author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Rodney E. FIKES, Appellant.
    No. 47,091-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.
    Louisiana Appellate Project by Paula J. Marx, for Appellant.
    Charles R. Scott, II, District Attorney, Jason Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

fiThe defendant, Rodney Fikes, was convicted of distribution of a Schedule II controlled dangerous substance, cocaine, in violation of La. R.S. 40:967(A)(1). Fikes was sentenced to 30 years’ imprisonment at hard labor, with two years to be served without benefit of probation, parole, or suspension of sentence. The trial court also imposed a $30,000 fine, with default time of one year in the parish jail. Fikes now appeals. For the reasons discussed below, we affirm the defendant’s conviction, amend his sentence to delete the default jail time, and as amended, affirm.

FACTS

On July 14, 2008, Fikes was charged by bill of information of distribution of a Schedule II controlled dangerous substance, cocaine, in violation of La. R.S. 40:967(A)(1). Fikes pled not guilty and waived his right to a jury trial.

The bench trial began on February 26, 2009, with the testimony of Corporal Steven McKenna and Agent Terry W. Sanders. McKenna and Sanders work in the narcotics division of the Shreveport Police Department. On January 12, 2008, both officers participated in a “buy-bust operation,” in which McKenna posed as a drug user and contacted various narcotics dealers. The operation was located at Werner Avenue and Malcolm Street, in Caddo Parish. The officers testified that Fikes procured crack cocaine for the undercover agent, after which Fikes was arrested.

On February 26, 2009, Fikes was found guilty of distribution of cocaine. On March 30, 2009, the state filed a bill of information charging Fikes as a fourth-felony habitual offender. On June 22, 2009, the multiple ^offender hearing was reset and Fikes was brought up for sentencing. The trial court referred to a pre-sentence investigation report, which revealed the defendant’s extensive criminal history prior to the instant convictions.

The trial court sentenced Fikes to 30 years’ imprisonment at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence. It also imposed a $30,000 fine plus court costs, to be paid through inmate banking and “one year in lieu of same.” All money and weapons seized were ordered forfeited to the state. Fikes was advised that he had two years from the date that his conviction became final to file for post-conviction relief.

A motion for post-verdict judgment of acquittal and/or to modify the verdict was denied on March 6, 2009.

On September 30, 2009, Fikes filed a “Motion to deviate from the constitutionally-excessive fourth habitual offender statute and reconsider sentence.” He argued that under that charge he faced a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence, and that such sentence would be constitutionally excessive and grossly out of proportion to the severity of the crime.

The state dismissed the habitual offender charge on May 24, 2011. On July 21, 2011, Fikes’s motion to deviate and reconsider sentence was heard and denied by the court. Fikes subsequently filed the instant appeal.

LAW AND DISCUSSION

On appeal, Fikes argues that the imposed sentenced was excessive for the offense as he was “merely a middleman for a small-time street dealer,” |sand that the trial court failed to consider aggravating and mitigating factors when imposing sentence. Also, Fikes notes that the additional one year of jail imposed for a default in paying the $30,000 fine, when combined with the maximum sentence of 30 years’ imprisonment, results in the sentence exceeding the maximum allowed by the statute. Fikes asks that his default time be imposed to run concurrent with the 30 years’ imprisonment or that the entire sentence be vacated and the matter remanded for resentencing that is less than the statutory maximum.

La. R.S. 40:967 provides in pertinent part:

A. Manufacture; distribution. Except as authorized by the Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally;
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
B. Penalties for violation of Subsection A. Except as provided in Subsection F, any person who violates Subsection A with respect to:
(1) A substance classified in Schedule II which is an amphetamine or methamphetamine or which is a narcotic drug, except cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 and except oxyco-done as provided in Schedule II(A)(l)(o) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; therefore a sentence |4will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.3/9/12), 84 So.3d 551.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 2010-2853 (La.11/18/11), 75 So.3d 454. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra. All convictions and all prior criminal activity may be considered as well as other evidence ^normally excluded from the trial. State v. Platt, 43,708 (La.App.2d Cir.12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/6/09), 21 So.3d 305.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Taylor, 41,898 (La.App.2d Cir.4/4/07), 954 So.2d 804.

As indicated above, in 2008, a person who violated La. R.S. 40:967(A)(1) was subject to imprisonment at hard labor for not less than two years and not more than 30 years, with the first two years to be served without benefit of probation, parole, or suspension of sentence. This statute also provided for an optional fine of no more than $50,000.

Fikes’s sentence of 30 years’ imprisonment at hard labor, with the first two years to be served without benefits, and a fine of $30,000, falls within the statutory guidelines. However, the default time imposed would cause the sentence to exceed the maximum 30 years’ imprisonment allowed by the statute.

The trial court complied with the sentencing guidelines and jurisprudence by considering Fikes’s criminal history, arrests, and parole violations. As Fikes refused to answer questions or cooperate with the presentence investigation report, there was no social information available | fithat might have provided mitigating circumstances. Given Fikes’s prior felonies for violent offenses and drug offenses, the sentence imposed is not disproportionate to the severity of the crime, does not shock the conscience and is not a needless infliction of pain and suffering. Furthermore, the record indicates that Fikes benefitted from the state’s dismissal of the habitual offender bill.

However, this court recognizes that the default jail time imposed in the event that Fikes fails to pay the $30,000 fine causes the imposed sentence of 30 years to exceed the maximum 30 years allowed by La. R.S. 40:967. An illegal sentence may be corrected at any time by the court that imposed the sentence or by the appellate court on review. La. C. Cr. P. art. 882(A). The reviewing court may notice sentencing errors as error patent. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

An indigent person may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence for failure to pay a fine which is part of his sentence. State v. Howard, 44,434 (La.App.2d Cir.6/24/09), 15 So.3d 344. A defendant’s claim of indigence in such a situation may be discerned from the record. Id.

Here, Fikes was considered indigent by the trial court. Therefore, this court modifies Fikes’s sentence to delete the imposition of default jail time for failure to pay the fine.

Aside from issues regarding the default jail time, the imposition of sentence and fine were not statutorily or constitutionally excessive, even though the maximum prison sentence was imposed.

^CONCLUSION

For the above reasons, Fikes’s conviction is affirmed. We delete the portion of Fikes’s sentence imposing default jail time, and as amended, affirm.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Darrius R. WILLIAMS, Appellant.
    No. 47,146-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Dale Cox, R. Bennett Langford, III, Brady D. O’Callaghan, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, LOLLEY and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

liThe defendant, Darrius R. Williams, was convicted of second degree murder for killing a 17-month-old child with an assault rifle. He was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. He appeals, asserting two assignments of error. We affirm the defendant’s conviction and sentence.

FACTS

Shortly before 4:00 a.m. on August 30, 2008, the 17-year-old defendant and an accomplice were involved in a shooting at a house on Lillian Street in Shreveport. They were looking for a man with whom a friend of theirs was having a dispute over a girl. The defendant fired at least 15 shots from an SKS assault rifle into the house. The accomplice fired an AK-47 assault rifle until it jammed after firing approximately four shots. A 17-month-old baby inside the house was shot and killed in his playpen. The baby’s parents and three siblings were uninjured. An adult guest in the house suffered three gunshot wounds. The man whom the defendant was trying to kill — the baby’s uncle — did not live at the house and was not present at the time of the murder.

During the investigation, the defendant was identified as a suspect. The police interviewed the defendant. On August 30 and 31, 2008, the defendant made three recorded statements to the police. During these interviews, the defendant implicated himself in the murder of the child.

The defendant was indicted for first degree murder. Prior to trial, the charge was amended to second degree murder.

|2In September 2009, the defendant filed a motion to suppress his statements to the police. In October 2009, he filed a supplemental motion to suppress. A hearing was held on the motion in December 2009. In February 2010, the trial court issued a written opinion in which it denied the motion to suppress.

In May 2011, the matter was tried before a jury. The defendant was convicted of second degree murder by a verdict of 11 to 1. The defendant’s motion for post-verdict judgment of modification was denied. The trial court imposed the mandatory sentence of life imprisonment without the benefit of parole, probation or suspension of sentence.

The defendant appealed, arguing two assignments of error.

MOTION TO SUPPRESS

The defendant contends the trial court erred in not suppressing his statements to the police. The defendant filed a motion to suppress generally alleging that the statements were improperly taken. In a subsequently filed amended motion to suppress, he asserted that there were “either or both explicit and/or implicit promises and/or inducements to make one or more inculpatory statements in exchange for a reduction of the charge to Manslaughter.” Furthermore, he stated that one of the detectives presented scenarios to the defendant under which he might receive more lenient treatment depending upon his criminal history and/or cooperation with the police. According to the defendant, this “buttressed defendant’s impression that he was receiving a promise and/or inducement to give a statement in the form of a Manslaughter charge.”

laLaw

At a hearing on a motion to suppress a confession, the state bears the burden of proving the free and voluntary nature of the confession beyond a reasonable doubt. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Accordingly, on appeal, the trial court’s ruling on a motion to suppress is reviewed under the manifest error standard with regard to factual determinations, while its findings of law are subject to de novo review. State ex rel. Thibodeaux v. State, 2001-2510 (La.3/8/02), 811 So.2d 875; State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.

Before a confession can be introduced into evidence, the state must show that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. See La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Holmes, 2006-2988 (La.12/2/08), 5 So.3d 42, cert. denied, — U.S. —, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). Voluntariness is assessed on a case by case basis under a totality of the circumstances standard. State v. Sparks, 1988-0017 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S. —, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

The state must also establish that an accused who makes a statement during a custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Franklin, 35,268 (La.App.2d Cir.12/19/01), 803 So.2d 1057, writ denied, 2002-0352 (La.2/7/03), 836 So.2d 85; State v. Horn, 45,706 (La.App.2d Cir.11/3/10), 55 So.3d 100, writ denied, 2010-2721 (La.5/6/11), 62 So.3d 124.

Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra.

The jurisprudence has repeatedly concluded that a remark by the police telling the defendant that the officer will “do what he can” or “things will go easier” will not negate the voluntary nature of the confession. State v. Roddy, supra; State v. English, 582 So.2d 1358 (La.App.2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991). In State v. Matthews, 26,550 (La.App.2d Cir.12/21/94), 649 So.2d 1022, writ denied, 95-0435 (La.6/16/95), 655 So.2d 341, this court stated:

A confession obtained by direct or implied promises, however slight, or by the exertion of any improper influence must be considered involuntary and inadmissible. However, a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” does not negate the voluntary nature of the confession. Further, informing a defendant that the district attorney will be | ¿advised of any cooperation is insufficient to overcome the free and voluntary nature of a confession. [Citations omitted.]

See also State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8; State v. Taylor, 30,310 (La.App.2d Cir.2/25/98), 709 So.2d 883.

In State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997), the defendant claimed that the interviewing officer induced him to confess by advising him that by telling the truth or confessing, Lavalais would be dealt "with differently and that if he went to jail, it would not be for as long a term of imprisonment. Lavalais asserted that the officer told him that if he were truthful, he would be dealt with differently from defendants who lied and that if he confessed, he might go to jail but probably not for life. Also, the defendant said the officer promised to talk to the judge and do what he could to help. The state supreme court held that “although some of [the officer’s] remarks are problematic, when the comments are taken in their entirety, they are not improper.” The comments were intended to imply that Lavalais “would have an easier time if he confessed” and were not promises or inducements designed to extract a confession.

In State v. Leonard, 605 So.2d 697 (La.App. 2 Cir.1992), this court found that the interrogating officer’s statements constituted an impermissible inducement that rendered the defendant’s confession involuntary and thus inadmissible. Furthermore, this court found that the error was not harmless error, as the inadmissible confession might have contributed to the verdict. The officer said that he would talk to the district | ^attorney about reducing the charge and discussed the differences in sentencing between the two charges. These statements were found to have induced Leonard into making a statement. Aside from the eyewitness testimony by the victim, the confession was the only evidence indicating that Leonard committed the crime. Also, the state relied heavily upon the confession in its case and closing arguments. Without the confession, the state’s case was much weaker, and this court concluded that the confession might have contributed to the jury’s guilty verdict.

In State v. Matthews, supra, this court found that the officer did not make an impermissible inducement because his promise to not charge the defendant for prior offenses was not made until after he had already confessed to the current offense and because the officer clearly advised that the district attorney had the ultimate discretion to decide whether to charge all of the offenses.

The erroneous admission of a confession is a trial error subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). An error is harmless beyond a reasonable doubt if it is unimportant in relation to the whole and the verdict rendered was surely unattributable to the error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Montejo, 2006-1807 (La.5/11/10), 40 So.3d 952, cert. denied, — U.S. —, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010).

| discussion

The state demonstrated that the defendant was properly advised of his Mi randa rights and waived them. The interviewing officers ascertained the defendant’s age (17 years old) and his level of education (ninth grade). He told them that he was not under the influence of alcohol or narcotics but that he took a medication called Ability, which calmed him down; however, he said that he understood what was going on. Thereafter, he made three statements to the officers which were recorded.

The officers’ comments to the defendant indicated that while the evidence developed at that point in their investigation was enough that he could be charged with offenses carrying the harshest mandatory punishments, they would consider any information the defendant had that might suggest a lesser charge was warranted. The officers specifically and repeatedly told the defendant that they wanted him to tell the truth. The officers clearly advised the defendant several times that the final charge would be determined by the district attorney and grand jury. The officers’ comments could be construed as encouragement to the defendant to help himself by cooperating and taking responsibility for his actions. The officers offered that if the shooting was really an accident, they could talk to the district attorney and the judge about it being an accident. However, they never promised that the defendant would get any specific benefit if he said the shooting was an accident or if they spoke to the district attorney and |¿¡udge. Additionally, the officers never promised that he would get a reduced sentence for cooperating and never promised that if he cooperated, he would benefit from whatever charge was written on the charge sheet. Encouragement to cooperate and suggestions that cooperation might make things easier for a defendant do not constitute impermissible inducements.

The officers told the defendant they had spoken with many other witnesses who said that the defendant had an assault rifle and that he was the shooter in the instant killing. With these statements — plus the large number of bullet holes in the house and other evidence — there was enough evidence to indicate that the defendant had the specific intent to kill someone and in shooting up the house, he was responsible for the child’s death. Accordingly, they told the defendant that he might face charges of first or second degree murder and the corresponding penalties. Advising a defendant of the statutory penalties for possible charges does not constitute an impermissible inducement.

The state established that the defendant was properly advised of his rights and waived them, and that the free and voluntary nature of those statements was not negated by any impermissible inducements. Therefore, the trial court did not abuse its discretion in denying the defendant’s motion to suppress his statements and admitting them as evidence.

Furthermore, even if the defendant’s statements were improperly admitted, their admission was harmless error beyond a reasonable doubt. Shortly before the shooting, the defendant declared in front of witnesses his desire to “kill somebody.” Witnesses placed him at the scene of the murdeij — a9 location where he believed his intended victim lived — armed with an SKS assault rifle. The evidence showed that there was at least one visible light on in the house, indicating that its inhabitants might be at home. Witnesses who heard the shots saw the defendant running away from the direction of the house with the assault rifle immediately after the shots were fired. After the offense, the defendant made three separate admissions to the crime to witnesses, giving specific details about the shooting. He went so far as to openly brag about his mistaken belief that he “got” the man he intended to kill. Given such overwhelming evidence, we conclude that the defendant’s conviction was surely unattributable to any error in admitting the defendant’s statements to the police.

This assignment of error lacks merit.

NONUNANIMOUS JURY VERDICT

The defendant argues that the application of La. C. Cr. P. art. 782, which allows a nonunanimous jury verdict in hard labor cases, is unconstitutional and violates his Sixth Amendment right to a fair trial. Specifically, he contends that the jury should not have been instructed that a unanimous verdict was unnecessary. In support of that argument, the defendant asserts that Louisiana and Oregon are the only states which have provisions which allow for nonunanimous guilty verdicts.

La. C. Cr. P. art. 782 provides for the number of jurors composing a jury, and the number which must concur in rendering the verdict. In pertinent part, it states:

|inA. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

Second degree murder is an offense for which “punishment is necessarily confinement at hard labor.” See La. R.S. 14:30.1.

The Louisiana Supreme Court has consistently upheld the constitutionality of La. C. Cr. P. art. 782(A). State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738; State v. Edwards, 420 So.2d 663 (La.1982); State v. Simmons, 414 So.2d 705 (La.1982); State v. Jones, 381 So.2d 416 (La.1980). Additionally, as explained in State v. Bertrand, supra, the decisions of the United States Supreme Court have indicated that the constitutionality of nonunanimous jury verdicts is well settled.

Claims such as that made by this defendant have been repeatedly rejected by this court. State v. Jones, 46,758 (La.App.2d Cir.12/14/11), 81 So.3d 236; State v. Barnett, 46,303 (La.App.2d Cir.5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239; State v. Johnson, 45,828 (La.App.2d Cir.1/26/11), 57 So.3d 1087, writ denied, 2011-0433 (La.12/16/11), 76 So.3d 1198; State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910, writ denied, 2011-0192 (La.6/17/11), 63 So.3d 1033; State v. Blow, 45,415 (La.App.2d Cir.8/11/10), 46 So.3d 735, writ denied 2010-2093 (La.2/11/11), 56 So.3d 1000; State v. Malone, 43,548 (La.App.2d Cir.11/19/08), 998 So.2d 322, writ denied 2009-0198 (La.10/30/09), 21 So.3d 275; State v. Divers, 38,524 (La.App.2d Cir.11/23/04), 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005).

This assignment of error has no merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Interviews No. 1 and No. 2 were actually one long interview with a short break that occurred when the lead detective stopped the recorder to complete the charge sheet. When the defendant and the other detective ra-sumed talking, the lead detective turned the recorder back on. The defendant signed waiver forms at the beginning of Interviews No. 1 and No. 3.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Mitchell Glenn WASHINGTON, Appellant.
    No. 47,153-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, John A. Crawford, Kelvin Rodgers, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

_[iMitchell Glenn Washington (“Washington”) was convicted by the First Judicial District Court, Parish of Caddo, State of Louisiana, of one count of second degree kidnapping, in violation of La. R.S. 14:44.1, and was sentenced to 38 years at hard labor without the benefit of probation or suspension of sentence. Washington now appeals. We affirm his conviction and sentence.

FACTS

On the night of April 20, 2010, Shreveport police officers responded to a call from 1759 Malcolm Street, Shreveport, LA. When officers arrived, Jatavious Martin informed them that Washington had taken Martin’s aunt, Latosie Adger (“Adger”), from the residence by force. After patrolling the neighborhood, officers located Washington and Adger arguing near the corner of Linwood Avenue and Natalie Street. When the officers exited the vehicle, Adger became hysterical, screaming that she needed help and that she thought she was going to die. After police interviewed Washington and Adger, they placed Washington under arrest for the kidnapping of Adger. With Adger’s help, officers located a box cutter at the scene which Adger said Washington used to carry out her kidnapping. Subsequently, Washington was charged by bill of information with one count of second degree kidnapping, a violation of La. R.S. 14:44.1.

After trial, a jury found Washington guilty as charged. The trial court adjudicated Washington as a third felony offender and sentenced Washington to 38 years’ hard labor without benefit of probation or |2suspension of sentence. Washington filed a motion for reconsideration of his sentence, and the trial court denied the motion. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

As his first assignment of error, Washington argues that the State did not produce sufficient evidence to convict him of second degree kidnapping. Specifically, Washington claims that witnesses contradicted one another and that the State did not provide sufficient evidence to prove that the box cutter carried by Washington was used as a weapon.

Louisiana R.S. 14:44.1 is the crime of second degree kidnapping and states, in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another[.]

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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence, must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that a defendant was guilty of every essential element of the crime. _[4State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

Viewing the evidence in a light most favorable to the prosecution, the State produced sufficient evidence to convict Washington of second degree kidnapping. Both Adger and her nephew, Martin, testified that Washington removed Adger from the residence at 1759 Malcolm Street by force. Both Adger and Martin testified that Washington possessed a box cutter at the time he forcibly removed Adger from the residence. Adger told the jury how Washington held the point of the box cutter to her side after he had carried her several blocks from the residence. Finally, Corporal Denham testified that he located the box cutter in an open position after Adger told him where she had last seen Washington carrying it. Although witness testimony contained slight discrepancies, the jury assessed the credibility of the witnesses and determined which testimony to accept as true. This court affords great deference to the jury’s decision and will not reassess |5credibility of a witness or reweigh the evidence. Therefore, this assignment of error is without merit.

Excessiveness of Sentence

As his second and final assignment of error, Washington argues that the trial court imposed an excessive sentence upon him. Specifically, Washington asserts that the trial court did not adequately consider the appropriate factors contained in La. C. Cr. P. art. 894.1 and that the trial court imposed an excessive sentence.

The test applied by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital [6status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

Louisiana R.S. 15:529.1(A)(3), which governs sentencing upon conviction of a third felony offense states, in pertinent part:

If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction[.]

Second degree kidnapping is punishable by imprisonment at hard labor for not less than five nor more than 40 years. La. R.S. 14:44.1(C).

17Here, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1 and did not impose an excessive sentence. First, the record reflects that during Washington’s sentencing hearing, the trial court stated its consideration of the factors enumerated within La. C. Cr. P. art. 894.1. Specifically, the trial court noted that the crime Washington was being sentenced for was a crime of violence and that Washington’s criminal record contained other felony convictions which included sexual battery and failure to register as a sex offender. Second, although the trial court sentenced Washington to a term greater than the statutory minimum of 26 years for a third felony conviction, there is no indication that the trial court abused its discretion where Washington could have received a maximum sentence of 80 years’ hard labor. Considering Washington’s criminal record and the facts of this case, the imposition of this sentence does not shock the sense of justice, and this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Mitchell Glenn Washington are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Gilbert M. TYLER, Appellant.
    No. 47,220-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      James E. Beal, Jonesboro, LA, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, John M. Ruddick, Stephen T. Sylvester, Shirley M. Wilson Davis, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

11 Defendant, Gilbert M. Tyler, was charged by a bill of information with two counts of attempted first degree murder and a third count of simple burglary. A jury convicted him of attempted first degree murder and attempted second degree murder. He was found not guilty on the burglary count. He was sentenced to serve 50-year terms of imprisonment at hard labor on each count. The terms were without benefits and to be served concurrently. Defendant has appealed his sentences as excessive. We affirm.

Facts

On March 29, 2008, Monroe City Police Officers Jared DeSadier and Stephen Snowberger responded to a domestic disturbance call at the Parkview Apartments in Monroe, Louisiana. The call had been placed by Catonya Travis who alleged that defendant, her ex-boyfriend, had entered her apartment and taken her keys.

Officers DeSadier and Snowberger arrived in separate patrol units. Officer De-Sadier was the first to make contact with the victim and defendant outside of one of the apartment buildings. The victim pointed to defendant, who was leaning up against an exterior wall of the building, and identified him as the person who had taken her keys. Officer DeSadier asked defendant if he could speak to him; defendant’s only response was to smile and place his right hand into his pocket. Officer DeSadier asked defendant to take his hand out of his pocket and told defendant that he only wanted to speak to him. Defendant smiled again before turning and fleeing.

^Officer DeSadier gave chase through the apartment complex and repeatedly called for defendant to stop. Defendant pulled a silver pistol from his waistband with his right hand and, aiming over his left shoulder, fired five shots at Officer DeSadier. Officer DeSadier shot back once. Officer Snowberger joined in the chase.

Defendant ran out of the complex through the southeast gate and in and out of a ditch. While defendant was in the ditch, Officer DeSadier again fired his gun. Once out. of the ditch, defendant turned and fired several more shots at both officers. Both officers took cover. Defendant ran down Stacy Drive and was apprehended several hours later by police officers combing the area. The weapon, a 9 mm pistol, was found wrapped in a black T-shirt outside the home of a nearby resident, who reported that when he had arrived home a short while earlier he found defendant inside his house. Shell casings found at the shooting scene were matched to the 9 mm pistol.

Defendant was charged with the attempted first degree murder of both officers and simple burglary. After a jury trial, defendant was found guilty as charged of the attempted first degree murder of Officer Jared DeSadier, guilty of the responsive verdict of attempted second degree murder of Officer Stephen Snowber-ger, and not guilty of simple burglary. He received concurrent 50-year sentences. The record does not reflect that a motion to reconsider sentence was filed. This appeal followed. The sole assignment of error is that the sentences were excessive.

| ^Discussion

The maximum sentence for the crimes of both attempted first degree murder and attempted second degree murder is 50 years’ imprisonment at hard labor without benefits. La. R.S. 14:27(D)(1)(b); La. R.S. 14:80(0; La. R.S. 14:30.1(B).

Defendant asserts that his sentences are constitutionally excessive because they are “grossly disproportionate to the considerable mitigating evidence” regarding defendant’s youth, lack of education and lack of criminal history. Defendant also alludes to the recent killing of three police officers in the Monroe area as creating an atmosphere in which a sentence specifically tailored to him could not be imposed.

Defendant was 19 years old at the time of this crime and according to a PSI report had no prior criminal record. There was also a short personal background on defendant, including that he was the fourth of five children born to a single mother. Defendant was in and out of group homes for reasons that he would not provide. He attended school through the tenth grade, and then he was expelled for what defendant described as “being bad.” The PSI report indicates that defendant would give no further details about his background and that he “showed no concern for what he had done ... barely cooperated with the interview process and seemed detached from any emotional connection for his actions.”

The trial court noted that maximum sentences should be reserved for the most serious violations and for the worst offenders. With that in mind, the trial court recited the circumstances of defendant’s crime and the [ contents of the PSI report. The trial court focused on the nature of defendant’s conduct and noted his lack of appreciation for the seriousness of the conduct. The court listed as aggravating factors that defendant knowingly created a risk of death or great bodily harm to more than one person, including bystanders; that defendant used a dangerous weapon in the commission of the offense; and defendant’s lack of remorse.

The trial court took note of defendant’s lack of justification and his apparent amusement in commission of the instant offenses. In a statement to the court at sentencing, Officer DeSadier found defendant’s conduct disturbing given that the initial dispute was simply about giving a set of keys back to his estranged girlfriend. Although defendant had no prior felony record, he entered the ranks of felony offenders by attempting the most serious of crimes, the murder of law enforcement officers. He, likewise, endangered bystanders in the apartment complex. Given defendant’s behavior and lack of appreciation for its seriousness, the trial court did not err in concluding that defendant posed a continuing threat warranting the maximum penalty.

A sentence violates La. Constitution Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the Usense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158.

The trial court found that the aggravating circumstances “greatly outweigh” defendant’s lack of criminal history, that he posed an imminent threat to the public, and that any lesser sentences would deprecate the seriousness of the offenses. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7. Although the sentences are the maximum for the offenses of conviction, they are not out of proportion to the offenses or to this offender.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are AFFIRMED.


text:
    Claudine Mason McCoy DELANEY, Plaintiff-Appellant v. Mack Allen McCOY, Sr., Defendant-Appellee.
    No. 47,240-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Sean D. Miller, for Plaintiff-Appellant.

      James L. Fortson, Jr., Shreveport, LA, for Defendant-Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   GASKINS, J.

I,The plaintiff, Claudine Mason McCoy Delaney, appeals from a trial court judgment granting an exception of res judicata in favor of the defendant, Mack Allen McCoy, Sr., finding that their prior community property settlement disposed of any claims Ms. Delaney had to Mr. McCoy’s retirement benefits. For the following reasons, we reverse and remand the matter to the trial court for further proceedings.

FACTS

The parties were married on November 16, 1973. On June 27, 1979, Mr. McCoy filed a petition for separation. On July 10, 1979, a judgment of separation was entered terminating the community property regime between the parties. On September 19, 1979, Ms. Delaney filed a petition for settlement of the parties’ community property. Mr. McCoy worked for the Shreveport Fire Department. During the course of the proceedings, Ms. Delaney propounded interrogatories to Mr. McCoy regarding the existence of a retirement plan, profit sharing, or stock purchase plan. He answered, “the parties have no vested interest in any retirement plan.”

Trial was held on the matter and on December 14, 1979, a judgment was entered, ordering that the community property be partitioned and setting forth which items of the former community were to be partitioned in kind and which were to be partitioned by licitation. The judgment did not mention retirement benefits. On January 16, 1980, the parties entered into an extrajudicial agreement partitioning the community property in kind. The agreement was not filed into the suit record. No mention was made in the agreement of retirement benefits. On January 29, 1980, on joint motion 12of the parties, the trial court signed a judgment dismissing the case with prejudice.

In December 2007, Mr. McCoy retired from the fire department. In 2008, Ms. Delaney filed a supplemental petition for partition of community property, alleging that Mr. McCoy’s retirement benefits accruing during the marriage had been omitted from the prior community property partition. She alleged that the parties were married for 2,050 days and she requested her proportionate share of Mr. McCoy’s retirement benefits as well as her share of his retirement benefits deposited during Mr. McCoy’s participation in the deferred retirement option program (DROP).

Mr. McCoy filed exceptions of res judi-cata and no right and no cause of action. The trial court denied the exceptions. Mr. McCoy filed a motion for rehearing in the trial court, alleging the discovery of the prior extrajudicial community property settlement agreement. He claimed that the document contained language of transaction and compromise. The trial court granted the rehearing and granted the exception of res judicata. In reasons for judgment, the trial court stated:

As the record reflects this matter was before the Court in 1979 on a partition suit and the judgment of the trial court in 1979 case [was] that the Court at that time found that Mr. McCoy had no retirement benefits that were accrued during the community. As a matter of fact, the Court in 1979 found that Mr. McCoy had no retirement benefits which were community property, and as a matter of fact, were not listed in the list of assets recognized as community property in the judgment. Subsequent to the judgment rendered in 1979 the parties entered into a voluntary transaction and compromise, entitled “Community Property Settlement” and in this community property settlement it indicates that there was a settlement of all claims that either party have or may have against the community of acquets and gains formerly existing. The | jurisprudence is clear that compromise and transaction has the authority of a thing adjudged and forms the basis of Res Judicata.

Ms. Delaney appealed the trial court decision granting the exception of res judicata. See Delaney v. McCoy, 46,103 (La.App.2d Cir.4/13/11), 63 So.3d 327. She argued that the trial court incorrectly found that the issue of retirement benefits had been previously adjudicated based on the omission of those benefits from the list of community assets in the prior community property settlement. This court noted that the trial court mentioned the record of the prior proceedings in granting the exception of res judicata, but the record of the prior lawsuit, the judgment, and the extrajudicial community property settlement were not introduced into evidence. We found that it was incumbent upon Mr. McCoy, as the party pleading the exception of res judicata, to introduce into evidence in the trial court the suit record in the prior case, the prior judgment, and the community property settlement. By failing to introduce these documents into evidence, we found that Mr. McCoy did not meet his burden of proof. This court denied Mr. McCoy’s motion to supplement the record with the absent documents because they were not introduced into evidence in the trial court. We reversed the trial court judgment and remanded for further proceedings.

On remand, a hearing was held in the trial court in June 2011. All pertinent suit records regarding the partition were filed into evidence along with the extrajudicial community property settlement. On August 17, 2011, the trial court signed a judgment again granting the exception of res | /judicata and denying the exceptions of no right and no cause of action. The trial court incorporated the reasons for judgment given for the prior judgment. Ms. Delaney again appealed.

RES JUDICATA

In the present appeal, Ms. Delaney urges that the trial court erred in finding that consideration of partition of the retirement benefits was barred by res judi-cata. She argues that the trial court erred in granting the exception of res judicata based upon the reasoning that no retirement benefits were contained in the detailed descriptive list in the community property partition, and therefore, the trial court, in 1979, made a finding that the retirement benefits were not community property. This argument has merit.

Discussion

The law on community property partitions has changed since the original proceedings in this matter. In 1979-1980, during the prior community property partition, the “item theory” of partition in kind applied. Under that theory, it was necessary that each particular community effect be capable of division between the spouses. Normally, community property consists of different assets not capable of “item by item” division in kind. If property could not be partitioned in kind, it was partitioned by licitation. In 1982, La. R.S. 9:2801 was enacted which adopts the “aggregate theory” of partition whereby different assets of equal value are allotted to each spouse, provided that the property each ultimately receives is of equal net value. IsSee Katherine S. Spaht and Richard D. Moreno, Matrimonial Regimes § 7.26, in 16 Louisiana Civil Law Treatise (3d ed.2007).

The parties agree that the law on res judicata has changed since 1979 and 1980 when the hearing on the partition was held and the settlement agreement was entered, that those changes were substantive, and that the prior law is applicable to this matter. The exception of res judicata is currently governed by La. R.S. 13:4231. This statute became effective on January 1, 1991, and applies to all civil actions filed on or after that date. The preclusive authority of a judgment rendered in an action filed before January 1, 1991, shall be determined by the law in effect prior to that date. Acts 1990, No. 521, § 5. See also Thurston v. Thurston, 31,895 (La.App.2d Cir.8/20/99), 740 So.2d 268. Thus, the law of res judicata applicable to the present case is set forth in former La. C.C. art. 2286:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Under this provision, for res judicata to apply, there must be: 1) an identity of the parties; 2) an identity of “cause”; and 3) an identity of the thing demanded. The words “cause of action” as used in the statute are interpreted to mean “cause.” The civilian concept of cause is the juridical or material fact which is the basis of the right claimed, or the defense pleaded. The “thing demanded” has been defined as the “kind of relief sought.” Thurston v. Thurston, supra; Gautney v. Gautney, 35,398 (La.App.2d Cir.4/3/02), 814 So.2d 717.

|fiThe doctrine of res judicata is strictly construed. Any doubt regarding compliance with its requirements is to be resolved in favor of maintaining the plaintiffs action. Thurston v. Thurston, supra. The party urging the exception of res judi-cata has the burden of proving each essential element by a preponderance of the evidence. The absence of any of these requisite elements is fatal to a plea of res judicata. Thurston v. Thurston, supra. See Blalock v. Blalock, 312 So.2d 366 (La.App.2d Cir.1975).

Numerous cases have dealt with facts similar to those in the present ease where retirement benefits were not included in a community property partition or settlement. One spouse’s retirement benefits are community property in the proportion set forth in Sims v. Sims, 358 So.2d 919 (La.1978). Community property which is not disposed of by the community property settlement agreement remains owned in indivisión by the parties. Rollison v. Rollison, 541 So.2d 375 (La.App.2d Cir.1989); Mire v. Mire, 2006-511 (La.App.3d Cir.9/27/06), 962 So.2d 1. All persons who hold property in common may seek a partition. La. C.C. art. 1308; Rollison v. Rollison, supra.

17Under the section of the Civil Code dealing with the rescission of partition of succession properties, the mere omission of a thing belonging to the succession is not ground for rescission, but simply for a supplementary partition. La. C.C. art. 1401. By analogy, this principle applies to the partition of the community, When co-owned property is omitted from the spouse’s partition, the jurisprudence holds that each spouse continues as co-owner and is entitled to a supplemental partition. Sullivan v. Sullivan, 42,923 (La.App.2d Cir.2/13/08), 976 So.2d 329, writ denied, 2008-0816 (La.6/6/08), 983 So.2d 921; Rollison v. Rollison, supra. Even when an original partition explicitly purports to be a full and final property settlement between the spouses, the courts have allowed supplemental partitions of omitted assets when the facts and intent of the parties warrant it. Sullivan v. Sullivan, supra; Mire v. Mire, supra; Goodwyne v. Goodwyne, 94-0079 (La.App.4th Cir.6/30/94), 639 So.2d 1210, writ denied, 94-2035 (La.11/4/94), 645 So.2d 211; Moreau v. Moreau, 457 So.2d 1285 (La.App.3d Cir.1984).

When neither party mentions retirement pay during negotiations and settlement, the failure to include the retirement pay in the settlement agreement is a “mere omission” which can be amended by a supplemental partition. La. C.C. art. 1401; Rollison v. Rollison, supra; Succession of Tucker, 445 So.2d 510 (La.App.3d Cir.1984), writ denied, 447 So.2d 1077 (La.1984).

The issue of whether a pension was considered in property settlement discussions is a question of fact, with the factfinder afforded much ^discretion. Faucheux v. Faucheux, 97-1369 (La.App.4th Cir.1/28/98), 706 So.2d 654, writ denied, 98-0482 (La.4/9/98), 717 So.2d 1146. Where one spouse knows of pension rights, but there is no clear showing that there was a discussion and waiver of those rights, the claiming spouse retains the right to seek a supplemental partition of the pension benefits. See Faucheux v. Faucheux, supra.

The record shows that in the proceedings held in 1979 and 1980, the only mention of retirement benefits was one interrogatory propounded by Ms. Delaney to Mr. McCoy. Mr. McCoy answered that there was no “vested interest” in retirement benefits. There was no further discussion of retirement benefits. Retirement benefits were not mentioned in the trial to partition the community. Following that hearing, in oral reasons for judgment, the trial court meticulously set forth the disputed items of property considered at that hearing, and announced its decision as to the classification of each item as separate or community property. The trial court found that the proceeds from the sale of timber and cattle were Mr. McCoy’s separate property. A certificate of deposit in the original amount of $3,000, purchased by Mr. McCoy, was found to be community because funds had been comin-gled. However, the trial court found that Mr. McCoy was entitled to the original $3,000. The mobile home that parties had lived in was found to be Mr. McCoy’s separate property. A note for $5,000 executed a few days after the marriage to facilitate the purchase of the mobile home was found to be a community debt for which no reimbursement was due. There was then some discussion off the record |9concerning division of motor vehicles owned by the parties. There was no discussion or decision regarding retirement benefits.

A written judgment was signed and filed on January 18, 1980, partitioning the community. The trial court ordered that the community owed the separate estate of Mr. McCoy $26,943.84. The mobile home was decreed to be Mr. McCoy’s separate property. Each party was found to be in possession of approximately $9,651 of former community funds which they were allowed to retain. The trial court listed several items of movable property and immovable property of approximately three acres that was not subject to being partitioned in kind. The trial court directed a partition by licitation of those items and ordered a sale, with the proceeds to be divided between the parties. There was no mention in the judgment of retirement benefits. The partition by licitation was avoided when the parties entered into an extrajudicial community property settlement, dividing the items in kind. The record fails to show that retirement benefits were considered in that agreement.

In the present matter, there is an identity of the parties and an identity of cause. However, the thing demanded is not the same. Mr. McCoy argues that the thing demanded in the 1979 partition was all assets and liabilities of the community estate. The record shows that even though all assets were demanded, there was no consideration of the existence of and entitlement to a pro rata share of Mr. McCoy’s retirement benefits in the prior partition proceedings. There was no express waiver by Ms. Delaney of her pro rata share of any retirement benefits she might be entitled to. See and compare | ^Gautney v. Gautney, supra; Thurston v. Thurston, supra. The record is clear that retirement benefits were not divided or waived in prior proceedings. The trial court’s statement in this case that the trial court in 1979 found that Mr. McCoy had no retirement benefits is erroneous and is not supported by the record. According to the jurisprudence, if any retirement benefits accrued during the marriage of the parties, then Ms. Delaney is entitled to a pro rata share that has not been divided, is still co-owned by the parties in indivisión, and is now properly subject to a supplemental partition. Because the thing demanded in the present suit is not the same as that demanded in the prior proceedings, Ms. Delaney’s claim is not barred by res judi-cata. See Rollison v. Rollison, supra; Blalock v. Blalock, supra. See and compare Sullivan v. Sullivan, supra. The trial court’s judgment in this matter, granting Mr. McCoy’s exception of res ju-dicata, was erroneous and is reversed.

TRANSACTION AND COMPROMISE

Ms. Delaney contends that the trial court erred in finding that the matter is res judicata by reasoning that the language within the parties’ extrajudicial settlement agreement had the effect of a transaction and compromise barring supplemental partition of retirement benefits accrued during the parties’ marriage. This argument has merit.

Discussion

At the time of the prior proceedings in 1979 and 1980, La. C.C. art. 3071 provided:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a Inlawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

At that time, La. C.C. art. 3073 stated:

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made to all rights, claims, and pretensions, extends only to what relates to the differences on which the transaction arises.

Former La. C.C. art. 3078 stated:

Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

In the present case, the extrajudicial community property settlement entered into by the parties in 1980 stated:

It is further understood and agreed that this settlement includes the settlement of all claims which Mack Allen McCoy and Claudine Mason McCoy, or either of them, have or may have against the community of acquets and gains formerly existing between Mack Allen McCoy and Claudine Mason McCoy in favor of either of their separate estates.
Each party acknowledges that he and she received in said partition, property equal in value to that conveyed herein and the agreement of each party being entered into herein for the consideration of settling the dispute existing between the parties hereto with reference to the partition and liquidation with reference thereto.

112The trial court found that this language constituted a transaction and compromise which barred Ms. Delaney from now claiming entitlement to retirement benefits that were omitted from the prior partition. The jurisprudence does not support the trial court’s decision.

In Robinson v. Robinson, 1999-3097 (La.1/17/01), 778 So.2d 1105, the Louisiana Supreme Court considered the issue of whether boilerplate language in a community property agreement precluded the former wife from later seeking her portion of the former husband’s retirement benefits. That language stated:

Husband and Wife further agree that they have hereby accomplished a complete liquidation of the community of acquets and gains formerly existing between them, and they do accordingly hereby mutually release and forever discharge each other from any and all further claims and demands and any and all further accounting between them. It is the intention of the parties that henceforth there shall.be, as between them, only such right and obligations as are specifically provided for in this Agreement, and the parties acknowledge that the allocation made to them has resulted in each party’s receiving an equal share of the community property.
The Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Husband, his heirs, executors, administrators, and assigns, all right of future support, all right of dower, inheritance, descent, and distribution, and right to dissent from his will, and any and all other rights arising out of their marriage relationship, and to any and all property or interest in property, real, personal, and mixed, now owned or hereafter acquired by Husband, and hereby agrees that Husband henceforth may acquire, hold, manage, alienate, lease, and convey his property without her knowledge, further consent, or join-der, in accordance with the provisions of law, the same as if she never had been married to him, and further does hereby release, relinquish, and renounce any and all right to administer upon his estate.
|1RHusband and Wife have accomplished a complete liquidation and division of their property in full settlement of all of their property rights, ... under the community of acquets and gains laws in the State of Louisiana, or any other provision of the law of any other jurisdiction, statutory or otherwise, and hereby ratify the division of such property, and agree that the same amounts to an equitable division of their property.

The supreme court found that this language did not transfer the former wife’s interests in the former husband’s pension plan to him. According to the supreme court, Louisiana jurisprudence is clear; general divestiture language does not necessarily divest the non-employee spouse of his or her right in the employee spouse’s pension. When the agreement does not expressly address the employee spouse’s pension, the issue of whether the agreement divests the non-employee spouse of any community property rights in the pension depends upon the intent of the parties. See also Gautney v. Gautney, supra. In Robinson, the pension plan was not listed in the parties’ agreement nor was it discussed as part of the settlement. Therefore, the supreme court found that the pension was not partitioned. Both parties were co-owners in indivisión of the pension benefits and the former wife could seek to partition this asset.

In the case of Sherrill v. Sherrill, 25,889 (La.App.2d Cir.6/22/94), 639 So.2d 794, this court addressed a similar argument where the husband claimed that a community property settlement contained a residual disposition clause which barred the wife from seeking a supplemental partition of retirement benefits. In Sherrill, the clause stated:

As a result hereof, the parties hereto discharge each other from any further accounting to the community formerly existing 114between them, or to each other, the same being fully liquidated as set forth above.

The former husband argued that this language barred the former -wife’s later claim for her share of his retirement benefits. This court rejected that argument, finding that, because there was nothing in the settlement specifically addressing retirement benefits, the former wife’s rights were preserved. We also found that none of the provisions contained in the community property settlement transferred ownership of the former wife’s interest in retirement benefits to her former husband.

This court’s reasoning was based in part on Moreau v. Moreau, supra, where the parties’ community property settlement did not mention Mr. Moreau’s retirement benefits. Mrs. Moreau later sought her share of those benefits. Mr. Moreau claimed that the following clause barred Mrs. Moreau from receiving the retirement benefits:

As a result of the transfers and agreements made herein, the parties hereby mutually discharge each other from any further accountings of the community which formerly existed between them, the same being fully liquidated as above set forth.

The court in Moreau found that this provision did not constitute a waiver of the former wife’s rights to her share of the former husband’s retirement benefits. See also Succession of Tucker, supra.

Similarly, in Lamartiniere v. Lamartiniere, 520 So.2d 828 (La.App.3d Cir.1987), the parties executed a community property settlement agreement entitled, “Act of Compromise, Partition, and Community Property Settlement.” The agreement did not include partition of retirement benefits, but the former husband claimed that it was intended to be a final ||Sand complete settlement of all differences the parties had in reference to the divorce.

The court found that even though the agreement contained language that usually is employed in a compromise transaction, such agreements regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, citing former La. C.C. art. 3073, set forth above. The court observed that the agreement disclosed that the parties went to great lengths to set out all of the differences they intended to settle and partitioned the assets they had under consideration “down to the last tea-cup.” According to the court, it was inconceivable that so substantial an asset as the husband’s retirement rights would have been omitted from the listed assets partitioned, if the parties intended to include them in the partition. The court concluded that the retirement rights of the former husband were not intended to be included in the partition, and the agreement entered into by the parties did not bar the former wife from pursuing her community interest therein. Lamartiniere v. Lamartiniere, supra.

In Gautney v. Gautney, supra, the principles set forth in Robinson v. Robinson, supra, dealing with contractual community property partitions were extended to partition judgments. This court stated that, “Although Robinson dealt with a contractual partition and compromise and not a partition judgment as in this case, the preclusive effect rejected by Robinson likewise does not apply in this case.”

|ifiIn this case, there is no showing that the parties considered Mr. McCoy’s retirement benefits in the litigation and judgment dividing community assets, or in the extrajudicial community property settlement. The jurisprudence is clear that, without a showing that Ms. Delaney expressly waived her rights to retirement benefits, or that the value of the retirement benefits was used to calculate the division of the property, residual disposition language did not constitute a transaction and compromise. Ms. Delaney is not barred from asserting her alleged right to her pro rata share of Mr. McCoy’s retirement benefits. We reverse the trial court judgment granting Mr. McCoy’s exception of res judicata and remand for further proceedings.

CONCLUSION

For the reasons set forth above, we reverse the trial court judgment granting an exception of res judicata in favor of the defendant, Mack Allen McCoy, Sr. We remand this matter to the trial court for further proceedings. Costs in this court are assessed to Mr. McCoy.

REVERSED AND REMANDED.

      . Sims v. Sims, supra, provided the following formula for dividing a pro rata community property interest in a former spouse’s retirement benefits:
      Portion of pension attributable to creditable service during the existence of community
      _X ½ X annuity (or lump sum payment)
      Pension attributable to total creditable service See also Hare v. Hodgins, 586 So.2d 118 (La. 1991).

      . We note that there may be an issue as to whether Mr. McCoy actually contributed to a retirement system during his marriage to Ms. Delaney. The statewide Firefighters’ Retirement System was instituted by La. R.S. 11:2251, and went into effect on January 1, 1980. Ms. Delaney alleges that, although the Firefighters' Retirement System did not go into effect until January 1, 1980, Mr. McCoy had paid into some other fund or system and that those assets were transferred to the Firefighters' Retirement System. The issue of the existence of and entitlement to retirement benefits are issues to be litigated on remand in light of Frazier v. Harper, 600 So.2d 59 (La.1992) and Smith v. Smith, 36,910 (La.App.2d Cir.3/14/03), 839 So.2d 1255.


author: SEXTON, Judge Pro Tem.

text:
    Jeanette L. WATSON, Plaintiff-Appellant v. WILLIS-KNIGHTON MEDICAL CENTER, et al., Defendant-Appellees.
    No. 47,295-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Gerald L. Burnett, Shreveport, LA, for Appellant.
    Pugh, Pugh & Pugh, LLP, Shreveport, LA, by Lamar P. Pugh, for Appellees.
    Before WILLIAMS, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

11 Plaintiff, Jeanette L. Watson, appeals a judgment granting directed verdicts in favor of Defendants Willis-Knighton Medical Center (Willis-Knighton), Peggy Gavin and Jerry Fielder, dismissing her claims of defamation arising out of her termination of employment by Willis-Knighton. For the reasons stated herein, we affirm.

FACTS

The parties filed a list of “Uncontested Issues of Fact,” which include most of the following summary of events. Ms. Watson was employed by Willis-Knighton from May 30, 1990, to October 24, 2000. In 1997, she became the office supervisor at Willis-Knighton’s physician’s network clinic in Haughton (“the clinic”). Ms. Watson had two corrective actions in her personnel file (Nov. 1999 and Jan. 2000) and the testimony reflects that she had received numerous complaints from coworkers about her unprofessional behavior and brash attitude. On Saturday, June 3, 2000, the clinic was open from 8:00 a.m. to 12:00 p.m. and was staffed by nurse Dela-na Ester and front desk clerk, Defendant Sharon Smith. At 10:00 a.m., Ms. Ester spoke with Ms. Watson on the telephone and Ms. Watson then drove to the clinic. While there, over a period of 30-45 minutes, Ms. Watson drank two beers on the back steps of the clinic in the presence of Ms. Ester and Ms. Smith.

Nothing was said about the incident until October 3, 2000, when Ms. Smith wrote a letter to her supervisor complaining about Ms. Watson. In the letter, which was delivered to Peggy Gavin, Director of Physician Services, Ms. Smith related the beer drinking incident of June 3. Ms. Gavin 12met with Ms. Smith and Ms. Ester and confirmed the validity of the complaint. Ms. Gavin then discussed the incident with Jerry Fielder, Director of Human Resources for Willis-Knighton. Mr. Fielder secured permission to terminate Ms. Watson if she admitted to the drinking incident. He then prepared a corrective action form indicating her termination in the event Ms. Watson admitted the incident. The form states:

EMPLOYEE CONTINUES TO EXHIBIT CONDUCT THAT IS UNPROFESSIONAL, UNBUSINESSLIKE AND IMPROPER FOR A SUPERVISOR. IN ADDITION EMPLOYEE HAS PARTICIPATED IN AN ACTIVITY THAT HAS DISCREDITED THE HEALTH SYSTEM AND ITS REPUTATION. MAINLY EMPLOYEE CONSUMED ALCOHOL (BEER) ON HEALTH SYSTEM PROPERTY.

Subsequently, at a meeting with Ms. Gavin and Mr. Fielder, Ms. Watson admitted the incident and was terminated. Ms. Watson refused to sign the corrective action form indicating her termination. The paperwork submitted to the Department of Labor — Office of Employment Security (“OES”) cited as the reason for termination:

TERMINATION — EMPLOYEE CONTINUES TO EXHIBIT UNPROFESSIONAL, UNBUSINESSLIKE, AND IMPROPER CONDUCT. FOREMOST-EMPLOYEE CONSUMED ALCOHOL (BEER) ON HEALTH SYSTEM PROPERTY.

Following her termination, Ms. Watson filed suit against Willis-Knighton, Ms. Gavin, Mr. Fielder and Ms. Smith. She asserted claims of age and gender discrimination and defamation. A jury trial began on March 21, 2011; and, at the close of Ms. Watson’s evidence, Defendants | amoved for directed verdicts. The trial judge granted a directed verdict in favor of Willis-Knighton, Ms. Gavin and Mr. Fielder, but denied the motion as to Ms. Smith. At the close of all the evidence, the trial judge granted a directed verdict in favor of Ms. Smith.

The trial judge found that the statement of consuming alcoholic beverages on company property could be defamation per se; however, Ms. Watson failed to show that there had been publication. He further found a qualified privilege in favor of Willis-Knighton in its publication to the OES. This appeal ensued.

DISCUSSION

On appeal, Ms. Watson assigns two alleged errors: 1) the trial judge erred in granting the directed verdict in favor of Ms. Gavin and Mr. Fielder because there had been no publication and 2) the trial judge erred in granting the directed verdict in favor of Willis-Knighton on the basis that there existed a qualified privilege for statements made to the OES. While Ms. Watson does not include the directed verdict in favor of Ms. Smith in her assignments of error, she references Ms. Smith as an appellee throughout her brief.

A motion for directed verdict is a procedural device available in jury trials to promote judicial efficiency. Fields v. Walpole Tire Service, L.L.C., 45,206 (La.App.2d Cir.5/19/10), 37 So.3d 549, writ denied, 10-1430 (La.10/1/10), 45 So.3d 1097. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all evidentiary inferences in the light most favorable to the |4movant’s opponent, it is clear that the facts and inferences so overwhelmingly favor a verdict for the movant that reasonable jurors could not have arrived at a contrary conclusion. Id.; see also La. C.C.P. art. 1810. The trial court has much discretion in deciding to grant or deny the motion. Fields, supra.

The standard of review of a trial judge’s granting of a directed verdict is whether, viewing the evidence submitted, reasonable men could not reach a contrary verdict. Dowles v. Conagra, Inc., 43,074 (La.App.2d Cir.3/26/08), 980 So.2d 180. In addition, the appellate court must evaluate the propriety of a directed verdict in light of the substantive law related to the claims. Id.

Defamation is a tort involving the invasion of a person’s interest in his or her reputation and good name. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, citing Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Kennedy, supra; Costello, supra. Thus, in order to prevail on a defamation claim, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages. Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552. To be actionable, the words must|abe communicated or published to someone other than the plaintiff. Wyatt v. Elcom of La., Inc., 34,786 (La.App.2d Cir.6/22/01), 792 So.2d 832. In addition, it is well settled that truth is an absolute defense to defamation. Thompson v. Lee, 38,930 (La.App.2d Cir.10/27/04) 888 So.2d 300, writ denied, 04-2936 (La.2/4/05), 893 So.2d 873, citing Louisiana Claims Adjustment Bureau, Inc. v. State Farm Ins. Co., 38,709 (La.App.2d Cir.6/23/04), 877 So.2d 294, writ denied, 04-1890 (La.10/29/04), 885 So.2d 595; Wyatt, supra, and Bell v. Rog ers, 29,757 (La.App.2d Cir.8/20/97), 698 So.2d 749.

If even one of the required elements of the tort is lacking, the cause of action fails. Even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true or that it was protected by a privilege, absolute or qualified. Wyatt, supra.

By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person or otherwise expose the person to contempt or ridicule. Kennedy, supra; Costello, supra. In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Words which expressly or implicitly accuse another of criminal conduct or which by their very nature tend to injure one’s personal or professional reputation, without considering | (¡extrinsic facts or circumstances, are considered defamatory per se. Kennedy, supra.

When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Kennedy, supra; Costello, supra. Injury may also be presumed. Id. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Id.

In the case sub judice, Ms. Watson claims that the defamatory words were the statements in the Corrective Action Form and, specifically, that she drank beer on the steps of the clinic, on Willis-Knigh-ton property. She challenges the trial judge’s finding that the alleged defamatory words were not published to third parties. Ms. Watson cites the following as publication:

• Corrective Action Report of October 24, 2000, that was prepared by Mr. Fielder and signed by him and Ms. Gavin;
• Appellees’ admission in their Answer that two doctors were advised that Ms. Watson would not be returning to work;
• Meeting between Ms. Gavin and Mr. Fielder and Ms. Ester and Ms. Smith wherein the latter were issued written corrective action warnings and the consumption of the beer was discussed and such was included on the written corrective action forms issued to Ms. Ester and Ms. Smith;
• Logical inference of publication because other employees found out about the beer drinking and avoided her; and
• The multiple filings with the OES containing statements about the consumption of beer on the premises.

| yFirst, and importantly, we are constrained to agree with Defendants that the statements claimed by Ms. Watson to be defamatory are true-an absolute defense to a claim of defamation. Thompson, supra. Ms. Watson stipulated as an uncontested fact that she did, in fact, have two prior corrective action warnings. Further, there was testimony as to the numerous complaints that had been levied against her for unprofessional behavior. Finally, Ms. Watson admitted and stipulated that she drank two beers on the back steps of the clinic. On appeal, Ms. Watson makes a valiant effort to argue that she did not know that the area was actually Willis-Knighton property; however, we find this argument disingenuous and unpersuasive. The truth of the statement that Ms. Watson was fired for unprofessional and unbu-sinesslike behavior is supported in this record.

Assuming, arguendo, that the statements were defamatory per se, as the trial judge intimated, the record overwhelmingly supports the finding that, as to Ms. Gavin and Mr. Fielder, the element of unprivileged publication to a third party is lacking. The Corrective Action Form created by Mr. Fielder and shared with Ms. Gavin was presented to Ms. Watson and she refused to sign it. It was then made part of Ms. Watson’s personnel file and was not communicated to a third party. Ms. Watson testified that her coworkers quickly gained knowledge of the termination and the reason therefor and avoided her. She argues that her former coworkers’ knowledge of the incident yields a “logical inference” that the incident was communicated to them. Inference does not constitute publication. Publication must be proven, not presumed or inferred. Kennedy, supra; \ ¿Costello, supra. Further, Ms. Ester and Ms. Smith were both present when Ms. Watson drank the beer, so the communication with them during their own corrective action meetings is not publication to a third party. Finally, only one of the two doctors who allegedly were told about Ms. Watson’s termination testified and could not confirm that she had heard, or been advised, of the reasons for Ms. Watson’s termination. In the absence of the element of publication, Ms. Watson’s claim fails.

Regarding the claim against Willis-Knighton, Ms. Watson challenges the trial judge’s finding that its communication to the OES was protected by a qualified privilege. Ms. Watson argues that a qualified privilege only extends to public figures or matters of public concern; and, since she is a private citizen, the privilege does not shield Willis-Knighton’s statements to the OES. We disagree.

Otherwise defamatory publication enjoys a qualified conditional privilege if made in good faith, on any subject matter in which the person communicating has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A statement is made in good faith when it is made with reasonable grounds for believing it to be true. Ruffin v. Wal-Mart Stores, Inc., 01-0613 (La.App.lst Cir.5/10/02), 818 So.2d 965, writ denied, 02-1636 (La.9/30/02), 825 So.2d 1200. The privilege, it has been held, arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free |acommunication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate. Kennedy, supra, citing Toomer, supra. Jurisprudence establishes that communications between an employer and the Department of Employment Security generally enjoy a qualified privilege. Kosmitis v. Bailey, 28,585 (La.App.2d Cir.12/20/96), 685 So.2d 1177.

Applying the above jurisprudence to the instant case, we find that the trial judge correctly concluded that Willis-Knighton enjoys a qualified privilege in its communications with the OES regarding the reasons for Ms. Watson’s termination. Willis-Knighton made the communication in good faith, i.e., it had a reasonable belief that the reasons for termination were true and that the statements were correct. Ruffin, supra. See also Harrison v. Uniroyal Inc., 366 So.2d 983 (La.App. 1st Cir.1978), and cases cited therein. An employer has an interest in, and a duty to, accurately report to the OES. Further, the OES has an interest in accurately processing applications for unemployment benefits. The communication to the OES was qualifiedly privileged.

In summary, we find that reasonable jurors could not have arrived at a different conclusion than the trial judge did regarding the defamation claims made by Ms. Watson. Dowles, supra. Not only were the statements true, the evidence presented simply did not satisfy the elements for an action in | ^defamation against any of the four defendants. The directed verdicts were properly granted.

CONCLUSION

For the foregoing reasons, the directed verdicts in favor of Defendants Willis-Knighton Medical Center, Peggy Gavin and Jerry Fielder dismissing the claims of Plaintiff Jeanette L. Watson are affirmed. Costs of appeal are assessed to Jeanette L. Watson.

AFFIRMED.

      . No evidence was presented at trial in support of Ms. Watson’s age and gender discrimination claims and the judgment below grants directed verdicts in favor of all four Defendants on those claims. The only issue before the trial court was defamation; and, accordingly, that is the only issue before us on appeal.

      . While Ms. Smith was not named in the assignments of error, Ms. Watson presents arguments regarding her claim against Ms. Smith in her brief. The only communication about Ms. Watson by Ms. Smith was to her supervisors in the October 3 letter. This communication is subject to a qualified privilege. Bell, supra. The directed verdict on the claim against Ms. Smith was properly granted.