author: PAUL A. BONIN, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Thayer M. HAMDALLA.
    No. 2012-KA-1413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 2, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, New Orleans, LA, for State/Appellee.
    Rachel M. Yazbeck, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 Thayer Hamdalla appeals his conviction for the offense of forcible rape, a violation of La. R.S. 14:42.1 A. Having been adjudicated a second-felony offender, he also appeals the imposition of the maximum sentence of eighty years. See La. R.S. 14:42.1 B and 15:529.1 A(l). With respect to his conviction, he argues first that the evidence is insufficient to support the conviction and second that the trial judge abused her discretion in admitting hearsay testimony of the rape victim’s mother. With respect to the sentence imposed upon him, he argues that the 80-year sentence is unconstitutionally excessive.

We have reviewed the record for sufficiency of evidence under the well-known Jackson v. Virginia standard and conclude that the evidence is sufficient. We have also reviewed the complained-of evidentia-ry ruling under an abuse-of-discretion standard and find no reversible error in admitting the mother’s testimony. Finally, after a review of the sentencing hearing and the pre-sentence investigation report along with the objections lodged to it, we conclude that the sentencing judge did not abuse her considerable discretion in determining that Mr. |2Hamdalla was among the worst of offenders and thereby imposing the maximum sentence. Accordingly, we affirm his conviction and sentence.

In the following Parts, we more fully explain our decision.

I

In this Part, we explain why we conclude that, under the Jackson v. Virginia standard, the evidence in this case is sufficient for the conviction of Mr. Hamdalla for forcible rape.

A

We first consider the essential elements of the crime of forcible rape. Forcible rape punishes, inter alia, oral sexual intercourse committed without the consent of the victim. See La. R.S. 14:42.1 A. The intentional touching of the genitals of the offender by the victim using the mouth or tongue of the victim can constitute oral sexual intercourse. See La. R.S. 14:41 C(2). Forcible rape is deemed to be without the consent of the victim “[w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.” La. R.S. 14:42.1 A(l). Thus, the essential elements of the offense which the prosecution must prove beyond a reasonable doubt in this case are (1) an intentional act of oral intercourse (2) committed without the lawful consent of the victim when the victim is prevented from resisting the act by force or threats of physical violence under circumstances in which the victim reasonably believes that |3resistance would not prevent the rape. See State v. Reel, 10-1737, p. 7-8 (La.App. 4 Cir. 10/3/12), 126 So.3d 506, 511, 2012 WL 4711881, at *4.

We turn now to a consideration of the trial evidence.

B

Mr. Hamdalla was a taxicab driver. Upon leaving a club in which adults may have consensual sex with strangers, the victim, a twenty-seven year old woman, entered Mr. Hamdalla’s taxi. During the ride, Mr. Hamdalla reached into the backseat area and began to feel or stroke the victim’s ankle. The victim made no objection to his conduct at that point. Mr. Hamdalla invited the young woman to ride in the front seat, and she climbed into the front seat.

Once she was in the front seat, Mr. Hamdalla deviated from the route to her home. Arriving in a dark area with warehouses, Mr. Hamdalla stopped his taxi. Fearing that he was going to force her out of the taxicab, the young woman became even more frightened of what was going to happen. Mr. Hamdalla began to touch her vagina under her dress. The victim denied that she had “come on” to Mr. Ham-dalla. She testified: “I was scared. I wanted ... to tell him to stop, but I just couldn’t. I couldn’t speak.” At the point when Mr. Hamdalla put his hand up her dress, she testified that she “kind of froze up.” She said: “I tried to push it away, but I just couldn’t.” She tried to tell him to stop, but she “couldn’t find the words.”

Then Mr. Hamdalla grabbed the young woman’s hand and made her hand touch his exposed penis. The taxi driver was in the driver’s seat, and she was in the passenger seat. She said that he was holding her wrist and her arm with one 14arm. He tried to make her touch his penis, and she pulled away for a couple of minutes. She testified that she was afraid of getting out of the car in that bad area; she thought something worse might happen. She did not know where the taxi was located. She did not touch his penis willingly. The defendant then “grabbed” her head “and forced it down onto his penis.”

When she was asked if she resisted, she replied: “Yes.” She tried to pull herself away, but Mr. Hamdalla was too strong. She denied wanting to have oral sex (or any sexual encounter) with Mr. Hamdalla. According to the victim, Mr. Hamdalla then forced his penis into her mouth and ejaculated. His penis was in her mouth for “a few seconds.”

Then, he let go of her. She moved back as far as she could go, and Mr. Hamdalla handed her a Kleenex tissue to wipe her mouth. She wiped her mouth and kept the Kleenex. He then pulled out his GPS and asked where she wanted to go. Neither of them said a word. He dropped her off at her mother’s house. She started to give him money, but then put it back in her wallet. He did not ask for money.

The victim’s testimony was not contradicted by any other witness.

C

At the outset of our consideration of the legal precepts which govern our review for sufficiency of evidence, we note that it is clearly established that the testimony of a victim, alone, can be sufficient to establish the elements of the offense of forcible rape, even where the prosecution does not introduce medical, |fiscientific, or physical evidence to prove the commission of the offense by the defendant. See State v. Armstead, 11-1344, p. 4 (La.App. 4 Cir. 7/25/12), 98 So.3d 891, 894, writ denied, 2012-1881 (La.3/8/13), 109 So.3d 355; State v. Wells, 10-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. See also State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004.

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “After Win-ship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318, 99 S.Ct. 2781. “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id. at 318-319, 99 S.Ct. 2781 (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (emphasis added by Jackson)). “Instead, the relevant question 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 beyond a reasonable doubt.” Id. at 319, 99 S.Ct. 2781 (emphasis in original). See also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (stating: “Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt.”).

|fiIn discharging our review function, we consider “all of the evidence ” before the actual fact-finder. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the fact-finder because it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Id.

Similarly, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 06-0481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. “It is not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. at 1286. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const, art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 24 (La.App. 4 Cir. 2/24/10), 32 So.3d 999, 1015.

Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider reasonable inferences drawn from basic facts to ultimate facts. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise. See State v. Gilmore, 10-0059,7 p. 5 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 212-213. Hence only irrational decisions to convict (based upon wholly implausible evidence or testimony) by the trier of fact will be overturned. See State v. Mussall, 523 So.2d 1305, 1310 (La.1988); State v. Winston, 11-1342, pp. 7-8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 336-337.

D

Applying these precepts to the un-contradicted testimony of the victim, we find that her testimony is not implausible. Mr. Hamdalla argues only that the prosecution did not prove beyond a reasonable doubt that the oral sexual intercourse was committed without the young woman’s consent. But, of course, the victim established by her testimony, accepted by the jury, that Mr. Hamdalla was forcing her to gratify him in his vehicle which was located in a dark and isolated area, unfamiliar to her. Mr. Hamdalla began by grabbing her arm in order to force her to touch his penis. When she resisted even that contact, he then intensified the encounter through force sufficient to complete oral sexual intercourse. Clearly, any rational juror could infer that she reasonably believed that further resistance would not prevent the rape.

Because Mr. Hamdalla does not contest sufficient proof of the other essential element of the crime of forcible rape, we conclude that, 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 beyond a reasonable doubt. Thus, the evidence is sufficient to sustain the conviction.

Jsi1

In this Part, we explain why the admission of the testimony of the victim’s mother over Mr. Hamdalla’s objection was not reversible error. After reviewing of the record of the trial, we conclude that, while the trial court improperly admitted the hearsay testimony, it was merely cumulative of other admissible testimony.

A

“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801 C. Hearsay testimony is not admissible at trial unless provided for by law. See La. C.E. art. 802. Hearsay evidence is generally excluded “because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” State v. Legendre, 05-1469, p. 7 (La.App. 4 Cir. 9/27/06), 942 So.2d 45, 51. See also State v. Spell, 399 So.2d 551, 555 (La.1981).

La. C.E. art. 801 D provides several types of prior statements that, if testified to by witnesses, are “not hearsay” as long as the “declarant [also] testifies at the trial or hearing and is subject to cross-examination concerning the statement.” La. C.E. art. 801 D(l). One of these is a witness’ statement made at trial which is “[consistent with the declarant’s testimony and is one of initial complaint of sexually assaul-tive behavior.” La. C.E. art. 801 D(l)(d). This makes the “initial” [ ^complaint of a victim of sexual abuse admissible as substantive evidence. See State v. Moran, 584 So.2d 318, 323 (La.App. 4 Cir.1991).

Admissibility of a statement under La. C.E. art. 801 D(Z)(d) is a two-part test. First, the victim must testify at trial consistently with the content of the initial complaint and be subject to cross-examination. See La. C.E. art. 801 D{l). See also State v. Valentine, 95-0970, p. 6 (La.App. 4 Cir. 1/19/96), 668 So.2d 383, 387. This requirement alleviates the reliability problems inherent in ordinary hearsay, Moran, 584 So.2d at 323, as well as issues arising under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and La. Constitution Article I, Section 16. See La. C.E. art. 801D(1) cmt. e; State v. Moore, 11-0025, p. 14 (La.App. 4 Cir. 9/7/11), 75 So.3d 22, 30. If, for any reason, the victim fails to testify consistently with the alleged initial complaint, the initial complaint would be classified as hearsay. See Moran, 584 So.2d at 323.

Second, the victim’s prior statement must be an “initial complaint of sexually assaultive behavior.” See La. C.E. art. 801 D(Z)(d). “It is only the initial complaint by the victim, whether made to a family member, policeman, or other person, that is defined as non-hearsay under this provision.” La. C.E. art. 801 D(l) cmt. e. Subsequent complaints or reports about the same crime are not admissible under this provision. See Id. There are “no additional requirements as to timing or spontaneity for such a statement to be admissible.” State v. Lawrence, 98-0348, p. 12 (La.App. 4 Cir. 12/1/99), 752 So.2d 934, 942. Whether a victim’s complaint was an “initial complaint” is determined under the facts and circumstances of the case. Moran, 584 So.2d at 324. We have limited the term “initial” to its narrow literal meaning of “first” or “original.” See State v. Henderson, 607 So.2d 733, 735 (La.App. 4 Cir.1992) (testimony of mother as to daughter’s statements was inadmissible hearsay since the victim had already spoken to police and a doctor regarding the incident). See also State v. Atkins, 97-1278, p. 16 (La.App. 4 Cir. 5/27/98), 713 So.2d 1168, 1177 (testimony of detective was inadmissible hearsay when victim spoke with her brother prior to making a statement to the police); State v. Harris, 99-2845, p. 13 (La.App. 4 Cir. 1/24/01), 781 So.2d 73, 82 (testimony of aunt was inadmissible hearsay since victim’s statements to aunt followed a police interview on the matter). The “initial complaint” need not be given to any particular person or at any particular time. The initial complaint need only be comprehensible by the person hearing the complaint. Atkins, 97-1278, p. 16, 713 So.2d at 1177 (citing State v. Free, 26,267, p. 11-12 (La.App. 2 Cir. 9/21/94), 643 So.2d 767, 776).

Additionally, the report must be of “sexually assaultive behavior.” The use of the term “assaultive behavior” is not intended to restrict this exception to instances that fall within the general provision of La. R.S. 15:36, Assault. See La. C.E. art. 801 D(l)(d) cmt. e. This is a broad concept covering numerous crimes including La. R.S. 14:42.1, Forcible Rape. Id.

Generally, a trial court’s rulings on evi-dentiary issues will not be disturbed absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1138-1139 (La.1992). “A judgment or ruling shall not be reversed by an appellate court because of l^any error ... which does not affect substantial rights of the accused.” La.C.Cr.P, art. 921. See also State v. Magee, 11-0574, p. 45 (La.9/28/12), 103 So.3d 285, 318. While the article uses dramatically different language, jurisprudence recognizes the importation and application of the “harmless error” rule in this context. See State v. Maise, 00-1158, p. 8 (La.1/15/02), 805 So.2d 1141, 1147. See also La.C.Cr.P. art. 921 cmt. c. “The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The harmless error test asks “whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt.” Magee, 11-0574, p. 45, 103 So.3d at 318 (citing Chapman v. California, 386 U.S. 18, 22-23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). “The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error.” Id. at 11-0574, p. 45-46, 103 So.3d at 318 (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).

In making this determination, a reviewing court should consider “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or | ^contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” State v. Wille, 559 So.2d 1321, 1332 (La.1990) (quoting Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431). The Louisiana Supreme Court has held that, “even if testimony is inadmissible hearsay, if it is merely cumulative or corroborative of other testimony adduced at trial, then the admission of the hearsay is harmless.” State v. McIntyre, 381 So.2d 408, 411 (La.1980). See also State v. Johnson, 389 So.2d 1302, 1306 (La.1980). Cumulative testimony is, of course, testimony tending to prove the same point to which other evidence has been offered.

B

When the victim arrived at her mother’s home following the rape, she immediately telephoned the taxicab company to report the matter. During her call with the dispatcher, the victim told the dispatcher about the incident, specifying the taxicab number of the person who committed the acts, when these acts occurred, and what acts were done by Mr. Hamdalla. The initial purpose of her calling was to allow for the taxicab company to discipline Mr. Hamdalla internally for his acts. While the victim was speaking on the telephone with the dispatcher, her mother, from her bed, overheard her daughter’s conversation in the home’s living room describing the rape. The mother then went to the living room. After concluding her telephone call, the victim explained the entire matter to her mother, who encouraged her to report the rape to the police. The mother then testified to what she was told by her daughter at trial.

| 1sImportantly, at the trial — in addition to the mother — the victim testified consistently with and in more detail than the mother’s testimony and was subject to cross-examination regarding the statement. The jury also heard firsthand a tape recording of the victim’s initial report by telephone to the dispatcher.

C

The testimony of the victim’s mother regarding what her daughter told her that night was improperly admitted by the trial court. The mother’s testimony is inadmissible hearsay under La. C.E. art. 801 C and is not excepted from the general inadmissibility of hearsay by La. C.E. art. 801 D(l)(d). While the victim testified at trial consistently with the content of the initial complaint and was subject to cross examination regarding the statement, the victim’s prior statement to her mother was not an initial complaint of sexually assaul-tive behavior. The victim reported Mr. Hamdalla’s conduct to the dispatcher prior to speaking with her mother about what happened. The initial complaint regarding Mr. Hamdalla’s actions was given to the dispatcher, not the mother. The trial court erred in admitting the mother’s testimony regarding her daughter’s statements. The error, however, was harmless as the hearsay was consistent with and merely cumulative of the victim’s testimony as well as the recorded call introduced at trial. Both covered the same issue as the mother’s testimony — the victim’s recollection of what occurred the night that she was raped. Thus, the verdict was surely unattributable to the error and, on that account, it does not qualify as reversible error.

_toIH

In this Part, we turn to an explanation of our decision that the sentencing judge, who substantively complied with the legislative directive to adequately consider factors militating for and mitigating against lengthier sentences within a sentencing range, did not abuse her considerable discretion standard. After considering Judge Buras’ justification for the sentence imposed, we conclude that the maximum sentence, which was imposed upon Mr. Ham-dalla, is not outrageous and is not shocking to the conscience. Thus, we conclude from our review that the sentence is not unconstitutionally excessive.

A

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits any law from subjecting a person to excessive punishment. The excessiveness of a sentence is a question of law reviewable by this court under its appellate jurisdiction. See La. Const. Art. 5, § 10. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. This “deliberate inclusion by the redactors of the Constitution of a prohibition against ‘excessive’ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. A sentence is constitutionally excessive if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Davis, 449 So.2d 452, 453 (La.1984).

|1sThe prohibition against excessive sentences forbids their imposition by the judiciary as well as the legislature, and requires review of statutory sentencing guidelines in relation to the particular offense and offender. State v. Sepulvado, 367 So.2d 762, 766 (La.1979). “[Penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239. A trial judge is given wide discretion in the imposition of sentences within statutory sentencing guidelines. See State v. Cann, 471 So.2d 701, 703 (La.1985). See also Sepulvado, 367 So.2d at 769. This discretion has long been historically established. Dillon v. U.S, 560 U.S. 817, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010). The “imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment.” Cann, 471 So.2d at 703. Statutory sentencing guidelines vary significantly in the degree to which they grant a sentencing judge the discretion to weigh the circumstances of the offense and mete out justice to those convicted. “In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise discretion to impose sentences gradated according to the individualized circumstances of the offense and the offender.” Sepulvado, 367 So.2d at 766. This interactivity between the range of permissible statutory criminal sanctions and the individualized facts of each case creates a sliding, fact-variant spectrum for a trial judge’s discretion under each criminal statute for each particular criminal defendant. Thus, the range of discretion granted a sentencing judge in handing down a sentence fluctuates depending on the interactivity of the facts of a particular case, the permissible 11ficriminal sanctions, and the range of conduct prohibited by the particular criminal statute that the defendant is convicted of violating.

A reviewing court should not set aside a sentence imposed by a trial court absent a manifest abuse of this discretion. See State v. Batiste, 06-0875, p. 17 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820 (emphasis added). Our sentence review should strive only to correct “abuses of sentencing power” by the district judge, Sepulvado, 367 So.2d at 767, and not to attempt to impose sentences that we deem more appropriate. See State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, 608.

In reviewing a sentence for excessiveness, we ensure that the trial court took into account appropriate considerations in placing a specific defendant, when examining their specific offense, on a particular point in the range of statutorily permissible sentences. The Legislature has directed the trial courts to consider certain artic-ulable criteria contained in La.C.Cr.P. art. 894.1 when handing down their sentences, and to state those considerations and their factual basis for the record. See La. C.Cr.P. art. 894.1 C. In evaluating whether the district court has abused its broad sentencing discretion, we first examine whether the court obeyed this legislative directive. See Sepulvado, 367 So.2d at 767-768.

The primary purpose of La.C.Cr.P. art. 894.1 is not to enforce rigid and mechanical compliance with its provisions, but to ensure that there is a factual basis for the sentence imposed. See Batiste, 06-0875, p. 18, 947 So.2d at 820. See also Major, 96-1214, p. 10, 708 So.2d at 819. Exces-siveness analysis is cumulative and focuses on a combination of these factors. See State v. Lathers, 444 So.2d 96, 97 (La.App. 4 Cir.1983). “[Tjhese criteria provide guidance as to |17whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence, if the sentencing judge does indeed determine that imprisonment rather than suspension of sentence or probation is the appropriate disposition.” Sepulvado, 367 So.2d at 767-768. While the trial judge is not required to recite the entire checklist of aggravating and mitigating factors in La.C.Cr.P. art. 894.1, the “record must reflect that the judge adequately considered these guidelines.” State v. Soco, 441 So.2d 719, 720 (La.1983). See also State v. Square, 433 So.2d 104, 110 (La.1983). This requires consideration of those “circumstances militating for incarceration, but also any mitigating factors,” Davis, 449 So.2d at 454, including the offender’s personal history, prior criminal record, the nature and seriousness of the offense, and the likelihood of rehabilitation or recidivism. See Soco, 441 So.2d at 720. See also State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982); State v. Telsee, 425 So.2d 1251, 1253 (La.1983).

Importantly, La.C.Cr.P. art. 894.1 is “not an exclusive listing of factors to be considered in imposing a sentence. Any and all relevant factors can and should be taken into account by the trial court.” State v. Lanclos, 419 So.2d 475, 478 (La.1982). See also Pepper v. U.S., — U.S. -, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011). “Permitting sentencing courts to consider the widest possible breadth of information about a defendant ‘ensures that the punishment will suit not merely the offense but the individual defendant.’ ” Id. (quoting Wasman v. U.S., 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)). For example, the defendant’s truthfulness or lack thereof may be considered by the court in sentencing but is not alone a sufficient basis for the imposition of a relatively harsh penalty. See Quebedeaux, 424 So.2d at 1014. See also State v. LaFleur, 391 So.2d 445, 447 (La.1980). A judge also has discretion to hear a defendant’s allocution pre-sentencing and take this into account when determining | iRthe appropriate sentence for this defendant. La.C.Cr.P. art 871 cmt c. Sentencing judges may also consider the details of plea bargains and the details surrounding those offers as circumstances surrounding the offense. Lanclos, 419 So.2d at 478.

In order to aid the judge in comprehensively evaluating a defendant under La. C.Cr.P. art. 894.1, a “court may order the Department of Public Safety and Corrections, division of probation and parole, to make a presentence investigation.” La. C.Cr.P. art. 875. A PSI report is an excellent instrument to assist the sentencing judge in substantively evaluating the factors in Article 894.1 as well as provide us, the appellate court, with a complete record in reviewing direct and post-conviction appeals for excessive sentences. See State v. Conner, 09-1023, p. 4 (La.App. 4 Cir. 2/3/10), 30 So.3d 1132, 1135; La.C.Cr.P. art. 881.3; La. C. Cr.P. art. 877. The criminal defendant has a right to examine this report as “[fjundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interest and which has not otherwise been disclosed in open court should be called to the attention of his defendant, his attorney, or others who are acting on his behalf.” State v. Bosworth, 360 So.2d 173, 175 (La.1978) (internal quotations and citations omitted). “When, in imposing a heavy sentence, the trial court relies upon pre-sentence information which is materially false or which furnishes invalid information, the defendant must be given an opportunity to deny or explain such substantially significant misinformation.” Id. See also State v. Ray, 423 So.2d 1116, 1121 (La.1982). This is usually done through a sentencing hearing, at which time the defendant is allowed to introduce sentence-influencing factors and considerations. See Sepulvado, 367 So.2d at 769. Sentencing hearings are a helpful practice to avoid remands to determine the basis of a sentence. Id. Errors committed in pre-sentence investigations and sentencing hearings should be reviewed to determine if they caused prejudice to the defendant. State v. Gulden, 399 So.2d 194, 200 (La.1981).

If we find that the district court properly considered the sentencing criteria in La.C.Cr.P. art. 894.1, we should then determine whether the defendant’s sentence shocks the court’s sense of justice in its disproportionality as to the facts and circumstances of this crime and this defendant. See State v. Reed, 409 So.2d 266, 267 (La.1982). See also State v. Wilson, 508 So.2d 960, 963 (La.App. 4 Cir.1987); State v. Black, 98-0457, p. 8, 757 So.2d [887] at 892 [ (La.App. 4 Cir.2000) ]; State v. White, 01-134, p. 11 (La.App. 5 Cir. 7/30/01), 792 So.2d 146, 154. “[M]aximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender.” Quebedeaux, 424 So.2d at 1014. See also Soco, 441 So.2d at 720.

Sometimes, in order to more thoroughly review a maximum sentence, courts have analyzed the sentence through a comparator. See Square, 433 So.2d at 110. See also Telsee, 425 So.2d at 1254; State v. Guajardo, 428 So.2d 468, 472 (La.1983); State v. Welch, 550 So.2d 265, 266 (La.App. 4 Cir.1989); State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189-190. This |¡>nreview, however, must still only be for abuse of the trial court’s broad sentencing discretion. See State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462. An appellate court “shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” La.C.Cr.P. art. 881.4 D. “[G]reat weight must be given to [a sentencing judge’s] factual characterizations of the aggravating and mitigating circumstances justifying more severe punishment.” Sepulvado, 367 So.2d at 767. “[A] remand for resentencing is appropriate only when there appears to be a substantial possibility that the defendant’s complaints of an excessive sentence have merit.” State v. Soraparu, 97-1027 (La.10/13/97); 703 So.2d 608, 608. (internal quotations and punctuation omitted). See also Black, 98-0457, p. 9, 757 So.2d at 892.

B

Mr. Hamdalla’s sentence of eighty years of imprisonment at hard labor without the benefit of probation or suspension of sentence is within the statutory sentencing limitations. It is, however, the maximum penalty allowed to be imposed against Mr. Hamdalla, who has been adjudicated a second felony offender under La. R.S. 15:529.1, following his conviction for the crime of forcible rape.

Before imposing sentence, Judge Buras obtained a pre-sentence investigation report detailing Mr. Hamdalla’s social, employment, and criminal history as well as recommending that the trial judge sentence Mr. Hamdalla, 28 years old at the time of this conviction, to a significant period of years. The PSI | ^report was made available to Mr. Hamdalla and to the prosecutor who were afforded an opportunity to object to any material errors in the report. Mr. Hamdalla argues that the presentence investigation contained errors, specifically noting discrepancies in the information pertaining to door locks on his cab on the night in question. Counsel for Mr. Hamdalla brought this error to the attention of the Judge Buras prior to sentencing. The mistake caused no prejudice to Mr. Hamdalla. See Guiden, 399 So.2d at 200.

In making her determination, Judge Bu-ras examined the PSI and “state[d] for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.C.Cr.P. art. 894.1 C. She was thorough and considered many of Article 894.1’s factors.

1

In reviewing the factors which militate toward a sentence of lengthy incarceration, Judge Buras examined the facts contained in the pre-sentence investigation report, including Mr. Hamdalla’s extensive recent arrests, prior convictions, and pending charges including a weapons violation in Tennessee in 2003, two arrests in 2004 in Jefferson Parish for simple battery and cruelty to a juvenile, a 2006 arrest for aggravated assault in Orleans Parish, a 2007 conviction in Arkansas for possession with the intent to distribute marijuana, a 2008 conviction in Jefferson Parish for five counts of unauthorized use of a credit card, and four 2007 attempted manslaughter charges pending in St. Charles Parish.

la2Judge Buras then delved into the particular facts of some of these cases, noting the similarities in Mr. Hamdalla’s arrests and convictions. She noted that the offender was charged with simple battery in Jefferson Parish for allegedly groping and biting a woman on the face, cruelty to a juvenile in Jefferson Parish for biting a four year old child on the buttocks because the child would not eat, and aggravated assault in Orleans Parish and attempted manslaughter in St. Charles Parish for shooting at individuals two separate times from his car and, in one of the cases, at a car containing children. Judge Buras also noted that Mr. Hamdalla was charged with unauthorized use of a credit card while still on probation in Arkansas stemming from his arrest for possession of marijuana with an intent to distribute. Additionally, Mr. Hamdalla was convicted of unauthorized use of a credit card in Jefferson Parish for taking a Rolex watch, diamond rings, and credit cards from a fare in his taxi who drunkenly passed out in the backseat. Mr. Hamdalla then used the credit card at multiple stores.

Notably, Mr. Hamdalla does not factually dispute his conduct, behavior and involvement in these offenses. He only argues that the sentencing judge abused her discretion and improperly relied upon and considered previously dismissed offenses and pending felony charges in his criminal record when making her ruling on sentencing. Sentencing judges, however, may consider any and all relevant factors when making their decisions. Lanclos, 419 So.2d at 478.

Judge Buras next found that Mr. Ham-dalla was taking advantage of passengers in his cab who were not “aware as they could possibly be and ... asserting] his authority over his fares by stealing from them, and in this case, raping them.” See La.C.Cr.P. art. 894.1 B(4). She also found that Mr. Hamdalla’s assault, its aftermath, and the resulting trial caused significant emotional trauma on lathe victim, see La. C.Cr.P. art. 894.1 B(9), that forcible rape was a crime of violence under La. R.S. 14:2 B, See La.C.Cr.P. art. 894.1 B(6), that imposing a lesser sentence would deprecate the seriousness of this offense, See La.C.Cr.P. art. 894.1 A(3), that Mr. Ham-dalla was a risk to the community and would not be rehabilitated, See La.C.Cr.P. art. 894.1 A(l), and that he should be confined in an institution for the maximum allowed sentence. See La.C.Cr.P. art. 894.1 A(2). Finally, the sentencing judge also noted that Mr. Hamdalla “is and should be classified as a third offender because of the Arkansas felony as well as the Jefferson Parish felony.” The district attorney apparently elected not to prosecute Mr. Hamdalla as a third felony offender because the prosecution had not received the certified documents from Arkansas at the time of the sentencing hearing.

Also, as we already indicated, the PSI recommended to Judge Buras that she incarcerate Mr. Hamdalla at the upper end of the sentencing range. Moreover, the content of the PSI made clear that Mr. Hamdalla, who neither testified at trial nor sought to personally allocute at the time of sentencing, was not remorseful and that he took no responsibility for his criminal action in raping the young woman. Indeed, even at sentencing, Mr. Hamdalla’s counsel speculated (without any evidentiary or expert support) that both Mr. Hamdalla and his victim were “completely” unable to read each other’s intentions, thereby suggesting that the victim herself shared in any blame.

2

In considering factors that might mitigate the length of the sentence, Judge Buras considered and decided that Mr. Hamdalla did not create a risk of death or _[24great bodily harm in his actions, See La.C.Cr.P. art. 894.1 B(5), and that he did not use a dangerous weapon. See La. C.Cr.P. art. 894.1 B(10). But we importantly note that, if either of these factors had been present at the time of the commission of the offense, Mr. Hamdalla could have been prosecuted for the more serious crime of Aggravated Rape. See La. R.S. 14:42. Finally, Judge Buras also found, as a mitigating factor, that Mr. Hamdalla had no previous convictions for crimes of violence. This is an appropriate consideration and should surely not be discounted in a sentence imposed upon a second offender under the Habitual Offender Law. Cf. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. Judge Buras, however, regarded Mr. Hamdalla’s conviction for unauthorized use of a credit card to be “just as much as a robbery could be.” See La. R.S. 14:65. The sentencing judge clearly took into account the criteria set forth in La.C.Cr.P, art. 894.1.

C

Based upon this thorough justification for imposing the maximum sentence of eighty years of imprisonment at hard labor without the possibility of parole, probation, or suspension of sentence, we are satisfied that Judge Buras fully complied with the directive of Article 894.1 and customized the sentence in this matter both to the severity of this offense and to this offender. We do not find that the imposition of the maximum sentence in this particular case is outrageous and shocking to the sense of justice or that Mr. Hamdalla should not be classified as among the worst who have committed forcible rape.

1 ¾;Judge Buras did not abuse her considerable discretion, and we also conclude that Mr. Hamdalla’s sentence does not violate Louisiana’s constitutional guarantee against excessive punishment.

DECREE

The conviction of Thayer Hamdalla for forcible rape is affirmed. The imposition of the maximum sentence of eighty years at hard labor without the possibility of probation or suspension of sentence is also affirmed.

AFFIRMED.

BELSOME, J.,

Dissents with Reasons.

Ill respectfully dissent from the majority opinion. More specifically, I find that the defendant’s eighty-year sentence, imposed without benefits, is excessive.

It is well-established that La. Const, art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99) (quoting State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461). However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979 (citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987).) Courts must apply these penalties unless they are found to be unconstitutional.

A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly disproportionate to the ^severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676; State v. Bonanno, 384 So.2d 355, 357 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979 (quoting State v. Lobato, 603 So.2d 739, 751 (La.1992)).

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 2002-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

In reviewing a claim that a sentence is excessive, an appellate court must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239. See also State v. Bonicard, 98-665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

The defendant argues that receiving the maximum sentence under the multiple offender statute without benefits was unconstitutionally excessive. He contends that there were inaccuracies in the presentence investigation report, and |seven if all the crimes listed were accurate, he still is not one of the most egregious offenders. Thus, he should not have been sentenced to the maximum. I agree.

The record reflects that the trial court considered the mitigating and aggravating factors. It set out its reasons for imposing the maximum eighty-year sentence without benefit of parole, probation, or suspension of sentence, focusing on the defendant’s use of his position as a cab driver to steal from or hurt people. However, the defendant was charged with forcible rape of an adult.

Unlike the circumstances in other cases where the defendants have received the maximum sentence, the defendant in this case could not have been charged with aggravated rape, and the case did not involve minor victims. See State v. Charles, 626 So.2d 404 (La.App. 4 Cir.1993); State v. Jackson, 597 So.2d 1188 (La.App. 5 Cir. 1992); State v. Carter, 04-482 (La.App. 5 Cir. 10/26/04), 888 So.2d 928, 939; and State v. Adkins, 31,300 (La.App. 2 Cir. 11/9/98), 721 So.2d 1090. Compare: State v. Lathers, 444 So.2d 96 (La.1983), where the Louisiana Supreme Court found that imposition of the maximum sentence of forty years imprisonment at hard labor, all to be served without benefit of parole, probation or suspension of sentence, was grossly disproportionate to similar cases and was excessive. In Lathers, the defendant was charged with aggravated rape and found guilty of the responsive verdict of forcible rape of the victim, who was not physically harmed by means other than the rape itself. See also State v. Telsee, 425 So.2d 1251 (La.1983), the Supreme Court noted that “generally the sentences for forcible rape which have been reviewed by this Court reflect a range of sentences from ten to twenty-five years at hard labor, with parole excluded for periods of two to eight years.”

Here, as in Lathers, the victim suffered no apparent physical or emotional trauma. Her life was not threatened nor was a weapon used. She testified that she did not want to press charges; however, she did not want him to be able to do this to someone else. While I agree that the seriousness of the offense warrants a considerable sentence, these facts do not warrant the maximum sentence without any chance of parole. Even considering the defendant’s criminal history, the maximum sentence without parole is disproportionately severe in view of the circumstances of this case and the sentences imposed in other comparable and more severe cases involving similarly situated defendants. See Charles, supra, and Carter, supra.

The court’s eighty-year sentence without benefits was grossly disproportionate to the severity of the crime, and constitutes an imposition of needless pain and suffering. It shocks the sense of justice and is excessive under these circumstances. Accordingly, I would find that the trial court abused its sentencing discretion, vacate the eighty-year sentence without benefits, and remand the case for re-sentencing. I concur in the majority opinion in all other respects.

      . We have, as we always do, conducted an examination of the record for errors patent. See La.C.Cr.P. art. 920(2). We have not detected any such errors.

      . The prosecution bears the burden of proving harmless error as they were the beneficiary of the error. State v. Lewis, 12-1021, pp. 15-16 (La.3/19/13), 112 So.3d 796, 805.

      . A sentence is the penalty imposed by the court upon a verdict of guilty. Sentence shall be pronounced orally in open court and recorded in the minutes of the court. See La. C.Cr.P. art. 871.

      . For example, compare, e.g., State v. Rayfield, unpub., 10-0421, p. 4-7 (La.App. 4 Cir. 12/22/10) with Conner, 09-1023, p. 4-5, 30 So.3d at 1134-1135.

      . A comparator is any of various instruments for comparing a measured property of an object with a standard. In this case, the sentence imposed, measured in years and other factors such as eligibility for parole, probation, and suspension of sentence, would be compared for excessiveness by examining the disposition of cases of similar crimes by the same court or other courts and creating a broad permissible range of sentences.

      . Resorting to a comparator in evaluating ex-cessiveness in sentences imposed under habitual offender proceedings before finding that the sentence is shocking based upon Article 894. l's factors lacks some logical force because the consideration of comparators as part of an element dealing with customization of a sentence for this offender and this offense seems to be opposed to the concept that there are inherent factual variances that come with each criminal trial, offender, and offense. A comparator, it seems, is more appropriately utilized after we find that the sentencing court shockingly abused its broad sentencing discretion. The use of comparators in this context will most effectively ensure that the defendant’s sentence when reconsidered will be proportional in comparison with other similar offenders and to provide sufficiently clear parameters for the sentencing court's action upon remand, if necessary. This framework would mirror review of general damages in the civil context. See, e.g., Miller v. Lammico, 07-1352, p. 28-29 (La.1/16/08), 973 So.2d 693, 711.

      . Mr. Hamdalla's attorney at trial noted two specific errors in the pre-sentence investigation report. First, the report stated that Mr. Hamdalla pulled the victim into the front seat. This was contradicted by the victim’s testimony at trial. Second, the pre-sentence investigation stated that the doors to the cab could not be opened. There was no evidence of this at trial and was contradicted by Detective Haynes’ testimony.

      . Mr. Hamdalla, according to the sentencing hearing, declined a pretrial guilty-plea bargain by which he would plead guilty to second degree battery (a non-sex charge and thus no sex-offender registration requirement) and the prosecution would forego habitual offender proceedings in exchange for a stipulated sentence of five years confinement.

      . Before being sentenced as a multiple offender, the trial court vacated the defendant's forty-year sentence without benefits for the underlying rape, which was also the maximum sentence.

      . This Court upheld two forty-year sentences for forcible rape (one as second-felony habitual offender), with the first two years of each to be served without benefit of probation, parole, or suspension of sentence, along with a maximum twenty-year sentence for attempted forcible rape, with all three sentences to be served consecutively, where the victim was the thirteen-year-old daughter of the defendant's girlfriend.

      . The court upheld a forty-year sentence for forcible rape, twenty years of which was to be served without benefit of probation, parole, or suspension of sentence, where the victim was a fourteen-year-old female and the defendant, a first time offender, was an adult.

      . The court found that the enhanced habitual offender sentence of thirty-seven years for forcible rape (as a second felony offender) was not constitutionally excessive, noting that the sentence was mid-range, the defendant was exposed to a sentencing range of twenty to eighty years for the offense, and the sentence was supported by the record and defendant’s criminal history.

      . The court upheld the maximum forty-year sentence, without benefits for two years, where the defendant was charged with aggravated rape and convicted of the forcible rape of his girlfriend’s three daughters, all of whom were under the age of twelve.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    MIDLAND FUNDING, LLC v. Kenneth DELCORRAL.
    No. 2012-CA-1492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 2, 2013.

      Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Mia D. Etienne, Eaton Group Attorneys, LLC, Baton Rouge, LA, for Plaintiff/Appellee.
    Steven T. Richard, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

_JjThis appeal arises from a lawsuit to recover the balance owed on a VISA Card account. The defendant, Kenneth DelCor-ral (“DelCorral”), appeals a summary judgment, awarding the plaintiff, Midland Funding, LLC (“Midland”), $6,098.52 plus interest, attorney’s fees and costs. For the reasons that follow, we affirm the judgment.

On July 18, 2011, Midland filed a petition, alleging that it is the owner of all rights, title and interest in the receivable issued through Chase Bank USA N.A. (“Chase Bank”) to DelCorral, the individual account holder. It alleges that DelCor-ral is justly indebted to it in the full sum of $6,098.52, together with additional interest of 4% from July 31, 2009, until judgment, and 4% from date of judgment, attorney’s fees in the amount of 25% of the total of both principal and interest, and all court costs incurred in collecting the debt. Midland further alleges that DelCorral agreed to the interest and attorney’s fees when he opened the account. Finally, it alleges that DelCorral has defaulted and the balance remains, even though it made amicable demand on May 26, 2011.

|2In response, DelCorral raised a dilatory exception of vagueness, asserting the petition lacked sufficient facts and attached documentation to evidence the debt. The trial court overruled the exception. Thereafter, DelCorral answered the petition, denying the allegations and challenging the authenticity of Midland’s supporting documents. He also asserted the affirmative defenses of incorrectness of balance, fraud, duress, estoppel, extin-guishment, set-off and compromise.

Thereafter, Midland filed a Motion for Summary Judgment, supported by two affidavits and pertinent account documentation. The first affidavit, by Suzanne Du-monceaux, states the following: she is a legal specialist employed by Midland Credit Management, Inc. (“MCM”), the servicer of the VISA Card account on behalf of Midland; she has access to pertinent account records of MCM; and, she makes the statements in the affidavit based upon personal knowledge of those account records. Dumonceaux further attests that Midland is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to DelCorral’s Chase Bank VISA Card account 4266841138137995 (MCM Number 8539174810). She states she is familiar with the manner and method by which MCM creates and maintains its business records pertaining to the account. Du-monceaux further states that the account shows DelCorral owes a balance of $6,098.52; and that she is advised the balance will continue to accrue interest at a rate of 4.00% as an annual percentage 1 arate until judgment is entered, after which interest on the unpaid balance shall accrue as provided by law and as set forth within the terms of the judgment. Lastly, Dumonceaux attests that the statement of account attached to her affidavit is a true and correct account and/or billing statements) relating to this matter, as reflected in MCM’s records. The attached documentation included the Cardmember Agreement; a copy of the Bill of Sale that transferred ownership of the receivable from Chase Bank to Midland; and, copies of the monthly credit card statements.

The second affidavit, by Keith Sias, states that he is employed by Gregory M. Eaton, the attorney for Midland; is primarily responsible for this file; and is familiar with DelCorral’s VISA Card account. He states the matter was received by the Office of Gregory M. Eaton, Attorney at Law, on May 22, 2011, and has been continually monitored since that date. Sias states that on February 22, 2012, Midland, holder of credit issued through Chase Bank, indicated a balance due from Kenneth DelCorral, totaling $6,098.52, additional interest of 4% from July 31, 2009, plus attorney’s fees in the amount of 25% of the total of both principal and interest, and the amount due is on the DelCorral’s VISA Card # 4266841138137995.

DelCorral filed an opposition to the motion for summary judgment and a countervailing affidavit, swearing that he never executed a credit application with Chase Bank or agreed to the terms of the Card-member Agreement. He further averred that the credit card statements produced by Midland bearing his name and Ldated 01/15/08-2/14/08 through 02/15/09-03/14/09 were issued by Countrywide Bank, not Chase Bank. DelCorral swears the documents produced by Midland in support of the alleged indebtedness are not authentic or trustworthy. In conclusion, DelCorral swears that Midland is fraudulently representing to the court that he entered into a credit card agreement with Chase Bank.

Following a hearing on June 26, 2012, the trial court granted the motion for summary judgment and rendered judgment in favor of Midland.

On appeal, DelCorral asserts the trial court erred in granting summary judgment because Midland failed to establish a prima facie case. Specifically, he argues Midland failed to produce evidence of a signed contract between himself and Countrywide, and, in the absence of said contract, genuine issues of material fact remain as to how the pre-existing balance of $4,446.09 on the Chase VISA Card account summary was calculated. DelCorral contends that the calculation of principal, cash withdrawals, interest, rate of interest, late fees, finance charges, over the limit fees, and entitlement to attorney’s fees are all based on the original credit card agreement, which Midland failed to produce.

An appellate court reviews summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 15affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ...[.] The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). As to the burden of proof on a motion for summary judgment, La. C.C.P. art. 966(C)(2), provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.

| fiIn proving a claim on an open account, the plaintiff creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Sears, Roebuck and Co. v. Patricia Dennies, 03-1160, 03-1161, p. 9 (La.App. 5 Cir. 3/30/04), 870 So.2d 1080, 1084-85.

In this case, Midland established a prima facie case in the form of the affidavits and supporting documentation. The documentation identifies DelCorral as the account holder, confirms the credit terms, and verifies the account balance, the supporting monthly statements, and Midland as the current owner of the account. Du-monceaux’s affidavit verifies the records were kept in the regular course of business and the accuracy of the accounts.

Once Midland established a prima facie case, the burden shifted to DelCorral to prove the inaccuracy of the account or to prove that he is entitled to certain credits. DelCorral failed to produce any evidence to negate the evidence presented by Midland. He produced no evidence that he satisfied any part or all of the debt or that the charges on the account are inappropriate. Although he submitted a countervailing affidavit, denying that he entered into a credit agreement with Chase Bank, the affidavit does not raise a genuine issue of 17material fact that would preclude a summary judgment. Also, the fact that Midland did not produce DelCorral’s original signed credit card agreement with Countrywide is of no consequence considering Midland produced evidence that Del-Corral purchased goods using the Countrywide VISA card and made payments to the account. As per the Cardmember Agreement, the contract between the parties was perfected upon use of the card by DelCorral. See Bank of Louisiana v. Berry, 94-576, p. 5 (La.App. 5 Cir.App. 12/14/94), 648 So.2d 991, 993.

At the conclusion of the hearing, the trial court stated:

Based on the record and argument of Counsel, I’m going to grant the Motion for Summary Judgment. I find that Mr. DelCorral’s use of the card, payments made created the contract. Any sale or any transfer of balance from Countrywide to Chase, should he have had any issue with that should have been made at the time the statements began coming under the name of Chase Bank. He failed to do that and it wasn’t until this lawsuit was filed that he made any objections to the transfer from Countrywide to Chase or questioned any amounts, any payments or charges made once it became a Chase account.
Furthermore, as acknowledged by Defense Counsel[,] the sale of these debts is common and I’m not going to take a position on that. I think there’s precedent in this court as well as in the Fourth Circuit that the sale of these debts are proper and lays forth what the purchaser of the debt has to do in order to recover the balance due that they have purchased.

IsAfter reviewing the record, we find Midland presented a prima facie case in support of the motion for summary judgment. The burden of proof then shifted to Del-Corral, who failed to support it. Thus, we find no error in the trial court’s ruling.

Accordingly, for the reasons herein, the trial court judgment is affirmed.

AFFIRMED

      . Prior to the court's ruling, Midland filed a Request for Genuineness of Documents and Request for Production of Documents and attached the following: a copy of the Card-member Agreement; a copy of the Bill of Sale that transferred ownership of the receivable from Chase Bank to Midland; and copies of the monthly credit card statements.

      . The hearing took place before the effective date of La. C.C.P. art. 966(E)(2).

      . In order to clarify the conversion of the account from Countrywide to Chase, Midland had filed into the record a document generated from the internet from the source Credit Cards For People With Bad Credit Rating, which explained Countrywide's acquisition by Bank of America in 2009 and the discontinuation of the Countrywide credit cards. The source states:
      In the first quarter of 2009, Bank of America acquired Countrywide Financial. Since First USA was owned by Chase, the decision to discontinue the Countrywide credit card was made. Letters were sent to cardholders in February 2009 stating that the relationship between Countrywide and First USA has concluded and that the Countrywide credit card was now being replaced by the Chase Freedom credit card. Though this still depended on the credit worthiness of the cardholders, it didn’t leave them in confusion. They were given a month to continue using their Countrywide credit card and to redeem rewards from Countrywide's Reward Program. If they were qualified for the Chase Freedom credit card, they will be allowed to use the same account number and to transfer all remaining balances to their Chase card. No other conditions were included in this letter.
      Although the document was hearsay, DelCor-ral did not object to its introduction.