author: KEATY, Judge.

text:
    STATE of Louisiana v. Willis J. MOUTON aka Willis James Mouton.
    No. 12-836.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2013.

      Michael Harson, District Attorney, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Willis J. Mouton.
    Court composed of JOHN D. SAUNDERS, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

| T Defendant, Willis J. Mouton, also known as Willis James Mouton, was charged by bill of information filed on August 24, 2010, with simple burglary of an automobile, a violation of La.R.S. 14:62, and public intimidation, a violation of La. R.S. 14:122. Defendant entered a plea of not guilty on August 30, 2010. Defendant waived his right to trial by jury on November 8, 2011, and the matter proceeded to trial before the bench. Defendant was subsequently found guilty as charged. On December 12, 2011, Defendant was sentenced to twelve years for simple burglary and to five years at hard labor for public intimidation. The sentences were to be served concurrently.

Defendant filed a motion for appeal on December 20, 2011, asserting two assignments of error. Therein, he contends the evidence was insufficient to support his convictions for simple burglary and public intimidation, and his sentences are excessive.

FACTS

Defendant was convicted of the simple burglary of a car belonging to Vergie Clay (Clay) and of the public intimidation of Officer Calvin Parker (Officer Parker).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, there is an error patent regarding Defendant’s simple burglary sentence. Louisiana Revised Statutes 14:62 carries a term of imprisonment for not more than twelve years with or without hard labor. The trial court imposed a twelve-year sentence for simple burglary without specifying whether it was to be served with or without hard labor.

| ¡.Although the court minutes and the commitment order indicate the simple burglary sentence was imposed at hard labor, the transcript does not reflect this. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. The trial court’s failure to specify whether the sentence for simple burglary was to be served with or without hard labor rendered the sentence indeterminate, requiring the sentence be vacated and the case remanded for resentencing with the trial court being instructed to specify whether the sentence is to be served with or without hard labor. See State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La.4/24/09), 7 So.3d 1193. Accordingly, Defendant’s sentence for simple burglary is vacated, and the case is remanded for resentencing. At the resentencing, the trial court is ordered to specify whether the sentence is to be served with or without hard labor.

Additionally, there is an error patent regarding the trial court’s advisement of the prescriptive period of La.Code Crim.P. art. 930.8. Following sentencing, at a separate proceeding in which Defendant was not present, the trial court in open court set forth the prescriptive period for filing post-conviction relief pursuant to La.Code Crim.P. art. 930.8. Defendant’s attorney was present at the proceeding.

Louisiana Code of Criminal Procedure Article 930.8(C) provides:

At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights.

The record before this court does not indicate that the notice of the prescriptive period was given to Defendant. Thus, the trial court is ordered to inform Defendant of the provisions of Article 930.8 at resen-tencing.

la ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends the trial court erred in finding him guilty of simple burglary of an automobile and public intimidation.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).
However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on |4 circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

State v. McKithern, 11-1402, pp. 6-7 (La.App. 3 Cir. 5/2/12), 93 So.3d 684, 691.

Defendant was convicted of simple burglary of an automobile.

In order to obtain a conviction for simple burglary, the elements of the crime must be proven beyond a reasonable doubt. The elements of the crime at issue, simple burglary, are contained in La.R.S. 14:62:
Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein....
Like most felonies, burglary consists of an act element and an intent element. La.R.S. 14:7, 14:8. The act element, or actus reus, is the unauthorized entry of a dwelling or vehicle. The intent element, or mens rea, is the specific intent to commit a theft (or other felony) in the dwelling or vehicle. State v. Maxie, 614 So.2d 1318 (La.App. 3 Cir.1993). Theft is defined by La.R.S. 14:67(A) as follows:
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371-72.

Defendant was also convicted of public intimidation.

La.R.S. 14:122(1) defines public intimidation as the use of violence, force or threats upon a public officer or employee with the intent to influence his conduct in relation to his position, employment or duty. Without question, a law enforcement officer is such a public officer or employee.
|fiThe offense of public intimidation requires specific criminal intent. Public intimidation is not simply the intentional use of force or threats upon an officer, but rather the use of force or threats upon the officer with the specific intent to influence the officer’s conduct in relation to the officer’s duties. State v. Jones, 00-980 (La.App. 5th Cir.10/19/00[10/18/00]), 772 So.2d 788; State v. Meyers, 94-231 (La.App. 5th Cir.09/14/94), 643 So.2d 1275.
Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Specific intent is a state of mind and, as such, need not be proven as a fact but may be inferred from the circumstances and actions of the accused. State v. Harris, 00-3459 (La.02/26/02), 812 So.2d 612; State v. Kahey, 436 So.2d 475 (La.1983); State v. Ellis, 28,282 (La.App. 2d Cir.06/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521.

State v. Mead, 36,131, pp. 1-2 (La.App. 2 Cir. 8/14/02), 823 So.2d 1045, 1046-47, writ denied, 02-2384 (La.3/14/03), 839 So.2d 34.

Clay testified that on or about June 26, 2010, she owned a 2004 Ford Focus. Clay stated that someone whom she did not know busted her car window. She further testified that she did not know Defendant and did not give him permission to break the window or enter the car.

Detective Andrew Vanhoossier (Detective Vanhoossier) testified that he was conducting a special operation on the date in question due to a rash of car burglaries in the area surrounding Jefferson Street. Detective Vanhoossier testified that at approximately 2:00 a.m. Officers Calvin Parker and Moniqua Porter observed a car ■with a shattered window. They observed suspects in the area, and when they drove up, the suspects ran. As the first suspect ran by, Detective Vanhoossier caught him. Police then began searching for the second suspect, a black male wearing a light blue shirt with braided hair. Ten to fifteen minutes later, Detective Vanhoossier saw a black male who was not wearing a shirt sitting on the curb of the Acadiana Outreach Center, a homeless shelter. Detective | fiVanhoossier approached the man and detained him. Next to the man was a light blue shirt and a bandanna which had a chain wrapped in it and which contained glass fragments. The man was brought back to the scene and was identified by the other suspect as the person he had previously been with. Detective Vanhoossier testified that the second man apprehended had braids in his hair.

Detective Vanhoossier and Officer Parker testified that neither saw Defendant enter the car. Further, they both testified that, to their knowledge, Defendant did not take anything from the car.

Officer Parker was also questioned regarding threats made by Defendant as follows:

BY MR. PRATHER:
Q: Also, during the apprehension and detention of Willis Mouton, this defendant, did he threaten to — did he make any threats to you?
BY OFFICER PARKER:
A: Yes, he kept saying we would be sorry for arresting him. He’s was going to sue us and he was going to get our jobs. So,—
BY MR. PRATHER:
Q: Do you think he was trying to influence your behavior at that time?
A: Yes.
BY MR. ALONZO:
Q: Just on that subject, while we are on that. He didn’t threaten you with any bodily injuries, correct?
BY OFFICER PARKER:
A: No, sir. He was handcuffed.
|7BY MR. ALONZO:
Q: He didn’t threaten to kill you or anything?
BY OFFICER PARKER:
A: No, sir.
BY MR. ALONZO:
Q: Just told you he was going to exercise his right to a civil law suit, right?
BY OFFICER PARKER:
A: No, he said he was going to take my job; he was going to get my job.
BY MR. ALONZO:
Q: He also told you that—
BY OFFICER PARKER:
A: He was going to sue me.

Simple Burglary

Defendant asserts the State failed to prove he shattered the window of the car belonging to Clay or that he entered the car with the specific intent to commit a felony or theft therein. Defendant points out that no one testified they saw him break the window. Additionally, nothing was removed from the car. Defendant asserts the only evidence of a possible crime was the glass fragments in the bandana found next to him and the fact that he fled from police. Defendant contends that this evidence was not sufficient to prove he had the specific intent to commit a felony or theft inside the car.

In support of his argument, Defendant cites State in Interest of S.P., 11-1598 (La.App. 4 Cir. 5/2/12), 90 So.3d 528. Therein, the juvenile was adjudicated delinquent for simple burglary of an automobile. He appealed, alleging the |sevidence was insufficient to support his adjudication. Evidence adduced at the adjudication hearing indicated the window of an automobile was broken.

The fourth circuit found:

Even viewed in the light most favorable to the prosecution, although the window was smashed there is no evidence of entry into the vehicle. Further, although smashing a window constitutes evidence of the intent to damage the vehicle ... it does not necessarily constitute evidence of an intent to enter the vehicle as, concomitantly, would be required to find him guilty of the lesser criminal offense of attempted simple burglary. See La.Code Crim. Proc. art. 814(A)(43); La.Rev.Stat. 14:62. Accordingly, the judgment of the juvenile court is reversed with respect to the adjudication for simple burglary.

Id. at 533.

In the present case, we affirm the trial court’s ruling with respect to simple burglary in light of the supreme court’s ruling in State v. Bryant, 12-233 (La.10/16/12), 101 So.3d 429. In Bryant, the defendant was convicted of simple burglary of an inhabited dwelling and aggravated burglary. Upon finding that the evidence was insufficient to establish that the defendant had entered the victim’s home, the second circuit set aside the conviction and sentence for aggravated burglary and remanded for entry of judgment of conviction on the charge of attempted aggravated burglary. Upon the State’s application for certiorari, the supreme court held the victim’s testimony that the defendant never entered his home did not preclude a finding of an entry based on the legal definition of entry in the context of an alleged burglary offense. The supreme court thereafter reversed the second circuit’s ruling and reinstated the trial court’s conviction for aggravated burglary.

Specifically, the supreme court held:

Based on the evidence presented at trial, the fact of entry was a reasonable inference when defendant kicked in the door of the house and fully extended his arm in shooting the gun from the step. Thus, we find the court of appeal erred when it held that the State was 19required to directly prove that defendant’s foot crossed the threshold of Mr. Goetz’s house. Viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient under Jackson for the trial judge to find an entry was made. Considering the reasons given by the trial judge, we cannot say his finding was erroneous. For the above reasons, we reverse the ruling of the court of appeal and reinstate defendant’s conviction for aggravated burglary as well as the second-felony habitual offender adjudication and sentence on that count.

Id. at 435.

In the present case, the following circumstantial evidence indicates Defendant broke the glass and had an intent to commit a felony or theft therein:

1. The owner of the car did not know Defendant or give him permission to break her car window. There was no reason to break the window shown by the evidence except that Defendant was attempting a simple burglary;
2. Testimony from Detective Vanhoos-sier that he was conducting a special operation on the date in question due to the rash of car burglaries surrounding Jefferson Street;
3. The incident occurred at approximately 2:00 a.m. in the very area where the car burglaries were occurring;
4. When Defendant and his accomplice saw the police arrive, they took off running. Detective Vanhoossier caught the first suspect, Defendant’s accomplice, as he ran by. Defendant was subsequently apprehended less than fifteen minutes later. Thus, Defendant was thwarted by the police and was actually running away from the police before he could accomplish his intended purpose of burglarizing the vehicle. “Flight indicates consciousness of guilt and is a circumstance from which a jury may infer guilt.” State v. Gatti, 39,833, p. 9 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, 85, writ denied, 05-2394 (La.4/17/06), 926 So.2d 511;
5. Defendant was the individual sitting on the curb and had on a light blue shirt and a bandana, which had a chain wrapped in it and contained glass fragments consistent with the broken car window. He also matched the description given of the fleeing suspect;
6. Defendant was brought back to the scene and was positively identified by the first suspect, the accomplice, as the person he, the accomplice, had previously been with at the scene; and
|107. Officer Parker testified that Defendant was one of the persons he saw running from the scene, but he did not see the actual breaking of the glass as the window was already shattered when Officer Parker came upon the vehicle.

Based on the foregoing evidence presented at trial, the fact of entry was a reasonable inference when Defendant broke the glass window. By breaking the glass window, some part of Defendant’s person would have extended inside of the car. Viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient under Jackson for the trial court to have found that an unauthorized entry of the victim’s vehicle was made for the purpose of committing a felony or theft. We cannot say its finding was erroneous. For the above reasons, we affirm Defendant’s conviction for simple burglary.

Public Intimidation

Defendant contends the evidence was insufficient to support his public intimidation conviction, as there was no evidence that he tried to influence the conduct of Officers Parker and Porter by the statements he made. Defendant asserts he was merely venting his anger, as he felt he was being harassed by police for no reason. He further asserts that he did not have the specific intent to attempt to influence the conduct of the officers in relation to their position, employment, or duty.

In Mead, 823 So.2d 1045, the defendant was arrested in his home after a domestic violence incident. While being transported to the police station, the defendant stated: “ ‘I should have shot you this time,’ and something to the effect of, ‘if you come back again you better bring your arsenal.’ Additionally, defendant said, ‘I’ll do everything I can to get your damn badge,’ and ‘in about two hours you make the trip back to my house.’ ” Id. at 1048. The officer testified that he thought the threats were made to influence his actions. The second circuit affirmed |nthe public intimidation conviction, stating that the defendant made the threats “before he actually arrived at the police station and was booked with the specific intent to influence” the officer’s conduct, “i.e., to persuade him not to complete the arrest or certainly not to respond to any other calls from defendant’s residence after defendant’s release on bond.” Id. at 1048.

In State v. Stamps, 06-971 (La.App. 5 Cir. 5/15/07), 960 So.2d 237, the defendant, Damond Stamps, was convicted of public intimidation. At trial, Deputy Douglas Graffeo testified that he responded to a domestic disturbance involving Stamps’ brother, and Stamps “kept interjecting himself into the investigation while [he] was attempting to interview [the victim].” Id. at 238. Officer Graffeo further testified:

[I] told Stamps to leave or he would be arrested for interfering with the investigation. As Stamps left, he put up his hand in a motion imitating a firearm and said, “[Y]ou screwing up, we gonna get you” and imitated a hammer falling.
Deputy Graffeo testified he then told Stamps he was under arrest and to go to the patrol car. He stated that Stamps responded, “[Y]ou don’t tell me what to do bitch, you don’t know who I am.” According to Deputy Graffeo, Stamps started to puff out his chest and held his arms out as if he was preparing to fight but became compliant after Deputy Graffeo pulled out his Taser. Deputy Graffeo testified Stamps yelled, “[Y]a’ll [sic] f* * *ing up, you don’t know who I am. My uncle’s a representative. Ya’ll [sic] fired. I’m going to have your jobs for this. Ya’ll [sic] fired.” Deputy Graf-feo testified he then placed Stamps in the rear of his patrol car and began to advise him of his rights but was interrupted with Stamps stating, “[Y]ou don’t tell me my rights. I know my rights. I’ve been arrested like a thousand times. I’m a bad mother f* * *er.” Thereafter, Stamps repeated his rights to Deputy Graffeo.
According to Deputy Graffeo, while Stamps was in the car and they began to drive away, Stamps then made several threats against Sergeant Ragas, indicating he had allowed Sergeant Ragas to live on three separate occasions previously and that would no longer be the case. Although Sergeant Ragas was by the car at this time, he did not know if Sergeant Ragas heard these threats against him because he was engaged in a discussion with someone on the scene.
112Peputy Graffeo testified that had he not drawn his Taser, he would have had to physically fight Stamps. He further stated that he felt Stamps would most likely file a complaint with internal affairs, that he believed Stamps could conceivably carry out his threat, and that he thought his job could be in danger. Deputy Graffeo testified he believed Stamps’ statements were made to influence him to “un-arrest” him or go with a lower charge. Deputy Graffeo believed Stamps meant he was going to have their jobs because they were arresting him. On cross-examination, Deputy Graffeo testified that Stamps did not specifically state that “I am going to have your job if you don’t release me from arrest,” although it was implied.
... Sergeant Ragas testified that, while he was trying to get Stamps to keep his hands on the patrol car and pat him down, Stamps made threats against the officers’ jobs because someone in his family was a representative. Sergeant Ragas had personal knowledge this might be true and was intimidated, believing he might be in internal affairs the next day. He believed that Stamps made these statements to get out of going to jail and that he was trying to influence them to release him or not arrest him. At one point, Sergeant Ragas testified that he believed that the threats toward him were made after the arrest but then stated that Stamps did intimidate him prior to the arrest until the time they “affected the arrest.”

Id. at 238-89.

In Stamps, the fifth circuit stated the following:

This Court has previously reviewed the cases cited above [State v. Love, 602 So.2d 1014 (La.App. 3 Cir.1992), and State v. Hall, 441 So.2d 429 (La.App. 2 Cir.1983) ] and found that the common thread running through them is the consideration of whether the threats are made in anger as revenge or retaliation, or whether they are made in an attempt to influence the conduct of the public officer in relation to his or her duties. Each case turns on the facts presented....
Although Stamps’ argument focuses on the timing of the threats as being made after he was arrested, the public intimidation statute does not have an arrest element, but more broadly includes “conduct in relation to his position, employment, or duty[.]” LSA-R.S. 14:122. In the present case, Deputy Graffeo testified that, when he asked Stamps to step away, Stamps imitated pointing a firearm, saying, “[Y]ou screwing up, we gonna get you,” prior to Stamps being taken into custody. Thus, at least some of the threats against the officers were made prior to Stamps being physically apprehended, being placed in the rear of the patrol car, and read his Miranda rights. Even if Stamps was arrested at the time the threats were made, he threatened the officers before he was transported and booked.
11sThe jury could have believed that the officers’ duties did not end with the arrest. Once in custody, a defendant must be transported and booked. Even thereafter, the officers’ duties could continue, requiring them to testify as a witness at Stamps’ trial. The content of Stamps’ threats reflect that he thought he had a political connection which could be used to benefit him in this situation by influencing the officers’ conduct. Even if Stamps made the threats to avoid arrest when he had actually already been arrested, the jury could have believed that Stamps felt he could still influence the officers’ conduct since, at the time, he had not yet been handcuffed, read his rights, put in the patrol car, or taken to the station and booked. Sergeant Ragas testified he believed Stamps was trying to influence their decision and to release him or not arrest him. Also, he testified Stamps intimidated him prior to the arrest until the time they “affected the arrest.” Deputy Graffeo testified he believed Stamps’ statements were made to influence him to “un-arrest” him or to go with a lower charge.
On the evidence presented, the jury could have found that the threats were made not in retaliation or revenge but, rather, were made to influence the officers’ conduct by means of a political connection. A rational trier of fact could have inferred the requisite specific intent to influence the officers’ conduct from Stamps’ threats.

Id. at 241-42 (footnotes omitted).

In the case before us, Officer Parker was asked if Defendant made any threats “during the apprehension and detention.” Officer Parker indicated the threats were made after Defendant had been arrested and handcuffed. He did not indicate if they were made in front of the homeless shelter, after Defendant was identified by the co-perpetrator, on the way to the police department, during booking, or at some other time. Officer Parker responded affirmatively when asked if he thought Defendant was trying to influence his behavior but was not asked what he thought Defendant was attempting to persuade him to do. Further, there was no testimony regarding Defendant’s demeanor when he made the remarks at issue.

In Stamps, 960 So.2d 237, the fifth circuit noted the public, intimidation statute did not have an arrest or temporal element. The fifth circuit stated that officers’ duties could continue from arrest through trial. In Mead, 823 So.2d 1045, |14the second circuit concluded that threats of physical violence and employment termination before arrival at the police station and booking were made with the specific intent not to complete the arrest, among other reasons, and the jury could have reasonably found the defendant guilty of public intimidation.

Although Defendant had been arrested when he made the comments at issue, Officer Parker testified that he felt Defendant was trying to influence his behavior. Accordingly, based on the evidence presented and the decisions in Stamps, 960 So.2d 237, and Mead, 823 So.2d 1045, the trial court could have inferred the requisite specific intent to influence the officers’ conduct from Defendant’s threats and could have found the threats made by Defendant were made not in retaliation or revenge but to influence the officers’ conduct. Accordingly, Defendant’s conviction for public intimidation is affirmed.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court erred in imposing an excessive sentence. We. do not agree.

This court discussed the standard of review applicable to claims of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether 11fithe trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58 [ (La.App.1998) ], stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Defendant also was convicted of public intimidation, which is punishable by a fine of not more than one thousand dollars or imprisonment, with or without hard labor, for not more than five years, or both. See La.R.S. 14:122. Defendant was sentenced to serve five years at hard labor to run concurrent with the simple burglary sentence. No fine was imposed.

Defense counsel failed to object to the sentence or file a motion to reconsider sentence. In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the sentencing hearing and did not timely file a motion to reconsider sentence. Thus, this court found his claim of excessiveness of sentence was barred. See also State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59.

However, this court has reviewed claims of excessiveness where no objection was made and no motion to reconsider sentence filed. See, e.g., State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La.1/7/11), 52 So.3d 885. Accordingly, we review Defendant’s claim as a bare claim of excessiveness.

11fiAt the sentencing hearing, defense counsel noted Defendant refused a plea agreement that would have gotten him out of jail. The State claimed Defendant had numerous arrests and prior convictions of unauthorized entry of an inhabited dwelling and simple battery. Defense counsel then asked for a presentence investigation report. The trial court denied that request then sentenced Defendant for the offense of simple burglary, stating: “Now, you had an opportunity to enter a better plea.” Afterwards, Defendant had an outburst. Defendant was then sentenced to five years imprisonment at hard labor on the public intimidation charge to run concurrent to his simple burglary sentence. He was also found in contempt of court and sentenced to six months imprisonment to run consecutive to his simple burglary sentence.

Defendant contends he received the maximum sentence, which he claims is excessive, as he is not the most egregious offender. Additionally, he claims that the trial court gave no consideration to La. Code Crim.P. art. 894.1. Finally, he asserts that it appears the trial court considered his failure to accept a plea bargain as an aggravating factor.

The State contends this court should conduct a bare bones review of Defendant’s sentence because he failed to file a motion to reconsider sentence. The State also admits the trial court failed to state the considerations it took into account at sentencing but argues Defendant “greatly benefitted from the sentence imposed as opposed to the sentencing exposure.”

In State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04), 888 So.2d 1123, the defendant was convicted of public intimidation for threatening to kill a police officer he sold drugs to and was sentenced to five years at hard labor without | ,7benefit of probation, parole, or suspension of sentence. This court affirmed the defendant’s sentence, stating the following:

In this case, the State agreed to dismiss two additional charges including attempted distribution of a Schedule II controlled dangerous substance, cocaine, and possession of marijuana. Possession of marijuana carried a penalty of up to six months in the parish jail. Attempted distribution of cocaine carried a penalty of up to fifteen years in prison. Therefore, Mr. Poirrier received the benefit of fifteen and one half years less sentencing exposure.
We find that the trial court sufficiently considered Mr. Poirrier’s personal and criminal history. The trial court adequately stated its reasons for sentencing him and, based upon the benefit he received by pleading guilty, we cannot say that the trial court abused its wide discretion in sentencing him.

Id. at 1127-28 (footnotes omitted).

In State v. Daniels, an unpublished opinion bearing docket number 08-1100, (La.App. 1 Cir. 10/31/08), 2008 WL 4764320, the defendant was convicted of public intimidation for threatening to kill two police officers and their families while he was being transported to jail. The defendant was sentenced to serve three years at hard labor on the public intimidation conviction. The first circuit affirmed the defendant’s sentences, noting the lower court had specifically pointed out that it had considered the defendant’s criminal record when imposing sentence.

Accordingly, we find that Defendant’s sentence is not excessive based on the State’s assertion that Defendant has two prior felony convictions and the jurisprudence cited above.

DECREE

Defendant’s conviction for simple burglary is affirmed. Defendant’s sentence for simple burglary is vacated, and the case is remanded for resentencing. At the resentencing, the trial court is ordered to specify whether the sentence is to |isbe served with or without hard labor. Additionally, the trial court is ordered to inform Defendant of the provisions of La. Code Crim.P. art. 930.8 at resentencing. Defendant’s conviction and sentence for public intimidation is affirmed.

AFFIRMED; SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.

      . Because we have vacated Defendant's simple burglary sentence and remanded for re-sentencing, we need not determine whether the sentence he received for his simple burglary conviction is excessive.

      . The defendant was also convicted of simple escape and was sentenced to two years at hard labor to run consecutive to his public intimidation sentence.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Clyde SNIDER, Jr. et ux. v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 12-1068.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2013.

      Broussard, Halcomb & Vizzier, Daniel E. Broussard, Jr., Alexandria, LA, for Plaintiffs/Appellants, Clyde Snider, Jr. Et Ux.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Benjamin J. Guilbeau, Jr., Lake Charles, LA, for Defendant/Ap-pellee, Louisiana Medical Mutual Insurance Comp., Et Al.
    Court composed of Judges SYLVIA R. COOKS, BILLY H. EZELL and JAMES DAVID PAINTER.
   COOKS, Judge.

| T FACTS AND PROCEDURAL HISTORY

Clyde Snider, Jr. (Snider) received medical treatment from Dr. Robin Yue (Dr. Yue) at Beauregard Memorial Hospital (Beauregard) in August 2007. Dr. Yue performed a pacemaker implant on Snider. Snider, only twenty-six years old, had a personal and family history of heart trouble, diabetes, and high blood pressure. Snider’s primary cardiologist was Dr. J. King White, M.D. (Dr. White) at Christus St. Patrick Hospital (St. Patrick) in Lake Charles, Louisiana. Snider went to the Emergency Room at Beauregard on August 28, 2007, because he was experiencing chest pain and had a very low pulse rate. According to Snider, and his wife Lisa Snider, (Lisa) (now Lisa Clark) he asked to be transferred to St. Patrick to be attended by his cardiologist, Dr. White, but was told he was in too serious a condition to be sent anywhere. Snider testified if he would have been told of an alternative to an immediate implant at Beauregard which would have allowed him to get the advice of his regular cardiologist, Dr. White, he would have refused the implant. Dr. Yue testified that he did not recall Snider asking to be transferred. Dr. Yue believed Snider required immediate attention and scheduled him for a heart cathari-zation. He performed the heart cath and allegedly informed Snider and his wife that Snider needed a pacemaker implanted because of his heart history, family heart history, and low pulse rate at the time. Snider and his wife testified that Dr. Yue informed them he thought it was necessary to immediately implant a temporary pacemaker because of Snider’s serious condition in order to make him stable enough to be transported to St. Patrick’s.

Just before the procedure, Snider signed a partially blank consent form purporting to signify his consent to the procedure. The record contains the consent form, still displaying several blank lines and containing a typed-in line and a 12handwritten note. The implant procedure took about twenty minutes with a small incision made in Snider’s chest leaving a permanent scar. Snider suffered pain in his left arm and did not have normal use of that arm for several weeks.

Upon arriving home from Beauregard, Snider was injured when his two-year-old daughter jumped into his arms upon seeing him return home from the hospital before she could be warned to be careful. Snider returned to Beauregard and was eventually treated for an infection at the site of the pacemaker implant. Snider then went to be examined by his cardiologist, Dr. White, and in due course the pacemaker was removed. Dr. White opined that the implantation of the pacemaker was unnecessary and unwarranted given Snider’s condition when he went to Beauregard.

The three-member Medical Review Panel found Dr. Yue violated the standard of care in performing the implant on Snider under the non-emergent circumstances. Dr. White and one panel member testified likewise at trial, and it was stipulated that the two additional Medical Review Panel members would have testified the same. Dr. Yue and his medical expert witness testified that Dr. Yue’s implantation of the pacemaker was one possible appropriate choice and thus did not constitute medical malpractice. They agreed that another option would have been to temporarily take Snider off of a particular heart medication he was taking, and wait to see if that helped Snider return to a more acceptable heart rate.

Trial was had before a jury of twelve who ruled 10-2 in favor of Dr. Yue, finding he did not violate the standard of care and that his actions in performing the pacemaker implant was not medical malpractice.

The trial court denied Snider’s motion for judgment notwithstanding the verdict. Snider appeals the jury’s verdict and the denial of his motion for judgment notwithstanding the verdict.

ILLEGAL ANALYSIS

This is not a case of a doctor bungling a procedure, nor is it a case of a doctor performing a completely unnecessary procedure. It is also of no moment whether Dr. Yue stood to better his financial debt to Beauregard by performing this surgery rather than sending Snider to his cardiologist in Lake Charles as Snider maintains he requested. (Dr. Yue testified he was paid a large financial incentive to come to work at Beauregard and was obligated to repay a portion of his salary if he did not generate a specified minimum amount of fees within a specified time.) This case is purely and simply a case of whether Snider gave an informed consent for the procedure performed on him.

The law regarding informed consent in medical malpractice claims is well-settled in Louisiana. It is both statutory and jurisprudential. Tipton v. Campbell, 08-139, 08-140 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, writ denied, 08-2564 (La.1/9/09), 998 So.2d 720. In Maybrier v. Louisiana Medical Mutual Insurance Company, 08-1508, p. 8, (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1121, writ denied 09-1558 (La.10/9/09), 18 So.3d 1287 (emphasis added), we explained the doctrine of informed consent:

The informed consent doctrine is based on the principle that every adult of sound mind has the right to determine what will be done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved, the prospects of success, the risks of failing to undergo the treatment or procedure, and the risks of any alternative methods of treatment. Hondroulis, 553 So.2d 398.

Additionally, in Maybrier, 12 So.3d at 1122, we further noted “the Louisiana Supreme Court established the rule that a physician may not act beyond his patient’s authorization, except when a situation seriously threatens the health or life of the patient.” The informed consent doctrine is embodied in Louisiana law in |4La.R.S. 40:1299.4o (emphasis added), which provides in pertinent part:

A.(l) Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1299.40.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, or death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
(B) Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such consent.
E(2)(a) In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
E(2)(b) Consent to medical treatment may be evidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the secretary pursuant to the provisions of the Subsection as another method by which to evidence a patient’s consent to medical treatment.

La. R.S. 40:1299.40.

| sUnder the Louisiana informed consent law, La.R.S. 40:1299.40, a physician is required to provide his patient with sufficient information to allow the patient to make an.informed and intelligent decision on whether to submit to the proposed course of treatment. This information should include, if possible, “the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment.” Hondroulis v. Schuhmacher, 553 So.2d 398, 410 (La.1988) (on rehearing).

Suarez v. Mando, 10-853, p. 8 (La.App. 5 Cir. 3/29/10), 62 So.3d 131, 135, writ denied, 11-855 (La.6/17/11), 63 So.3d 1036 (emphasis added).

The record contains a copy of the written consent form signed by Snider regarding permission to perform the implantation of a permanent pacemaker. The introductory paragraph of the form states (emphasis original):

TO THE PATIENT: You have been told that you should consider medical treatmenVsurgery. Louisiana law requires us to tell you (1) the nature of your condition, (2) the general nature of the medical treatment/surgery, (3) the risks of the proposed treatment/surgery, as defined by the Louisiana Medical Disclosure Panel or as determined by your doctor, (4) reasonable therapeutic alternatives and material risks associated with such alternatives, and (5) risks of treatment.... Please read the form carefully. Ask about anything you do not understand, and we will be pleased to explain.

The consent form is signed by Snider and a witness and indicates it was signed on “8/28/07” at “1640.” Paragraph two of the form describes the procedure as “PLACEMENT OF PERMANENT PACEMAKER AND LEADS. WITH OR W/O IV SEDATION.” Paragraph 2(b) states the purpose as “IMPLANTING A SMALL DEVICE IN THE CHEST WALL TO REGULATE YOUR HEART RATE AND RHYTHM. X-RAY EQUIPMENT WILL BE USED TO VSUALIZE THE PLACEMENT OF THE PACEMAKER ELECTRODES. IV CONSCIOUS SEDATION WILL BE USED IF NECESSARY.” However, the remainder of the consent form is blank. This is in accord with Snider’s testimony that the form was ^presented to him with the blanks not filled in. In pertinent part the consent form appeared as follows (emphasis in original):

3. Patient Condition:
Patient’s diagnosis, description of the nature of the condition or ailment for which the medical treatment, surgical procedure or other therapy described in item number 2 is indicated and recommended:
5. Reasonable therapeutic alternatives and risks associated therewith, risks of no treatment.
SYMPTOMS FROM THE ABNORMAL HEART RATE WILL CONTINUE.

Paragraph four of the form covers “Material Risks of treatment procedure” and reads as follows:

(a) All medical or surgical treatment involves risks. Listed below are those risks associated with this procedure that we believe a reasonable person in your (the patient’s) position would likely consider significant when deciding whether to have or forego the proposed therapy. Please ask your physician if you would like additional information regarding the nature or consequences of these risks, their likelihood of occurrence, or other associated risks that you might consider significant but may not be listed below. -See attachment for risks identified by the Louisiana Medical Disclosure Panel
-See attachment for risks determined by your doctor.
Additional risks (if any) particular to the patient because of complicating medical condition are:
(b) Risks generally associated with any surgical treatment/procedure, including anesthesia are: death, brain damage, disfiguring scars, quadriplegia (parapysis from neck down), paraplegia (paralysis from waist down), the loss of function of any organ or limb, infection, bleeding, and pain.

Attached to the form are two pages, one entitled “Conscious Sedation Consent” and the other entitled “Material Risks Identified By The Louisiana Medical Disclosure Panel.” The first page is not signed by Snider nor any witness. |7The Second page is signed by Snider and a witness and is dated “8/28/07” at “1640”, and includes a list of “Material Risks Identified By Physician.” This list, bearing “x” marks indicating these risks are “very uncommon” includes the following: “Longer Hospital Stay; Repeated Surgery, Infection, Lead Dislodgment, Bleeding, Infection, Lead Problems, Pacemaker Problems, Death.”

Snider also signed a Consent Form dated “8-29-07” at 0600 which listed as the “Treatment/Procedure” to which he was consenting “Coronary/Renal/Carotid/Peripheral Angiogram. With or W/O Sedation” and listed the “purpose” as “Visualization or arteries looking for blockages or anomalies, by Injection Contrast and Using X-Ray Equipment. IV Conscious Sedation Will Be Used If Necessary.” This form also left Paragraph 3 “Patient Condition” blank, and explained the material risks of this procedure under paragraph four by reference to two pages attached, both signed by Snider. Paragraph five of this form entitled “Reasonable therapeutic alternatives and risks associated therewith, risks of no treatment” simply stated “potential for worsening of vascular disease and possible ischemic events.” (emphasis added)

Subsection E of La.R.S. 40:1299.40 at Paragraph (7)(a) (emphasis added) provides:

In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the negligent failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider:
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection and the failure to disclose based on inclusion of any medical care or surgical procedure of the secretary’s list for which disclosure is not required shall be admissible in evidence and shall create a rebut-table presumption that the requirements of Paragraphs (5) and (6) of this Subsection have been complied .with, and this presumption shall be included in the charge to the jury; |Rand
(ii) The failure to disclose the risks and hazards involved in any medical care or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this Subsection, shall be admissible in evidence and shall create a rebuttable presumption of a negligent failure to conform to the duty of disclosure set forth in Paragraph (5) and (6) of this Subsection, and this presumption shall be included in the charge to the jury; but failure to disclose may be found not to be negligent, if there was an emergency as defined in R.S. 40:2118.6(0 or, if for some other reason, it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.
(c) In order to be covered by the provisions of this Subsection, the physician or other health care provider who will actually perform the contemplated medical or surgical procedure shall:
(i) Disclose the risks and hazards in the form and to the degree required by the secretary;
(ii) Disclose additional risks, if any, particular to a patient because of a complicating medical condition, either told to the physician or other health care provider by the patient or his representative in a medical history of the patient or reasonably discoverable by such physician or other health care provider;
(in) Disclose reasonable therapeutic alternatives and risks associated with such alternatives;
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the lists formulated by the secretary; and
(v) Provide an opportunity to ask questions about the contemplated medical or surgical procedure, risks, or alternatives and acknowledge in writing that he answered such questions, to the patient or other person authorized to give consent to medical treatment, receipt of which shall be acknowledged in writing.

The consent form signed by Snider does not comport with the statutory requirements set forth above. The statute clearly requires a health care provider [ 9such as Dr. Yue to disclose “in the form” not only the risks of the procedure, as was disclosed here, but also the additional risks posed by Snider’s medical condition which included the effects of the medication he was taking. More importantly, Dr. Yue was also required to explain on the form, perhaps using the blanks provided and labeled for such information, the reasonable therapeutic alternatives and the risks associated with those alternatives. Nowhere are these set forth on the form. Additionally, this form failed to set forth any information regarding Snider’s immediate condition which allegedly necessitated the proposed procedure. Such information was critical to Snider’s decision-making process. Likewise, the form contains no information suggesting that Snider’s immediate condition was so critical that he virtually had no choice but to consent to the pacemaker implant.

Snider and his wife testified that they understood that he was not stable enough to be transported to Lake Charles to be attended by his regular cardiologist, which they maintain was his desired course of treatment. The medical evidence, expert testimony, and even Dr. Yue’s own testimony, demonstrate that Snider’s condition in fact was not critical or emergent. The Medical Review Panel unanimously found “Dr. Yue rushed the decision for implantation of a permanent pacemaker in this patient. He should have stopped the beta-blocker and the rivaroxabhan for 24-48 hours, and monitored the patient for possible improvement or deterioration in heart rate, before making the decision about a permanent pacemaker.” (emphasis added). This is the very reason the statute requires the form contain an explanation of the patient’s present condition. It is only by understanding the nature of his condition at the time of the proposed procedure, and whether it is emergent or not, that a patient can make a knowing, voluntary, and reasoned consent to a proposed immediate medical procedure. Without such lioinformation put on the form we are left to rely on the doctor’s word after-the-fact as to what the patient was told when he was being asked to consent to or to decline the proposed treatment or procedures.

Likewise, it was also extremely important in this decision-making process for Snider to know if there were any reasonable therapeutic alternatives and what risks were posed by these alternatives, as well as what risks he was exposed to if he refused to have this procedure performed immediately. The medical evidence here, including Dr. Yue’s testimony, the defense’s medical expert, and Snider’s medical experts shows that there were indeed reasonable therapeutic alternatives which did not expose Snider to serious risks, and that his condition at the time was not so emergent that refusing this procedure at that time posed a serious threat to his life. As Dr. Yue testified, Snider’s condition at the time he recommended the pacemaker implant was not life-threatening. The medical experts in the case agreed with that assessment. In short, there were reasonable alternatives but Snider was not allowed to make the decision based on all the facts. As the Medical Review Panel acknowledged, Dr. Yue made the decision for Snider and inappropriately rushed to that decision. A careful review of Dr. Yue’s testimony makes this quite clear. He and his expert witness explained there were in fact reasonable alternatives to immediately implanting a pacemaker but they argue that Dr. Yue’s decision to perform the procedure was also a reasonable choice. The problem with this argument is that it was not Dr. Yue’s choice to make, it was Snider’s choice, and he was supposed to have been given all of the information he needed to make his choice about his care and treatment. The statutory requirements regarding the written consent form exist so that when the matter is called into question in the future, as it is here, there is a clear written record of what the patient was or was not told enabling a fact finder to determine whether the |npatient did in fact give informed consent as defined in the statute. In this case, the empty blanks on the form speak loudly. Snider has demonstrated that although he signed a consent form he did not give informed consent for this procedure. According to the written form, Snider was bereft of the information he needed to make an informed decision. His testimony and his wife’s testimony are in accord. Further, according to the testimony at trial, the choice to implant a pacemaker in Snider to remedy his condition at that moment was made by Dr. Yue, not his patient.

In accordance with the holdings in Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447 and Jackson v. State, 05-2021 (La.9/29/06), 938 So.2d 688, we find Snider has met his burden to prove that his consent would have been reasonably withheld if he had been adequately informed of the non-emergent nature of his condition and of the low-risk alternative of doing nothing. The consent form itself, through its insufficiencies, bears witness that Dr. Yue breached his duty to adequately inform Snider of the nature of his immediate condition and to adequately inform him of reasonable alternatives including the choice of no treatment. Snider has shown that Dr. Yue’s breach of his duty was the cause-in-fact of Snider’s damages. “[T]he defendant’s proper performance of his or her duty would have prevented the damages.” Lugenbuhl, 701 So.2d at 454. Second, we find Snider has also shown that “a reasonable patient in the plaintiffs position would not have consented to the treatment or procedure” had the material information been disclosed Id. (citing LaCaze v. Collier, 434 So.2d 1039 (La.1983); Hondroulis, 553 So.2d at 398; and Canterbury v. Spence, 464 F.2d 772.)

We therefore reverse the judgment of the trial court and render judgment in favor of Plaintiffs. Although the record contains some stipulations as to medical 11?.costs and references to the costs of the litigation, the trial judge elected to bifurcate the evidence concerning damages pending the jury’s decision in the matter. The jury’s decision finding no liability aborted further proceedings in the matter. We therefore remand the matter to allow the parties an opportunity to complete the record regarding damages due Plaintiffs.

DECREE

Judgment is rendered in favor of Plaintiffs. All costs of this appeal are assessed against Defendants/Appellants. The case is remanded to the district court for a determination of the amount of damages to be awarded to Plaintiffs.

REVERSED. JUDGMENT RENDERED AS TO LIABILITY. REMANDED FOR DETERMINATION OF DAMAGES.

      . Repealed by Acts 2012, No. 759, § 3 effective June 12, 2012 and is now contained in La.R.S. 40:1299.39.5.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Dewayne Lakeith JOSEPH.
    No. 12-466.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Dewayne Lakeith Joseph.
    J. Phil Haney, District Attorney, Sixteenth Judicial District, Angela B. Odinet, Assistant District Attorney, St. Martin-ville, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLYH. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this criminal case, Defendant, Dewayne Lakeith Joseph, appeals his first degree murder conviction, alleging insufficiency of the evidence. For the following reasons, we affirm Defendant’s conviction in all respects.

FACTS

Defendant and the victim, Delores Roberson Joseph, were married but living separate and apart. In the course of exchanging a series of text messages, on February 26, 2009, they agreed to meet at Defendant’s place of employment in Ste-phensville in lower St. Martin Parish.

When they met, Defendant was able to coax Mrs. Joseph into the shop where he worked, and they engaged in sexual intercourse. Subsequent thereto, Mrs. Joseph became aware that Defendant’s former girlfriend had recently texted him, and she became upset. They got into an argument, the situation escalated, and violence ensued. Defendant knocked Mrs. Joseph out, then duct-taped and chained her to a dolly. After having secured her, he then dumped her into a nearby canal, and she drowned.

ERRORS PATENT

In accordance with La.Code CrimJP. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant argues the evidence adduced at trial was insufficient to sustain his first degree murder conviction.

LAW AND DISCUSSION

The analysis for an insufficiency of the evidence claim is set forth as follows:

IgWhen the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

First degree murder is defined by La. R.S. 14:30. The State charged Defendant pursuant to the following provision:

A. First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... second degree kidnapping[.]

On appeal, Defendant concedes that he murdered his wife, but he argues that he thought she was dead before he threw her in the water; thus, he contends that the State failed to prove “first degree murder as there would be no kidnapping.” Defendant further contends that since he believed the victim was already dead, that would negate any specific intent to kill or inflict great bodily harm. The flaw in Defendant’s argument is that it assumes the truth of Defendant’s self-serving testimony at trial. However, a Jackson analysis requires that this court, the reviewing court, view the evidence in the light most favorable to the prosecution, as stated in Kennerson.

The question of whether Defendant knew Mrs. Joseph was still alive before he dumped her in the water was the key issue. According to Defendant’s 1 ¡¡testimony at trial, he claimed that he thought she was already dead before he put her in the canal; however, the jury made an assessment of weight and credibility that was unfavorable to Defendant. Therefore, according to Jackson, we are not allowed to second guess the credibility determination of the trier of fact.

At trial, the State argued that Defendant knew the victim was still alive when he threw her in the water because he duct-taped her mouth, bound her hands behind her, and bound her feet. Further, during Defendant’s video-recorded statement to police, Detective Karen Mouton asked him whether he knew the victim was still alive when he threw her in. He nodded affirmatively. Our review of the DVD of his statement does reveal a slight affirmative nod. Also, Detective Mouton and Detective James Thibodeaux testified that they took Defendant to the canal, and he indicated to them that the victim was alive when he dumped her in the water. Additionally, Dr. Joel Carney, a forensic pathologist, testified that the victim died from drowning and that he detected no trauma which would have caused her death.

Defendant noted at trial another part of his statement in which he told the detective that the victim “was dead, knocked out. She was like [sic].” And, on the DVD, Defendant makes a gesture with these sentences that appears to demonstrate bodily stiffness. His trial counsel seized on the first sentence as evidence that Defendant thought the victim was dead before he dumped her in the water. However, the jury viewed the DVD and evidently did not believe Defendant’s version of what took place.

Defendant also argues that even if he did have specific intent to commit the offense, it was mitigated by “heat of blood” such that the conviction should be reduced to manslaughter. However, the record indicates that he drowned his wife after having time to duct-tape and chain her to a dolly, load her in a vehicle, select [4a dump site (the first one being too shallow), and then put her in a canal. Our review of the record clearly indicates that the murder was committed in cold blood, however “heated” the initial altercation may have been, and not in the heat of the moment or in the heat of passion.

DISPOSITION

For the reasons set forth above, it is clear that the jury’s determination regarding specific intent was rational and that there was sufficient evidence to support its verdict of guilty of first degree murder. Therefore, pursuant to Kennerson and Jackson, Defendant’s conviction is affirmed.

AFFIRMED.


text:
    Mary Frances HOWARD v. MAMOU HEALTH RESOURCES d/b/a Savoy Medical Center, et al.
    No. 12-820.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      J. Peyton Parker, Jr., Baton Rouge, LA, for Plaintiff/Appellant, Mary Francis Howard.
    Nadia de la Houssaye, Jones Walker, Lafayette, LA, for Defendant/Appellee, The Louisiana Patient’s Compensation Fund.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL and J. DAVID PAINTER, Judges.
   COOKS, Judge.

12Plaintiff appeals the trial court’s grant of Defendant’s exceptions of prescription and no cause of action, dismissing Plaintiffs claims with prejudice. Finding no error in the trial court judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 22, 2010, Plaintiff, Mary Frances Howard, filed a petition for damages in district court against Mamou Health Resources, Inc. d/b/a Savoy Medical Center. In the petition it was alleged that on August 26, 2010, “an employee of the defendant’s facility attacked petitioner, Mary Frances Howard, and beat her either with her fist or an unknown instrument on her face, head, and entire body causing severe injuries ...” There was no mention in the petition of any medical malpractice claim.

The petition was amended on November 8, 2010, to add MH3F Healthcare management, LLC, d/b/a Savoy Care Center; Columbia Casualty Company; and Christine Freeman (the employee who allegedly attacked Plaintiff) as named defendants. There was again no mention in the amended petition of any medical malpractice claim.

On September 8, 2011, Plaintiff settled her claims with the above-named Defendants. On October 81, 2011, Plaintiff filed a Petition for Approval of Settlement of Medical Malpractice with the district court, along with a proposed Order, which the district court granted on November 4, 2011. The Louisiana Patient’s Compensation Fund (PCF) maintained it was not aware of the filing because the petition was not served on the PCF until November 7, 2011, which was after the district court’s grant of the Order.

On January 28, 2012, Plaintiff filed a Supplemental Petition, naming the PCF as a defendant. In response, on March 2, 2012, the PCF filed an Exception of Prescription and No Cause of Action. The PCF contended Plaintiffs claim under |sthe Medical Malpractice Act (MMA) prescribed because Plaintiff did not file a claim with the PCF within one year from the date of the alleged malpractice as required by La.R.S. 40:1299.47. The PCF also maintained Plaintiff failed to serve it with a copy of the Petition of Approval of Settlement ten days prior to its filing as is mandated by La.R.S. 40:1299.44(0.

After a hearing, the trial court granted the PCF’s exceptions finding (1) Plaintiffs claim for medical malpractice pursuant to the MMA prescribed because of her failure to file a claim with the Division of Administration/PCF within one year from the date of the alleged malpractice; and (2) Plaintiff has no cause of action against the PCF because Plaintiff failed to serve the PCF with the Petition for Approval of Settlement prior to the execution of the judgment of dismissal. Therefore, Plaintiff claims against the PCF were dismissed with prejudice.

Plaintiff appealed, asserting the trial court erred in granting both the exception of prescription and the exception of no cause of action.

ANALYSIS

I. Exception of Prescription.

In her first assignment of error, Plaintiff argues the trial court erred in granting the PCF’s peremptory exception of prescription. For the following reasons, we affirm the granting of the exception.

In granting the PCF’s exception of prescription, the trial court found the Louisiana Supreme Court case of LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, controlling. The issue before the court in LeBreton was whether or not filing a suit in the district court suspends the requirement that a malpractice claim must be filed with the Division of Administration within one year. The supreme court held the filing of suit against a qualified health care provider in the district court neither suspends nor interrupts the one-year prescriptive period for filing medical malpractice claims. Accordingly, the PCF argues a claim is ^prescribed under the MMA if a plaintiff fails to first submit her claim to the Division of Administration even if suit was timely filed in district court.

Louisiana Revised Statutes 40:1299.47(B)(l)(a)(i) provides “[n]o action against a health care provider ... may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.” As the court noted in LeBreton:

If a medical review panel is timely con-fected, La.R.S. 40:1299.47(A)(2)(a) complements La.R.S. 40:1299.47(B)(l)(a)(i) by specially providing that “[t]he filing of the request for a review of a claim shall suspend the time within which suit must be instituted, ... until ninety days following notification ... to the claimant or his attorney of the issuance of the opinion by the medical review panel ...”

Id. at 1230 (emphasis added)

In the present case, the record establishes no claim nor request for a medical review panel was ever filed with the Division of Administration as required by the MMA. Plaintiff failed to take the necessary steps required to suspend the running of prescription on any potential claim. As stated in LeBreton, filing a request for review of any malpractice claim with any other entity other than the Division of Administration does not suspend or interrupt the running of prescription. Plaintiff’s filing of her lawsuit in the district court did not alter the prescriptive period on any potential medical malpractice claim.

Plaintiff argues the present case is different than LeBreton and its progeny because it did not initially involve a claim for medical malpractice and that “Plaintiff agreed to convert her damages to a medical malpractice claim by way of arbitration reserving her rights against the [PCF].” However, as the PCF notes, there is no mechanism within the MMA that allows a plaintiff to convert her damages to a medical malpractice claim by way of arbitration. Under La.R.S. 40:1299.47(B)(l)(a)(i), the only mechanism within the MMA for a plaintiff to pursue a medical malpractice claim against a qualified health care provider and to preserve those rights against the PCF is with the timely filing of a claim with the Division of Administration. Plaintiff failed to do this. Therefore, the trial court did not err in granting the PCF’s exception of prescription.

II. Exception of No Cause of Action.

In her second assignment of error, Plaintiff contends the trial court erred in granting the PCF’s exception of no cause of action because of Plaintiff’s alleged failure to comply with the applicable statutory requirements. Louisiana Revised Statutes 40:1299.44(0 provides if the insurer of a health care provider has agreed to settle its liability and the claimant is seeking excess damages from the PCF, the procedure set forth “must be followed”:

(1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the patient’s compensation fund.
(2) A copy of the petition shall be served on the board, the health care provider and his insurer, at least ten days before filing and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.

In Horil v. Scheinhorn, 95-967 (La.11/27/95), 663 So.2d 697, the Louisiana Supreme Court discussed the consequences of a claimant’s failure to follow the mandatory procedure set forth in La.R.S. 40:1299.44(C). In Horil, the court stated failure to strictly comply with the provision requiring service of a copy of the petition seeking approval of the settlement “at least ten days before filing” warranted dismissal of the claim for excess damages against the PCF. Id. at 700. Specifically, the Horil court found the plaintiff had failed to state a cause of action as a consequence of his failure to comply with the statutory procedure.

Un the present case, Plaintiff filed a Petition for Approval of Settlement of Medical Malpractice (which La.R.S. 40:1299.44(0(1) requires) with the district court on October 31, 2011. However, Plaintiff did not serve the PCF with a copy of that petition “at least ten days before filing,” as mandated by La.R.S. 40:1299.44(0(2). When the district court granted the petition and signed the accompanying order on November 4, 2011, the PCF still had not been served. It was not until November 7, 2011, that the PCF was served by Plaintiff. This is in direct violation of the requirements imposed by La. R.S. 40:1299.44(0.

A study of the jurisprudence interpreting La.R.S. 40:1299.44(0 clearly establishes a medical malpractice claimant seeking recovery from the PCF is unquestionably subject to the notice requirements set forth in La.R.S. 40:1299.44(0 if he or she has settled with a covered health care provider for $100,000 prior to trial. Horil, 663 So.2d 697; Castille v. Our Lady of Lourdes Regional Medical Center, 96-1476 (La.App. 3 Cir. 4/2/97), 692 So.2d 1303; Williams v. O’Neill, 99-2575 (La.App. 4 Cir. 3/13/02), 813 So.2d 548, writ denied, 02-1029 (La.5/24/02), 816 So.2d 859. Finding Plaintiff failed to provide notice as required, the trial court correctly granted the PCF’s exception of no cause of action.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant, Mary Frances Howard.

AFFIRMED.

      . Although our affirmance of the trial court's ruling that Plaintiff's malpractice claim prescribed necessarily renders moot this assignment of error, we elect to discuss the issue raised only because the trial court proceeded to rule on it and we wish to explain why Plaintiff is unable to breathe life into a "dead” claim by relying on a second faulty interpretation of the Medical Malpractice Act and its mandatory requirements.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Brian SEGURA.
    No. 12-899.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      J. Phillip Haney, District Attorney, Sixteenth JDC, Angela B. Odinet, Assistant District Attorney, New Iberia, LA, for State-Appellee, State of Louisiana.
    Edward John Marquet, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Brian Segura.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| .FACTS

On July 9, 2011, the defendant, Brian Segura, was housed in the Iberia Parish Jail. He was in the E-Pod, cell number thirteen, with two other inmates, Victor Goodman and Jeremy Richard. On that morning, when the jailer, Deputy John Harrington entered the cell to complete a morning head count, the three men captured him, handcuffed him, bound his feet, and threatened him with homemade knives. They took his wallet and keys. They then attempted to negotiate for their transfer out of the Iberia Parish Jail. They asked to speak with a person from the FBI. They asked for a two-way radio, a cell phone, cigarettes, and a lighter, and threatened to harm Deputy Harrington if their demands were not met.

The defendant was charged with aggravated kidnapping, a violation of La.R.S. 14:44, and armed robbery, a violation of La.R.S. 14:64. A jury trial commenced on January 17, 2012, and on January 19, 2012, the jury returned a verdict of guilty as charged on both counts. The defendant was sentenced on March 28, 2012, to life imprisonment on the conviction for aggravated kidnapping and fifty years at hard labor on the conviction for armed robbery. The sentences were ordered to be served concurrently with each other and consecutively with any other sentence the defendant was serving. The defendant did not file a motion to reconsider the sentence.

The defendant has perfected a timely appeal, alleging that there was insufficient evidence to sustain the verdict of aggravated kidnapping.

ASSIGNMENT OF ERROR

The State failed to prove beyond reasonable doubt essential elements of the crime of aggravating kidnapping. Specifically there was inadequate proof that the victim was carried from one place to another |2and that the defendant had intent to force some other person to give up anything of apparent or prospective value in order to secure release of the victim.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

DISCUSSION

The defendant argues in brief that the state failed to prove two of the necessary-elements of aggravated kidnapping, relocation and extortion. He argues that Deputy Harrington was captured inside the cell, and he stayed there until he was recused by SWAT. Furthermore, he argues that the items requested, the cigarettes and lighter and the two-way radio, were not items of value but items of convenience to be used during and for the purpose of the negotiation.

Louisiana Revised Statutes 14:44, in pertinent part, provides:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(8) The imprisoning or forcible secreting of any person.

(Emphasis added.)

In State v. Garcia, 44,562, pp. 7-8 (La.App. 2 Cir. 10/28/09), 26 So.3d 159, 165, writ denied, 09-2583 (La.2/11/11), 56 So.3d 992, the second circuit discussed various factors which constitute aggravated kidnapping, as follows:

| oThe Louisiana Supreme Court has held that the crucial question in determining whether an aggravated kidnapping has occurred is not whether the defendant intended to release the victim at either the outset of the crime or indeed at any point during the crime, but “whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.” State v. Arnold, 548 So.2d 920, 924 (La.1989). Further, proof of intent to extort can be shown by “analyzing whether a reasonable person in the victim’s position would believe that she would not be safely released unless she complied with the kidnapper’s demands.” Id.; State v. Hill, 40,023 (La.App.2d Cir.09/21/05), 911 So.2d 379, 382, writ denied, 06-1476 (La.03/09/07), 949 So.2d 434.

In the current case, at trial, the following evidence was adduced. Deputy Harrington of the Iberia Parish Sheriffs Office was working in the Iberia Parish Jail as an “internal.” On the morning in question, he was taking a head count of the prisoners in E-Pod. As he was checking cell number thirteen, he was grabbed around the neck by one of the inmates, Victor Goodman, and pulled into the cell. He was handcuffed with his own handcuffs, and his feet were tied with a shredded sheet. He stated that the three men, including the defendant, were armed with “shanks,” which are homemade knives. He was told that if he did not cooperate, he would be killed. He stated that the three men were “angry and upset, mad, because everybody else was getting shipped and they was not getting ship [sic].” Deputy Harrington testified that they said they did this because they wanted to be shipped. They also took his wallet and keys. He stated that they then demanded cigarettes, cell phones, and two-way radios and said if their demands were not met, they would kill him. He further stated that while he was captive in the cell with the three men, they wiped sweat from his face, gave him water, and tried to make him more comfortable when he complained about his back hurting.

Jeremy Kelly, a lieutenant with the Iberia Parish Sheriffs Office, testified that he was summoned to the jail to negotiate with the prisoners. He explained that |4it was difficult to communicate with the prisoners because they were using the intercom system which did not work well. He said the prisoners had complaints about the jail and wanted to be transferred. He stated that they did threaten Deputy Harrington’s life if their demands were not met. Initially, the prisoners asked for cigarettes and two-way radios. They also demanded the presence of the FBI.

The testimony of Sergeant Ashley Irby and Detective Adrienne Wells, both with the Iberia Parish Sheriffs Office, essentially reiterated the above testimony. They also spoke with the defendant after the three prisoners were extracted from the jail cell. They stated that the defendant had said their intent was to point out the conditions of the jail.

The defendant’s cell mates, Victor Goodman and Jeremy Richard, testified. Goodman pled guilty to second degree kidnapping and received thirty-five years at hard labor. Richard also pled guilty to second degree kidnapping and received thirty years at hard labor. Both prisoners testified that the three of them had concocted the scheme to capture Deputy Harrington the night before. They both acknowledged that they made verbal threats on the deputy’s life. They testified that they wanted to put someone in their “position” in the jail cell. They also stated their request for cigarettes and a lighter was not one of the demands.

Finally, the defendant agreed with the testimony of Goodman and Richard. He testified that the intent to capture the deputy was to “ferret out the conditions at the jail.” He further testified that cigarettes and a lighter were requested to calm them and were not one of the demands.

The defendant argues in brief that “an essential element of kidnapping— Carrying of person from one place to another” was missing in this case. He points out that the deputy was not moved anywhere after he was bound. However, the | srelocation element set forth in 14:44(1) was not an essential element in this case. Capturing the deputy as he entered the cell was sufficient to establish the element of “imprisoning or forcibly secreting of any person.” La.R.S. 14:44(3). It was not necessary, in prosecuting the defendant under 14:44, to prove the victim was moved from one place to another because that is not an element of the offense under 14:44(3) under the plain language of the statute.

The defendant further argues that the cigarettes and lighter, cell phone, and two-way radios had nothing to do with extortion. He argues that the two-way radios were requested to facilitate the negotiation process and that it would have been ridiculous for the defendant to risk life imprisonment for cigarettes and a cell phone. The defendant states, “the lunancy [sic] of such a conclusion is self-evident.” The evidence in this case establishes the capture of the deputy at knife point, handcuffing him, making demands, and threatening to kill him if there was no compliance. As noted above, the focus is not on the value of the demand, but whether the defendant sought to obtain something, by playing upon the victim’s or another’s fear and hope of eventual release in order to gain compliance with his demands. See also State v. Arnold, 548 So.2d 920 (La. 1989) and State v. Leger, 05-11 (La.7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). In this case the defendant sought to obtain cigarettes, a lighter, a cell phone, and transfer to another facility — all things of value. The defendant threatened to kill the deputy if his demands were not met.

The situation was only resolved when the SWAT team stormed the cell, took physical custody of the defendant and his cell mates, and freed the deputy. We find this assignment of error lacks merit.

| «DECREE

The defendant’s conviction for aggravated kidnapping is affirmed.

AFFIRMED.