author: MAX N. TOBIAS, JR., Judge. LOBRANO, J.,

text:
    STATE of Louisiana v. Timothy L. MATHEWS, Walter Myles, Ashley Stewart, Julio Kaiser Jr.
    No. 2012-KA-0182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Appel-lees, Ashley Stewart, and Julio Kaiser, Jr.
    Kevin V. Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Appellee, Walter Myles.
    John Clayton Butler, Craig J. Mordock, Butler Mordock P.L.C., New Orleans, LA, for Appellee, Timothy Mathews.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

b The appellant, State of Louisiana, appeals the trial court’s judgment granting the defendants’ motions to quash the bill of information. We find the trial court erred by granting relief on the basis of a statutory prescription claim, but find that court did not err in finding that the nolle prose-qui of an earlier case and the reinstitution of charges in the present case unduly prejudiced the defendants and violated their constitutional right to a speedy trial.

In case number 479-206, Timothy Matthews (“Matthews”), Walter Myles (“Myles”), and Ashley Stewart (“Stewart”) were each charged on 3 July 2008 with one count of possession with the intent to distribute marijuana. Stewart was also charged with two counts of distribution of marijuana. Julio Kaiser (“Kaiser”) was charged in the same bill with possession of marijuana, second offense. The defendants subsequently entered pleas of not guilty to the charges. The docket master of the case indicates that on 22 July 2008, Stewart was to participate in drug court, and the case was marked as closed as to her. The case was transferred by Section J of Criminal District Court (“CDC”) to Section E CDC in August 2008. On 5 February 2009, the state indicated that it intended to amend the bill of information to add charges against the defendants. The court reset the matter to 16 April 2009, and on that date, the State nolle prosequied the bill.

It was not until 22 September 2010 that the state filed the bill in the present case, charging Matthews and Myles with one count each of obstruction of justice and Stewart and Kaiser with the same charges as in the original bill. Because so much time had elapsed from the dismissal of the original charges, it took some time before all defendants appeared again in court; Matthews and Kaiser did not receive notice to appear for many months. On 4 February 2011, Myles filed a motion to quash the present charges, and Stewart and Kaiser adopted the motion. Kaiser filed his own motion to quash on 18 March 2011. The case was then transferred to Section D of CDC. On 26 August 2011, at a hearing on the motions to quash, counsel for Myles called counsel for Matthews, and the court reset the matter to 9 September 2011. The matter was reset a few more times, and on 21 October 2011, the court granted the defendants’ motions to quash the bill of information. The state objected and this timely appeal ensued.

FACTS

The facts of the underlying case are unknown and not pertinent to the issue raised in the State’s appeal.

Because the court’s ruling was based in part on its finding that the defendants’ constitutional speedy trial rights had been violated, the following is the timeline of both cases:

CASE NUMBER W-206J/E

07/08/2008 The bill of information was filed.

07/07/2008 The case was allotted to Section J; arraignment was set for Stewart for 07/11/2008 and for Myles, Matthews, and Kaiser for 07/24/2008.

07/11/2008 Stewart appeared and entered a plea of not guilty; the case was real-lotted to Section E.

07/22/2008 The docket master indicates that Stewart was to participate in drug court, and the case was closed as to her.

08/18/2008 The case was received in Section E; arraignment for Kaiser was set for 08/21/2008, and for 09/02/2008 for Myles and Matthews.

08/21/2008 Kaiser appeared and pled not guilty; the court set a hearing for determination of counsel for 09/02/2008.

09/02/2008 The court was closed (due to Hurricane Gustav), and the case was reset to 09/24/2008.

09/24/2008 Matthews appeared, pleaded not guilty, and filed various pretrial motions, with a hearing set for 10/31/2008; Myles appeared and pleaded not guilty, and the court set a determination of counsel hearing for 10/01/2008.

09/28/2008 Stewart appeared for a status hearing; the court set a motion hearing for 10/31/2008.

10/01/2008 Myles appeared; the court appointed ODP; Myles again pleaded not guilty; the court set motions for 10/31/2008.

10/03/2008 Counsel for Matthews obtained a stay away order to keep Myles away from Matthews.

10/31/2008 Myles appeared and filed various pretrial motions; Matthews also appeared; the court reset the hearing on motions on defense motion to 12/17/2008.

12/16/2008 Counsel for Myles appeared and had motions as to him continued until 02/05/2009.

12/17/2008 Matthews and Stewart appeared; the court reset the hearing due to determination of new counsel for Stewart to 02/05/2009.

01/07/2009 Kaiser was arrested on an alias capias warrant; the court set a hearing for 01/07/2009.

02/05/2009 Kaiser appeared with counsel; the court recalled the alias capias and reinstituted his bond; the court set the motion hearing for 02/05/2009.

02/05/2009 The State indicated that it would amend the bill to add charges to all defendants save Kaiser; the court set a status hearing for 02/18/2009.

02/18/2009 Myles, Matthews, and Kaiser appeared; Stewart did not; the court issued an alias capias for her arrest and reset motions to 04/16/2009.

03/05/2009 Myles filed a motion for the issuance of a subpoenas duces tecum.

04/16/2009 The State nolle prosequied the case as to all defendants.

CASE NUMBER 500-450J/E/D

09/22/2010 The bill of information was filed.

10/04/2010 Arraignment for all defendants was set for 10/18/2010.

10/18/2010 None of the defendants appeared because none was served; the court set arraignment for 11/04/2010.

11/04/2010 Stewart appeared and the other defendants did not; the case was transferred to Section E.

11/17/2010 Stewart filed pretrial motions in the clerk’s office.

11/23/2010 The case was received in Section E; the court set a status hearing as to all defendants for 12/10/2010.

12/10/2010 Matthews and Kaiser were not present because they were not served; Myles and Stewart appeared and pleaded not guilty; the court set a motion hearing for 02/04/2011 and set arraignment for Matthews and Kaiser for 01/05/2011.

12/13/2010 Myles filed several pretrial motions.

01/05/2011 Matthews and Kaiser did not appear, and the court issued alias capias warrants.

01/13/2011 Kaiser was arrested; a hearing was set for 01/14/2011.

01/14/2011 Kaiser appeared; the court recalled the alias capias; the court set bond and set a bond hearing for 01/19/2011 and a motion hearing for 02/04/2011.

01/19/2011 Kaiser appeared, and the court maintained his same bond.

02/04/2011 Kaiser, Myles, and Stewart appeared; Myles filed a motion to quash that Kaiser and Stewart adopted; the court set a hearing on the motion for 03/19/2011.

03/18/2011 Kaiser appeared and filed a motion to quash; Myles and Stewart appeared, and the court continued the suppression motion and motion to quash hearing on motion of the defense to 04/21/2011.

03/29/2011 The case was transferred to Section D.

03/31/2011 Matthews appeared (apparently in Section E); the court reinstated his bond from the prior case.

05/02/2011 The case was received in Section D; the court set a status hearing for 05/12/2011.

05/12/2011 All defendants appeared; the court set a status hearing for 5/27/2011.

05/27/2011 All parties appeared; the court set a status hearing for 06/22/2011.

06/22/2011 Matthews withdrew the motion to recuse that he had filed in the clerk’s office; the court reset the motion hearing to 07/19/2011.

07/19/2011 Kaiser filed a motion to sever; all defendants appeared, and the court set the hearing on the motion to quash for 08/26/2011.

08/26/2011 All defendants appeared; counsel for Myles called counsel for Matthews as a witness; the court continued the hearing to 09/09/2011.

09/09/2011 The hearing was cancelled; the court reset the hearing on 09/13/2011 to 10/21/2011.

09/30/2011 All defendants appeared; the court reset the matter to 10/21/2011.

10/21/2011 All defendants appeared; the court granted the motion to quash as to each defendant.

At the 26 August 2011 hearing on the motions to quash, counsel for Matthews testified that before the state nolle prose-quied the first case, he had worked out a plea agreement with one of the assistant district attorneys (“ADA”) in the case, and possibly with the judge, wherein Matthews would plead guilty and receive a five-year suspended sentence. He testified that he and Matthews had completed all the paperwork when the other ADA indicated that she did not consider the plea bargain to be in the best interest of the state, and she nolle prosequied the case, indicating that she would reinstitute the charges in a new case. Counsel testified that much later the state filed the bill in the present case. Counsel stated that Matthews received no notice of the filing of the new bill, and it was not until counsel was preparing to expunge the old charges that he learned of the new bill. Counsel admitted that he had not yet adopted any of the existing motions to quash filed by counsel for the other three defendants. Counsel also stated that because Matthews had no notice of the new ease, he was not present for any motion hearings that had been conducted in his absence. Counsel for Kaiser reminded the court that the motion hearing had been recessed and was not yet completed. Although the court indicated that it was ready to rule on Myles’ motion to quash at that time, the parties agreed to defer ruling until 9 September 2011.

The matter was finally heard on 21 October 2011. The defendants argued that the statutory time limitations had run as to the charges, and they also invoked their constitutional rights to speedy trial as envisioned by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972), arguing that the delay impeded their ability to prepare a defense. The court then granted the motions to quash, finding that the statutory time limitations had prescribed and that the delay in trying the defendants had unduly prejudiced their ability to present a defense.

The state now argues that the trial court erred in both of its rulings. It asserts that the first bill was not nolle prosequied in order to avoid any statutory time limitations; the new bill was filed within the time limitations for institution of prosecution; and the time limitations for bringing the defendants to trial were suspended by outstanding defense motions. The state also asserts that the defendants failed to show that their constitutional rights to a speedy trial had been violated.

La.C.Cr.P. art. 572 requires the state file a bill of information against a defendant charged with a crime that is punishable by hard labor within six years of the commission of the offense and within four years of the commission of an offense that is punishable with or without hard labor. Stewart was charged with two counts of distribution of marijuana and one count of possession with the intent to distribute marijuana, both of which are punishable by imprisonment at hard labor. See La. R.S. 40:966 B(3). Kaiser was charged with possession of marijuana, second offense, which is punishable by imprisonment with or without hard labor. See La. R.S. 40:966 E(2). Myles and Matthews were charged with obstruction of justice, a violation of La. R.S. 14:130.1. Although some grades of obstruction require the sentence to be served at hard labor, those involve cases where the crime that is being obstructed is punishable by death and life imprisonment (La. R.S. 14:130.1 B(l)) or punishable by imprisonment necessarily at hard labor (La. R.S. 14:130.2 B(2)). If the obstructed crime is any other crime, the sentence is to be served with or without hard labor. The bill of information in this case did not allege what crime Myles and Matthews obstructed, although the charge was included in the same bill as the charges against Stewart, whose charges mandated sentences at hard labor. Thus, it is unclear if the charges against Myles and Matthews exposed them to mandatory imprisonment at hard labor.

The state asserts that the present offenses occurred on 12 June 2008. Per article 572, the state had six years from that date in which to institute charges against Stewart, as her charges mandate imprisonment at hard labor. The state had four years to institute charges against Kaiser, and at least four years, possibly six years, in which to institute charges against Myles and Matthews. The present bill was filed on 22 September 2010, a little over two years after the offenses occurred. Therefore, the filing of the present bill did not violate article 572.

We find no basis to quash the bill based upon the time limitations set forth in La. C.Cr.P. art. 578, which provides that the state must bring a defendant to trial within two years of the filing of the bill of information charging a defendant with felony offenses such as those filed against these defendants. The state filed the bill in this case on 22 September 2010, and the trial court granted the motions to quash on 21 October 2011, a little over a year after the bill was filed. Myles’ argument on this point included in the two-year time limitation period the time period of the prior case. In support, he relied on State v. Shannon, 09-0305 (La.App. 4 Cir. 9/9/09), 17 So.3d 1061, but the portion of this court’s discussion in Shannon that included the calculation of time including a prior charge, dismissed case involved the defendant’s constitutional right to a speedy trial. Instead, the pertinent starting point for determining a violation of the time limitations under article 578 is the filing of the bill in the present case, not the date that the original bill was filed. The court appeared to recognize that the time limitations had not expired in this case because at one point, it stated that it was granting Myles’ motion to quash because even if the time limitations had not run, it still found that Myles was prejudiced by the delay in bringing him to trial.

The remaining statutory issue in this case is the state’s nolle prosequi of this case on 19 April 2009 and its reinstitution of charges on 22 September 2010, almost seventeen months later. La. C.Cr.P. art. 576 permits the state to dismiss timely-filed bill and reinstitute the charge “within the time established by the Chapter or within six months from the date of dismissal, whichever is longer.” The article further provides that the district attorney cannot reinstitute charges “unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.” Here, the state nolle prosequied the first bill on information a little over nine months after the bill was filed; the dismissal on its face was not for the purpose of evading a time limitation to bring the defendants to trial. The second bill was not filed within six months of the dismissal of the first one; it was filed a little over two years after the date of the offenses, and thus it was timely filed under art. 572.

Thus we find no basis to quash the bill of information on statutory grounds, and the trial court erred by doing so.

The court also found that the defendants’ constitutional rights to a speedy trial had been violated because of the delay in the state’s efforts to bring them to trial. Although not mentioned by the state, it is unclear if the court properly considered this argument. Although this claim was orally raised at the 21 October 2011 hearing on the motion to quash, none of the motions filed included a constitutional speedy trial claim. However, the state’s responses discussed the constitutional right to a speedy trial. La.C.Cr.P. art. 536 states:

A motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court. It shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.

Thus, technically the trial court could not consider a constitutional speedy trial claim because it was not raised in writing by any of the defendants. Nonetheless, the state did not object to the court’s consideration of this claim and in fact naddressed it in its responses and in its appellate brief. We find that this failure waived any claim it may have that the trial court could not consider this issue.

In State v. Scott, 06-1610, p. 5 (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 729, this court discussed the standard for evaluating a constitutional speedy trial claim:

The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93 [33 L.Ed.2d 101] (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 05-1571, p. 7 (La.10/17/06), 939 So.2d 1245, 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

The first of the four Barker v. Wingo factors, the length of the delay, is the “triggering mechanism,” and if the length of the delay is not “presumptively prejudicial,” the court need not inquire into the other three Barker factors. See State v. Brown, 11-0947 (La.App. 4 Cir. 3/7/12), 88 So.3d 662; State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843; State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. The defendant has the burden of showing a violation of his constitutional right to speedy trial. As noted in Scott, “Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984), citing Barker, 407 U.S. at 531 [92 S.Ct. 2182].” Scott, 04-1142 at p. 12, 913 So.2d at 851. In State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206, the Court stated: “Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.” See also State v. Harris, 03-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16.

Here, the state alleges that the offenses occurred on 12 June 2008. The first motion to quash was filed on 18 March 2011, and the court granted the defendants’ motions on 21 October 2011. The delay between the date of the offenses and the filing of the first motion to quash was almost three years, a time span that is presumptively prejudicial as to all four defendants. Thus, we look to the other three Barker factors to review this claim.

Although, as the state points out that some of the length of the delay is attributable to the defendants, in that motions were still outstanding at the time that they filed their motions to quash, approximately half of the delay, seventeen months, was strictly due to the state’s failure to reinsti-tute the charges for that period of time. In addition, because the state waited seventeen months to file the second bill, the addresses that the state had for Matthews and Kaiser were no longer valid. Because neither defendant was under any sort of bond obligation during those seventeen months, they had no obligation to register any change of address during this time. Neither of these defendants was served with notice of the new charges, and Kaiser did not appear until February 2011, when he was arrested on an alias capias, while Matthews did not appear until March 2011. At the 26 August 2011 hearing, counsel for Matthews testified that he first learned of the new charge against Matthews when he attempted to expunge the dismissed charge. Thus, although outstanding defense motions existed at the time that the first motion to quash was filed, seventeen months of the delay was directly attributable to the estate for its failure to reinsti-tute the charges during that time, and the six and seven more months that it took for Kaiser and Matthews, respectively, to appear are also attributable to the state because the defendants had moved in those seventeen months, no longer had bond obligations, and were not served.

As for the third factor, we find no indication that any of the defendants filed a motion for speedy trial. Their only assertions of their rights to a speedy trial were their motions to quash.

The final factor is the prejudice suffered by the defendants. At the 21 October 2011 hearing, counsel for Myles alleged that the long delay in trying this case has hindered his preparation of a defense for Myles. Counsel for Matthews pointed out that he and one of the ADAs had worked a plea deal for a suspended sentence before the other ADA nolle pro-sequied the case. Counsel for Stewart pointed out that Stewart had participated in drug court under the first bill of information, and the case had been closed as to her. Counsel for Kaiser stated that Kaiser had lost his employment after being charged in the first bill and has since gained employment, but he would lose that as well if this case kept dragging on. Counsel also pointed out that the alias capias issued in this case for Kaiser’s nonappearance was due to the fact that he had moved in the seventeen months between the nolle prosequi of the first case and the reinstitution of the charge in this case, and during those seventeen months he was under no bond obligation. After hearing each of these arguments, the court found that each of the defendants was prejudiced by the delay and found that each defendant’s constitutional right to a speedy trial had been violated.

The defendants were able to show that the majority of the delay in this case was due to the inaction of the state in its failure to file the bill in this case until over seventeen months after it nolle prose-quied the original bill. With respect to Matthews and Kaiser, who had moved in the interim, the delays in their reappearance before the trial court can also be tied to the delay in reinstituting the charges. In addition, each defendant showed specific prejudice that resulted from the delay. Given these factors, we find that the trial court did not abuse its discretion by granting the motions to quash the bill of information on constitutional grounds.

The delays in this case resulted mainly from the state’s decision to nolle prosequi the original case and wait seventeen months to reinstitute the charges. Although the state has the authority to nolle prosequi and reinstitute charges, this power is not unlimited. The Court in State v. Batiste, 05-1571, pp. 5-6 (La.10/17/06), 939 So.2d 1245, 1249, upheld the dismissal and reinstitution of the defendant’s charges only because, as the Court noted: “In this case, however, there is no indication that the district attorney was flaunting his authority at the expense of the defendant. Rather, the record indicates a nolle prose-qui was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case.” Id. at p. 6, 939 So.2d at 1249. See also Love, supra, where the Court noted that a trial court should grant motions to quash in cases where the state dismisses and reinstitutes charges only “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses.” Id., 00-3347 at p. 14, 847 So.2d at 1209. The Court reaffirmed this holding in State v. King, 10-2638 (La.5/6/11), 60 So.3d 615, where it found that the trial court erred by quashing the bill of information when there was no showing that the state “sought a tactical advantage over the defense.” Id. at p. 7, 60 So.3d at 619.

Here, the state’s dismissal of the first case directly prejudiced both Matthews and Stewart. Stewart had been participating in drug court for nine months before the state dismissed the initial bill of information. Matthews had agreed with one of the ADAs, and possibly the court, to plead guilty in exchange for a five-year suspended sentence. Although the transcript of 9 February 2009 indicated that the state planned to amend the original bill within a few days to add more charges, two months later it still had not amended the bill. Instead, it convincingly appears that the reason that the state dismissed the first case was because the ADAs disagreed as to whether to confect a plea agreement with Matthews. In addition, as pointed out by the defendants on appeal, the state did not charge either Stewart or Kaiser with additional charges when it filed the new bill seventeen months later. Further, the new bill omitted the drug charges against Matthews and Myles and charged them both with obstruction of justice. Therefore, the record shows that Stewart and Matthews both suffered direct prejudice by the state’s decision to dismiss the original case and then reinstitute the charges seventeen months later.

The record does not support the trial court’s ruling that granted the motions to quash on statutory prescription grounds. Nevertheless, we find that the trial court properly considered the issue of the defendants’ constitutional rights to a speedy trial and the record supports the trial court’s quashing of the bill on that ground.

We affirm the judgment of the trial court.

AFFIRMED.

LOBRANO, J., concurs in part and dissents in part and assigns reasons.

LOBRANO, J.,

concurs in part and dissents in part and assigns reasons.

I concur in the portion of the majority opinion holding the trial court erred in quashing the bill of information on statutory grounds because the record does not support its ruling.

However, I dissent from the portion of the majority opinion upholding the trial court’s quashing the bill of information on the grounds that defendants’ constitutional rights to a speedy trial were violated. Specifically, I disagree with the majority’s finding that the state’s dismissal of the first case directly prejudiced the defendants. The defendants have not demonstrated specific prejudice or the possibility that their defense will be impaired. They have made no specific claims regarding the unavailability of witnesses or lost evidence. Further, the defendants have not been incarcerated so their ability to meet with their respective counsel has not been jeopardized.

      . Hereinafter, dates are set forth as month/ day/year (mm/dd/yyyy) in the timeline.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jessie JOHNSON, Jr.
    No. 2011-KA-1213.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Jessie Johnson/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

11 This appeal arises from the alleged sexual battery of a juvenile by the defendant, Jessie Johnson, Jr., who was sixty-nine years old at the time of the alleged incident. The jury found the defendant guilty of one count of sexual battery and the trial court sentenced him to twenty-five years at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. The defendant contends that there was insufficient evidence to warrant a conviction. The defendant also alleges that his sentence is excessive because the jury did not determine the age difference between him and the alleged victim. We find that the age difference between the defendant and the victim was discernable by the jury and that the record contains sufficient evidence to warrant a conviction. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

T.H., the -victim’s mother, stated that on October 10, 2009, her mother-in-law, Wanda Pearson, lived on Orleans Avenue. Jessie Johnson, Jr. and Ms. Pearson began cohabitating in 2004. They resided on St. Phillip Street prior to living on Orleans Avenue. On Saturday night, T.H. received a phone call from her brother-in-law who instructed her to go to Ms. Pearson’s house because Mr. Johnson sexually assaulted her daughter. When T.H. arrived at Ms. Pearson’s house, the victim was in one room, and Ms. Pearson and Mr. Johnson were arguing in another room. T.H. went to her daughter and asked what happened. The victim told her mother about the incident, which allegedly occurred when Ms. Pearson and Mr. Johnson lived on St. Phillip Street. T.H. then called the police to inform them Mr. Johnson sexually assaulted her daughter.

Detective Ruben Henry, a member of the New Orleans Police Department’s (“NOPD”) child abuse unit, testified that he investigated the alleged abuse perpetrated upon the victim. Detective Henry stated that he received a call from the First District unit that first arrived on the scene on October 11, 2009. When the initial NOPD officer arrived on the scene, he spoke with the victim, her mother, and Ms. Pearson, separately. Several family members were outside of the house desiring to exact revenge upon Mr. Johnson. Mr. Johnson was in the back seat of a police car, being detained by Officer Frank Robinson. Detective Henry learned that the victim alleged that Mr. Johnson touched her inappropriately underneath her clothes when Ms. Pearson and Mr. Johnson resided in a home on St. Phillip Street in March 2009. Mr. Johnson was arrested.

Detective Henry stated that a forensic interview was conducted with the victim at the New Orleans Children’s Advocacy Center (“NOCAC”) by Ms. Joann Verret. Det. Henry viewed the interview through a video monitoring system. During the interview, the victim indicated that Mr. Johnson touched her in a personal spot and identified the personal spot as her vaginal area.

Ms. Pearson testified that she met Mr. Johnson in 2004. In March 2009, they were living together at 1926 St. Phillip Street. Ms. Pearson stated that she and Mr. Johnson had separate bedrooms. She further testified that she was the leaseholder for the residence on St. Phillip Street, and she could have asked Mr. Johnson to leave at any time.

In October 2009, Ms. Pearson and Mr. Johnson lived on Orleans Avenue. On the weekend of October 10-11, 2009, the victim was visiting her grandmother for the weekend. On the night of October 10th, Ms. Pearson was sleeping in her bedroom when the victim came to her, crying hysterically, and stated that Mr. Johnson touched her. The victim told Ms. Pearson that Mr. Johnson touched her when Ms. Pearson and Mr. Johnson lived in a house on St. Phillip Street. The victim told Ms. Pearson about the alleged touching that night because she had to pass through Mr. Johnson’s bedroom to go to the bathroom yet again. Ms. Pearson called her children and then confronted Mr. Johnson, who stated that nothing happened. Mr. Johnson went to the backyard when Ms. Pearson’s children arrived.

The victim testified that Mr. Johnson lived with her grandmother and that they had separate bedrooms. She stated that one day, Mr. Johnson was watching television in his room and her grandmother was sleeping. The victim walked through Mr. Johnson’s room to go to the bathroom, and he grabbed her. Then Mr. Johnson allegedly touched her private area. The victim testified that Mr. Johnson put his hand under her clothes and underwear, and she felt his hand on her body. The victim tried to scream, but Mr. Johnson covered her mouth. Mr. Johnson told the victim not to tell anyone. She did not tell anyone because she was afraid. The victim finally told her grandmother on the night of October 10, 2009. The victim then identified Mr. Johnson at trial as the perpetrator.

Ms. Verret, a forensic interviewer with the NOCAC, testified that she conducted an interview with the victim on October 13, 2009. The victim was six years old at that time. Only Ms. Verret and the victim were in the room during the interview, which was videotaped. Ms. Verret identified the videotape, which was played for the jury.

Dr. Jamie Jackson, a pediatrician who specializes in child abuse, was one of the physicians who examined the victim at Children’s Hospital. Dr. Jackson completed the medical history on the victim. Dr. Yameiha Head conducted an incident history and examined the victim. Dr. Jackson was present during the examination. Dr. Jackson identified the medical report prepared as a result of the examination. Dr. Jackson testified that delayed reporting of abuse is common among children. She stated that it is not unusual for children to leave out or add details from their statements. Dr. Jackson further testified that most of the time, physical signs of trauma are not found after abuse because the tissues tend to heal by the time the victims are seen by a physician. She further stated that there can be sexual abuse without any visible injury.

Mr. Johnson testified that at the time of trial, he was seventy-one years of age. In October of 2009, he was sixty-nine years old. Mr. Johnson stated that he knew Ms. Pearson since 2004. They dated for a short while, and he moved in with Ms. Pearson when he was evicted from a residence shared with a friend. They moved to 1926 St. Phillip Street in February 2007, and later moved to 2215 St. Phillip Street. On October 11, 2009, they lived on Orleans Avenue. The victim spent the day and night with him and Ms. Pearson. The victim slept with her grandmother. Mr. Johnson denied touching the victim.

Mr. Johnson was charged with one count of sexual battery, in violation of La. R.S. 14:43.1, and pled not guilty at his arraignment. After a preliminary hearing, the trial court found probable cause. A jury found Mr. Johnson guilty as charged.

Mr. Johnson then filed motions for new trial and post-judgment verdict of acquittal. The trial court denied both motions. Mr. Johnson waived delays, and the trial court sentenced him to serve twenty-five years at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. Mr. Johnson’s motion for reconsideration of sentence was denied. Mr. Johnson’s appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

SUFFICIENCY OF THE EVIDENCE

Mr. Johnson contends that the State failed to produce sufficient evidence to support the conviction for sexual battery.

“The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia,” 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), “requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.” State v. Rosiere, 488 So.2d 965, 968 (La.1986). However, the reviewing court may not disregard this duty “simply because the record contains evidence that tends to support each fact necessary to constitute the crime.” State v. Mussall, 523 So.2d 1305, 1311 (La.1988). “The reviewing court must consider the record as a whole since that is what a rational trier of fact would do.” State v. Shaw, 07-1427, p. 15 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 407, quoting State v. Ragas, 98-0011, p. 13 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 107, quoting State v. Egana, 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228. “If rational triers of fact could disagree as to the interpretation of the evidence, the rational triers’ view of all the evidence most favorable to the prosecution must be adopted.” Egana, 97-0318, p. 6, 703 So.2d at 228. “The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La.1987). Additionally, the function of an appellate court is not to evaluate the credibility of the witnesses and to overturn the jury on its factual determination of guilt. State v. Richardson, 425 So.2d 1228, 1232 (La.1983). “In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings.” State v. Turner, 03-325, p. 8 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 816.

La. R.S. 14:43.1(A)(1) defines sexual battery, in pertinent part, as “the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender ... without the consent of the victim.” In the present matter, the victim testified that Mr. Johnson grabbed her as she was walking through his bedroom to go to the bathroom. The victim attempted to scream but Mr. Johnson covered her mouth. Mr. Johnson then put his hand underneath the victim’s clothes and underwear and touched her “personal area.” Evidence presented from the forensic interview with Ms. Verret clarified the victim’s “personal area” to be her vagina. Mr. Johnson testified that he did not assault the victim and had never touched her. The jury, as the trier of fact, chose to accept the victim’s testimony. Therefore, we find that the record contains sufficient evidence to support Mr. Johnson’s conviction for sexual battery and affirm.

EXCESSIVE SENTENCE

Mr. Johnson asserts that the trial court imposed an excessive sentence because there was no evidence of the age difference between him and the alleged victim. La. R.S. 14:48.1 provides for an enhanced sentence when the victim is under the age of thirteen years and the offender is over the age of seventeen years. La. R.S. 14:48.1 provides, in pertinent part, that “[w]hoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years.” La. R.S. 14:43.1(C)(2). The statute additionally provides that at least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:43.1(0(2).

The trial court sentenced Mr. Johnson pursuant to this provision, ordering that Mr. Johnson be sentenced to twenty-five years at hard labor, without benefit of parole, probation, or suspension of sentence. Mr. Johnson contends that the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at 490, 120 S.Ct. 2362-63.

In State v. Gibson, 09-486, p. 9 (La.App. 5 Cir. 3/9/10), 38 So.3d 373, 378, the defendant argued that the trial court erred in imposing sentence under La. R.S. 14:43.1 (C)(2) “because neither the jury’s verdict nor the jury instructions referenced the additional age requirements of La. R.S. 14:43.1(0(2).” The court discussed Apprendi and its progeny, determining that the trial court’s error was an Apprendi violation, but that it was subject to a harmless error review.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the petitioner pleaded guilty to a state offense with a sentencing range of five to ten years. However, the trial court imposed a twelve-year sentence pursuant to a hate crime statute that allowed a sentence to be enhanced if the trial judge found by a preponderance of the evidence that the crime was motivated by racial bias. Id., 530 U.S. at 470, 120 S.Ct. 2348. The Supreme Court held “that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at 490, 120 S.Ct. 2348. The Court reversed the judgment of the Supreme Court of New Jersey and remanded for further proceedings. Id., 530 U.S. at 497, 120 S.Ct. 2348.
In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the petitioner was sentenced to death after being convicted of capital felony-murder, armed robbery, and related charges. Under then extant Arizona law, after a jury adjudicated that a defendant was guilty of capital felony-murder, the trial judge alone determined the presence or absence of the aggravating factors required by law for imposition of the death penalty. Id., 536 U.S. at 592-93, 122 S.Ct. 2428. The Court, citing language from Apprendi, stated “[t]he dispositive question, we said, is one not of form, but of effect. If a State makes an increase in a defendant’s authorized punishment contingent on a finding of fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Id., 536 U.S. at 602, 122 S.Ct. 2428 (citations omitted). The Supreme Court concluded that because “Arizona’s enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.” Id., 536 U.S. at 609, 122 S.Ct. 2428 (citations omitted). Accordingly, the Court reversed the judgment of the lower court. Id.
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the United States Supreme Court clarified its previous holdings in Ring and Apprendi. In Blakely, the petitioner pleaded guilty to kidnapping. The facts admitted in the petitioner’s guilty plea supported a maximum sentence of fifty-three months; however, pursuant to state law, the trial court imposed an “exceptional” sentence of ninety months after making a judicial determination that the defendant acted with “deliberate cruelty.” Id., 542 U.S. at 300-02, 124 S.Ct. 2531. The Supreme Court considered the holdings in Apprendi and Ring, recognizing that the facts supporting the sentence enhancement were neither admitted by the defendant nor found by a jury. The Court ultimately concluded that “the relevant ‘statutory maximum’ [for the purposes of Apprendi] is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id., 542 U.S. at 303-04, 124 S.Ct. 2531 (emphasis in the original).
After considering the holdings of Apprendi, Ring, and Blakely, we conclude that trial court committed an Apprendi violation in this case. The relevant “statutory maximum” for a violation of La. R.S. 14:43.1 is ten years imprisonment with or without hard labor; this is the maximum sentence the trial court could have imposed without any additional findings. In order to sentence the defendant pursuant to the enhanced sentencing provision of La. R.S. 14:43.1 C(2), a finder of fact must determine that the defendant was seventeen years of age or older and that the victim was under the age of thirteen. The jury instructions did not reflect that the victim’s and the defendant’s ages are elements of the enhanced sentencing provision of La. R.S. 14:43.1 C(2).
* * * * * *
The state should have explicitly noted in the bill of information that La. R.S. 14:43.1 C(2) was applicable to the defendant given that sexual battery is a lesser included offense of aggravated rape. Moreover, the trial judge should have included a jury instruction reflecting that the defendant’s and the victim’s ages were elements of the enhanced sentencing provision.
* * * * * *
The fact that the trial court committed an Apprendi violation, however, does not end our analysis. In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the United States Supreme Court held that “a [jury] instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” and harmless error analysis may be appropriate Id., 527 U.S. at 8-9, 119 S.Ct. 1827 (emphasis in original). Moreover, the Neder Court found that if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. Id., 527 U.S. at 17, 119 S.Ct. 1827.
In Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), the Supreme Court applied Neder to an Apprendi violation. The alleged error in Recuenco was that the trial court subjected the defendant to a firearm enhancement at sentencing based solely on the jury’s finding that he was armed with a “deadly weapon.” The State of Washington conceded that the trial court committed an Apprendi error. Id., 548 U.S. at 212, 126 S.Ct. 2546. The State of Washington argued that the error was harmless, but the Washington Supreme Court determined that the error was a “structural error” requiring a reversal of his conviction. Id., 548 U.S. at 216, 126 S.Ct. 2546 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1998)). The United States Supreme Court reversed the judgment of the Washington Supreme Court. The United States Supreme Court ultimately held that a “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error” and remains subject to harmless error analysis. Id., 548 U.S. at 221, 126 S.Ct. 2546.

Gibson, 09-486, pp. 10-14, 38 So.3d at 379-81.

During the trial in Gibson, the victim testified as to her date of birth, which was also included on the bill of information. 09-486, p. 6, 38 So.3d at 376. While the defendant did not testify as to his date of birth, the victim’s mother testified that she and the defendant began a romantic relationship in 1996, when they were fourteen years of age. Gibson, 09-486, p. 14, 38 So.3d at 381. The victim’s mother also testified as to her date of birth. Id. The court found that this evidence was sufficient to establish that the victim was under the age of thirteen and the defendant was over the age of seventeen at the time of the offense. Gibson, 09-486, pp. 14-15, 38 So.3d at 381. The court also noted the jury could determine the age difference between the victim and the defendant by their physical appearances at trial. Id. The court recognized that

jury observation can be used to infer the age of a defendant when no direct evidence of defendant’s age is presented. State v. Day, 98-964 (La.App. 5 Cir. 3/10/99), 735 So.2d 56, 59; State v. Zihlavsky, 505 So.2d 761 (La.App. 2 Cir.1987), writ denied, 511 So.2d 1152 (La.1987). See also Zihlavsky, 505 So.2d at 764-65 (“[t]here is ... no requirement that the proof of age be established by direct evidence.”).

Gibson, p. 14, 38 So.3d at 381. The court went on to find that the State produced sufficient evidence for the jury to find that the defendant was seventeen years of age or older and that the victim was under the age of thirteen. Gibson, pp. 14-15, 38 So.3d at 381. The court concluded that although the trial court committed an Ap-prendi violation, the error was harmless. Gibson, p. 15, 38 So.3d at 381.

The Third Circuit in State v. Ardoin, 10-1018, pp. 31-32 (La.App. 3 Cir. 3/9/11), 58 So.3d 1025, 1044, writ denied, 11-0653 (La.10/14/11), 74 So.3d 218, found a similar error to be an Apprendi violation but also found that it constituted harmless error. In Ardoin, the trial court sentenced the defendant on his conviction for indecent behavior with a juvenile under the enhanced penalty provision of La. R.S. 14:18(H)(2). 10-1018, p. 27, 58 So.3d at 1042. The provision allows for an enhanced sentence when the victim is under the age of thirteen and the offender is seventeen years of age or older. Id. The defendant argued on appeal that the trial court erred in imposing an enhanced sentence because the jury did not make a determination as to the victim’s age. Id. The Third Circuit discussed the Gibson case and its application of Apprendi and Neder. The court noted that the State should “have noted in the bill of information that the enhanced sentence” was applicable to the defendant and that the trial court should have provided a jury instruction indicating the victim’s and defendant’s ages were elements of the offense. Ardoin, 10-1018, pp. 81-32, 58 So.3d at 1044. However, the court noted that these errors were harmless. Ardoin, 10-1018, p. 32, 58 So.3d at 1044.

With regard to the bill of indictment, the Victim’s age, nine years old, is not set forth in count one but is found in count three and was read aloud by the minute clerk on the first day of trial. Additionally, in discussing the sexual acts resulting in the charge of indecent behavior with a juvenile during opening statements, the prosecutor repeatedly stated that the Victim was nine years old at the time of the offense. On direct examination, the Victim testified that she was born on January 26, 1998, and turned nine years old on January 26, 2007. She also indicated on redirect examination that she was nine years old at the time of the offenses and had just turned ten when she gained the courage to report the offenses. The bill of indictment reflects that all the offenses for which the Defendant was charged, including indecent behavior with a juvenile, occurred on or about March 1, 2007, through November 30, 2007, when the Victim was nine years old. Lastly, the Victim’s medical records introduced at trial included her date of birth.
With regard to the Defendant’s age, his date of birth, January 29, 1964, is found in the bill of indictment and was reiterated by the Defendant at the beginning of all three recorded statements. The Defendant’s date of birth also appears on the Miranda waiver dated February 3, 2008, and his age appears on the Miranda waiver dated February 8, 2008, both of which were introduced at trial. Lastly, Detective Ortis testified at trial that the Defendant was forty-four years old at the time he signed the Miranda waiver dated February 8, 2008, and that he informed the Defendant that they wanted to speak to him about the rape of a “ten year old.”
Considering the evidence viewed in the light most favorable to the prosecution, we find the evidence was sufficient for a rational trier of fact to conclude the State proved beyond a reasonable doubt that the Defendant was seventeen or older and that the Victim was under the age of thirteen. Further, the Defendant did not refute at trial any of the evidence regarding his age or the Victim’s age, nor does he challenge evidence of same on appeal. Although the trial court clearly committed an Apprendi violation, we find the error was harmless.

Ardoin, pp. 32-33, 58 So.3d at 1044-45.

In the present case, the bill of information sets forth the victim’s date of birth as June 10, 2003, and alleges that the offense occurred in March 2009, at which time the victim would have been five years of age. The verdict sheet does not reflect that the jury made a determination of the victim’s and defendant’s ages. The verdict sheet states only that the defendant was found guilty of sexual battery. In addition, the jury instructions were not transcribed; thus it is not possible to determine whether the trial court instructed the jury that the victim’s and defendant’s ages were elements of the offense. A review of the trial transcript reveals that no objections were made to the jury instructions. Thus, we find that an Apprendi violation occurred.

However, pursuant to Neder and Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), our review of the record indicates that the jury would have returned the same verdict absent the error. Evidence of both the victim’s and defendant’s ages was provided to the jury. The victim’s age was included in the bill of information, which was read to the jury. Additionally, both Det. Henry and Ms. Verret testified that the victim was six years old when they interviewed her. Mr. Johnson testified that he was seventy-one years of age at the time of trial, and was sixty-nine years old in October 2009. He further stated that he graduated from high school in 1959. Additionally, the jury could observe the age difference between the victim and Mr. Johnson when they testified at trial. As recognized in Gibson and Ardoin, “jury observation can be used to infer the age of a defendant when no direct evidence of defendant’s age is presented.” Gibson, p. 14, 38 So.3d at 381, citing State v. Day, 98-964 (La.App. 5 Cir. 3/10/99), 735 So.2d 56, 59.

DECREE

For the above mentioned reasons, we find that the record contains sufficient evidence to support Mr. Johnson’s conviction for sexual battery and affirm. We also find that the trial court’s Apprendi error was harmless because the jury would have returned the same verdict absent the error and affirm.

AFFIRMED

      . Due to the nature of the charge, the victim's mother's initials are abbreviated.

      . Ms. Pearson is the victim's paternal grandmother.

      . This Court granted a motion to supplement the record. However, the jury instructions were not included in the trial transcript.


author: MAX N. TOBIAS, JR., Judge.

text:
    James ADAMS v. DEPARTMENT OF POLICE.
    No. 2012-CA-1268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Elizabeth Robins, Shawn Lindsay, Assistant City Attorneys, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

The appellant, Officer James Adams, appeals the decision of the Civil Service Commission (“CSC”) that terminated him from employment with the New Orleans Police Department (“NOPD”). After a review of the record and applicable law, we affirm the decision.

The facts are not in dispute. Officer Adams, then a sixteen-year veteran with the NOPD, was absent from work for an extended period of time due to injury and illness. On 18 August 2009, the NOPD conducted a Rule IX hearing to determine whether Officer Adams could return to his position as a police officer and, if so, when. Captain Bruce Adams conducted the hearing. At the conclusion of the hearing, the Rule IX hearing committee recommended that Officer Adams be terminated; Superintendent Warren Riley agreed. The basis of the termination was a violation of Rule IX, Section 1, entitled “Maintaining Standards of Service.” Paragraph 1.1 provides in pertinent part:

When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, ... the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service.

One of the actions permitted his removal from service.

The NOPD terminated Officer Adams’ employment on 18 August 2009. He appealed and a hearing took place on 18 May 2011.

Captain Adams testified before the hearing examiner that he recommended termination after reviewing medical information presented by Officer Adams indicating that he was unable to return to work in any capacity. Captain Adams stated that he also made the recommendation because Officer Adams failed to provide any medical information as to when he would return to work and because of the extended period he had already been absent. On 20 August 2008, Officer Adams went onto sick leave with pay until 6 February 2009 and was then on leave without pay until his subsequent termination.

Officer Adams testified at the NOPD hearing that he needed to see one more doctor before returning to work, but, because of financial difficulties, he was unable to schedule the appointment. He contended that he was capable of returning to work after September 2009. However, Officer Adams failed to provide sufficient medical evidence to support his position. Officer Adams claimed that his headaches, vertigo, and “spells/seizures/convulsive” were related to diabetes and high blood pressure, which were now under control. He provided correspondence dated 16 February 2011 from a registered nurse with Baylor Endocrine Center stating that his type-2 diabetes was under control and that “he is overall capable of carrying on normal physical activities of daily living.” Officer Adams was invited to supplement the record with medical records to support his return to work, but failed to do so.

In addition to the testimony of Captain Adams and Officer Adams, the hearing examiner heard testimony from Lieutenant Carol Aldridge, assigned to the Administrative Duties Division (“ADD”) and Detail and Limited Duty Status to the district. She was the ADD Commander in 2008-09. As part of her duties, she supervised those officers who were assigned to the ADD for medical or illness-related reasons. Officer Adams was assigned to the ADD while Lieutenant Aldridge was its commander.

Lieutenant Aldridge explained that when an officer has been transferred to the ADD, he/she is required to submit reports concerning his/her status. This is done on a Form 50, entitled “Physician Examination Certification.” If the officer is on limited-duty status, the Form 50 is submitted thirty days from the date of the previous submission of Form 50. For officers who are not working at all, the form is submitted every sixty days. The form contains medical information concerning the officer’s condition and addresses whether or not the officer can return to any duty at that time.

Although Officer Adams had been absent from work since late August 2008, Lieutenant Aldridge testified that on 6 August 2009, Officer Adam sent to the ADD seven Form 50s that he was required to submit per departmental regulations; the record reflects that two Form 50s had previously been filed with the ADD. All nine forms indicated that his doctors recommended that he was “unable to return in any capacity at this time.” His diagnoses included an injury to the back of his leg, headaches, vertigo, and “spells/seizures/convulsive.”

Lieutenant Aldridge testified that part of her job is to put together a Rule IX hearing package; the hearings are held about every three months. The package for Officer Adams included the Form 50s and his attendance records. Officer Adams also had the opportunity to say and/or submit any additional information that could help his case. Lieutenant Al-dridge also prepared a script for the superior officer in charge of the meeting. She did not offer any conclusions or recommendation concerning Officer Adams; she merely presented the facts.

The CSC reviewed the hearing examiner’s report recommending termination and agreed. Its opinion was issued on 27 April 2012. This appeal followed.

The CSC has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. Art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. The authority to modify a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, pp. 5-6, 903 So.2d at 4. See also Robinson v. Dept. of Police, 12-1039, pp. 6-7 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272, 1275.

The appointing authority has the burden of proving by a preponderance of the evidence that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing or other discipline without cause. La. Const. Art. X, § 12; Cornelius v. Dept. of Police, 07-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App., 4 Cir. 10/31/01), 797 So.2d 783, 787. See also Robinson, p. 7, 106 So.3d at 1272.

The decision of the CSC is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. Art. X, § 12; Cure, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is “arbitrary and capricious” if there is no rational basis for the action taken by the CSC. Id., p. 2, 964 So.2d at 1095. See also Robinson, p. 7, 106 So.3d at 1272.

We do not find that the CSC was arbitrary, capricious, or abused its discretion. Officer Adams was told he could supplement the Rule IX hearing record with medical evidence that he could return to work in September 2009, as he claimed. He did not do so. Likewise, he was again invited to introduce such evidence into the record before the hearing examiner, but did not. Even the 16 February 2011 letter from Baylor Endocrine Center about Officer Adams stated that “he is overall capable of carrying on normal physical activities of daily living,” but did not state that he was capable of returning to work at that time. We find that every opportunity was afforded Officer Adams, but he failed to submit the necessary information from his physician indicating that he could return to work at that time or on a date certain in the near future.

Based on the foregoing, we affirm the decision of the CSC terminating Officer Adams from his position as a police officer with the NOPD.

AFFIRMED.