author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Donald Ray BAKER, Appellant.
    No. 49,175-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 27, 2014.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Robert W. Levy, District Attorney, Clifford R. Strider, III, Assistant District Attorney, for Appellee.
    Before STEWART, MOORE and GARRETT, JJ.
   STEWART, J.

hThe defendant, Donald Ray Baker, was convicted of two counts of cyberstalking, in violation of La. R.S. 14:40.3. A unanimous jury found him guilty as charged on both counts. He was sentenced to one year in the parish jail for the first count, and to one year in the parish jail, suspended, with two years of supervised probation for the second count. He now appeals, arguing that the evidence was insufficient to convict him of cyberstalking and that his sentences are excessive. For the reasons set forth in this opinion, we affirm the defendant’s convictions and sentences as amended.

FACTS AND PROCEDURAL HISTORY

On April 15, 2008, the defendant was charged with two counts of cyberstalking, in violation of La. R.S. 14:40.3, by bill of information. In the bill, it was alleged that the defendant “repeatedly communicated with Jay Kavanaugh via electronic mail for the purpose of harassment” between November 30, 2005, and March 28, 2007, for count one, and on March 29, 2007, for count two.

The jury trial commenced on February 25, 2013. The following evidence was adduced at trial.

Jay Kavanaugh, the state’s only witness, was an inspector and supervisor in the Criminal Investigation Division of the Ru-sten Police Department at the time of the incident. Kavanaugh testified that he knew the defendant from high school, but that he was not a friend or acquaintance of the defendant’s. Kavanaugh testified that in 2005, Kim Birch, who was previously romantically involved with the defendant, contacted him to |¡,report that the defendant was sending her threatening and harassing e-mails. On October 19, 2005, Ka-vanaugh sent the defendant an e-mail to inform him of La. R.S. 14:40.3 and to advise him not to have any further contact with Birch. The defendant continued to email Birch, and Kavanaugh consequently obtained an arrest warrant for the defendant on November 30, 2005.

The defendant was released on bail, and as a condition of his release, he was ordered not to have any contact with Birch. Soon thereafter, Kavanaugh testified that Ed Hall, a private investigator from Shreveport, contacted him to inform him that the defendant had hired him to conduct surveillance of Birch. Kavanaugh, fearful for Birch’s safety, provoked a motion to revoke the defendant’s bond. The defendant was arrested for violating his bond and held for five days without bond. The cyberstalking charges against the defendant involving Birch were ultimately dismissed per her request.

Kavanaugh testified that after the defendant’s charges involving Birch were dismissed, he received a series of unsolicited e-mails from him. In fact, he received 38 e-mails from the defendant between September 15, 2006, and March 28, 2007, and eight e-mails from the defendant on March 29, 2007. All of these e-mails were sent to Kavanaugh’s e-mail address at work. Ka-vanaugh testified that he only sent one email to the defendant, dated March 29, 2007, in which he told him not to send any more e-mails. That e-mail was sent under the direction of the district attorney’s office.

| .-¡Throughout his testimony, Kavanaugh expressed that the e-mails the defendant sent to him were harassing, threatening, irritating, and insulting based on both the content and the number of e-mails. He stated that he never lied about anything in relation to the defendant, that everything he did in the matter involving Birch was in accordance with the law and in consideration of Birch’s safety, and that he was never disciplined as a result of that matter. Kavanaugh testified that he eventually contacted the state police and asked them to investigate the matter, because he knew that the defendant was “computer savvy.” Kavanaugh was concerned that the defendant was putting things on his computer and making them appear as though he sent them. He also stated that he delayed asking the defendant to stop e-mailing him because he was fearful for Birch’s safety.

On February 26, 2013, the jury found the defendant guilty as charged on both counts of cyberstalking. The trial court ordered a presentence investigation report. On April 30, 2013, the sentencing hearing was held.

The trial court sentenced the defendant to one year in the parish jail for the first count. For the second count, the trial court sentenced the defendant to one year in the parish jail, suspended, with two years of supervised probation. As a condition of the defendant’s probation, the trial court ordered that he perform 30 eight-hour days of court-approved community service, and pay a fine of $2,000.00 plus court costs, or serve six months in the parish jail in default. The trial court stated that the defendant’s probation on count two would commence upon his release from jail on count one, but ordered the sentences to run concurrently.

|4On May 1, 2013, the defendant filed a motion to reconsider sentence. At a hearing that took place on June 21, 2013, the trial court denied the motion and clarified that the defendant’s sentences were to be served consecutively.

The defendant filed the instant appeal, asserting two assignments of error.

LAW AND DISCUSSION

Insufficiency of the Evidence

In the defendant’s first assignment of error, he argues that the evidence was insufficient to support his eyberstalking convictions. He argues that the state failed to prove that his purpose for his correspondence to Kavanaugh was to harass, and that it failed to prove that he continued to e-mail Kavanaugh after being told to cease doing so. More specifically, the defendant argues that pursuant to La. R.S. 14:40.3(B)(1) and La. R.S. 14:40.3(B)(3), his e-mails to Kavanaugh did not contain any false statements and did not threaten harm to anyone or any property.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir. 1/1-4/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La. App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. An appellate court reviewing the sufficiency of evidence in such cases must | (¡resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. State v. Sutton, 486 So.2d 471 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, supra; State v. Speed, 48,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App.2d Cir|2/13/08),7 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The fact finder is charged -with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra; State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La. App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

La. R.S. 14:40.3, Cyberstalking, provides in pertinent part:

A. For the purposes of this Section, the following words shall have the following meanings:
(1) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.
(2) “Electronic mail” means the transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.
B. Cyberstalking is action of any person to accomplish any of the following:
la(l) Use in electronic mail or electronic communication of any words or electronic communication of any words or language threatening to inflict bodily harm to any person or to such person’s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
(2) Electronically mail or electronically communicate to another person repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying, or harassing any person.
(3) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct, of the person electronically mailed or of any member of the person’s family or household with intent to threaten, terrify, or harass.
(4) Knowingly permit an electronic communication device under the person’s control to be used for the taking of an action in Paragraph (1), (2), or (3) of this Subsection.

Specific intent is the state of mind that exists when circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent need not be proven as fact; it may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Allen, 41,548 (La. App.2d Cir.11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La.12/07/07), 969 So.2d 619. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

In the case sub judice, there is no dispute that the defendant sent the e-mails to Kavanaugh. Over an eight-month period the defendant sent him |946 e-mails. After a careful review of the record, it is clear that the defendant sent Kavanaugh these e-mails for no reason other than to harass him.

The defendant asserts that he was seeking “dialogue” with the police officer responsible for his spending five days in jail. He admits that there were phrases in some of the e-mails which, if taken out of context, could be construed as threats. However, he believes that when the phrases are taken in context, it is evident that those phrases are meant in a sarcastic and mocking tone and should not have been taken literally or seriously. He also denied that any of the e-mails contained any false statements meant to threaten, terrify, or harass Kavanaugh. Since the evidence reveals otherwise, we disagree with the defendant’s assertions.

In the e-mails, the defendant accused Kavanaugh of lying during his investigation of the matter involving Kim Birch and told Kavanaugh that he was filing a complaint against him. The defendant used profane language in these e-mails, often calling Kavanaugh offensive and derogatory names and making insulting comments regarding Kavanaugh’s weight, appearance, sexual preference, intelligence, and professional competence. Even if the defendant was seeking “dialogue,” the manner in which he chose to seek it was inappropriate and constituted harassment. Some excerpts from the numerous e-mails that demonstrate the foul and demeaning language used to harass Kavanaugh include:

Grow up. Lose considerable weight. Make us puke when you don’t. Learn to be a professional. And if you don’t get off my back you won’t like the circumstances.
You’re acting as an ignorant local retard.
F — k you Jay. You adolescent piece of s — t.

JjThis matter is going to be even bigger than your custom-made underwear. Do you buy sheets and then have your Mama fashion?

How much do you pay a hooker to even wipe your a — s?
Word up jay. Keep f — king with me. You’ll lose. Guaranteed.

The testimony and evidence presented at trial, when viewed pursuant to the Jackson standard in the light most favorable to the prosecution, was sufficient to support the cyberstalking convictions. The high volume of e-mails alone constitutes harassment. Further, the insulting, degrading, and arguably threatening nature of the emails, and the defendant’s motive further support the convictions. As the trier of fact, the jury had the discretion to accept or reject all or part of any testimony, to decide how much weight to give to a witness’s testimony, and to determine what is credible and what is not credible while performing its duty and reaching its conclusions. State v. Adams, 49,053 (La. App.2d Cir.5/14/14), 139 So.3d 1106. This evidence was sufficient for the jury to infer, as they did, that the defendant sent the e-mails, both before and after Kava-naugh instructed him to stop, intentionally for the purpose of harassing Kavanaugh. Furthermore, the state has proven the essential elements of the crime of cyber-stalking beyond a reasonable doubt. A thorough review of the evidence does not support the defendant’s position that the state failed to prove that the purpose of his correspondence to Kavanaugh was to harass him.

Therefore, this assignment of error is without merit.

| riExcessiveness of the Sentence

Arguing that his sentence is excessive in his second assignment, the defendant asserts that he is “hardly the worst of offenders and this is far from the worst of offenses.” He further argues that the consecutive nature of the sentences was unconstitutionally harsh and excessive.

The test for reviewing an excessive sentence claim is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,-350 (La.App.2d Cir.8/13/08), 989 So.2d 267. There is no requirement that specific matters be given any particular weight at 112sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. I, § 20 if it is grossly disproportionate to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d 11/1/06), 942 So.2d 658, writ denied, 2006-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 2006-2781 (La.6/22/07), 959 So.2d 494.

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, 11sthe terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (LaApp. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Johnson, 42,323 (La.App.2d Cir.8/15/07), 962 So.2d 1126. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. Id. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant poses an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain. Id.; State v. Barnett, 46,303 (La.App.2d Cir.5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239. The failure to articulate specified reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. See State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898, citing State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writ denied State ex rel. Hampton v. State, 04-0834 (La.3/11/05), 896 So.2d 57, writ denied, State ex rel. Hargrove v. State, 04-2380 (La.6/3/05), 903 So.2d 452.

La. R.S. 14:40.3(0(1) provides that a person convicted of cyberstalking shall be fined not more than $2,000.00, or imprisoned for not more than one year, or both.

At the defendant’s sentencing hearing, the trial court stated that it had reviewed the presentence investigation report, and that it had reviewed the sentencing guidelines pursuant to La. C. Cr. P. art. 894.1. The trial court reviewed the defendant’s criminal history, and noted that the 59-year-old defendant had recently been convicted of four counts of improper telephone communications. It also stated that there would be an undue risk that the defendant would commit another crime during a period of suspended sentence or probation, that he is in need of correctional treatment in a custodial environment that could be provided most effectively by his commitment to an institution, and that any lesser sentence would deprecate the seriousness of his crime.

The trial court expressed that the defendant’s actions had caused mental harm to several individuals, including Kavanaugh, Birch, and law enforcement personnel. It further labeled the nature of Baker’s actions as humiliating, harassing, embarrassing, painful, and hurtful.

After a careful review of the record, we find that the trial court adequately considered the facts of this case, the information in the presentence investigation report, and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. Even though the trial court did not specifically | ^provide reasons for ordering that the sentences be served consecutively, we find that the trial court did not abuse its discretion in doing so because the record provides an adequate factual basis to support the imposition of consecutive sentences in this case. See State v. Boudreaux, supra. The facts of this case coupled with the defendant’s propensity to commit crimes similar to the instant offense indicate that the sentence imposed by the trial court does not shock the sense of justice, nor is it disproportionate to the severity of the offense. The sentences imposed were adequately tailored to this defendant and this particular offense. This assignment of error is meritless.

Error Patent Review

We have reviewed the record for error patent, and note that the trial court failed to inform the defendant of the two-year delay for the filing of post-conviction relief pursuant to La. C. Cr. P. art. 930.8(C). The failure to so advise is not grounds to vacate the sentence and remand for resentencing. State v. Cooper, 31,118 (La.App.2d Cir.9/23/98), 718 So.2d 1063, writ denied, 99-0187 (La.5/14/99), 741 So.2d 663. This court hereby notifies the defendant that he has two years from the date that his convictions and sentences have become final under La. C. Cr. P. art. 914 or 922 to file any applications for post conviction relief. State v. Parker, 49,009 (La.App.2d Cir.5/15/14), 141 So.3d 839; State v. McNeil, 42,231 (La.App.2d Cir.6/20/07), 961 So.2d 554.

Additionally, as a condition of his probation, the defendant was ordered to pay a fine of $2,000.00 plus court costs, or in default thereof to |16serve six months in the parish jail. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Taylor, 43,901 (La.App.2d Cir.2/25/09), 3 So.3d 677, writ denied, 2009-0687 (La.12/11/09), 23 So.3d 911; State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992). The record indicates that the defendant is indigent, as he is represented on appeal by the Louisiana Appellate Project. Therefore, we vacate the portion of the sentence providing for additional jail time in the event of default of payment of the fíne amounting to $2,000, and court costs.

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed. We vacate the portion of the sentence providing for additional jail time in the event of default of payment of the fíne and affirm the sentence as amended.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Johnny CLEVELAND, Plaintiff-Appellee v. Nathaniel “Roy” WILLIAMS, Defendant-Appellant.
    No. 49,664-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 8, 2014.
    Nathaniel “Roy” Williams, Defendant/Appellant, In Proper Person.
    Johnny Cleveland, Plaintiff/Appellee, In Proper Person.
    Merietta S. Norton, Baton Rouge, for Appellee, Louisiana Secretary of State.
    Before WILLIAMS, STEWART, DREW, MOORE and PITMAN, JJ.
   WILLIAMS, J.

h Nathaniel “Roy” Williams appeals from a judgment of the Fifth Judicial District Court, Richland Parish, the Hon. Glynn Roberts presiding, disqualifying Williams as a candidate for Chief of Police of the Town of Delhi, Louisiana. For the following reasons, we reverse.

FACTS

Qualifying for this office commenced on August 20, 2014, and ended on August 22, 2014. Three persons qualified as candidates: Roy Williams, Johnny Cleveland, and Ken Harrell. On August 28, 2014, Mr. Cleveland filed a petition in the district court objecting to Mr. Williams’ candidacy on the grounds that Williams was not domiciled within the limits of the Town of Delhi for one year prior to qualification.

The matter was tried in the district court on September 2, 2014. Williams and Cleveland, both appearing pro-se, were the only witnesses.

Williams explained that he owns a home at 772 McHand Drive, an address outside of the town limits of Delhi, and has owned that home for twenty-one years. He has lived there with his wife and child, and until 2012, he kept his homestead exemption on that home. However, he argued that he has been domiciled at 127 Robinson Lane — a home within the Delhi town limits — for more than a year prior to qualifying.

Williams does not own the home at 127 Robinson Lane; the home is owned by Mr. Edward Cowart. Williams explained:

[⅞1 have a gentleman that’s let me stay there for free. We had made a verbal agreement, if I lived in the home and I worked on it and fixed the things that were wrong in there, he would not charge me any rent.

However, Williams testified that his wife and fifteen-year old child “stay [at 772 McHand Drive] most of the time” although “they come and stay with me [at Robinson Lane] sometimes” and that his child’s address at school had been changed to the Robinson Lane address “right after the first school started.”

After 2012, Williams no longer claimed a homestead exemption on his McHand Drive home; he testified:

I knew I was going to run for chief of police and I knew that I had property outside of the city limits. I couldn’t claim homestead exemption on it.

He does not claim a homestead exemption on any property.

Williams testified, and documentary evidence established, that he registered to vote at the Robinson Lane address on August 14, 2013, and Williams’ drivers’ license — which was issued on October 10, 2013 — also shows the Robinson Lane address. On August 28, 2013, Williams filed a change of address with the U.S. Postal Service changing his address from the McHand Drive address to the Robinson Lane address. Williams said that he moved his land line telephone service from the McHand address to the Robinson Lane address “about two weeks” prior to the trial of this matter.

Mr. Cleveland testified that he lives in the town limits of Delhi on Teer Street, a street that intersects Robinson Lane. Cleveland said that he had “occasionally” seen Mr. Williams’ car at the Robinson Lane home, that | s“it’ll be there and then it leaves” and that “he comes and he does things and he leaves.” When asked if he had ever seen Williams’ car at the Robinson Lane home overnight, Cleveland explained: “[T]he only time I seen it over there at night was about a week ago.” Cleveland said that no one else stayed in the Robinson Lane home.

Additional documentary evidence was introduced along with the parties’ testimony. Electricity bills from Entergy showed that electric service in Mr. Williams’ name was established at the Robinson Lane address in July 2013. Those bills showed that some electricity was used at this address in the succeeding months, although in many months the usage was minimal; the highest usage was in the warmer months of the year.

Records that show water usage for 127 Robinson Street were also admitted into evidence. The records show that service was established at the address in July 2013 and that 22,000 gallons of water were used that month. Like the electrical usage, the water usage was also sporadic, and in several months the records reflected zero usage. Mr. Williams explained that “At one time, Delhi had some problems with their meters. Their meters were malfunction[ing].” He also explained that he did not stay every night in the Delhi home, stating that he sometimes stayed at his residence outside of Delhi to prevent theft of the personal property that he kept there.

After hearing all of this evidence, the trial judge found that Williams was not domiciled in the Town of Delhi for the year prior to qualifying. The judge explained:

I have to determine that I believe your domicile is McHand, which is outside the city limits. And there are several reasons |4for that. Is the fact that you’ve lived there for twenty or twenty-one years. That’s where you raised your family. I believe that your wife and daughter pretty much lives there permanently. I know you’ve done a lot of things with the intent to qualify and run for office. You’ve changed the registration at school to show that she is a domiciliary of Robinson. You’ve changed your drivers’ license. All of these things. But I don’t believe that you live there permanently. And I think that the change to Robinson — and pretty much, you’ve admitted was to be able to qualify and run for chief of police. And I appreciate you being honest. And know obviously you’ve received legal advice. Lawyers have told you because you’ve done everything. And that’s probably good. But my problem is, I don’t think that you can change your domicile to inside if your sole purpose is to make all these changes so that you can qualify to run. I think the whole thing is I’ve got to look at where are you physically present and what is your intention. Your intention wasn’t to go to 127 Robinson and live. Your intention was to get a house there, establish a residence so you could qualify. And the house is not owned by you. You don’t pay rent. It’s still owned by Mr. Cowart. When I factor all of that in as much — and I think elections ought to be open. We ought to let everybody in and run and let the people settle it. But the law says these are the qualifications. You’ve got to have had a domicile. Your domicile must have been there for the last year. And using what I understand to be the legal definition of domicile is physical presence plus intent. I’ve got to say no. You hadn’t done that. So I’m going to rule in Mr. Cleveland’s favor....
The trial judge signed a judgment disqualifying Williams as a candidate on September 2, 2014, at 10:45 a.m. Williams made a timely motion for appeal, and the record lodged in this Court on Friday, September 5, 2014, at 9:51 a.m.
DISCUSSION
On appeal, Mr. Williams argues that the trial court erred in finding that he was not actually domiciled at the Robinson Lane address.
La. R.S. 33:385.1 provides, in part:
A. Except as otherwise provided in this Section, an elected chief of police of a municipality shall be an elector of the | .^municipality. At the time of qualification as a candidate for the office of chief of police, he shall have been domiciled for at least the immediately preceding year in the municipality^]
An action objecting to the candidacy of a person for office may be brought when the person does not meet the qualifications for the office he seeks in the primary election. La. R.S. 18:492(A)(3). In Russell v. Golds-by, 2000-2595 (La.9/22/00), 780 So.2d 1048, 1051, the supreme court explained:
In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Messer v. London, 438 So.2d 546 (La.1983). The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679 (La.1991).
See also Landiak v. Richmond, 2005-0758 (La.3/24/05), 899 So.2d 535. Likewise, the court further explained in Russell:
[W]e note it is well settled that residence and domicile are not synonymous, and a person can have several residences, but only one domicile. La. Civ. Code art. 38; Messer, 438 So.2d at 547; Autin v. Terrebonne, 612 So.2d 107 (La. App. 1st Cir.1992). A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain. The question of domicile is one of intention as well as fact, and where it appears domicile has been acquired in another place, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by positive and satisfactory proof of establishment of a domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile. Pattan v. Fields, 95-1936 (La.App. 1st Cir.1995), 669 So.2d 1233. Absent declaration to change domicile, proof of this intention depends upon circumstances; there is a presumption against change of domicile. Messer, 438 So.2d at 547; Herpin v. Boudreaux, 98-306 (La.App. 3d Cir.3/5/98), 709 So.2d 269, writ denied, 98-0578 (La.3/11/98), 712 So.2d 859.

Russell v. Goldsby, supra, at 1051.

| (¡In election cases as in other matters, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings when such findings are based on determinations regarding the credibility of witnesses. Bradley v. Theus, 28,714 (La.App.2d Cir.2/20/96), 668 So.2d 1304, 1308, writ denied, 96-0469 (La.2/26/96), 668 So.2d 355.

We conclude that the district court erred in its determination that Mr. Williams was not domiciled within the Town of Delhi for the year prior to his qualification for the office of Chief of Police, and specifically we find that the district court erred in its apparent conclusion that the challenger established a prima facie case that Williams was domiciled outside of Delhi.

Mr. Williams was domiciled in a residence on McHand Drive outside of Town limits for approximately twenty years. However, for the year prior to the qualifying period, Mr. Williams took the steps he needed to take to establish a new domicile within Delhi to run for Chief of Police.

First, Mr. Williams secured a residence within the town. The residence was in need of repair, and Williams avoided a rent obligation by agreeing to repair the home in exchange for the right to live in the residence. Second, Williams established electric and water service at this home. Although the various utility records demonstrate sporadic usage, the evidence in this record does not prove the usage to be inconsistent with the habitation of the home as described by Williams. Third, Williams changed his addresses for postal mail, voter and school registration. Fourth, and significantly, Williams chose to forbear the homestead exemption on the property that he owned outside of Delhi, a choice that caused him to pay | ^additional taxes. Because of its cost, that choice is an important factor in determining where a person is actually domiciled.

These are all relevant elements to the determination of domicile, Landiak, supra, and all of the elements — especially the documentary evidence — are in favor of finding that Williams was domiciled in Delhi. A person may change his domicile in order to qualify for a political office so long as that change is genuine and a change in fact, not a fiction to avoid the domicile requirement for qualification. The challenger to Williams’ candidacy failed to present a prima facie case that Williams was not domiciled in Delhi, and the burden of producing evidence never shifted to Williams. Indeed, the “actual state of the facts,” as explained in Landiak, supra, and evidenced by Williams’ conduct, shows that Williams was domiciled in Delhi for the year prior to this election.

Accordingly, the judgment of the district court is hereby reversed at appellee’s cost, and Mr. Williams is reinstated as a candidate for the Chief of Police for the Town of Delhi.

REVERSED.

      . The petition was in the form of a letter to the Richland Parish District Attorney but was filed with the clerk of the district court and treated as a petition objecting to Williams’ candidacy.

      . Williams also owns an unimproved lot within the town limits.


author: GARRETT, J.

text:
    Jeffery THEBEAU, Plaintiff-Appellee v. Richard Matthew SMITH, Defendant-Appellant.
    No. 49,665-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 8, 2014.

      Campbell, Campbell & Marvin by John Campbell, for Appellant.
    R. David Harvey, for Appellee.
    Before BROWN, WILLIAMS, CARAWAY, MOORE and GARRETT, JJ.
   GARRETT, J.

| Richard Matthew Smith appeals a trial court judgment declaring him ineligible to run for mayor of Springhill, Louisiana. For the following reasons, we affirm,

FACTS

On August 22, 2014, Smith filed a notice of candidacy for the office of mayor of the City of Springhill, Louisiana, in Webster Parish. Smith listed a domicile address of 2008 South Arkansas Road in Springhill. On August 29, 2014, Jeffrey Thebeau, a resident of Springhill who was registered to vote there, filed the present suit contesting Smith’s qualifications to run for mayor. Thebeau alleged that Smith has not been a resident of or domiciled in Springhill for at least a year prior to filing to run for office there. Thebeau claimed that Smith was domiciled in and resided at 9730 Hwy. 159 in Shongaloo, Louisiana, and provided detailed allegations in support of his contentions.

The trial court heard the matter on September 4, 2014. Thebeau testified that he was a resident of Springhill and was registered to vote there. He is a plumber and did work at a house on Highway 159 in Shongaloo in 2013. He understood that the house was actually owned by Smith’s mother, Ginger Smith. Thebeau was paid for the work with a check on Ginger Smith’s account. In April and May 2014, Thebeau did more plumbing work on the Shongaloo house and stated that Smith was present during the work. Smith directed the work and told Thebeau that he lived in the house with his mother. He had a room in the house and showed The-beau some of his ^personal belongings he had in his room there. Smith paid The-beau cash for the work done in 2014.

Melanie Smith, the Registrar of Voters for Webster Parish, testified at the hearing. She stated that the voter registration records show that Smith first registered to vote in 2003, and listed his address as the residence in Shongaloo. On August 22, 2014, Smith submitted a change of address claiming he resided at the house in Spring-hill.

Edward Luckette, manager of the Boucher and Slack Home Center in Springhill, testified that on February 13, 2014, Smith submitted a credit application to the business listing his residence and mailing address as the house in Shongaloo. On August 22, 2014, Smith changed his address on the account to a post office box in Springhill.

Myrna Leggett, office manager at Pulley Construction, testified that Smith submitted a job application and resume to the business on February 20, 2014. These documents listed his address as the residence in Shongaloo.

Curtis Calton, a plumber who works with Thebeau Plumbing, testified that he accompanied Thebeau as they worked on the residence in Shongaloo on two separate occasions. He stated that Smith was present while they performed plumbing work in 2013 and 2014. In 2013, Smith said he lived at the residence. According to Calton, in 2014, Smith did not indicate that this had changed. Smith never indicated that he lived anywhere other than the Shongaloo residence.

|3In connection with all of the above testimony, the plaintiff also introduced numerous exhibits which included notarized documents executed by Smith in December 2011, attesting that his domicile was in Shongaloo; another document filed with the Louisiana Secretary of State as recently as November 2013, showing the Shonga-loo address; Smith’s signed 2003 voter registration application listing the Shonga-loo address; the 2014 credit application with Boucher and Slack reflecting the Shongaloo address; Smith’s resume reflecting the Shongaloo address; and the February 2014 employment application containing the Shongaloo address.

At that point, Thebeau rested his case. Smith moved for a directed verdict, arguing that Thebeau did not establish the geographic boundaries for voting for may- or of Springhill. Smith argued that, without establishing that Smith could not have voted for mayor of Springhill while he resided in Shongaloo, the plaintiff had failed to prove his case. Thebeau asked the court to take judicial notice that “Shongaloo is clearly not Springhill.” The trial court stated that the registrar of voters testified that, prior to August 22, 2014, Smith was never registered to vote in Springhill. The court concluded that, because Smith was not registered to vote in Springhill, he could not vote in the race for mayor of Springhill. The trial court denied the motion for directed verdict and Smith presented his defense.

Ginger Smith, the mother of Smith, testified on his behalf. She stated that she had lived at the residence in Shongaloo all of her life. She was married to Smith’s father, but they divorced when Smith was four or five years old. Smith went to live with his father and his grandmother at the | residence in Springhill, although Ms. Smith had domiciliary custody. The house in Springhill, at issue in this case, is owned by Smith’s grandmother, Jean Smith. Ginger stated that Smith does not own a home. He has a room at the Springhill residence and spends a lot of time there. When he is not at the house in Springhill, he stays with her at her residence in Shon-galoo. Ms. Smith testified that Smith helps her farm the acreage associated with her Shongaloo residence. Smith also has a construction company. The business is incorporated and records with the Louisiana Secretary of State list the Shongaloo address as the official address of the business. Ms. Smith stated that she helps her son with the business by lining up his jobs.

Jean Smith, Smith’s grandmother, testified that Smith has stayed at her house in Springhill for a considerable amount of time since he was a child. When he is not staying at her house, he stays with his mother in Shongaloo. Smith’s grandmother testified that Smith spends more time at her house than he does with his mother.

Smith testified that he lives at his grandmother’s house in Springhill and has lived there most of his life. He considers his grandmother’s house his home. He acknowledged that previously, his voter registration and driver’s license listed his address as his mother’s house in Shonga-loo. He stated that he changed these addresses on August 22, 2014, in anticipation of running for mayor of Springhill. When asked about those changes coinciding with his attempt to qualify to run for mayor, Smith said, “I’ve been a very busy man.” Smith stated that he formed a corporation for his construction business using his mother’s address in Shongaloo as the | ¿address for the corporation. He had listed his mother’s house in Shongaloo as his address on some bank accounts, but had recently acquired a post office box in Springhill for those bank accounts.

At the end of the hearing, the trial court issued an oral ruling in open court. It is clear from the record that the trial court had familiarized itself with all of the applicable statutes and jurisprudence regarding election contests and issues pertaining to domicile prior to the hearing. It is also clear that the trial court paid close attention to the testimony and asked its own questions for clarification. The trial court ruled that Smith did not meet the qualifications to run for mayor of Springhill. The court recognized that a person may have more than one residence and observed that Smith split his time almost evenly between his mother’s house in Shongaloo and his grandmother’s house in Springhill. The court observed that the essential question was Smith’s domicile for the year preceding his filing to run for office. The trial court found that Smith was not domiciled in Springhill stating:

I don’t believe that you were domiciled in Springhill for twelve months preceding this election. I believe that your primary residence, as reflected in your banking documents; as reflected in your secretary-of-state documents; as reflected in your Boucher and Slack credit application; as reflected by the fact that your driver’s license had Highway 159 on it; your voter registration had Highway 159 on it, all up until August the 22nd.... I think you made all those changes for the purposes of running and I don’t think you were domiciled at the Springhill address for the one year immediately preceding, so, therefore, it’s the ruling of this court that you are disqualified as a candidate for the Springhill mayoral election.
Smith appealed the trial court ruling.

|.LEGAL PRINCIPLES

The qualifications for mayor are set forth in La. R.S. 38:384 which provides:

The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.

A candidate sets out his qualifications in the initial filing of notice of candidacy under La. R.S. 18:461. When the qualifications include a length of domicile requirement, the candidate shall meet that qualification notwithstanding any other provision of law to the contrary. La. R.S. 18:451; Morton v. Hicks, 46,991 (La. App.2d Cir.9/28/11), 74 So.3d 268, writ denied, 2011-2140 (La.9/30/11), 71 So.3d 297. A qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote. La. R.S. 18:1401(A). An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on specific grounds which may include that the defendant does not meet the qualifications for the office he seeks in the primary election. See La. R.S. 18:492.

Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. Landiak v. Richmond, 2005-0758 (La.3/24/05), 899 So.2d 535; Russell v. Goldsby, 2000-2595 (La.9/22/00), 780 So.2d 1048. It follows that, when a particular domicile is required for candidacy, the burden of showing lack of 17domicile rests on the party objecting to the candidacy. Landiak v. Richmond, supra. Further, a court determining whether the person objecting to candidacy has carried his burden of proof must liberally construe the laws governing the conduct of elections as to promote rather than defeat candidacy. Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Landiak v. Richmond, supra.

La. R.S. 18:451, relative to qualifications of candidates, specifically requires that when the qualifications for an office include a residency or domicile requirement, a candidate shall meet the established length of residency or domicile. As is evident from the use of the word “shall” in the above statute, the requirement is mandatory. Landiak v. Richmond, supra.

Although a plaintiff challenging a candidate’s qualifications bears the burden of proving that the candidate fails to meet the requirements, once the party bearing the burden of proof has established a pri-ma facie case, the burden shifts to the opposing party to present sufficient evidence to overcome the other party’s prima facie case. Morton v. Hicks, supra.

The terms “residence” and “domicile” are legal terms that are not synonymous. A person can have several residences, but only one domicile. Domicile is an issue of fact that must be determined on a case-by-'case basis. Landiak v. Richmond, supra.

Louisiana case law has traditionally held that domicile consists of two elements, residence and intent to remain. Determination of a party’s intent to change his or her domicile must be based on the actual state of the facts, | «not simply on what the person believes them to be. Landiak v. Richmond, supra.

A person’s domicile is the place of his habitual residence. La. C.C. art. 38. A person may reside in several places but may not have more than one domicile. La. C.C. art. 39. Of course, domicile may change. According to La. C.C. art. 44, domicile is maintained until acquisition of a new domicile. A natural person changes domicile when he moves his residence to another location with the intent to make that location his habitual residence. La. C.C. art. 45 provides that proof of one’s intent to establish or change domicile depends on the circumstances. See Morton v. Hicks, supra.

The case law regarding domicile reveals that Louisiana courts commonly consider a number of different factors when trying to determine domicile in fact. Since domicile is generally defined as residence plus intent to remain, a party’s uncontroverted testimony regarding his intent may be sufficient to establish domicile, in the absence of any documentary or other objective evidence to the contrary. The same might be said when a person specifically declares his intent pursuant to La. C.C. art. 45. However, in the absence of a formal declaration, when documentary or other objective evidence casts doubt on a person’s statements regarding intent, it is incumbent on courts to weigh the evidence presented in order to determine domicile in fact. Otherwise, the legal concept of domicile is meaningless and every person would be considered legally domiciled wherever he says he is domiciled. Landiak v. Richmond, supra. Absent declaration to change domicile, proof of this intention depends on the Iflrircumstances; there is a presumption against change of domicile. Russell v. Goldsby, supra. Some of the types of documentary evidence commonly considered by courts to determine domicile in fact include such things as voter registration, homestead exemptions, vehicle registration records, driver’s license address, statements in notarial acts, and evidence that most of the person’s property is housed at that location. Obviously, the more of these items presented by a party opposing candidacy in a given case to show lack of domicile in the district, the more difficult it will be for the candidate to overcome the plaintiffs evidence. Landiak v. Richmond, supra.

The district court’s factual findings regarding domicile are subject to manifest error review. In order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Morton v. Hicks, supra.

DISCUSSION

In his appeal, Smith contends that The-beau never proved that Smith was not qualified to vote in the election for mayor of Springhill prior to the time he changed his address. Smith argues that the registrar of voters for Webster Parish did not state that Smith would be ineligible to vote in that election if he maintained his voter registration in Shongaloo. Smith also | ^contends that the trial court erred in failing to find that he was domiciled in Springhill. These arguments are without merit.

In connection -with Smith’s motion for a directed verdict, the trial court considered the argument that Thébeau failed to prove the geographic boundaries for the Springhill mayoral election. The trial court noted that prior to his change of address to Springhill, which occurred on the date of qualifying for office, Smith listed his address as his mother’s house in Shongaloo for all important documents. Smith’s original voter registration application made in 2003 listed the Shongaloo address. As argued by Thebeau’s counsel below, “Shongaloo is clearly not Spring-hill.” The lower court recognized that Shongaloo and Springhill are separate municipalities. The evidence adduced by the plaintiff proved that the defendant was not eligible to vote in Springhill. Smith presented no evidence that he was a valid elector in Springhill while he was domiciled in Shongaloo. We find no error in the trial court decision rejecting Smith’s argument on this issue.

Further, the trial court did not err in finding that Smith was not domiciled in and did not reside in Springhill for the year preceding seeking mayoral office. As explained above, the plaintiff introduced numerous documents and exhibits which clearly showed that Smith’s domicile had been in Shongaloo for a significant period of time prior to August 22, 2014. There was ample objective evidence adduced in this case to support the trial court’s decision to reject the self-serving and unsupported testimony presented by the defendant and his relatives that the defendant’s domicile was allegedly in Springhill. As stated by the trial court, Smith’s driver’s Inlicense, voter registration, bank accounts, and corporate address were all in Shongaloo for many years preceding his notice of candidacy. The facts of this case are distinguishable from those in Russell v. Goldsby, swpra, urged by Smith. In Russell, the defendant, who had been may- or of Amite since 1984, was met with a challenge to his candidacy in 2000, on grounds he now lived outside the town limits. Evidence in Russell showed that the defendant had a residence in Amite where he stayed some of the time. He had a homestead exemption on the property and had always claimed that residence as his domicile. Although he had another residence outside the town limits, where he stayed frequently, he never indicated an intent to change his domicile and he still resided at the house in the town limits a portion of the time.

In the present case, the evidence shows that for the year preceding filing to run for mayor of Springhill, Smith was domiciled in Shongaloo. The statute requires both domicile and residence in the municipality for the preceding year before seeking the office of mayor. The trial court was not manifestly erroneous in finding that Smith was ineligible to be a candidate for mayor. The evidence adduced at the hearing, coupled with the documentary evidence, clearly supports the ruling made below.

| ^CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court disqualifying Richard Matthew Smith as a candidate for the office of mayor of Springhill, Louisiana. Costs in this court are assessed to Richard Matthew Smith.

AFFIRMED.

      . We note that the trial court mentioned in his ruling that no testimony was adduced concerning where the defendant attended school. In our review of the exhibits, we note that the 2014 job application submitted by the defendant shows that he graduated from Shongaloo High School in May 2002. We also note that on his resume he lists himself as an owner/operator of "S & S Farms” in Shongaloo and describes extensive remodeling activities undertaken at the farm house. Again, the documentary evidence casts doubt on the defendant’s self-serving testimony and provides further support for affirming the decision made by the trial court.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, BOARD OF ETHICS, Plaintiff-Appellant v. Simmie T. “Slim” BROWN and the Hon. Ann B. Walsworth, Clerk of Court, for the Parish of Jackson, Defendants-Appellees.
    No. 49,681-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 18, 2014.

      Aaron D. Brooks, Baton Rouge, for Appellant, Louisiana Board of Ethics.
    Simmie T. “Slim” Brown, In Proper Person, Appellee.
    Ann B. Walsworth, In Proper Person, Appellee.
    Before BROWN, MOORE, LOLLEY, PITMAN, and GARRETT, JJ.
   BROWN, Chief Judge.

_JjThe Louisiana Board of Ethics appeals from a judgment denying its petition to disqualify Simmie T. “Slim” Brown as a 2014 candidate for Chief of Police for the Village of East Hodge. For the following reasons, we affirm.

Facts

On August 22, 2014, Brown filed a notice of candidacy for the office of Chief of Police for the Village of East Hodge, which is in Jackson Parish, Louisiana. In that notice, Brown affirmed, inter alia, that:

11. I do not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.

On August 29, 2014, the Louisiana Board of Ethics (“Board”) filed in the Second Judicial District Court, Jackson Parish, a petition objecting to Brown’s candidacy. The Board alleged that Brown’s assertion that he owed no fees pursuant to the Code of Governmental Ethics was false; specifically, the Board asserted:

7. On July 23, 2013, the BOE issued an order making final and absolute an assessment of late fees on Simmie T. “Slim” Brown for failure to timely file a 2010 Tier 3 Annual Personal Financial Disclosure Statement by March 9, 2012. The BOE ordered Simmie T. “Slim” Brown to pay $1,500 in late fees for the failure to timely file the required personal financial disclosure statement.... La. R.S. 42:1157A(l)(d) states “When ah delays for a request or waiver or appeal of late filing fees have expired, a final order of the Board of Ethics or its staff shall become exec- . utory and may be enforced as any other money judgment.”
8. On July 23, 2013, the BOE issued an order making final and absolute an assessment of late fees on Simmie T. “Slim” Brown for failure to timely file a 2011 Tier 3 Annual Personal Financial Disclosure Statement by February 1, 2013. The BOE ordered Simmie T. “Slim” Brown to pay $1,250 in late fees for the failure to timely file the required personal financial | ^disclosure statement_ La. R.S. 42:1157A(l)(d) states “When all delays for a request or waiver or appeal of late filing fees have expired, a final order of the Board of Ethics or its staff shall become executory and may be enforced as any other money judgment.”

The Board attached copies of these assessments to its petition. The Board alleged that pursuant to La. R.S. 18:492(A)(6), the outstanding fees owed to the Board provided a ground for its action objecting to Brown’s candidacy and urged the district court to disqualify Brown.

After a problem with service upon the defendant was cured on September 8, 2014, the matter was upset until September 11, 2014, when the case was tried. This appellate record contains no transcript of the trial. The Clerk’s Certificate at the end of the appellate record indicates in part that “AT THE REQUEST OF APPELLANT’S ATTORNEY, NO TRANSCRIPT OF TESTIMONY WAS FILED.”

According to the minutes of court for the trial date:

Aaron Brooks, attorney present on behalf of plaintiff. Mr. Simmie Brown defendant present in proper person. Objection to candidacy to be taken up today. Evidence filed, witnesses heard (Ann Walsworth and Simmie Brown). Objection denied. Dismissed by Judge.

The appellate record contains various copies of communications from the Board to the defendant notifying him of the above-mentioned fees. Some of these documents are marked with exhibit numbers and dates filed, but none are stamped “admitted” nor are there other indicia showing which, if any, of the documents were actually admitted into evidence.

|sOn September 12, 2014, at 2:48 p.m., the district judge signed the following judgment:

This matter came for hearing on a petition for rule to show cause on the 11th of September, 2014. The evidence was introduced and the matter was submitted to the Court. The Court, after considering the law and evidence rules as follows:
IT IS ORDERED, ADJUDGED AND DECREED that Simmie T. “Slim” Brown is NOT disqualified from running for the office of Chief of Police, Village of East Hodge, Jackson Parish in the November 4, 2014, election, as he believed he filed a waiver request with the Louisiana Board of Ethics and he had no intent to answer the qualification application that he had no outstanding fines and fees due. There being no intent on his part to be dishonest on the qualifying application.

The Board fax-filed a notice of appeal that day. The trial judge granted the Board’s motion for appeal on September 15, 2014, at 3:50 p.m., fixing the return date for the appeal at an unspecified time on September 16, 2014. The appeal record arrived at this Court at 1:59 p.m. on September 16, 2014.

Discussion

On appeal, the Board raises four assignments of error:

1. The District Court erred when it failed to sustain the Objection to Candidacy in reference to Simmie T. “Slim” Brown.
2. The District Court Erred when finding that Mr. Brown reasonably believed that his mere filing of a waiver request absolved him of all past fines, fees and penalties.
3. The District Court erred by finding that Mr. Brown lacked the “intent to answer the qualification application” as required by Louisiana law in order to run for elected office and thus making the application process meaningless.
4. The District Court erred when it found Mr. Brown had a lack of intent “to be dishonest” as such is not required by
Louisiana law and in light of the objective and contradictory evidence of his own testimony and his written letter of a “waiver request.”

|4With all of these arguments, the Board generally urges that the district court erred in refusing to disqualify Brown as a candidate because he owed outstanding fees at the time he qualified. See, e.g., Louisiana State Bd. of Ethics v. Garrett, 06-0263 (La.App.4th Cir.03/21/06), 929 So.2d 176.

An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on specific grounds which may include that the defendant does not meet the qualifications for the office he seeks in the primary election. La. R.S. 18:492 provides, in part:

A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(6) The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics as provided in R.S. 18:463(A)(2).

Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. Landiak v. Richmond, 05-0758 (La.03/24/05), 899 So.2d 535; Russell v. Goldsby, 00-2595 (La.09/22/00), 780 So.2d 1048. Further, a court determining whether the person objecting to candidacy has carried his burden of proof must liberally construe the laws governing the conduct of elections as to promote rather than defeat candidacy. Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Landiak, supra.

| ¡-.Although a plaintiff challenging a candidate’s qualifications bears the burden of proving that the candidate fails to meet the requirements, once the party bearing the burden of proof has established a pri-ma facie case, the burden shifts to the opposing party to present sufficient evidence to overcome the other party’s prima facie case. Morton v. Hicks, 46,991 (La. App.2d Cir.09/28/11), 74 So.Bd 268, writ denied, 11-2140 (La.09/30/11), 71 So.3d 297.

The appellant bears the responsibility of securing either a transcript or a narrative of facts; therefore, an inadequacy in the record is imputable to the appellant. Saldana v. State Farm Mut. Auto. Ins. Co., 39,094 (La.App.2d Cir.12/15/04), 889 So.2d 1170; Creech v. Creech, 29,499 (La.App.2d Cir.05/07/97), 694 So.2d 589; Borden v. West Carroll Parish Police Jury, 28,967 (La.App.2d Cir.12/11/96), 685 So.2d 454.

In its brief, the Board describes the various exhibits in this record and asserts that they were admitted into evidence and further recites its recollection of the testimony at trial, asserting that the defendant made various admissions of fact to the trial judge. However, there is no way for this Court to verify those assertions in the absence of a transcript.

In Creech, supra at 592, this Court explained:

In cases where factual issues are involved, and the record on appeal contains no transcript, nor a narrative of facts, the court applies the presumption that the trial court’s judgment is supported by competent evidence, that it is correct and the judgment is affirmed. Said another way, review is limited to determining whether the trial court correctly applied the law to the facts it found. Those facts can often be gleaned from the trial court’s written reasons for | (-judgment. When a record contains written reasons for judgment by a trial court which reveal substantially all of the material testimony, and the record is sufficiently complete to permit consideration of the issues presented on appeal, the reasons for judgment will be considered in lieu of the narrative of the facts required by La. C.C.P. art. 2131. (Citations omitted).

In this case, the reasons for the trial court’s judgment were stated in the judgment but those reasons cannot serve as a narrative of facts. In the absence of a transcript, this Court cannot determine which of the various documents in this record were properly offered and admitted into evidence. Thus, this Court cannot determine whether the Board made a pri-ma facie case that Brown was disqualified from candidacy due to any outstanding fees. Accordingly, we are constrained to affirm the judgment of the district court.

AFFIRMED.