author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Terrance Lynn JOHNSON, Appellant.
    No. 48,320-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project, by Peggy J. Sullivan, for Appellant.
    Charles R. Scott, District Attorney, Jason T. Brown, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW & PITMAN, JJ.
   PITMAN, J.

| í Defendant, Terrance Lynn Johnson (a/ k/a Terry Brown), pled guilty to distribution of a Schedule II controlled dangerous substance (cocaine) in violation of La. R.S. 40:967(A)(1). His guilty plea was entered without any agreement concerning the sentence. He was charged and adjudicated as a second felony habitual offender under La. R.S. 15:529.1(A)(1) and sentenced to 40 years at hard labor, the first 2 years to be served without benefit of probation, parole or suspension of sentence and the other 38 years without benefit of probation or suspension of sentence. Defendant now appeals his sentence as excessive. For the reasons stated herein, we affirm.

FACTS

Defendant was charged with distribution of a Schedule II controlled dangerous substance (cocaine) as the result of selling 15 grams of cocaine in February 2010. A trial commenced; but, after jury selection was almost completed, Defendant chose to plead guilty as charged. There was no agreement as to the sentence and no agreement by the state that a multiple offender adjudication would not be sought.

Defendant’s attorney withdrew from the case and another attorney was hired, who filed a motion to withdraw the guilty plea; however, after a hearing, the motion was denied. A writ application was filed with this court and was granted, but the decision of the trial court was affirmed. See State v. Johnson, 46,673 (La.App.2d Cir.7/11/11) (unpub.). A writ application was filed with the Louisiana Supreme Court, and that application was denied. See State v. Johnson, 11-1765 (La.10/14/11), 74 So.3d 714.

li>A habitual offender bill of information was filed and a hearing was held in August 2012. Since Defendant had pled guilty in 2003 to possession of Schedule II controlled dangerous substance (cocaine), he was adjudicated a second felony habitual offender. A presentence investigation (PSI) report was ordered by the trial court.

A sentencing hearing was held at which the trial judge stated that he had reviewed the PSI as well as the facts of the case and the sentencing recommendations by the district attorney’s office. He also stated that he had taken into account the guidelines provided for sentencing in La. C. Cr. P. art. 894.1. The trial judge noted that Defendant actually had two prior felonies-the 2003 possession of cocaine conviction, which had originally been brought as a charge of possession of over 28 and less than 200 grams, and possession of a firearm by a convicted felon. Defendant’s probation was revoked in 2004 as a result of the firearm charge, and the firearm charge was removed to federal court.

The trial judge noted that Defendant had been arrested as a principal to a second degree murder, but that the charge had been dismissed. Defendant had also been arrested for another felony, simple robbery in 1995, but that charge had been dismissed because the victim refused to cooperate. Defendant also had various misdemeanors on his record.

The trial judge noted that the drug dealt in this case was a controlled dangerous substance and that the offender obtained substantial income from engaging in the activity because more than $11,000 had been found at Defendant’s home at the time of his arrest. After reiterating that he Isconsidered the factors for sentencing found in La. C. Cr. P. art. 894.1 and considering that the sentencing range for this crime as a second felony offense was 15 to 60 years, the trial judge sentenced Defendant to 40 years at hard labor. The first 2 years were to be served without benefit of probation, parole or suspension of sentence; the other 38 years were to be served without benefit of probation or suspension of sentence.

Defendant filed a motion to reconsider sentence and alleged only that the sentence imposed was excessive. The motion was denied. Defendant’s appeal followed.

DISCUSSION

Defendant argues that the sentence of 40 years at hard labor without benefit of suspension or probation is excessive under the facts and circumstances of this case.

Defendant specifically argues that the trial judge noted no mitigating factors in this case. The trial judge did not discuss any personal information about Defendant, nor his work history or his efforts to better his lot in life through school. Defendant argues that the trial judge’s focus was clearly on his criminal history. He further argues that much weight seems to have been given to those offenses that the state had not been able to prove and to the original charge of possession of more than 28, but less than 200, grams of cocaine, that had been pled to a charge of simple possession of cocaine.

The state argues that a trial court has great sentencing discretion, that the court in this case referenced and considered the criteria set forth in La. |4C. Cr. P. art. 894.1 and that there is no requirement that the trial court discuss Defendant’s personal history, work history or “efforts to better his lot.” The state also correctly points out that there was no complaint at sentencing about the trial court considering the two prior felony arrests that had been dismissed. The state concludes that the sentence imposed was not an abuse of discretion.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. There is no requirement that specific matters be given any particular weight at sentencing. Ates, supra.

IsSecond, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 06-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 638 So.2d 218 (La.1994). These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779, writ denied, 07-1442 (La.4/4/08), 978 So.2d 324.

The sentencing range for distribution of cocaine is a term of imprisonment at hard labor for not less than 2, nor more than 30, years, with the first 2 years being without benefit of parole, probation, or suspension of |fisentence. In addition, the sentence may include a fine of not more than $50,000. La. R.S. 40:967(A)(1). As a second felony offender, Defendant’s sentencing range was not less than one-half the longest term and not more than twice the longest term prescribed for a first offense. La. R.S. 15:529.1(A)(1). Additionally, a second felony offender is required to serve the sentence at hard labor without benefit of probation or suspension of sentence. La. R.S. 15:529.1(G). Thus, in this case, the trial court correctly noted the sentencing range and requirements.

As the state noted, the trial court adverted to the requirements of La. C. Cr. P. art. 894.1 and reviewed the PSI; more was not required. Furthermore, while the sentencing transcript does reflect that the trial court took into account Defendant’s criminal activity that was dismissed, and the fact that his prior felony conviction for “straight possession” of cocaine had been brought down from possession of over 28 and less than 200 grams, the transcript does not indicate that the trial court gave undue weight to these matters.

Considering that Defendant was actually a third felony offender, that he had a prior felony conviction involving cocaine and that he had two prior felony arrests and numerous misdemeanors, the trial court did not abuse its discretion in imposing a 40-year sentence, which is a midrange sentence in the applicable 15- to 60-year range. This sentence does not shock the sense of justice. Therefore, this assignment of error is without merit.

\ .CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Terrance Lynn Johnson, are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Freddie Lee COOK, Appellant.
    No. 48,355-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project, by Holli Herrle-Castillo, for Appellant.
    Freddie Lee Cook, pro se.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Assistant District Attorney, for Appellee.
    Before STEWART, LOLLEY and PITMAN, JJ.
   STEWART, J.

hThe defendant, Freddie Lee Cook, was charged via bill of information with one count of aggravated incest, a violation of La. R.S. 14:78.1, occurring on March 19, 2011. The state later filed an amended bill to include dates ranging between November 25, 2007, and March 19, 2011. The defendant pled not guilty and was convicted as charged by a jury. He was subsequently adjudicated a fourth felony offender and sentenced to the mandatory term of life imprisonment. The defendant has filed the instant appeal, asserting two assignments of error. Finding no error in the trial court’s findings, we affirm.

FACTS

On May 20, 2011, the state filed a bill of information charging the defendant with one count of aggravated incest of his step-granddaughter, S.G. She was 16 at the time of the defendant’s arrest. The following facts were adduced at trial.

The defendant met S.G.’s grandmother, Mae Cullens, while he was serving a ten-year sentence for his 1996 convictions of aggravated incest involving his biological daughter, Kimberly Cook, and molestation of a juvenile involving his stepdaughter by an ex-wife. Apparently, Ms. Cullens was involved in a prison ministry, and had ministered to the defendant during his incarceration. Shortly after his release from prison, the defendant and Ms. Cullens married in 2001.

Initially, Ms. Cullens’ daughter, Edda Cullens, opposed the marriage because the defendant was a convicted sex offender. Edda later began to trust the defendant, believing he “found the Lord” and had changed. In fact, | ?she allowed the defendant to drive her children to and from school and she allowed the defendant to interact with her children without proper supervision.

Shelley Hoard, who attends the same church as S.G., is a registered nurse with behavioral health experience. She conducts assessments on victims of depression, incest, and sexual abuse. Specifically, she works with children who are victims of sexual abuse. Ms. Hoard testified that she noticed a change in S.G.’s behavior, approached her, and asked if there was something wrong. Although S.G. did not report any specific abuse at that time, she did present these questions to her:

What if somebody who is very nice to your family and doing good things for your family but they are doing bad things to you? What should I do?

Ms. Hoard advised S.G. to report it. After this exchange, Ms. Hoard relayed this information to Corporal Kalinciar Hunter, the resource officer at Richwood High School.

Corporal Hunter, who is employed by the Ouachita Parish Sheriffs Office (“OPSO”), testified that she is responsible for “keeping order” at the school, and that she is familiar with all of the students who attend Richwood High School. When Ms. Hoard reported the suspected abuse to Corporal Hunter, she approached S.G. on March 10, 2011, to ask her if anything was “going on in the home.” S.G. denied that any abuse was taking place, further stating, “It was no big deal. I am fine.” Corporal Hunter forwarded her report to OPSO’s investigation department and Child Protective Services (“CPS”). Corporal Hunter testified that Patrick Staten, from CPS, Iscame to Richwood to interview 5.G. After this interview, Mr. Staten expressed his intent to contact S.G.’s mother, Edda.

Corporal Hunter testified that on April 6, 2011, a meeting took place between herself, Edda, and S.G., upon Edda’s request. During this meeting, Edda relayed that Mr. Staten had contacted her to inform her of the suspected abuse. She further explained that her reason for requesting this meeting was because S.G. felt more comfortable talking to Corporal Hunter. S.G. told Corporal Hunter that her step-grandfather, the defendant, had been sexually abusing her since she was 11 years old. She expressed that she was tired of the abuse and the secrets, and as a result had taken a bottle of pills. Corporal Hunter testified that S.G. was visibly upset, crying and shaking, during the entire meeting.

Corporal Hunter noted that S.G., who was usually a pleasant and “high achieving” student, began to exhibit disrespectful behavior toward authority, talk excessively in class, and participate in fights. At the conclusion of her testimony, Corporal Hunter testified that she witnessed the defendant dropping S.G. off late to school some mornings, and picking her up some evenings. At times, the defendant would also check S.G. out of school early.

Sergeant Daryl Frost of the OPSO testified that he received a report from Corporal Hunter on March 14, 2011, but did not act at that time because S.G. had denied that any abuse had taken place. When Sergeant Frost was contacted on April 13, 2011, after S.G. admitted that the abuse had taken place, he obtained a warrant and arrested the defendant. A rape |4kit was not conducted on S.G. because there had not been any sexual contact within the previous 72 hours.

Alfred “Hatchet” Carter, the defendant’s friend and next door neighbor, testified about an incident that occurred at his home, while a birthday party took place at the defendant’s home. During the party, the defendant came over to Mr. Carter’s house to watch movies. Shortly after the defendant arrived, S.G. came over to Mr. Carter’s house, looking for him. Mr. Carter went to the restroom, only to return approximately ten minutes later to witness the defendant and S.G. on the floor. S.G. and the defendant jumped up, straightening their clothes.

When asked if he had witnessed any sexual act occur between the defendant and S.G., Mr. Carter denied seeing any sexual act. However, Officer Charles Roark of the Monroe Police Department testified that he was asked to administer a polygraph test to Mr. Carter. Before the test was administered, Mr. Carter interrupted Officer Roark and informed him that he had, in fact, witnessed S.G. and the defendant having sex on the floor in his home.

S.G., who was 17 years old at the time of trial, testified that she initially denied the abuse because she did not want to get anyone in any trouble and she did not want anyone to know. She explained that she was afraid that her mother would kill the defendant if she found what he was doing, her mother would consequently go to jail, and that she would be alone.

IsS.G. stated that the defendant, whom she called “Brother Fred,” was a minister who conducted church in his home for their family. She testified when she was 11 years old, the defendant owned a silver van and had offered to teach her to drive in the Monroe Civic Center parking lot. During these outings, the defendant would offer to pay her to let him “touch her private area” and perform oral sex on him. She also recalled the incident that occurred at Mr. Carter’s house, stating that she and the defendant did have “sexual contact” while Mr. Carter was out of the room. S.G. also testified that the defendant would stop at various places on the way to school so that they could engage in sexual activity.

S.G. further testified she was 14 years old the first time she and the defendant had actual intercourse. Prior to that time, the defendant would attempt penetration, but he would stop when she told him it was hurting. This abuse continued until March 2011, at which time the S.G. was 16 years old.

The defendant was found guilty of aggravated incest, adjudicated a fourth felony offender, and sentenced to life imprisonment. He now appeals.

LAW AND DISCUSSION

Sufficiency of the Evidence

In this assignment of error, the defendant asserts that the evidence was insufficient to support his conviction. He contends that he was convicted solely on the testimony of S.G., and that her testimony was inconsistent with that of other witnesses. More specifically, the defendant 1 fiargues that he did not own a silver van at the time that S.G. alleged he sexually abused her. He also notes that S.G. denied the allegations twice before disclosing them to Corporal Hunter. Further, the defendant asserts that no physical evidence existed to support the conviction.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2 Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Under the Jackson v. Virginia standard, we review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation 17of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. |SA reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Credibility determinations are the province of the trier of fact. State v. Johnson, 38,927 (La.App.2d Cir.11/23/04), 887 So.2d 751; State v. Powell, 27, 959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678.

Thus, in order for the defendant’s conviction to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the Inessential elements of aggravated incest. La. R.S. 14:78.1, aggravated incest, provides in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relative: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a chile into prostitution, or any other involvement of a chile in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
D. (1) A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.
(2) Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

In the instant case, S.G., who was 17 at the time of trial, testified that the defendant sexually abused her over a span of several years. As stated in the facts section above, she testified when she was 11 years old, the defendant owned a silver van and had offered to teach her to drive in the Monroe Civic Center parking lot. During these outings, the defendant 1 inwould offer to pay her to let him “touch her private area” and perform oral sex on him. Corroborating Mr. Carter’s testimony, S.G. recalled the incident that occurred at his house, stating that she and the defendant did have “sexual contact” while Mr. Carter was out of the room.

The testimony of the victim of aggravated incest is sufficient to support a conviction. State v. Simpkins, 44,197 (La.App.2d Cir.5/13/09), 12 So.3d 1021, writ denied, 2009-1229 (La.2/5/10), 27 So.3d 296, and writ denied, 2009-1539 (La.3/5/10), 28 So.3d 1004. Slight discrepancies, such as the color of the vehicle, or whether S.G. initially denied that the sexual abuse took place to protect her mother, do not cast doubt on S.G.’s credibility. After determining that there are no internal contradictions regarding S.G.’s testimony and that her testimony does not contradict any physical evidence, we find that S.G.’s testimony, in addition to other evidence presented, sufficiently supported the defendant’s aggravated incest conviction. This assignment of error is merit-less.

Ineffective Assistance of Counsel

In this assignment of error, the defendant argues that his counsel’s performance was deficient during Ms. McNeal’s direct examination. Ms. McNeal, the defendant’s cousin, spiritual counselor, and minister, testified that she counseled the defendant since the time he met and married Ms. Cullens. When defense counsel questioned Ms. McNeal about the counseling, she testified:

Q: Were there problems in their relationship?
A: Yes.
| UQ: And they consulted you concerning those problems?
A: Yes. He did.
Q: Did any of the problems involve the grandchildren?
A: Yes.

The state objected, arguing that it was hearsay, and a sidebar was held. Then, the jury was removed and argument was presented on the objection. The trial court determined that the evidence would be inadmissible, and the defense counsel withdrew the question. The defendant contends that the jury heard the answer to the question before defense counsel withdrew the question. He believes this action “bolstered” the state’s case because the defense failed to elicit the actual issue with the grandchildren, and made it appear as though his problem with the grandchildren was sexual in nature.

As a general rule, a claim of ineffective is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App.2 Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. However, when the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2 Cir.9/27/95), 661 So.2d 673.

The right’ of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. [^Constitution. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to the trial court’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App.2 Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

Once the attorney’s performance is found to have been deficient, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove the deficient performance caused him an actual prejudice so severe that, but for his counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

Ineffective assistance claims must both identify specific acts or omissions by counsel and state how these actions resulted in actual prejudice so severe that the defendant was denied a fair trial. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.

The defendant argues that his counsel asked Ms.' McNeal whether the problems in his marriage stemmed from Ms. Cullen’s grandchildren, without forming a proper plan regarding how to connect this information to the next link in the chain of evidence he was attempting to adduce. Even though the state’s objection led to the trial court ruling that the evidence was inadmissible, and the defense counsel withdrew the question, the jury did hear the answer. The defendant believes that his counsel’s action, or lack thereof, strengthened the state’s assertion that any problems with his step-grandchildren were sexual in nature. He concluded his argument with the statement that “had the defense not asserted that he had marital problems that involved his grandchildren, the jury would have likely returned a verdict of not guilty.”

The defendant has not proven that his trial counsel’s performance prejudiced him in a way that deprived him of his right to a fair trial. There is no showing that had his counsel not presented the question regarding the defendant’s relationship woes regarding his grandchildren, he would not have been convicted of the instant offense.

The defendant has not met his burden pursuant to Strickland v. Washington, supra, of proving that his counsel’s performance was deficient and that as a result, he was deprived of a fair trial. This assignment of error bears no merit.

I ^CONCLUSION

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

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Allen Jamel ROBINSON, Appellant.
    No. 48,476-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Allen Jamel Robinson, Pro Se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Cynthia Poston Lavespere, Assistant District Attorney, for Appellee.
    Before WILLIAMS, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

_JjThe defendant, Allen Jamel Robinson, appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in which he was found guilty of aggravated second degree battery, a violation of La. R.S. 14:34.7, and second degree kidnapping, a violation of La. R.S. 14:44.1, for crimes committed against his girlfriend, Ester Freeman. He was subsequently adjudicated a second-felony offender and received the maximum sentences on each charge: 30 years for aggravated second degree battery and 80 years for second degree kidnapping. The sentences were ordered to run consecutively, for a total of 110 years’ imprisonment without benefits. Robinson now appeals, and for the reasons stated herein, his convictions and sentences are affirmed.

Facts

Robinson lived with his girlfriend, Ester Freeman, and the two had a five-month-old daughter at the time of the offenses. Ester is mildly to moderately developmentally delayed. Robinson worked on cell towers and had been employed by the same company for approximately 12 years. He was gone from home several weeks, if not months, at a time working, and Ester would remain at the home with their daughter while he was away. On Friday, October 1, 2010, Robinson returned home from working out of town, earlier than expected by Ester. He arrived at the couple’s apartment sometime between 4:00-5:00 p.m. and began his brutal attack against Ester.

Tonia Hamilton, a previous girlfriend and mother of two of Robinson’s children, telephoned Robinson because he was supposed to watch the children, but he had failed to show up. According to Tonia’s ^testimony at trial, Robinson advised Tonia that he could not help with the children because “there was blood everywhere” in the apartment. Robinson told Tonia that he and Ester had been fighting. Tonia threatened to call the police until Robinson allowed Tonia to speak to Ester to make sure she was all right. Fearing something was amiss, Tonia went to the couple’s apartment. She testified at trial that the baby was on the couch, and she found Ester hiding behind the bathroom door— horribly burned and bleeding from her ear, face and head. The two women convinced Robinson to allow Ester to get treatment at the emergency room by assuring him that they would say that someone else had inflicted the injuries on Ester. Tonia drove Ester to the hospital with Robinson also in the vehicle.

At the hospital, Ester’s condition was brought to the attention of Corporal Henry Foy of the Monroe Police Department. He asked Ester who had inflicted her injuries, which he described at trial as “the most horrific burns I’ve seen since I was involved in the Gulf War.” Ester informed Cpl. Foy that Robinson had beaten and burned her. As Cpl. Foy approached Robinson in the waiting area, Robinson attempted to leave, but Cpl. Foy detained him, Mirandized him, and arrested him. Since the address where the incident occurred was outside the city limits, Cpl. Foy called the Ouachita Parish Sheriffs Office (“OPSO”). Deputies Timothy Klick and Paul Zuber with the OPSO responded and took custody of Robinson. Deputy Klick again read Robinson his Miranda rights.

Robinson was initially charged by indictment with the attempted second degree murder of Ester Freeman. The charge was later amended to | aggravated second degree battery, a violation of La. R.S. 14:34.7, and second degree kidnapping, a violation of La. R.S. 14:44.1. After a jury trial, Robinson was unanimously found guilty as charged. He was ultimately sentenced as a second-felony offender and given consecutive sentences amounting to a total of 110 years in prison. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence — Second Degree Kidnapping

In his first assignment of error, while he admits burning Ester for “disrespecting” him, Robinson challenges the sufficiency of the evidence of the second degree kidnapping conviction. Specifically, he argues that the state failed to prove that he secreted or forcibly held Ester against her will. He suggests that Ester was free to leave and could have left when he went to the store for medical supplies. Additionally, in his pro se appeal brief, Robinson suggests that he “really thought” Ester would call the police or leave while he was gone to obtain medical supplies. He states that he was nervous to return to the apartment for fear that she had called for help.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. —, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the direct evidence is thus viewed, the facts | .^established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299. This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753. Credibility evaluations are within the province of the jury as trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra.

|fiThe crime of second degree kidnapping is found in La. R.S. 14:44.1, which provides in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
* * *
(3) Physically injured or sexually abused;
⅜ * *
B. For purposes of this Section, kidnapping is:
* * *
(3) The imprisoning or forcible secreting of any person.

Here, the evidence is more than sufficient to support the conviction of second degree kidnapping. Ester testified that Robinson held her at the apartment for a period in excess of 12 hours — from late Friday afternoon until sometime Saturday when Tonia arrived to check on her. During this time, he admittedly beat her and burned her over 70 percent of her body. Ester told the emergency room personnel, Cpl. Foy, and Dep. Zuber that Robinson made her stay in the apartment by threatening to take or harm her infant child. Notably, Ester testified that she did not have a cell phone when the incident occurred, nor did she have a car. In addition, Robinson made Ester hide behind the bathroom door so that she would not be seen when Tonia knocked at the door. Moreover, Ester was not in any condition to independently seek help; she was severely beaten and burned and terrified that Robinson would make good on his threats if she tried to leave.

The jury reasonably credited the testimony of Ester and the medical providers who treated her. There was ample evidence to support the jury’s treasonable conclusion that Robinson forcibly secreted Ester, and held her against her will while she was severely physically injured. Ester’s testimony alone is sufficient to support the conviction of second degree kidnapping, despite Robinson’s argument to the contrary. Considering the totality of the circumstances, the fact that Robinson left Ester alone for a short time does not suggest Ester could have actually gotten away. Thus, this assignment is without merit.

Excessive Sentences

In his second assignment of error, Robinson challenges as excessive the imposition of the maximum sentences on each conviction. He further claims that consecutive sentences equate to a life sentence, which, according to Robinson, is not warranted under the circumstances. Robinson again provides a pro se argument on this issue. He contrasts burning Ester with an iron to what he considers more serious batteries involving “stab wounds open flesh above waist with gun shot wounds.” Robinson argues that the maximum sentences should be reserved for the latter batteries and are excessive as imposed in this case.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.09/05/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App.2d Cir.12/09/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, |sremand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Linnear, supra. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 2003-0518 (La.12/03/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/02/11), 78 So.3d 799.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App.2d Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but |3whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.01/25/12), 86 So.3d 29.

Louisiana R.S. 15:529.1, which governs sentencing upon a second felony conviction, provides in pertinent part:

(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Second degree kidnapping is punishable by imprisonment at hard labor for not less than five nor more than 40 years. La. R.S. 14:44.1(C). Aggravated second degree battery is punishable by not more than 15 years, with or without hard labor. La. R.S. 14:34.7(0.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be seiVed consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Johnson, 42,323 (La.App.2d Cir.08/15/07), 962 So.2d 1126. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra. Among the factors to be 110considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant poses an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Johnson, supra; State v. Barnett, 46,303 (La.App.2d Cir.05/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.04/13/12), 85 So.3d 1239.

In the case sub judice, the trial court ordered a presentence investigation and provided a thorough and exhaustive review of his reasons for sentencing, including reference to the factors of La. C. Cr. P. art. 894.1. The court concluded that both crimes were crimes of violence, noting the gravity and viciousness of the offenses. Robinson’s personal history was reviewed, as well as his lengthy history of domestic abuse against former girlfriends. The severe impact of these crimes on the victim deeply impressed the trial court, which noted that Ester will relive this trauma every day for the rest of her life. The trial judge stated:

The Court is cognizant of the principle that maximum sentences are appropriate in cases involving the most serious violations of a statute and the worst type of offender. Truly, this is the most serious such violation and the worst offender of this type the Court has ever seen. In fact, the physicians who treated this victim for her injuries called it the most horrific they had ever seen. Some of these healthcare workers were moved to tears and had to call in assistance from supervisors for help.

A review of the record overwhelmingly supports the imposition of the maximum allowable sentences to be served consecutively. Notably, we agree that Robinson’s sentence is extreme; however, the nature of his crimes Inis particularly gruesome, warranting an extreme sentence. The crime against Ester, a mentally disabled individual and mother of Robinson’s infant child, was extremely vicious and heinous. Further, not only did Robinson terrorize Estes, but the effect of his crime was so horrendous that even seasoned emergency room personnel were traumatized. Independently, this crime was particularly gruesome, but we also acknowledge Robinson’s history of abuse and propensity to re-offend if not incarcerated. We agree that Robinson poses an extreme danger to public safety, and these consecutive sentences running for 110 years without benefits certainly does not shock the sense of justice. The trial court was well within its discretion in ordering maximum sentences to run consecutively. Accordingly, we conclude that this assignment of error is without merit.

Conclusion

For the foregoing reasons, the convictions and sentences of Allen Jamel Robinson are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    Ryan HAYGOOD, DDS, and Haygood Dental Care, LLC, Plaintiff-Appellants v. Ross H. DIES, Ross H. Dies, DDS, J. Cody Cowen, DDS, and Benjamin A. Beach, DDS, a Professional Dental Limited Liability Company, Camp Morrison, C. Barry Ogden, Karen Moorhead and Dana Glorioso, Defendant-Appellees.
    No. 48,485-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.
    See also 101 So.3d 90.

      Harper Law Firm, Shreveport, by Jerald R. Harper, Amber H. Watt, Ryan Eugene Gatti, for Appellants, Ryan Haygood, DDS, and Haygood Dental Care, LLC.
    Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, by Reed S. Min-kin, Brad E. Harrigan, Law Offices of Ronald Miciotto, Shreveport, by Ronald J. Miciotto, Mary T. Amari, for Appellees Ross H. Dies, Ross H. Dies, DDS, J. Cody Cowen, DDS, J. Cody Cowen, DDS, and Benjamin A. Beach, DDS, A Professional Dental LLC.
    The Faircloth Law Group, LLC by Jimmy R. Faircloth, Jr., Barbara Bell Melton, Christie C. Wood, Alexandria, Lauren Stokes Laborde, for Appellees Camp Morrison, Dr. H.O. Blackwood, Karen Moor-head, and Dana Glorioso.
    Arthur F. Hickham, Jr., for Appellee La. State Board of Dentistry.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

liDr. Ryan Haygood, DDS, and his dental LLC appeal a partial summary judgment that dismissed his claims under the Louisiana Unfair Trade Practices Act (“LUTPA”) against Dr. Ross Dies, DDS, and his dental LLC. We reverse and remand.

Factual Background

A native of Bossier City, Dr. Haygood finished LSU Dental School in 2000 and opened an office in Bossier City in late 2005. He launched an aggressive advertising campaign to build his practice. He felt that his sudden success irked other local dentists, including Dr. Dies, whom he viewed as his direct, primary competitor.

In 2007, the Louisiana State Board of Dentistry (“the Board”) opened an investigation into Dr. Haygood’s treatment of patients and dental plans. Dr. Haygood felt that Dr. Dies had prompted the complaints, as he had siphoned some of Dr. Dies’s patients and Dr. Dies had always shown him personal animosity. According to Dr. Haygood, Dr. Dies communicated (in effect, conspired) with certain members of the Board, and with other local dentists, to trump up complaints in an effort to revoke his license. In Dr. Haygood’s view, the Board’s actions were “zealous” and exceeded its authority, including hiring unlicensed investigators to work as dental hygienists at his office, offering them immunity for testifying against him, and retaining Dr. Dies as an expert to evaluate patients’ complaints.- According to Dr. Haygood, Dr. Dies wrote reports that were “studded with errors” and manipulated the Board into convicting him of eight charges (some of which had previously been dismissed for lack of evidence), |2imposing maximum fines and costs (totaling over $173,000), and forcing him to relocate out of state. Dr. Haygood’ also learned that while he was in the midst of the Board proceedings, Dr. Dies made inquiries into buying Dr. Haygood’s practice.

Procedural History

Dr. Haygood filed this suit on September 26, 2011, against Dr. Dies and his LLC; Camp Morrison and C. Barry Ogden, two members of the Board; and Karen Moorhead and Dana Glorioso, the “investigators” who came to his office, posing as patients, with false symptoms. He alleged that they all conspired to deprive him of his dental license by means of defamation, malicious prosecution, and unfair trade practices (the LUTPA claim).

The ensuing litigation has been complex. The defendants other than Dr. Dies filed exceptions of lis pendens and prematurity on grounds that Dr. Haygood was still appealing the Board’s action. The district court sustained some exceptions of prematurity in September 2012. Days later, the Fourth Circuit Court of Appeal overturned the Board’s decision to revoke Dr. Hay-good’s license, citing gross due process violations committed by the Board. Haygood v. Louisiana State Bd. of Dentistry, 2011-1327 (La.App. 4 Cir. 9/26/12), 101 So.3d 90, writ denied, 2012-2333 (La.12/14/12), 104 So.3d 445. In addition, the Board and several of its members, though not named as defendants, strenuously objected to Dr. Haygood’s discovery |3requests on grounds that Board proceedings are confidential and members are immune for their official actions under La. R.S. 37:791. In March 2012, the parties entered a stipulated protective order designating certain records as “confidential” or “highly confidential,” but this does not appear to resolve the objections under R.S. 37:791.

In October 2012, Dr. Dies filed an exception of prescription as to Dr. Haygood’s LUTPA claims on grounds that under La. R.S. 51:1409 A, such claims prescribed one year after the Board filed a complaint against Dr. Haygood. He showed that the Board’s final complaint was issued March 10, 2010, 18½ months before suit was filed on September 26, 2011. In the alternative, Dr. Dies argued that prescription began to run August 7, 2010, when he gave his deposition in the Board proceedings, 13½ months before Dr. Haygood filed suit.

After a hearing on October 17, 2012, the court deferred ruling on the exception of prescription, citing a lack of evidence. Instead, the court gave Dr. Haygood until January 25, 2013, to complete additional discovery and amend his petition to allege conduct involving Dr. Dies “which may include when said act, transaction, or occurrence took place and/or whether or not it is ongoing.” In accordance with this deadline, Dr. Haygood filed a second supplemental and amending petition on January 25. The court also gave Dr. Dies until February 22 to file any responsive pleading, and set the hearing on the exception for March 14, 2013.

|4Pr. Dies filed the instant motion for partial summary judgment on February 27, 2013, alleging that Dr. Haygood had still not alleged any facts to support a LUTPA case. In support, he offered his own deposition, in which he denied knowing that the Board would use his opinion against Dr. Haygood; insisted he never “referred to” himself as a competitor of Dr. Haygood’s; and denied that he ever attempted to buy Dr. Haygood’s practice. He admitted that he hired an undercover employee (a lady named Wendy Green, not named as a defendant) and asserted that Dr. Haygood could not prove the contents of his numerous phone calls to members of the Board. He also contended that Board proceedings cannot be construed as commerce, and thus LUTPA does not apply.

The district court set the hearing on the motion for partial summary judgment for the same date as the hearing on the exception of prescription, March 14.

Dr. Haygood objected to the setting: although he received an email copy of the motion for partial summary judgment late on the afternoon of February 27, he had still not received “proper service” under La. C.C.P. art. 1313 C, thus depriving him of his full 15 days’ notice under URDC 9.9(a). He also contended the motion was premature, as the court’s October 17 order had limited his discovery to issues of prescription, and thus he had not yet developed all the summary judgment evidence needed to support the LUTPA claim. On the merits, he argued that genuine issues remained, citing: (1) Camp Morrison’s deposition stating that Dr. Haygood was an “antagonistic competitor” of Dr. Dies, (2) Dr. Dies’s deposition admitting |fihe knew that Camp Morrison would use his opinions against Dr. Haygood, but denying that he knew the Board would do so; (3) emails from AFTCO, a broker, to Dr. Dies, regarding the potential purchase of Dr. Haygood’s practice, (4) cell phone records showing Dr. Dies placed calls to Board members as late as July and August 2010, within one year of filing suit; and (5) Wendy Green’s deposition stating that Dr. Dies offered her immunity “on behalf of the Board,” and bragged to her that he was “in charge” of the investigation and “couldn’t be touched.” Dr. Haygood also argued that LUTPA does not specify particular violations, but is broadly construed to prohibit “unethical, oppressive, unscrupulous or substantially injurious” conduct. Levine v. First Nat’l Bank of Commerce, 2006-0394 (La.12/15/06), 948 So.2d 1051. He contended that Dr. Dies’s acts, such as submitting inaccurate and exaggerated reports of examinations of Dr. Haygood’s former patients, qualified as prohibited conduct under LUTPA.

Prior to the hearing, Dr. Dies conceded that the Fourth Circuit had reversed the Board’s decision to revoke Dr. Haygood’s license, but argued that the alleged facts did not prove a conspiracy.

Action of the District Court

After the hearing on March 14, the court denied Dr. Dies’s exception of prescription but granted his motion for partial summary judgment, stating: “On the issue of whether or not there is sufficiency of evidence for purposes of argument of the motion for this being an unfair trade practice, the court will grant the motion for partial summary judgment.” The court later certified this as immediately appeal-able.

| (¡Dr. Haygood has appealed, designating five assignments of error but arguing three issues:

1. Whether the court erred as a matter of law in granting Dr. Dies’s motion for partial summary judgment;
2. Whether the court erred as a matter of law by hearing the motion for partial summary judgment without proper service and delays for response; and
3. Whether the court erred as a matter of law in hearing the motion for partial summary judgment after severely limiting plaintiffs’ ability to conduct discovery.

Applicable Law

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. The judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B(2). In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in favor of the nonmoving party. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764. Summary judgment is seldom appropriate for determinations based on subjective facts such as motive, intent, good faith, knowledge and malice. Hogg v. Chevron USA Inc., 2009-2632 (La.7/6/10), 45 So.3d 991; Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo, using the same criteria governing the district court’s consideration of whether the summary judgment was appropriate. Moreno v. Entergy Corp., 2012-0097 (La. 12/4/12), 105 So.3d 40; Schultz v. Guoth, supra. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the ease. Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131.

LUTPA declares it unlawful to engage in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” La. R.S. 51:1405 A. It also creates a right of action for any person who suffers any ascertainable loss for a violation of the statute. La. R.S. 51:1409 A; Cheramie Servs. Inc. v. Shell Deepwater Production Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. Claims under LUTPA are not limited to consumers and business competitors, but are available to any person who suffers any ascertainable loss as a result of violations of the statute. Hardy v. Easterling, 47,950 (La.App. 2 Cir. 4/10/13), 113 So.3d 1178. Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a ease-by-case basis. Johnson Const. Co. v. Shaffer, 46,-999 (La.App. 2 Cir. 2/29/12), 87 So.3d 203; Tyler v. Rapid Cash LLC, 40,656 (La.App. 2 Cir. 5/17/06), 930 So.2d 1135. The supreme court recently explained:

LUTPA does not prohibit sound business practices, the exercise of permissible business judgment or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. * * * Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of |8daylight between a breach of contract claim and the egregious behavior the statute proscribes.

Cheramie Servs. v. Shell Deepwater, supra at 11, 35 So.3d 1053, quoting Turner v. Purina Mills Inc., 989 F.2d 1419, 1422 (5 Cir.1993); Hardy v. Easterling, supra.

Louisiana law does not have an independent cause of action for civil conspiracy. Hardy v. Easterling, supra; Able Secur. & Patrol LLC v. State, 569 F.Supp.2d 617 (E.D.La.2008). Under La. C.C. art. 2324, “He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” The actionable element of Art. 2324 is the intentional tort that the conspirators agreed to commit and committed, in whole or part, causing the plaintiffs injury. Hardy v. Easterling, supra. A conspiracy may be proved by circumstantial evidence. Id.; Hall v. Lilly, 29,624 (La.App. 2 Cir. 6/18/97), 697 So.2d 676.

Discussion

On de novo review, this court finds a plethora of disputed facts, all of which are genuine issues of material fact precluding summary judgment. First there is Dr. Dies’s status as a business competitor of Dr. Haygood’s. Dr. Hay-good alleged that Dr. Dies was his direct, primary competitor. Dr. Dies never referred to himself as such, but admitted it was “not unusual at all” for him to see patients who had previously seen Dr. Hay-good; Board member Camp Morrison agreed that Dr. Haygood “was in fact” a competitor, perhaps even an “antagonistic competitor” of Dr. Dies; and matters of record show that Dr. Haygood’s office was roughly one mile |nfrom Dr. Dies’s. As noted, LUTPA claims are not limited to business competitors, Hardy v. Easterling, supra, but the backdrop of competition, if proved, would provide a motivation for one competitor to use the Board to eliminate another competitor.

Next there is whether Dr. Dies submitted inaccurate or exaggerated reports in his service in the Board’s investigation of Dr. Haygood. Dr. Dies’s deposition discloses that one patient gave him and Dr. Haygood radically different histories; that Dr. Dies ultimately agreed with Dr. Hay-good’s aggressive treatment of another patient; and while Dr. Dies disagreed with the treatment plan given to a third patient, Dr. Haygood never actually gave that patient such a plan. These acts may have been mere oversights on Dr. Dies’s part; however, if proved, they would strongly suggest a motive to “trump up” charges against Dr. Haygood with the purpose of getting the Board to revoke his license.

In this connection, we reiterate that the Fourth Circuit has already nullified the Board’s decision to revoke Dr. Haygood’s license, on grounds that the Board’s attorney overstepped his bounds in the investigation. Haygood v. Louisiana State Bd. of Dentistry, supra. The potential of a corrupted investigation militates in favor of the nonmoving party and against granting this summary judgment. Hines v. Garrett, supra. It also raises a strong inference that other members of the board engaged in the conduct attributed to Dr. Dies.

Third is the issue of Dr. Dies’s relationship with Wendy Green, a hygienist formerly employed by Dr. Haygood but later hired by Dr. Dies. [ inWhiIe Dr. Dies stated that he hired her for “legitimate business purposes,” Ms. Green’s affidavit states that even before he hired her, Dr. Dies discussed the ongoing investigation of Dr. Haygood, offered her immunity for her testimony against Dr. Haygood, claimed that he was “in charge” of the investigation and “couldn’t be touched,” bragged about “our friends at the Board,” and admitted his “hatred” of Dr. Haygood. These facts, if proved, would strongly suggest that Dr. Dies’s conduct was motivated less by altruistic concern for the public than animus to suppress a competitor. They would also prove that other Board members agreed with Dr. Dies to engage in conduct to accomplish these objectives.

Finally we note the issue of whether Dr. Dies was attempting to purchase Dr. Hay-good’s dental practice. Dr. Dies denied this, but his emails disclosed in discovery showed correspondence from AFTCO, a broker, with the subject line, “AFTCO Information you are expecting.” Dr. Hay-good also showed that an AFTCO agent, Roger Lee, wrote to him that certain local dentists, including Dr. Dies, were seeking information about his practice. If proved, this would tend to show that Dr. Dies had the motive or intent to remove Dr. Hay-good as a competitor.

All these contested issues address Dr. Dies’s intent to use (or misuse) Board proceedings to remove an aggressive competitor, Dr. Haygood. Intent is simply inappropriate for resolution by summary judgment. Hogg v. Chevron USA, supra; Jones v. Estate of Santiago, supra. On this record, the unresolved issues preclude the grant of summary judgment. The district court was legally wrong to grant the motion.

| nDr. Dies argues that regardless of these issues, LUTPA is limited to trade or commerce, and judicial hearings are not acts of trade or commerce. In support he cites Bolanos v. Madary, 609 So.2d 972 (La.App. 4 Cir.), writ denied, 615 So.2d 339 (1993), and In re Rogers, 391 B.R. 317 (Bankr.M.D.La.2008). In Bolanos, a competitor reported to the Small Business Administration (“SBA”) that the plaintiff violated Small Disadvantaged Business Rules and made “windfall profits,” allegations which might have disqualified the plaintiff from the SBA program. Even though the reports “contained inaccuracies and misstatements,” the court ultimately held that merely sending correspondence to governmental agencies did not fall to the level of an unfair trade practice under R.S. 51:1409. Rogers held that filing a proof of claim that is ultimately shown to be prescribed, in a bankruptcy case, does not qualify as trade or commerce as defined by R.S. 51:1402(9). Neither case appears to address allegations that a direct, primary competitor may have initiated a Board investigation, served as an expert, and rendered spurious opinions that resulted in revocation of the competitor’s license. The allegations of misuse and manipulation of the Board’s proceedings, if proved, may well support a LUTPA claim.

Dr. Dies also argues that even if Dr. Haygood adduced evidence of an unfair trade practice and conspiracy, summary judgment was proper because none of the alleged acts occurred within the one-year prescriptive period of La. R.S. 51:1409 E. Dr. Haygood filed this suit on September 26, 2011; Dr. Dies urges that his last involvement in the investigation was August 7, 2010, when he gave a deposition, 13½ months before suit. However, according to Dr. Haygood’s theory, Dr. Dies’s unfair trade practices and 112conspiracy culminated in the Board’s decision of November 8, 2010, clearly within one year of suit. There is a genuine issue of material fact whether Dr. Dies’s conduct significantly informed the Board’s ultimate action, or if he perhaps withdrew from the conspiracy. Moreover, the district court denied Dr. Dies’s exception of prescription. On this disputed record, we have no basis to reverse that decision. This argument lacks merit.

Because of our resolution of the principal issue, it is unnecessary for us to address Dr. Haygood’s other arguments. For the guidance of the district court on remand, however, we would seriously question the practice of rendering summary judgment on the merits after the court has previously restricted discovery to the issue of prescription. The opponent is entitled to “adequate discovery” under La. C.C.P. art. 966 C(l). Although the case has not been on the “fast track,” the district court’s order of October 17, 2012, specifically limited Dr. Haygood’s discovery. On this record, the ruling on the merits was premature.

Conclusion

For the reasons expressed, the summary judgment is reversed and the case remanded to the district court for further proceedings consistent with this opinion. All costs are to be paid by the appellees, Ross Dies and his professional limited liability company.

REVERSED AND REMANDED.

      . The Fourth Circuit's opinion focused on the Board’s attorney, Brian Begue of New Orleans, who improperly acted as both prosecutor and adjudicator in the investigation. However, the account of Begue’s corrupt interactions with Board members, and his use of unlicensed investigators, closely parallels Dr. Haygood's allegations of the actions of Dr. Dies and the other defendants herein.

      . Dr. Dies’s exception of prescription is apparently inconsistent with the other defendants’ contention that Dr. Haygood's suit was premature until all Board proceedings, including all appeals, were concluded.

      . A nonparty to this suit, Dr. H.O. Blackwood, and three defendants, Camp Morrison, Karen Moorhead and Dana Glorioso, have filed a motion in this court to dismiss Dr. Haygood’s appeal of a separate ruling that denied Dr. Haygood’s motion to compel discovery against Dr. Blackwood, on grounds that it is an unappealable interlocutory judgment. That ruling, however, appears final in that it would terminate the lawsuit as far as Dr. Blackwood is concerned. Larriviere v. Howard, 2000-186 (La.App. 3 Cir. 10/11/00), 771 So.2d 747, writ granted in part on other grounds, 2000-3087 (La.1/26/01), 781 So.2d 567. The motion to dismiss is denied.