author: MARC E. JOHNSON, Judge.

text:
    Samuel ALEXANDER v. Dr. Rhonda SHAW-HALDER, DDS and Haider Creative Smiles Dental, Inc.
    No. ll-CA-1136.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Ronna M. Steele, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.

      Guice A. Giambrone, III, Kelly M. Brian, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    David A. Woolridge, Jr., Brent J. Bourgeois, Carlton Jones, III, Attorneys at Law, Baton Rouge, LA, for Intervenor.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| j,Plaintiff/Appellant, Samuel Alexander, appeals the sustaining of a dilatory exception of prematurity in favor of Defendants/Appellees, Dr. Rhonda Shaw-Halder, DDS and Haider Creative Smiles Dental, Inc. (hereinafter referred to as “Creative Smiles”), from the 24th Judicial District Court, Division “J”. For the following reasons, we reverse and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the pleadings and exhibits, in 2007, Mr. Alexander consulted with Dr. Shaw-Halder of Haider Creative Smiles Dental, Inc. and retained her for cosmetic dental procedures and treatments for his teeth, including but not limited to installation of veneers and dental implants. At some later time, Mr. Alexander began to experience problems with his teeth, which included detached veneers and | implants. In August of 2009, Mr. Alexander sought care from another dental professional who informed him that the detached veneers and implants he was experiencing were due to improper material and workmanship.

On October 24, 2009, Mr. Alexander filed a request for a medical review panel with the Louisiana Patient’s Compensation Fund (hereinafter referred to as “PCF”) for the alleged malpractice of Dr. Shaw-Halder and Creative Smiles. In response, PCF sent Mr. Alexander’s attorney a letter notifying him that his request failed to provide the dates of the alleged medical malpractice and a brief description of the alleged injuries. PCF advised Mr. Alexander that its office had no record of Creative Smiles; therefore, Creative Smiles was not considered a qualified medical provider. PCF further advised Mr. Alexander that he had to submit a corrected request with the specified information within 30 days of the notice in order to maintain his original filing date. Mr. Alexander was also warned that the notice did not suspend the one year time frame to appoint an attorney chairman, which began to run from the date the request was filed and failure to appoint an attorney chairman would result in a waiver of the panel process.

Mr. Alexander submitted a letter dated May 22, 2010, requesting a medical review panel for review of the alleged medical malpractice of Dr. Shaw-Halder and Creative Smiles. In this request, he asserted that he consulted with Dr. Shaw-Halder in 2007 and provided a more in-depth description of his injuries. PCF sent Mr. Alexander’s attorney another notice acknowledging receipt of the “amendment” to the panel request. PCF informed Mr. Alexander that he failed to provide the date or dates of the alleged malpractice and noted that it needed, at least, the month and year to determine qualification. Again, PCF advised Mr. Alexander that he had to submit a corrected request with the specified information within 30 days of the date of the notice in order to maintain his original filing date Land an attorney chairman had to be appointed within one year of the date the request was filed in order to avoid the waiver of the panel process

On July 29, 2010, PCF mailed a letter to Mr. Alexander’s attorney indicating that the medical malpractice panel request would be dismissed due to the failure to appoint an attorney chairman within one year from October 24, 2009, the date of the filing. PCF advised that the attorney chairman had to be chosen by agreement of all parties or through the striking process, and it had to be immediately notified if the strike process was to be initiated. However, even if the strike process was to be used, the attorney chairman still had to be chosen and appointed prior to one year from the filing date. Subsequently, on October 25, 2010, PCF mailed a letter to Mr. Alexander’s attorney notifying him that the medical malpractice panel request had been closed due to the failure to appoint an attorney chairman, and the parties were deemed to have waived the use of the medical review panel. PCF further advised that the filing of a request for a medical review panel suspended the time for within which suit must be filed until 90 days after the claim had been dismissed.

Mr. Alexander filed a petition for damages against Dr. Shaw-Halder and Creative Smiles on April 7, 2011. In his petition, Mr. Alexander alleged he was caused unnecessary and undue pain and expenses due to the negligence of Dr. Shaw-Halder and/or Creative Smiles.for the following: failing to provide proper dental services and procedures; failing to properly use material and improper workmanship; breaching the applicable standard of care owed by dental professionals to patients; and other acts of negligence to be shown at trial. Mr. Alexander further alleged that his medical review panel request was dismissed on October 25, 2010, without the rendering of an opinion because Dr. Shaw-Halder | fiand Creative Smiles failed to cooperate with or participate in the medical review panel process.

In opposition, Defendants filed a peremptory exception of prescription, and in the alternative, a dilatory exception of prematurity. In the memorandum, Defendants alleged Mr. Alexander’s claims were premature because they were not first reviewed by a medical review panel as required by LSA-R.S. 40:1299.41, et seq., of the Louisiana Medical Malpractice Act (hereinafter referred to as “MMA”). Defendants averred that the medical review panel process never commenced because Mr. Alexander’s complaint failed to provide the statutorily mandated minimum information, e.g., date of the alleged malpractice, or provide an attorney chairman. Defendants contended the PCF’s dismissal of Mr. Alexander’s complaint was procedurally improper and in violation of their due process rights because it was never determined whether or not Dr. Shaw-Halder was entitled to a review panel for the alleged acts of negligence. Also, Defendants contended that Mr. Alexander’s failure to comply with the MMA precluded the PCF from performing its mandatory ministerial duty of providing notice to all parties of Dr. Shaw-Halder’s qualified status, and thus, stripped Dr. Shaw-Halder of her due process right to a medical review panel.

A hearing was held on July 22, 2011 before the trial court on the exceptions of prescription and prematurity. In a judgment rendered on August 3, 2011, the trial court overruled the peremptory exception of prescription; however, the trial court sustained the dilatory exception of prematurity. Consequently, the trial court dismissed Mr. Alexander’s lawsuit without prejudice. Subsequently, the motion |nfor the instant appeal was filed by Mr. Alexander on August 24, 2011 and was granted. Afterwards, the PCF filed a petition of intervention on September 6, 2011, which was granted on September 29, 2011.

ASSIGNMENTS OF ERROR

On appeal, Mr. Alexander raises the following assignments of error: 1) the trial court was manifestly erroneous in dismissing a party defendant that was not a qualified healthcare provider, and 2) the trial court was manifestly erroneous in failing to require the PCF to form a medical review panel through the sustaining of the exception of prematurity.

LAW AND ANALYSIS

Petition of Intervention

Before addressing Mr. Alexander’s assignments of error, we will first focus on the PCF’s involvement in this matter. For this appeal, the PCF filed an original appellee brief and raised assignments of error for this Court to review. However, we will not acknowledge the PCF as a party to this appeal.

LSA-C.C.P. art. 2088 states jurisdiction of the trial court over all matters in a case reviewable under an appeal is divested, and the jurisdiction of the appellate court attaches upon the granting of the order of appeal and the timely filing of the appeal bond, if applicable. The article proceeds to provide enumerated exceptions to the trial court’s divestiture of jurisdiction when an appeal is granted.

Here, Defendants’ dilatory exception of prematurity was sustained on August 3, 2011, and Mr. Alexander’s petition was dismissed. The motion for appeal filed by Mr. Alexander was granted on August 24, 2011. The petition for intervention for the PCF was filed on September 6, 2011, and was granted by the trial court on September 29, 2011. At the time the trial court granted the PCF’s petition, it had been divested of its jurisdiction over matters reviewable under the |7appeal. The granting of a petition for intervention by the trial court is not one of the enumerated exceptions to the divestiture of the trial court’s jurisdiction and is a matter reviewable under the appeal because it added the PCF as a party to the lawsuit after the lawsuit had been dismissed. Third parties may intervene in pending actions. See LSA-C.C.P. art. 1091. However, at the time of the filing of the PCF’s petition, there was no pending action at the trial court level in which to intervene because the case had been dismissed. Therefore, the trial court did not have the jurisdiction to grant the PCF’s petition. (Cf. Stroud v. Liberty Mut. Ins. Co., 429 So.2d 492, 497 (La.App. 3 Cir.1983), writ denied, 437 So.2d 1147 (La.1983), where the Louisiana Third Circuit held there was no “pending action” in which insured’s uninsured motorist carrier could intervene as against one driver and her insurer where that driver and insurer had been dismissed from insured’s lawsuit nine days prior to filing of intervention). Accordingly, we will not consider the PCF as an appellee to this appeal or address its brief because it was not a party to lawsuit at the time the ruling before us was rendered.

General Precepts of Law

The functions of the dilatory exception, such as prematurity, raise the objection that a judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. Floyd v. East Bank Consol. Fire Protection Dist. For Parish of Jefferson, 09-780 (La.App. 5 Cir. 4/13/10); 40 So.3d 160, 163, writ denied, 10-1094 (La.9/3/10); 44 So.3d 689. A suit is premature if it is brought before the right to enforce the claim sued upon has accrued. Id. Prematurity is determined by the facts existing at the time a suit is filed. Id.

IsLSA-R.S. 40:1299.41, et seq., sets forth the limitations of liability for “qualified health care providers” and provides a procedural framework for the litigation of medical malpractice claims. W.P. v. Universal Health Services Foundation, 11-801 (La.App. 5 Cir. 3/27/12); 91 So.3d 1097, citing, Delcambre v. Blood Systems, Inc., 04-561 (La.1/19/05); 893 So.2d 23. The MMA’s procedural requirements and limitations of liability apply only to medical malpractice claims. Id. No action against a health care provider covered under the MMA, or the insurer, may be commenced in any court before the plaintiffs proposed complaint has been presented to a medical review panel. LSA-R.S. 40:1299.47(B)(l)(a)(i). If the plaintiff fails to submit the claim to a medical review panel before the institution of the suit, then the appropriate procedural remedy is a timely filed exception of prematurity. W.P. v. Universal Health Services Foundation, supra, citing Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La.6/29/07); 959 So.2d 440.

Assignment of Error Number 1

Mr. Alexander argues the trial court was clearly erroneous in dismissing his claims against Creative Smiles through the exception of prematurity because Creative Smiles was not a qualified healthcare provider at any material time; thus, Creative Smiles was not subject to the provisions of the MMA. Mr. Alexander contends that, since Creative Smiles was not classified as a qualified provider by the PCF, it cannot be subject to an exception of prematurity until it can demonstrate that it was a qualified healthcare provider under LSA-R.S. 40:1299.41.

Defendants’ appellee brief failed to address the specifics of this assignment of error.

| c|LSA-R.S. 40:1299.41, et seq., sets forth the limitations of liability for “qualified health care providers.” W.P. v. Universal Health Services Foundation, supra. Within LSA-R.S. 40:1299.41, a list of the types of qualified health care providers is included in the definition.

On November 3, 2009, the PCF notified Mr. Alexander that Creative Smiles was not a qualified health care provider within the provisions of LSA-R.S. 40:1299.41. Creative Smiles did not dispute its non-qualified health care provider status. Consequently, the procedural prerequisites of the MMA did not apply to Creative Smiles, and it was not entitled to a medical review panel decision prior to the filing of Mr. Alexander’s suit. Therefore, we find the trial court was erroneous in sustaining the dilatory exception of prematurity in favor of Creative Smiles because it is not a qualified health care provider.

Assignment of Error Number 2

Mr. Alexander alleges the trial court was manifestly erroneous in failing to require the PCF to form a medical review panel because it did not address which medical review panel request, the October or the May request, was the operative request that triggered the commencement of the prescriptive period. Mr. Alexander contends that his October request for a medical review panel was a relative nullity that should have neither triggered the provisions of the MMA nor interrupted prescription because it did not comply with the requirements of the statute. However, Mr. Alexander further contends that his May request for a medical review panel was timely filed and was a valid request that interrupted the tolling of prescription, and that request satisfied his legal obligation to present his complaint before a medical review panel prior to filing a lawsuit. Mr. Alexander also alleges the trial court was manifestly erroneous in not ordering the PCF to convene a medical review panel when it sustained the exception of prematurity. | inMr. Alexander argues that the judgment as it exists leaves him in a curious state of procedural limbo where he is unable to proceed with either the completion of the medical review panel process (because the complaint has been dismissed by the PCF) or proceed with his medical malpractice claim through a lawsuit.

In opposition to Mr. Alexander’s arguments, Defendants aver the trial court was correct in its ruling because Mr. Alexander never filed a valid request for a medical review panel, as the October and May requests were deemed insufficient by the PCF. Additionally, Defendants aver that Mr. Alexander’s' argument is flawed because the statute does not require that a medical review panel merely be requested prior to filing suit, but it requires that the claims be presented for review prior to filing suit.

We agree with Mr. Alexander that the trial court did not directly express which medical review panel request was used in its determination to trigger the commencement of the prescriptive period. However, from the record, we can make the conclusion that the trial court considered the October medical review panel request as the triggering request that commenced prescription. During the hearing for the exceptions for prescription and prematurity, the trial judge provided reasons for ruling in favor of Defendants by stating,

With regard to the exception of prematurity, Dr. Haider is a qualified healthcare provider and they do have to go through the panel. The panel was actually never formed, so the fault of it, from all indications, was the plaintiff[’]s for not submitting an attorney chairman.

The October 24, 2009, request was used by the PCF as the initial claim request date that triggered the one-year prescriptive period to appoint an attorney [^chairman. The trial court simply affirmed the PCF’s determination to not form a medical review panel on the basis that no attorney chairman had been appointed within one year of the submission of the request. Additionally, according to LSA-R.S. 40:1299.47(A)(2)(b), the request for review of a malpractice claim under that section shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail upon timely compliance, which occurred on October 24, 2009 with the first request in this matter. The other medical review panel requests were amendments to the October request, as opposed to new requests, since the PCF had not dismissed the initial October request due to insufficiency.

Thus, we determine from the record that the October 24, 2009, request triggered the one-year prescriptive period to appoint an attorney chairman and do not find the trial court erred in applying that date to this matter. We will now review the trial court’s sustaining of the exception of prematurity on the basis that an attorney chairman had not been timely appointed.

Pursuant to LSA-R.S. 40:1299.47(A)(2)(c),

An attorney chairman for the medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the board of the name and address of the attorney chairman. If the board has not received notice of the appointment of an attorney chairman within nine months from the date the request for review of the claim was filed, then the board shall send notice to the parties by certified or registered mail that the claim will be dismissed in ninety days unless an attorney chairman is appointed within one year from the date the request for review of the claim was filed. If the board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the board shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties |12shall be deemed to have waived the use of the medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section. (Emphasis added).

In this instance, the record reflects the PCF notified the parties through the letter dated July 29, 2010, that the medical review panel request would be dismissed if an attorney chairman had not been appointed within one year of the filing date. After the year had lapsed, the PCF sent a letter to the parties on October 25, 2010 notifying the parties that the request had been dismissed. Pursuant to LSA-R.S. 40:1299.47(A)(2)(c), it was incumbent upon the parties (both plaintiff and defendant) to appoint an attorney chairman. If no appointment is made within the time allotted, then the request for the medical review panel is deemed to be waived by both parties. (See, Turner v. Willis Knighton Medical Center, 46,988 (La.App. 2 Cir. 2/29/12); 87 So.3d 209, where the Louisiana Second Circuit similarly concluded “the directives for the accomplishment of the attorney chairman are now aimed at all the ‘parties,’ ” and held the parties waive the use of the medical review panel if they do not take the steps for the appointment of the attorney chairman). Because neither party took the steps to appoint an attorney chairman, both parties waived the use of the medical review panel. Contrary to Mr. Alexander’s contention, there is no need to remand the matter to the PCF. Accordingly, the case is ripe to proceed to the trial court without a rendering of an opinion from the medical review panel.

Therefore, we find the trial court erred in sustaining the dilatory exception of prematurity on the basis that Mr. Alexander did not appoint an attorney chairman within the one-year prescriptive period.

11SDECREE

For the foregoing reasons, we reverse the trial court’s sustaining of the dilatory exception of prematurity as to Creative Smiles Dental, Inc. In regard to the sustaining of the dilatory exception of prematurity for Dr. Rhonda Shaw-Halder, we reverse the trial court’s ruling and remand the matter for further proceedings. Dr. Rhonda Shaw-Halder and Creative Smiles Dental, Inc. are assessed the costs of this appeal.

REVERSED AND REMANDED

      . Defendants filed a supervisory writ application, Samuel Alexander v. Dr. Shaw-Halder and Haider Creative Smiles Dental, 11-830 (La.App. 5 Cir. 12/7/11) (unpublished writ disposition), JJ. Johnson, Rothschild, Wicker, writ denied, 11-2645 (La.3/2/12), 84 So.3d 530, requesting review of the overruling of the denial of the exception of prescription. We declined to exercise our supervisory jurisdiction and denied the writ. Subsequently, the supreme court also denied the writ. Defendants did not seek further review of the trial court's ruling denying the exception of prescription in this appeal; thus, it is not on review before us.

      . It is noted that, even if the PCF was a proper party to this appeal, we would not consider its assignment of error requesting a revision or modification of the trial court’s judgment because it did not file an answer to the appeal. See LSA-C.C.P. art. 2133.

      . In addition to the opposition arguments, Defendants also notes to this Court that Mr. Alexander had filed a third medical review panel request on July 5, 2010. Defendants argue the third request was also invalid. However, there is no direct evidence of the third request in the appellate record, and we cannot consider documentation not admitted into evidence. See Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La.5/21/08); 983 So.2d 84, 88.

      . It is apparent the PCF deemed the October 24, 2009 request to be sufficient at some point subsequent to the May request because it was not dismissed as an insufficient request.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge. ROTHSCHILD, J.,

license: Public Domain

text:
    STATE of Louisiana v. Joe Bob CLARK.
    No. 11-KA-700.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Michael D. Smith, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2On October 26, 2010, defendant, Joe Bob Clark, was charged in a bill of information with failure to maintain his registration as a convicted sex offender by failing to appear for his quarterly registration with the Jefferson Parish Sheriffs Office in violation of La. R.S. 15:542. Defendant pled not guilty and filed a motion to quash the bill of information, which was granted after a hearing on April 4, 2011.

The State filed this appeal asserting as its sole assignment of error that the trial court erred in granting defendant’s motion to quash. For the reasons that follow, we affirm.

In his motion to quash, defendant asserted that he had fully satisfied any sex offender registration obligations he may have had and was under no legal obligation to register in Louisiana. In particular, he claimed he was convicted in Texas of a sex offense on January 26, 1994. He received a three-year sentence, and was released from custody in 1995 after being given credit for time served. | ^According to defendant, at the time he was released, he had no obligation under Texas law to register as a sex offender. However, Louisiana law required sex offenders to maintain registration for a period of 10 years. Defendant contended his obligation to register as a sex offender in Louisiana expired sometime in 2005. Thus, when he moved to Louisiana in 2009, he had no obligation to register as a sex offender. Defendant acknowledged Louisiana law changed in January 2008 expanding the registration requirement from 10 years to 25 years, but argued the change in the law did not apply to him because his obligation had been extinguished by operation of law prior to the effective date of the new law.

The State maintained the registration law applies to all convicted sex offenders regardless of the date of conviction. The State argued that the language in the 2007 amendment that stated the amendment did not apply to “those persons required to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law,” did not apply to defendant because he never registered in Louisiana and, therefore, his obligations were never fulfilled and extinguished by operation of law.

At the hearing on the motion to quash, the parties entered into the following stipulations: (1) defendant was convicted of sexual assault of a child under the age of 17 in Texas on January 26, 1994 by way of a nolo contendere plea; (2) defendant completed his three-year sentence on December 27,1995; (3) at the time of defendant’s conviction, Texas law did not require him to register as a sex offender, but Louisiana law would have required him to register for 10 years from the date of his release from custody; (4) on January 1, 2008, Louisiana extended the duration of sex offender registration to 25 years; (5) defendant was convicted in Texas of grand theft auto on August 20, 2005 and sentenced to 26 months in prison; and, (6) prior to March 2009, defendant had never resided in Louisiana and |4had never registered as a sex offender because it was not required. At the conclusion of the hearing, which simply consisted of these stipulations and arguments of counsel, the trial court granted the motion to quash. The trial court found defendant was not required to register as a sex offender in Louisiana because his obligation to register had been fulfilled in Texas prior to defendant’s move to Louisiana.

The general grounds upon which a motion to quash may be based are set forth in La.C.Cr.P. art. 532. These grounds, which are illustrative rather than exclusive, include the fact the indictment fails to charge an offense which is punishable under a valid statute. La.C.Cr.P. art. 532(1); State v. Moten, 99-552 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210, 1211. In State v. Brown, 07-388 (La.App. 3 Cir. 10/3/07), 966 So.2d 1138, 1146, writs denied, 07-2159 (La.3/28/08), 978 So.2d 304 and 08-326 (La.3/28/08), 978 So.2d 312, the court found that a motion to quash was the proper procedural ground in which to raise a legal issue. In Brown, the court found the issue of the effect of the defendant’s arrest on the status of his probation was not a factual question that could be resolved by the jury, but rather was a legal issue properly raised in a motion to quash.

The pivotal issue in this case is whether defendant had a legal obligation to register as a sex offender under Louisiana law when he moved to this state in 2009. Defendant and the. State entered into numerous factual stipulations .and none of these facts will change at trial. Thus, there are no factual disputes and no issues of credibility. As such, like Brown, we find this to be a legal issue that is properly raised in a motion to quash.

The bill of information states that between March 6, 2009 and October 7, 2010, defendant violated La. R.S. 15:542 in that he failed to maintain his sex offender registration by failing to appear for his quarterly registration with the RJefferson Parish Sheriffs Office. This charge presupposes defendant had a duty to register as a sex offender when he first moved to Louisiana.

As agreed upon by the parties, Louisiana law at the time of defendant’s 1994 conviction provided that a sex offender register for a period of 10 years from the date upon which the offender is released from custody. La. R.S. 15:544. The law further provided that, “[a] convicted sex offender’s duty to register and give notice terminates at the expiration of ten years from the date of initial registration, provided that during the ten-year period the convicted sex offender does not again become subject to this Chapter.” La. R.S. 15:544(A). Thus, under this law, defendant’s duty to register as a sex offender terminated in December 2005, which was 10 years from the date he was released from custody and the date his duty to register was first imposed.

Defendant subsequently moved to Louisiana in March 2009. By this time, the Louisiana legislature had substantially amended the registration requirements for sex offenders. By Acts 2007, No. 460, which became effective January 1, 2008, the registration requirement for sex offenders convicted of a sexual offense against a minor was extended to 25 years. Section 6 of the Act specifically provided:

The provisions of this Act shall apply to all persons convicted of a sex offense or a criminal offense against a victim who is a minor ... regardless of the date of conviction, with the exception of those persons required to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law. Any person under an obligation to register as of the effective date of this Act shall comply with the requirements contained in this Act and shall be given credit for having fulfilled their obligations to register for the length of time equal to their previous registration in compliance with law. [Emphasis Added.]

We find that under this language, the 2007 amendment that extended a sex offender’s duty to register to 25 years does not apply to defendant. Defendant’s |fiduty to register expired by operation of law in December 2005, 10 years after his release from custody and a little over two years prior to the effective date of the amendment.

Further, for the same reason, we find no merit in the State’s argument that under La. R.S. 15:544(C), as amended in 2007, defendant’s period of registration ran anew from his August 2005 felony conviction for grand theft auto. La. R.S. 15:544(C) provides that the period of registration for a sex offender begins anew on the day the offender is released from incarceration if he is subsequently convicted of a felony after beginning a period of registration. Subsection C was likewise added by Acts 2007, No. 460, and effective January 1, 2008, after defendant’s duty to register expired.

Accordingly, we find the trial court did not err in granting defendant’s motion to quash the bill of information charging him with failing to maintain his sex offender registration between 2009 and 2010 because defendant was under no obligation to register as a sex offender. His original duty to register expired in 2005, which was 10 years from the date he was released from custody.

AFFIRMED

ROTHSCHILD, J., dissents with reasons.

ROTHSCHILD, J.,

dissents.

|! Because I find that the trial court improperly considered evidence of defendant’s guilt or innocence at the hearing on the motion to quash, I must respectfully dissent from the majority opinion.

The law is well settled that at a hearing on a motion to quash the evidence, evidence should be limited to procedural matters. The question of factual guilt or innocence is not before the court. State v. Byrd, 96-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998); State v. Hampton, 01-1065 (La.App. 5 Cir. 2/26/02), 811 So.2d 1054.

A court considering a motion to quash must accept as true the facts contained in the bill of information and determine as a matter of law from the face of the pleadings whether a crime has been charged. While evidence may be adduced on the motion to quash, such evidence may not include a defense on the merits. Byrd, supra.

Accepting as true the fact contained in the bill of information, I find that the face of the bill sufficiently provided that the crime of failing to register as a sex offender had been charged. In making a determination to quash the information, the trial court necessarily considered evidence presented at the hearing and the application of recent statutory amendments to the charges. By ruling on the evidence submitted at the hearing of this matter, I find that the trial court improperly considered the merits of the |2charges against defendant, and ultimately determined that defendant was not guilty of failing to maintain his sex offender registration requirements because he fulfilled his obligation before he moved to Louisiana. In my view, this determination is beyond the scope of a finding that could be made at a motion to quash. To the extent the majority opinion reviews the evidence presented at the motion to quash and makes a determination regarding the application of the statutory amendments and defendant’s innocence, I find that the opinion is in error.

For this reason, I must dissent. I would reverse the trial court’s ruling and remand the matter for trial on the merits, where a defense to the charges can properly be made by defendant.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Zenas A. FRUGE.
    No. 11-KA-820.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|j,On August 13, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Zenas A. Fruge, with possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1 (count one); possession of a handgun while in possession of marijuana, in violation of LSA-R.S. 14:95(E) (count two); and possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A (count three). At the arraignment, defendant pled not guilty.

The matter proceeded to trial before a twelve-person jury on May 12, 2011. After considering the evidence presented, the jury found defendant guilty of attempted possession of a firearm by a convicted felon (count one), attempted illegal carrying of weapons (count two), and possession of cocaine (count three). On May 23, 2011, the trial court sentenced defendant to seven and one-half years at hard labor, without benefit of parole, probation, or suspension on count one; five years at hard labor, without benefits on count two; and five |,(.years at hard labor on count three, to run concurrently. Defendant now appeals.

FACTS

In July of 2010, Detectives Donald Herr-mann and Kevin Treigle of the Kenner Police Department Narcotics Division were conducting an ongoing narcotics investigation of Joshua Serrano. While conducting surveillance on Serrano in the late evening hours of July 13, 2010, Detective Herrmann and other members of the narcotics team observed Serrano meet defendant at the America’s Best Inn located on Veterans Boulevard in Kenner. The officers then observed Serrano and defendant enter room 334. Approximately ten minutes later, Serrano exited the room, got into his vehicle, and left the premises. Detective Herrmann and the other officers followed Serrano, and an hour and a half later, returned to the hotel to conduct further surveillance on room 334.

At some point, defendant exited room 334 and proceeded downstairs where he was approached by Detectives Herrmann and Treigle. A field interview was conducted with defendant who advised the officers that he was staying in room 221, despite having been seen exiting room 334. In addition, the officers noticed that defendant was holding in his hand a room key and an envelope marked “334.” Detective Treigle then detained defendant while Detective Herrmann spoke to hotel management to obtain information about the individual registered for room 334. The room reservation revealed that room 334 was registered to Dawn Chriss, whose home address proved to be the same as an address previously used by defendant.

1/The narcotics detectives obtained a warrant and executed a search of room 334. During their search, the officers discovered a black travel bag that contained an unlabeled orange prescription bottle. Inside that bottle, the officers recovered a clear plastic bag with a white powdery substance, a clear plastic bag which contained two smaller bags with green vegetable matter inside, and a third clear plastic bag containing thirteen white tablets. The officers also found a box of sandwich bags, a digital scale, an unloaded Titan .25 caliber handgun, a bottle of inositol, and five hundred twenty-one dollars in U.S. currency. In addition to the black travel bag, the officers located two suitcases in the room, one on the chair and one on the footrest. These contained clothing for a large individual, a bag with fifty-one live .22 caliber bullets, several pieces of documentation with defendant’s name, and three cell phones.

During the course of the search, Dawn Chriss, the registered hotel guest and defendant’s girlfriend at the time of the incident, returned to room 334. According to Chriss, she informed the officers that the hotel room they were searching was hers and further advised them that she did not have any contraband “on her person.” At trial, Chriss claimed that all the contraband in the room was hers; however, Detective Treigle testified that on the night of the search, Chriss denied knowledge of any of the contraband in the room.

Detective Treigle, after being accepted as an expert in narcotics use, packaging, and distribution, testified that he participated in the investigation and arrest of defendant. He noted that 5.8 grams of cocaine was found in the room, which amount is indicative of street level distribution. Detective Treigle further testified that inositol is a dietary supplement commonly used to cut cocaine or Rheroin in order to increase the volume of the drug and thereby the profit. According to Detective Treigle, after the cocaine is cut with the inositol, it is then weighed on a scale and packaged for sale in smaller amounts in clear plastic bags.

Detective Treigle also testified regarding the significance of the other items seized from the hotel room. Specifically, Detective Treigle testified that drug dealers commonly carry firearms to protect their narcotics and currency from customers and rival drug dealers. He further explained that it is common for drug dealers to rent hotel rooms or vehicles in someone else’s name with a clean record to elude detection by law enforcement. With respect to the denominations of the currency recovered from the room, Detective Treigle testified that drug transactions are usually accomplished using small bills. Additionally, drug dealers will typically carry multiple cell phones with different phone numbers to elude detection by the police.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant contends that the trial court erred in denying his motion for mistrial based on the admission of Detective Treigle’s inadmissible hearsay testimony.

At trial, Dawn Chriss, the registered guest of hotel room 334, testified that she checked into the room earlier that day and brought her clothes, as well as defendant’s bag containing his clothes, into the room. Chriss then proceeded to work at Popeye’s, and at some point during her shift, defendant retrieved the room key from her. When she returned to the hotel after work, police officers were in her room conducting a search. According to Chriss, she told the officers that the hotel room they were searching was hers. She further advised them that she did |finot have any contraband on her person; however, the officers did not ask her whether she had any knowledge of the items found in the room.

During her trial testimony, Chriss admitted that the contraband in the room was hers. Chriss testified that she had a bag which contained bullets and a separate smaller bag which contained “weed; ... a pill bottle with weed in it, and ... marijuana with coke, ... sandwich bags, ... a scale, and ... some stuff that you put on the marijuana to make it taste good.” She further testified that the money seized from the room was her savings from Popeye’s. When Chriss was questioned further about the specifics of the contraband found inside the room, including the make and model of her firearm, she elected to invoke her Fifth Amendment right against self-incrimination and refused to answer any more questions.

The State subsequently called Detective Treigle as a witness. According to Detective Treigle, when Chriss arrived at the hotel room, she advised him that she had just gotten off work. Detective Treigle stated that he specifically asked Chriss if she had any knowledge about the narcotics found in the room, which she denied. At this point, defense counsel objected on the basis that Chriss was no longer available for questioning. After a bench conference, the trial judge allowed the State to proceed with very limited questioning, as follows:

Q: Sorry, Detective. I’ll ask you that last question again. Did you ask Ms. Chriss about the narcotics that were found in the room?
A: Yes, ma’am.
Q: And did she indicate whether or not she had any knowledge of the narcotics found in the room?
A: She denied knowledge of it, and further stated that she works from four in the afternoon, till eleven o’clock at night, and she was working, and she had nothing there.
|7Q: At any time, did she take ownership of the narcotics in the room?
A: No ma’am, she did not.

Prior to closing arguments, defense counsel moved for a mistrial on the basis that Detective Treigle testified to an area that was beyond the scope of Chriss’s testimony, and therefore, defendant was precluded from challenging the evidence because Chriss had invoked her Fifth Amendment right. The trial court denied the motion for mistrial, ruling:

Well, I’m going to deny the motion for mistrial. I don’t feel — we came to the bench, and it was restricted to really one question. And I didn’t find it — because it went directly to her credibility where she did testify on that specific point. So I didn’t find that to be outrageous. They didn’t go any further than that, and they stopped, so.
I’ll note your objection. And we did go through, with Ms. Chriss, the, you know, she could stop at any time, she was aware of all — all of her rights; and so, she chose to exercise it.
But the point that they elicited testimony from, was an area of questioning that she did answer questions to, so they were allowed to ask this officer to impeach her on her credibility, so.
That’s a weight issue for the Jury. The jury is going to determine that weight, if anything, they give it, so.

Defendant now challenges the trial court’s denial of his motion for mistrial. He specifically contends that Detective Treigle’s testimony constituted inadmissible hearsay evidence which defendant was precluded from challenging because Chriss invoked her Fifth Amendment right and refused to testify further. Defendant additionally asserts that the evidence was improperly admitted under the guise of the State seeking to impeach its own witness. We find no merit to defendant’s arguments.

[sThe Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. art. I, § 16. The main purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Cross-examination is the primary means of testing the truthfulness of testimony. State v. Robinson, 01-273 (La.5/17/02), 817 So.2d 1131, 1135; State v. McGee, 07-130 (La.App. 5 Cir. 6/26/07), 963 So.2d 449, 452.

The credibility of a witness may be attacked by any party. LSA-C.E. art. 607(A). A witness’s prior inconsistent statement may be used to impeach his credibility. See, State v. Johnson, 01-0842 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 115, writ denied, 02-1037 (La.3/21/03), 840 So.2d 532.

LSA-C.E. art. 607 provides, in pertinent part:

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

If the witness has had a fair opportunity to admit the fact and has failed distinctly to do so, extrinsic evidence of a prior inconsistent statement is admissible, not to prove the truth of the matter asserted, that is, not for its hearsay content, but to establish the fact of contradiction as a means of impeaching a | ^witness’s general credibility. However, if the witness admits the statement, he has impeached himself by his own testimony, and thus, the statement is inadmissible. State v. McGee, 963 So.2d at 458; LSA-C.E. art. 613.

In the instant case, Chriss specifically testified that all of the contraband belonged to her. She explained that the detectives never asked her whether she had any knowledge of the contraband in the room, but merely asked her whether she had any contraband “on her,” which she denied. As such, Chriss’s attention was fairly directed to the matter, she had a fair opportunity to admit that she had been questioned about the drugs and had denied any knowledge of them, and she distinctly failed to do so. Thereafter, Detective Treigle’s testimony that Chriss denied ownership and knowledge of the contraband when asked at the scene was properly admitted as extrinsic evidence attacking her credibility.

Further, we find no merit to defendant’s argument that he was denied his constitutional right to confront witnesses. The record shows that the trial judge very carefully limited the State’s questioning of Detective Treigle. In particular, the questioning was limited to whether Chriss indicated that she had knowledge of the narcotics found in the room and whether, at any time, she took ownership of the narcotics in the room.

Moreover, any alleged error with respect to the admission of Detective Trei-gle’s testimony can be deemed harmless. At trial, the State presented evidence that Chriss had checked into the hotel room earlier that day and had brought her clothing and a bag containing defendant’s clothes into the room. Chriss proceeded to work at Popeye’s, and at some point during her shift, defendant retrieved the room key from her. Defendant was seen meeting with a suspect, who was under a narcotics investigation, at the hotel and taking him back to room 334. About ten minutes later, the narcotics suspect exited room 334 and left the premises. The | inofficers followed this suspect, and about an hour and a half later, returned to the hotel room to conduct further surveillance on room 334. When defendant exited the room, the detectives interviewed him. Defendant told the officers that he was staying in room 221, despite having in his possession the key to room 334. Further, although Chriss testified that the contraband in the hotel room belonged to her, the State presented evidence that one of the suitcases contained several pieces of documentation with defendant’s name. Moreover, even if the jury had believed Chriss that the contraband was hers, it nonetheless could have found, based on the evidence presented at trial, that defendant had dominion and control over the contraband while in the hotel room.

For the reasons set forth herein, we find no error in the trial court’s denial of defendant’s motion for mistrial based on the alleged improper admission of Detective Treigle’s hearsay testimony. Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant challenges the trial court’s denial of his motion to suppress evidence. He specifically argues that the search warrant failed to establish a “substantial basis” for concluding that probable cause existed to search room 334.

Every person is protected by the United States and Louisiana Constitutions against unreasonable searches and seizures of his house, papers, and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the things to be seized. U.S. Const. amend. IV; La. Const. art. I, § 5.

In order to be valid, a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, Inreciting facts establishing the cause for issuance of the warrant. LSA-C.Cr.P. art. 162. Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Further, the affidavit must contain, within its four corners, the facts establishing the existence of probable cause for the warrant. The issuing magistrate must make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, 969.

The task of a reviewing court is simply to insure that under the totality of the circumstances the issuing magistrate had a “substantial basis” for concluding that probable cause existed. If the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing courts should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. State v. Payne, 10-46 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1296, writ denied, 11-387 (La.9/16/11), 69 So.3d 1141.

According to LSA-C.Cr.P. art. 703 D, when evidence is seized pursuant to a search warrant, the defendant bears the burden of proof on his motion to suppress that evidence. The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of that discretion. | ]2State v. Major, 09-370 (La.App. 5 Cir. 11/24/09), 26 So.3d 289, 295, writ denied, 09-2802 (La.6/18/10), 38 So.3d 320.

In the present case, the search warrant affidavit set forth that on July 13, 2010, members of the Kenner Police Narcotics Section were conducting a narcotics investigation of Joshua Serrano. The detectives observed Serrano leave his apartment and proceed to America’s Best Hotel. They then saw Serrano exit his vehicle and meet with a black male recognized by detectives from previous narcotics investigations as Zenas Fruge. It was known to detectives that Fruge had a pending charge for possession with intent to distribute marijuana, as well as numerous other arrests and convictions for possession with intent to distribute illegal narcotics. The affidavit further provided that the detectives observed Fruge and Serrano enter hotel room 334. Ten minutes later, Serrano exited room 334, entered his truck, and proceeded home. Serrano was stopped due to outstanding attachments for his arrest and a search revealed two large clear bags containing 56.9 grams of marijuana. Serrano denied being at America’s Best Hotel. The detectives then set up surveillance at the hotel on room 334 and observed Fruge exit the hotel room and walk downstairs. The detectives approached Fruge and conducted a field interview. Fruge advised the detectives that he was staying in room 221; however, he was in possession of a key for room 384. A registration inquiry with the hotel management revealed that room 334 was registered to Dawn Chriss who gave the same home address that Fruge had provided at the time of his last arrest.

Based upon the information contained in the affidavit, including Serrano’s meeting with defendant who was known to have pending narcotics charges, Serrano’s subsequent arrest where 56.9 grams of marijuana were found on his person, and defendant’s attempt to disassociate himself with hotel room 334, we | 13find that a substantial basis existed for concluding that probable cause existed for the issuance of a search warrant. See State v. Coy, 94-329 (La.App. 5 Cir. 11/17/94), 646 So.2d 1164, writ denied, 94-2935 (La.12/9/94), 648 So.2d 379, writ denied, 94-2943 (La.12/9/94), 648 So.2d 380, writ denied, 95-0350 (La.3/10/95), 650 So.2d 1188, where this Court concluded that the police officer’s affidavit in support of the search warrant gave the magistrate a substantial basis for concluding that probable cause existed to search defendants’ hotel room and a nylon bag. In Coy, the affidavit stated that one defendant had arrived at the airport from Houston, Texas, which is a documented site for distribution of narcotics; further, defendant appeared “quite confused” when he arrived and then made a phone call which the police officer overheard in part. This eventually led police to room 156 at the Travel Lodge, where further conversations took place with all three defendants. The defendants gave seriously conflicting statements, and two of the three defendants had criminal backgrounds involving illegal drugs. This Court found the information set forth in the affidavit provided probable cause for the issuance of the warrant and, accordingly, reversed the judgment of the district court which granted defendants’ motion to suppress evidence.

Likewise, in the instant case, we find that a substantial basis existed for concluding that probable cause existed for the issuance of a search warrant for hotel room 334 at America’s Best Inn. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress evidence.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

114Our review reveals that the trial court failed to impose mandatory fines on two of the counts. The jury found defendant guilty of attempted possession of a firearm by a convicted felon (count one) and attempted illegal carrying of weapons (count two). The penalty provisions for these offenses, LSA-R.S. 14:27:95.1(B) and 14:27:95 E, require that a mandatory fine be imposed.

In State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 688, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89 and 10-2752 (La.5/20/11), 63 So.3d 974, this Court declined to exercise its authority to correct an illegal sentence involving the failure of the trial court to impose a mandatory fíne, reasoning that the State did not object to the trial court’s failure to impose the fine, and that the defendant was indigent. Likewise, in the instant case, the State did not object to the trial court’s failure to impose the fines. Additionally, defendant is represented by the Louisiana Appellate Project on appeal and appears to be indigent. State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725. We therefore decline to correct the illegally lenient sentences with regard to the trial court’s failure to impose the fines on counts one and two.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED

      . The State subsequently filed a multiple offender bill of information pursuant to LSA-R.S. 15:529.1, alleging defendant to be a second felony offender. However, the multiple offender proceedings are not part of the instant appeal.

      . Raven Barrios, an expert in the identification and analysis of controlled dangerous substances, testified that the white powdery substance tested positive for cocaine and the green vegetable matter tested positive for marijuana. No controlled dangerous substances were found in the white tablets.

      . The currency found in the room consisted of 22 twenty dollar bills, 8 ten dollar bills, and 1 one dollar bill.

      . LSA-R.S. 14:95.1(B) states that the defendant shall be fined not less than one thousand dollars nor more than five thousand dollars; and LSA-R.S. 14:95 E states that the offender shall be fined not more than ten thousand dollars. Additionally, the attempt statute, LSA-R.S. 14:27, applicable to count one and two, provides that the defendant “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 one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana in the Interest of C.R.
    No. 11-KA-831.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Paul D. Connick, Jr., District Attorney, Amanda L. Calogero, Elizabeth B. Curren, Appellate Counsel, Assistant District Attorneys, Harvey, LA, for Appellee, State of Louisiana.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate, Abita Springs, LA, for Appellant, C.R.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

|pOn appeal, defendant, a juvenile, challenges his adjudication as delinquent for committing second degree battery. For the following reasons, we affirm defendant’s adjudication.

Facts and Procedural History

At approximately 7:00 a.m. on the morning of October 15, 2009, C.R. and K.L. exchanged words at the school bus stop. K.L. testified that C.R. approached from behind, put his arm around K.L.’s neck, and choked him until he blacked out. The next thing K.L. remembered was being at home. K.L. further stated that his mother took him to the hospital that day.

KL.’s mother confirmed that she took her son to the hospital that day. The treating physician determined that K.L. had struck his head, sustained a concussion, and contusions on his face. The State introduced photographs of blood on the concrete where K.L. struck his head.

C.R. testified, on the other hand, that he and K.L. were exchanging words at the bus stop when K.L. punched C.R. and ran away. C.R. stated that he chased |SK.L. and pushed him to the ground, which caused injury to K.L.’s head. He denied choking K.L. during this altercation.

On October 19, 2009, the Jefferson Parish District Attorney filed a delinquency petition in juvenile court charging C.R. with second degree battery, in violation of La. R.S. 14:34.1. On October 23, 2009, the juvenile appeared and denied the allegations.

On December 9, 2009, the defense challenged the juvenile’s competency to proceed and the court appointed a competency commission. On February 3, 2010, the trial court found C.R. incapable of assisting in his defense, ordered him to participate in restoration classes, and ordered a psychiatric evaluation. On May 11, 2011, the trial court found that C.R. had successfully completed the restoration classes and deemed him competent to proceed.

On June 1, 2011, after hearing the testimony and evidence at the delinquency hearing, the trial judge found that the State had met its burden that C.R. had committed second degree battery and adjudicated C.R. as delinquent. On July 7, 2011, at the disposition hearing, the judge committed C.R. to the Office of Juvenile Justice for one year, suspended, and placed C.R. on two years of active probation. On July 22, 2011, the court granted the juvenile’s motion for appeal. This appeal follows.

Law and Analysis

In his only assignment of error, C.R. argues that the trial judge erred in adjudicating C.R. delinquent when there was insufficient evidence that C.R. committed second degree battery. Specifically, C.R. contends that the State did not prove that he had specific intent to inflict serious bodily injury on K.L.

In order for the court to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the 14petition. La. Ch.C. art. 883; State in Interest of R.T., 00-0205 (La.2/21/01), 781 So.2d 1239, 1241; State v. B.E., 616 So.2d 211, 214 (La.App. 5 Cir.1993). The constitutional standard of appellate review in a juvenile proceeding is also the same as that in an adult proceeding. State in Interest of R.T., (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

In reviewing the sufficiency of the evidence, an appellate court must determine whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, swpra; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

In this case, C.R. was adjudicated delinquent for committing second degree battery, in violation of La. R.S. 14:34.1. To convict a person of second degree battery, the State must prove that the defendant: (1) used force or violence upon the person of another; (2) without the consent of the victim; and, (3) intentionally inflicted serious bodily injury. State v. Young, 00-1437, p. 9 (La.11/28/01), 800 So.2d 847, 852. As specified in La. R.S. 14:34.1(B),

serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty, or a substantial risk of death. (Emphasis added).

Id.

Here, C.R. only challenges the trial court’s finding that he had specific intent to inflict serious bodily injury on K.L. C.R. does not denying injuring K.L. but 15rather argues that he struck K.L. in retaliation and accidentally caused K.L.’s injuries.

In Louisiana, specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. Because specific criminal intent is a state of mind, it need not be proven as fact but may be inferred from the circumstances and the actions of the accused. State v. Meyers, 95-750 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378; State v. Nguyen, 95-1055 (La.App. 5 Cir. 3/26/96), 672 So.2d 988, writs denied, 96-1019 (La.10/4/96), 679 So.2d 1377; 96-2087 (La.10/7/96), 680 So.2d 639.

Specific intent to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Cochran, 09-85 (La.App. 5 Cir. 6/23/09), 19 So.3d 497, 504, writ denied, 09-1742 (La.3/26/10), 29 So.3d 1249. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard. State v. Huizar, 414 So.2d 741 (La.1982); State v. Meyers, supra.

Upon review, we conclude that any rational trier of fact could find that the State proved that C.R. had specific intent to inflict serious bodily injury on K:L. during the incident in question. Here, the victim testified that C.R. came up behind him and choked him until he blacked out. Further, La. R.S. 14:34.1(B) defines serious bodily injury as bodily injury involving “unconsciousness ... or impairment of the function of a[n] organ or mental faculty....” Jurisprudence also supports the trial court’s finding that defendant had specific intent to inflict serious bodily injury when he choked the victim to the point of unconsciousness. State v. Young, |fi800 So.2d at 852-53; State v. Bernard, 39,579, p. 6-7 (La.App. 2 Cir. 4/6/05), 899 So.2d 818, 822-23.

Although we recognize that C.R. offered a different version of events, this does not bear on the sufficiency of the evidence. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this bears on the weight of the evidence, not its sufficiency. State v. Walker, 10-536, p. 13 (La.App. 5 Cir. 5/10/11), 66 So.3d 486, 494-95, writ denied, 11-1103 (La.11/23/11), 76 So.3d 1149.

In this case, the trial judge believed the victim’s version of the incident rather than C.R.’s version. This is a credibility determination based on many factors, including the demeanor of the witnesses. See, State v. B.E., 616 So.2d 211, 215 (La.App. 5 Cir.1993). The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Walker, 66 So.3d at 494. The credibility of witnesses will not be reweighed on appeal. Id. at 495. This assignment of error lacks merit.

Errors Patent

Finally, we have reviewed the record for errors patent, pursuant to La.C.Cr.P. art. 920. State ex rel. T.S., 04-1111 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 82. The review reveals no errors that require correction.

Conclusion

For the foregoing reasons, defendant’s adjudication is affirmed.

AFFIRMED

      . C.R.’s date of birth is October 16, 1997. The incident on October 15, 2009 occurred the day before C.R.’s twelfth birthday. In order to maintain the confidentiality of the proceedings, as required by La. Ch.C. art. 412, we will refer to any juveniles involved by their initials.

      . The testimony of the victim alone is sufficient to prove the elements of an offense. State v. Brown, 04-1113 (La.App. 5 Cir. 3/29/05), 901 So.2d 492, 497.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Howard FLEMING.
    No. 2011-KA-1126.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Timón V. Webre, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge, TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

| STATEMENT OF THE CASE

The defendant Harold J. Fleming, was charged by bill of information on August 5, 2010 with fourth-offense possession of marijuana, a violation of La. R.S. 40:966(C) and (E)(3). The defendant pleaded not guilty at his August 24, 2010 arraignment. On December 6, 2010, the trial court denied the defendant’s motion to quash alleging that La. R.S. 40:966(E) — the penalty provision for possession of marijuana — was unconstitutional under the Louisiana Constitution as imposing cruel, unusual, and excessive punishment, and under the Eighth Amendment to U.S. Constitution as imposing cruel and unusual punishment. On January 5, 2011, this Court denied the defendant’s emergency writ application relating to that ruling. On January 11, 2011, the defendant pleaded guilty as charged under State v. Crosby, waived all delays, and was sentenced to eight years at hard labor, suspended, with five years active probation. In addition, the defendant was fined $1,000.00. The defendant filed a motion for appeal on February 10, 2011, which was granted that date.

12FACTS

The State alleged in the bill of information that at the time the defendant was arrested, July 23, 2010, he had previously been convicted three times for possession of marijuana. The defendant pleaded guilty to fourth offense possession of marijuana, reserving his right under Crosby to appeal the trial court’s denial of his motion to quash.

ERRORS PATENT

A review of the record reveals no errors patent on the face of the record.

ASSIGNMENT OF ERROR

The defendant argues that the trial court erred in denying his motion to quash the bill of information, the grounds of which were that La. R.S. 40:966 was unconstitutional under Louisiana Constitution art. 1, § 20 and the Eighth Amendment to the U.S. Constitution because “any criminal sanction for possession of marijuana for personal use is cruel [sic] unusual and excessive punishment.”

A trial court’s ruling on a motion to quash should not be disturbed absent a clear abuse of discretion. State v. Love, 2000-3347, p. 12 (La.5/23/03), 847 So.2d 1198, 1208 (“When a trial judge exercises his discretion to deny a motion to quash, he presumably acts appropriately, based on his appreciation of the statutory and procedural rules giving him the right to run his court. When ... a trial judge denies |3a motion to quash, that decision should not be reversed in the absence of a clear abuse of the trial court’s discretion.”).

Statutes are generally presumed to be constitutional, and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Hatton, 2007-2377, p. 13 (La.7/01/08), 985 So.2d 709, 719; State v. Fleury, 2001-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472. To meet his burden, the party must clearly establish the unconstitutionality of the statute. State v. Muschkat, 96-2922, p. 4 (La.3/4/98), 706 So.2d 429, 432.

The defendant filed an original motion to quash on October 18, 2010, and an amended motion to quash on November 17, 2010, the latter of which obviously superseded the original one — given that the constitutional grounds were different in each. In his amended motion to quash the defendant argued that La. R.S. 40:966(E) was unconstitutional under La. Const. art. 1, § 20 and the Eighth (through the Fourteenth) Amendment to the U.S. Constitution “as any criminal sanction for possession of marijuana for personal use is cruel [sic] unusual and excessive punishment.”

The defendant’s prayer for relief at the conclusion of his memorandum in support of his amended motion to quash stated, in toto:

Since imposing criminal sanctions for possession of marijuana violates contemporary standards of decency and has no penological purpose, LA R.S. 40:966 E violates the prohibition against cruel, unusual and excessive punishment of the Louisiana Constitution Art, 1, [sic] section 20, and the United States Constitution Amendment 8 and 14. Wherefore the accused prays that the Statute be held to be unconstitutional and the bill of information filed against him be quashed.

However, in his appellate brief the defendant sets forth an alternative prayer for relief that the statute be held unconstitutional insofar as it imposes felony sanctions for possession of marijuana. This narrow alternative issue was not |4presented by the defendant to the trial court as a ground of his motion to quash, and thus is not within the scope of review on appeal. State v. Green, 2010-0454, p. 23 (La.App. 4 Cir. 3/16/11), 62 So.3d 229, 242, writ denied, 2011-0801 (La.2/10/12), 80 So.3d 476 (“An appellate court will only review issues that were submitted to the trial court.”), citing Rule 1-3, Uniform Rules of Louisiana Courts of Appeal.

The Eighth Amendment to the U.S. Constitution prohibits the infliction of “cruel and unusual punishments.” The Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: (1) it limits the kinds of punishment that can be imposed on those convicted of crimes; (2) it proscribes punishment grossly disproportionate to the severity of the crime; and (3) it imposes substantive limits on what can be made criminal and punished as such. Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977). The U.S. Supreme Court has recognized the last limitation as “one to be applied sparingly.” Id. “The primary purpose of (the Cruel and Unusual Punishments Clause) has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes; .... ” Id., quoting Powell v. Texas, 392 U.S. 514, 531-532, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968).

In the instant case, defendant’s attack on La. R.S. 40:966(E) is not directed to the method or kind of punishment imposed for the criminal violation of the statute. Rather, his argument is essentially directed to the issue of what can be made criminal and thus sanctioned as such.

The State cites and quotes Whitley v. Albers, 475 U.S. 312, 318-319, 106 S.Ct. 1078, 1083-1084, 89 L.Ed.2d 251 (1986), for the proposition that “[t]he | sCruel and Unusual Punishments Clause was designed to protect those convicted of crimes, and consequently the Clause applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” The State is correct. The Eighth Amendment’s protections do not attach until after conviction and sentence. See Graham v. Connor, 490 U.S. 386, 392, fn. 6, 109 S.Ct. 1865, 1870, fn. 6, 104 L.Ed.2d 443 (1989). The defendant has not addressed this issue.

Given that the protections of the Eighth Amendment do not attach until after conviction and sentence, the trial court properly denied the defendant’s pretrial motion to quash the indictment insofar as the ground that La. R.S. 40:966(E) was facially unconstitutional as violative of the Eighth Amendment’s cruel and unusual punishments clause. Most of the defendant’s legal analysis in his memorandum in support of his motion to quash was based on Eight Amendment jurisprudence, which analysis is moot.

As defendant’s motion to quash was based on La. Const. art. 1, § 20’s cruel and unusual punishment clause, that narrow clause must be interpreted to apply only after conviction and sentence, just as the Eighth Amendment’s cruel and unusual punishments clause — a source of La. Const. art. 1, § 20. Thus, the defendant has failed to establish that the trial court clearly abused its discretion in denying his motion to quash insofar as it was based on the cruel and unusual punishment clause of La. Const. art. 1, § 20.

|fiLa. Const. art. 1, § 20, unlike the Eighth Amendment, explicitly prohibits excessive sentences. That explicit protection against excessive sentences authorizes courts to determine both whether the range of sentences authorized by a criminal statute is excessive — prior to conviction and sentence — as well as whether a sentence imposed on a particular offender is excessive, although within the statutorily prescribed range. State v. Smith, 99-0606, p. 18 (La.7/6/00), 766 So.2d 501, 515 (“Accordingly, the defendants in the consolidated cases, having been charged with violating the crime against nature statute, have standing to challenge, before trial, the constitutionality of the sentencing provisions of [La. R.S. 14:89(A)(2) ] as facially excessive.”); State v. Baxley, 94-2982, p. pp. 4-5 (La.5/22/95), 656 So.2d 973, 976 (“This court, without discussion, has allowed defendants to challenge sentences authorized under statutes as unconstitutionally excessive in pre-trial motions to quash.”).

In the instant case the defendant prayed for the granting of his motion to quash on the ground that “any” criminal sanction for possession of marijuana was unconstitutional as excessive punishment, and thus that La. R.S. 40:966(E) was unconstitutional on its face. Therefore, it follows that if a sentence of one day in parish prison, suspended, is found not to be excessive, it cannot be said that the trial court clearly abused its discretion in denying the motion to quash.

La. R.S. 40:966(E) provides, in Subsections (1), (2), and (3), respectively, that, on a first conviction for possession of marijuana the offender shall be imprisoned in the parish jail for not more than six months; on a second conviction the offender shall be imprisoned with or without hard labor for not more than five years; and on a third or subsequent conviction the offender shall be imprisoned with or without hard labor for not more than twenty years. La. R.S. 40:966 was |7enacted by Acts 1972, No. 634, § 1, and the subsections criminalizing possession of marijuana and providing penalties for first, second, and third or subsequent convictions have, except for the subsection designations, essentially remained unchanged since that time. Specifically, the terms of imprisonment provided for the respective violations are the same today as they were in 1972.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Every, 2009-0721, p. 7 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 417, writ denied, 2010-0929 (La.11/19/10), 49 So.3d 397. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. State v. Cassimere, 2009-1075, p. 5 (La. App. 4 Cir. 3/17/10), 34 So.3d 954, 958. A sentence is unconstitutionally 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. Ambeau, 2008-1191, p. 9 (La.App. 4 Cir. 2/11/09), 6 So.3d 215, 221. 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. State v. Galindo, 2006-1090, pp. 15-16 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102,1113.

The Louisiana Supreme Court has outlined several factors useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime. The analysis is cumulative and focuses on a combination of factors including the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment | ¡^provided for this crime in other jurisdictions. Baxley, 94-2982, p. 10, 656 So.2d at 980; Smith, 99-0606, pp. 17-18, 766 So.2d at 515-516.

In the instant case the defendant argues, among other things, that the possession and personal use of marijuana is no more harmful to society, in terms of its adverse health effects, societal costs, etc., than the consumption of alcoholic beverages — indeed, that the personal use of marijuana is less harmful to society than the consumption of alcoholic beverages.

It is a well-established principle that the legislature has the unique responsibility to define criminal conduct and to provide for the penalties to be imposed against persons engaged in such conduct. Smith, 99-0606, p. 19, 766 So.2d at 515; Baxley, 94-2982, pp. 9-10, 656 So.2d at 979. The Louisiana Legislature has found it necessary for the general health and welfare to criminalize the use and possession of marijuana. See Louisiana Affiliate of the National Organization for the Reform of Marijuana Laws (Norml) v. Guste, 380 F.Supp. 404, 408 (E.D.La.1974), affirmed, 511 F.2d 1400 (5 Cir.1975) (Table), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975).

The defendant argues that the use of marijuana is widespread and that criminal penalties imposed by La. R.S. 40:966(E) have no deterrent effect. While the defendant submits that thirteen states have decriminalized first offense possession of small amounts of marijuana, at the same time he concedes that the District of Columbia and thirty-six states, including Louisiana, have misdemeanor criminal penalties for first offense possession of marijuana. Thus, accepting the defendant’s statistics, seventy-two percent of the states, including Louisiana, have misdemeanor criminal penalties for first offense possession of marijuana. This is presumptive evidence that, in terms of societal norms and values, the criminalizing Lof first offense possession of marijuana and the provision of misdemeanor criminal penalties for violations thereof is the societal norm in the United States.

It is a significant factor in reviewing a sentence for excessiveness that the criminal penalty statute imposes no mandatory minimum sentence or fine. See Smith, 99-0606, p. 21, 766 So.2d at 517 (“It is also significant that ... imposes no mandatory minimum prison sentence or fine.”); Baxley, 94-2982, p. 11, 656 So.2d at 980 (“Moreover, we find it significant that ... imposes no mandatory minimum prison sentence or fine.”).

In the instant case, not only does La. R.S. 40:966(E) impose no mandatory minimum sentence or fine for a conviction for first offense possession of marijuana— only a maximum of six months in the parish jail and/or a fine of not more than five hundred dollars — the statute does not impose mandatory minimum sentences or fines for second, third, or subsequent convictions for possession of marijuana. Further, the imposition of any sentence provided for by La. R.S. 40:966(E) may be suspended, as defendant’s was in the instant case.

Given that a majority of the Louisiana Legislature, in the exercise of its constitutional lawmáking function, apparently believes that the health and welfare of the citizens of this State require that simple possession of marijuana continue to be criminalized to deter abuse of the substance, it cannot be said that a sentence of one day in parish prison, suspended, makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime— e.g., that when the crime and punishment are considered in light of the harm done to society, the punishment shocks the sense of justice.

| ipThe defendant has failed to show that “any” criminal sanction for possession of marijuana — such as one day in parish prison, suspended — constitutes excessive punishment under La. Const. art. 1, § 20. Thus, he has failed to show that the trial court clearly erred in denying his motion to quash, which was based on that ground.

There is no merit to the defendant’s assignment of error.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . State v. Fleming, unpub., 2011-0012 (La.App. 4 Cir. 1/5/11) (Jones, Armstrong, Belsome—concurring).

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . La. Const. art. 1, § 20, states, in pertinent part:
      No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment....

      .The Eighth Amendment to the U.S. Constitution states:
      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

      . See State v. Jones, 94-0459, p. 13 (La.7/5/94), 639 So.2d 1144, 1153-54
      Louisiana’s constitutional right' to humane treatment is embodied in LSA-Const. Art. 1, § 20, which declares that no law shall subject any person to cruel, excessive or unusual punishment. A source of this right is the Cruel and Unusual Punishments Clause of the Eighth Amendment of the federal constitution.