author: SAUNDERS, Judge.

text:
    STATE in the Interest of N.F.
    No. 13-589.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Michael Harson,- District Attorney, Sonia Gupta, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, N.F.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

11 On July 12, 2012, N.F., a juvenile, was charged by petition with the aggravated rape of D.W. (age 3), a violation of La.R.S. 14:42. N.F. denied the allegations in the petition. After a hearing, the trial court denied N.F.’s motion to suppress his statements to the police and to the Department of Children and Family Services. On December 13 and 14, 2012, the trial court heard evidence and agreed to leave the record open until January 8, 2013, for the testimony of Dr. Daniel Lonowski. The trial court then adjudicated N.F. a delinquent for the commission of aggravated rape and ordered a post-adjudication predisposition sexual offender assessment of N.F. Subsequently, on March 14, 2013, the trial court committed N.F. to the Department of Public Safety and Corrections, Office of Juvenile Justice (OJJ) for five years, suspended, and placed N.F. on five years of supervised probation with conditions. That same day, N.F. filed a timely Motion for Appeal and Designation of Record, which the trial court granted.. N.F. is now before this court, alleging four assignments of error. We affirm N.F.’s adjudication and disposition subject to the amendment discussed herein.

FACTS AND PROCEDURAL HISTORY

Around 10:00 p.m. on July 3, 2012, D.W. was brought to Women’s and Children’s Hospital with a complaint of vaginal bleeding. When D.W. was examined by Dr. Glenn Borne, the pediatric emergency room physician, Dr. Borne noted that D.W. had a “very large vaginal laceration that was actively bleeding.” Dr. Borne did not believe the injury was an accidental injury but the result of forceful penetration. Dr. Borne consulted the pediatric surgeon, Dr. Kenneth Falterman, who repaired the laceration on the skin and into the vagina. During his initial examination of D.W., Dr. Falterman also saw evidence that the perforation of the vagina entered into D.W.’s abdominal cavity. Dr. Falterman performed a | gsecond operation, a laparoscopic procedure in which a scope was used to look for further injuries. Dr. Falterman did not see any further injuries.

On July 4, 2012, Detective Duncan McGalliard of the Lafayette Police Department responded to a call at Women’s and Children’s Hospital. At the hospital, D.W. told Detective McGalliard that N.F. (age 12) hurt her and made her bleed. D.W. and her siblings had been visiting their dad at the home of their dad’s girlfriend, Latoya. N.F., one of Latoya’s children, was also at the house. Detective McGalli-ard asked a patrol unit to pick up N.F. from his house and transport him to the Lafayette Police Department for questioning. N.F. was brought to the police station with his mother. In the interview, N.F. initially told Detective McGalliard that D.W. started bleeding when he was helping her dry off and get dressed after taking a bath. N.F. denied touching D.W. or putting anything inside of her. Detective McGalliard continued to question N.F. and stressed to N.F. that he needed to tell the truth. Eventually, N.F. answered, “Um hm” when Detective McGalliard asked him if he put his penis inside of D.W. When asked if he put “it” in and pulled “it” right back out, N.F. responded, ‘Tes, sir.” N.F. stated that D.W. then started bleeding.

Later that same night, N.F. was interviewed by Chastity Harding of the Department of Children and Family Services. The interview took place at the Juvenile Detention Center in Lafayette. When Ms. Harding initially arrived at the detention center, she was told that N.F. was in bed. When N.F. was brought to meet her, he asked Ms. Harding if he could go back to bed when they were finished. Ms. Harding told N.F. that he could go back to his room when they were finished talking. According to Ms. Harding, N.F. told her that when he took D.W. out of the tub, he took her into a room, put her on the bed, and told her to lie on her stomach. N.F. then said that he put “it” in, and D.W. told him to stop. N.F. said he. | (¡stopped, took “it” out, and blood came out. N.F. was subsequently charged by petition with the aggravated rape of D.W.

ASSIGNMENTS OF ERROR

1. The juvenile judge erred when he denied the motion to 'suppress the statements made by the twelve-year old juvenile to a detective and to a child protection investigator.
2. The juvenile court erred in concluding that D.W. was competent to testify at the adjudication hearing and that the Hearts of Hope taped interview was admissible at the hearing.
3. The juvenile judge erred in admitting the videotaped statement of D.W., as it was impermissible hearsay and a denial of N.F.’s right to confront his accuser.
4. The evidence introduced at the adjudication hearing was insufficient to prove all of the elements of the offense of aggravated rape beyond a reasonable doubt under the standard of review applicable in delinquency proceedings.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are several errors patent.

First, the trial court failed to advise N.F. of his rights as required by La.Ch.Code art. 855. In State v. Erven, 36,332 (La.App. 2 Cir. 10/23/02), 830 So.2d 368, the court held that at the appearance hearing to answer the state’s petition, the court is required, pursuant to La.Ch.Code art. 855, to first determine if the juvenile is capable of understanding his/her rights, and if so, to advise the child of his/her rights, including the nature of the proceedings, the nature of the allegations of the petition, the right to an adjudication hearing, the right to appointed counsel, and the right against self-incrimination. However, the record in the present case indicates the juvenile was represented by counsel and denied the ^allegation. Thus, we find the error was harmless. See State in Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633.

Second, the record indicates the adjudication was untimely held. Pursuant to La.Ch.Code art. 877, N.F.’s adjudication hearing should have been set within sixty to ninety days of July 12, 2012, depending on whether he was continued in custody, except for good cause shown. It was initially set for August 9, 2012, which is within the sixty-day time period. The trial court reset the adjudication date to October 4, 2012. In September 2012, the State filed a motion to continue, claiming delays associated with the criminalist report on DNA analysis, a pending investigation request, the need to address N.F.’s motion to suppress, and that N.F. had indicated a need for more time as well. A hearing was held in October 2012, and N.F.’s attorney acknowledged it was a joint motion. The trial court granted the motion, and the matter was set for December 13, 2012. The adjudication commenced on that date. We find that the State proved that good cause was shown for the delay; thus, any error is harmless. See State in the Interest of R.D.C, Jr., 93-1865 (La.2/28/94), 632 So.2d 745.

Third, there was a delay in the disposition. Louisiana Children’s Code Article 892 provides that the court shall conduct a disposition hearing within thirty days after the adjudication, prior to entering a judgment of disposition, except for good cause. The trial court adjudicated N.F. on January 8, 2013. The disposition hearing was held on March 14, 2013, more than thirty days after the disposition. However, on January 30, 2013, the State filed a “Motion for Continuance of Disposition Beyond 30 Days from Date of Adjudication.” In the motion, the State stated OJJ required until mid-March to complete its pre-disposition assessment. The trial court granted the continuance and set the disposition for March 14, 2013. We find that the State showed good cause for the delay. Additionally, N.F. did not | afíle an objection to the delay, and he fails to show any prejudice suffered. Thus, we find any error is harmless.

Fourth, the record before this court does not indicate the trial court gave N.F. credit for time spent in secure detention, if any, prior to the imposition of disposition, as required by La.Ch.Code art. 898(A). Thus, this court amends the disposition to give N.F. credit for time served in a secure detention facility and instructs the trial court to note the amendment in the court minutes. See State ex rel. M.M., 06-607 (La.App. 3 Cir. 11/2/06), 941 So.2d 716.

Finally, the trial court failed to inform N.F. of the two-year prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Although the Children’s Code contains no similar provision, this court has previously held that this notice should be given. State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081 and State ex rel. J.F., 03-321 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282. This court orders the trial court to inform N.F. of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that N.F. received the notice.

ASSIGNMENT OF ERROR NO. 4:

In his fourth assignment of error, N.F. argues that the evidence introduced at the adjudication hearing was insufficient to prove all of the elements of the offense of aggravated rape. The standard of review for sufficiency of the evidence to support a conviction is that “the appellate court must determine 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. Captville, 448 So.2d 676, 678 (La.1984) (footnote omitted).

RThe trial court’s findings of fact are subject to the manifest error standard of review; “the appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact absent manifest error.” State in the interest of C.P., 12-192, p. 4 (La.App. 3 Cir. 6/6/12), 91 So.3d 1273, 1277.

Additionally, a review of the record for sufficiency of the evidence “encompasses all of the evidence introduced at trial, inadmissible as well as admissible.” State v. Bolden, 11-2435, p. 2 (La.10/26/12), 108 So.3d 1159, 1161. As the fifth circuit court stated in State in the Interest of S.L., 11-883, p. 8 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 830:

[I]f the entirety of the evidence, both admissible and inadmissible, was insufficient to support the conviction, the defendant is entitled to an acquittal and no further inquiry as to trial errors is necessary. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Jones, 05-840 (La.App. 5 Cir. 3/28/06), 927 So.2d 514, 519. On the other hand, when the entirety of the evidence, even evidence erroneously admitted, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Hea-rold, supra.

As discussed herein, we find the statements made to Ms. Harding to be admissible, and the admission of statements made to Detective McGalliard harmless error. Furthermore, the.trial court found “there was an overwhelming amount of testimony from everybody in the case and the Court has to deal with the truth and veracity of each one of the witnesses.” The trial court also explained:

The Court did not find him guilty because he said he did it or didn’t do it, because he gave two (2) statements. The Court felt that the State proved this case beyond a reasonable doubt based on the facts. The — victim’s test — the Court gave a lot of weight to the victim’s testimony. To the — to the testimony of the doctors. From the testimony — everybody else that testified, I felt that the case was proved beyond a reasonable doubt.

|7We agree that the evidence was sufficient to adjudicate N.F. a delinquent for the commission of aggravated rape.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, N.F. alleges that the trial court erred in denying his motion to suppress the statements he made to Detective McGalliard and Ms. Harding. N.F. argues that his statement to Detective McGalliard should have been suppressed because it was not a knowing and voluntary confession due to N.F.’s young age, the absence of an interested and competent adult to accompany N.F. during the interview, N.F.’s lack of understanding of his rights, and Detective McGalliard’s improper coercion and intimidation. In its brief, the State responds that it met its burden of showing that N.F. was properly informed of his Miranda rights as well as its burden of proving that N.F.’s statements were freely and voluntarily made without undue influence, fear, duress, intimidation, menaces, threats, inducements, or promises. The trial court, after listening to the interview on tape, found that Detective McGalliard was not coercive and that N.F.’s statement was a knowing and voluntary confession, in part because Detective McGalliard used a soft tone of voice and the interview was relatively short, lasting twenty-one minutes.

We note that the trial court is afforded great discretion in its finding pursuant to the hearing on the motion to suppress. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109. Ultimately, we pretermit the question of whether the trial court abused its discretion in denying the motion to suppress N.F.’s statement to Detective McGalliard as this evidence is cumulative, and we are able to decide the case without consideration of this statement. Accordingly, we give no weight to N.F.’s statement to Detective McGalliard in arriving at our conclusion.

|SN.F. also argues that his statement to Ms. Harding of the Department of Children and Family Services should have been suppressed. Ms. Harding interviewed N.F. regarding a report of inadequate supervision of D.W. On July 4th, the same day that N.F. spoke to Detective McGalliard, Ms. Harding went to the Juvenile Detention Center in Lafayette to speak with N.F. N.F. was brought to a room to speak with Ms. Harding. According to Ms. Harding, N.F. told her the following:

He said that D.W. was in — taking a bath with his sister and her brother. I said, “What happened after that?” He said, “I took D.W. out of the tub, and I brought her in the room, and I was supposed to dry her off.” I said, “What did you do instead of dry her off?” He said that he put her on the bed and told her to lie on her stomach. And I said, “What did you do when you told — after you told her to lie on her stomach?” He said that he told her that she was going to get a whipping. And I said, “Why did you tell her that she was going to get a whipping?” And, he said because she didn’t want to lay on her stomach. I said, “But why would you say that she was going to get a whipping?” He said because she — her dad whips — she was going to get a whipping by her dad, because she is always being bad. And I said, “What happened after that?” He said D.W. did lay on her stomach and that he put it — he put in [sic] in. I said, ‘What did D.W. say to you? Did D.W. say anything when you put it in?” And he said that she told him to stop. He said, so he stopped, and when he took it out, the blood came out. So I asked him “What did you do after that?” He said that he put a towel down. I said, “Was anyone else in the room?” And, he stated no. I said, “What happened after you put the towel down?” He said my sister came into the room, and asked me what happened. He said, but I didn’t tell her what happened. I said, “So what happened after your sister came into the room?” He said that the sister left out of the room to go get a neighbor. And I asked him, Well why would she have to get a neighbor. Where was your mom?” and he said that his mom was sitting outside. And after that I asked him, you know, was he scared when he saw the blood and he said, “No.” I also asked him how did he feel about what happened, and he did say he was sorry for what happened. And I asked him if he was scared to be in the Detention Center and he stated, “No.”

Without giving reasons other than it had reviewed the case law, the trial court found N.F.’s statement to Ms. Harding was admissible.

At the suppression hearing and on appeal, N.F. argues that his statement to Ms. Harding should be suppressed because no Miranda warnings were given. The |aState argues, however, that Ms. Harding was not acting as an agent of law enforcement and was, therefore, not required to give N.F. Miranda warnings.

Both defense counsel and the State recognize State v. Bernard, 09-1178 (La.3/16/10), 31 So.3d 1025, as the authoritative case for this issue. In Bernard, the court was faced with determining “whether a child protection worker should have given Miranda warnings to the arrested and incarcerated defendant ... before she interviewed him.” Id. at 1026. The court held that there is no bright-line rule for making such a determination but that the determination must be made on a case-by-case basis:

[CJourts must consider the totality of circumstances in each case. The most important factors are those discussed in State v. Perry, 502 So.2d 543 (La.1986): whether the. investigator discussed the case with police prior to the interview, whether the interview was conducted at the police’s request, and whether the primary purpose of the investigator’s visit was to elicit a confession while in cahoots with law enforcement. In short, police may not circumvent Miranda by using OCS investigators (or anyone else) as stand-ins to conduct interrogations in their stead.

Id. at 1035. The court further noted that “[a]s a general rule, it is left to the trial court to determine whether a person conducting an interrogation is acting as an agent of law enforcement.” Id.

In the instant case, Ms. Harding testified that the purpose of her interview was to make a determination on the specific allegations reported to the agency. According to Ms. Harding, when she interviewed N.F., her investigation was not “in any way directed at criminal charges against him.” Ms. Harding testified that she did speak with Detective McGalliard before she interviewed N.F. in order to find out where N.F. was located. The day following the interview, Ms. Harding called Detective McGalliard to inform him that she had interviewed N.F. According to Ms. Harding, she did not tell the detective anything other than that she did interview N.F. Additionally, the detective did not tell her .anything else |10regarding N.F. Ms. Harding testified that she did not conduct the interview at the request of the police department, and she was not instructed by the police as to what questions to ask. Ms. Harding did not discuss N.F.’s case with law enforcement or any district attorneys prior to interviewing N.F. and did not read any police report prior to interviewing N.F. However, Ms. Harding testified that her agency turns in a report to the District Attorney’s Office when it has a valid case.

Appellate counsel submits that Ms. Harding did not explain to N.F. that she was not there to interrogate him about the alleged crime nor did Ms. Harding volunteer to leave if N.F. did not want to speak to her. Appellate counsel asserts that “[a] twelve year-old boy could not have been expected to understand he could refuse to speak with her or the ramifications if he did speak to her” nor could the twelve-year-old boy understand that the child protection worker was not questioning him in a law enforcement capacity.

Considering the totality of the facts in the instant case, we find that Ms. Harding was not acting as an agent for law enforcement. Ms. Harding did not conduct the interview at the request of the police department, was not instructed by the police as to what'questions to ask, did not discuss N.F.’s case with law enforcement or any district attorneys prior to interviewing N.F., and did not read any police report prior to interviewing N.F. Ms. Harding did not interview N.F. in order to investigate the criminal allegations against N.F., nor is there any testimony that the charge brought against N.F. was increased as a result of Ms. Harding’s report. Most importantly, there is no evidence that the police purposefully used, manipulated, or were in cahoots with Ms. Harding for purposes of conducting the interview on their behalf. Under these circumstances, we find that the trial court did not abuse its discretion in finding that no Miranda rights were required to be_[_ygiven before Ms. Harding interviewed N.F. Thus, the trial court did not abuse its discretion in denying N.F.’s motion to suppress his statement to Ms. Harding.

For the foregoing reasons, even if we were to find the statement to Detective McGalliard was involuntary, the error is harmless in light of N.F.’s subsequent statement to Ms. Harding and the other evidence introduced at trial. N.F. told Ms. Harding that he put “it” in, and D.W. told him to stop. N.F. said he stopped, took “it” out, and blood came out. D.W. testified in both the Hearts of Hope interview and the adjudication hearing that N.F. was “getting on [her].” D.W. also stated in the Hearts of Hope interview that N.F. made her bleed. At the adjudication hearing, D.W. nodded when asked if the blood started after N.F. got on top of her. N.F.’s sister testified that she, D.J., and D.W. all took a bath together and that D.W. was not bleeding when N.F.’s sister put her in the tub. N.F.’s sister called N.F. to get D.W. out of the tub. N.F. gave D.W. a towel, which D.W. wrapped around herself. N.F. and D.W. left together. After two or three minutes, N.F.’s sister went into N.F.’s room and saw blood drops going into the room “like by the door” and blood dripping down D.W.’s leg. N.F.’s sister also saw a puddle of blood by the “post of the bed.” Additionally, the medical testimony supported a finding that D.W.’s injury was the result of forceful penetration of an object with enough rigidity to tear the vaginal opening. According to Dr. Falterman, a prepubescent penis, if used forcefully, could have caused D.W.’s injury. Additionally, Dr. Falterman testified that D.W.’s bleeding would have started immediately in relation to the time of the injury. Finally, the trial court stated that the evidence against N.F. was overwhelming even without considering his statements. Thus, even if N.F.’s initial statement to Detective McGalliard was the product of coercion, we conclude that any error in the admission of the statement was harmless.

| ^Accordingly, this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 & 3:

N.F. argues that the trial court erred in concluding that the victim (a four-year-old at the time of trial) was competent 'to testify at the adjudication hearing and that the Hearts of Hope taped interview was admissible at the hearing. N.F. further argues that the trial court erred in admitting the videotaped interview as it was impermissible hearsay and a denial of N.F.’s right to confront his accuser.

Competency of D.W. to Testify

Prior to adjudication, N.F.’s counsel filed a Motion to Determine Competency of the Minor Victim and Minor Witness. Defense counsel agreed that the trial court’s determination of the victim’s competency could wait until trial. The first witness called by the State at the adjudication hearing was the victim, D.W. The State also asked permission for D.W. "to sit on her mother’s lap during her testimony. Defense counsel objected to the competency of D.W. and objected to D.W. sitting on her mother’s lap. The trial court ruled as follows:

Well, the Court has to — obviously a four (4) year old is to be dealt with differently by the Court. The Court should be protecting her. And her knowledge of what’s going on is not going to be — I’ll just have to take into consideration her age and the eireum-stances in determining how much weight to give her testimony.

Defense counsel also objected to D.W.’s competency based on her unresponsiveness in the Hearts of Hope interview. The trial court overruled the objections to D.W.’s competency without reasons.

As noted in appellate counsel’s brief, the trial court did not make a formal ruling on D.W.’s competency to testify. Rather, the trial court stated that it would consider D.W.’s age and circumstances in determining the weight to give her testimony. In its denial of N.F.’s Motion to Vacate the Adjudication, the trial court stated that it gave great weight to D.W.’s testimony in adjudicáting N.F. Thus, it | ^appears that the trial court determined D.W. was competent to testify. Accordingly, we will address the correctness of the trial court’s determination that D.W. was competent to testify in both her Hearts of Hope interview and her testimony at trial.

In brief, appellate counsel alleges that despite defense counsel’s questioning of D.W.’s competency to testify, the trial court “took no extra measures to assure her ability to tell the truth when she was called to the stand nor did he make a specific ruling on competency.” Appellate counsel further asserts that nothing in D.W.’s testimony suggests she was a competent witness.

Jurisprudence has set forth.the following guidelines in reviewing a trial court’s determination of competency to testify:

[Louisiana Code of Evidence Article] 601 provides: “Every person of proper understanding is competent to be a witness except as otherwise provided by legislation.” Understanding, not age, is the test of whether any person shall be sworn as a witness. State v. Linson, 94-0061 (La.App. 1 Cir. 4/7/95), 654 So.2d 440, writ denied, 95-1120 (9/22/95), 660 So.2d 470; State v. Trout- liet, 94-183 (La.App. 5 Cir. 9/14/94), 643 So.2d 1267. A key determination to be made is whether the witness is able to understand the difference between truth and falsehoods. State v. Troulliet, supra; State v. Doss, 522 So.2d 1274 (La.App. 5 Cir.1988), writ denied, 530 So.2d 563 (La.1988). Determination that a child is competent to testify as a witness is based not only on the child’s answers to questions testing his understanding, but also in the child’s overall demeanor. State v. Bennett, 591 So.2d 1193 (La.App. 1 Cir.1991), writ denied, 594 So.2d 1315 (1992).
The trial court is vested with wide discretion in determining the competency of child witnesses. Its ruling as to competency is entitled to great weight on appeal, and will not be disturbed absent manifest abuse of discretion. State v. Foy, 439 So.2d 433 (La.1983); State v. Troulliet, supra.

State v. Cedrington, 98-253, p. 22 (La.App. 5 Cir. 12/16/98), 725 So.2d 565, 577, writ denied, 99-190 (La.6/4/99), 743 So.2d 1249, and writ denied, 99-431 (La.6/25/99), 745 So.2d 1182.

|uTo begin, we note that the trial court failed to engage in any colloquy with D.W. to establish whether she understood the difference between the truth and a falsehood. Likewise, the State did not ask D.W. if she knew the difference between the truth and a lie. During her questioning of D.W., defense counsel asked D.W. if she knew what a lie was. The transcript does not reflect a verbal response but only “(Indicating).” Defense counsel then stated, “No? Okay.”

During the Hearts of Hope interview, the interviewer attempted to explain to D.W. that she needed to tell only the truth, but D.W. did not respond to the interviewer and was more interested in coloring her pictures. Although D.W. responded correctly when the interviewer first asked her name, D.W. also responded “yes” when the interviewer asked if her name was D.J. In a series of questions apparently attempting to determine whether D.W. knew the difference between the truth and a lie, D.W. exhibited confusion. Pointing to a “red” bird, the interviewer asked D.W. the color of the bird. D.W. correctly stated that the bird was “red.” However, when asked if the same bird was “blue,” D.W. nodded “uh huh” and stated that the bird was “blue.” Then, D.W. correctly stated that the water in the bird bath was “blue.” When asked by the interviewer, however, if the water in the bird bath was “green,” D.W. nodded “uh huh” and stated that the water in the bird bath was “green.” The interviewer then asked D.W. whether she would be telling the truth or lying if she said the water in the bird bath was “blue.” D.W.’s response sounds like either “lying” or “are you lying.” The interviewer asked again if she would be telling the truth or lying if she said the bird bath was “green.” D.W. would not answer. D.W. did, however, correctly state that the color of the bird was “red.” Finally, near the conclusion of the Hearts of Hope interview, one of D.W.’s responses indicated some understanding of a lie. The interviewer asked D.W. about telling her daddy what happened to her. Instead of | ^responding as to what she told her daddy, D.W. stated that N.F. said he did not do it, and D.W. told him to stop lying because he did do it.

In its brief, the State argues that D.W.’s testimony indicates she was competent to testify — D.W. testified as to her age, where she attended school, her mother’s name, and the number of her siblings. D.W. also testified both in the Hearts of Hope interview and at the adjudication that N.F. “got on her” and made her bleed.

Despite confusion in D.W.’s testimony, we note that her testimony was consistent that N.F. was the one who got “on her” and made her bleed. Additionally, D.W.’s accusations against N.F. were supported by other testimony at trial. N.F.’s sister testified that D.W. came to her house on July 3, 2012. According to N.F.’s sister, she, D.J., and D.W. all took a bath together and that D.W. was not bleeding when N.F.’s sister put her in the tub. N.F.’s sister called N.F. to get D.W. out of the tub. N.F. gave D.W. a towel, which D.W. wrapped around herself. N.F. and D.W. left together. After two or three minutes, N.F.’s sister went into N.F.’s room and saw blood drops going into the room “like by the door” and blood dripping down D.W.’s leg. N.F.’s sister also saw a puddle of blood by the “post of the bed.” According to N.F.’s sister, D.W. was on the bed with her clothes off. N.F. had his clothes on. Moreover, N.F. admitted to D.W.’s accusations against him in both his statement to Detective McGalliard and his statement to Ms. Harding. Finally, the medical testimony supported a finding that D.W.’s injury was the result of forceful penetration and that her bleeding would have started immediately in relation to the time of injury.

Despite the trial court’s failure to specifically question D.W. as to her understanding of the truth and a falsehood, this court finds that the trial court did not abuse its discretion in determining that D.W. was competent to testify. After | shearing D.W.’s Hearts of Hope interview and observing D.W.’s testimony at the adjudication hearing, the trial court placed great weight on D.W.’s testimony.- Absent an abuse of discretion, this determination should not be disturbed on appeal. State v. Foy, 439 So.2d 433 (La.1983). Considering the physical evidence and other testimony that corroborated D.W.’s testimony, we find that the scant indications in the record as to whether D.W. knew the difference between the truth and a lie are not sufficient to overturn the trial court’s finding of competency.

Admissibility of Hearts of Hope Interview:

In brief, N.F. alleges that the trial court erred in allowing the Hearts of Hope interview into evidence because thé strict requirements of La.R;S. 15:440.1-440.6, pertaining to videotapes and other electronic recordings, were not met. Specifically, N.F. argues that the questions asked by the interviewer were calculated to lead D.W. to give a particular response, the questions asked by the interviewer were repeated over and over, and the answers given by D.W. were non-responsive. Additionally, N.F. asserts that D.W. was impressionable and not competent to testify. Finally, N.F. argues that his confrontation rights were violated by the admission of the. videotape without the ability to effectively cross-examine D.W. as to the facts surrounding her accusations.

During the testimony of D.W., the State offered the Hearts of Hope video interview of D.W. At that time, defense counsel objected to the introduction of the tape based on “competency.” The trial court noted defense counsel’s objection but stated that it did not prohibit the viewing of the video. Defense counsel then stated she also objected to the “hearsay nature of the video,” which the trial court overruled. A third time, defense counsel noted that she objected “to the qualifications of Ms. Joseph to conduct the interview.” Defense counsel explained that there. was nothing showing any type of certification of the interviewer. The | atrial court overruled defense counsel’s objection. Then, during the court’s viewing of the interview, defense counsel objected, stating “For the record, Your Honor, I’d like to object to the response to no-response.” The trial court told defense counsel to write notes and make her objections at the end of the interview. At the end of the playing of the interview, defense counsel noted her objection to D.W.’s non-responsiveness to questions and D.W.’s competency. The trial court overruled the objections.

We find that N.F.’s general “hearsay” objection to the Hearts of Hope video was not sufficient to preserve a challenge on appeal as to all of the requirements set forth in La.R.S. 15:440.1-440.6. “To preserve an error for appeal, Defendant must state the basis for the objection, point out the specific error to the trial court, and the grounds for the objection must be sufficiently brought to the trial court’s attention so as to allow it the opportunity to make the proper ruling and prevent or cure any error.” State v. Dubroc, 99-730, p. 17 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 308-09 (citing State v. Trahan, 93-1116 (La.App. 1 Cir. 5/20/94), 637 So.2d 694). Since N.F.’s general “hearsay” objection was not sufficient to preserve a challenge to all of the requirements set forth above, we will not address whether the requirements of La. R.S. 15:440.4 were met in this case for the videotape to be considered competent evidence.

Rather, we will address the specific arguments regarding the admissibility of the video-taped interview now raised in N.F.’s brief. As previously mentioned, N.F. alleges that questions asked by the interviewer were calculated to lead. D.W. to give a particular response, that questions asked by the interviewer were repeated over and over, and that answers given by D.W. were non-responsive. Defense counsel raised only one of these allegations in the trial court — the non-responsive answers by D.W. Thus, we find that the allegations as to the leading and 118repetitious questions were not preserved for appellate review and will not be addressed. Further, the responsiveness of D.W.’s answers merely goes to her competency to give testimony and the weight to be given to that testimony by the trier of fact.

N.F.’s appellate counsel asserts that N.F.’s confrontation rights were violated by the admission of the videotape without the ability to effectively cross-examine D.W. as to the facts surrounding her accusations. Appellate counsel argues that because D.W. did not answer many of the questions posed to her about the facts which formed the basis of the accusations against N.F., N.F. was denied his constitutional right to confront his accusers. As this eiror was not alleged below, we find N.F. has not preserved it for appeal. See State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366, writ denied, 00-208 (La.8/31/00), 766 So.2d 1274.

Accordingly, this assignment lacks merit.

CONCLUSION

We affirm N.F.’s adjudication for aggravated rape. However, we amend the disposition to give N.F. credit for time served in a secure detention facility before the imposition of disposition, if any, and instruct the trial court to note the amendment in the court minutes. Additionally, we order the trial court to inform N.F. of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that N.F. received the notice.

AFFIRMED AS AMENDED.

      . While the trial court may have considered N.F.’s statement to Detective McGalliard in the cumulative evidence, we omit this statement from our discussion because we have declined to rule on its admissibility. Likewise, this statement is excluded from the evidence which we find is sufficient to uphold N.F.'s conviction.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Phillip Wayne RAINES.
    No. 13-304.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.
    James C. Downs, District Attorney— Ninth Judicial District Court, W.T. Armi-tage, Jr., Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Michael A. Brewer, Law Office of Michael A. Brewer, Alexandria, LA, for Defendant/Appellant, Phillip Wayne Raines.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

1 j Defendant, Phillip Raines, was charged by a bill of information with sexual battery, a violation of La.R.S. 14:43.1. Defendant was tried by jury and was found guilty as charged. The trial court sentenced Defendant to thirty months at hard labor, without the benefit of probation, parole, or suspension of sentence. For the following reasons, we vacate Defendant’s conviction and sentence and remand to the trial court for further proceedings.

Twenty-three-year-old P.K. underwent an emergency procedure for appendicitis at Rapides Regional Medical Center in Alexandria, Louisiana. P.K. testified that the first time he awoke in the recovery room, he found Defendant standing over him with one hand on his thigh and the other hand rubbing the area of the incision. When he awoke the second time, Defendant was holding his penis with one hand and his testicles with the other hand, with a finger inserted into his rectum. P.K. said that the man was performing oral sex on him. P.K. stated that Defendant asked if his girlfriend did the same for him and if he had ever been with a man before. When Defendant asked him if he needed to urinate, P.K. saw an opportunity to get out of the hospital bed and run away. Defendant helped him sit up in the bed. P.K. then bolted out of the recovery room and ran out of a door to the outside.

P.K. testified that immediately outside of the door, he encountered a woman smoking a cigarette. She tried to take him back inside, but P.K. continued on around to the side of the hospital, where he knew the emergency room entrance was. At the reception desk, he asked for the security guard. P.K. told security that he had been raped. P.K. testified that he had never met Defendant before the incident. Although P.K. testified that he was perfectly clear-headed and was not |2hallucinating, he admitted that after the police arrived, he had to be awakened several times to give them a statement of what occurred and that he gave his mother’s address as his own address.

Defendant has perfected a timely appeal, wherein he alleges:

1. The trial court erred in denying a Motion to Suppress and a Motion in Limine.
2. The jury erred in convicting Phillip Raines of the Crime of Sexual Battery as there was insufficient evidence to support the conviction.
3. The trial court erred in denying a Motion for Mistrial.
4. The trial court erred in granting the State’s Notice of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts.
5.The trial court erred in imposing a thirty month sentence on the charge of Sexual Battery as the sentence is constitutionally excessive.

Because we have found that the trial court should have declared a mistrial, Defendant’s assignments of error one, two, four, and five are rendered moot.

FACTS AND PROCEDURAL HISTORY

Sexual battery is defined as:

[T]he intentional touching of the anus or genitals of the victim by the offender using an instrumentality or any part of the body of the offender, or 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, when any of the following occur:
(1) The offender acts without the consent of the victim.

La.R.S. 14:43.1(A)(1).

A portion of P.K.’s testimony of events was verified by the woman he encountered outside the hospital, Christine Tobey. To-bey, a nurse at the hospital, testified that he “looked very upset and very wide eyed” when she first saw him. P.K. told her that someone had sexually abused him. However, she also stated that patients are often confused when coming out from anesthesia. Donna Lemoine, |3the coordinator in the emergency room the night of the incident, testified that P.K. kept repeating to her that he had been raped and wanted his mother and the police called.

David Rachal, a registered nurse, but at the time a technician who assisted at the hospital, testified that he was called into work the night of the incident to assist Defendant in caring for P.K. once he was moved to the recovery room. Rachal stated that P.K. woke up seemingly out of a dead sleep, confused and- “talking out of his head,” and then said to Defendant, “I’m sorry, you’re not who I thought you were.” Rachal testified that P.K. was confused and hysterical. He said that Defendant went to P.K., reassured him, and calmed him down. Rachal stated that when P.K. expressed pain, Defendant administered pain medication. Rachal described Defendant’s actions as normal and appropriate. However, Rachal left the hospital once P.K. was settled because he had to return to work early that morning.

Two detectives testified for the State, Detective Ronnie Howard, an officer with the Alexandria City Police Department, and Detective Clyde Carmouche, an investigator for the Rapides Parish District Attorney’s Office. Detective Howard conducted the interrogation of Defendant on the day of the incident. He stated that Defendant was very cooperative, waived his Miranda right to maintain silence and have counsel present, and consented to a DNA swab. He further told the jury that during the interview, Defendant told him that he had engaged in two same-sex relationships in high school and had been accused of inappropriate touching whén he served in the military.

Detective Carmouche testified that Defendant called him early on the Monday morning after the incident and told him that he was being charged with sexual battery. After Detective Carmouche asked him what had happened to cause Rthe allegation, Detective Carmouche testified that Defendant told him that he had consensually masturbated P.K. because he had an erection, had placed his mouth on P.K’s penis, and had penetrated P.K.’s anus with his finger. Defendant then said that he was not worried' about having P.K’s DNA on his hands because he was careful to wash thoroughly. Detective Carmouche stated that Defendant then asked him for a recommendation for an attorney. Detective' Carmouche stated that he and Defendant were acquáintances from church and had worked together in the U.S. Marshal’s Office several years prior. Detective Carmouche said that Defendant was well aware that he worked for the District Attorney’s Office.

Defendant denied Detective Car-mouche’s rendition of the conversation. He denied that he used the words “erection” or “masturbation.” He further stated that when he used the word “consent” he was referring to the fact that P.K. consented to Defendant helping him urinate into the urinal. Defendant testified that he told Detective Carmouche what P.K. had alleged he did, not what he actually did to P.K.

Defendant asserted that when P.K. began to wake up after the surgery, he was hysterical, disorientated, and in pain. He gave P.K. a dose of Fentanyl, a pain medication. P.K. kept mumbling about Defendant not being who he thought he was. P.K. woke up several times in pain, and Defendant gave him more doses of Fenta-nyl. Defendant stated that this much pain was atypical for someone who had a surgery like P.K’s. At one point, P.K. complained of being nauseated so Defendant gave him a dose of Demerol, which contained the drug Phenergan. Defendant explained that he asked P.K. if he had to urinate because an extended bladder could cause pain. P.K. said he did, so Defendant put a urinal between his legs and, without using gloves, placed P.K’s penis in the urinal. However, P.K. |scould not urinate. Shortly thereafter, P.K. awoke again in pain, and Defendant asked him if he could urinate if he was standing up. P.K. said yes, so he helped P.K. to sit upright on the bed. When he turned his back to get tape to secure the IV in place, P.K. ran out of the recovery room.

Defendant told the jury that he was forty-seven years old, married, and had a twenty-three year old son who was a paramedic in Alexandria, a twenty-two-year-old son who was currently in Afghanistan with the army, and two young sons aged nine and seven. Defendant served in the military as a nurse corps officer for over twenty-five years. During this time, he worked for the U.S. Marshal’s Office as a prisoner transportation nurse, where he had first met Detective Carmouche. After he retired from the service, he worked at various hospitals and eventually arrived at Rapides Regional Medical Center.

Michelle Vrana, who worked at the Northern Louisiana Criminalistic Laboratory, qualified as an expert in DNA analysis. She testified that she received a cheek swab from Defendant and two swabs from P.K.’s penis. She stated that none of Defendant’s DNA was located on P.K’s penis, nor was any of P.K’s DNA found in Defendant’s cheek swab.

Dr. Thomas Arnold, a medical toxicologist with the Louisiana State University Health Science Center in Shreveport, testified that he reviewed the hospital record regarding the drugs P.K. was given during and after the surgery. He stated that there were six entries of 50 meg of Fenta-nyl administered after P.K. was in recovery, which were reasonable dosages for someone after abdominal surgery. He explained that Fentanyl was an opiate and can cause depressed mental alertness. Dr. Arnold stated that Demerol is a much stronger pain medication and not used much anymore. However, Demerol often nauseates a patient; therefore, Lthe Phen-ergan is used to combat the sickness. He described Phenergan as a “tough medication” which can cause hyper-excitability and hallucinations. Dr. Arnold agreed that the timing of the administration of Demerol with Phenergan, along with the Fentanyl, could well have caused a reaction “to such a degree that a person believes something is happening to him that is not in fact happening to him[.]”

The only direct evidence of a sexual battery was P.K.’s testimony, and P.K’s mental state was in question. Defendant’s DNA was not found on P.K.’s penis, nor was P.K.’s DNA found in Defendant’s mouth. There was expert testimony that the combination and effects of the drugs given to P.K. could have caused confusion and hallucinations.

Rachal and Tobey, both nurses, testified that P.K. exhibited confused, irrational, and hallucinatory behavior. They testified that P.K.’s confused behavior was not uncommon considering the emergency surgery and the drugs he was administered following surgery. Dr. Arnold, an expert in medical toxicology, testified that the combination of drugs given to P.K. during and following surgery could have resulted in hyper-excitability and hallucinations and explained P.K’s perceptions. Defendant’s explanation of his conduct caring for a recovering patient in P.K.’s situation was reasonable.

DISCUSSION

Two statements made one after the other by Detective Howard during trial violate the mandate of La.Code Evid. art. 404(B)(1), which prohibits the admission of “evidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that he acted in conformity therewith.”

|7Regarding the admissibility of other crimes evidence, in State v. Jarrell, 07-1720, pp. 10-11 (La.App. 1 Cir. 9/12/08), 994 So.2d 620, 629-30, the first circuit noted:

It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. Article 404(B)(1). Evidence of other crimes, wrongs, or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. The State may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Article 404(B)(1). Upon request by the accused, the State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. The State also bears the. burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Rose, 06-0402, p. 12 (La.2/22/07), 949 So.2d 1236, 1243.
Although a defendant’s prior bad acts may be relevant and otherwise admissible under La.Code Evid. art. 404(B)(1), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. Article 403. Any in-culpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test,, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id, See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some coneededly relevant evidence to lure the factfin-der into declaring guilt on a ground different from proof specific to the offense charged.”) Rose, 06-0402 at p. 13, 949 So.2d at 1243-44.
As is pertinent here, La.Code Crim. P. art. 775, provides that a mistrial shall be ordered when prejudicial conduct in the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770. Upon motion of defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the district attorney, during trial or in argument, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Article 770(2). A mistrial is a drastic remedy and should be granted | sonly . when the defendant suffers such substantial prejudice that he is deprived of any reasonable expectation of a fair trial. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that discretion. State v. Berry, 95-1610, p. 7 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603.

The State filed a “768 Notice to Defendant” and a “Notice of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts” regarding its intent to use a statement made to Detective Howard by Defendant during the interrogation. Detective Howard stated that Defendant had told him that he had engaged in two same-sex relationships in high school. At the hearing regarding the notice of intent, Defendant argued that the acts were not relevant to the current accusation. The trial court ruled that it was relevant and allowed the statement to be admitted into evidence by Detective Howard at trial.

At trial, however, Detective Howard testified as follows:

Q. Okay. Did you take a statement— did he give you an oral statement first?
A. Yes, I spoke with him. I talked with him prior to taking the actual tape recorded statement from him. Because of the allegations made against him, I wanted to establish what kind of history he had and what kind of relationships he had been in. So, I ...
Q. Did he, did he tell you what kind he had been in?
A. Yes, sir, he did.
Q. Tell us what he said.
A. He told me that he had had a same — two same sex relationships in high school, and that, uh, he was actually accused of inappropriate touching; I believe it was, in the military.

Defendant objected to the additional statement regarding being accused of inappropriate touching in the military and moved for a mistrial. The State argued that it was surprised by the statement, and that an admonition to the jury to 19disregard the statement would be sufficient. Defendant argued that the statement was “serious and grievous and prejudicial” to Defendant’s right to a fair trial. The trial court, while noting that the comment was not admissible, agreed with the State that an admonishment was sufficient. The trial court advised the jury to disregard the statement about inappropriate touching in the military, stating that “once you have toothpaste in a tube and someone squeezes it out you can’t get toothpaste back in a tube.” The trial court then asked each juror if they could follow its instruction, and each juror replied affirmatively. Defendant objected to the trial court admonishing the jury rather than granting a mistrial.

Defendant argues, first, that it was error for the trial court to have allowed the admission of Detective Howard’s testimony that Defendant told him he had two same-sex relationships in high school. This statement was not recorded during the interrogation or transcribed but only reported by Detective Howard. Second, Defendant argues that, coupled with the statement that he was accused of inappropriate touching in the military, the statement was so prejudicial as to deprive him of a fair trial.

In State v. Grant, 41,745, p. 14 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, 834, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629, the second circuit noted:

Admissibility of evidence of these prior acts has been succinctly set forth in State v. Jackson, 93-0424 (La.10/18/93), 625 So.2d 146, and the state is required to do the following when it seeks to present such evidence: (1) comply with the notice requirements and limiting instructions set out in State v. Prieur, [277 So.2d 126 (La.1973)] supra; (2) prove by clear and convincing evidence that the other act occurred and was committed by the defendant; (3) show that the evidence falls within one of the La. C.E. art. 404(B) exceptions to the general exclusionary rule and that this exception is relevant to the outcome of the case; and (4) show that the probative value of the evidence outweighs its potential prejudicial value. The trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670.

At the hearing, the State told the trial court, “We do not believe that this is a bad act, or certainly a crime, but is relevant.” This was the entirety of the State’s argument. Defendant questioned the relevancy, but the trial court ruled, without reasons, that the statement was relevant and therefore admissible. As pointed out by Defendant, these two relationships occurred thirty years prior to the trial. There was nothing to indicate they were actually sexual acts or were not consensual. Defendant was not a nurse at the time, and any acts presumably were not committed while the other person was unconscious and in Defendant’s care. Defendant alleges that “[t]his testimony was elicited for one reason and one reason only: to establish that Phil Raines engaged in homosexual conduct.” Contrarily, the trial court ruled that the second statement, that Defendant was accused of inappropriate touching in the military, which indicated nonconsensual activity when he was a nurse, warranted admonition to the jury to disregard the statement. In State v. Ventris, 10-889, p. 23 (La.App. 5 Cir. 11/15/11), 79 So.3d 1108, 1124, it was said:

Even when the other crimes evidence is offered for a purpose allowed under Article 404,, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. See La. C.E. art. 403; [State v.] Jacobs, [99-991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002) ] supra. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

We agree with Defendant. There was no relevance shown between the fact that Defendant had same-sex relationships in high school and the offense of which |nhe was accused. While the fact that Defendant had same sex-relationships as a teenager established only that he was attracted to males during his youth, the implication that he was accused of inappropriate touching in the military mentioned in the very next breath very well could have tainted the first statement,, leading the jury to conclude Defendant has committed a succession of nonconsensual sexual acts against males.

This court in State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006), explained that the erroneous admission of other crimes evidence was subject to a harmless error analysis. Further, quoting State v. Bell, 99-3278, pp. 5-6 (La.12/8/00), 776 So.2d 418, 421-22, this court noted:

[t]he erroneous admission of other crimes evidence is subject to harmless error analysis under the standard set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Gibson, 391 So.2d 421 (La.1980). Under Chapman, an appellate court must decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824.
The Chapman standard was later refined in Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), as follows:
“Consistent with the jury-trial guarantee, the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.... The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (emphasis in original).

Willis, 915 So.2d at 389.

The statements made by Detective Howard were extremely prejudicial to Defendant and cannot be found to be harmless error. These two statements tainted the jury’s view of Defendant as a long-term same-sex sexual predator. We conclude that the trial court erred when it allowed Detective Howard to repeat Defendant’s statement that he had engaged in same-sex relationships when he was in high school. Furthermore, this statement, coupled with Detective Howard’s spontaneous and inadmissible statement that Defendant was accused of inappropriate touching while in the military, despite the admonition to disregard the statement, was unduly prejudicial and outweighed any probative value it may have had to the trial. Further, considering that the evidence against Defendant was not overwhelming, we can only find that these statements contributed to the jury’s conviction of Defendant. Thus, we find that the trial court abused its discretion in failing to order a mistrial. Defendant was denied a fair trial. Accordingly, we vacate Defendant’s conviction and sentence and remand to the trial court for further proceedings.

DECREE

Defendant’s conviction and sentence are vacated and the matter is remanded to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Robert LEE.
    No. 13-500.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.

      Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, LA, Attorney for Appel-lee, State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, Attorney for Defendant/Appellant, Robert Lee.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

|2In this criminal appeal, Defendant asserts ineffective assistance of counsel for failure to file a motion to suppress the fruits of a warrantless search of the residence where he was detained. Defendant was eventually found guilty of the charges of creation or operation of a clandestine lab for the unlawful manufacture of a controlled dangerous substance and public intimidation.

FACTS AND PROCEDURAL HISTORY

On February 12, 2011, Captain Shawn Eckhart, with criminal investigations for the Evangeline Parish Sheriffs Department, received “several different phone calls from anonymous callers” that led him to investigate Defendant, Robert Lee. He became aware that Defendant purchased pseudoephedrine, “a known precursor for methamphetamine,” on February 11, 2012. Captain Eckhart and Detective Joey Pele-quin went to Turkey Creek, Louisiana. They also received a tip that Defendant might be in a Ford F-150 truck. The officers located the vehicle parked at a residence next door to the home of Defendant’s father. The truck belonged to Kimberly Campbell.

The officers left the residence, and when they returned, the truck was gone. They went to a residence on Crooked Creek Parkway owned by Randy Cole around midnight to 1:00 a.m. and found the vehicle parked there. They knocked on the door of the residence, and Defendant answered. Captain Eckhart identified Defendant at trial.

Captain Eckhart’s investigation revealed other occupants of the house had also purchased pseudoephedrine within twenty-four hours of this incident. It was believed the suspects would be making methamphetamine, but the officers did not know prior to arrival at Cole’s residence if the suspects would make it there, at Defendant’s residence, or elsewhere.

| .¡Defendant “seemed a little bit uncooperative with the questions” the officers asked. “He attempted to shut the door on [them] several times and Detective Pele-quin noticed that he was wearing a batting glove and he also had what appeared to be a sheath protruding from the side of his belt with — a knife.” Captain Eckhart noted the “shake and bake” process produces heat.

Captain Eckhart became aware of an odor “consistent with a meth lab, or that of the metallic smell.” After seeing the knife sheath and noticing the odor, they conducted a safety pat down of Defendant, who was uncooperative with simple questions and had slurred speech. Captain Eekhart went to the rear of the residence to secure the back door, which Detective Pelequin noticed was open. He saw “a small, green in color Sprite like bottle sitting on the back concrete area of the back door,” about two or three feet from the door. Its contents were bubbling, and Captain Eekhart suspected the “shake and bake” method of cooking methamphetamine was taking place.

Detective Pelequin yelled into the residence for the owner, and he came downstairs. Captain Eekhart searched the house and found Campbell, Victoria Shaw, and Cole, the residence’s owner. In the kitchen, he found blenders, hydrogen peroxide, Drano, salt, and coffee filters. The blender contained a white powder residue.

The officers searched the home because they knew four people were involved, and they only had Defendant in their presence. If the others inside were making methamphetamine and “were to put that bottle on the floor and go hide somewhere else it’s a very, very good possibility that one of those bottles may burst and cause flames.” The search was conducted for the safety of the investigators as well as the occupants of the trailer. The officers did not find any other methamphetamine production taking place.

| ¿Detective Pelequin confirmed Captain Eckhart’s testimony. They saw the white pickup truck owned by Campbell at a residence “right at midnight.” On February 12, 2011, the department “had received numerous anonymous tips from different people about the subjects conducting their self [sic] in this illegal manner” at “a trailer house in Turkey Creek belonging to [Defendant].” They left the residence and arrived at 5799 Crooked Creek Parkway, Defendant’s residence, where they had been advised people were cooking methamphetamine. The white pickup was present.

Detective Pelequin and Captain Eekhart knocked on the door of the residence; they did not have a search warrant and normally did not for a “knock and talk.” Defendant answered the door and would not let them inside until the owner, Cole, agreed. Defendant tried to close the door; the officers wanted him to leave it open for safety reasons. They observed a knife sheath hanging from Defendant’s belt; Defendant reached for it when Detective Pelequin asked him about it. Detective Pelequin state he grabbed Defendant and did a weapons pat down.

When they removed Defendant from the doorway to do the pat down, Detective Pelequin could see “straight through the house” and Observed an open sliding glass door. He smelled a “pungent chemical odor ... a burning odor[.]” Detective Pe-lequiri and Captain Eekhart “were unsure if "there was anybody else, maybe somebody fled the scene, or was back there, so [Captain Eekhart] then proceeded around the residence to make sure there were no dangers there.” Captain Eekhart “found a green bottle that was bubbling and in [Detective Pelequin’s] training, that was consistent "with that of a shake and bake meth lab[.]” They were “unsure of anyone else being in the residence, or any other labs cooking inside the residence, so under the exited [sic] circumstances [they] entered the ^residence to clear it for [their] safety and whoever is in the residence safety.” Defendant was detained.

Captain Eekhart testified he attended classes on drug recognition and clandestine laboratories pertaining to methamphetamine labs in 2005. He had investigated approximately ten methamphetamine lab cases in Evangeline Parish at the time of trial. He described the odor associated with a methamphetamine lab “as a heating metal, metallic type of smell.”

Captain Eckhart explained the easiest type of clandestine methamphetamine lab involves the “shake and bake method”:

With the shake and bake method usually takes some sort of sports drink bottle and they use that, and they actually mix their ingredients in that bottle, and then they will shake the contents of that bottle to get an end result of methamphetamine or crystal meth after a filtering process.

This is the “cooking” of the methamphetamine. Likewise, Detective Pelequin attended a methamphetamine lab investigations course in which he learned:

... to identify the different precursors, and what their, dangers were and basically you know, how to act when you got on the scene and what to do with the different things, who to contact to bring in to clean up the mess, and just what to look for, as far as for being evidence in a meth lab.

Defendant was charged with creation or operation of a clandestine lab for the unlawful manufacture of a controlled dangerous substance, a violation of La.R.S. 40:983(A)(1); resisting an officer, a violation of La.R.S. 14:108; simple criminal damage to property over $500, a violation of La.R.S. 14:56; and public intimidation, a violation of La.R.S. 14:122. All violations allegedly occurred on February 12, 2011. An amended bill of information, filed August 8, 2012, charged Defendant with creation or operation of a clandestine lab and public intimidation.

| (¡Counsel filed a motion in limine which led to a ruling from the trial court that limited the testimony of Captain Eckhart. The jury found Defendant guilty of both charges. The trial court sentenced him to ten years at hard labor for the creation of a clandestine lab and to four years at hard labor for public intimidation. The sentences are to run concurrently. Defendant now claims his counsel was ineffective because he did not file a motion to suppress the fruits of the warrantless search of the residence where he was detained.

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 find there are no errors patent.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant asserts his counsel was ineffective because, he failed to file a motion to suppress the fruits of the warrantless search of Cole’s residence. He maintains the filing of a motion to suppress would have resulted in his acquittal of these charges.

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, an appellate court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id. If this court considers a claim of ineffective counsel on appeal, Defendant must satisfy a two-part test. He must first show counsel’s performance was deficient and next, that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

|7We find the record here is sufficient to determine whether the failure to file a motion to suppress constituted ineffective assistance of counsel. To determine if Defendant’s counsel was ineffective in this case, we must first ascertain whether the warrantless search was unconstitutional.

Defendant contends an anonymous tip has the lowest indicia of credibility for a search warrant because the tipster is not identified, and there is no relationship to the accused to provide credibility. The record contains no details of the anonymous tip. Rather, Captain Eckhart testified “[e]arlier that day [he] received personally several different phone calls from anonymous callers[.]” He had “received basically the same information where [Defendant] was put onto a precursor wateh[.]” On the same day as the anonymous tip, Captain Eckhart “received a hit from the precursor watch indicating that [Defendant] had purchased a known precursor for methamphetamine.” This amounted to independent, unrelated information that verified the • anonymous tip. Therefore, we find the anonymous tip has no influence on whether counsel was ineffective for failing to file a motion to suppress.

The objective of a “knock and talk” is to discover information; a police officer on such a discovery mission “may observe items in plain view and smell odors coming from the house.” Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1424, 185 L.Ed.2d 495 (2013) (citations omitted). “Louisiana jurisprudence allows the ‘knock and talk’ approach of police.” State v. Warren, 05-2248, p. 6 (La.2/22/07), 949 So.2d 1215, 1222.

Warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63. L.Ed.2d 639 (1980). The Fourth Amendment has drawn a firm line at the entrance to the home, and a police officer therefore needs both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into a private premises. State v. Talbert, 449 So.2d 446 (La.1984); State v. Hathaway, 411 So.2d 1074 (La.1982).

State v. Brisban, 00-3437, p. 5 (La.2/26/02), 809 So.2d 923, 927.

In Warren, 949 So.2d 1215, an officer performed a “knock and talk” at a hotel room after observing suspicious behavior. When the defendant answered the door, officers smelled the strong odor of marijuana smoke and saw. a small plastic baggie of what appeared to be marijuana on the bed inside the room. Officers arrested the defendant, patted him down, handcuffed him, and conducted a protective sweep of the room for other occupants, weapons, and evidence that could be destroyed by the defendant. They opened a large duffel bag on the bed and found a large quantity of marijuana. The defendant told officers two others were at the motel bar and would return soon.

The trial court determined the officers reasonably conducted the “knock and taik,” and they had probable cause to search the room without a warrant and arrest the defendant. However, the trial court found no exigent circumstances to justify the warrantless search of the interi- or of the bag. Thus, the trial court suppressed evidence of the seized marijuana. This court agreed because the bag was not within the immediate area and control of the defendant.

The Louisiana Supreme Court, however, found the warrantless search was objectively reasonable. In a “knock and talk,” an answered knock represents “a consent of the occupant to. confront the caller, and there is no compulsion, force or coercion involved.” Warren, 949 at 1222.

The court noted the general requirement of a warrant to enter a home but cited the “exigent circumstances” rule of United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.2003), cert. denied, 540 U.S. 841, 124 S.Ct. 110, 157 L.Ed.2d 76 (2003): “warrantless searches will be allowed when police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant.” Warren, 949 So.2d at 1224. Law enforcement’s reasonable fear for the safety of others in the premises constitutes an exigent circumstance. Id.

laHowever, probable cause must still exist to justify entry into a residence based on exigent circumstances. The probable cause determination “must be made from the totality of the circumstances, based on the objective facts known to the officer at the time.” Id. (citing United States v. Ferguson, 8 F.3d 385 (6th Cir.1993), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994)). The Warren court considered the recent drug activity in the area, the suspicious activities the officer observed, the results of the defendant’s criminal history search, and the possibility the two other occupants of the room could return at any moment, and it found the search of the bag permissible based on exigent circumstances. The court ultimately reversed the trial court and this court and held the motion to suppress was erroneously granted.

The defendant in State v. Lewis, 04-20 (La.App. 3 Cir. 6/2/04), 878 So.2d 758, appealed his first degree murder conviction on grounds that officers had no probable cause to enter the residence where he was found or to search the residence after consent from its owner. This court noted:

Exigent circumstances include situations where law enforcement officers have reasonable grounds to protect the lives of others, the entry and search is not motivated by an intent to arrest someone or to seize evidence, and there is a reasonable basis to associate an emergency with the area to be entered and searched. State v. Kirk, 00-190 (La.App. 4 Cir. 11/13/02), 833 So.2d 418, writ denied 02-3079 (La.5/9/03), 843 So.2d 394, (citing Roska v. Peterson, 304 F.3d 982 (10th Cir.2002), abrogated in part on other grounds, 328 F.3d 1230 (10th Cir.2003)). As stated in Kirk: “The United States Supreme Court has defined exigent circumstances as ‘a plausible claim of specially pressing or urgent law enforcement need.’ See Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).” Id. at 420.

Lewis, 878 So.2d at 763. This court agreed with the trial court that officers had probable cause and exigent circumstances for entry into the residence where officers reasonably believed in the immediate need to protect the life of a missing victim who may have been held there.

|10We find the officers in the present case had authority to conduct a “knock and talk” meeting. Once Defendant opened the door and they smelled what they believed to be the odor of methamphetamine production, they gained probable cause to determine whether that activity was actually taking place. Additionally, they already were aware Defendant had purchased known precursors for the manufacture of methamphetamine. Defendant was wearing a batting glove that would protect his hand from the heat produced from the “shake and bake” method of production. He also was armed with a knife.

Captain' Eckhart went to the rear of the residence to secure the open back door they had observed during the “knock and talk.” We find that was a reasonable and necessary action because the officers knew there were others inside the residence; it needed to be secured. Captain Eckhart saw the bubbling soda bottle, which he knew from experience and training could indicate the production of methamphetamine at that very moment. As Captain Eckhart explained, he did not know if others inside the residence might be doing the very same thing that would risk a fire that would endanger the lives of those inside and the lives of the officers. Thus, this factual scenario presented exigent circumstances that arose when Captain Eckhart observed the bottle and justifies the warrantless search.

Because the factual basis requires the denial of a motion to suppress, we cannot say counsel was ineffective by failing to file such a motion, and its filing would have led to Defendant’s acquittal. Thus, Defendant was not prejudiced by counsel’s representation. This assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant has made no showing trial counsel was ineffective by failing to file a motion to suppress evidence seized in the warrant-less search. Thus, Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The trial court's ruling on the motion in limine prohibited Captain Eckhart from saying he saw a chemical reaction taking place in the bottle he found in back of the residence. The ruling limited him to saying he saw something bubbling in the bottle.


author: TERRI F. LOVE, Judge. BONIN, J.,

text:
    Stephen Duncan SAUSSY, Jr. v. Leslie A. BONIN d/b/a Leslie A. Bonin, LLC and CNA Insurance Company.
    No. 2012-CA-1755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 4, 2013.

      Salvador M. Brocato, III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Plaintiff/Appellant, Stephen Duncan Saussy, Jr.
    David S. Daly, Elliot M. Lonker, Allen & Gooch, ALC, Metairie, LA, for Defendants/Appellees, Leslie A. Bonin and Leslie A. Bonin, LLC, et al.
    (Court, composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

_JjThis appeal arises from the alleged legal malpractice of the defendant. The plaintiff settled his underlying lawsuit involving child support for $8,000 and then filed suit against the defendant and her insurer for legal malpractice. The defendants filed a motion for summary judgment, which the trial court granted. We find that Mr. Saussy failed to provide factual support sufficient to show that he could meet his burden of proof as to his alleged loss at trial. Therefore, no genuine issues of material fact exist as to Mr. Saussy’s alleged losses. Because proof of loss is a central component in a valid legal malpractice action, the trial court did not err in granting the Defendants’ Motion for Summary Judgment and we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Attorney Leslie A. Bonin and Attorney William Bologna were hired by Stephen Saussy, Jr. to represent him in divorce and child support proceedings against his ex-wife prior to May of 2000. On or about May of 2000, Attorney Bonin began representing Mr. Saussy exclusively. During the course of these proceedings, Mr. Saus-sy’s ex-wife filed a Motion to Modify Child Support for two of the couple’s three children who resided with her. Attorney Bo-nin filed a Motion to Modify-Child Support when all three of the couple’s children resided with Mr. Saussy. Attorney Bonin sought child support for all three of the couple’s minor |2children on Mr. Saussy’s behalf. However, in a separate paragraph of the motion, child support was requested for only two of the couple’s children.

Mr. Saussy’s ex-wife filed a motion to recuse the trial court judge after discovering inter alia that Attorney Bonin represented the trial court judge’s daughter in a separate divorce proceeding. As a result, the trial court judge recused herself and the Saussys’ case was transferred to another division of the Civil District Court of Orleans Parish.

In October 2009, Attorney Bonin withdrew from her representation of Mr. Saus-sy, at his request. Mr. Saussy then retained Attorney Bologna to represent him. A hearing on the child support proceedings then occurred before the newly assigned trial court judge. During these proceedings, the trial court judge expressed that in order to decide the amount of 'child support to be awarded to each parent, he would consider the amount of time a child was living with a particular parent, regardless of whether the pleadings technically requested him to do so. However, the trial court judge did not rule on the custody issue because Mr. Saussy and his ex-wife entered into a settlement agreement, which was confected into the Consent Judgment and placed on the record. The trial court judge signed the Consent Judgment. Pursuant to the Consent Judgment, Mr. Saussy agreed to pay his ex-wife $8,000 in child support. Mr. Saussy did not receive any payment for child support according to the Consent Judgment.

Mr. Saussy then filed a legal malpractice suit in the Civil District Court of Orleans Parish against Attorney Bonin and Continental Casualty Company (“Continental”), Attorney Bonin’s professional malpractice insurance provider (collectively “Defendants”), claiming Attorney Bonin’s negligent legal ^representation caused him to suffer damages. Mr. Saussy alleged that Attorney Bonin committed malpractice by: (1) failing to file for child support for one of his children, resulting in his losing months of child support for that child; (2) failing to advise him and opposing counsel that Attorney Bonin represented the daughter of the original trial judge in the underlying proceeding; and (8) requiring him to incur substantial legal fees to hire new counsel.

The Defendants filed a Motion for Summary Judgment contending Mr. Saussy was estopped from asserting his legal malpractice claims and waived any rights to bring a legal malpractice case against the Defendants by voluntarily settling with his ex-wife, without attempting to correct the alleged error made by Attorney Bonin. Additionally, the Defendants asserted Mr. Saussy lacked factual support for the required elements of his malpractice claims and could not bear his required burden of establishing any genuine issues of material fact to support his malpractice claims. The trial court, finding no genuine issue of material fact existed, granted the Defendants Motion for Summary Judgment.

Mr. Saussy’s appeal follows.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary | ¿judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). “Pursuant to a 1996 amendment to the summary judgment article, the summary judgment procedure is now favored under our law.” Costello v. Hardy, 03-1146, pp. 8-9 (La.1/21/04), 864 So.2d 129, 137.

The movant carries the burden of proof. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial,” then the movant must establish “an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. The adverse party must then produce factual support illustrating that it will be able to meet the requisite evidentiary burden of proof at trial. Id. The adverse party “may not rest on the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B). If the adverse party fails to produce this factual support, then there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). However, “the trial judge cannot make credibility determinations on a motion for summary judgment.” Indep. Fire Ins. Co. v. Sunbeam, Corp., 99-2181, p. 16 (La.2/29/00), 755 So.2d 226, 236.

SETTLEMENT

The Defendants contend that Mr. Saussy is estopped from lodging and prevailing on a legal malpractice suit because he settled the underlying action prior to the trial court’s ruling.

The Louisiana Supreme Court found that the threshold issue in determining whether a party has a right to bring a legal malpractice suit when the party failed to appeal the trial court’s ruling is whether the party failed to mitigate damages |¿pursuant to La. C.C. art. 2002, rather than applying the doctrine of equitable estoppel. MB Indus., LLC v. CNA Ins. Co., 11-0303; 0304, p. 10 (La.10/25/11), 74 So.3d 1173, 1181. “The scope of a party’s duty to mitigate depends on the particular facts of the individual case, and a party is not required to take actions which would likely prove unduly costly or futile.” Id., 11-0303; 0304, pp. 10-11, 74 So.3d at 1181. The Louisiana Supreme Court held that “a party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal, given the facts known at the time and avoiding the temptation to view the case through hindsight.” Id., 11-0303; 0304, p. 13, 74 So.3d at 1182-83. The Court expounded that the “analysis is heavily dependent on the specific facts of the case.” Id., 11-0303; 0304, p. 13, 74 So.3d at 1183. Further, the Louisiana Supreme Court provided that

[a] court should take into account any relevant factors including, but not limited to, the nature of the alleged malpractice, the likelihood an appeal would have been successful, the likely expense of the appeal, and the possibility the peremp-tive period on. the, legal malpractice claim would have expired during the course of the appeal.

Id.

The First Circuit addressed a plaintiffs right to a legal malpractice action following the plaintiffs settlement of the underlying action wherein the settlement did not contain a reservation of rights. Brassette v. Exnicios, 11-1439, pp. 4-5 (La.App. 1 Cir. 5/14/12), 92 So.3d 1077, 1080. In following MB, the court found “that a party does not waive its right to file a legal malpractice suit by settling an | ^underlying suit, unless it is determined that a reasonably prudent party would not have settled the underlying case, given the facts known at the time and avoiding the temptation to view the case through hindsight.” Brassette, 11-1439, p. 10, 92 So.3d at 1084.

Accordingly, given the Louisiana Supreme Court’s holding, we find that a genuine issue of material fact exists as to whether Mr. Saussy acted as a reasonably prudent party by settling his underlying child support action prior to pursuing his action for legal malpractice. However, in order to defeat the Defendants’ Motion for Summary Judgment, Mr. Saussy must also demonstrate that genuine issues of material fact remain by meeting his burden of proof of producing “factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” in regards to the components of a valid legal malpractice claim. La. C.C.P. art. 966(C)(2).

LEGAL MALPRACTICE CLAIM

For a valid legal malpractice claim, the plaintiff must prove: “1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by. that negligence.” Costello, 03-1146, p. 9, 864 So.2d at 138. The plaintiff bears the burden of proving each of these elements. Id.

Attorney-Client Relationship

One of the basic tenets of establishing a claim of malpractice is proving that an attorney-client relationship existed at the time of the alleged malpractice. See Teague v. St. Paul Fire & Marine Ins. Co., 07-1384, p. 8 (La.2/1/08), 974 So.2d 1266, 1272; Costello, 03-1146, pp. 9-10, 864 So.2d at 138; Francois v. Andry, 05-0388, pp. 6-7 (La.App. 4 Cir. 4/5/06), 930 So.2d 995, 998; Joseph v. Gray, 05-0182, pp. 4-5 (La.App. 4 Cir. 8/3/05), 916 So.2d 1130, 1132.

| /‘The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists.” St. Paul Fire & Marine Ins. Co. v. GAB Robins N. Am., Inc., 08-0331, p. 8 (La.App. 4 Cir. 11/19/08), 999 So.2d 72, 77. “However, a person’s subjective belief that an attorney represents him must be reasonable under the circumstances.” Id., 08-0331, pp. 8-9, 999 So.2d at 77.

In the case sub judice, the parties disagree on whether there was an attorney-client relationship based upon what time period should be utilized to determine whether an attorney-client relationship existed. Mr. Saussy contends there was an established attorney-client relationship when the alleged malpractice took place, which would have been a time period when Attorney Bonin represented and worked for him. Conversely, the Defendants aver that there was not an attorney-client relationship because at the time the settlement for the underlying child custody case was confected, Attorney Bonin was no longer representing Mr. Saussy. The trial court judge held that when considering whether an attorney-client relationship existed, the focus should be on the time the alleged malpractice took place.

We agree. Here, it is undisputed that Attorney Bonin was Mr. Saussy’s attorney at the time she failed to plead for child support for one of his children. Consequently, there was an established attorney-client relationship between the parties in this action and no genuine issues of material fact exist as to this requirement of a valid legal malpractice action. Thus, we must determine if Mr. Saussy produced “factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” as to Attorney Bonin’s alleged negligent representation and loss suffered. La. C.C.P. art. 966(C)(2).

1 ¡Negligent Representation

The plaintiff has the responsibility of demonstrating the defendant failed to “exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality.” MB, 11-0303; 11-0304, p. 15, 74 So.3d at 1184, quoting Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239, 244 (1972). “Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show the defendant’s actions fell below the standard of care.” MB, 11-0303; 11-0304, p. 15, 74 So.3d at 1184. “We have held that ‘questions of negligence are generally inappropriate for disposition by summary judgment.’” DeStevens v. Harsco Corp., 94-1183, p. 3 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054, 1057, quoting Cooper v. Ceco Corp., 558 So.2d 1355 (La.App. 4th Cir.1990).

Mr. Saussy asserts that Attorney Bonin failed to properly plead support for one of his children, thereby causing him to lose months of child support. Mr. Saussy also asserts that Attorney Bonin committed legal malpractice and that he incurred damages by Attorney Bonin failing to disclose her conflict with the original trial court judge in the underlying action. Attorney Bonin was not aware that her representation of the original trial court judge’s daughter in a separate proceeding would be considered a conflict until after this Court granted a supervisory writ in relation to the Blanch v. Blanch, 09-0187 (La.App. 4 Cir. 4/27/09) (unpub.) matter, stating that the trial court judge should recuse herself from that matter. No more than a day elapsed between Mr. Saussy’s ex-wife filing a Motion for Recusal and when the original trial court judge recused herself.

Mr. Saussy attached the affidavit of Attorney Bologna to his Opposition to the Defendants’ Motion for Summary Judgment. Attorney Bologna attested that 19he was listed as an expert and fact witness in the legal malpractice action. “He determined that there was ample opportunity for Mr. Saussy’s counsel to file for child support on behalf of child 1 for Mr. Saussy ... however no pleadings or demands for child support for Mr. Saussy were ever filed.” Given the factfinder’s credibility determination of Attorney Bologna, the affidavit presents expert testimony sufficient that Mr. Saussy produced “factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” as to the alleged negligence of Attorney Bonin. Therefore, we find that genuine issues of material fact exist as to Attorney Bonin’s alleged negligence.

Loss Caused by Alleged Negligence

Although he voluntarily settled the underlying action, Mr. Saussy contends that he suffered damages. Mr. Saussy asserts that if Attorney Bonin had properly pled for child support, then he would have been able to argue for this support during the settlement, thereby changing the monetary agreement of the settlement. Mr. Saussy also avers that he suffered damages by hiring a new attorney due to Attorney Bonin’s alleged inadequate representation.

While Mr. Saussy maintains that he could have received child support if not for Attorney Bonin’s alleged legal malpractice, the record is devoid of evidence sufficient to meet the requisite burden of proof. Mr. Saussy’s central contention regarding the amount of child support is defeated by the trial court judge’s statements in the child custody proceedings wherein the trial court judge stated that he would consider the amount of child support owed to Mr. Saussy for the time period each of his children lived with him, regardless of whether child support for each of the children was properly pled. Thus, by settling the underlying action prior to the trial court ruling on the child support issue, Mr. Saussy estopped the |intrial court from awarding child support regardless of whether child support for child 1 was properly pled. Mr. Saussy did not produce any additional evidence in his Opposition to Defendants’ Motion for Summary Judgment that would demonstrate that he could prove loss at trial. Therefore, Mr. Saussy failed “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” in regards to losses suffered as a result of the alleged legal malpractice of Attorney Bonin. La. C.C.P. art. 966(C)(2). Accordingly, no genuine issues of material fact exist as to Mr. Saussy’s alleged loss, which is a requirement for a valid legal malpractice action, and we affirm the trial court’s granting of the Defendants’ Motion for Summary Judgment.

DECREE

After conducting a de novo review of the record in light of the relevant law, we find that Mr. Saussy failed to provide factual support sufficient to show that he could meet his burden of proof as to his alleged losses at trial. Therefore, no genuine issues of material fact exist as to Mr. Saus-sy’s alleged losses. Because proof of loss is a central component in a valid legal malpractice action, the trial court did not err in granting the Defendants’ Motion for Summary Judgment. For the above-mentioned reasons, we affirm the trial court’s judgment.

AFFIRMED.

BONIN, J.,

Concurs with reasons.

_JjI concur but write additionally on the dispositive issue which results in the affirmation of the dismissal with prejudice of Mr. Saussy’s malpractice claim. Mr. Saus-sy simply did not offer any evidence to show that the settled outcome of the child-support litigation with his former wife was “unfavorable” to him. An essential element of a client’s malpractice claim against his lawyer is establishing “some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation.” MB Industries, LLC v. CAN Ins. Co., 11-0303, p. 20 (La.10/25/11), 74 So.3d 1173, 1187. Because Mr. Saussy failed to produce factual support sufficient to establish that he would be able to establish at trial that his compromise payment of $8,000 in past due child support for two children was an unfavorable outcome, summary judgment was properly granted and his malpractice claim dismissed with prejudice. See La. C.C.P. art. 966 C(2).

      . Attorney Bologna concluded representing Mr. Saussy in December 2009. Upon conclusion of Attorney Bologna's representation, Mr. Saussy hired another attorney to represent him.

      . The trial court judgment, which dismissed Mr. Saussy’s claims, was not designated as a dismissal with or without prejudice. Therefore, the judgment is interpreted as dismissing Mr. Saussy's claims without prejudice. State Through Dep’t of Pub. Safety & Corr. v. Louisiana Riverboat Gaming Comm’n, 94-702; 94-0730-94-0735 (La.App. 1 Cir. 6/17/94), 640 So.2d 1368, 1378.

      . La. C.C.P. art 966(B)(2) was recently amended by the Louisiana Legislature to include the words "admitted for purposes of the motion for summary judgment.”

      . La. C.C. art. 2002 provides: "An obligee must make reasonable efforts to mitigate the damage caused by the obligor's failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.”

      . The fact that Mr. Saussy agreed to the amount of the settlement after the trial judge had expressed his view that Mr. Saussy was at no disadvantage arising from the pleadings prepared by Ms. Bonin suggests that his exposure on the judgment was even greater irrespective of his contention about deficient pleadings.