author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Augustine CAVAZOS and Celeste Schmitt.
    No. 2011-KA-0733.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Appellant/Augustine Cavazos.
    Joseph C. Bartels, Victoria L. Bartels, Law Offices of Joseph C. Bartels, New Orleans, LA, for Appellant/Celeste Schmitt.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| T Defendants, Augustine Cavazos and Celeste Schmitt, appeal their convictions and sentences on charges stemming from Cavazos’ sexual molestation of Schmitt’s eight-year old daughter, R.S. For the following reasons, the convictions and sentences of both defendants are affirmed.

STATEMENT OF THE CASE

The State filed a bill of information charging Augustine Cavazos (Cavazos/de-fendant), with sexual battery of an eight-year old female, R.S. (count 1), a violation of La. R.S. 14:43.1 and with failure to register as a sex offender (count 2), a violation of La. R.S. 15:542(G)(2). The bill of information charged that the alleged offenses occurred during the period of December 30, 2007 through December 30, 2009.

At his arraignment, Cavazos entered a plea of not guilty. The trial court found probable cause and bound Cavazos over for trial.

The State filed a notice of intent to offer evidence of another incident involving sexually assaultive behavior pursuant to La. C.E. art. 412.2. The incident was a sexual battery by the defendant upon a juvenile female victim in Florida in 1998, resulting in his conviction in 2000 for lewd and lascivious act/sexual battery |2on a child under sixteen years of age (the basis for his registration as a sex offender). Defendant filed a motion to sever the offenses and a motion to sever his case from that of his co-defendant, Celeste Schmitt. Both severance motions were denied.

Cavazo proceeded to trial, after which the jury returned a verdict of guilty on both counts. The court sentenced him to thirty-five years at hard labor, without benefits, with credit for time served, on count 1 and to ten years at hard labor, without benefits, with credit for time served on count 2. The sentences are to be served concurrently.

Cavazos filed a motion for new trial and a motion for post judgment verdict of acquittal, which were denied. The State multiple billed the defendant as a second felony offender, pursuant to his 2000 Florida conviction for sexual battery. Following a hearing on the multiple bill, the court adjudged Cavazos a second felony offender. The trial court vacated his prior sentence on the sexual battery count (count 1) and resentenced him as a second offender to sixty-five years at hard labor without benefits, to be served concurrently with the sentence on the failure to register as a sex offender count (count 2).

In separate counts of the bill of information, Celeste Schmitt (Schmitt/defendant) was charged with being an accessory to sexual battery (count 3), a violation of La. R.S. 14:25 and with cruelty to a juvenile (count 4), a violation of La. R.S. 14:93. At her arraignment, Schmitt entered a plea of not guilty. Following a hearing, the trial court found probable cause for both counts and bound Schmitt over for trial.

| ¡¡Schmitt waived her right to a jury and elected to be tried by the judge. At the conclusion of the bench trial, Schmitt was found guilty on both counts. Schmitt filed motions for new trial and post judgment verdict of acquittal, which were denied. Schmitt was sentenced on each count to five years’ incarceration, with four years suspended, and placed on four years active probation upon the completion of one year incarceration in Orleans Parish Prison, with the sentences to be served concurrently.

STATEMENT OF FACT

Defendant, Schmitt, and her co-defendant/live-in boyfriend, Cavazos (“Cava-zos”), were convicted on charges stemming from Cavazos’ sexual molestation of Schmitt’s eight-year old daughter, R.S.

Cavazos, also known as “Tito”, lived on Bodinger Street with Schmitt, the victim, and the victim’s sister, M.S., from December 2007 to December 2009. The victim testified that on more than one occasion when she was sleeping, “Tito” would come into her room and touch her chest and “vagiva”. She further testified that the defendant got up early and left for work hours before her mother and sister got up, and that it was during this time frame that the defendant assaulted her.

At first, she did not tell anyone about “Tito’s” behavior because she was scared, feared no one would believe her, and knew that the revelation would make her mother sad. Ultimately, on December 30, 2009, while the victim and M.S., were visiting their father’s home, she gave M.S. a note which indicated that the defendant, Cava-zos, had molested her. The handwritten note reflected that he “rated” her. She begged M.S. not to tell their parents; however, M.S. told their |4father, he confronted the victim, and then notified Schmitt, who denied she had any knowledge of Cavazos’ background.

The following day, the family met with the victim’s pediatrician for an examination. The victim told her pediatrician that “Tito” touched her, whereupon the physician advised the family to report the crime to the police. The police instructed the family to go to the Child Advocacy Center where they met with Detective Merricks, who was assigned to the NOPD Sex Crimes Child Abuse Division. The CAC staff interviewed the victim alone while Detective Merricks monitored the session via video camera. During her forensic interview at the CAC, the victim said she could not remember when the incident occurred. Following the interview, the detective informed the family that the victim did not give the staff any information; consequently, he could not arrest “Tito.” When the Schmitt returned to her home, after staying in a hotel that night with her mother, she told Cavazos to leave, which he did, but he returned on January 2, 2010, telling Schmitt that he had no money and nowhere to go.

On January 5, 2010, during the victim’s medical interview, the CAC doctor was able to elicit information from the victim. Specifically, Dr. Atzemis, a child abuse pediatrician and professor of pediatrics, took an incident history from her during which the victim explained that “Tito” had touched her in a bad way and hurt her. The victim said she tried to move but “Tito” moved her back. Using a gender neutral diagram, the victim circled the genital area where “Tito” had hurt her. Dr. Atzemis’ review of this case led her to conclude that the victim had suffered sexual abuse.

Based upon this information, Detective Merricks investigated Cavazos’ background and learned that he was a sex offender, who had been arrested and [ ¡^convicted in Florida for sexually assaulting a twelve year old girl, S.C. Detective Merricks prepared an application for Ca-vazos’ arrest.

S.C. testified at trial that when she was twelve years old and living in Florida in September 1998, she was victimized by Cavazos. She related for the jury that at that time, she and her mother lived in the apartment above the one occupied by Ca-vazos and his son; she babysat for Cava-zos on occasion. While she was at home alone, the defendant went to her apartment and asked to use the telephone. After the call, Cavazos entered the living room, and he asked her if she had ever had an orgasm. When she replied negatively, he asked her if she wanted to have one. Again, she said “no” but the defendant removed her shorts, reached into her pants, and began to digitally penetrate her vagina. She cried and struggled with Ca-vazos; he carried her to her bedroom and placed her on the bed. She kicked the defendant, escaping his hold, and ran to the front door where she ordered him out of the apartment. She reported the incident to her mother, who contacted the police. Cavazos plead guilty to sexually battering her. She said the battery left her unable to trust people.

Detective Raymond Hughes of the sex crime unit explained that his job entailed conducting sex offender registrations in Orleans Parish and investigating and monitoring non-compliant offenders. Hughes stated that he knew Cavazos as a registered sex offender because he met with him. Hughes obtained residential, employment, and vehicle information from Cavazos. Hughes identified Cavazos’ sexual offender registration form dated December 18, 2007, relative to Cavazos’ sex offense conviction in Florida. The form listed 1915 Bodinger Street as Cavazos’ residence, and Schmitt as the person who occupied the residence with him. The form did not list any children in the household. Hughes testified that |fiSchmitt accompanied Cavazos to his December 2007 registration and subsequently delivered a $60.00 money order as payment of his annual registration fee.

Continuing, Hughes identified Cavazos’ sexual offender registration form dated December 22, 2008, which listed his residence as 1915 Bodinger Street "with Schmitt listed as an occupant; however, Cavazos did not disclose that two children also occupied the residence. During the course of the registration, Hughes reviewed the written registration notification requirements with Cavazos, after which Cavazos signed and initialed the requirements, acknowledging that he was aware of and understood his registration duties. One of the registration duties initialed by Cavazos provided: “If you move to a different parish or state, you must register your change of address with the sheriff and/or the police department where you are currently registered in person within three days. Also within three days, you must register your new address with the sheriff or the police department that you move to. Also federal laws may apply to offenders moving to another state.”

On January 7, 2010, Hughes accompanied the U.S. Marshals Service Fugitive Task Force to 1915 Bodinger Street conducting a warrant check for Cavazos in relation to this case. Although Cavazos was not at the residence, Schmitt was. From speaking with her, Hughes learned that Cavazos no longer lived at the residence, and that she drove Cavazos to the Greyhound Bus Station on January 6, 2010 where he boarded a bus bound for Kings-ville, Texas. Further, she said that she informed Cavazos that he was no longer allowed to return to the Bodinger Street residence.

Hughes testified that he should have been advised of Cavazos’ move no later than January 10, 2010. Consequently, Hughes obtained an arrest warrant for 17Cavazos on January 11, 2010, for Cava-zos’ failure to comply with the required notification of change of address. Even after issuance of the warrant, Hughes did not receive change of address notification from Cavazos.

Sgt. Emelda Toni Blanco testified that she was assigned to the NOPD Sex Crimes Unit at the time of the investigation into this crime. Her assignment required her to do compliance checks on sexual offenders. She said she performed a compliance check on defendant at 1915 Bodinger Street on January 16, 2008. Although Blanco did not have any conversations with Schmitt, Blanco did encounter Schmitt when she answered Blanco’s knock on the front door of the residence. Cavazos would exit the residence and speak with Blanco on the porch. Blanco estimated that from December 2007 until late 2009 she visited Cavazos’ residence on Bodinger Street four times.

Schmitt testified that she was aware that Cavazos had a conviction for possession of marijuana but denied knowledge of a sexual assault charge. She admitted obtaining a money order on Cavazos’ behalf in the amount of $60.00 made payable to the City of New Orleans. She believed it was in payment for a fíne or fee. She stated that had she known of the sex offense conviction, she would never have allowed Cavazos near her children.

Under cross-examination by the State, Schmitt said Detective Hughes lied when he said he recognized her as the person who came to the police station and paid Cavazos’ registration fee. She also said that Sgt. Blanco lied when she testified that Schmitt answered the door several times when Blanco made compliance checks on Cavazos.

|sOn March 16, 2010, Merricks obtained an arrest warrant for Schmitt upon learning that she had accompanied Cavazos when he registered in New Orleans as a sex offender, and despite her denial, was aware of Cavazos’ criminal history.

ERRORS PATENT

A review of the record reveals one errors patent. The record indicates that the court sentenced Cavazos on the same day that his Motion for New Trial and Motion for Post-Judgment Verdict of Acquittal were denied. La.C.Cr.P. art. 873 states that if either of the foregoing motions is filed, sentence shall not be imposed until twenty-four hours after the motion is denied, unless the defendant expressly waives the delay or pleads guilty.

A defendant may implicitly waive the twenty-four hour delay by announcing his readiness for sentencing. State v. Agee, 2008-0203, p. 4 (La.App. 4 Cir. 7/23/08), 990 So.2d 95, 97.

In the present case, Cavazos waived the required twenty-four hour delay. When the judge asked if the defense had anything to say before sentencing, defense counsel responded: “Your Honor, there’s nothing to put on the record.” By virtue of the defense counsel’s statement, defendant announced his readiness for sentencing, which implicitly waived the waiting period. See State v. Robichaux, 2000-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458. Therefore, no remedial action is necessary.

AUGUSTINE CAVAZOS

ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, the defendant argues that the evidence is insufficient to convict him of sexual battery and failure to register as a sex offender. In particular, the defendant maintains that there is no forensic evidence 1 slinking him to the offenses, and further, that there is no evidence identifying him as the perpetrator.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis fails and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676, 680 (La.1984).

An appellate court must defer to the fact finder’s credibility choices and justifiable inferences of fact. State v. Lee, 94-2584, p. 7 (La.App. 4 Cir. 1/19/96), 668 So.2d 420, 426. It is not the function of this court to assess credibility or to reweigh the evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986). The credibility-determination is within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984); State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). The issue of credibility is reviewed on an abuse of discretion standard. State v. Cashen, 544 So.2d 1268 (La.App. 4 Cir.1989).

In order for the defendant’s conviction of sexual battery to be upheld, the record must establish that the State proved beyond a reasonable doubt all the essential elements of the offense. La. R.S. 14:43.1 defines sexual battery as the |1(lintentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender: (1) the touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or (2) the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

In the present case, the record reflects that the abuse began in December 2007 and ended in December 2009, when her parents learned of the sexual molestation. The victim testified that the defendant, “Tito”, would go into her room and touch her chest and “vagiva”, the part of the body where you pee. Additionally, using a gender neutral diagram, the victim circled the genital area and told Dr. At-zemis that “Tito” touched her in a bad way and hurt her. The record does not contain any evidence to refute the victim’s claim that the defendant sexually molested her or that he was the perpetrator.

As to the defendant’s failure to register, La. R.S. 15:542 outlines mandatory registration requirements for those categorized as sex offenders under La. R.S. 15:541 and child predators. One of the requirements is that whenever a sex offender changes his place of residence or vacates his current address of registration with the intent not to return, he must notify the local law enforcement agency of his new address within three days. La. R.S. 15:542.1.2. The defendant vacated the 1915 Bodinger Street residence on January 6, 2010, when Schmitt, his co-defendant, ordered him out of the house, put him on a bus to Kingsville, Texas, and told him never to return. Detective Hughes testified that the defendant had three days, or until January 10, 2010, to notify the NOPD of his new residence. As |nof January 11, 2010, the defendant had not notified the NOPD of his address, nor had he registered with the local authorities in Texas.

Based upon the testimony and evidence adduced at trial, the State produced evidence sufficient to support the defendant’s convictions.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment of error, the defendant argues that he was prejudiced by the trial court’s erroneous admission of other crimes evidence, specifically the evidence of his 1998 Florida conviction for the sexual battery of a twelve year old female. The defendant maintains that his prior conviction is dissimilar to the instant offense and occurred more than ten years earlier and at a different location.

Generally, evidence of other crimes committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126 (La.1973). Pursuant to La. C.E. art. 404(B)(1), evidence of other crimes, wrongs or acts are generally not admissible to prove character. The article, however, provides for exceptions to this rule, which include admission for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Another exception to the rule stated in La. C.E. art. 404(B)(1) is supplied by La. C.E. art. 412.2(A), which provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its | ^bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Accordingly, pursuant to La. C.E. art. 412.2(A), evidence of a prior sexual offense indicating that the defendant has a “lustful disposition toward children” is admissible if it is relevant and if the probative value of the evidence outweighs its prejudicial effect.

In this case, the State proved the defendant’s lustful disposition toward children through the testimony of the victim and S.C. Both were under the age of thirteen when they were molested by the defendant. Defendant lived with or in the same apartment building as both victims and occupied a position of trust with respect to both victims. The evidence of the defendant’s 1998 sexual battery was properly admitted by the trial judge. See State v. Scoggins, 2010-0869 (La.App. 4 Cir. 6/17/11), 70 So.3d 145. As for the defendant’s contention that the single instance of his assaultive behavior toward S.C. was so remote in time as to have no probative value, remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs it prejudicial effect. Scoggins, supra. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. Id., citing State v. Jackson, 625 So.2d 146 (La.1993).

In this case, the probative value of other crimes evidence admitted out weighted its prejudicial value.

ASSIGNMENT NUMBER 3

In his third assignment of error, the defendant argues that the trial court abused its discretion in denying his motion to sever his trial from that of his codefen-dant on the basis that his co-defendant might implicate him at trial. He also | ^argues that the court erred , in denying his motion to sever the trial of the two counts against him.

La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless the State elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984). A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Id. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Id.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Id. The defendant bears the burden of proof in such a motion. Mere unsupported allegations that defenses will be antagonistic are not sufficient to require a severance. Id. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La.1982).

Severance is not mandated where the thrust of the co-defendant’s testimony is not to implicate the defendant as the perpetrator of the crime, but simply to deny his own involvement. State v. Dickerson, 579 So.2d 472, 478 (La.App. 3 Cir.1991).

|uIn this ease, Cavazos’ and Schmitt’s defenses were not antagonistic. Schmitt did not directly or indirectly, implicate Cavazos in the sexual battery, nor did she make a statement to the police or testify that she witnessed Cavazos sexually assault her child. The trial court did not abuse its discretion in denying the defendant’s motion to sever his trial from that of his co-defendant.

As to the defendant’s arguing error in the denial of his motion to sever the trial of the two counts against him, La. C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

La.C.Cr.P. art. 495.1 provides that if the defendant or the State is prejudiced by the joinder of offenses in a bill of information or at trial, “the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.”

Generally, “there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime.” State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990). The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. State v. Lewis, 97-2854, p. 15 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1015.

In determining whether joinder of two or more offenses would result in prejudice, a court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges |15and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Lewis, 97-2854, 736 So.2d 1004 (citing State v. Guccione, 96-1049, p. 12 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1066.)

In this case, the facts of each offense were distinct, simple and uncomplicated. The investigating officers who testified documented and distinguished each offense. There is no indication that the state’s presenting evidence of the crimes together confused the jury. There is no suggestion that the defendant’s right to present a defense as to either count was hindered. Nor is there anything in the record to suggest the prosecution joined the offenses to show the defendant’s criminal propensity. There is no evidence of jury hostility caused by the joint trial of the two counts. The trial court was reasonable in finding that the defendant would not be unfairly prejudiced by the authorized joinder of offenses.

Given the facts in this case, the trial court did not abuse its discretion denying the defendant’s motion to sever the trial of the two counts against him.

ASSIGNMENT OF ERROR NUMBER 4

In this fourth assignment of error, the defendant complains that the trial court imposed an excessive sentence. In furtherance of his argument, the defendant contends the trial court failed to consider the La.C.Cr,P. art. 894.1 sentencing guidelines.

La. Const, art. I, § 20 explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is | ^within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2984 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 679. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979.

Louisiana jurisprudence dictates that the test to determine whether a sentence is excessive is two-pronged; the first prong is an examination of whether the trial court complied with La.C.Cr.P. art. 894.1. State v. Lobato, 603 So.2d 739, 751 (La.1992). Article 894.1 lists guidelines for courts during sentencing in criminal cases, such as taking aggravating or mitigating circumstances into consideration. La.C.Cr.P. art. 894.1. A trial court need not, however, specify each aggravating and/or mitigating factor as long as the record indicates that the 894.1 guidelines were adequately considered, because “the goal of the article is an articulation of a factual basis for the sentence rather than rigid or mechanical compliance with its provisions.” Lobato, 603 So.2d at 751 (citing State v. Lanclos, 419 So.2d 475 (La.1982)). Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has |17not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 477-78 (La.1982)

The defendant’s argument that the trial court failed to consider the La. C.Cr.P. art. 894.1 sentencing guidelines is disproved by the record.

Upon sentencing the defendant, the trial judge noted:

“... that the defendant is in need of correctional treatment. A lesser sentence would deprecate the seriousness of the defendant’s crime. The victim is a child ...”

Further, the judge said:

“Based on the facts from the trial in this case, you are a perpetual, constant sex offender of young children. The Court finds that the sentence would be the only sentence appropriate based on your perpetration and continued perpetration of sex offenses on children.”

The record indicates a factual basis for the sentence imposed.

The second prong of the examination of whether a sentence is excessive involves a consideration of the particular circumstances of the case and the background of the defendant. Lobato, 603 So.2d at 751.

In this case, the record shows that the defendant’s prior crime was committed in Florida in 1998, resulting in his conviction in 2000 for lewd and lascivious act/sexual battery on a child under sixteen years of age for which he received a seven year sentence.

The defendant’s present conviction is for sexual battery of an eight year old female, under La. R.S. 14:43.1. He was adjudged a second felony offender based on the Florida sexual battery conviction and re-sentenced to sixty-five years at hard labor without benefits to be served concurrently with the sentence on the failure to register count.

11sUnder the 2009 Habitual Offender Law (La. R.S. 15:529.1(A)(2)(a)), if the second felony and the prior felony are sex offenses, the mandatory sentencing range is between one-half of the longest term for the conviction and not more than twice the longest term prescribed for a first conviction, without benefit of probation, parole, or suspension of sentence. At the time of commission of the offense in this case, the sentencing range was not less than twenty-five years nor more than ninety-nine years. Consequently, the defendant was exposed to a sentencing range of between 49-1/2 to 198 years as a second offender. His sentence of sixty-five years is a little more than the minimum sentence but below the mid-range of sentencing and substantially less than the maximum he was exposed to. Given the facts of this case and the physical and psychological injury the defendant inflicted on the victim, plus his prior conviction for the same offense on an earlier defenseless victim, the sentence is not excessive.

A conviction for failure to register as a sex offender carries a sentence of imprisonment at hard labor for two to ten years, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:542.1.4. The defendant herein failed to note on his sex offender registration the fact that minor children lived in the residence he shared with Schmitt. Moreover, the evidence showed that the defendant moved to Texas after sexually assaulting the victim and failed to register as a sex offender in Texas.

After an evaluation of the weight of the evidence and the testimony as a whole, the maximum sentence imposed on the defendant for failing to register is not excessive.

| ASSIGNMENT OF ERROR NUMBER 5

In a final assignment of error, the defendant maintains that he did not receive effective assistance of counsel.

Ordinarily, an ineffective assistance claim is better addressed in an application for post-conviction relief filed in the trial court in which a full evidentiary hearing can be held. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient to permit a determination of counsel’s effectiveness at trial, the claims may be addressed on appeal. State v. Wessinger, 98-1234, p. 43 (La.5/28/99), 736 So.2d 162, 195; State v. McGee, 98-1508, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 338, 341.

In order to prevail, a defendant must establish that counsel’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, defendant has failed in his burden of proof.

The defendant cites six instances evidencing that his trial counsel was ineffective: counsel’s failure:

1. to object to the repeated references to the child’s disclosure of molestation.
2. to object to the questioning of Schmitt about defendant’s marijuana conviction in Florida.
3. to obtain and introduce into evidence R.S.’s initial forensic interview, where she made no disclosure of sexual abuse.
4. to question why there was no door on R.S.’s bedroom.
5. to notify the court that defendant was being sentenced under the wrong section of the sexual battery statute.
6. to object in the multiple bill hearing to the fact that the record from the Florida conviction does not indicate that defendant was advised of his constitutional rights.

lanAlthough the defendant urges the foregoing events as counsel errors, he does not state how any of the instances prejudiced him. This omission is enough for this Court to deny his claim as the defendant bears the burden of proof on this issue. Nevertheless, as to number 1, in a sex abuse case, it is not unusual to hear the complaint of abuse not only by the child victim, but also repeated by her parents, doctors and the investigating detective. The damning evidence at trial was that R.S. testified unequivocally that defendant molested her, not that her statement was repeated by other witnesses throughout the trial.

Number 2, defendant’s reference to Schmitt’s testimony about his supposed prior marijuana conviction is disingenuous. Schmitt testified that she was completely unaware of defendant’s prior Florida sexual battery conviction. She claimed that the only Florida conviction she was aware of was for possession of marijuana.

Number 3, counsel’s failure to obtain a copy of R.S.’s initial interview in which she made no disclosure of sexual abuse is not noteworthy. R.S. did not say that she was not sexually assaulted; she simply did not disclose any sexual abuse. Detective Merricks testified that the victim said she “did not remember” the incident during the initial interview. The initial interview did not exculpate the defendant.

Number 4, the defendant’s assertion of error in not determining why R.S.’s room had no door is unimportant. The presence or absence of a door to the victim’s room played no part in the defendant’s conviction.

As to number 5, the defendant was sentenced under the correct section of the sexual battery statute; nothing in the record indicates otherwise.

121Finally, number 6, the defendant tries to mount a collateral attack against the Florida conviction. His avenue of redress is to directly attack the conviction in the Florida court which convicted him. The trial court herein was required to determine that in fact there was a conviction but not to go behind the conviction and review it for documentary completeness. At the hearing on the multiple bill, the State introduced a cert pack containing a copy of the June 29, 2000, Uniform Commitment to Custody from the Florida Department of Corrections bearing case no. 98-1283CF proving that the defendant’s conviction for sexual battery of a twelve year old female.

The defendant has failed to prove he suffered any prejudice as a result of the alleged incidents of incompetence on the part of his counsel.

CELESTE SCHMITT

In a sole assignment of error, the defendant argues the insufficiency of the evidence to support her convictions for cruelty to a juvenile and accessory after the fact.

The standard of review for the sufficiency of the evidence to uphold a conviction has been set out in Cavazos’ first assignment of error. For the sake of judicial economy, that standard will not be restated here.

Cruelty to juveniles is set forth in La. R.S. 14:93(A), and it provides that cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect of a child whereby unjustifiable pain or suffering is caused to the child. The term “intentional” within the meaning of this statute, requires general criminal intent to cause a child unjustifiable pain and suffering. State v. Cortez, 96-859, p. 7 (La.App. 3 Cir. 12/18/96), 687 So.2d 515, 519, citing State v. Morrison, 582 So.2d 295 (La.App. 1 Cir.1991). Mistreatment as used in this statute means “abuse.” State v. Cortez, 687 So.2d at 519, citing State v. Comeaux, 319 So.2d 897, 899 (La.1975).

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12.

In this case, Schmitt exposed R.S. to sexual abuse at the hands of Cavazos by allowing him to live in her house when she knew or with the exercise of minimal diligence should have known he was a convicted sex offender. Schmitt’s denial of any knowledge of Cavazos’ prior sexually as-saultive behavior is contradicted by the record. Not only was Schmitt present with Cavazos when he registered with the NOPD sex crimes unit in December 2007, but she paid his registration fee with a money order she purchased for the purpose. Schmitt was present when compliance officers came to her house for periodic checks on Cavazos. Although Schmitt testified that she did not know what the money order was for and that she did not speak with compliance officers, the trial judge found her testimony incredible. It is within the trier of fact’s sound discretion to make this credibility determination.

Schmitt next argues that even if she did know of Cavazos’ prior sexual battery conviction, that fact would be insufficient to support a conviction for cruelty to a juvenile because her decision to live with Cava-zos was simply a “bad judgment call”, which “falls woefully short of equaling intentional mistreatment or criminal negligence and, without more, does not give rise to a charge under [La. l^R.S. 14:93].” She cites State v. Cortez, 96-859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515 for support; however, her reliance is misplaced.

The Third Circuit overturned Cortez’s conviction finding that the evidence established the injury was such that it did not require immediate treatment and was the type of injury that may not have been noticed or diagnosed by the average caregiver. The court also found it plausible that the motion perceived her son’s discomfort to be caused by his ear infection.

Unlike Cortez, the defendant here knowingly allowed a convicted child molester to live in her home for two years with her two young daughters that were under the age of thirteen. Such behavior represents a gross deviation below the standard of care expected to be maintained by a reasonably careful parent. That behavior caused harm upon a defenseless child. Thus, unlike Cortez, the facts of this case support a finding of general criminal intent; the facts also support a finding of criminal negligence.

La. R.S. 14:25 defines an accessory after the fact as “any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” In this case, Schmitt undeniably had reasonable grounds to believe that Cavazos committed a felony. She testified that Detective Merricks told her the results of R.S.’s interview with Dr. Atzemis, and that he was going to apply for an arrest warrant for Cavazos. In spite of this knowledge, Schmitt transported Cavazos to the bus station where he boarded a bus to Texas.

li^Viewing the evidence in the light most favorable to the prosecution, the State proved the essential elements of the crimes beyond a reasonable doubt. This assignment has no merit.

CONCLUSION

The convictions and sentences of both defendants are affirmed.

AFFIRMED

      . Cavazos pled guilty and was sentenced to seven years in prison.

      . The bill of information was amended on August 13, 2010, to change the charge to accessory after the fact.

      .When questioned whether that body part does something, the victim responded it is where she pees.

      . "It is clear that the young mother made a judgment call regarding the seriousness of the leg injury. Perhaps, she indeed exercised bad judgment. However, a bad judgment call falls woefully short of equaling intentional mistreatment or criminal negligence and, without more, does not give rise to a charge under this statute.” Id. at 522


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    NOLA 180, a Non-Profit Corporation, as Manager of Langston Hughes Academy Charter School v. HARRAH’S OPERATING COMPANY, INC. and Harrah’s Entertainment, Inc.
    No. 2012-CA-0072.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2012.

      Jack M. Alltmont, April L. Watson, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Robert H. Murphy, Peter B. Sloss, Jeffrey A. Raines, Murphy Rogers Sloss & Gambel, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

hNOLA 180, a non-profit corporation, operating as the manager of Langston Hughes Academy Charter School, appeals a judgment granting exceptions of no right of action and no cause of action filed by defendant, Jazz Casino Company, LLC. For the following reasons, we affirm.

FACTUAL BACKGROUND:

NOLA 180, as the manager of Langston Hughes Academy Charter School (hereinafter “NOLA 180”), sued Jazz Casino Company, LLC (hereinafter “Jazz Casino”) to recover monies embezzled from it by a former employee, Kelly Thompson. Ms. Thompson, the school’s financial officer, embezzled approximately $667,000 from NOLA 180, purportedly to support her gambling habit. She was convicted in federal court and is currently serving her sentence. •

NOLA 180 filed suit against Jazz Casino alleging that it “substantially participated in and facilitated the gambling obsession of Thompson, and, at times ... materially assisted, encouraged, and otherwise aided and abetted Thompson in |2the gambling obsession that led to Thompson’s theft.” NOLA 180 alleged that Jazz Casino was indebted to it for “encouraging and/or contributing to the financial loss suffered by NOLA 180.”

Jazz Casino filed peremptory exceptions of no right of action and no cause of action. The trial court sustained both exceptions, dismissing all of plaintiffs claims at its cost.

This appeal followed.

DISCUSSION:

The sole issue presented for review is whether the allegations contained in NOLA 180’s petition and amended petition state a cause of action or a right of action against Jazz Casino. On appeal, NOLA 180 asserts three theories of recovery against Jazz Casino. It claims relief under La. Civ.Code art. 2315 for general negligence, under the Louisiana Unfair Trade Practices Act, and under the “abuse of rights” doctrine, see Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.1976).

The petitions contained in the record before us do not contain any claims for relief pursuant to the Louisiana Unfair Trade Practices Act (hereinafter “LUT-PA”). Additionally, NOLA 180’s claim that Jazz Casino violated the “abuse of rights” doctrine is not included in its petition or amended petition. That argument is first made in NOLA 180’s opposition memorandum to the exceptions filed in the trial court. We note also that large portions of plaintiffs brief alluding to research, psychiatric findings, and compulsive gambling, for example, are not contained in |sthe record. This Court is a court of record and can only review what is contained in the record on review. Mobile-One Auto Sound, Inc. v. Whitney Nat’l Bank, 2011-0535, p. 12 (La.App. 4 Cir. 11/9/11), 78 So.3d 807, 815.

Further, when reviewing a judgment sustaining exceptions of no cause of action and no right of action, this Court is limited to the allegations made in the petitions. Accordingly, we will not review these claims.

Thus, the only remaining claim to be reviewed is whether Jazz Casino can be held responsible for the losses sustained by NOLA 180 when its employee embezzled funds to finance her gambling habit.

A. Exception of No Cause of Action

An exception of no cause of action questions whether the law extends a remedy to plaintiff under the facts alleged in the petition. The pertinent inquiry is whether, in a light most favorable to the plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. La.Code Civ. Proc. arts. 927, 931; Mobile-One Auto Sound,, Inc., 2011-0535, p. 4, 78 So.3d at 810. The burden of showing that the plaintiff has not stated a cause of action is upon the exceptor. City of New Orleans v. Bd. of Directors of Louisiana State Museum, 98-1170, p. 9 (La.3/2/99), 739 So.2d 748, 755. The exception is triable on the face of the petition, with the trial court presuming that all well-pleaded facts in the petition are true.

In its first assignment of error, NOLA 180 argues that the trial court erred in sustaining Jazz Casino's exception of no cause of action in light of its well-pled 14claims in tort, unfair trade practices and equity. As stated above, because the petitions do hot contain any allegations by NOLA 180 with regard to LUTPA or the “abuse of rights” doctrine, we decline to review those claims on appeal.

NOLA 180 argues that the statute relied upon by Jazz Casino, La. R.S. 27:27.1 H does not relieve it of liability. Specifically, NOLA 180 states that the statute does not contain an exculpatory clause. The statute does require that all casino operators adopt programs to deal with compulsive and problem gamblers, and provides that casino operators are not required to identify problem or compulsive gamblers. However, NOLA 180 argues that La. R.S. 27:27.1(H), nor any other statute contained in the gambling law, exculpates casinos from liability for the specific acts alleged in this case.

Jazz Casino counters that the gaming industry was granted immunity for the cause of action alleged herein, i.e., identification or exclusion of known or suspected compulsive gamblers or to protect such persons from gambling losses:

The provisions of this Section shall not require the board, division, licensees, permittees, the casino gaming operator, and the employees thereof to identify problem or compulsive gamblers which is an activity that requires medical and clinical expertise.

La. R.S. 27:27.1 H.

Title 27 of the Louisiana Revised Statutes sets forth the policy for development and regulation of authorized gambling in Louisiana. When authorized gambling activity was debated in the state legislature, it was recognized that gambling addiction is a serious and widely-recognized problem. La. |fiR.S. 27:27.1 A. However, the legislature chose not to impose any duty on casino operators to identify problem gamblers. La. R.S. 27:27.1 H. Notwithstanding the above, the legislature did require that a gambling licensee post signs to inform customers of toll-free numbers to call for information and referral services regarding compulsive or problem gambling. La. R.S. 27:58(10). The legislation further provides that sanctions may be imposed if a licensee, permittee, or casino gaming operator willfully fails to exclude from its establishment a person placed on the self-exclusion list. La. R.S. 27:27.1 J(l).

Our reading of the statutes regulating gambling in this state leads us to the conclusion that Jazz Casino is relieved of any duty to identify and recognize compulsive gamblers. The law provides that a casino must disseminate information regarding programs to assist persons who recognize themselves as problem gamblers, and to allow those persons to self-report. Once the gambler self-reports and is placed on a list maintained by the casino, only then can a casino be held liable should a compulsive gambler be allowed to patronize that establishment.

Based on our review of the applicable law, we do not find that NOLA 180’s petitions state a cause of action against Jazz Casino.

Additionally, our review of the record indicates that the trial court did not allow NOLA 180 the opportunity to amend its petition to state a cause of action. La. Code Civ. Proc. art. 984 provides that “[i]f the grounds of the objection raised through the exception cannot be so removed, ... the action, claim, demand, issue, or | fitheory shall be dismissed.” NOLA 180 states that La. Civ. Proc. art. 984 requires that it be allowed to conduct discovery and then amend. The article contains no such requirement.

To the contrary, jurisprudence provides that if amendment of the petition would constitute a vain and useless act, amendment of the petition is not permitted. Smith v. State Farm Ins. Companies, 2003-1580 (La.App. 4 Cir. 3/3/04), 869 So.2d 909; Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corp., 99-0731 (La.App. 4 Cir. 11/10/99), 746 So.2d 806, 808 (for an amendment to be allowed there should be some indication that the defective petition can be amended to state a lawful cause of action). Because of the clear expression of the legislature that casino operators have no duty to identify compulsive gamblers, we find NOLA 180 cannot cure the defects in its petitions. There is also no provision that a plaintiff be allowed to conduct discovery prior to curing the defects. See Gates v. Hanover Ins. Co., 218 So.2d 648, 653 (La.App. 4 Cir.l969)(“A party is not permitted ‘to go on a fishing expedition in the mere hope he might find something of substances to overcome the objection raised by the peremptory exception.’”) We also note that NOLA 180 did not request in the trial court that it be allowed to amend.

Lastly, NOLA 180 cannot cure the defects in its petitions by amending to allege the causes of action we declined to address on appeal, e.g., violation of LUT-PA. Amendments to a petition that change the substance of the original 17claims are not permitted. Fortier v. Hughes, 2009-0180, p. 5 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1188.

A. Exception of No Right of Action

Because there can be no right of action without a cause of action, we pretermit discussion of the exception.

CONCLUSION:

Accordingly, we affirm the judgment of the trial court and assess all costs of this appeal to NOLA 180.

AFFIRMED

      . Plaintiff originally named Harrah’s Operating Company, Inc., and Harrah’s Entertainment, Inc., as defendants, but amended to add Jazz Casino Company, LLC. Plaintiff later dismissed both Harrah’s entities, without prejudice.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Eddie SURVIA & Ophelia Survia v. Angies M. COLLEY, Soloman Colley Sr., Soloman Colley Jr. and Nykeisha Weber.
    No. 2011-CA-1735.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2012.
    Bryan D. Haggerty, Raymond G. Hoffman, Jr., Hoffman & Haggerty, L.L.C., Slidell, LA, for Plaintiff/Appellant, Eddie Survia and Ophelia Survia.
    Julianne T. Echols, René S. Paysse, Jr., Johnson, Johnson, Barrios & Yacoubian, New Orleans, LA, for Defendant/Appellee, Louisiana Citizens Property Insurance Corporation.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU.
   DENNIS R. BAGNERIS, SR., Judge.

| iThis is an appeal from a summary judgment rendered in favor of Louisiana Citizens Property Insurance Corporation dismissing it as a defendant on the issue of insurance coverage. For the following reasons, we hereby reverse and remand the case for further proceedings.

Facts and Procedural History

On June 20, 2008, Eddie Survia and his wife, Ophelia Survia, filed suit against An-gies M. Colley, Soloman Colley, Jr., Solo-man Colley, Sr., and Nykeisha Weber, for damages as a result of a physical altercation that took place on June 28, 2007. In their petition, plaintiffs allege they sustained damages when defendants committed an unprovoked battery on them while in their driveway. Angies Colley responded to the petition with an answer generally denying the allegations of the petition and also brought a reconventional demand for damages against plaintiffs alleging that she “and her son, Soloman, Jr., were assaulted and then physically attacked by defendants-in-reconvention, Eddie Survia and Ophelia Survia, without provocation whatsoever.” On December 5, 2008, plaintiffs (defendants-in-reconvention) filed an answer to the reconventional demand generally denying the ^allegations in the re-conventional demand and pleading self-defense as an affirmative defense.

On June 25, 2009, plaintiffs amended their petition to include as a defendant Jonathan Fields. On April 15, 2010, plaintiffs filed a second amended and supplemental petition to include as a defendant Louisiana Citizens Property Insurance Corporation (Citizens), the liability insurer of Angies Colley. Jonathan Fields filed an answer denying the allegations made by the plaintiffs on April 21, 2010. Citizens answered the petition admitting it was the carrier of insurance for Angies Colley; however, it alleges that coverage is not afforded pursuant to the “Expected Or Intended Injury” exclusion in the policy. On June 25, 2010, Angies Colley filed an answer to the amended and supplemental petition for damages generally denying the allegations in plaintiffs’ petition and alleged various defenses, which included self-defense and comparative fault.

On June 80, 2011, Citizens filed a motion for summary judgment asserting that the policy of insurance does not provide coverage to the insured, Angies Colley, because it contains an exclusion for bodily injury which is expected or intended by an insured. In support of its motion for summary judgment, Citizens attached the following exhibits: (1) a copy of the insurance policy; (2) the deposition of Angies Colley; and (3) the deposition of Ophelia Suriva. On September 15, 2011, plaintiffs filed an opposition to the motion for summary judgment arguing that there are genuine issues of fact in dispute, especially since it is unclear among the parties who was involved in the altercation as well as how and where the incident occurred. Plaintiffs further argue that because the defendants were all living with Angies Colley at the time of the incident, they are included under the “insured” definition contained within the policy. Plaintiffs also Uargue that the policy does provide possible coverage under the application of use of reasonable force by the insured to protect themselves or their property. In support of their opposition to the motion for summary judgment, plaintiffs attached as exhibits: (1) Nykeisha Weber’s deposition; (2) An-gies Colley’s deposition; and (3) Ophelia Survia’s deposition.

A hearing on the motion for summary judgment was held on September 23, 2011; however, because plaintiffs failed to bring the trial court judge a copy of the opposition after filing the opposition with the Clerk of Court, the trial court granted Citizens’ motion for summary judgment without oral argument from either side. Plaintiffs now appeal this final judgment. It is worth noting that the trial court judge filed a per curiam with this Court on January 11, 2012, stating that “[e]ven when the court does not allow counsel to argue, the court does consider the |4substance of the Opposition, the Memorandum in Support of Opposition, and any supporting evidence attached thereto.”

Standard of Review

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an | ¡¡absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it -will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

Discussion

On appeal, plaintiffs argue that the trial court erred in granting Citizens’ motion for summary judgment because there are genuine issues of material fact in dispute that require a trial on the merits. Specifically, plaintiffs argue that (1) Citizens’ policy provides coverage not only to Angies Colley, but to all defendants since they were living with Angies at the time of the incident; and (2) Citizens does provide coverage under the policy for “bodily injury” resulting from the use of reasonable force by an “insured” to protect persons or property. We agree.

When interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer with an analysis that begins with a review of the words of the insurance contract. La. C.C. art. 2045; Succession of Fannaly v. Lafayette Ins. Co., 2001-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. If an ambiguity remains after applying the general rules of contractual interpretation to an insurance contract, the ambiguous contractual provision is construed against the insurer who furnished the contract’s text and in favor of the insured. Id., p. 4, 805 So.2d at 1138; La. C.C. art. 2056. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability, and are entitled to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Benton Casing Service, Inc. v. Avemco Ins. Co., 379 So.2d 225, 227 (La.1979).

IfiThe policy of insurance issued by Citizens to Angies Colley provides in pertinent part:

5. “Insured” means:
a. You and residents of your household who are:
(1) Your relatives; or
(2) Other persons under the age of 21 and in the care of any person named above;
b. A student enrolled in school full time, as defined by the school, who was a resident of your household before moving out to attend-school, provided the student is under the age of:
(1) 24 and your relative; or
(2) 21 and in your care or the care of a person described in a.(l) above
E. Coverage E — Personal Liability And Coverage F — Medical Payment To Others
Coverages E and F do not apply to the following:
1. Expected or Intended Injury “Bodily injury” or “property damage” which is expected or intended by an “insured” even if the resulting “bodily injury” or “property damage”:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.
However, this Exclusion E.l. does not apply to “bodily injury” resulting from the use of reasonable force by an “insured” to protect persons or property.

17Rather than addressing the issue of who, other than Angies Colley, is insured under the policy, Citizens merely relies on the exclusion for bodily injury which is expected or intended by an insured to deny coverage. Citizens argues that the depositions of Angies Colley and Soloman Colley, Jr. indicate that the two of them were prepared for an altercation when they stepped outdoors and that they intentionally entered into a fight with the plaintiffs. Therefore, Citizens reasons that the exclusion for bodily injury which is expected by an insured is applicable. We are not persuaded by Citizens’ argument. From reading the relevant clauses in the insurance contract, it is clear that intentional acts are not covered, unless they are performed to defend the person or property. The answer and reconventional demand filed by Angies Colley must be considered in deciding whether a material issue of fact remains to be decided by the trier of fact. Amgies Colley responded to the petition with an answer generally denying the allegations of the petition and also brought a reconventional demand for damages against plaintiffs alleging that she “and her son, Soloman, Jr., were assaulted and then physically attacked by defendants-in-reconvention, Eddie Survia and Ophelia Survia, without provocation whatsoever.” Amgies Colley also filed an answer to the amended petition whereby she alleged self-defense. These are factual issues material to the decision of whether the exclusionary clause is applicable. Therefore, we find a summary judgment releasing Citizens from the suit at this point is inappropriate, and the trial court erred in rendering judgment. We remand the matter to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED

      . Rule 9.9. Memoranda Supporting or Opposing Exceptions and Motions.

        (a) When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time.
      (b) A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.
      (c) The mover or exceptor may furnish the trial judge a reply memorandum, but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4:00 p.m. on a day that allows one full working day before the hearing. For example, if the hearing is set for Friday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Wednesday. If the hearing is set for Monday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Thursday.
      (d) Parties who fail to comply with paragraphs (a) and (b) of this Rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of the untimeliness.
      (e) Any party may, but need not, file a copy of the memorandum with the clerk of court. See Rule 9.4 and Appendix 9.4 to determine whether a particular judicial district requires that memoranda be filed with the clerk of court or sent directly to the presiding judge.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Ulysses HILL.
    No. 2011-KA-1001.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirk-ham, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Judge.

hln Ulysses Hill’s second appeal to this Court, he seeks to overturn his conviction and sentence for second degree murder, alleging that the trial court erred by denying his motion for new trial and his motion for post-verdict judgment of acquittal. The defendant’s claims have no merit. Accordingly, we affirm his conviction and sentence.

STATEMENT OF CASE

On September 30, 2004, the grand jury returned an indictment charging Ulysses Hill with the second degree murder of Nolan Fields, a charge to which he subsequently pled not guilty. On March 15, 2005, at the conclusion of a two-day trial, a twelve-person jury found him guilty as charged. Mr. Hill moved for a new trial. New counsel enrolled, and counsel filed a combined motion for new trial and motion for post-verdict judgment of acquittal. The court granted the motion for new trial on October 24, 2006. The State sought review, and in an unpublished disposition, this Court reversed the trial court’s ruling, reinstated Mr. Hill’s conviction, and remanded the case for sentencing. State v. Hill, unpub., 2006 (La.App. 4 Cir. 2/21/07). On April 13, 2007, the court sentenced Hill to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, this Court affirmed Hill’s conviction, vacated his sentence, and remanded the case for rulings on a portion of his motion for new trial and on his motions for post-verdict judgment of acquittal and to reconsider sentence. State v. Hill, unpub., 2009-0469 (La.App. 4 Cir. 12/9/09), 25 So.3d 1035. The Supreme Court denied writs. State v. Hill, 2010-0033 (La.10/1/10), 45 So.3d 1093.

On remand, the trial court denied the motion for new trial and the motion for post-verdict judgment of acquittal on March 23, 2011. The court again sentenced Mr. Hill to life imprisonment without benefit of parole, probation, or suspension of sentence. The court also granted Mr. Hill’s motion for appeal and denied his motion for reconsideration of his sentence. FACTS

The fact summary is taken from the Ulysses Hill’s prior appeal:

A few minutes before 4:00 on the afternoon of July 18, 2004, Nolan Fields was shot to death in the St. Bernard Housing Project. An autopsy revealed that Fields sustained four gunshot wounds, two of which would have been fatal, as well as a grazing wound. The forensic pathologist who performed the autopsy retrieved four bullets from Fields’ body, which when they were later tested, revealed that they had been fired from the same gun. Because of the lack of gunpowder residue on Nolan’s body, the pathologist testified that the shots were fired from some distance from the victim. Bodily fluids taken from Nolan’s body tested negative for alcohol or other commonly-abused drugs.
Pursuant to various 911 calls, Off. Robert Monlyn and his partner responded to the shooting. In the 3900 block of Duplessis Street, they discovered Fields’ body lying on the concrete. Fields was still alive, and EMS personnel transported him to a hospital. Off. Monlyn testified that at some point he received information indicating that a blue, two-door Thunderbird with a “K” |3in its license plate was involved in the shooting. On cross-examination, Off. Monlyn stated that he and his partner did not interview any witnesses on the scene because it was his experience that no witnesses to the shooting in that area would come forward. He stated that Anna Fields, the victim’s sister, identified the victim on the scene. Off. Monlyn’s self-described role in the murder investigation was limited to maintaining the scene until crime lab personnel and the investigating officer arrived.
Detective James Kelly was the lead investigator on the case. Rather than respond to the scene of the shooting, he went to the hospital where the victim had been taken. Once there, however, he learned the victim had died. He spoke with the victim’s family and learned from his sister that the defendant, Hill, was a suspect in the shooting. He stated, however, that Ms. Fields was not a witness to the shooting. She also told him that another man was walking with her brother when her brother was shot, but Det. Kelly was never able to contact this man. Det. Kelly got a call from another officer who told him that a car suspected to be involved in the shooting had been located. Det. Kelly described the car as a black Thunderbird with a “KW” or “KM” on its license plate. Det. Kelly went to the 3600 block of Hamburg Street, in the St. Bernard Housing Project, and found the car parked on the street. The owner of the car, Hill’s sister Loretta Hill, who lived in the apartment complex in front of which the car was parked, soon came downstairs to ask why the officers were around her car. When he told her that the car was implicated in a shooting in the project, Ms. Hill stated that no one other than herself had driven the car, and she denied any knowledge of the shooting.
Det. Kelly testified that Ms. Hill stated that she had recently returned home from work and had driven through the area of the shooting, but she had not seen anyone outside at the time. She stated that she then went to pick up her boyfriend from work. She estimated that she picked up her boyfriend at around 8:15 p.m., and then the two went to her apartment. Det. Kelly later spoke with Ms. Hill’s boyfriend, who told him that Ms. Hill picked him up around 4:30 p.m. Ms. Hill consented to a search of her car, but no evidence was seized from the car. She then agreed to go the police station, where she gave a statement.
|4The next day, Det. Kelly received a call from the victim’s cousin, who indicated that she knew someone who wanted to speak to him about the shooting. He then met with Troy Lynn Solomon, who gave him information about the shooting. Ms. Solomon also gave a statement to the police. Based on this information, he obtained an arrest warrant for Hill and an arrest warrant for Loretta Hill.
On cross-examination, defense counsel questioned Det. Kelly in great detail about whether the information about the dark blue Thunderbird was contained in the 911 calls to the police. After some miscommunication on both parts, Det. Kelly ultimately testified that he received this information in a call from his sergeant, who had gotten the information from some other source that Det. Kelly did not know. He also testified that the police report indicated that although Ms. Fields identified the victim on the scene, she did not tell the responding officers that Ulysses Hill was a suspect in the shooting. Det. Kelly stated that Ms. Hill was not a suspect at the time she gave her statement at the police station. He admitted that although the officer who interviewed Ms. Hill at the police station took notes while she gave her statement, he threw away these notes after incorporating the statement into his police report.
Det. Kelly also indicated that the police received Crimestopper tips that corroborated the information they received from Ms. Troy Lynn Solomon, the only eyewitness to the shooting, who identified Hill. Ms. Solomon admitted that she had a prior conviction for passing worthless checks. She testified that she lived in the 3900 block of Duplessis. She stated that she was sitting on her back porch at approximately 3:00 on the afternoon of July 18, 2004. She saw Hill get out of a silver Malibu with tinted windows and go upstairs in the building next to hers, where Hill’s brother lived. She estimated he was inside for fifteen to twenty minutes. She saw Nolan Fields and a man whom she identified only as “Dwanne” walk into the driveway. Fields was on his way to her apartment to get some keys. She also saw a black or dark blue car she described as a Monte Carlo drive into the driveway and park. She saw Hill emerge from the building next door, and he and the victim began talking and then arguing for five to ten minutes. She heard Hill accuse Fields of putting mud in Hill’s gas tank, a charge that Fields denied. She heard Hill tell Fields that next time he would “deal” with him, and |fiFields turned and began walking away. Ms. Solomon testified that she then heard gunshots, even though she did not see a gun because Hill had his back to her. She estimated Hill shot five or six times, and she testified that after the first shot, she saw the appellant standing over Fields while more shots rang out.
Ms. Solomon identified Loretta Hill as the person who drove the dark blue car into the driveway, and Ms. Hill parked the car near the building she had seen Hill enter. , After Ms. Hill turned the car around and parked it, she got out of the car and stood near the driver’s side of the car. Ms. Solomon testified that Ms. Hill would have been able to see Fields and Hill arguing and would have seen the shooting from her vantage point. After Hill shot Fields, Ms. Solomon saw him and Ms. Hill enter the car and drive from the scene. Ms. Solomon positively identified Hill as the man who shot Fields and Ms. Hill as the woman who watched the shooting and who left in the car with Hill after the shooting.
On cross-examination, Ms. Solomon admitted that although she called 911 after the shooting, she did not tell the operator or the officers on the scene that Hill was the perpetrator or that Ms. Hill had helped him escape the scene. Instead, she called the police the next day. She stated that one of her sons and his girlfriend Delana were with her on the porch when the shooting occurred. She also admitted that in her statement she mixed up which street Ms. Hill entered and the one by which she and Hill left the scene. She stated that one of her sons was the victim of a shooting that occurred a few weeks before this shooting, and she believed that two of the Hill brothers knew about the shooting before it happened and could have tried to prevent it. Nonetheless, she insisted that she did not believe the brothers were actually involved in her son’s shooting.
The defense called Delana Humphrey, who testified that she was in the area at the time of the shooting. She saw Loretta Hill pass by in her car and keep going. Ms. Humphrey then walked to the front porch of the building and sat with her daughter and with Ms. Solomon. She heard gunshots, grabbed her daughter, and ran inside Ms. Solomon’s apartment. She denied seeing Hill in the neighborhood that day. Ms. Humphrey admitted that both defendants were her cousins. She also admitted that Ms. Hill drove a dark blue Thunderbird. She insisted that she could not see the | (¡shooting because it occurred around the corner of the building, out of sight from where she was sitting with Ms. Solomon.
Paul Hay testified that he worked with Ms. Hill at the time of the shooting. On the day of the shooting, they got off work around 3:00, and Ms. Hill drove both him and another worker to their homes. He estimated that she dropped him off around 8:35. He did not recall her receiving a cell phone call during the ride to his house.
Chaka Hall testified that she is Hill’s fiancée and Ms. Hill’s “sister-in-law.” She testified that on July 18, she and Hill had planned to attend her family’s reunion, but they decided not to do so because of heavy rain that morning. Instead, they decided to stay home and barbeque at their apartment, which was located across the river from the scene of the shooting. She ran various errands, leaving at 10:00 a.m. and returning around 2:00 p.m., and Hill was at home both when she left and when she returned. She and Hill then went to Wal-Mart, and they returned home after shopping. She identified a sales receipt from Wal-Mart showing that the time of checkout was 2:57 p.m. Nonetheless, she admitted that she paid cash for her purchases, and the receipt contained no name of the purchaser. She insisted that Hill did not leave the apartment after they returned from shopping, nor did anyone drive her car that afternoon. She admitted that at the time of the shooting she owned a grey Malibu.
Loretta Hill testified that a neighbor notified her on the evening of July 18, 2004 that police officers were looking at her car, which was parked outside her apartment. When she went to the officers to see why they were interested in her car, they told her that they were investigating a homicide. At the officers’ request, she produced her insurance, driver’s license, and registration papers, and she further allowed the officers to search her car. She told them that the ear could not have been involved in a homicide because she was the only person who drove it that day. She agreed to accompany them to the police station, where she gave a taped statement. The officers asked her if she was Hill’s sister, and she stated that she was, but she denied seeing him that day.
Ms. Hill produced her timesheet from work that showed that she got off work at 3:09 p.m. that afternoon. She drove two co-workers home before going to her own |7apartment. She drove home through the project and saw Ms. Solomon and Ms. Humphrey sitting on Ms. Solomon’s porch. She denied parking her car there, insisting that she kept driving toward her apartment. She denied seeing either her brother or Nolan Fields when she drove through the area prior to the shooting. When she got to her driveway, her boyfriend called to ask her to pick him up from work. She picked him up in the French Quarter at approximately 4:30 that afternoon. She denied telling the police she picked up her boyfriend at 3:15, not 4:30.
On rebuttal, the State recalled Det. Kelly, who testified that the police did not take a taped statement from Ms. Hill. He reiterated that Ms. Hill told him that she picked up her boyfriend at 3:15, not 4:30.

State v. Hill, unpub., 2009-0469 (La.App. 4 Cir. 12/9/09), 25 So.3d 1035.

DISCUSSION/ASSIGNMENTS OF ERROR

By his first assignment of error, Ulysses Hill contends that the trial court erred by not recognizing that it initially granted the new trial pursuant to the “ends of justice” ground for a new trial as set forth in La.C.Cr.P. art. 851(5). He argues that because the court initially granted the motion, and nothing changed in the case between its initial ruling granting the motion in 2006 and its denial on remand in 2011, the court should have granted the motion, deeming its 2006 ruling to have been in the “ends of justice.” He then re-urges the same grounds that he urged in 2006. This claim has no merit for several reasons.

1¡¡After conviction, but before withdrawing as counsel, trial counsel filed a motion for new trial wherein he alleged that the defendant was deprived of a fair trial on two grounds. He first alleged that the State improperly misrepresented that it filed discovery motions seeking information concerning any alibi witnesses. He argues that by relying on this assertion, the court prevented the defense counsel from mentioning the alibi witness in his opening statement, and admonished counsel when he told the jury that there would be evidence to show where the defendant was at the time of the murder. He asserted that by the time that the State admitted that it did not seek this information, and the court changed its mind about allowing the defense to present alibi evidence, he had been deprived of a fair trial. His second claim concerned the court’s jury instruction on inconsistent statements, particularly as it applied to the State’s alleged eyewitness. Counsel did not allege that the new trial should have been granted pursuant to La.C.Cr.P. art. 851(5), which states in pertinent part: “the court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right”.

After trial counsel withdrew, present counsel enrolled and filed a combined motion for new trial/motion for post-verdict judgment of acquittal. In this combined motion, the appellant raised three main claims: (1) trial counsel labored under a conflict of interest because he represented both the appellant and his codefendant; (2) trial counsel was ineffective because of various errors he committed during trial, including errors as to presenting alibi evidence and his failure to object to comments made during the State’s closing argument; and (3) the jury’s verdict was contrary to the law and evidence. Again, there was no allegation that a new trial should be granted pursuant to subsection (5) of art. 851.

1 flContrary to the defendant’s present contention, he did not argue at either the October 24, 2006 hearing on the motions or at the March 23, 2011 hearing on remand that a new trial should be granted on this ground. Instead, at the earlier hearing, counsel argued briefly as to the claims raised in his motion (the second, combined motion). In addition, a reading of the court’s ruling shows that it did not grant the new trial on the ground of the “ends of justice.” Instead, as quoted by the defendant in his present brief, the court stated that the defendant “did not receive the best representation during the course of this trial. So I’m going to grant that motion for new trial.” The court granted the motion on a claim of ineffective assistance of counsel, not that the “ends of justice” entitled the defendant to a new trial. At the 2011 hearing, counsel did not present any argument pertinent to this issue.

In addition, in the defendant’s prior appeal, this Court vacated the sentence and remanded the case for the trial court’s ruling on the outstanding motion for post-verdict judgment of acquittal as well as for a ruling on the motion for new trial, filed by trial counsel, which contained allegations not raised in the motion filed by present counsel, and on the motion to reconsider sentence. See State v. Hill, unpub., 2009-0469 (La.App. 4 Cir. 12/9/09), 25 So.3d 1035. Thus, the only grounds that the trial court could consider on remand were those contained in the first motion for new trial. The first motion did not contain an allegation that a new trial should be granted pursuant to subsection (5).

Moreover, the court could not reconsider the claims it had already ruled upon because this Court reversed the trial court’s ruling that granted the motion for new trial. The defendant raised no new argument as to these claims after remand. As noted in the State’s brief, this Court should not reconsider its ruling due to the 110“law of the case” doctrine. This Court recently discussed this doctrine in State v. Cox, 2011-0670, p. 6 (La.App. 4 Cir. 2/22/12), 85 So.3d 252, 256:

The “law of the case” doctrine is well-settled; when it is applied and the reasons for it were explained in State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054:
The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. See Pumphrey v. City of New Orleans, 2005-0979 (La.4/4/06), 925 So.2d 1202. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible law; thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.
See also State v. Scoggins, 2010-0869, p. 19 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, 156.

In Cox, the trial court granted the defendant’s motion to suppress. The State took writs, and this Court reversed the trial court’s ruling. On remand, the defendant withdrew his not guilty plea and pled guilty under Crosby, reserving his right to appeal the denial of his motion to suppress the evidence. No new testimony was taken, nor were any new arguments or pleadings filed. On appeal, this Court |n applied the “law of the case” and refused to revisit the issue of the suppression of the evidence.

In McElveen, from which this Court quoted in Cox, the defendants argued that the trial court erred by excluding evidence that the defendants contended would impeach the credibility of a State’s witness. This Court refused to consider the argument, noting that it had already ruled on the matter in a pretrial writ from the State, and the defendants had presented no new evidence to show that this Court’s earlier ruling was in error. Likewise, in Scoggins, also cited in Cox, the defendant alleged that the trial court erred by allowing and then limiting testimony in violation of the “clergyman’s privilege.” This Court refused to reconsider the claim, noting that it had been considered both by this Court and the Supreme Court, and the defendant had not presented any new evidence to convince this Court that it erred in its earlier ruling.

Here, contrary to counsel’s claim, he did not argue that the new trial should have been granted in the “ends of justice.” He offered nothing new, and’ the trial court could not reconsider its rulings on the grounds alleged in the second motion for new trial. In his brief, counsel essentially re-argues the same grounds that this Court rejected in the earlier writ which found that he was not entitled to a new trial. There is nothing upon which this Court could reconsider its earlier ruling.

Finally, even if the defendant had raised the ground that the court should grant a new trial in the “ends of justice,” and the court granted the motion on that basis, this Court could review the trial court’s decision because such decision presents a question of law that an appellate court can review. See State v. Guillory, 2010-1231 (La.10/8/10), 45 So.3d 612. Because this Court already found that there was no basis to grant the motion for new trial based upon the 1 ^grounds alleged in present counsel’s motion for new trial, it would be justified in reversing any ruling by the trial court that granted relief again on these grounds. For all of the above reasons, this claim has no merit.

By the defendant’s remaining assignments of error, he contends that the evidence adduced at trial was insufficient to support his conviction. He acknowledges that this Court considered and rejected this argument in his prior appeal, but he raises it again merely to preserve his “ability to perhaps raise issues in the future.” As in his first appeal, Ulysses Hill argues that the evidence was insufficient to prove that he was the shooter. As this Court found in his original appeal, this claim has no merit.

CONCLUSION

Ulysses Hill’s arguments concerning the denial of his motion for new trial and of his motion for post-verdict judgment of acquittal have no merit. Accordingly, based on the above and foregoing we affirm his conviction and sentence.

AFFIRMED

      . The indictment also charged Loretta Hill with accessory after the fact to the second degree murder of Fields. A jury found her guilty as charged, and the court suspended her five-year sentence at hard labor and placed her on probation for four and a half years. She is not a party to this appeal.

      . La.C.Cr.P. art. 851 provides in pertinent part:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:

      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

      . In assignment two, he alleges that the evidence was insufficient; in assignment three, he alleges that the trial court erred by denying his motion for post-verdict judgment of acquittal; in assignment four, he contends that the trial court should have granted his motion for new trial, apparently because the evidence was contrary to the law and evidence.