author: EZELL, Judge.

text:
    STATE of Louisiana v. Bryce W. PERKINS.
    No. KA 11-955.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      John Foster DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appellant, State of Louisiana.
    Thomas L. Lorenzi, Lorenzi & Barnatt, LLP, Lake Charles, LA, for Defendant/Appellee, Bryce W. Perkins.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

h Defendant, Bryce W. Perkins, was convicted by a jury of second degree murder after being indicted by a Calcasieu Parish Grand Jury. The trial court then granted Defendant’s motion for post verdict judgment of acquittal, which requested a reduction to manslaughter, a violation of La. R.S. 14:31. Defendant then waived sentencing delays, and the court sentenced him to thirty years at hard labor, the first twenty without benefit of parole, probation, or suspension of sentence.

The State now appeals the trial court’s ruling on the motion for post verdict judgment of acquittal, assigning a single error.

FACTS

On the night of July 4, 2009, a large group of people in their late teens and early twenties gathered at a house in Lake Charles for a party. A fight broke out involving a young man named Taylor Johnson. After Johnson fell to the ground, various people began kicking him, and he assumed a fetal position. Some testimony indicated that the victim, Daniel Gueringer, and a young man named De-vionte Edmonson intervened and stopped the fracas. Defendant, Johnson’s friend, arrived and stood near the fallen man; he produced a pistol, raised it over his head, and chambered a round. Although there was conflicting testimony regarding which young men took what actions, some party-goers attempted to subdue Defendant. They were unsuccessful. Defendant leveled the pistol and fired a shot. The victim fell to the ground with a head wound and later died.

ERRORS PATENT

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

|2The record before this court does not indicate that the trial court advised Defendant of the prescriptive period for filing post conviction relief as required by La. Code Crim.P. art. 930.8. Thus, the trial court should be directed to inform Defendant of the provisions of Article 930.8 at resentencing.

ASSIGNMENT OF ERROR

In its sole assignment of error, the State argues the trial court erred by reducing the jury’s verdict of second degree murder to manslaughter. Further, the State contends the trial court used the wrong legal standard in its analysis of the motion. As the State observes, La.Code Crim.P. art. 821 explains:

A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post-verdict judgment of acquittal must be made and disposed of before sentence.
B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
D. If a post verdict judgment of acquittal is granted or if a verdict is modified, the state may seek review by invoking the supervisory jurisdiction of or by appealing to the appropriate appellate court.
E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

There are some cases indicating that review of a trial court’s action denying a motion for acquittal is subject to an abuse of discretion standard. See, e.g., State v. Sedlock, 04-564 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, writ denied, 04-2710 (La.2/25/05), 894 So.2d 1131. However, these cases apply this standard only to | amotions for acquittal arising from bench trials under La.Code Crim.P. art. 778. See, Id. To the contrary, appellate review of such decisions arising from jury trials requires eliminate a standard review of the sufficiency of the trial evidence, as codified in La.Code Crim.P. art. 821. State v. Coleman, 09-106 (La.App. 3 Cir. 10/7/09), 20 So.3d 1163, writ denied, 09-2424 (La.6/4/10), 38 So.3d 298; State v. Savoy, 08-716 (La.App. 3 Cir. 12/10/08), 999 So.2d 285, writ denied, 09-509 (La.11/20/09), 25 So.3d 785.

The structure of sufficiency reviews is well-established:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore the appellate court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the state to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. The Jackson standard has been codified at La.Code Crim.P. art. 821 as the standard for post verdict judgments of acquittal.

State v. Bolden, 95-749, p. 10 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, 13-14, writ denied, 96-1272 (La.11/22/96), 683 So.2d 286.

As the State points out, a trial judge analyzing such a motion is not to reweigh the evidence. State v. Voorhies, 590 So.2d 776 (La.App. 3 Cir.1991).

At the hearing below, the trial judge explained:

When Mr. Perkins arrives on the scene, he does not have the gun. He gets up to the fracas. Then he tells Austin Rousseau to give him the gun which Rousseau does. Mr. Perkins yells “Get back.” He’s waving the gun around. There were [sic] some vulgar language |4which was used, and it was just, I think, utterly clear that Mr. Perkins was very serious about trying to help his friend.
He now has the gun. He raises it over his head and he chambers a bullet. He racks the gun. The gun is still over his head. Jack Hart said that the gun was waving around or Mr. Perkins was waving the gun around, no aiming. And Mr. Cale Brouillette said the same thing, and others said the same thing too. The gun is still above his head.
While the gun is above his head, McCord, Justin or Judson. I have Justin in one place in my notes and Judson in another place. But Mr. McCord, while the gun is — Mr. Perkins is holding the gun above his head, squares off and punches Bryce Perkins. Everybody said that. One or two witnesses said they didn’t see that, but it’s — that’s been established beyond a doubt, that McCord punched Perkins.
Perkins stumbled. One witness said that he thinks that his knee, one knee may have even hit the ground. And at that point, Pierce Johnson jumps on— some said jumped on Bryce Perkins’ back. Others said grabbed him by the shoulders from the back. And this was done in an attempt to subdue Bryce Perkins and avoid anything further from developing in terms of the gun firing or anything else escalating.
Mr. Johnson, Pierce Johnson was shaken off and lost his grip on Bryce Perkins. And then, Korey King grabbed the gun.
THE COURT:
Excuse me one second. Okay. I’m looking at some of the notes of the testimony. Okay. Be that as it may, when Pierce Johnson tries to intervene, the gun is still up in the air, and that’s his testimony. Gun still pointed in the air after it was racked (reading).
And after he lost control or was shaken from Bryce Perkins, it was his testimony, and it was on Redirect Examination, that the gun discharged a split second later. McCord, who punched Perkins, said on Direct Examination, that the gun discharged a millisecond later. Dylan Grindol, who was some distance away, the motorcyclist, said that he could see the fight, the disturbance. And he could see the gun in the air. And he could see the wrestling going on, and he said that the gun discharged about two seconds later. McCord said that after the shot, Bryce Perkins was frozen like a ghost. Devon Lewis said that the gun was up prior to being fired, that it was being waved around, and Perkins was telling everybody to get back, back up. Jack Hart said the same thing and also said there was no aiming at any time.
| ¿The focus, in this matter today, is what was Bryce Perkins’ intent on that morning, July 5th? Not only general intent but specific intent, specific intent to Ml or inflict bodily harm.
The Jury made its decision. They made the decision, but I find that the evidence does not support Bryce Perkins having the specific intent to kill or inflict great bodily harm at that time the gun discharged.
His intent was to help his friend. He’s waving the gun around. He’s telling everybody to get back. There’s some wrestling going on. He’s caught up in the moment just as everyone else is. And I think that he did lose possession of his cool reflection, self-control— Manslaughter. And I don’t think that he had the specific intent to kill.
I’ve thought about it. I’ve replayed it in my mind. I may have gotten the sequence of events involving Korey King as to what point he grabbed the gun, but it doesn’t change my opinion. It doesn’t change what I feel I must do.
Later, the court engaged in the following colloquy with the prosecutor:
MR. BRYANT:
Well then, you must have disregarded their testimony, Your Honor.
THE COURT:
No, I didn’t disregard it. There were other people that said that the gun was — that Mr. Perkins was waving the gun around. I realize other witnesses said, at some point, the gun Mr. Perkins — before the struggle over the gun with Pierce Johnson and the others, at one point, kind of leveled the gun off, swaying the gun from one side to another. One witness said that, at some point, the gun quit moving. I considered all of that. But taking everything together and the way this happened and after considering all the evidence and giving it serious thought and viewing the evidence in the light most favorable to the State, I don’t feel that the evidence proves, beyond a reasonable doubt, that Bryce Perkins had the specific intent to kill or inflict great bodily harm. I find that he—
MR. BRYANT:
Well then, how is that Manslaughter, Your Honor?
|fiTHE COURT:
It’s Manslaughter in the sense that it’s a misdemeanor Manslaughter. He was engaged. He was trying to — he did — that was an Aggravated Assault.
MR. BRYANT:
So, it wasn’t heat of passion because heat of passion requires a specific intent, Your Honor, but the crime is committed during heat of passion. And Your Hon- or indicated that your Ruling was that this was committed during heat of passion.
THE COURT:
No. I think he — excuse me, Mr. Bryant. The Ruling is based primarily on the fact that I don’t think the evidence proved that this happened — excuse me — Bryce Perkins had the specific intent to kill or inflict great bodily harm when the gun was discharged.
MR. BRYANT:
Then how is it Manslaughter, Your Honor?
THE COURT:
He was engaged in the perpetration of an Aggravated Assault. He said he was trying to scare everybody off.
MR. BRYANT:
I just wanted that for the record, Your Honor, because what you said initially was this was done during the heat of passion. There was a lot going on.
THE COURT:
I’m glad you — I thought I did say also that I didn’t think that the evidence proved, beyond a reasonable doubt, that he had the specific intent to kill. There was a misdemeanor Aggravated Assault with the weapon, waving it around and telling everybody to get back. Who wants some of this? All of those things were said.
MR. BRYANT:
But those were said before the shooting, Your Honor.
THE COURT:
Before the shooting, that’s correct.
j^MR. BRYANT:
Correct.
THE COURT:
Yes, sir. Right.
MR. BRYANT:
After the round was put in the chamber and the safeties were taken off, that’s when that was said.
THE COURT:
That is correct. That is correct.
Anything else, Mr. Bryant, right now?
MR. BRYANT:
Nothing other than our intent to appeal this Ruling, Your Honor.

The colloquy clarified that the trial court found there was insufficient evidence that Defendant had the specific intent to kill. Thus, the court found that a misdemeanor-manslaughter occurred.

As it is well-settled that intent may be inferred from a defendant’s actions, the plethora of eyewitness testimony regarding Defendant’s position and actions at the time he fired the shot is the key to the current analysis. Although the record contains pages of testimony regarding events earlier in the evening, such as a party on River Road that many of the witnesses attended and Taylor Johnson’s behavior before the fight, testimony sheds no light on the issue at hand. Testimony regarding Defendant’s actions after the shooting, such as his efforts to conceal the weapon, arguably has some relevance. The eyewitness testimony is far more important since it reveals his actions at the time he fired the gun.

As the trial court observed, Defendant arrived at the Prien Lake Road location to defend Johnson. Other than a phone call that alerted him to Johnson’s | spredicament, there is no indication that any earlier events influenced his intent at the time he pulled the trigger.

Also, while there were discrepancies among the testimonies of the various eyewitnesses regarding details of the Johnson fight and the shooting, only the details of the shooting itself are key to this analysis. For example, some witnesses, including Edmonson, stated that he and the victim intervened to stop people from kicking Johnson. Others did not recall such intervention or remembered someone else doing it. Such discrepancies went to credibility and weight and thus were matters for the jury, not the trial court or this court.

Regarding the fatal shot, note that witnesses Addison Nickel and Paige Sorkow saw merely the flash it produced. Louis Hoffpauir left before the fight involving Johnson even started. John Fayko did not see the shooting or even the flash. Ed-monson testified he was walking away from Johnson and Defendant when he heard the shot. Ernest Celestie’s testimony was similar. Cody Marceaux also stated he merely heard the shot.

Korey King, who started the fight with Johnson, provided details relevant to the shooting itself. According to King, Defendant arrived with a gun; he raised it over his head and chambered a round. King testified that he grabbed the barrel with his left hand, but Devon Lewis grabbed him, King, from behind and threw him down. King did not see the shot fired but heard it. He saw the victim on the ground about ten feet away. Lewis’s testimony was similar; he explained that he threw King into some bushes to keep him from getting shot. Lewis stated they both went down; he heard the shot, looked up, and saw the victim’s head rock back.

Cale Brouillette saw Defendant and another young man, Austin Rousseau, walk up to where Johnson was lying. After bumping into Edmonson, Defendant turned to Rousseau and said, “Give it to me.” Rousseau handed a pistol to | ^Defendant, who raised it over his head and chambered a round. Judson McCord then punched Defendant. Defendant sagged, and then rose. At that point, Pierce Johnson approached and tried to get the pistol away from Defendant. The latter man broke free and waved the gun while holding it “out straight,” then fired. Brouillette saw the victim fall.

Like Brouillette, Jack Hart saw Defendant obtain the weapon from Rousseau, raise it, and chamber a round. He also saw McCord and Pierce try to subdue Defendant. They were unsuccessful, and Defendant pointed the weapon in the victim’s direction. Unlike Brouillette, Hart testified Defendant did not wave the weapon before firing. The victim was “about the width of a normal driveway” from Defendant.

Judson McCord also heard Defendant say to Rousseau “Give it to me.” Defendant waved the gun around, then lifted it over his head and chambered a round. While his hands were over his head, McCord punched him in the face. Defendant went down on one knee, then rose. According to McCord, Johnson then jumped on the gunman’s back but was shaken off. The gun was out horizontally; Defendant waved it for “[a] millisecond, if that” and fired. McCord testified the gun was pointed in the general direction of at least four people, counting the victim and him. He felt the victim fall behind him. Immediately after the shooting, Defendant “froze, looked like a ghost.”

Pierce Johnson’s testimony was generally similar to McCord’s regarding the struggle to subdue Defendant. Johnson explained that he tried to push the gun down, but Defendant regained control of it. He pointed in the general direction of four or five people and fired. Johnson did not see the gun waving; he stated “it was solid in the air” before it discharged.

ImChance Fayko also testified about the struggle; his recollection of it was similar to those of McCord and Johnson. He testified that when Defendant got free of Johnson, he waved the gun “just a little bit,” held it steady, then fired. There were people “in the line of fire,” but Fayko was not sure how many. Joseph Polito testified that when Defendant got free of Johnson, he brought the weapon up, waved it slightly, and fired. His testimony suggested the victim was stepping toward him from behind when the pistol fired. Dylan Grindol was driving nearby on his motorcycle and had to stop because there were so many people in the road. From his vantage point, he saw an arm come up and pause for two seconds. Then a shot rang out, and he saw someone fall. He testified the weapon was not moving around when he saw it.

Viewing the testimony of the eyewitnesses in the light most favorable to the prosecution, a reasonable jury could have found that the State proved the element of specific intent beyond a reasonable doubt. Although McCord’s testimony suggested the shot could have been accidental, as it came within a millisecond of his getting free of Johnson, Grindol’s testimony regarding the two-second pause before the shot indicated it was deliberate. Jack Hart, Pierce Johnson, and Chance Fayko indicated the gun was steady before it was fired; this also suggested the shot was intentional.

It is well-settled that a jury is free to believe some, none, or all of any witness’s testimony. Apparently, it credited testimony that Defendant paused before shooting. As shown in Voorhies, 590 So.2d 776, the trial court could not re-weigh the evidence in the considering the motion to acquit. Further, firing into a crowd is indicative of a specific intent to kill. State in the Interest of L.H., 94-903 (La.App. 3 Cir. 2/15/95), 650 So.2d 433.

In As mentioned earlier, Defendant also argues the killing was manslaughter because the actions of McCord, Johnson, and King provoked him. As observed earlier, the trial court’s ultimate ruling was that the killing was a misdemeanor-manslaughter. However, we will address Defendant’s provocation-based argument out of an abundance of caution.

We note the following analysis by the second circuit:

In the alternative, Defendant argues that the conviction should be reduced to manslaughter because he killed Ferguson in “sudden blood heat of passion” when Ferguson was fighting for the gun. In pertinent part, La. R.S. 14:31(A)(1) defines manslaughter as a “homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” State v. Ellis, 42,286 (La. App.2d Cir.7/11/07), 961 So.2d 636, lorit denied, 07-1641 (La.1/25/08), 973 So.2d 753. “Sudden passion” and “heat of blood” are mitigating factors in the nature of a defense; and, when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Baker, 41,555 (La.App.2d Cir.8/15/07), 962 So.2d 1198, citing State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert. denied, [549] U.S. [1221], 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The burden is on the defendant to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood.” State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008. The defendant is not obligated to establish the factors affirmatively; the jury may infer them from the evidence presented. State v. Ellis, supra, citing State v. Jackson, 34,076 (La.App.2d Cir.12/6/00), 774 So.2d 1046.
Provocation shall not reduce a homicide to manslaughter if the jury finds that the defendant’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. State v. Ellis, supra. “If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act.” State v. Leger, supra. Questions of provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person with ordinary self-control. State v. Leger, supra, citing State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Ellis, supra, citing State v. Lombard, 486 So.2d 106 (La.1986); State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64, 65 (La.1987). Even so, mere words or gestures, 112no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La. App.2d Cir.12/15/04), 889 So.2d 1257, unit denied, 05-0132 (La.4/29/05), 901 So.2d 1063, citing State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988).
Although Defendant had been shot during the struggle with Ferguson, he was actually shot by his accomplice, Foster. Further, when a victim is fighting back against two armed gunmen, actions of self-defense are not provocation to reduce a charge of second degree murder to manslaughter. Defendant fatally shot Ferguson during the perpetration of an aggravated burglary, armed robbery and aggravated kidnapping. Neither the fact that Ferguson acted in self-defense, nor the fact that Defendant was shot by his accomplice constitutes provocation to reduce the charge of second degree murder to manslaughter. Defendant, therefore, did not meet his burden of proving that he killed Ferguson while acting in “sudden passion” or “heat of blood;” and, thus, he is not entitled to a reduced verdict of manslaughter.

State v. Wright, 42,956, pp. 13-15 (La.App. 2 Cir. 3/5/08), 978 So.2d 1062, 1071-72, writ denied, 08-819 (La.10/31/08), 994 So.2d 532. The actions of the young men who tried to disarm Defendant were legitimately defensive, and thus, Defendant cannot use them to establish provocation and reduce the conviction from second degree murder to manslaughter.

For the reasons discussed, the trial court’s ruling is reversed, and the original conviction is re-instated.

DISPOSITION

The trial court’s ruling on the motion for post verdict judgment of acquittal is reversed. The jury verdict is reinstated, and the case is remanded for resentencing. The trial court is directed to inform Defendant of the provisions of Article 930.8 at resentencing.

REVERSED AND REMANDED FOR RESENTENCING WITH INSTRUCTIONS.


source: Caselaw Access Project

author: DECUIR, Judge. AMY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Lili Paul CONLEY.
    No. 11-1065.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Christopher Washington, Attorney at Law, Baton Rouge, LA for Defendant/Appellant, Lili Paul Conley.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

_JjThe Defendant, Lili Paul Conley, was charged by bill of information filed on August 16, 2010, with home invasion, a violation of La.R.S. 14:62.8. He entered a plea of not guilty on September 14, 2010. On May 17, 2011, the State entered a nolle prosequi on the record and filed a new bill of information charging the Defendant with aggravated battery, a violation of La. R.S. 14:34. However, on May 18, 2011, the Defendant proceeded to trial by jury on the charge of home invasion. He was found guilty on May 19, 2011, and was later sentenced as an habitual offender to serve twenty-five years at hard labor.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in this matter. For the following reasons, appellate counsel’s motion to withdraw is denied, and appellate counsel is instructed to brief the nonfrivolous issue discussed herein.

FACTS:

On May 17, 2010, Ebonia Thodile lived at 18 Cedar Hill Circle in New Iberia, Louisiana. On the date in question, the Defendant was at Thodile’s residence. She testified that he broke a picture frame and the two argued about a television. Thodile then called 911 as the Defendant was leaving her residence.

The Defendant subsequently returned to Thodile’s residence and beat on the door and windows. She went into the bathroom and called 911. The Defendant then broke a window, entered Thodile’s residence, and busted in the bathroom door. The door hit Thodile in the head, causing her to fall, and the Defendant kicked her in the head several times.

\,ANDERS ANALYSIS:

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Defendant’s appellate counsel has filed a brief stating he could find no errors on appeal that would support reversal of the Defendant’s conviction or sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Id. at 531.

By bill of information dated August 15, 2010, the Defendant was charged with home invasion. He was arraigned and entered a plea of not guilty. Court minutes dated May 17, 2011, indicate the Defendant’s case proceeded to trial. The State submitted a request for special jury instructions and responsive verdicts to the home invasion charge. The State’s request for responsive verdicts was denied, and the prosecutor stated: “I’m going to file a new Bill for Aggravated Battery and nolle pros the Home Invasion.” The State then filed a new bill of information charging aggravated battery. However, later that same day, the prosecutor | ¡¡apparently decided to reinstitute prosecution of the home invasion charge, although no pleading in the record reflects this intention. Only the last paragraph of the court minutes from that day state:

Later, Assistant District Attorney, ... advised the Court and Defense that after he met with the victim in this matter, the State is going back to the original Bill of Information for the charge of Home Invasion and counsel and the Court discussed the responsive verdicts for Home Invasion and all agreed on the responsive verdicts discussed.

The record before us contains the new bill for aggravated battery that was filed on May 17. The transcript of the proceedings reveals the prosecutor asked the court to include aggravated battery and second degree battery as responsive verdicts to home invasion. When the court denied the request, the prosecutor immediately stated he was going to file a new bill for aggravated battery and “nolle pros ” the home invasion. The minutes reflect the prosecutor changed his mind later that day. However, neither the record nor the transcript contain any reference to a reinstituted charge of home invasion as reflected in the last paragraph of the court minutes.

The following day, the case proceeded to trial on a charge of home invasion with no objection by the Defense. The judge informed the prospective jurors that the Defendant was charged with home invasion, and when the judge informed the selected jury of the charge, it was identical to that contained in the original bill charging home invasion.

The State did not file a new bill charging the Defendant with home invasion or refile the original bill, as the only date appearing on the home invasion bill is August 16, 2010. Nor is there any indication that the State amended the new | ¿aggravated battery bill either orally or in writing before proceeding to trial on the charge of home invasion. Accordingly, we find an arguable basis exists for appeal.

Under these circumstances, counsel is ordered to brief the issue of what effect, if any, the nolle prosequi of the charge of home invasion and the filing of a new bill of information charging aggravated battery has on the conviction for home invasion.

Counsel’s motion to withdraw is denied.

MOTION TO WITHDRAW DENIED; BRIEFING ORDERED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

U dissent from the majority insofar as I find the record equivocal as to whether or not the bill of information for home invasion was actually dismissed. I would order additional briefing on that issue as well. Otherwise I concur in the majority opinion.

For these reasons, I respectfully concur in part and dissent in part.

| ¿ORDER

After consideration of the Motion to Withdraw as Attorney of Record filed by counsel for the Defendant, Lili Paul Conley, and the appeal presently pending in the above captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is denied; and

IT IS HEREBY ORDERED that appellate counsel file a new appellate brief within 25 days of this order, addressing the issue of what effect, if any, the nolle prose-qui of the charge of home invasion and the filing of a new bill of information charging aggravated battery has on the conviction for home invasion.

Appellee’s brief shall be filed no later than 45 days from rendition of this opinion.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. David F. PITTMAN.
    No. 11-952.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      J. Phillip Haney, District Attorney, 16th Judicial District Court, New Iberia, LA, Angela B. Odinet, Assistant District Attorney, 16th Judicial District Court, St. Mar-tinville, LA, for Plaintiff/Appellee, State of Louisiana.
    Harry Daniels, III, Daniels & Washington, Baton Rouge, LA, David F. Pittman, Cottonport, LA, for Defendant/Appellant, David F. Pittman.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

11 David F. Pittman was charged with possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. He entered a plea of not guilty.

After a jury trial, Pittman was found guilty as charged and was sentenced to thirty years at hard labor. Then, Pittman was adjudicated a sixth offender and sentenced to forty-five years at hard labor. Pittman’s Motion to Reconsider Sentence was denied. Because we find the evidence insufficient for the conviction, we reverse and order the entry of a judgment of acquittal.

I.

ISSUE

We shall consider whether the evidence adduced at trial was sufficient to support the conviction of possession of marijuana with intent to distribute where some persons at Defendant’s residence received a UPS package from Texas containing marijuana, where during the search of the residence police found marijuana hidden in the bedrooms of the residence, and where at all relevant times Defendant was working offshore.

II.

FACTS

Officer Kevin Judice received a call from a detective with the Houston Police Department. The detective informed Officer Judice that a narcotics dog alerted on a package being shipped by UPS to Jose Lopez at 1008 Peggy Street in New Iberia. Officer Judice decided to do a controlled delivery of the package. When the package arrived in Louisiana, a narcotics dog examined the package and alerted the officers that narcotics were inside the package.

| ¾A controlled delivery of the package was made to 1008 Peggy Street on August 23, 2007. A female answered the door of the residence. The female told the agent that Lopez lived there but was not home at that time. She then took possession of the package and went back inside.

A search warrant was executed at the home approximately thirty minutes to an hour after the controlled delivery. Dianne Butler, Anastasia Fuselier, and Travon Walker were inside the residence. Pittman was not present at the residence at that time.

The UPS package delivered that day had not been opened. During the search of the residence, police found marijuana in four sealed cans in a child’s bedroom. Police also found á mesh bag that contained numerous plastic bags of marijuana under a dresser in the master bedroom.

Crack cocaine and a firearm were found inside the vehicle driven by Walker. Walker was charged with possession of crack cocaine with intent to distribute and possession of a firearm while in possession of a controlled dangerous substance. Walker admitted to possession of these items.

Officer Judice testified that he did not believe police attempted to locate Jose Lopez, the person to whom the UPS package was addressed.

On September 8, 2007, an informant told police Pittman was at the residence. Police entered the residence to arrest Pittman. During the arrest, Officer Judice told his deputies to look around to make sure there was nothing in plain view. At that point, according to Officer Judice, Pittman stated: “[y]’all done [sic] got all the dope, there is no dope here.”

The State presented evidence that Pittman’s driver’s license listed his address as 1008 Peggy Street. An act of cash sale indicated Pittman owned the residence at issue. Pittman also paid the property taxes between September 19, 2006, and August 21, 2009.

^Documentation admitted into evidence showed Pittman started work at Dynamic Industries on August 14, 2007, and worked on August 17, and 20 through 24, 2007. Defense counsel introduced a “time ticket” from Dynamic Industries showing Pittman’s work hours from August 22 through 24, 2007. The parties then entered into the following stipulation regarding the time tickets: “these are the tickets for work performed by Mr. Pitman on an offshore rig for those three days.”

A lab report indicated the four metal cans found in a child’s room contained a total of 4,642 grams of marijuana, the bags found in the master bedroom contained 827 grams of marijuana, and the UPS package contained 2,208 grams of marijuana.

III.

STANDARD OF REVIEW

There is sufficient evidence for conviction if the appellate court determines that “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Hobley, 98-2460, p. 33 (La.12/15/99), 752 So.2d 771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). “This standard, now legislatively embodied in LSA-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 fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence.” State v. Hollier, 09-1084, p. 3 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 470, writ denied, 10-1037 (La.12/10/10), 51 So.3d 722 (quoting State v. Brown, 42,188, 42,189, 42,190, p. 10 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 741, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347) (citations omitted).

JiV.

LAW AND DISCUSSION

“In order to convict a defendant for possession of a CDS with the intent to distribute pursuant to LSA-R.S. 40:967(A), the state must prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed the CDS and that he did so with the intent to distribute it.” Hollier, 37 So.3d at 470 (quoting Brown, 966 So.2d at 742).

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each case. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs.

State v. Major, p. 6, 03-3522 (La.12/1/04), 888 So.2d 798, 802 (citations omitted).

(A) UPS Package

Pittman contends he did not come into contact with the marijuana delivered by agents to his address; thus, the State did not prove he constructively possessed the marijuana contained in the UPS package while in Iberia Parish. In support of his argument, Pittman cites State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, writ denied, 08-1083 (La.1/9/09), 998 So.2d 712.

|fiIn Carter, the defendant and several others went to Texas. In Texas City, the defendant purchased bales of marijuana. The defendant had Trevor Marshall drive the car that contained the marijuana. Marshall was stopped by police in Beaumont, Texas, and the marijuana was seized. Marshall, along with police, transported the marijuana to Opelousas and Alexandria, Louisiana. While driving from Opelousas to Alexandria, Marshall called Elbert Sherman and told him he had marijuana. Sherman and Oliver Deal eventually transferred the marijuana from Marshall’s vehicle to that belonging to Deal. Based on these facts, the defendant was convicted of possession of marijuana in an amount greater than sixty pounds but less than two thousand pounds.

Quoting United States v. Singh, 811 F.2d 758, 761 (2nd Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3264, 97 L.Ed.2d 763 (1987), this court reasoned:

[United States v.] DeBerry [487 F.2d 448 (2d Cir.1973),] teaches that in a typical “controlled delivery” case, the validity of the seizure is determined as of the time the drugs are first seized, not as of the time they are retaken. Having taken proper dominion over the drugs and kept them under close surveillance, the government is deemed to be in constructive possession of them, even though, for purposes of identification, they are delivered to another. Other Circuits are in accord. See, e.g., United States v. Bulgier, 618 F.2d 472, 478 (7th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 51 (1980); United States v. An drews, 618 F.2d 646, 654 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d 26 (1980); United States v. Ford, 525 F.2d 1308, 1312-13 (10th Cir. 1975); United States v. Issod, [508 F.2d 990, 993 (7th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975) ]; see also United States v. Emery, 541 F.2d 887, 890 (1st Cir.1976). This means, says the Supreme Court, that “[n]o protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal.” Illinois v. Andreas, [463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983) ].
Of course, in order for a controlled delivery to accomplish its intended purpose, there must be an factual delivery to a defendant and sufficient exercise of dominion by him to demonstrate his participation in the unlawful importation of the narcotics in question.

Carter, 981 So.2d at 748.

This court found that once police seized the marijuana, police had dominion and control over it. The defendant never had contact with Marshall or the marijuana once the marijuana was transported to Louisiana; therefore, the defendant never had dominion and control over the marijuana in Rapides Parish and did not have possession of the marijuana in Rapides Parish. This court then reversed the defendant’s conviction and sentence.

Here, Pittman was working on August 17, and 20 through 24, 2007. Further, the State offered no evidence that he was in contact with anyone in the residence after the package was delivered or in contact with the UPS package once it was within the Louisiana border. The UPS package was seized by police in Houston and forwarded to New Iberia. It was then delivered to Pittman’s residence and subsequently seized by police. Based on this court’s ruling in Carter, 981 So.2d 734, Pittman never actually or constructively possessed the marijuana found in the UPS package.

(B) Drugs Found at the Residence

Pittman also contends the State did not prove he had possession of the marijuana found in the bedrooms of his residence. He asserts there were no drugs found in his possession, and the State presented no evidence that he exercised dominion and control over any drugs.

In support of his argument, Pittman cites State v. Martin, 29,352 (LaApp. 2 Cir. 5/13/97), 694 So.2d 1209. In Martin, a confidential informant purchased two rocks of crack cocaine from 1121 Beverly Street in Bossier City Louisiana. America Martin lived at that residence, and her boyfriend, Jonathan |7Monroe, visited frequently. Two days after the purchase, police executed a search warrant at the Beverly Street residence. When police arrived, approximately fifteen people were at the residence. Police found drugs in several places at the residence. Nevertheless, none of the drugs was found in plain view.

Police arrested Monroe at the scene. Martin was not at the residence when the warrant was executed. She was arrested at the residence three days later. Police found no drugs, drug paraphernalia, or buy money on her person or in her residence at the time of her arrest.

On appeal, Martin asserted the evidence was insufficient to support her conviction for possession of cocaine with intent to distribute. It its opinion, the second circuit reversed her conviction, stating the following:

The only evidence presented at trial regarding America Martin established that she lived at 1121 Beverly. It is uncontroverted that Martin was not present the night of the search when fifteen other people were present at the residence. The record is devoid of any evidence tending to prove that the drugs were subject to Martin’s dominion and control, or that she had knowledge of their existence. When police arrested Martin several days after the raid they found no drugs, paraphernalia or evidence of recent drug use. Police failed to tie Martin to the drugs either temporally or spatially. Although Martin had complete access to the house, none of the drugs were [sic] found in plain view or in areas of the home under which she had complete control. There was no testimony that she knew anything about the drugs or had association with the drug culture. There was also no testimony that she was the person who sold drugs to the BCPD informant.

Id. at 1213-14.

In State v. Hodge, 00-515 (La.App. 4 Cir. 1/17/01), 781 So.2d 575, writ denied, 01-432 (La.1/25/02), 806 So.2d 666, the defendant was convicted of attempted possession of marijuana after police executed a search warrant at her residence and found a pound of marijuana in a clothes dryer in the backyard, marijuana in the pockets of the jacket being worn by the defendant’s husband, 18marijuana inside the pocket of a man’s jacket in a rear room of the building, and marijuana in a carry bag owned by a white female who was on the premises.

In determining whether the defendant possessed the marijuana found by police, the fourth circuit examined the following cases:

In State v. Martin, 98-1507 (La.App. 4 Cir. 4/5/00), [788] So.2d [1], 2000 WL 528072, the defendant was arrested after a police pursuit, during which he discarded two bags of cocaine. Later, police went to a residence, where the defendant’s wife answered the door. She gave consent to search the residence, and police found two bags of cocaine, currency, and drug paraphernalia there. There were men’s clothes in the residence, but no proof that the defendant resided there, such as mail addressed to him. For that reason, this court found the evidence insufficient to sustain the defendant-husband’s conviction for possession of the cocaine found in the residence. Implicit in the finding was that the evidence would have been sufficient to convict defendant for possession of that cocaine if there had been proof he resided there.
In State v. Maresco, 495 So.2d 311 (La.App. 4th Cir.1986), writ denied, 500 So.2d 419 (La.1987), police served a search warrant on an apartment where Lori Wermuth and her fiancé, Gary Weaver, resided. Wermuth was at work when the warrant was served, but Weaver and Steven Maresco were in the apartment. Police found seven pounds of marijuana packaged in large and small plastic bags in the kitchen and on the dining room table, and a vinyl bag inside of a closed trunk in the bedroom containing over six thousand Valium pills. A scale was also recovered, along with mail addressed to Wermuth. In affirming Wermuth’s conviction for possession with intent to distribute marijuana, this Court found that even though Wermuth was not home when the warrant was executed, the marijuana was seized in her apartment, and it was a reasonable conclusion that she exercised sufficient control over the marijuana. This Court also affirmed Wermuth’s conviction for attempted possession of the Valium pills, finding they had been in her constructive possession because they were found in her bedroom.
In State v. Hookfin, 601 So.2d 320 (La.App. 4th Cir.1991), [writ granted, cause remanded, 596 So.2d 586 (La. 1992) to consider facial validity of La. R.S. 14:130.1,] this court found that the mere fact that the 19defendant resided at the location where drugs were found did not in and of itself establish constructive possession. However, the fact of residence, coupled with an undercover police officers’ testimony that the defendant flushed cocaine down the toilet immediately before other officers arrived, was sufficient to establish that the defendant had dominion and control over other cocaine found in the kitchen of the residence. See also State v. Collins, 584 So.2d 356 (La.App. 4th Cir.1991) (being a resident of premises where drugs are found is not in and of itself sufficient to prove constructive possession).
In State v. Allen, 96-0138 (La.App. 4 Cir. 12/27/96), 686 So.2d 1017, police observed three brothers, Kenner, Ennis and Roosevelt Allen, at one time or another, all engage in apparent street drug sales. On one occasion Kenner reached into the trunk of a vehicle, later determined to belong to him, and retrieved small objects, which he then handed to Roosevelt. After the brothers were arrested, a search of the vehicle revealed heroin, cocaine, marijuana and syringes. Roosevelt and Ennis were tried and found guilty of possession of the cocaine found in Kenner’s vehicle. On appeal, this court held that the evidence was sufficient to establish that Roosevelt and Ennis were “runners” for their brother, Kenner, and both had dominion and control — constructive possession — over the cocaine found in Kenner’s vehicle.
In State v. Booth, 98-2065 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, a confidential informant purchased drugs from a female in the doorway of an apartment. A drug-detecting canine subsequently found twenty-seven foil packages of heroin inside of a wall-mounted heater in the apartment. Five additional foil packages of heroin, along with a syringe, were also found in a large felt hat on top of a curio cabinet. Both the heater and curio cabinet were located in the living room, where the defendant, a male, was seated when police entered. The defendant lived in the apartment, and the female was his fiancée. He claimed he did not know anything about the drugs, and said his fiancée did not live there, but was staying there only that one particular night. However, a letter was found in the apartment addressed to both. This court found the evidence sufficient to establish the defendant’s dominion and control over the heroin found in the apartment.

Hodge, 781 So.2d at 581-82.

[ inThe fourth circuit then found the evidence was insufficient to sustain the defendant’s conviction for possession of marijuana found in the pockets of her husband’s jacket, the jacket in the living area, or that found in the white female’s bag. The court went on to find the defendant had to have known her husband was selling marijuana from the residence. The court then stated the following:

However, it would be too speculative for any rational trier of fact to conclude that she knew of, or had dominion and control over, the marijuana inside of the unplugged dryer located in the cluttered backyard. The one-pound of marijuana found in the dryer was in a large bag, apparently in bulk form. There was no indication it had been packaged for retail sale in plastic bags such as those found in the kitchen. If the marijuana had been packaged, it might suggest that it had been brought inside of the building at some point, and would perhaps indicate that Mrs. Hodge would have known about it. As it is, if Roger Hodge was selling the marijuana, he could have recently brought this bag of marijuana onto the property and deposited it in the dryer, planning to package it later, all unbeknownst to Mrs. Hodge. This is all speculation. However, so is the conclusion that Allison Hodge had knowledge of and exercised dominion and control over the marijuana. “[T]he [sic] jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.”

Id. at 582 (quoting State v. Tong, 609 So.2d 822, 825 (La.1992)).

Here, Pittman was not at the residence when police entered the residence with a search warrant and found marijuana. Thus, he was not in actual possession of the marijuana found in the bedrooms by police. Factors to be considered in determining whether Pittman exercised dominion and control sufficient to constitute constructive possession of the marijuana include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs.

| nKnowledge

In its closing argument, the State maintained the marijuana found in Pittman’s house was there before the UPS package was delivered to his house. Yet, the State presented no evidence regarding when the marijuana found in the bedrooms of the residence was placed there.

The only evidence the State offered to prove Pittman knew the marijuana was in the bedrooms was Officer Judice’s testimony regarding Pittman’s statement during his arrest that there were no drugs at the residence. Pittman’s statement can be interpreted in several ways, including, but not limited to: (1) the marijuana was located in the bedrooms of the residence prior to Pittman’s reporting to work offshore, and he was aware of its presence; (2) he knew someone was delivering or bringing marijuana to his residence either at his direction or that of someone else’s, and it was brought to the residence and placed in the bedrooms while he was working offshore; or, (3) he had no knowledge the marijuana was in the bedrooms of his residence until after it had been seized by police, and the occupants of the residence were arrested. Thus, the State’s proof of this factor is unconvincing.

Relationship with Person in Possession

No one at the residence, when the search warrant was executed, was in actual possession of the marijuana. Additionally, the State did not put on testimony or evidence proving Pittman had a relationship with Fuselier, Butler, or Walker, whether or not these individuals lived at the residence, and if they did not, how long they had been at the residence on August 23, 2007.

| ^Access to Area & Proximity

Pittman had access to the area where drugs were found when he was at the residence. Nevertheless, it was stipulated that Pittman was working offshore August 22 through 24, 2007, and there was no evidence presented regarding when the marijuana was placed in the bedrooms of the residence or by whom.

Recent Use

There was no testimony regarding Pittman’s recent drug use.

Based on these considerations, the State failed to prove beyond a reasonable doubt that Pittman had constructive possession of the marijuana found in the bedrooms of his residence. This conclusion is supported by the rulings expressed in Martin, 694 So.2d 1209 and in Hodge, 781 So.2d 575, discussed above.

RESPONSIVE VERDICTS

“[W]hen a court finds that the evidence was not sufficient to support a verdict for the crime charged, the discharge of the defendant is neither necessary nor proper when the evidence supports a conviction of a lesser and included offense which is a legislatively authorized responsive verdict.” State v. Wright, 36,635, p. 12 (La.App. 2 Cir. 3/7/03), 840 So.2d 1271,1279.

State v. Hunter, 09-1487, p. 25 (La.App. 3 Cir. 6/2/10), 41 So.3d 546, 562.

The responsive verdicts for possession of marijuana with intent to distribute are attempted possession of marijuana with intent to distribute, possession of marijuana, attempted possession of marijuana, and not guilty. La.Code Crim.P. art. 814(49).

Because the State cannot prove Pittman constructively possessed the marijuana found in the UPS package and in the bedrooms of his residence, the 113State cannot prove Pittman committed any of the responsive verdicts. Therefore, Pittman’s conviction and sentence are reversed.

V.

CONCLUSION

For the reasons expressed above, David F. Pittman’s conviction and sentence are reversed, and the entry of a judgment of acquittal is ordered.

REVERSED. JUDGMENT OF ACQUITTAL ORDERED.

      . Because we reverse Pittman’s conviction, we do not consider whether Pittman’s sentence was excessive.

      . In its closing argument, the State asserted Fuselier was Pittman's girlfriend, but there was no testimony presented to support this claim.


author: DECUIR, Judge.

text:
    STATE in the Interest of K.R., K.R., M.R.
    No. 11-1376.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Annette Roach, Fifteenth Judicial District Public Defenders Office, Lafayette, LA, for Appellant, T.M.A.
    Diane E. Cote, Attorney at Law, Lafayette, LA, for Appellee, State of Louisiana, Department of Children and Family Services.
    Nicole M. Guidry, Attorney at Law, Ab-beville, LA, for Appellees, K.R., K.R., M.R.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

h Counsel for T.M.A. filed a brief alleging there are no non-frivolous issues to be raised on appeal and a motion to withdraw as counsel of record in this termination of parental rights case.

FACTS

The facts before us are unfortunate and sadly far too common. T.M.A. has a substance abuse problem and has essentially abandoned K.R., K.R., and M.R. to the care of the state. With T.M.A. having made no substantial progress in her case plan, the State filed to terminate her parental rights and make the children available for adoption. The trial judge granted the State’s request after previously terminating the parental rights of the father. This appeal ensued.

Initially, this court believing the appeal to be untimely, directed T.M.A. to show cause, by brief only, why the appeal should not be dismissed. Counsel for T.M.A. complied with our request and showed that the trial court improperly found the children available for adoption in the proceeding terminating the father’s parental rights. T.M.A.’s rights had not been terminated at the time, and she was not given notice of the hearing. Accordingly, the rule to show cause was recalled and the appeal allowed to proceed.

Counsel for T.M.A., counsel for the children, and the • State all request that we conduct an Anders type review of the record and grant T.M.A. counsel’s request to withdraw should our review warrant it.

DISCUSSION

Counsel directs our attention to State ex rel. D.A.G., 05-1806 (La.App. 1 Cir. 5/5/06), 985 So.2d 216, wherein, the court orders the appointment of new counsel and the filing of an Anders brief in a case involving termination of parental rights. 12In addition, counsel references an unpublished opinion of this court which grants similar relief without comment. We are persuaded by the arguments of counsel and the court in State ex rel. DA.G, that the filing of a brief and motion to withdraw in conformity with the requirements of Anders and its progeny best protect the interests of the parents, children, State, and the court in cases involving the termination of parental rights.

STANDARD OF REVIEW

A parent’s right to the care, custody, and management of his or her children is a “fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. Q.P., 94-609, p. 4 (La.App. 3 Cir. 11/2/94), 649 So.2d 512, 515. The evidentiary standard governing termination cases requires the State to present proof by clear and convincing evidence of each element of the specific grounds for termination as specified in La. Ch.Code art. 1015 before a court may proceed with terminating a parental relationship. State ex rel. D.H., 06-1041 (La.App. 3 Cir. 3/7/07), 953 So.2d 992, vnit denied, 07-673 (La.4/27/07), 955 So.2d 698. An appellate court must review the record for manifest error in determining whether the lower court properly applied the clear and convincing evidentiary standard. State in the Interest of J.K., 97-336 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154.

Counsel for T.M.A. filed a brief assigning no errors and including a motion to withdraw. Counsel’s motion was referred to the merits. T.M.A. has filed no pro se briefs in this court. We have thoroughly reviewed the record and are convinced that the evidence supports the findings of the trial court.

IsDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Counsel for T.M.A.’s request to withdraw is granted.

AFFIRMED AND MOTION TO WITHDRAW GRANTED.


author: CARLSON, Presiding Justice,

text:
    David Earl KNIGHT v. Benny R. KNIGHT. Brian K. Knight v. Benny R. Knight.
    Nos. 2010-CA-01084-SCT, 2010-CA-01086-SCT.
    Supreme Court of Mississippi.
    Jan. 19, 2012.
    Rehearing Denied April 26, 2012.
    Marcie Fyke Baria, St. Louis, and David Wayne Baria, attorneys for appellant.
    H. Wesley Williams, III, James Henderson Hall and James H. Colmer, Jr., Pascaqoula, attorneys for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The issue before us today is whether the statute of limitations is tolled while a case is pending, where that case is dismissed without prejudice for want of prosecution. We also are called upon to determine the validity of a local court rule which has never been published or approved by this Court. The trial court dismissed the refiling of this case due to failure to comply with the local rule, and when it was refiled found the statute of limitations to have been tolled. We find the local rule to be error, but also find that the statute of limitations was not tolled, since the case was dismissed without prejudice for want of prosecution. We thus affirm the judgment of the trial court on alternate grounds.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In the Circuit Court of Jackson County, Brian Knight and David Knight each filed separate complaints against Benny Knight, their uncle, alleging assault and battery occurring on August 31, 1999. The trial court dismissed these consolidated cases without prejudice for want of prosecution nearly ten years later. Neither plaintiff appealed this order of dismissal. On March 19, 2010, Brian Knight and David Knight refiled separate actions, but the trial court granted Benny’s motions to dismiss both cases, finding that the one-year statute of limitations had run for both actions.

¶ 3. The consolidated appeals before this Court concern the trial court’s order that dismissed the 2010 litigation; however, the issue presented on appeal requires a discussion of the proceedings relating to the 1999 litigation, which the trial court dismissed without prejudice for failure to prosecute on March 11, 2009.

¶ 4. On August 31, 1999, an altercation occurred among Brian, David, and Benny. On September 10, 1999, David filed his complaint against Benny, and on September 13, 1999, Brian filed his complaint against Benny. Thereafter, the circuit clerk filed several motions for want of prosecution in both cases. On November 3, 2006, Brian’s and David’s cases were consolidated. On January 12, 2009, the circuit clerk moved to dismiss the consolidated cases for want of prosecution, reciting that the last action taken was on October 3, 2007. On March 11, 2009, the trial court entered an order dismissing both cases without prejudice for want of prosecution.

¶ 5. Brian and David did not appeal the dismissal of these cases without prejudice for want of prosecution. However, on July 30, 2009, the plaintiffs’ counsel filed a motion to reinstate and for trial setting. The trial court heard arguments on these motions, and on October 12, 2009, entered an order denying the plaintiffs’ motion to reinstate and for trial setting. The plaintiffs both submitted affidavits that they were not even aware of the March 11, 2009, dismissal until their attorney informed them in October, 2009. Nor were they aware of the motion to reinstate and for trial setting filed by their counsel.

¶ 6. At this point, the plaintiffs retained new counsel, David Baria and Marcie Fyke Baria. Mr. Baria later conceded that “pri- or counsel may not have done everything in his power to get the case tried.” On October 19, 2009, according to the affidavits of both plaintiffs, David and Brian learned from their new counsel, the Barias, that the motion to reinstate and for trial setting had been denied on October 12, 2009, as their prior counsel had neglected to advise them of that fact. The plaintiffs then filed a motion to reconsider the order dismissing the case on October 19, 2009, which the trial court denied on December 16, 2009.

¶ 7. On or about February 24, 2010, counsel for both Brian and David forwarded by U.S. Mail a complaint on behalf of both Brian and David to the circuit clerk. On March 11, 2010, this complaint was returned to counsel for Brian and David, and at this time, the clerk’s office notified counsel for the plaintiffs that, per local rule, “[b]y [1993] Order of the Court separate complaints must be filed for each plaintiff in all civil actions with exception of husband and wife.”

¶ 8. On March 19, 2010, separately, Brian refiled his complaint, and David refiled his complaint. On April 22, 2010, Benny filed motions to dismiss, asserting the statute of limitations as an affirmative defense to both Brian’s and David’s complaints.

¶ 9. The trial court heard arguments on Benny’s motions to dismiss these cases on June 10, 2010, and June 15, 2010. Brian and David argued that the filing of the complaints in 1999 tolled the running of the statute of limitations and, therefore, they were entitled to file suit within the time remaining under the statute of limitations. However, Brian and David contended that the 1993 order of the Circuit Court of Jackson County, requiring that the plaintiffs file separate complaints, was unenforceable because this Court had not recognized its legitimacy pursuant to Mississippi Rule of Civil Procedure 83(b).

¶ 10. In response, counsel for Benny argued that the statute of limitations should not toll for ten years and permit a plaintiff to refile a lawsuit after its dismissal for failure to prosecute, even if dismissed without prejudice. In other words, Benny contended that the trial court should carve out an exception to the extent that the statute of limitations tolls and allows a plaintiff to refile his or her case after it has been dismissed for failure to prosecute. Benny also noted that he had been prejudiced by the plaintiffs’ failure to diligently pursue their case, and by the deaths of several witnesses.

¶ 11. Having considered these arguments, the trial court avoided the tolling issue and reasoned that the 1993 order was legitimate and thus barred the plaintiffs’ suits.

12. The trial court subsequently entered an order dismissing Brian’s case with prejudice on June 15, 2010, and an order dismissing David’s case with prejudice on June 16, 2010. Aggrieved, on July 2, 2010, David and Brian filed separate notice of appeals to this Court, and these cases have been consolidated upon appeal.

DISCUSSION

¶ 13. On appeal, Brian and David argue that the trial court erred by relying on the 1993 order when dismissing their complaints as time-barred by the statute of limitations. In making this argument, Brian and David also contend that the statute of limitations had been tolled for ten years since the filing of their original complaints for the 1999 litigation, which the trial court dismissed without prejudice for failure to prosecute.

¶ 14. For clarity’s sake, we restate the two issues before this Court: (1) whether the trial court erred by relying on a local rule not approved by this Court and (2) whether the filing of the complaint for the 1999 litigation tolled the statute of limitations, permitting David and Brian to refile their complaints after having been dismissed without prejudice for want of prosecution.

¶ 15. Assuming that the limitations period was tolled during the pendency of the 1999 litigation, as the plaintiffs contend, February 26, 2010, represents the expiration of the one-year statute of limitations on the Brian Knight claim. The statute of limitations on the David Knight claim would have expired on March 1, 2010.

¶ 16. “[Application of a statute of limitation is a question of law to which a de novo standard also applies.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001). “We approach this question with a clean slate, for our standard of review is de novo in passing on questions of law.” Watts v. Pennington, 598 So.2d 1308, 1311 (Miss. 1992) (citing Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)).

I. WHETHER THE TRIAL COURT ERRED BY RELYING ON A 1993 LOCAL COURT ORDER NOT APPROVED BY THIS COURT.

¶ 17. Brian and David contend that the 1993 order—requiring plaintiffs to file separate complaints—is unenforceable under Mississippi Rule of Civil Procedure 83(b): “All such local rules and uniform rules adopted before being effective must be filed in the Supreme Court of Mississippi for approval.” Miss. R. Civ. P. 83(b). “No uniform rules or local rules of any circuit ... court ... shall be effective unless approved by the Supreme Court.” Miss. R. Civ. P. 83 cmt. See also Koerner v. Crittenden, 635 So.2d 833, 834-36 (Miss. 1994).

¶ 18. Brian and David argue further that the 1993 order contravenes Mississippi Rule of Civil Procedure 20, allowing the filing of a single complaint on behalf of parties whose claims arise out of the same transaction or occurrence and have common questions of law or fact.

¶ 19. In response, Benny concedes that the clerk improperly refused to accept Brian’s and David’s initial filing of a single complaint if the 1993 order had not been submitted to this Court.

¶ 20. The trial court erred by dismissing Brian’s and David’s single complaint listing both of them as plaintiffs. It would be unjust to hold that a local order which was never published was binding on the plaintiffs. Mississippi Rule of Civil Procedure 83 clearly requires that local court rules “must” be submitted to this Court for approval. The trial court reasoned that the 1993 order had “gone all the way to [the] Supreme Court. Now as I understand it, Mr. Baria, they’ve not approved it, but nor have they rejected it.” However, in Koerner, this Court reversed a trial court’s grant of a defendant’s motion for summary judgment because the motion was based in part upon a local rule that this Court had not approved. Koerner, 635 So.2d at 836. This Court also noted that “there [was] no evidence that the local rule was even filed with this Court and disseminated to all members of the Mississippi bar pursuant to M.R.C.P. 83.” Id.

¶ 21. Based on Koemer and Mississippi Rule of Civil Procedure 83, it is apparent that the trial court erred by relying on an unpublished local rule not approved by this Court to dismiss Brian and David’s complaint.

II. WHETHER THE 1999 COMPLAINT TOLLED THE STATUTE OF LIMITATIONS.

¶22. While Benny concedes that the trial court erred if it indeed followed a local rule never presented for approval by this Court, he argues that filing a complaint should not toll the statute of limitations when a complaint is dismissed without prejudice for failure to prosecute.

¶ 23. The plaintiffs cite Jackpot Mississippi Riverboat, Inc. v. Smith as an example of this Court applying tolling to a case previously dismissed for want of prosecution. Jackpot, 874 So.2d 959, 961 (Miss. 2004). In Jackpot, when examining the dates relevant to a determination of whether the statute of limitations had run on plaintiffs case, this Court stated:

Smith and Richardson filed their “first” complaint for malicious prosecution on July 7, 1995, a little more than two months shy of the expiration of the statute of limitations. Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss.1996) (holding that the statute of limitations is tolled during a malicious prosecution suit when a timely complaint is filed).
On April 7, 2000, Smith and Richardson’s first complaint was dismissed for want of prosecution. On June 21, 2000, the one-year statute of limitation expired on this claim. Hence, when Smith and Richardson filed the “second” malicious prosecution complaint on March 30, 2001, the action was time barred.

Jackpot, 874 So.2d at 961. This Court noted that the plaintiff had two months remaining on the statute of limitations after the initial suit had been dismissed for failure to prosecute. Id. Under the facts at play in Jackpot, the two months remaining on the statute of limitations could have existed only if this Court also had found that the statute of limitations had been tolled while the litigation was pending. Id.

¶ 24. Moreover, in Marshall v. Burger King, 2 So.3d 702 (Miss.Ct.App.2008), the Court of Appeals found the statute of limitations was tolled, despite a dismissal without prejudice:

It is clear from the record that Marshall waited too long to file his motion to reinstate the case. Marshall’s alleged injury arose on April 2, 2002. He did not file his original complaint until April 1, 2005, two days before the statute of limitations was set to expire. The filing of Marshall’s complaint tolled the statute of limitations until the trial court dismissed the case on November 15, 2006. Therefore, Marshall had until November 17, 2006, to reinstate or, alternatively, re-file his case.

Marshall, 2 So.3d at 708. This Court and the Court of Appeals have thus both recognized that filing a complaint tolls the statute of limitations and permits a plaintiff to refile his or her case if this case is dismissed without prejudice and time remains on the statute of limitations. But we also have made clear that, in those cases in which the plaintiff requests a voluntary dismissal resulting in a court-ordered dismissal without prejudice, there is no tolling. See, e.g., Marshall v. Kansas City So. R.R., 7 So.3d 210, 213-14 (Miss.2009).

¶ 25. The parties cite several cases in which we have addressed tolling upon the filing of a complaint. Clark Sand Co., Inc. v. Kelly, 60 So.3d 149 (Miss.2011); Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 839 (Miss.2010); Hill v. Ramsey, 3 So.3d 120, 123 (Miss.2009); Price v. Clark, 21 So.3d 509, 521 (Miss.2009); Owens v. Mai, 891 So.2d 220, 223 (Miss.2005); Watters v. Stripling, 675 So.2d 1242, 1244 (Miss. 1996), Erby v. Cox, 654 So.2d 503, 505 (Miss.1995); W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 9 (1926); and Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609 (1856). However, none of these cases addresses subsequent dismissal for want of prosecution.

¶ 26. Benny also cites persuasive precedent in which other courts have found no tolling of the limitations period during the pendency of the original action when the original action was dismissed without prejudice for want of prosecution. Mississippi courts have never addressed this question per se.

¶ 27. Specifically, Benny cites, among others, King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982), and Sluka v. Herman, 229 Neb. 200, 425 N.W.2d 891 (1988). In King, the New Mexico Supreme Court held that “[ajfter a consideration of the purpose and policies underlying Rule 41, we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed without prejudice because of a failure to prosecute, the interruption is considered as never having occurred.” King, 646 P.2d at 1244-45. The New Mexico Supreme Court reasoned:

A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. Rule 41(e) specifically addresses this concern. Holding that a Rule 41(b) dismissal without prejudice tolls the statute for the time the case was pending could conceivably extend the time for bringing the suit indefinitely; the plaintiff could continuously refile but never act to bring the case to its conclusion. Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action ....

King, 646 P.2d at 1245.

¶28. In Sluka, the Supreme Court of Nebraska reached a similar result in a case where the lawsuit was dismissed for want of prosecution and the exact same case was refiled. Sluka, 425 N.W.2d at 892. The Nebraska Supreme Court stated:

We know of no rule in Nebraska which declares that the running of a statute of limitations is tolled during the pendency of an action so as to permit a second filing more than, in this case, [four] years after the trespass.... To interpret the law in that fashion would create a situation in which a plaintiff could file, have dismissed, refile, and have dismissed, an action, ad infinitum.

Id.

¶ 29. Other jurisdictions similarly have found that the statute does not toll where cases are dismissed without prejudice for want of prosecution. See Suppeland v. Nilz, 128 Ariz. 48, 628 P.2d 832, 835 (Ariz. Ct.App.1980) (holding that “when an action is dismissed without prejudice because of a failure to prosecute, the interruption [in the running of the statute] is considered as never having occurred.”); Shaw v. Corcoran, 570 S.W.2d 96, 98 (Tex.App.1978) (holding that “[although the filing of suit and service of citation interrupt the running of the statute, its dismissal for want of prosecution will have the same effect as if the suit had never been filed.”); Owens v. Weingarten’s, 442 F.Supp. 497, 498 (W.D.La.1977) (applying Louisiana law) (holding that “[f]iling of suit ordinarily interrupts the running of prescription. But, when the action is dismissed without prejudice because of plaintiffs failure to prosecute, the interruption [in the running of the statute] is considered as never having occurred.”); Barrentine v. Vulcan Materials Co., 216 So.2d 59, 60-61 (Fla.Ct.App. 1968) (holding that tolling of the statute of limitations was not tolled during the pen-dency of a claim dismissed without prejudice for want of prosecution).

¶ 30. Rule of Civil Procedure 41(d)(1) requires dismissal without prejudice after a successful clerk’s motion to dismiss for want of prosecution. Allowing the statute to toll in such a situation presents an opportunity for abuse of process, potentially allowing cases to be dismissed and refilled for a period of years or even decades. This would reward plaintiffs who sleep on their rights and would lead to unjust results. Therefore, we explicitly hold today that when an action is dismissed without prejudice for failure to prosecute, the statute of limitations does not toll, and the parties are left in the same position as if they had never filed the action. To the extent the language in Jackpot implies that the statute does toll in such cases, Jackpot is hereby overruled on this issue. Jackpot, 874 So.2d at 961. Here, the statute of limitations on the claims of Brian and David is treated as having run one year after their August 31, 1999, altercation. Thus, we affirm the trial court on alternate grounds.

¶ 31. This holding, however, does not mean that all cases dismissed without prejudice after the statute of limitations has expired cannot be refiled. Some will be revived by the savings statute, equitable tolling, or otherwise. Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations.

CONCLUSION

¶ 32. The trial court erred by relying on the 1993 “local rule” requiring the plaintiffs to file separate complaints. This Court has not approved this “local rule.” Nevertheless, we hold that the filing of a complaint does not toll the statute of limitations if the complaint is later dismissed without prejudice for want of prosecution. Accordingly, we affirm the trial court’s dismissal of the cases with prejudice, although for reasons different than those articulated by the trial judge. We have stated that “[a]n appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the [correct] result for the wrong reasons.” Methodist Hosp. v. Richardson, 909 So.2d 1066, 1070 (Miss.2005) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)).

¶ 33. AFFIRMED.

WALLER, C.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.