the record contains no written response to the multiple bill as required by La. R.S. 15:529.1(D)(l)(b).

Neither the record nor any of the legible minute entries, indicate that Ambeau moved for an appeal. Ambeau contends that he moved for an out-of-time |sappeal, the appointment of new counsel and for the production of trial documents on July 24, 1994. Nevertheless, the record is devoid of this purported motion. On September 1, 1994, Ambeau filed a writ of mandamus (writ 94-K-1744) with this Court complaining that the trial court failed to rule on his motions. On November 10, 1994, this Court transferred defendant’s motion to the trial court for consideration within thirty days of the order. In connection with writ 95-K-0823, this Court issued a second order reiterating the order issued in connection with writ 94-K-1744. On August 17,1995, the trial court granted Ambeau’s motion for an out-of-time appeal. However, this Court never received notice of Ambeau’s appeal.

In writ 2001-K-1677, Ambeau sought to have the trial court’s judgment granting his out-of-time appeal enforced. He also sought to dismiss his retained counsel and have new counsel appointed. The docket master reflects that on April 28, 1997, the trial court allowed Ambeau’s retained counsel to voluntarily withdraw from the case. However, prior to withdrawing, Am-beau’s counsel filed an application for post-conviction relief. Because the record had not been made available for review, the claims raised by Ambeau’s counsel were unknown. Therefore, it was possible that Ambeau had since waived his right to an appeal. In light of these circumstances, the writ was granted and the trial court was ordered to enforce its judgment unless it specifically found that Ambeau waived his right to an appeal. If it found that Ambeau had not waived his right to an appeal, the district court was ordered to appoint counsel and file a notice of appeal in this court within sixty days of the order. Alternatively, if it found that Ambeau had waived his right to an appeal, the trial court was ordered to file a minute entry in this Court within sixty days of the order reflecting its findings.

|4In writ 2004-K-1744, Ambeau asserted that the trial court failed to comply with this Court’s prior orders. The writ was granted and the trial court was ordered to enforce its judgment unless it specifically found that Ambeau waived his right to an appeal. If it found that Ambeau had not waived his right to an appeal, the district court was ordered to appoint counsel, and this Court ordered that a notice of appeal be filed within thirty days of the order. Alternatively, if it found that Ambeau had waived his right to an appeal, the trial court was ordered to file a minute entry reflecting its findings in this Court within thirty days of the order.

Ambeau’s filed a notice of appeal in the trial court on January 20, 2005. The record was lodged in this Court on May 10, 2005. On May 2, 2005, the trial court wrote a letter to this Court wherein it stated that the transcript from Ambeau’s May 14, 1992 multiple offender hearing could not be located. Specifically, the trial court’s letter stated that the pertinent court reporter could find no notes or transcripts for the May 14, 1992 hearing. Am-beau filed his brief on August 16, 2005. On February 14, 2006, this Court vacated Ambeau’s multiple offender conviction and sentence based upon the fact that the transcript from the defendant’s multiple offender hearing could not be located and the relevant minute entries were illegible. State v. Ambeau, 2005-0711 (La.App. 4 Cir. 2/15/06), 930 So.2d 54. Accordingly, this Court remanded Ambeau’s ease to the tidal court for another multiple offender hearing.

The record indicates that on remand the trial court held another multiple bill hearing on March 23, 2007. At the hearing, the trial court quashed the multiple bill on the grounds that more than one year had passed since this Court remanded the matter to the trial court for another multiple bill hearing. On June 18, 2007, the defendant appeared before the trial court for resentencing on his original ^convictions. The record reflects that prior to resentenc-ing, the trial judge recounted this matter’s procedural history; the trial judge stated several times that he remembered the case. The trial court then re-imposed a fifty-year sentence on the defendant for his conviction with respect to the armed robbery charge. Further, while the trial judge opined that he did not think that Ambeau needed to be resentenced with respect to the attempted armed robbery charge, the trial court reimposed the twenty-five year sentence.

The record shows that Ambeau was convicted for crimes involving two victims. The first victim to testify, Lisa Ford (hereinafter “Ms. Ford”), stated that on February 10, 1992, she and Sheila Gains were walking on the Thalia Courtway in the vicinity of South Galvez and Thalia streets in New Orleans, Louisiana between 10:00 and 11:00 p.m. Ms. Ford testified that as they walked on the sidewalk up the court-way she noticed a group of men outside. Ms. Ford stated that she knew the men and told Ms. Gains that they could go up the courtway. It was at this point that the incident at issue transpired. Ms. Ford described the incident accordingly:

And, as we walking, the guy walked up to us and said, “Are you looking for anything?” And, we said, “No.” And, he said okay, and he turned his back to us, and then he turned right back around, and when he turned right back around, he stuck the gun in my face. He said, “Give me whatever you all have. Give me what you got.” And, it was so close to the end of the building to where I had a chance to run around the building, and Ms. Gains was getting ready to run, but when she ran be [sic] it was raining outside she tripped and fell. And, when she fell like she tripped, that’s when he pulled her back, and I made it around to the other side of the building. And, I looked up at him and her, down where she was taking all her stuff and giving it to him, the jacket, and so I went for help. And, when I came back she was running up the courtway crying.

Further, Ms. Ford identified Ambeau in court as her assailant and noted that prior to the incident she had known him for approximately fifteen years. | ^Following the incident, Ms. Ford and Ms. Gains went to Ms. Gains’ house. Because Ms. Gains’ home lacked a telephone, and fearing retaliation from Ambeau, Ms. Gains and Ms. Ford did not call the police immediately after the incident. Rather, Ms. Gains and Ms. Ford called the police the following morning. The police did not come out to the scene of the crime. Rather, the police gave Ms. Gains and Ms. Ford an incident number and asked them to call in the event they saw Ambeau again. Ms. Gains and Ms. Ford saw Ambeau the following day, called the police, and gave a description of the clothes that Ambeau was wearing at the time. Ms. Ford testified that Ambeau was wearing a pair of blue jeans and a “green, turquoise green like shirt with a stripe going across his chest.” Ms. Ford also stated that she told the police what Ambeau was wearing at the time of the incident. Specifically, Ms. Ford testified that at the time of the incident Am-beau was wearing blue jeans and a light, cream-colored windbreaker.

Later the police arrested Ambeau and took him to Ms. Gains and Ms. Ford so that they could attempt to identify him. Ms. Ford testified that after the police arrived, she and Ms. Gains again described the clothes that Ambeau was wearing at the time they spotted him. The police then took Ambeau out of their ear and asked Ms. Gains and Ms. Ford if they could identify him. Ms. Ford identified Ambeau as the assailant from the February 10, 1992 incident. In court, Ms. Ford further identified State Exhibit One as the clothes worn by Ambeau at the time of the post-incident identification. Ms. Ford also identified State Exhibit Two as the ring and anchor pendant taken from Ms. Gains by Ambeau and recovered by the police.

At trial, Ms. Gains testified that on the date of the incident she was walking with Ms. Ford on the Thalia courtway at approximately 10:30 or 11:00 p.m. Ms. Gains testified that she turned around when she heard Ms. Ford say “Oh, Lord!,” |7and then saw a gun in her face. Ms. Gains testified that Ms. Ford grabbed her and that she tried to run. However, Ms. Gains slipped on the wet ground. The assailant then took Ms. Gains’ coat, a ring, two chains, and an anchor. Ms. Gains identified Ambeau in court as her assailant and noted that she knew him from around the housing development. Additionally, Ms. Gains identified State Exhibit Two as the ring and anchor pendant taken from her by Ambeau on the night of the incident.

Like Ms. Ford, Ms. Gains testified that she did not call the police on the night of the incident because she was afraid and unable to get to a phone. Like Ms. Ford, Ms. Gains also testified that they called the police the next day. According to Ms. Gains, the police told her to call them back if ever they should see Ambeau again. Ms. Gains testified that she and Ms. Ford spotted Ambeau the next day in the court-way. Ms. Gains stated that she and Ms. Ford then called the police. An officer came to meet them, and Ms. Gains and Ms. Ford described Ambeau to the officer. The officer then went and found Ambeau. After arresting Ambeau, the officer took him back to Ms. Gains and Ms. Ford for identification, and Ms. Gains stated that she identified Ambeau as the man who robbed her on the night of the incident.

Clifford Wood, an officer with the New Orleans Police Department, Sixth District, also testified at trial. Officer Wood testified that he arrested Ambeau on February 12,1992. Officer Wood also identified Am-beau in court as the person he arrested on February 12, 1992. Officer Wood testified that on February 12,1992, he responded to a call that the victims of the present incident had spotted, and described, a man wanted on an armed robbery charge at the intersection of Thalia and South Galvez. Officer Wood and several other police units converged on j ¡¡Thalia and South Gal-vez. Officer Wood stated that Ambeau began to walk away from the intersection when he spotted the first marked unit approach the intersection. The officers stopped Ambeau before he could leave the scene and advised him that he was under investigation for armed robbery. After patting down Ambeau for weapons, the officers took him to Ms. Gains and Ms. Ford, who identified him as the perpetrator. Officer Wood testified that he confiscated a gold anchor on a chain, a small ring, and Ambeau’s shirt upon his arrest. Officer Wood identified the foregoing items in court as State Exhibits One and Two. Officer Wood also noted that Ms. Gains identified the jewelry as belonging to her at the time of the post-incident identification. Finally, Officer Wood testified that the police never recovered the weapon used in connection with the armed robbery.

EXCESSIVE SENTENCING

In his first assignment of error, Ambeau asserts that his sentences of fifty years for armed robbery and twenty-five years for attempted armed robbery are excessive and should be vacated by this Court.

La. Const. art. I, § 20 (1974) explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted, on other grounds, (La.App. 4 Cir. 3/16/99). However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987).

| ¡When a trial court determines a sentence from a carefully tailored penalty statute, such as the statutes applicable to the instant case, there is a strong presumption that the sentence is constitutional. State v. Bunley, 2000-0405, p. 24 (La.App. 4 Cir. 12/19/01), 805 So.2d 292, 308. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Bertrand, 2004-1496, p. 6 (La.App. 4 Cir. 12/15/04), 891 So.2d 752, 757. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

A reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819, an appellate court should not vacate a sentence simply because a trial court has not followed La.C.Cr.P. art. 894.1:

The articulation of the factual basis for a sentence is the goal of Ait. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1 ... The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.
(Citations omitted.)

hnTherefore, if adequate compliance with article 894.1 is found, or if the sentence is supported by the record, the reviewing court must determine whether the sentence imposed is too severe in light of this particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Howard, 414 So.2d 1210, 1217 (La.1982).

As noted, the defendant was sentenced to fifty years at hard labor for the charge of armed robbery and twenty-five years at hard labor for the charge of attempted armed robbery. La. R.S. 14:64(B) provides: “Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Therefore, under this article, Ambeau faced a maximum sentence of ninety-nine years on the armed robbery charge. Further, La. R.S. 14:27 provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
D. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or lnone-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

Accordingly, under these articles, Am-beau faced a maximum sentence of forty-nine and one-half years on the attempted armed robbery charge.

We find that Ambeau’s sentences are not excessive as they are supported by the record and the case law. The record indicates that Ms. Ford testified clearly that while she and Ms. Gains were out walking at night the defendant approached Ms. Ford, pointed a gun in her face, and demanded that she give him everything she had. Ms. Ford then ran away and was able to escape the defendant. In contrast, Ms. Gains testified that they were walking together on the night of the incident, when she heard Ms. Ford yell. Ms. Gains then turned around and saw the defendant pointing a gun at Ms. Ford. Like Ms. Ford, Ms. Gains also attempted to run away but she slipped and fell, whereupon the defendant took her jacket and jewelry. Additionally, each victim’s testimony corroborated the other’s and both victims stated that they knew the defendant from the neighborhood.

In sentencing the defendant, the trial judge stated that he remembered the case, recalled that defendant used a gun in the connection with the charged offenses, and took into account the defendant’s history of criminal behavior. Although the record does not indicate whether the trial court specifically considered any of the factors set out in La.C.Cr.P. art. 894.1, it nevertheless reveals that numerous factors listed in the article are implicated by the facts of this ease: (A)(3) a lesser sentence will deprecate the seriousness of the defendant’s crime; (B)(1) the offender’s conduct during the commission of the offense manifested deliberate cruelty to the victim; (B)(5) the offender knowingly created a risk of death or great bodily harm to more than one person; (B)(6) the offender | i?used threats of actual violence in the commission of the crime; (B)(10) the offender used a dangerous weapon in the commission of the offense; and (B)(19) the offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense. Thus, a sentence of imprisonment was warranted by the circumstances of this case.

We first note that the Louisiana Supreme Court has held that a thirty-five to fifty-five year sentence is appropriate for first offenders convicted of armed robbery. State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4. In the present case, Ambeau’s sentences fall within the lower half of the authorized sentencing range. Additionally, in State v. Watson, 575 So.2d 411 (La.App. 4 Cir.1991), this Court held that a fifty year sentence was not excessive for a defendant who was convicted of armed robbery and had a significant criminal history. Further, in State v. Stanton, 2005-0812 (La.App. 4 Cir. 3/8/06), 929 So.2d 137, this Court found that a forty-five year sentence was not excessive for a defendant who was convicted of attempted armed bobbery. Accordingly, the trial court did not abuse its discretion in sentencing Ambeau to fifty years at hard labor for his armed robbery conviction and twenty-five years at hard labor for his attempted armed robbery conviction.

ERRONEOUS MINUTE ENTRY

In his second assignment of error, Am-beau asks this Court to remand this matter to the trial court in order to correct an erroneous minute entry. Specifically, the transcript from the defendant’s sentencing hearing indicates that the tidal court |lsordered that defendant’s two sentences are to run concurrently. However, the minute entry for this date indicates that the sentences are to run consecutively. Accordingly, the defendant asks this Court to remand this matter to the trial court so that the June 18, 2007 minute entry can be corrected to reflect the true intent of the trial court. The State’s memorandum specifically indicates that it does not oppose defendant’s request on this point. In State v. Stovall, 2007-0843, pp. 14-15 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1083, this Court held that where there is a discrepancy between a minute entry and a transcript, the transcript must prevail. Accordingly, we remand this matter to the trial court for correction of the erroneous June 18, 2007 minute entry to reflect that defendant’s two sentences are to run concurrently.

SUFFICIENCY OF EVIDENCE

In his first pro se assignment of error, Ambeau asserts that his conviction should be overturned because the record fails to establish that a rational fact finder could have found him guilty beyond a reasonable doubt of armed robbery. Via pro se memorandum, Ambeau’s sufficiency of the evidence allegation is being raised for the first time.

We first note that Ambeau does not challenge the sufficiency of the evidence insofar as it relates to his conviction for attempted armed robbery. Moreover, while Ambeau’s memorandum adequately sets out the applicable case law concerning a sufficiency of the evidence review, it fails to identify the manner in which the State’s evidence is lacking. That is, the defendant’s memorandum asserts nothing more than a pro forma sufficiency of the evidence argument.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 14(1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. State v. Shaw, 2007-1427, p. 15 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 408. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In this case, defendant was convicted of armed robbery which is defined La. R.S. 14:64(A) accordingly: “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” The record indicates that Ms. Ford gave the most succinct description of the events as provided above.

Further, Ms. Gains testified that the defendant took her jacket and her jewelry. Several items of Ms. Gains’ jewelry were found on defendant’s person after his eventual arrest. At trial, both victims were able to identify the seized jewelry as belonging to Ms. Gains prior to the incident. Further, as previously | ,rrnoted herein, both victims testified stated that they knew the defendant from the neighborhood, and each victim’s testimony corroborated the other’s. Accordingly, the evidence in the record establishes clearly that defendant’s conviction for armed robbery is rational and supported by facts in the record. Thus, we find that the State did in fact prove its case.

MOTION FOR RECONSIDERATION OF SENTENCE

In his second pro se assignment of error, Ambeau notes that he filed a pro se motion for reconsideration of sentence in response to his June 18, 2007 sentence but that the record does not indicate whether the trial court actually ruled on the motion. Accordingly, Ambeau asks this Court to remand this matter to the trial court so that it can rule on his motion for reconsideration.

However, we determine that the trial court ruled on the defendant’s motion. Specifically, the transcript of the June 18, 2007 resentencing indicates that the defendant, through counsel, orally moved the trial court to reconsider the new sentence. The record notes that the trial court neither ruled on the motion at that time nor set a rule date. On January 16, 2008, Ambeau filed a pro se criminal writ with this Court seeking to compel the trial court to rule on his motion for reconsideration. On February 8, 2008, this Court granted Ambeau’s writ application and ordered the trial court to rule on the oral motion to reconsider as well as Ambeau’s pro se motion. Id. As proof of compliance, the trial court transmitted a copy of a minute entry from February 26, 2008, which states that the trial court denied the defense motion to reconsider sentence on this date. Accordingly, we find that Am-beau’s second pro se assignment of error is without merit as the trial court did in fact rule upon his motion to reconsider sentence.

DECREE

|1(;We affirm the defendant’s convictions and sentences and remand this matter to the trial court with instructions to amend the June 18, 2007 minute entry to reflect that defendant’s two sentences are to run concurrently.

AFFIRMED IN PART; REMANDED IN PART.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Alfred HARRIS v. DEPARTMENT OF POLICE.
    No. 2008-CA-0503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

1,Appellant , who submitted no evidence or testimony at his May 16, 2007 civil service hearing, appeals the thirty (30) day suspension issued by the Civil Service Commission as a result of the second of two preventable vehicular accidents.

STANDARD OF REVIEW

This Court reviews the Civil Service Commission’s findings pursuant to La. Const, art. X, § 12(B). A Civil Service Commission’s decision will generally not be disturbed unless it was arbitrary, capricious, or an abuse of discretion. Matthews v. Dept. of Police, 1998-0467, p. 7 (La.App. 4 Cir. 11/18/98), 723 So.2d 1044, 1048.

DISCUSSION

In his sole assignment of error, Appellant argues that the Civil Service Commission erred in dismissing his appeal because the Appointing Authority 12failed to establish that Appellant’s accident warranted a “C-3” designation. Appellant further argues no evidence was submitted that indicated speeding, failure to wear a seat belt, or making an improper turn.

“[A]n employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing.” Matthews, supra, 1998-0467, p. 7, 723 So.2d at 1047-48; La. Const, art. X, § 8(a). The Appointing Authority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and also that the conduct impaired the efficiency of the public service. Matthews, supra, at 1048 (citing Neff v. City Planning Com’n, 95-2324 (La.App. 4 Cir. 9/11/96), 681 So.2d 6, writ denied, 96-2465 (La.12/6/96), 684 So.2d 934). “While these facts must be clearly established, they need not be established beyond a reasonable doubt.” Matthews, supra (citing Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990)).

In this case, the conduct complained of was Appellant’s second preventable accident in two months. The record evidences that the first accident occurred on August 16, 2006. The Traffic Accident Review Board conducted an administrative inquiry following the August 16, 2006 accident and concluded that Appellant disregarded a red light at the intersection of North Broad and Bienville Streets and struck another vehicle, operated the department’s vehicle in a careless manner, and caused a preventable accident. Appellant was suspended for ten (10) days and ordered to attend a one-day Accident Avoidance Training Course. In correspondence dated December 18, 2006, detailing Appellant’s violations and | ^penalties, Superintendent Warren J. Riley wrote: “Additionally, you are advised that any future violations of a similar nature will result in far more severe disciplinary action.”

The incident that is the subject of the instant case occurred on October 30, 2006. On that date, Appellant attempted to execute a right turn while responding to a call for assistance and struck an elevated median and a concrete light pole. Appellant was thereafter suspended by the Appointing Authority upon a determination that he violated internal defensive driving regulations and/or the Traffic Laws of New Orleans and the State of Louisiana; causing a preventable accident; and making an improper turn while driving too quickly. In this case, the severity of the discipline was increased for Appellant’s second accident within a 24-month period, pursuant to the schedule of progressive discipline. The accident was classified as a “B-2-C-3” accident. John Bryson, who chairs the Traffic Accident Review Board, testified at the May 16, 2007 hearing that the penalty for a second offense ranged from a one day suspension to dismissal.

The narrative attached to the police report indicates that Appellant advised the investigating officer that he attempted to make a right turn onto Paris Avenue from Gentilly Boulevard, but that his rate of speed was too high to execute the turn. Moreover, an appendix to the police report, signed by Lieutenant Louis Gaydosh, contains his conclusions based upon his observations at the scene of the accident and Appellant’s statements regarding the accident. The report indicates hthat Lieutenant Gaydosh determined Appellant was not wearing a seat belt due to the nature of Appellant’s injuries and the condition of the vehicle’s windshield. Lt. Gaydosh also concluded that Appellant was traveling too fast to properly negotiate the turn, which caused the accident.

The Civil Service Commission found that the evidence supported the Appointing Authority’s determination that Appellant caused a preventable accident by driving too fast and denied Appellant’s appeal. Upon a careful review of the record, we do not find any evidence that the Civil Service Commission’s decision was arbitrary, capricious, or an abuse of its discretion. There is competent evidence in the record to substantiate the Civil Service Commission’s conclusions. Additionally, it is not disputed that the incident in the instant case was Appellant’s second preventable accident within a two month period. Furthermore, the record supports the finding that the length of the suspension in this particular case is commensurate with the violation and not arbitrary or capricious.

CONCLUSION

While we are cognizant of the applicable schedule of progressive discipline in this case, given the fact that Appellant was responding to an officer needs assistance call at the time of the accident, the penalty imposed is arguably harsh. Because we do not find that the Civil Service |,r,Commission’s determinations were arbitrary or capricious, however, we defer to the Commission’s judgment. Accordingly, for the foregoing reasons, the judgment of the Civil Service Commission denying Appellant’s appeal of his 30-day suspension is hereby affirmed.

AFFIRMED.

LOVE, J., concurs in the result.

      . Appellant is a New Orleans Police Officer who was hired on April 25, 2004. He was promoted to a Police Officer II on November 1, 2007.

      . "C-3'’ is an abbreviation for "Chart III”, a classification for accidents in which the officer involved bore part or all of the responsibility for tile accident and violated Departmental Rules and Regulations, safe driving practices, and/or traffic laws.

      . The Civil Service Commission’s opinion states that the accident occurred on October 3, 2006; however, the police report is dated October 30, 2006.

      . Correspondence from Superintendent Warren J. Riley to Appellant dated February 26, 2007, detailing the administrative inquiry, stated in part:
      While making the attempt to negotiate the right turn onto Paris Avenue, your vehicle slid across the westbound lanes of Parish [sic ] Avenue and struck the median elevated curb then the concrete light pole. You were speeding and operated the department's vehicle in a careless manner.

      .A "B-2” is a classification for an accident that is severe in nature. "C-3” is defined herein at supra note 2.

      . Bryson further testified that Appellant admitted to both causing a preventable accident and driving too fast.

      . In Appellant's written statement attached to the police report, he states that the brakes "locked up” as he attempted to execute the turn, causing him to strike the utility pole. In the Appendix to the police report, Lieutenant Gaydosh noted that equipment failure could not be ruled out because of the extensive damage to the front end of the vehicle, but also noted that Appellant, upon questioning, made no mention of any mechanical problem with the vehicle, that Appellant had been driving the vehicle more than one hour prior to the collision, and that the vehicle was in service with no reported mechanical problems prior to the accident.


author: GUIDRY, J.

text:
    Timothy K. DUNAWAY v. LOUISIANA WILDLIFE AND FISHERIES COMMISSION.
    No. 2008 CA 1494.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Irving J. Warshauer, New Orleans, LA, for Plaintiff/Appellant, Timothy K. Duna-way.
    Al M. Thompson, Jr., New Orleans, LA, for Defendants/Appellees, Secret Cove, LLC, Essex Insurance Company, Deborah Hogan, and Robert Hogan.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

12In this action seeking recovery for personal injuries sustained in a boating accident, plaintiff, Timothy K. Dunaway, appeals from the trial court’s judgment, granting summary judgment in favor of defendants, Secret Cove, LLC, Essex Insurance Company, Deborah Hogan and Robert Hogan. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On April 12, 1998, Timothy Dunaway was operating his recreational motor boat on the Pearl River Navigational Canal located in St. Tammany Parish when the boat struck a submerged sandbar, causing Dunaway’s face to hit the aluminum windshield frame of the boat. Thereafter, Dun-away filed a petition for damages, naming Robert Hogan, Deborah Hogan, Secret Cove, LLC, and Essex Insurance Company as defendants and claiming that his injuries and damages were proximately and legally caused by the fault of the defendants: (1) in negligently performing work on their property that caused, contributed to, and/or resulted in the formation of the sandbar; (2) in failing to warn of the submerged sandbar; (3) in failing to mark or identify the submerged sandbar; (4) and in failing to remove the submerged sandbar.

On November 27, 2007, the defendants filed a motion for summary judgment asserting that Dunaway cannot maintain a cause of action for negligence against them because the undisputed facts establish that defendants in no way caused formation or growth of the sandbar, or alternatively, that the defendants did not owe a duty to Dunaway pursuant to the provisions of La. R.S. 9:2795, or under general maritime law negligence principles or La. C.C. art. 2315. Following a | ..¡hearing, the trial court granted summary judgment in favor of the defendants and dismissed Dunaway’s claims.

Thereafter, Dunaway filed a motion for reconsideration of the trial court’s judgment or a motion for new trial. Dunaway asserted that the trial court failed to consider the fact that the defendants owned the bottom of the Pearl River Navigational Canal, which contained the submerged sandbar, and ownership in accordance with La. C.C. art 499 creates a genuine issue of material fact that forecloses summary judgment. The trial court granted Dunaway’s motion for new trial for re-argument only, which was to be submitted by memoranda, and permitted the parties to introduce any affidavits or attachments previously submitted in connection with the motion for summary judgment. After considering the memoranda and exhibits attached thereto, the trial court rendered judgment on March 6, 2008, granting summary judgment in favor of the defendants and dismissed Dunaway’s claims with prejudice. Dunaway now appeals from this judgment.

DISCUSSION

Motion for Summary Judgment

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/01), 755 So.2d 226, 230-231.

|/The burden of proof on a motion for summary judgment is on the movant. 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 provide factual evidence 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. C.C.P. art. 966(C)(2).

A genuine issue is a triable issue. More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith, 93-2512, 639 So.2d at 751. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1203, writs denied, 98-2023, 98-2026 (La.11/13/98), 730 So.2d 934.

| Applicable Law

Dunaway asserts that general maritime law governs his claims against the defendants, or alternatively, that his claims are governed by any other federal or state statute that may be applicable. The judicial power of the United States extends to all cases of admiralty and maritime jurisdiction. U.S. Constitution, Art. Ill, § 2; Wall v. Calcasieu Parish Police Jury, 02-451, p. 3 (La.App. 3rd Cir.12/11/02), 833 So.2d 528, 530. State courts, however, have concurrent jurisdiction by virtue of the “savings to suitors” clause of the Judiciary Act of 1789. 28 U.S.C.A. § 1333; Wall, 02-451 at p. 3, 833 So.2d at 530-531. The current test of admiralty tort jurisdiction requires that an incident (1) occur on navigable waters, i.e., a maritime locality, and (2) have a maritime connection or flavor, i.e., a maritime nexus. Giorgio v. Alliance Operating Corporation, 05-0002, p. 9 (La.1/19/06), 921 So.2d 58, 66.

In Louisiana, waterways are navigable in law when they are used or susceptible of being used in them natural and ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on the water. Ramsey River Road Property Owners Association, Inc. v. Reeves, 396 So.2d 873, 876 (La.1981). Simply stated, a water course is navigable when by its depth, width, and location it is rendered available for commerce. Shell Oil Company v. Pitman, 476 So.2d 1031, 1036 (La.App. 3rd Cir.1985).

While navigability is a question of fact, the undisputed evidence establishes, and the parties agree, that a tugboat pushed a commercial barge through the entire length of the Pearl River Navigational Canal a few weeks following Duna-way’s accident. During its transit, the barge did run aground of the sandbar at issue in the instant case; however, it was able to dig away some of the sand and pass by the narrow area of the canal to successfully navigate the entire canal. This transit | ^demonstrates that the canal was capable of being used in commerce, despite the fact that the canal was not then advertised by the United States Army Corps of Engineers as open for commercial navigation and had not been used for commerce since a few years following its last dredging in 1990. See Richardson v. Foremost Insur ance Company, 641 F.2d 314, 316 (5th Cir.1981), aff'd sub nom, Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982) (finding that the place where the accident occurred is seldom used for commercial activity, but admiralty jurisdiction does not only extend to navigable waterways that presently function as commercial arteries; rather, if the waterway is capable of being used in commerce, that is a sufficient threshold to invoke admiralty jurisdiction.) Accordingly, we find that it was sufficiently shown that the canal is a navigable waterway so as to satisfy the first element of the test for admiralty jurisdiction. See Dunaway v. United States of America, 98-2035 (E.D.La.2000) (unpublished opinion).

Having determined that the Pearl River Navigational Canal is a navigable waterway for purposes of admiralty jurisdiction, we now must determine whether the incident in question has a maritime connection or nexus. In making such a determination, a court asks (1) if the type of incident involved has the potential to disrupt maritime commerce, and (2) if the general activity involved bears a substantial relationship to a traditional maritime activity. Giorgio, 05-0002 at p. 9, 921 So.2d at 67.

17Punaway asserts that the defendants negligently performed work on their property, which either caused the formation of the sandbar or contributed to the formation of the sandbar such that it formed an obstruction to navigation and caused Dun-away’s accident and injury. Federal maritime law recognizes that when a pleasure boat is involved in an allision, where the vessel impacts with some allegedly negligently placed navigational object, the test for establishing a maritime nexus is met. See Weatherford v. United States, 957 F.Supp. 830, 832-833 (M.D.La.1997); Wilder v. Placid Oil Company, 611 F.Supp. 841, 845 (W.D.La.1985), aff'd sub nom, Sanders v. Placid Oil Company, 861 F.2d 1374 (5th Cir.1988); Respess v. United States, 586 F.Supp. 861, 865 (E.D.La.1984).

Because we find that Dunaway’s claims against the defendants meet the test of admiralty tort jurisdiction, we now turn our attention to determining whether the trial court was correct in granting summary judgment in favor of the defendants, dismissing Dunaway’s claims with prejudice.

Analysis

As a general proposition, a maritime claim brought in state courts is governed by the same principles as govern actions brought in admiralty, i.e., by federal maritime law. Green v. Industrial Helicopters, Inc., 593 So.2d 634, 637 (La.1992), cert. denied, 506 U.S. 819, 13 S.Ct. 65, 121 L.Ed.2d 32 (1992). The elements of a maritime negligence cause of action are essentially the same as land-based negligence. Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir.2005); see also Usé v. Usé, 94-0972, p. 4 n. 2 (La.App. 1st Cir.4/7/95), 654 So.2d 1355, 1359 n. 2, writs denied, 95-1834, 95-1879 (La.11/13/95), 662 So.2d 468. The plaintiff must demonstrate: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the plaintiff sustained injury, and (4) that a causal connection exists between the defendant’s conduct and plaintiffs Isinjury. In re Cooper/T. Smith v. Gnots-Reserve, Inc., 929 F.2d 1073, 1077 (5th Cir.1991), cert. denied, 502 U.S. 865, 112 S.Ct. 190, 116 L.Ed.2d 151 (1991).

Determination of the tortfea-sor’s duty and its parameters is a function of the court. The determination of whether a defendant owes a duty to "the plaintiff depends on a variety of factors, including most notably the foreseeability of the harm suffered by the complaining party. Consolidated Aluminum Corporation v. C.F. Bean Corporation, 833 F.2d 65, 67 (5th Cir.1988), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). A harm is a foreseeable consequence of an act or omission if harm of a general sort to persons of a general class might have been anticipated by a reasonably thoughtful person, as a probable result of the act or omission, considering the interplay of natural forces and likely human intervention. Consolidated Aluminum Coloration, 833 F.2d at 68.

In the instant case, Dunaway asserts that the defendants contracted with McDonald Construction Company to bring a bulldozer on to the defendants’ property to clear a pathway. In clearing the path, the bulldozer traversed the Brushy Branch Slough, which crosses the defendants’ property and drains into the Pearl River Navigational Canal at the site where the sandbar formed. Dunaway asserts that the bulldozer pushed sand and debris into the slough and removed topsoil adjacent to the slough, and that this work performed by the defendants on their property caused or contributed to the formation of the sandbar upon which Dunaway’s pleasure boat ran aground.

In support of their motion for summary judgment, the defendants submitted several depositions to point out that Dunaway was unable to establish that the bulldozing work performed on defendants’ property caused or contributed to the formation of the sandbar and was also unable to establish that the resulting harm was foreseeable. Mass Calvin Polk, an employee of McDonald Construction Company who operated the bulldozer on the defendants’ property, stated that he | nbrought the bulldozer on to the property to clear a pathway from north to south and in doing so knocked down some bushes; however, he stated that he did not cut or disturb soil. Additionally, Polk stated that where he cleared the path was approximately 1500 to 2000 feet west of the Pearl River Navigational Canal and that he could not see the canal from where he was working. Further, he stated that he did not know the slough emptied into the canal and did not know about the presence of the sandbar.

Additionally, the defendants presented the deposition testimony of Thomas Brown, a wetlands consultant hired by Deborah Hogan. Brown stated that he was on the defendants’ property for approximately thirty to forty-five days in the spring of 1998. Brown stated that he walked on the path cleared by the bulldozer after it was done and that the path crossed the Brushy Branch Slough, which drains into the canal. According to Brown, there were some branches or logs in the slough just so that the bulldozer could cross the slough, but that there was no evidence that the bulldozer had pushed dirt or sand into the slough. Additionally, Brown observed that there were some bushes that had been knocked down to clear the path, but the soil had not been disturbed. According to Brown, he went on to the defendants’ property with a representative of the U.S. Army Corps of Engineers to investigate complaints received by the Corps in March of 1998 from adjoining landowners about the bulldozing work. According to Brown, they observed no redistribution of soil, because if they had, the Corps would have issued a wetlands violation.

Additionally, Brown stated that he was aware of the sandbar and had noticed it every day that he was on the defendants’ property, since he accessed the property via boat. According to Brown, parts of the sandbar were visible above the water and had vegetation growing on them. Brown stated that it was obvious that the sandbar began at the mouth of the slough and it extended one-half to three-quarters | ]0of the width of the canal. However, he did not think that the bulldozing work performed on defendants’ property caused the sandbar.

Further, Brown stated that he did not recall mentioning the sandbar to Deborah Hogan, but that she knew of the sandbar eventually because people were calling and saying she was causing the sandbar to be built. However, he was unsure as to whether it was during the thirty to forty-five day period that he worked out on the defendants’ property or after, or whether it was before or after Dunaway’s allision.

Deborah Hogan stated in her deposition that the bulldozer work was performed on her property on February 7, 1998. According to her testimony, when the bulldozer got to the bank of the slough, it put its bucket down and scraped the top of the soil about three times and pushed some leaves, topsoil, branches, and brush in the bottom of the slough and then packed it down with the bucket and crossed the slough. As to her knowledge of the sandbar, she stated that from 1988 until the time of Dunaway’s accident, she and her family had gone on the canal nearly every weekend during the summer and that she never saw a sandbar in the canal. Deborah Hogan stated that she did not know of the sandbar until after Dunaway’s accident.

The defendants also presented the deposition testimony of Michael McGoey, whose pleasure boat had also run aground on the sandbar. McGoey stated he was not sure of the exact date of his accident, but he thought it was in the spring of 1997. McGoey stated he was going down the middle of the canal, and the sandbar extended across sixty to seventy percent of the canal and was four to six inches below the water.

Finally, the defendants submitted the deposition testimony of Richard Single-tary, a deputy with the St. Tammany Parish Sheriffs Office. Deputy Singletary stated that he patrolled the canal regularly and was aware of the sandbar Information where the slough drains into the canal. In fact, Deputy Singletary placed a submerged object sign on the sandbar in October of 1997 and placed yellow caution tape on the sandbar in April 14, 1998, due to the potential hazard that the sandbar posed; however, both the sign and the tape were removed by an unknown person immediately after their placement. Deputy Singletary also stated that after Duna-way’s accident, he estimated that the sandbar was roughly six inches to one foot below the surface of the water.

In opposition to the defendants’ motion for summary judgment, Dunaway submitted the depositions of several individuals who own property adjacent to the defendants’ property. These individuals stated that they went on to the defendants’ land after the bulldozing work and observed that sand, trees, debris, and surface roots had been pushed into the slough. One of the individuals, Kerry Crawford, stated that at the time he went on the property, the sandbar extended into the canal about twenty feet. Another individual, George Stiles, stated that because the bulldozer cut the surface roots, when it rains, there is more erosion of sand into the slough and water washes that additional sand into the canal. All these witnesses stated that the debris and sand from the slough, combined with the heavy rains, caused growth of the sandbar. Particularly, George Thomas stated that he had never seen the sandbar grow to that extent before.

Additionally, Dunaway presented the deposition testimony of Dr. Joseph Suhayda, an expert in coastal hydrology. Dr. Su-hayda stated that he examined material from the sandbar and material from the bed of the slough and that they were the same sediment. According to Dr. Suhay-da, the bulldozing work directly and indirectly added sediment to the sandbar. Dr. Suhayda estimated approximately 1000 to 1500 cubic feet of material was deposited in the slough for the bulldozer to cross the slough and that the sediment washed or traveled down the creek into the canal and onto the sandbar. Further, when the bulldozer moved Immaterial into the slough, the sediment below was exposed and provided for additional sites for sediment to move into the slough that otherwise would not have been there. Further, according to Dr. Suhayda, because of the amount of material deposited into the slough, a type of dam formed, allowing water to build up that, when released, caused a greater velocity flow, increasing erosion of the banks.

According to Dr. Suhayda, considering the above factors, he estimated that at a minimum, the bulldozing work on defendants’ property caused the sandbar to increase in height between six inches and one foot. Further, he opined that the additional material from the bulldozing work contributed to the eastward migration of the sandbar, depositing more toward the center of the channel or to the east of the center, rather than on the west bank where it was already fairly shallow. According to Dr. Suhayda, the material would have contributed to areas that were relatively lower in elevation, i.e. deeper.

Dunaway also submitted the deposition testimony of Robert Frost, a surveying and mapping consultant. Frost examined aerial photographs of the Pearl River Navigational Canal over a large period of time. According to Frost, there was relatively slow accrual of sediment on the sandbar. However, between 1997 and 1998, there was much more rapid development. The sandbar grew from extending one-third of the way into the canal in January 1997 to almost completely blocking the canal in January 1998. In his opinion, the rapid growth was consistent with additional sediments being washed into the canal.

Finally, Dunaway submitted an affidavit signed by Deborah Hogan, executed on December 11, 2007, wherein she stated that the bulldozing work was performed on the Monday before Mardi Gras 1998, or February 23, 1998. This affidavit conflicts with her prior deposition testimony, wherein she stated emphatically that the work was performed on February 7, 1998.

11:>From our review of the record, we find that there are genuine issues of material fact that preclude the granting of summary judgment in favor of the defendants. The evidence establishes that the Brushy Branch Slough runs through defendants’ property and drains into the Pearl River Navigational Canal. The defendants contracted with McDonald Construction Company to clear a pathway on their property, which crossed the slough. However, while both pai’ties agree that the sandbar preexisted the bulldozing work, the evidence presented is contradictory as to the effect the bulldozing had on the slough and the formation of the sandbar at the point where the slough entered the canal. Additionally, while Deborah Hogan stated that she was not aware of the sandbar, she admitted to traveling the canal nearly every weekend during the summers. Further, Thomas Brown acknowledged that Deborah Hogan knew of the sandbar at some point because people were calling and complaining that she was causing the sandbar to be built. Brown also stated that the Corps received complaints about the work on the property in March of 1998, approximately one month prior to Duna-way’s accident.

Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponents favor, Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Further, knowledge and foreseeability necessarily involve factual determinations, and based on the conflicting evidence in the record, we find that reasonable minds could differ as to whether the bulldozing work performed on the defendants’ property contributed to the formation of the sandbar and caused Dunaway’s injuries, and whether the resulting harm was foreseeable to the defendants. Accordingly, we find that the trial court erred in granting summary judgment in favor of the defendants and in dismissing Dunaway’s claims.

^CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion. All costs of this appeal are to be borne by the defendants, Secret Cove, LLC, Essex Insurance Company, Deborah Hogan, and Robert Hogan.

REVERSED AND REMANDED.

GAIDRY, J., concurs in the result.

      . Dunaway also named as defendants the Louisiana Wildlife and Fisheries Commission; the United States of America, Rodney "Jack” Strain, Sheriff of St. Tammany Parish; the Louisiana Department of Wildlife and Fisheries; Cypress Haven, LLC; McDonald Construction, Inc.; and Admiral Insurance Company. All claims against these defendants, however, have been dismissed.

      . Additionally, we note that the fact that a sandbar obstructed approximately three quarters of the width of the canal does not render the canal non-navigable. A water body does not have to be navigable at all times. See Olin Gas Transmission Corporation v. Harrison, 132 So.2d 721, 728 (La.App. 1st Cir. 1961) (finding that navigability is not destroyed because a water course is interrupted by occasional natural obstructions, nor does the mere fact of the presence of sandbars causing impediments to navigation establish the character of a river as non-navigable); see also Sanders v. Placid Oil Company, 861 F,2d 1374, 1377 (5th Cir. 1988) (finding that the fact that during certain seasons the access to Catahoula Lake via the Little River is non-navigable is not determinative of federal admiralty jurisdiction.)


author: PETTIGREW, J.

text:
    STATE of Louisiana v. David Gilbert ARDOIN.
    No. 2008 KA 1504.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Hon. Joseph L. Waitz Jr., District Attorney, Mark Rhodes, Ellen Daigle Doskey, Assistant District Attorneys, Houma, LA, Attorneys For State Of Louisiana.
    Bertha M. Hillman, Thibodaux, LA, Attorney For Defendant-Appellant David Gilbert Ardoin.
    Before: PETTIGREW, MCDONALD, and HUGHES, JJ.
   PETTIGREW, J.

|2The defendant, David Gilbert Ardoin, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42(A)(4) (count one), and with aggravated incest, a violation of La. R.S. 14:78.1 (count two). The defendant pled not guilty to both charges, waived trial by jury, and elected to have a bench trial. Following trial, the trial court found the defendant not guilty of aggravated rape and guilty of aggravated incest. The defendant filed motions for new trial and postverdict judgment of acquittal, which were denied. The defendant was sentenced to ten years imprisonment at hard labor. The defendant now appeals, asserting one assignment of error. For the reasons that follow, ■ the judgment of conviction of aggravated incest is reversed and modified to a judgment of conviction of the lesser and included offense of molestation of a juvenile. The sentence is vacated, and the case is remanded to the trial court for resentencing on the modified judgment of conviction.

FACTS

The defendant was married to Trina Ar-doin. Trim's brother was Edward Flynn. Edward’s daughter was M.C., the seven-year-old victim. Therefore, Trina was M.C.’s aunt. M.C. lived with the defendant and Trina. Trina had raised M.C. since she was six-months old. Edward’s wife was Merdean Flynn, M.C.’s stepmother. M.C. visited Edward and Merdean on weekends and holidays. During one of these visits in June 2006, M.C. told Merde-an about inappropriate behavior by the defendant. Specifically, M.C. told Merde-an that the defendant came in the room, raised up her shirt, and kissed her on the stomach. The defendant told M.C. he was finding a tickle spot. The defendant then pulled down M.C.’s pajama bottoms, rolled her over, and kissed her on the buttocks. Later, M.C. was questioned by Edward and Merdean about the incident. Edward asked M.C. if the defendant had done anything else to her. M.C. responded that “he stuck his finger down there.”

M.C. testified at trial. M.C. stated that they were living in a trailer in Gibson. She was sitting on the couch when the defendant knelt, pulled down her pants and panties, and licked her “bottom private part.” On another occasion, the defendant had M.C. | .¡stroke his penis with her hand until he ejaculated. M.C. also testified that the defendant came into her room and touched her vagina with his hand. According to M.C. the defendant performed oral sex on her about ten times.

The defendant testified at trial. He denied the allegations. He stated that he never put his tongue on M.C.’s private parts and that he never forced M.C. to touch him.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the evidence was insufficient to support the conviction of aggravated incest. Specifically, the defendant contends the State did not prove beyond a reasonable doubt that he was related to the victim as a biological, step, or adoptive relative. This argument has merit.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Paterno, 2001-2585, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statutes 14:78.1 provides, in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
|4B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

The State must prove several elements to establish the offense of aggravated incest. First, the State must show that the victim was under eighteen years of age. Second, the State must show that the offender knew that the victim was related to him within the specified degrees. The statute enumerates a list of relatives who may be victims of the offense and specifies that the offender must be aware of his relationship to the victim. Finally, the State must prove that the defendant has engaged in one of the prohibited acts with the victim. See State v. Flores, 27,736, p. 5 (La.App. 2 Cir. 2/28/96), 669 So.2d 646, 650.

In its reasons for judgment, the trial court found that the elements for aggravated incest had been met. Regarding the relationship element, the trial court found the defendant to be the step-uncle of M.C. The testimonial evidence adduced at trial established that the defendant was married to Trina Ardoin. Trina’s brother was Edward Flynn. Edward’s daughter was M.C. Therefore, Trina was M.C.’s biological aunt. There are no step-relationships among these particular relatives. The defendant’s status vis-a-vis M.C. is an uncle by marriage, as opposed to a biological uncle. M.C. would, therefore, be the defendant’s niece by marriage. In any event, the defendant cannot properly be regarded as M.C.’s step-uncle. There was some testimony at trial that suggested Edward might not have been the biological father of M.C. Further, the defendant devotes much of his brief making this very argument. | Jiowever, even if Edward were not the biological father of M.C. the defendant would still not be the biological, step, or adoptive relative of M.C.

The interpretation of articles of the Louisiana Criminal Code is governed by La. R.S. 14:3, which provides as follows:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in them usual sense, in connection with the context, and with reference to the purpose of the provision.

It is well established that criminal statutes are to be strictly construed. Courts are not empowered to extend by analogy the terms of a criminal provision to cover conduct not included within the definition of a crime. Any doubt as to the extent of the coverage of a criminal statute must be decided in favor of the accused and against the State. State v. Smith, 97-0782, pp. 3-4 (La.App. 1 Cir. 2/20/98), 708 So.2d 1166, 1168.

Because the defendant is not a biological, step, or adoptive relative of M.C. the trial court’s finding that the defendant was the step-uncle of M.C. was erroneous. Accordingly, the defendant did not commit the crime of aggravated incest. Under La.Code Crim. P. art. 814, there are no statutorily listed responsive verdicts to aggravated incest. Pursuant to La.Code Crim. P. art. 815(2), however, we find that molestation of a juvenile is a lesser and included grade of the offense of aggravated incest. As articulated by the Louisiana Supreme Court in State v. Simmons, 422 So.2d 138, 142 (La.1982), the test for determining if a crime is a lesser and included offense of the offense charged is:

whether the definition of the greater offense necessarily includes all the elements of the lesser. Stated in another way for practical application, this merely means that, if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive. [Italics deleted.] [Citation omitted.]

Molestation of a juvenile is clearly a lesser and included offense because it does not require proof of any element that is not required in the charged offense of aggravated incest. Molestation of a juvenile is one of the listed prohibited acts in the aggravated incest statute. Further, M.C. was under eighteen years of age. The only | (¡remaining element required for proof of aggravated incest, which is not an element for proof of molestation of a juvenile, is the relationship, whether biological, step, or adoptive, between the offender and the victim. See La. R.S. 14:81.2. Therefore, the trial court, by finding the defendant guilty of the greater offense of aggravated incest, necessarily found the existence of every essential element of the lesser and included offense of molestation of a juvenile, and the evidence fully supports the finding of each such essential element. Under such circumstances, a reviewing court, pursuant to La.Code Crim. P. art. 821(E), may reverse and modify the lower court’s decision and render a judgment of conviction of the lesser and included offense. See La. R.S. 14:5; State v. Leblanc, 506 So.2d 1197, 1201 (La.1987). See also State v. Schenck, 513 So.2d 1159, 1165 (La.1987). Accordingly, the judgment of conviction of aggravated incest will be reduced to molestation of a juvenile.

We note that the testimonial evidence adduced at trial established that the defendant had control or supervision over M.C. According to Trina Ardoin, she and the defendant raised M.C. since she was two years old. When the defendant was asked on cross-examination, “Okay, but these children were under your control and supervision; were they not? You and your wife’s,” the defendant responded, “Yes, sir.” Justin, Trina’s son and the defendant’s stepson, testified that the defendant was raising him, M.C. and Zane (Trina and the defendant’s child), and that there were times when the defendant watched him, M.C., and Zane.

Prior to the 2006 amendment, La. R.S. 14:81.2(C) provided in pertinent part, “Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both.” Accordingly, the trial court shall consider La. R.S. 14:81.2(0 when resentencing the defendant.

^CONCLUSION

The judgment of conviction of aggravated incest is reversed and modified to a judgment of conviction of the lesser and included offense of molestation of a juvenile. The sentence' is vacated, and the case is remanded to the trial court for resentencing on the modified judgment of conviction.

CONVICTION REVERSED AND MODIFIED; SENTENCE VACATED; REMANDED TO THE TRIAL COURT FOR RESENTENCING ON THE MODIFIED JUDGMENT OF CONVICTION.

      . While the defendant in his brief focuses on the narrower issue of whether Edward Flynn was the biological father of M.C., the defendant does address the relevant issue at hand. For example, at the conclusion of his brief, the defendant states, "The evidence is insufficient to prove all of the elements of aggravated incest, specifically, the state failed to meet its burden in establishing the most vital element of aggravated incest: a biological, step or adoptive relationship.”

      . We also note in its reasons for judgment, the trial court stated that it believed beyond a reasonable doubt the defendant was guilty of the crimes of indecent behavior with a juvenile or molestation of a juvenile.


author: PETTIGREW, J. McDONALD, J.,

text:
    STATE of Louisiana v. Daniel HINTON, Jr.
    No. 2008 KA 1849.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Denied March 10, 2009.

      Doug Moreau, District Attorney, Lee Higginbotham, Jaclyn C. Chapman, Assistant District Attorneys, Baton Rouge, LA, for State of Louisiana.
    Jason L. Chatagnier, Baton Rouge, LA, for Defendant-Appellee, Daniel Hinton, Jr.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   PETTIGREW, J.

|2The defendant, Daniel Hinton, Jr., was charged by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The defendant filed a motion to quash the bill of information, arguing that his prior conviction could not be used as a predicate offense in the instant case. Following a hearing, the trial court granted the motion to quash. The State now appeals, arguing the trial court erred in granting the motion to quash. See La.Code Crim. P. art. 912(B)(1). For the reasons that follow, we affirm the trial court’s ruling granting the motion to quash.

FACTS

As there was no trial in the instant case, the facts were not fully developed. The following facts were presented during the preliminary examination hearing. On or about October 17, 2007, Corporal James Dipuma of the East Baton Rouge Parish Sheriffs Office, Armed Robbery and Burglary Division, was conducting surveillance in the Gardere area. Sometime after midnight, Corporal Dipuma observed the defendant as he was walking down the street. Corporal Dipuma and other officers stopped the defendant. The defendant immediately informed them that he had a handgun in his possession. Corporal Di-puma was familiar with the defendant. The defendant provided a name that Corporal Dipuma knew to be false. After Corporal Dipuma pressed the defendant regarding his identity, the defendant admitted that he had provided false information because he had a probation warrant. After the defendant’s true identity was obtained, the officers discovered that the defendant had a prior felony conviction and an outstanding probation fugitive warrant for conspiracy to commit armed robbery.

ASSIGNMENT OF ERROR

In the sole assignment of error, the State contends that the trial court erred in granting the defendant’s motion to quash the bill of information. The State argues that while conspiracy to commit armed robbery is not an enumerated crime of violence under La. R.S. 14:2(B), the offense fits the general statutory definition of a crime of violence. Thus, the State argues that conspiracy to commit armed robbery is a proper predicate conviction for the instant felon in possession of a firearm charge. The State specifically contends that conspiracy to commit armed robbery involves, as an element, the threatened use of physical force against a person or the property being robbed. The State notes that the nature of the crime involves the possession of a dangerous weapon. The State also notes the particular facts of the defendant’s prior guilty plea conviction and concludes that the factual basis for the plea supports a finding that the defendant committed a crime of violence.

In granting the defendant’s motion to quash the bill of information, the trial court noted that criminal statutes must be strictly construed. The trial court found that the crime of conspiracy to commit armed robbery is not articulated or addressed by La. R.S. 14:2(B) and consequently not enumerated as a felony for purposes of La. R.S. 14:95.1. The defendant adds, in his reply brief to the State’s appeal, that the legislature would have included the crime of conspiracy to commit any of the felonies enumerated in La. R.S. 14:95.1 if that were its intent.

The issue raised herein presents a question of law and is, therefore, subject to de novo review. State v. Smith, 99-2094, 99-2015, 99-2019, & 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504. In construing the applicable criminal statutes, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly; and (2) the words of a statute must be given their everyday meaning. See State ex rel. Robinson v. Blackburn, 367 So.2d 360, 363 (La.1979). See also La. R.S. 14:3.

Louisiana Revised Statutes 14:95.1(A), provides in pertinent part, that, “It is unlawful for any person who has been convicted of a crime of violence as defined in La. |4R.S. 14:2(B) which is a felony ... or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state ... to possess a firearm or carry a concealed weapon.” In order to present sufficient evidence that the defendant was a convicted felon in possession of a firearm pursuant to La. R.S. 14:95.1, the State must prove the following: (1) the defendant possessed a firearm; (2) the defendant was previously convicted of an enumerated felony; (3) the absence of the 10-year period of limitation; and (4) general intent to commit the offense. State v. Husband, 437 So.2d 269, 271 (La.1983).

Louisiana Revised Statutes 14:2(B) provides in pertinent part:

In this Code, “crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

A number of offenses and attempts to commit any of them are included in the statute as crimes of violence, including armed robbery. However, the list is illustrative, rather than exclusive. See Coates v. Day, 2000-2164, pp. 2-3 (La.App. 1 Cir. 12/28/01), 804 So.2d 893, 894. While an attempt to commit one of the enumerated offenses is specified as a crime of violence in La. R.S. 14:2(B), conspiracy to commit one of the enumerated offenses is not. See also La. R.S. 14:95.1(A).

Criminal conspiracy is an agreement or combination of two or more persons for the specific purpose of committing a crime, and an act done in furtherance of the object of the agreement or combination. See La. R.S. 14:26(A). Specific intent is an essential element of criminal conspiracy. State v. Leger, 04-1467, p. 3 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, 744, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, cert. denied, 549 U.S. 910, 127 S.Ct. 245, 166 L.Ed.2d 193 (2006). Specific intent is that state of mind that exists when the circumstances indicate that the offender actively |sdesired the prescribed criminal consequence to follow his act or failure to act. La. R.S. 14:10(1). In order to constitute criminal conspiracy, criminal intent to commit a specific offense must exist in at least two minds. At issue is not whether the predicate offense was executed in a violent manner, but whether conspiracy to commit armed robbery generally, as defined by La. R.S. 14:26 and La. R.S. 14:64, is a “crime of violence,” as defined by La. R.S. 14:2(B). See State v. Fontenot, 2006-226, p. 3 (La.App. 3 Cir. 7/12/06), 934 So.2d 935, 938.

In conspiracy, it is the combination of minds in an unlawful purpose that is the foundation of the offense. The overt act may be any act in furtherance of the agreement; a fortiori, it is not necessary that it constitute the crime and the question whether it serves to support the object of the conspiracy is one of fact for the jury. On the other hand, it is necessary, in prosecutions for attempt, for the State to prove an overt act tending directly toward the accomplishment by the accused of his object to commit the offense intended; mere preparation is not enough. La. R.S. 14:27; State v. D’Ingianni, 217 La. 945, 950-951, 47 So.2d 731, 733 (1950). In D’Ingianni, 217 La. at 951, 47 So.2d at 733, the Louisiana Supreme Court noted as follows:

Any act, such as a visit by one of the parties to his co-conspirator for the purpose of discussing details, might suffice as an overt act to complete a criminal conspiracy although such an act would be regarded as merely preparatory in a prosecution for an attempt.

Thus, the inclusion of an attempt to commit an enumerated offense as a crime of violence does not automatically lead to the conclusion that conspiracy to commit one of the enumerated offenses also constitutes a crime of violence.

Criminal conspiracy to commit a crime is an inchoate offense separate and entirely distinct from the completed crime. State v. Richards, 426 So.2d 1314, 1316 (La.1982). Criminal conspiracy to commit armed robbery (an agreement or combination for the specific purpose of committing armed robbery and an act in furtherance of the agreement or combination) does not by definition have as an element, the use, attempted use, or threatened use of physical force against the person or property of another. Further, criminal conspiracy to commit armed robbery does |f,not, by its very nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Finally, criminal conspiracy to commit armed robbery does not, by definition, necessarily involve the possession or use of a dangerous weapon. We do not find conspiracy to commit armed robbery to be a crime of violence as defined in La. R.S. 14:2(B). Thus, conspiracy to commit armed robbery is not a proper predicate conviction for the instant felon in possession of a firearm charge. Compare State v. Lewis, 535 So.2d 943, 949 (La.App. 2 Cir.1988), writ denied, 538 So.2d 608 (La.1989) (the court concluded that conspiracy to commit a violation of the drug laws was a proper predicate since the broad language of La. R.S. 14:95.1 includes the entire Uniform Controlled Dangerous Substance Act, which includes the conspiracy provision of La. R.S. 40:979). Accordingly, the trial court did not err in granting the defendant’s motion to quash the bill of information in this case. The sole assignment of error lacks merit.

GRANTING OF MOTION TO QUASH AFFIRMED.

McDONALD, J., concurs and assigns reasons.

McDONALD, J.,

concurs:

1)While I agree with the conclusion reached by the majority based on the particular facts of this case, I do not agree that conspiracy to commit armed robbery can never be a predicate conviction for the charge of felon in possession of a firearm. The majority is correct that conspiracy to commit armed robbery does not, by definition, necessarily involve the possession or use of a dangerous weapon. The definition also does not necessarily involve the use, attempted use, or threatened use of physical force against the person or property of another. Given certain facts, however, the act in furtherance of a conspiracy could very well be an act of violence that could be used as a predicate for a charge of a felon in possession of a firearm.

The underlying bill of information is of no assistance to us in making this determination. It gives no facts as to how or what was involved in the conspiracy. There is nothing in the record to support a finding that the predicate conviction involved acts of violence. However, I believe it would have been proper for the trial court to look beyond the bill of information and consider such facts if the district attorney had chosen to present them. The trial court presided over a preliminary hearing in which he found no probable cause for the charge based on the underlying charge of “conspiracy”. He did not hear the underlying facts of the “conspiracy” charge because none were presented. Had the underlying facts been presented they | .¿should have been considered. Additionally, responses to a request for a bill of particulars could also have been considered if they were in the record.

The state argues that the underlying facts involve three individuals who went into an establishment brandishing guns and robbed several individuals. Thus, the underlying predicate conviction involved acts of violence. While this argument might be persuasive, there are no facts in the record to support it. Argument is not evidence, and there is no evidence in the record to support this argument. The bill of information charges one count of conspiracy to commit armed robbery, five counts of armed robbery, one count of felony theft of a firearm, and one count of unauthorized use of an access card. These all occurred on the same date. As part of a plea agreement all but the conspiracy charge were dismissed. Thus, there is nothing in the charge for which the defendant was convicted to suggest that it involved any acts of violence. As additional confirmation for this argument, the state suggests that the Boykin exam conducted at the time the defendant entered his plea to the conspiracy charge includes these specifics as the factual basis for the plea. Since the transcript of the Boykin exam from the conspiracy conviction was not entered into evidence in this case, it was unavailable for the trial court to review and is not available for us either.

For these reasons I respectfully concur.

      . At the conclusion of the hearing, the trial court found there was no probable cause to hold the defendant.

      . The bill of information and minutes of the 19th J.D.C. docket number 01-01-292, regarding the defendant's prior guilty-plea conviction of conspiracy to commit armed robbery, were admitted at the preliminary examination hearing.

      . Armed robbery requires evidence of the following: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64(A).

      . La. R.S. 14:2(B).