author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Francisco Jamie CORTEZ, Appellant.
    No. 48,319-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Brent Hawkins, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Fred R. McGaha, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before STEWART, LOLLEY and GARRETT, JJ.
   GARRETT, J.

I/The defendant, Jaime Cortez, was tried before a jury on two counts of attempted second degree murder and three counts of aggravated battery. On the two charges of attempted second degree murder, the jury returned responsive verdicts of attempted manslaughter on one count and aggravated battery on the other. The defendant was convicted as charged on two counts of aggravated battery; on the third count of aggravated battery, the jury convicted him of the responsive verdict of simple battery. He was sentenced to serve the following concurrent sentences: 14 years at hard labor for the attempted manslaughter conviction; five years, seven years, and nine years, all at hard labor, on the three aggravated battery convictions; and five months in jail on the simple battery conviction. The defendant now appeals. We affirm the defendant’s convictions and sentences.

FACTS

On December 2, 2011, the defendant was involved in a barroom confrontation with fellow patron Bo Ballard at the J & B Lounge in West Monroe, Louisiana. The two men took their dispute outside. After punching the defendant and knocking him down, Mr. Ballard went back inside. About 15 to 20 minutes later, the defendant returned to the bar armed with a knife. As the bar owner and three patrons tried to disarm him, the defendant stabbed and/or cut them. One victim, Jack Trim, sustained a deep stab wound to his arm. Due to the laceration of an artery, Mr. Trim lost a considerable amount of blood and his wound required five staples to Lclose. Another victim, James Lowery, was rushed to the hospital with a stab wound to the abdomen. He underwent surgery and spent a couple of days in the intensive care unit. The remaining two victims, Hilton Ramsey and Burley Osborne, sustained injuries to, respectively, an arm and a knee.

The vicious melee finally ended when Mr. Ballard — who had exited the rear of the bar and reentered through the front door — came up behind the defendant and knocked him unconscious. The defendant’s friends removed him from the bar, dragging him across the bloody floor. The police later found the defendant under a trailer, unconscious and wearing only his boxer shorts and socks. His blood-stained clothes and the knife used in the attacks were never recovered.

The defendant was initially charged with four counts of attempted second degree murder and one count of aggravated assault. In an amended bill of information, he was charged with two counts of attempted second degree murder and three counts of aggravated battery. In May 2012, the defendant was tried before a jury. The two counts of attempted second degree murder resulted in a conviction for attempted manslaughter of Mr. Ballard and a conviction for aggravated battery of Mr. Lowery. As to the three counts of aggravated battery, the defendant was convicted as charged for the attacks on Mr. Trim and Mr. Ramsey. However, the jury returned a responsive verdict of simple battery as to the attack on Mr. Osborne.

The trial court sentenced the defendant to 14 years at hard labor for the attempted manslaughter conviction; nine years at hard labor for the aggravated battery of Mr. Lowery; seven years at hard labor for the |saggravated battery of Mr. Trim; five years at hard labor for the aggravated battery of Mr. Ramsey; and five months in jail for the simple battery of Mr. Osborne. It also ordered restitution of $1,000.00 to Mr. Trim and $88.50 to Mr. Lowery. The trial court ordered that the sentences be served concurrently. The defendant’s motion to reconsider his sentences was denied.

The defendant appealed.

SUFFICIENCY OF EVIDENCE

The defendant argues that the evidence was insufficient to convict him of attempted manslaughter because the state failed to prove that he had the requisite specific intent to kill Mr. Ballard.

Legal Principles

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 the sufficiency of the evidence first is because 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. Walls, 47,006 (La.App.2d Cir.2/29/12), 86 So.3d 71.

|4The Jackson standard is applicable in eases 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. Walls, supra.

The defendant was charged with attempted second degree murder of Mr. Ballard. The responsive verdicts for attempted second degree murder are guilty, guilty of attempted manslaughter, guilty of aggravated battery, and not guilty. La. C. Cr. P. art. 814. The jury returned a responsive verdict of attempted manslaughter.

In order to convict a defendant of attempted second degree murder, the state must prove beyond a reasonable doubt that the defendant had the specific intent to kill. State v. Bishop, 2001-2548 (La.1/14/03), 835 So.2d 434; State v. Logan, 45,136 (La.App.2d Cir.4/14/10), 34 So.3d 528, unit denied, 2010-1099 (La.11/5/10), 50 So.3d 812. Proof of specific intent to inflict great bodily harm is insufficient. State v. Logan, supra.

The offense of manslaughter is defined as a homicide that would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. |b14:31. Although specific intent to kill is not necessary for a conviction of manslaughter, a specific intent to kill is required for a conviction of attempted manslaughter. State v. Logan, supra. To support a conviction for attempted manslaughter, the state must prove that the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Glover, 47,311 (La.App.2d Cir.10/10/12), 106 So.3d 129.

Specific intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Glover, supra. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Logan, supra; State v. Reed, 45,237 (La.App.2d Cir.5/26/10), 37 So.3d 1116.

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. La. R.S. 14:27(B)(1).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to | fibe guided by the standards of Jackson v. Virginia, supra. State v. Linnear, 44,830 (La.App.2d Cir.12/9/09), 26 So.3d 303; State v. Glover, supra.

Discussion

Mr. Ballard, the object of the defendant’s ire, did not testify at trial. However, Mr. Trim, one of the defendant’s stabbing victims, testified that he observed the physical altercation that occurred between the defendant and Mr. Ballard outside the bar. Mr. Ballard felled the defendant with a punch. Immediately after getting up off the ground, the defendant told Mr. Ballard twice, ‘You wait right here. I’ll be right back.” The defendant then walked away rapidly. Mr. Trim testified that, as a result of this statement, he became nervous and had “a feeling something was going to go down.” Approximately 15 to 20 minutes later, the defendant returned with a knife that had a blade which was at least five inches long.

The state presented the testimony of several witnesses to the defendant’s ensuing bloody rampage at the J & B Lounge. Many of these witnesses testified that the defendant was looking for Mr. Ballard as he relentlessly fought his way through the men who tried to stop and disarm him. The bar’s surveillance video corroborated their testimony. The defendant can be seen opening the front door of the bar with his left hand while holding the knife behind him in his right hand. He then strode into the bar at a brisk pace and with great energy and obvious determination. It was readily apparent from his movements that he was looking about the bar for someone during the free-for-all that followed. While the actual incident |7lasted less than a minute, the surveillance video captured a chaotic scene of mayhem and intense violence. Instead of retreating and fleeing after he encountered substantial resistance in his path toward Mr. Ballard, the defendant continued to fight with and stab at the men thwarting his efforts to get within striking distance of Mr. Ballard. At one point, Mr. Osborne attempted to subdue the defendant by administering a choke hold and taking him down to his knees. However, the defendant — who was described by Mr. Osborne as “strong as a mule” — was able to recover swiftly and resume his battle with the men trying to disarm him. He continued to charge and slash at these men until Mr. Ballard came up behind him and rendered him unconscious with a single blow.

Some witnesses to the brawl offered different perceptions as to what they thought the defendant’s intent was toward Mr. Ballard. Mr. Lowery—the most seriously injured victim and a person who was at close quarters with the defendant during the fracas—testified that it was apparent that the defendant intended to kill Mr. Ballard.

The defendant argues that the state failed to prove that he had specific intent to kill Mr. Ballard because he did not articulate his intentions or actually harm Mr. Ballard in any fashion. However, the evidence presented at trial portrayed the defendant as an enraged and determined man on a mission to kill Mr. Ballard in retaliation for humiliating him in their earlier physical altercation. The overwhelming consensus among the witnesses was that the defendant’s real target was Mr. Ballard. The defendant’s determination to force his way through to Mr. Ballard was so great that he |sinflicted serious injuries on two of the men who valiantly tried to disarm him. Not only did the defendant stab Mr. Lowery in the abdomen, but he also cut him in the chest. Fortunately, Mr. Lowery’s chest wound was only superficial; however, his abdominal wound was a serious injury requiring surgery. The crime scene photos show a considerable amount of blood on the bar floor; the testimony indicated that most of the blood was from the arterial arm wound sustained by Mr. Trim. While the defendant’s actions against his other victims constituted crimes in and of themselves, the sheer ferocity of his conduct against the people in his path is also highly indicative of the deadly intent he harbored toward Mr. Ballard, the actual object of his aggression.

After considering the evidence presented at trial in the light most favorable to the prosecution, we find that the jury could have reasonably concluded that the state proved that the defendant had the specific intent to kill Mr. Ballard and that he committed an overt act in furtherance of that goal, thereby supporting his conviction for attempted manslaughter.

This assignment of error is meritless.

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant also contends that his trial counsel was ineffective in several respects and that his fundamental right to a fair trial was violated by these errors.

The test for effectiveness of counsel is two-pronged. First, a defendant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment to the U.S. 19Constitution. Second, he must show that the deficient performance prejudiced the defense by establishing that counsel’s errors were so' serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Error in Bill of Information

The defendant argues that the amended bill of information, which was read to the jury, erroneously charged that the defendant did “attempt to commit second degree murder ... when the offender has a specific intent to kill or inflict great bodily harm.” He further asserts that his trial counsel was ineffective because he failed to object to this error.

The inclusion of the phrase “inflict great bodily harm” was error because—as discussed supra—attempted second degree murder requires that the perpetrator have the specific intent to kill. However, the purpose of a bill of information is to fairly inform the defendant of the charges against him while a charge to a jury is an instruction to the jury on exactly how to apply the law. La. C. Cr. P. arts. 464 and 802; State v. Simon, 617 So.2d 153 (La.App. 3d Cir.1993).

In State v. Simon, supra, the defendant was charged with attempted second degree murder. In describing the charge of attempted second degree murder, the bill of information included the phrase “or to inflict great bodily harm.” The third circuit found that, although courts have held that it is reversible error to include those words in a jury charge when defining | mattempted second degree murder, such a statement in a bill of information was not error. See also State v. Cavazos, 610 So.2d 127 (La.1992), wherein the supreme court held a post-verdict attack on the sufficiency of an indictment does not provide grounds for setting aside a conviction unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. The facts in Cavazos are similar to those in the instant case — in both cases, the bill of information read to the jury erroneously included the “inflict great bodily harm” language as to a charge of attempted second degree murder and the jury instructions included a definition of second degree murder in its general charge. However, the trial judge in Cavazos — like the trial judge in the instant case — explicitly instructed jurors that a conviction for attempted second degree murder required a finding that the defendant had the specific intent to kill the victim. Although the trial court granted relief to Cavazos pursuant to a post-conviction relief application, the supreme court reversed the trial court decision and reinstated his conviction.

In the instant case, the amended bill of information is not fatally defective in that it did, in fact, fairly inform the defendant of the charges of which he was accused. Furthermore, we note that during the trial, the jury was told repeatedly— during voir dire, opening statements, closing arguments and, most importantly, jury instructions — that the charge of [^attempted second degree murder required a finding that the defendant had the specific intent to kill. Additionally, in the charge to the jury, the jurors were properly instructed that the bill of information was a mere charge against the defendant, that it was not evidence of his guilt, and that they should not be influenced by it in considering the case.

Based upon our review of the record, it is abundantly clear that the jury fully understood that the state had to prove beyond a reasonable doubt that the defendant had the specific intent to kill two of the victims, Mr. Ballard and Mr. Lowery. The jury applied the law to the different charges and the five victims, and, after carefully sorting through the evidence, the jurors found it appropriate to return responsive verdicts on three of the charges. As the defendant obviously suffered no prejudice due to the wording of the amended bill of information, we cannot find that trial counsel was ineffective.

This assignment of error is without merit.

Jury Instruction

The defendant claims that the instructions read to the jury failed to include a definition of attempted manslaughter and that his counsel was ineffective because he failed to secure the inclusion of this definition or object to its exclusion. However, review of the actual transcript of the trial court’s charge to the jury — which was supplemented into the appellate record by order of this court — reveals that such an instruction was, in fact, l^given. Consequently, the defendant has no basis for alleging ineffectiveness on the part of his trial counsel in this regard.

This assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Although the defendant was originally charged as "Francisco Jamie Cortez,” immediately prior to trial, the state corrected the amended bill of information to reflect that the defendant's name is actually "Jaime Cortez.”

      . The defendant makes no complaints as to his three convictions of aggravated battery and one conviction of simple battery.

      . The record indicates that he was out of state due to a death in his family.

      . We note that the transcript did not contain the verbatim reading of the bill of information; the transcript merely recited: "Clerk reads second amended bill of information to the jury.”

      . In Cavazos, supra, both the prosecutor and defense counsel erroneously referred to the specific intent to inflict great bodily harm in their opening statements. In the instant case, no such mistake occurred.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Charles Marcus McCAULEY, Appellant.
    No. 48,321-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles Rex Scott, District Attorney, Kelvin M. Rodgers, Tommy J. Johnson, Jordan Bird, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE & PITMAN, JJ.
   PITMAN, J.

| defendant Charles Marcus McCauley was convicted of resisting an officer by force or violence in violation of La. R.S. 14:108.2 and sentenced to serve two years at hard labor. Defendant now appeals his conviction and sentence. For the reasons stated herein, we affirm.

FACTS

On January 2, 2012, Shreveport City Police were called to the scene of a fight between backyard neighbors on Oak Street and Holly Street. After questioning the .neighbors on Oak Street and charging them with disturbing the peace by fighting, the officers drove to Holly Street to question Defendant about the argument. Defendant was extremely agitated and belligerent and would not cooperate with the police. The officers arrested him for disturbing the peace by fighting; and, during the arrest, Defendant resisted efforts to detain him by kicking and cursing at the police officers and by continuing to behave violently over a four-hour time period. He was eventually charged by bill of information with resisting an officer by force or violence.

At the jury trial, Officer James Tilley of the Shreveport Police Department testified that he and other officers were dispatched at 12:50 a.m. in response to a call about a fight between neighbors, and he was informed by Oak Street residents that their neighbor, Defendant, had been harassing them and shooting fireworks at them over a six-foot fence which divided their properties. Officer Tilley also testified that they were unable to get through the fence, so they drove to Holly Street where they attempted to question Defendant about the fight. Officer Tilley testified that it was dark Land they could not see Defendant very well, so they ordered him to get on the ground for their safety. Defendant refused. He was extremely agitated and refused to calm down or to give the officers any information regarding .the fight. He began yelling obscenities at the officers. Officer Tilley further testified that Defendant smelled strongly of alcohol and had minor cuts and abrasions on his arm from the altercation with his neighbors. Video and audio recordings of the incident were played in court, which supported Officer Tilley’s version of the events.

Since Defendant was uncooperative and continued to be combative and aggressive, he was placed under arrest for disturbing the peace by fighting. While the officers were attempting to place him under arrest, Defendant “donkey-kicked” the officers and resisted their efforts to detain him. Officer Tilley testified that an EMT examined Defendant’s cuts and bruises at the scene, notwithstanding Defendant’s complaints that his rights were being violated by the officers’ refusal to have his cuts treated. When the officers attempted to place Defendant in the police unit, he kicked the door, banged his head against the glass and shouted profanities and threats at the officers.

Officer Tilley stated that, once they arrived at the jail, the officers observed that Defendant was still bleeding and a decision was made to transport him to LSU Medical Center for treatment. Officer Tilley further stated that he requested a restraining device called a hobble from one of the other officers in order to place Defendant in the car. They were suecessful 18in placing the hobble on Defendant, but only after both officers were “kneed” in the legs and chest by Defendant. When they finally reached the hospital, Defendant would not exit the car and three officers were forced to get him out and in a wheelchair.

Officer John Lee testified that Defendant was already in handcuffs and under arrest when he arrived at the Oak/Holly Street scene. He stated that Defendant was cursing everyone around him and refused to get into the police car. Officer Lee further stated that other officers had to lift Defendant off the ground and force him into the car. He also testified that, at the jail, when someone was trying to look at Defendant’s cuts, Defendant grabbed the person’s elbow and spun him around. It took three jailers and two officers to subdue Defendant so his injuries could be checked.

Officer Lee also corroborated testimony that, when Defendant was transported to the hospital for stitches, he kicked the vehicle seats, windows and barricade while yelling and cursing. He also witnessed Defendant kick one of the officers in the chest when the officer tried to place the hobble on Defendant.

Officer Hai Phan testified that he was the officer who responded to Officer Til-ley’s request for a hobble and that he also was kicked by Defendant in the chest several times as he tried to put the hobble on him. Officer Phan also stated that Defendant “kneed him,” yelled profanities and kicked the car door. Once the hobble was secured, Defendant began bashing his head against the window. Officer Phan testified that Defendant was intoxicated and that he threatened violent harm. He also testified that |4Pefendant “locked his body up” at the hospital, and it took several officers to get him in the wheelchair. Defendant began spitting on the officers, so a mask was placed on him to prevent the spread of bodily fluids.

Defendant’s girlfriend, Jennifer Joiner, who testified that she was there the night of the fight, stated that Defendant never resisted the officers or kicked them, and he only screamed because he had been in a fight. She claimed Defendant fully complied with the officers’ demands and never used any profanity.

Defendant testified that the officers refused to tell him why he was being arrested and that they refused to get him medical attention. He claimed he had been fighting for over an hour over a three-foot chain link fence in his back yard, with 12 people on the other side of the fence beating him. He claimed that one person hit him on the head with a board and that he was “punch drunk.” Defendant also testified that he was not hostile to the officers and that he had complied with their requests without complaint. He admitted he used profanity, but denied kicking anyone, spitting on anyone or threatening anyone. Defendant also claimed that,the officers punched him, kicked him, “tased” him below the shoulder blades and called him a meth head,. crack head and dope fiend. He stated that the officers beat him up all the way to the hospital.

The six-person jury returned a unanimous verdict finding Defendant guilty as charged of resisting an officer with force or violence. Defendant filed a motion for new trial, claiming the verdict was contrary to the law and the evidence. He also filed a motion for post-verdict judgment of acquittal Land claimed the state failed to prove, beyond a reasonable doubt, that the evidence was sufficient to support a guilty verdict.

The trial court denied both motions. Defendant waived sentencing delays, and the trial court held a sentencing hearing that same day. At the hearing, David Helms, a legal assistant for Defendant’s attorney in other matters, testified about Defendant’s personal life, that he had known Defendant for a long time and that he believed Defendant was working hard and making progress in improving his life. Defendant then addressed the court, apologizing for his behavior and asking for leniency.

The trial judge stated that he had considered a letter from Defendant’s mother and that he had reviewed Defendant’s criminal history, which included both convictions and dismissed charges. Defendant’s criminal history began in 1996 and continued until the present charge in 2012, and included such crimes as resisting an officer, simple burglary, possession of drug paraphernalia, eyberstalking, disturbing the peace and carrying illegal weapons. In 2011, Defendant was investigated for threatening to kill employees of the Louisiana Department of Child and Family Services. For this crime, he was charged with threatening a public official. Defendant pled guilty to that misdemeanor offense and was ordered to pay a fine and court costs.

The trial judge noted that these events were significant in evaluating Defendant’s character and attitude and showed that he had been treated fairly and with leniency. The trial judge also noted Defendant’s personal history and, while accepting Defendant’s apology as sincere, noted that the | ^incident at issue in this case occurred over a span of four hours, involved three police officers and could have been charged as three separate counts of resisting arrest by use of force or violence. The trial judge stated that, after considering all the factors of La. C. Cr. P. art. 894.1, he had originally determined to impose the maximum sentence of three years upon the Defendant; however, after hearing Defendant’s apology, he decided to impose a reduced term of two years at hard labor. The trial judge also recommended that Defendant take part in the Department of Corrections’ re-entry program and the IMPACT program.

Defendant filed a motion to reconsider sentence and argued that the trial court did not give sufficient reasons to deny probation when he had no prior felonies. He also argued that the trial court considered prior arrests that did not result in convictions and failed to consider other facts, such as that he was gainfully employed, that he was intoxicated at the time of the offense, that his neighbors had been the aggressors and that the officers did not sustain any injuries that required treatment. The motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

Sufficiency of the Evidence:

Defendant’s first assignment of error is that the evidence adduced at trial does not support the verdict of guilty of the offense of resisting an officer by force or violence. Defendant argues that he did not use threatening force or violence against any of the officers. He asserts that the officers’ testimony regarding who got kicked and how many times was both ^inconsistent and contradictory. He also argues that his cursing and kicking the vehicle are irrelevant to the issue of whether he resisted arrest by force or violence and that his actions did not support a conviction for that offense.

In opposition, the state argues that the cumulative testimony of the officers showed that Defendant was combative and uncooperative to the point that he had to be further restrained by use of a hobble device. The officers were specific in their testimony that the contact here was not slight — Defendant deliberately kicked them. The state argues that, in weighing the officers’ testimony against the testimony of Defendant and his girlfriend, the jury found the officers’ testimony to be more credible.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, and in a light most favorable to the prosecution, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

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.2/25/09), 3 So.3d 685, vnit denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

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, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (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 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).

La. R.S. 14:108.2 states that:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
19(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.
B. For purposes of this Section, “police officer” shall include any commissioned police officer, sheriff, deputy sheriff, marshal, deputy marshal, correctional officer, constable, wildlife enforcement agent, state park warden, or probation and parole officer.
C. Whoever commits the crime of resisting an officer with force or violence shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not less than one year nor more than three years, or both.

Officer Tilley was a police officer acting in the performance of his official duty. He arrived in a marked police car, wearing his police uniform, and identified himself and his purpose to investigate the call about the fight. The officer is heard on the audio recording telling Defendant that he was under arrest for disturbing the peace by fighting. Defendant refused to cooperate with the officers as they attempted to investigate the call and after they arrested him. He is heard on the tape threatening to kill the officers if they take him to jail. Defendant kicked the officers as they attempted to place a nylon restraint on him to stop his thrashing and kicking at and in the police car. The fact that Defendant’s kicks did not injure the officers to the point of requiring medical attention is irrelevant and is not a required element of the offense. The testimony by Defendant and his girlfriend that he cooperated with the officers’ every request and never yelled or kicked was refuted by the video and audio recordings and the testimony of the three officers. The evidence was sufficient to prove, beyond a reasonable doubt, all the required elements of the offense.

| inFor the foregoing reasons, this assignment of error lacks merit.

Excessive Sentence:

Defendant also argues that the sentence of two years at hard labor is constitutionally excessive and is no more than a needless imposition of pain and suffering.

Defendant asserts that the trial court erred by not sufficiently considering Mr. Helms’ testimony that his behavior was improving and by not placing him on probation. He states that his sentence is excessive in light of the fact that the officers were not physically injured. Although he was loud and profane, he argues that he is not the worst of offenders and that his actions do not constitute the worst offense. He also argues that the imposed sentence of two years’ imprisonment at hard labor is not justified under these facts and serves no purpose.

In opposition, the state raises the trial court’s comment that, under the circumstances, Defendant could have been charged with three separate counts of resisting an officer with force or violence. After weighing Defendant’s criminal history against his personal issues, his apology and Mr. Helms’ testimony, the trial court opted to impose a sentence of only two years instead of the maximum.

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.3/9/12), 84 So.3d 550. The Inreviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 11-2347 (La.3/9/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. Where the defendant’s motion to reconsider sentence alleges mere excessiveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd,, 46,321 (La.App.2d Cir.9/21/11), 72 So.3d 952.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Cunningham, 46,664 (La.App.2d Cir.11/2/11), 77 So.3d 477. The defendant’s personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, writ denied, 11-2288 (La.3/30/12), 85 So.3d 113. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App.2d Cir.12/3/08), 998 So.2d 864, writ denied, 09-0265 (La.11/6/09), 21 So.3d 305. Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor, 41,898 (La.App.2d Cir.4/4/07), 954 So.2d 804.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

The imposed sentence of two years’ imprisonment at hard labor falls within the sentencing guidelines provided in La. R.S. 14:108.2 and, so, is not illegal. The trial court reviewed the sentencing guidelines and weighed the facts of this case and the pattern of Defendant’s criminal history against his personal history, his apology to the court and other mitigating testimony. The trial court found Defendant’s behavior was outrageous and that he could have faced two additional counts of the offense since three officers were involved.

Defendant’s behavior was more than a mild resistance to arrest. He persisted in forcefully resisting arrest over the course of several hours and to the extent that the officers had to restrain him with more than just handcuffs. His criminal history shows a pattern of resistance and threatening behavior toward others.

Based on the foregoing facts, the sentence imposed is not disproportionate to the severity of the crime committed and does not shock the sense of justice. Therefore, the imposed sentence is not constitutionally excessive and this assignment of error lacks merit.

| ^CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Charles Marcus McCauley, are affirmed.

AFFIRMED.

      . The video was from the mobile video system that recorded audio from Officer Tilley’s personal microphone and both audio and visual from his police vehicle.


author: HANS J. LILJEBERG, Judge.

text:
    Bonnie Ann Blanchard BIGGERS v. Steven Paul BIGGERS.
    No. 13-CA-127.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 18, 2013.
    Rehearing Denied Oct. 16, 2013.

      Christine F. Remy, Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellee.
    Karen E. Matherne O’Brien, Jennifer C. Deblanc, Barbara Volk Madere, Attorneys at Law, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Plaintiff, Bonnie Biggers, filed a rule for contempt against defendant, Steven Biggers, for violating a consent judgment entered into by the parties relative to spousal support. Both parties appeal the ruling of the trial court, denying plaintiffs rule for contempt. For the reasons set forth below, we affirm.

Facts & Procedural History

On July 26, 2012, Steven and Bonnie Biggers finalized their divorce and entered into an agreement as to all issues relating to custody, spousal support, and community property. Ultimately, the final consent judgment was signed by the parties and the court on September 12, 2012. In the consent judgment, Steven Biggers agreed to pay final spousal support in the form of monthly premiums of COBRA insurance for Bonnie Biggers for a period of 18 months or until she obtained employment and health insurance. The pertinent portion of the consent judgment reads as follows:

“Steven Paul Biggers shall pay final support as the monthly premium for COBRA insurance for Bonnie Biggers until she obtains employment and health insurance, which covers all of her existing medical needs (i.e., which does not exclude her preexisting condition of breast cancer.) for a period of 18 months. The parties will review the issue of COBRA payments on December 4, 2012 at 9:00 a.m. with the district court to determine Medicaid options, employment search issues and income of Bonnie Biggers. In the event that Bonnie Blanchard Big-gers obtains employment with health insurance coverage as stated above, then she must immediately notify Steven Biggers and he may terminate the COBRA payments.
laThe COBRA payments shall begin upon obtaining the judgment of divorce, the premiums are approximately $660 per month. Bonnie Blanchard Biggers shall notify Steven Biggers as soon as she has obtained employment. Bonnie Biggers shall provide him with documentation showing when health insurance, which does not exclude preexisting conditions for breast cancer can be obtained by Bonnie Big-gers.”

As of the date of signing of the consent judgment, Bonnie Biggers was terminated from Mr. Biggers’ employee group health insurance and Bonnie Biggers was to be notified by COBRA regarding continued coverage. Bonnie Biggers selected all plans offered by COBRA, including health, dental and vision, as she and Steven Big-gers had jointly chosen prior to the dissolution of the marriage. The medical premium was $493.52, the dental premium was $39.13, and the vision premium was $6.64. Thus, the total COBRA premium was $539.29 per month. Bonnie Biggers sent Steven Biggers an invoice for the elected coverage.

Thereafter, Steven Biggers made three consecutive payments directly to COBRA in the amount of $493.53 for medical coverage only. This ultimately resulted in the cancellation of Bonnie Biggers’ health insurance coverage. Bonnie Biggers learned of the cancellation when she attempted to schedule a procedure in October 2012, when she also learned that her COBRA coverage could not be reinstated under any circumstances.

Bonnie Biggers subsequently filed a Rule for Contempt that was denied by a hearing officer on November 7, 2012. On December 4, 2012, the rule was heard by the district judge, who found Steven Big-gers did not willfully or intentionally violate the consent judgment. However, the court ordered Steven Biggers to pay the medical bills of Bonnie Biggers for 18 months from the date of the divorce as it was the court’s intent in the consent judgment that Bonnie Biggers be awarded comparable coverage as final spousal support. It is from this ruling that the parties appeal.

| ¿¡Assignments of Error

On appeal, defendant/appellant, Steven Biggers, asserts that the trial court erred in imposing a penalty against him after finding that he was not in contempt of the September 12, 2012 judgment.

Plaintiff/Appellee, Bonnie Biggers, asserts that the trial court erred in failing to find Steven Biggers in contempt of the consent judgment and failing to award actual attorney’s fees and other relief requested in the Rule for Contempt.

Law & Analysis

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Contempts of court are of two kinds, direct and constructive. Id.

Contempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert. denied, Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (U.S. 1999); Parish of Jefferson v. Lafreniere Park Foundation, 98-345 (La.App. 5 Cir. 9/15/98), 720 So.2d 359, writ denied, 98-2598 (La.10/28/98), 723 So.2d 965.

Direct contempt is committed in the presence of the Court, and constructive contempt is committed outside of the presence of the Court. DeGruy v. DeGruy, 98-1416 (La.App. 4 Cir. 1/27/99), 728 So.2d 914. Willful disobedience of a court order constitutes constructive contempt of court. La. C.C.P. art. 224(2); In re Jones, 10-66 (La.App. 5 Cir. 11/9/10), 54 So.3d 54, unit not considered, 10-2738 (La.2/4/11), 56 So.3d 979.

|sTo find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Brunet, supra. A trial court is vested with great discretion in determining whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. art. 224 for willful disobedience of a court order. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 09-0011 (La.App. 4 Cir. 6/30/10), 42 So.3d 1094, unit denied, 10-1810 (La.10/29/10), 48 So.3d 1093.

The record reflects that testimony was taken by both parties at the hearing on the rule for contempt. Steven Biggers testified that he was under the impression and under the advice of counsel that pursuant to the July 26, 2012 consent judgment, he was required only to pay the medical premium for Bonnie Biggers. Although testifying that Bonnie Biggers had medical, dental, and vision coverage during the course of the marriage and despite receiving an invoice from COBRA for all three premiums, Steven Biggers testified that he made three payments in the amount of $493.54 for the medical portion only. Steven Biggers testified that he text messaged Bonnie Biggers on September 10, 2012, explaining that she would have to pay the dental and vision premiums if she wanted said coverage and would have to pay those premiums by October 1, 2012. Steven Biggers testified that he did not receive a response from Bonnie Biggers regarding the dental and vision premiums, and further testified that he was unaware that if those portions of the premiums were not paid, her entire coverage would be cancelled. Steven Biggers testified that he did not find out that Bonnie Big-gers’ COBRA coverage was terminated until she notified him on October 23, 2012, when he then attempted to rectify the situation, but COBRA would not discuss the coverage without Bonnie Biggers’ presence on the call.

IfiBonnie Biggers testified that she had all three benefits during the marriage and it was her understanding that Steven Big-gers was required to pay medical, dental, and vision premiums pursuant to the consent judgment signed July 26, 2012. Bonnie Biggers testified that her COBRA coverage was ultimately terminated on August 31, 2012, because full payment was not made. Bonnie Biggers acknowledged that COBRA did contact her with Steven Biggers on the line; however, she testified that she did not want to continue the call without her attorney. When she called back with her attorney, COBRA indicated that her coverage could not be reinstated. Bonnie Biggers also testified that she did not respond to Steven Big-gers’ text message on the advice of counsel, and further that she did not request counsel to contact Steven Biggers or his attorney regarding the matter.

At the conclusion' of the hearing, the trial court, irritated with both parties’ mishandling of the instant matter, clarified the intent of his ruling in the consent judgment that Bonnie Biggers receive comparable medical coverage, as she did during the marriage, for 18 months from the date of signing or until she obtained employment with benefits of comparable coverage. The trial court ultimately ruled that he did not find Steven Biggers intentionally disobeyed the court’s order because “it was an area that had some — a little bit of question.” He further articulated that he found both parties to be delinquent in the failed resolution of the matter and did not find a direct intent on the part of Steven Biggers to be in contempt of the court’s order. The trial court made clear at that point, however, that Steven Biggers was to pay Bonnie Biggers’ medical bills as intended by the consent judgment.

Upon review of the record, we do not find that the trial court abused its great discretion in its finding that Steven Biggers did not willfully disobey the court’s 17order in the July 26, 2012 consent judgment. Although the court spoke of comparable coverage at the July 26, 2012 hearing, the language of the consent judgment did not specify medical, dental, and vision coverage. Moreover, Steven Big-gers testified that it was his understanding that he only need pay the medical portion of the premium and did in fact do so. As such, we find no error in the trial court’s ruling finding Steven Biggers did not commit a constructive contempt of court.

Additionally, we find no merit in defendant/appellant’s argument that the trial court imposed a penalty upon Steven Biggers even though he was not found to be in contempt of court. It was agreed upon by both parties and the overall intent of the consent judgment that Bonnie Big-gers would receive spousal support in the sole form of health care. Upon the lapse of COBRA coverage, ultimately due to Steven Biggers’ failure to pay the COBRA premium in full, the consent judgment as written could no longer be enforced. The trial court, in order to maintain compliance with the intent of the parties when entering into the judgment, ordered that Steven Biggers pay Bonnie Biggers’ medical bills. In these limited circumstances, where a term of the judgment can no longer be enforced, we do not find that the trial court abused its discretion in enforcing the intent of the judgment that Bonnie Big-gers receive health care.

Insofar as plaintiff/appellee appealing the trial court’s denial of attorney’s fees and other relief relative to the enforcement of spousal support under La. R.S. 9:375, we also find no error in the trial court’s ruling. This was a rule for contempt proceeding not an action for past due spousal support. Moreover, the trial court found both parties to be delinquent in the handling and ultimate lapse of the COBRA coverage. An award of attorney’s fees is within the sound discretion of the trial court. Derbes v. Derbes, 06-91 (La.App. 5 Cir. 9/26/06), 942 So.2d 1086. In the instant circumstances, we do not find that the trial court abused its discretion in denying attorney’s fees and other relief sought in plaintiffiappellee’s Rule for Contempt. See Harris v. Harris, 505 So.2d 835 (La.1987).

Decree

Based on the foregoing, we affirm the ruling of the trial court.

AFFIRMED


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Shannon JONES and Jennifer Jones, Individually and on behalf of their Daughter, Haley Jones v. ABC INSURANCE COMPANY and Cobe Cardiovascular, Inc., et al.
    No. 13-CA-167.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2013.
    Rehearing Denied Oct. 16, 2013.

      Michelle M. Davis, Mark G. Duncan, Attorneys at Law, Mandeville, Louisiana, for Plaintiff/Appellant.
    Vincent J. Booth, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

[gThe law firm of Davis and Duncan, L.L.C., appeals the trial court’s judgment disqualifying the firm in the matter entitled Shannon Jones and Jennifer Jones, individually and on behalf of their daughter, Haley Jones v. ABC Insurance Company and Cobe Cardiovascular, Inc., et al., in the Twenty-Fourth Judicial District Court, no. 535-525 “J.” First, we find the judgment at issue is not a final, appealable judgment. See La. C.C.P. art.2083; La. C.C.P. art.1915; T.S.L. v. G.L., 07-01552 (La.App. 3 Cir. 2/6/08), 976 So.2d 793. However, in the interest of justice and under the exceptional circumstances in this case, we convert the appeal to a writ application reviewable under our supervisory jurisdiction. Because we find that the trial court did not err in finding that relator, Davis and Duncan, L.L.C., has an irreconcilable conflict of interest prohibiting its representation in this matter, we deny the writ.

This case involves a medical malpractice and products liability action filed by Shannon Jones and Jennifer Brunelle, individually and on behalf of their minor daughter, Haley Jones, for damages Haley sustained during heart surgery she | (¡underwent as an infant and for her parents’ individual loss of consortium claims. The matter was partially settled by a lump sum settlement reached with the manufacturer defendants, Polystan A/S and Cobe Cardiovascular, Inc., but allocation of funds was not determined at the time of settlement. The trial court subsequently allocated the settlement funds between Haley’s claims and her mother’s individual claims.

Mrs. Brunelle, individually and on behalf of Haley Jones, subsequently filed a legal malpractice action against various attorneys who represented plaintiffs during the medical malpractice and products liability proceedings. There is a separate appeal in this Court, under docket number 11-CA-632, concerning the settlement allocation judgment in the underlying tort claim and the granting of summary judgment in favor of defendants in the legal malpractice proceedings.

Throughout the complicated procedural history of this case, the trial court and this Court have found that conflicts of interest exist among the attorneys representing the parties. On March 23, 2012, this Court ordered the trial court to conduct a hearing to “consider any potential or actual conflicts of interest present in the ease to ensure that the interests of the minor, Haley Jones, are adequately protected and represented.” The trial court conducted a hearing and, on June 29, 2012, issued a judgment disqualifying relator, Davis & Duncan, L.L.C., holding that the law firm has irreconcilable conflicts of interest in its representation of Jennifer Brunelle, either individually or on behalf of the minor child, Haley Jones. Relator timely seeks review of that judgment.

DISCUSSION

The customary remedy for an alleged conflict of interest is disqualification of the attorney or firm with the conflict. Walker v. State, Dep’t of Transp. & Dev., 01-2078 (La.5/14/02), 817 So.2d 57, 59-60. In determining whether a conflict of interest exists, we look to the Rules of Professional Conduct, which have the force and effect of substantive law. In re Tutorship of Prop. of Huddleston, 95-97 (La.App. 5 Cir. 4/25/95), 655 So.2d 416, 422.

Rule 1.7 of the Rules of Professional Conduct prohibits representation of clients with a “concurrent conflict of interest.” Rule 1.7 provides that a lawyer must not represent a client if the representation will be directly adverse to another client or will materially limit the lawyer’s responsibility to another client. In re Merlin A. Abadie Inter Vivos Trust, 00-2029 (La.App. 4 Cir. 7/11/01), 791 So.2d 181, 185.

Further, Rule 1.9 of the Rules of Professional Conduct seeks to prevent a conflict of interest between a lawyer and a former client by providing that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person’s 15interests are materially adverse to the interests of the former client. Farrington v. Law Firm of Sessions, Fishman, 96-1486 (La.2/25/97), 687 So.2d 997, 1000-01. Two matters are “substantially related” when they are so interrelated both in fact and substance that a reasonable person would not be able to disassociate the two. Walker v. State, Dep’t of Transp. & Dev., 01-2078 (La.5/14/02), 817 So.2d at 61-62.

In this case, the record reflects that, on May 29, 2009, Davis and Duncan enrolled as counsel of record for “Jennifer Brunelle, individually and on behalf of her minor child, Haley Jones.” Prior to Davis and Duncan’s enrollment as counsel, plaintiffs had reached a partial lump sum settlement of $8,250,000.00. However, the parties failed to allocate what percentage of the settlement funds would compensate Mrs. Brunelle’s individual claims and what percentage would compensate Haley for her injuries. Accordingly, once the parties reached the lump sum settlement without allocating the funds, Mrs. Brunelle and her daughter Haley had materially adverse interests and competing claims to those settlement funds.

Davis and Duncan asserts that the firm has primarily represented Jennifer Bru-nelle only in her capacity as tutor of the minor child in the 22nd Judicial District Court tutorship proceedings and has been uninvolved in the allocation proceedings in the 24th Judicial District Court. Davis and Duncan asserts that the pleadings the firm filed in the 24th Judicial District Court related only to a common goal of all parties — to get the settlement proceeds into the registry of the court to earn interest for the benefit of all parties.

The record reflects that Davis and Duncan filed pleadings in the 24th Judicial District Court on behalf of Jennifer Brunelle, individually and on behalf of the minor child, Haley Jones, to have the settlement funds deposited into the registry of the court while awaiting the court’s allocation of the funds. Thereafter, on | ^September 29, 2009, Davis and Duncan represented Jennifer Brunelle, individually and on behalf of her minor child, Haley Jones, when the parties entered into a Consent Judgment. In that Consent Judgment, the trial court granted authority to the parties to enter into settlement with the manufacturer defendants; to receive settlement proceeds and deposit those proceeds into the registry of the court; and .to dismiss with prejudice all claims against the settling defendants, specifically reserving Jennifer Brunelle’s rights, individually and on behalf of Haley Jones, to any claims “she may have individually and/or on behalf of her minor child” against the remaining defendants. Davis and Duncan is the only counsel representing Jennifer Brunelle individually in that consent judgment, wherein she reserves her individual claims against the remaining defendants.

Although the record reflects that Davis and Duncan primarily represented Jennifer Brunelle in her capacity as tutor in the 22nd Judicial District Court, it clearly reflects that Davis and Duncan represented Mrs. Brunelle in her individual capacity in the personal injury action and made arguments to the court to protect Mrs. Bru-nelle’s individual claims.

Therefore, we find that Davis and Duncan has previously represented Mrs. Bru-nelle individually and on behalf of Haley Jones in this matter, where she and her daughter have adverse interests relating to the settlement reached. Accordingly, Rules 1.7 and 1.9 of the Rules of Professional Conduct prohibit Davis and Duncan from representing either Mrs. Brunelle individually or in her capacity as tutor on behalf of her child, Haley Jones. Although Davis and Duncan argues that the tutorship proceedings are separate proceedings in which Mrs. 17Brunelle and Haley do not have conflicting interests, we find the two matters to be interrelated in both fact and substance such that the two matters are substantially related under the facts of this case. As such, we find the trial court did not err in its judgment disqualifying Davis and Duncan from this matter and prohibiting Davis and Duncan from representing Mrs. Brunelle individually or on behalf of her daughter, Haley Jones, in any other matter in which the minor child is a party. This writ is denied.

APPEAL CONVERTED TO WRIT; WRIT DENIED

      . Shannon Jones, Haley’s father, has dismissed his individual claim for loss of consortium.

      . Rule 1.7, entitled "Conflict of Interest: Current Clients[,]” provides:
      (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
      (1) the representation of one client will be directly adverse to another client; or
      (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
      (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
      (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
      (2) the representation is not prohibited by law;
      (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
      (4) each affected client gives informed consent, confirmed in writing.

      . Rule 1.9, entitled “Duties to Former Clientsf,]” provides:
      (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
      (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
      (1) whose interests are materially adverse to that person; and
      (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
      (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
      (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
      (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

      . The record reflects that, on September 25, 2009, Davis and Duncan also filed, on behalf of Jennifer Brunelle individually, an opposition to Mr. Jones’ motion to enforce the settlement, arguing that the 24th Judicial District Court lacked jurisdiction to consider the motion. In her opposition, Mrs. Brunelle individually, through counsel Davis and Duncan, discusses the lump sum settlement and specifically "reserves” her rights against the settling defendants for her individual claims.

      . The record reflects that Davis and Duncan in fact filed a motion to have the settlement funds allocated by the trial judge in the tutorship proceedings in the 22nd Judicial District Court.