author: McDonald, j. KUHN, J., PETTIGREW, J.,

text:
    STATE in the Interest of H.W.
    No. 2013 CJ 0231.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 2013.
    Rehearing Denied Aug. 14, 2013.

      Rebecca E. May-Ricks, MHAS/Child Advocacy Program, Baton Rouge, Louisiana, Attorney for Appellant H.W., minor child.
    Scott M. Perrilloux, District Attorney, Amite, Louisiana, Malcolm B. Forbes, Assistant District Attorney, Hammond, Louisiana, Attorneys for Appellee State of Louisiana.
    Duncan S. Kemp, III, Hammond, Louisiana, Attorney for Appellee I.W.M. (H.W.’s mother).
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

I ¡>This is an appeal of a judgment in which the juvenile court declined to retain jurisdiction over H.W.’s case because it found that Louisiana Children’s Code article 724(A) was not retroactive and, thus, was not applicable to the instant case. For the following reasons we affirm the juvenile court’s decision.

FACTS

In 2006, H.W. (along with her half brother), was removed from the custody of her parents and placed into the custody of the State. On January 4, 2007, after the parents failed to comply with the reunification plan, the Twenty-First Judicial District Court, which was sitting as a juvenile court at the time, granted legal guardianship of H.W. to her paternal grandparents. The district court stated that the disposition remained in effect until the child’s eighteenth birthday or until modification by the court. The judgment ordered that the Department of Social Services terminate supervision of H.W. and be allowed to close the case.

Subsequently, a juvenile division was created in the Twenty-First Judicial District Court. On April 26, 2012, the State filed a motion in juvenile court to modify the disposition, seeking to return custody to H.W.’s father. The motion was set for hearing on June 14, 2012. At the hearing, the State dismissed the motion, and the juvenile court relinquished jurisdiction over the case. A motion for new trial was filed by H.W., and a hearing was held on August 21, 2012. The juvenile court found that La. Ch.C. art. 724(A) was substantive, not procedural, and therefore was neither retroactive nor applicable to this case. The juvenile court further found that it was proper to relinquish jurisdiction of the matter to the [¡¡district court for proceedings before a civil judge. H.W. appealed that judgment. The State and H.W.’s mother filed briefs in opposition to the appeal.

On appeal, H.W. asserts two assignments of error:

1. The trial court erred in relinquishing jurisdiction over the modification of a guardianship previously ordered in a Child in Need of Care case.
2. The trial court erred in finding that Louisiana Children’s Code article 724(A) does not apply to the modification of guardianships that were originally granted prior to 2011.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

H.W.’s assignments of error assert that the trial court erred by not applying La. Ch.C. art. 724(A) to H.W.’s case and erred in relinquishing jurisdiction. Louisiana Children’s Code article 724 states in pertinent part:

A. The court shall retain jurisdiction to enforce, modify, or terminate a guardianship order until the child obtains eighteen years of age.
B. The department, counsel for the child, the guardian, a parent permitted to intervene under Article 707, or the court on its own motion may seek to enforce, modify or terminate a guardianship order.
C. A guardianship order may be enforced in accordance with the contempt provisions of Chapter 2 of Title XV of this Code.
D. A guardianship order may be modified or terminated if the court finds by clear and convincing evidence that there has been a substantial and material change in the circumstances of the guardian or child because of any of the following:
(1) The guardian no longer wishes to serve or can no longer serve as guardian of the child.
(2) Continuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship or the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.

Louisiana Children’s Code article 724 created the motion to modify a guardianship. However, a motion to modify guardianship under article 724 has never been filed in this case. The two motions that were filed and heard by the 14juvenile court were a motion to modify disposition and a motion for new trial. A motion to modify disposition is provided for in La. Ch.C. art. 714. The State filed this motion in April 2012. The State had the ability to file a motion to modify guardianship at the time it filed the motion to modify disposition because the new guardianship statutes were enacted in 2011, but the State failed to do so.

Louisiana uses fact pleading, so we must look at the contents of the pleading, not necessarily the name of the pleading. See Greemon v. City of Bossier City, 2010-2828 (La.7/1/11), 65 So.3d 1263, 1268. The remedy sought by H.W. is in line with a modification of a disposition rather than a modification of guardianship. In the State’s motion to modify disposition, the State asked the court to place H.W. in the custody of her father, which is a change of disposition. At the hearing, the mother stated that she wanted custody of the child as well. Louisiana Children’s Code article 681 provides the dispositional alternatives that a court may grant for a child adjudicated to be in need of care. The dispositions are as follows:

(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.
(2) Place the child in the custody of a private or public institution or agency.
(3) Commit a child found to be mentally ill to a public or private institution for the mentally ill.
(4) Grant guardianship of the child to a nonparent.
(5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
La. Ch.C. art. 681 (emphasis ours.)

Through its motion, the State asked the court to put the child in the custody of the father, so the State’s motion is a request to modify a disposition instead of a modification of guardianship. Thus, La. Ch.C. arts. 713-717 are applicable rather than the guardianship articles 718-724. See State ex rel. E.F., Jr., 2010-1185 (La.App. 1 Cir. 10/29/10), 49 So.3d 575, 585(holding that when a guardianship is granted the parents have a right to file a motion to modify disposition if they wish to regain custody). Thus, article 724 does not apply in this case because the State filed a motion to modify disposition under article 714.

Since article 724 does not apply to this appeal, the general jurisdiction articles of the Louisiana Children’s Code apply. Louisiana Children’s Code article 309 provides in pertinent part:

A. Except as provided in Article 313, a court exercising juvenile jurisdiction shall have continuing jurisdiction over the following proceedings and the exclusive authority to modify any custody determination rendered, including the consideration of visitation rights:
(1) Child in need of care proceedings pursuant to Title VI.

As stated above, article 309 is limited by La.Ch.C. art. 313, which provides in pertinent part:

A. A court exercising juvenile jurisdiction no longer exercises such jurisdiction in any proceeding authorized by this Code upon:
(1) Declination of jurisdiction.
(Emphasis ours.)

The juvenile court held a hearing on the motion to modify disposition. At that time, the motion to modify disposition was dismissed, and the juvenile court declined to exercise continuing jurisdiction based on the fact that article 724(A) was substantive and not retroactive. Thus, according to articles 309 and 313, the juvenile court no longer exercises jurisdiction over this proceeding because the trial judge declined jurisdiction.

Even if article 724 applied to this case, the result would remain the same. A law can be classified as procedural, substantive, or interpretive. See La. C.C. art. 6. To determine if a law can be applied retroactively, the law must be classified | fiinto one of these groups. In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. La. C.C. art. 6. We have a two-step analysis to decide if a law-applies retroactively. First, if the legislature expresses a desire to apply a law retroactively or to apply it prospectively only, then the law will be applied according to that legislative intent. Second, if there is no legislative expression, the law must be classified as substantive, procedural or interpretive and applied as retroactive or prospective according to article 6. See Cole v. Celotex Corp., 599 So.2d 1058, 1063-64 (La.1992).

Interpretive laws do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its enactment. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992). Article 724 is an entirely new statute that provides for the modification of guardianships. There was no statute that provided for a modification of guardianship prior to the enactment of article 724. The legislature did not clarify, modify, or revise an old law. Thus, article 724 is not interpretive.

Substantive laws either establish new rules, rights and duties, or change existing ones. Id. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 723. However, procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Lott v. Haley, 370 So.2d 521, 523 (La.1979).

Subsection A of article 724 is procedural because it states that a court shall obtain jurisdiction that relates to the form of the proceedings. See Segura, 630 So.2d at 723. However, the rest of the statute must be analyzed because, as stated 17above, if applying this procedural law divests vested rights then it cannot be applied retroactively.

Subsections B, C, and D of article 724 provide for who can file a motion for modification of a guardianship, and they provide the burden of proof that must be met to modify or terminate a guardianship. The comments to the statute, although not law, are of some help in the determination of the classification of this statute. Comment (b) makes a note about article 724(B). It states that this paragraph is intended to preclude a parent from having this right of action unless the parent first is able to demonstrate good cause that intervention is warranted. Thus, article 724(B) creates an entirely new right to modify a guardianship. The only right that was available before the enactment of article 724 was a motion to modify a disposition, which still exists today. See La. Ch.C. art. 714. This is indicative that the law is substantive. Also, subsection D creates the requirements for modification of a guardianship, which did not exist before the enactment of article 724. In accordance with the definition of substantive law, article 724 creates new rights. Thus, subsections B, C, and D of article 724 are substantive.

Appellant argues that article 724(A) is severable from the rest of the statute for retroactivity purposes just as statutes can be severed if one subsection is deemed unconstitutional. See La. R.S. 24:175. Appellant argues, a pari, that subsection A is procedural, so it can be applied retroactively even though the rest of the statute is substantive. Thus, according to the appellant, the court erred when it relinquished jurisdiction because the statute states that the court shall retain jurisdiction.

While an interesting argument, the appellant cites authority pertaining to the constitutionality of a statute and cites no persuasive authority or policy to sever a statute for retroactivity purposes. Applying subsection A would only cause great confusion and would lead to a dead end for the trial judge. If subsection A alone |8was applied retroactively, the trial court would have to apply subsections B, C, and D in order to successfully modify the guardianship. However, subsections B, C, and D cannot be applied retroactively because they are a substantive change in the law. See St. Paul Fire & Marine Ins. Co., 609 So.2d at 817. The court would be forced to retain jurisdiction but would have no way of modifying the guardianship because it cannot apply subsections B, C, and D retroactively to the facts of this case. Thus, this court is not willing to extend severability to retroactivity principles.

DECREE

Therefore, for the foregoing reasons, the district court judgment is affirmed. Costs of the appeal, in the amount of $548.00, are assessed one-half to the appellant and one-half to the appellees.

AFFIRMED.

KUHN, J., dissents & assigns reasons.

PETTIGREW, J., concurs with the results and assigns reasons.

KUHN, J.,

dissents and assigns reasons.

Iil disagree with the result reached by the majority in this matter. Specifically, I disagree with the conclusions that:

(1) a motion to modify guardianship has never been filed in this case;
(2) there was no statute providing for a modification of guardianship prior to the enactment of La. Ch.C. art. 724;
(3) La. Ch.C. art. 724(B) created an entirely new right to modify a guardianship; and
(4) La. Ch.C. art. 724(A), which is procedural in nature, cannot be applied retroactively because it is not severable from the remaining subsections of that article.

The motion filed by the State was labeled as a “Motion to Modify Disposition,” rather than as a “Motion To Modify Guardianship.” Nevertheless, the substance of the motion constituted a motion to modify the guardianship because, in fact, the granting of the guardianship was the disposition chosen by the juvenile court in accordance with La. Ch.C. art. 681(4). The disposition and the guardianship were not two separate things but were one and the same thing in this instance. Thus, by seeking to modify the disposition, the State by necessity was seeking to modify the guardianship (the only disposition in this matter), regardless of how it labeled its motion.

Further, the conclusion that there was no statutory authority to modify a guardianship prior to the adoption of Article 724, such that this provision created an entirely new right to modify guardianship, is incorrect. Article 724 was adopted in 2011 to deal in more specific detail with the modification of guardianships. | ^However, even prior to its adoption, a right existed to modify guardianships under the rules applicable to the modification of dispositions in general, since guardianship is one of the specific dispositions authorized by Article 681. See La. Ch.C. arts. 714-717; State ex rel. E.F., Jr., 10-1185 (La.App. 1st Cir.10/29/10), 49 So.3d 575, 585 (noting that where the disposition ordered by the juvenile court was the grant of guardianship of a minor child to his godparents, the child’s parents had the right to file a motion to modify that disposition).

The conclusion that Article 724(A), requiring the juvenile court to retain jurisdiction over the modification of a guardianship until the child is eighteen, is procedural in nature is correct. However, the additional conclusion that subsection (A) cannot be applied retroactively because it cannot be severed from the remaining subsections of Article 724 is incorrect. See La. C.C. art. 6; La. R.S. 24:175. To the contrary, subsection (A) meets the test for severability (assuming arguendo that the other subsections are substantive and cannot be applied retroactively) in that it is not so interrelated and connected to the remaining subsections that it is inseparable from them without destroying the Legislature’s intent in passing the statute. See State v. Powdrill, 95-2307 (La.11/25/96), 684 So.2d 350, 356.

Moreover, the circumstances that the Department of Social Services closed its file in this case and that the State dismissed the motion to modify the disposition did not have the effect of terminating the guardianship. Despite the fact that there was no motion concerning the guardianship pending before the juvenile court, the disposition ordering the guardianship remained in force and will do so either until a court modifies or terminates it or the child reaches eighteen. The issue of custody cannot be considered until the underlying issue of whether the guardianship should be terminated or modified is first addressed. Thus, the pertinent question is which |scourt has the jurisdiction to decide the issue of the continued existence of the guardianship. To say that the civil district court has jurisdiction ignores the subsequent adoption of Article 724(A), which now requires the juvenile court to retain jurisdiction over the modification or termination of a guardianship until the child is eighteen.

For these reasons, Article 724(A) is applicable in the instant case and the juvenile court erred in relinquishing jurisdiction of this matter to the civil district court. Accordingly, I respectfully dissent.

PETTIGREW, J.,

concurs in the result, and assigns reasons.

| TThis is a child in need of care proceeding initiated in July 2006 under Article 659 of Title 6 of the Children’s Code. By judgment dated January 4, 2007, the trial court granted legal guardianship of the minor child, H.W., to her paternal grandparents. In the same judgment, it was adjudged that the Department of Social Services terminate the supervision of the minor child, H.W., and close their case.

Subsequent thereto, on or about April 26, 2012, the State filed a motion to modify the disposition of January 4, 2007, alleging that the health of the guardians had deteriorated and that the custody of the minor child should be placed with her father. The mother of the minor child opposed the State’s motion, seeking custody of H.W. Prior to a hearing, the State dismissed its motion to modify disposition. At this point there was nothing before the court to be determined, and the court declined further jurisdiction.

According to the record, the Department of Social Services did not have an open file on this minor child. This case, in my humble opinion, is no longer a dispute about guardianship, but has evolved into a custody fight between the father and the mother of the minor child. After examining Articles 303, 307, 309, and 313 of Title 3; and Articles 659, 723, and 724 of Title 6, of the Children’s Code, I am of the humble opinion that the juvenile court did not . abuse its authority in declining jurisdiction on this case.

      . The paternal grandparents had requested the modification, as they were in poor health, H.W.'s father allegedly had rectified the conditions that led to their guardianship, and H.W. allegedly wanted to live with her father and his wife.

      . State ex rel. E.F., Jr. was decided before the guardianship revision in 2011, so a motion to modify disposition was the only remedy at the time. However, this is exactly what the State is requesting in this case through its motion. It requested that H.W. be returned to her father through a motion to modify disposition, and never filed a motion to modify guardianship.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Marvin W. DAVIS, Appellant.
    No. 48,161-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Britney A. Green, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and GARRETT, JJ.
   CARAWAY, J.

|, Marvin W. Davis was charged by bill of information with three counts of aggravated battery in violation of La. R.S. 14:34 and La. R.S. 46:2132, the Domestic Violence Act. A jury of six unanimously convicted Davis of two counts of aggravated battery. Davis was subsequently adjudicated a fourth felony offender, with all four convictions being crimes of violence, and was sentenced to the mandatory term of life imprisonment. Davis appeals, raising three assignments of error. We affirm Davis’ convictions. We vacate his adjudication as a fourth felony offender and remand for resentencing.

Facts

On May 2, 2011, the DeSoto Parish Sheriffs office was dispatched to a home in DeSoto Parish shared by Marvin W. Davis and his girlfriend, Connie Samuels. Connie’s two sons, 14-year-old DS and 10-year-old RS, were living with their mother. To summon the police, DS had jumped out of a window of the home and called authorities to report that his stepfather, Davis, had battered the boys and their mother during an angry tirade. The deputies first encountered DS, who was panicked and had a cut on his left wrist.

Upon arrival at the home, one sheriffs deputy met Davis who told them that he had hit one of the boys in the head with a water bottle. The deputy then spoke with Connie who had a swollen and cut left hand. Connie informed the deputy that during an altercation, Davis hit her and her boys with a mop handle and PVC pipe and then hit her in the head with a 12metal pot. The mop handle, which was in three broken parts, a white PVC pipe and a metal pot were found at the scene and photographed. Both Connie and DS gave statements to the deputies implicating Davis as the perpetrator. Thereafter, Davis was arrested and charged with three counts of aggravated battery under the Domestic Violence Act. Count One concerned Connie, Count Two, RS and Count Three, DS. After trial, a unanimous jury convicted Davis of Counts One and Three, but acquitted him of Count Two. The trial court denied a subsequent Motion for Post-Verdict Judgment of Acquittal.

The state filed a habitual offender bill and subsequently proved two prior crimes of violence. Davis was adjudicated a fourth felony offender based on the two prior felonies and the two instant convictions and sentenced to life. This appeal ensued.

Discussion

In his second assignment of error, Davis argues that the trial court erred, as a matter of law, in denying his Motion for Post-Verdict Judgment of Acquittal due to the insufficiency of the evidence to support his conviction on Counts One and Three. The crux of Davis’ argument is that a broken mop handle, piece of PVC pipe and a metal pot are not dangerous weapons and, thus, the state failed to meet its burden of proof for the aggravated burglary convictions.

When several issues are raised on appeal and one or more questions involve the sufficiency of the evidence, the reviewing court should review the sufficiency claims first because the accused may be entitled to an ^acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. 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, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297.

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, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, - U.S. -, 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, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of | ¿evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

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, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Credibility determinations are the province of the trier of fact. State v. Johnson, 38,927 (La.App.2d Cir.11/23/04), 887 So.2d 751; State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support the requisite factual conclusion. Id.

| ¡Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. A battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. A dangerous weapon is defined as “including any instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3). Therefore, in order to convict the defendant of aggravated battery, the state must prove (1) that the defendant intentionally used force or violence upon the victim, (2) the force or violence was inflicted with a dangerous weapon, and (3) the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. Ealy, 44,252 (La.App.2d Cir.5/13/09), 12 So.3d 1052, writ denied, 09-1393 (La.2/5/10), 97 So.3d 1011.

Whether a weapon is dangerous is a factual question for the jury to determine upon considering not only the character of the weapon, but by whom, upon whom, and in what manner it was used. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 08-1381 (La.2/13/09), 999 So.2d 1145, citing State v. McClure, 34,880 (La.App.2d Cir.8/22/01), 793 So.2d 454 and State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). Louisiana jurisprudence reveals that numerous everyday items have been held to constitute a “dangerous weapon,” in the manner used, including a stick, an ink pen, rum, a tennis shoe, a metal pipe, a paint can, a bottle and a mop handle. State v. Pamilton, supra; State v. Tyner, 41,937 (La.App.2d Cir.2/28/07), 953 So.2d 865; State v. Malhiot, 41,175 (La.App.2d Cir.8/23/06), 938 So.2d 1158, writ denied, 06-2352 (La.4/27/07), 955 So.2d 682; State v. McClure, supra; State v. Johnson, 598 So.2d 1152 (La.App. 1st Cir.1992), writ denied, 600 So.2d 676 (La.1992); State v. Munoz, 575 So.2d 848 (La.App. 5th Cir. 1991), writ denied, 577 So.2d 1009 (La.1991).

At trial, Connie testified first and stated that she and Davis had known each other their entire lives and had been romantically involved since they were 18 years old. Connie was treated as a hostile witness after a portion of her testimony because she stated repeatedly that she did not want to testify, that Davis was not a “bad person” and did not “deserve life.”

Connie explained that on May 2, 2011, she was in her bedroom, after dinner, when RS came into her room and told her that Davis said he was going to kill him. Connie testified that she went into the kitchen, where Davis was trying to get the younger boy to wash the dishes. DS also went into the kitchen. Connie described what happened next as a “little conflict” about the boys washing the dinner dishes. She conceded that Davis ordered the three into a corner and that she stood in front of the boys to protect them. During her testimony, Connie identified a broken metal mop handle, a piece of PVC pipe and a metal cooking pot that Davis used to hit her and the boys, but stated that it was “nothing heavy.”

Connie agreed that she threw her hands up to “block a lick from the mop handle” and was cut on the hand by the jagged metal end where the mop handle was broken. She denied being hit with the PVC pipe, but 17testified that Davis did hit her with the metal pot “kinda like up beside my head.”

When the incident subsided, Connie and the boys went into a bedroom and she told DS to jump out of the window and call the police. She also testified that Davis came into the bedroom and apologized.

During her testimony, Connie was questioned about the statement she gave to police immediately following the incident. She testified that her statement was written by a friend because of the cut to her hand. In that statement, Connie told police that the defendant was “gonna kill” her son and that DS has asthma and Davis hit him in the chest and broke the PVC pipe hitting him.

DS also testified and identified his statement given to officers immediately after the incident, which was read to the jury:

I was in my brother room. My brother went to my mom room and said that Marvin Davis pulled a knife and said he was going to kill him. I came in later. He told me to get over there with my mom and brother in a corner. He started to hit us with a mop. The mop broke on my wrist and cut me deep. He hit my mom in the head with a metal pot. I have asthma and he kept hitting me in the chest. I couldn’t breathe for a few minutes.

DS agreed that he told the truth in the written statement. While he was adamant that he was not afraid that night, DS conceded that Davis beat his mother, brother and him with the mop. He testified that the mop broke on the washing machine when the defendant was trying to hit his mother. DS conceded that his mother was hit with a water pipe and a metal pot. DS recounted that he jumped out of the window and ran to his uncle’s house to |gcall the police when his mother told him to “because things was getting out of hand.”

RS was 11 years old at the time of trial. He testified that the reason the police were called to his house that evening was because Davis “held us hostage.” RS stated that his mother “would jump in front of us and she’ll take the hit and throw her hands up.” He stated that his mother was hit and DS’s wrists were injured. RS did not testify affirmatively that he was hit or injured.

Deputy Casey Hicks was the responding officer on the night of the incident. Deputy Hicks confirmed the fear of the children and the evidence of use of force. He stated that Connie advised that Davis had hit her and the children with PVC pipe, a mop handle and a metal pot. Hicks further stated that Connie told him that she was trying to stay between Davis and the boys, but the metal end of the mop handle hit DS and injured his wrists.

After the deputy’s testimony, the state rested and the defense did not put on any evidence.

When viewed in the light most favorable to the prosecution, we find the evidence sufficient to convict Davis of aggravated battery. The evidence shows RS initially summoned his mother because of Davis’ threat to kill him. When confronted, Davis intentionally ordered Connie and her sons into a corner and beat the boys and their mother with a metal mop handle and a broken PVC pipe. He also hit Connie in the head with a metal pot.

|aStatements from the victims establish Davis’ threats to kill. When combined with his subsequent acts of cornering the three victims and hitting them with the various objects inflicting serious injury to two of them, the jury could have reasonably inferred from this evidence Davis’ intent to cause death or great bodily harm to the victims. The ordinary household items were utilized by Davis to physically beat and injure Connie and DS. The degree of injury actually inflicted is not dis-positive of whether an item constitutes a dangerous weapon. Rather, it is the manner in which the items are used, i.e., a manner reasonably calculated to lead to death or serious bodily harm. Under the facts presented to it, the jury was reasonable in concluding that the items, as used by Davis accompanied by his threats, constituted dangerous weapons as contemplated by the statute. State v. Pamilton, supra. This assignment is without merit.

Davis also argues that the district court erred, as a matter of law, in overruling the Batson challenge to the State’s peremptory challenges of the only black prospective jurors, resulting in an all-white jury.

The jury of six persons was all white. However, there were only two African-Americans in the sole panel drawn from the jury venire which was composed of 18 persons. Juror MW (black male) and Juror MH (black female) were ultimately excluded by the state by the use of peremptory challenges.

Initially, the state had challenged these same jurors for cause. The trial judge denied the challenge for cause for Juror MW and deferred ruling [1flon the challenge on Juror MH until the challenges to the initial 12 persons on the panel were completed. The state subsequently exercised four peremptory challenges against three white jurors and Juror MW. The defense exercised four peremptory challenges against white jurors. At this point, there were five remaining jurors that were preliminarily accepted and the remaining six were presented for challenges for cause. The trial judge noted that, should the state re-urge a challenge for cause against Juror MH, it would be denied. The state then exercised a peremptory challenge against Juror MH and defense counsel entered a Batson objection.

The trial judge overruled the objection, stating that there had not been a preliminary showing of a pattern of racial discrimination. Nevertheless, the judge went further, stating that “[the state] had advanced and articulated for the record sufficient or what they believed were sufficient grounds for challenges for cause, which the Court ultimately rejected.”

During voir dire, Juror MW indicated that Davis reminded him of a family member and that he would have a hard time convicting him for that reason. The district attorney asked Juror MW, “and the fact that he looks like someone that you know, would that prevent you from convicting him?” Juror MW responded, ‘Tes, I believe it would.” Later during questioning, however, Juror MW agreed that he could “go by the evidence” and his verdict would not have anything to do with whom Davis may look like.

The following colloquy took place between counsel and the trial judge when the state challenged Juror MW for cause:

District Attorney: Judge, I’m a little bit concerned about [MW]. He kind of vacillated back and forth [non knowing, looking at the guy, you know, he couldn’t convict him. And, you know, I think it’s about him not wanting to serve more than anything else.
The Court: He also tried to get off for another reason and I wouldn’t let him off, a non-medical reason.
District Attorney: And I think it’s problematic because he is looking for a reason. I asked him if we prove the case, he said no. You know, I’m just concerned about him.
The Court: Well, unfortunately, I think you rehabilitated him, so that’s denied.

Regarding Juror MH, the following colloquy took place:

District Attorney: Okay. [MH], Judge. Just inattentive, sleeping.
The Court: I was a little concerned about her. She really didn’t really seem too much engaged. What do you think about her? (to defense counsel)
Defense counsel: I thought totally opposite. She look at [the DA] when he was talking. She looked at the screen—
The Court: I want to make sure, that’s 13?
District Attorney: Yes. She was sleeping.
Defense counsel: No. She responded to the questions he asked. When he changed the screen, she looked at it. If he had an issue, he should have asked her more questions. I thought she was good.

In denying the challenge for cause as to Juror MH, the trial judge noted that “different jurors have different affects and her answers were, of course, very appropriate.”

In State v. Nelson, 10-1724 (La.3/13/12), 85 So.3d 21, the supreme court succinctly recited the law concerning the prohibition against the exercise of peremptory challenges based upon race as follows:

li2In Batson, the United States Supreme Court held that the use of peremptory challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. The holding in Batson was initially adopted by this Court in State v. Collier, 553 So.2d 815 (La.1989), and has been codified by the legislature in Louisiana Code of Criminal Procedure article 795(C) and (D).
The Court in Batson outlined a three-step test for determining whether a peremptory challenge was based on race. Under Batson and its progeny, the opponent of a peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. 1712. See also, Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005); State v. Sparks, 1988-0017 (La.5/11/11), 68 So.3d 435, 468; State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 448.
To establish a prima facie case, the objecting party must show: (1) the striking party’s challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the peremptory was used to strike the venire person on account of his being a member of that cognizable group. Batson, 476 U.S. at 96, 106 S.Ct. 1712; Sparks, 68 So.3d at 468; Givens, 776 So.2d at 449. If the trial court determines the opponent failed to establish the threshold requirement of a prima facie case (step one), then the analysis is at an end and the burden never shifts to the proponent of the strike to articulate neutral reasons (step two). Sparks, 68 So.3d at 468-89; State v. Duncan, 1999-2615 (La.10/16/01), 802 So.2d 533, 544.

In State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, multi-factors for determining whether the prima facie case were discussed:

The defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury | ^finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

No formula exists for determining whether the defense has established a pri-ma facie case of purposeful racial discrimination. State v. Jacobs, 99-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). Batson accords a trial court considerable flexibility and broad discretion in this regard because “trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges create a prima facie case of discrimination against black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723; State v. Jacobs, supra.

Bare statistics alone are insufficient to support a prima facie case of discrimination. Furthermore, the value of numbers alone, without any indication of the race or gender composition of the jury selected or the pool from which it was drawn, is limited at best. State v. Holand, 11-0974 (La.11/18/11), — So.3d -, 2011 WL 6153193, cert. denied, — U.S. -, 132 S.Ct. 2682, 183 L.Ed.2d 48 (2012).

The trial court plays a unique role in the dynamics of voir dire, for it is the court that observes firsthand the demean- or of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. See State v. Jones, 42,531 (La. App.2d Cir.11/7/07), 968 So.2d 1247. Thus, the trial court’s determination that the defense failed to set forth a prima facie case of purposeful discrimination | umerits great deference on appeal. State v. Mason, 47,-642 (La.App.2d Cir.1/16/13), 109 So.3d 429, citing State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied, 594 So.2d 1317 (La.1992).

In this matter, the trial court found that the defense had not made a prima facie showing that the district attorney exercised the two peremptory challenges against Jurors MW and MH on the basis of race. Of course, neither the total exclusion of a cognizable group from the jury nor the mere presence of one or two perhaps token members of the group on the jury is dispositive of whether the pri-ma facie requirement is satisfied. State v. Duncan, supra. Nevertheless, the composition of the 18-member pool with the small percentage of African-Americans and the state’s 100% exclusion of African-Americans makes the issue of the prima facie showing a difficult question statistically and otherwise.

Even so, we find it unnecessary to address this concern as we find no error in the trial court’s further determination that the state provided race-neutral reasons during the challenges for cause for excluding these two potential jurors. Regarding Juror MW, the state and the trial court expressed concern for his desire not to serve on the jury and his statement that he may not be able to convict the defendant because he resembled someone in the juror’s family. As to Juror MH, both the state and the trial judge expressed concern about her inattentiveness and sleeping, although the defense disagreed. These reasons are not inherently discriminatory and suffice as race-neutral reasons for the peremptory challenges to the jurors. This assignment of error has no merit.

h.Jn his final assignment of error, Davis argues that the trial court erred, as a matter of law, in adjudicating him a fourth felony habitual offender and sentencing him to life imprisonment.

The habitual offender bill charged Davis as a fourth felony offender based on a 1995 manslaughter conviction for which he was sentenced to 10 years at hard labor and a 2004 second degree battery conviction for which he pled guilty and was sentenced to three years at hard labor. The third felony offense would have to be supplied by one of the two present aggravated battery convictions. At the hearing, defense counsel objected to the use of the two current offenses as predicate offenses based on La. R.S. 15:529.1(A). The objection was overruled and Davis was ultimately adjudicated a fourth felony offender and sentenced to life imprisonment. Davis asserts this ruling as error.

The purpose of the habitual offender law in La. R.S. 15:529.1 is to deter and punish recidivism, and a defendant becomes a recidivist at the time of the commission of the subsequent crime, whether or not he has previously been exposed to sentencing as a habitual offender. State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568.

The first sentence of La. R.S. 15:529.1(A)(1) states, “Any person who, after having been convicted in this state of a felony ..., thereafter commits any subse quent felony within this state, upon conviction of said felony, shall be punished as follows.” (Emphasis added). This portion of the statute, and the jurisprudence interpreting it, require that the prior 11 ^conviction must precede the principal offense in order to be used as a predicate to enhance a defendant’s status as a multiple offender. State v. Jackson, 43,139 (La.App.2d Cir.3/26/08), 979 So.2d 678, writ denied, 08-0952 (La.12/12/08), 997 So.2d 560; State v. Roshell, 40,374 (La.App.2d Cir.12/14/05), 916 So.2d 1268, writ denied, 06-0771 (La.10/6/06), 938 So.2d 69; State v. Ball, 32,498 (La.App.2d Cir.12/15/99), 748 So.2d 1249, writ denied, 00-0506 (La.10/6/00), 770 So.2d 364.

One of the two aggravated battery convictions now on appeal has enhanced the punishment for the other aggravated battery conviction. Nevertheless, recidivism or repeat offender misconduct can hardly be said to have occurred for these crimes arising out of the same criminal episode. From the quoted language of the act, one of the two present crimes is not a “subsequent felony” with the defendant “having been” previously convicted of the other. The goal of the habitual offender law is to dissuade first offenders from committing subsequent felonies. State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233. Accordingly, with the two aggravated convictions occurring together in this case and arising from the same event, we vacate Davis’ adjudication as a fourth felony offender.

We note also that the trial court failed to specify which count was being enhanced and only one of the two present convictions received a sentence. We have held that if a court fails to impose a sentence for each conviction or fails to specify which of the two sentences is being enhanced the sentence or sentences are not definitive, are set aside and the defendant is remanded for resentencing as the law directs. State v. Mayweather, 28,271 (La.App.2d Cir.6/26/96), 677 So.2d 594. See also, State v. Valentine, 95-0970 (La.App. 4th Cir.1/19/96), 668 So.2d 383, writ denied, 97-2011 (La.2/13/98), 706 So.2d 988. Therefore, we remand for new habitual offender proceedings and sentencing with instructions to the trial court to specify which count is being enhanced and for resentencing on the count of conviction not enhanced.

Decree

For the foregoing reasons, the convictions of Marvin W. Davis are affirmed. His fourth felony offender adjudication and sentence are vacated. The matter is remanded for new habitual offender proceedings and sentencing for the convictions.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

      . In an obvious effort to minimize the actions of Davis, Connie explained he said things like this to the boys every day and that she consistently tried to get Davis to discipline the boys who were "rowdy” and "bow[ed] up” when they were told to do something.

      . The objection was lodged in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Whether he is considered a fourth or third felony offender, the mandatory term for sentencing is life imprisonment.


author: STEWART, J.

text:
    Berry CHANDLER, Plaintiff-Appellant v. OUACHITA PARISH SHERIFF’S OFFICE, Defendant-Appellee.
    Nos. 48,179-CA, 48,403-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by John C. Turnage, J. Rodney Baum, for Appellant.
    Usry, Weeks & Matthews, New Orleans, LA, by Fred Schroeder, II, Jason P. Wix-om, for Appellee.
    Before STEWART, LOLLEY and GARRETT, JJ.
   STEWART, J.

hln this public records request suit by Berry Chandler (“Chandler”) against the Ouachita Parish Sheriffs Office and sheriff (referred to together as the “OPSO”), the trial court granted a declaratory judgment in favor of Chandler and ordered the OPSO to pay reasonable attorney’s fees and the costs of litigation upon finding that it failed to provide certification as required under La. R.S. 44:34 to explain the absence of requested records from its custody or control. Asserting the that the trial court erred in failing to find that the OPSO was arbitrary and capricious in responding to his public records request and liable for damages and civil penalties, Chandler appealed this judgment.

In a subsequent judgment, the trial court awarded Chandler $17,000 in attorney’s fees and $3,546 in costs. Asserting that the trial court erred in awarding attorney’s fees and costs for a certification violation and that it abused its discretion in setting the amounts, the OPSO appealed. Chandler answered the appeal to seek an increase in the amounts awarded.

Finding no error or abuse of discretion by the trial court, we affirm in all respects.

FACTS

On September 10, 2010, Chandler sued the OPSO for a declaratory judgment, writ of mandamus, injunctive relief, damages, penalties, and attorney’s fees for alleged violations of the Public Records Act, La. R.S. |¾44:1 et seq. Chandler made written requests for public records on July 1, 2010, and July 2, 2010. Chandler alleged that the OPSO’s responses were “woefully inadequate,” that it failed to timely produce the requested records, and that it acted arbitrarily and capriciously with respect to the records and its responses.

The OPSO answered and denied the allegations. Claiming that it acted reasonably and in good faith, the OPSO asserted that it provided the requested documents in its possession to Chandler.

On March 28, 2011, Chandler filed a first supplemental and amended petition based on additional public records requests made on September 23, 2010, and February 18, 2011. Chandler alleged that the OPSO’s responses to both requests were “woefully inadequate.” The OPSO denied the allegations.

Thereafter, Chandler filed a motion and rule to show cause to determine why relief as prayed for in his petition should not be granted. Though Chandler had requested numerous public records in his four separate written requests, he limited his rule to violations pertaining to two specific requests. The first request, which was made on July 1, 2010, concerned an Article 66 subpoena return. Chandler alleged that the OPSO did not produce the return and that he had been advised by an OPSO officer that it had been destroyed. The second request, which was made on February 18, 2011, was for a recording of 19 telephone calls obtained by Deputy Michael Singley (“Singley”) from Tanya Coie Shoemaker |s(“Shoemaker”) in connection with an investigation of harassing calls allegedly made to her. Chandler alleged that he learned during a deposition that Singley had logged the recording of the calls into evidence. Chandler asserted that the recording of the 19 calls was not produced by the OPSO and had allegedly been destroyed, perhaps even after he requested them.

In response to the rule to show cause, the OPSO asserted that the records at issue did not exist when the request was made and that it could not produce nonexistent records.

At the hearing on September 21, 2011, Chandler called a number of witnesses in an attempt to discover what happened to the requested records and whether there was some cover-up that led to their destruction. Geary Aycock, an assistant district attorney for the 4th Judicial District, testified that Shoemaker contacted him in December 2009 because she was receiving harassing telephone calls and claimed that the OPSO was not following up on her complaint. Aycock contacted the OPSO on Shoemaker’s behalf. He had no involvement thereafter and denied participating in any cover-up of an investigation of Chandler in relation to the harassing calls allegedly made to Shoemaker. Aycock explained that Shoemaker had been a victim in a criminal prosecution against Chandler that resulted in a misdemeanor plea and that she had a pending civil suit against Chandler.

Sheriff Toney had no specific knowledge about the subpoena return or the recording of the 19 calls. He testified that he did not instruct anyone to destroy these records.

|4Sgt. John Asmussen (“Asmussen”) of the OPSO testified that he prepared the Article 66 subpoena after speaking with Shoemaker about the harassing calls. The subpoena was issued to Tracfone Wireless (“Tracfone”) to obtain records related to Shoemaker’s own phone and account. According to Asmussen, Tracfone’s return stated that it did not maintain the records requested beyond a set time period. Because the return had no evidentiary value, in that it could neither prove nor disprove that the calls had been made, he shredded the return. He denied doing this with any malicious intent and stated that no one directed him to destroy the return. He further testified that when asked to produce his records to respond to Chandler’s public records request, he produced a copy of the subpoena that he had prepared.

Colonel Mark Mashaw (“Mashaw”) of the OPSO was involved in responding to Chandler’s public records requests. He testified that he looked for the recording of the 19 calls but could not find them. Later, he spoke with Singley and figured out that he had recorded the voice messages on his belt recorder, which is typically used to record the daily contacts with the public. At the end of the day, the contacts are loaded onto a computer file that is maintained for ten days only. The recorded calls were filed with the daily contacts in error and apparently deleted after the ten-day period and “long before” Chandler requested them. Mashaw testified that he asked Asmussen to produce all he had regarding the Article 66 subpoena and that the information supplied by Asmussen was turned over to Chandler. He denied that anyone directed Singley to incorrectly log the recording or | ¡Asmussen to shred the subpoena return, and he maintained that the OPSO would have provided these records to Chandler if it had them.

Chandler also called Jay Russell, the OPSO’s then-chief deputy, to testify, but Russell was not involved in responding to Chandler’s public records requests before the suit was filed and did not have any knowledge about what had been provided. Lastly, Chandler called Lisa Martin, who was prosecuted for allegedly making the harassing calls to Shoemaker. Martin claimed that someone told her there was a tape with the calls on it but that she was never allowed to listen to the tape. She admitted that the person who told her a tape existed was not with the OPSO. Martin indicated that the charges against her were dismissed.

In written reasons for judgment, the trial court concluded that the OPSO violated La. R.S. 44:34 by failing to certify in writing the reasons for the absence from its custody of the recording of the 19 calls. The trial court found that the OPSO had merely informed Chandler that it did not have the recording and that the full explanation of what happened to the recording was not provided until the hearing. Because Chandler prevailed on this issue, the trial court found him to be entitled to reasonable attorney’s fees and costs of litigation in an amount to be agreed upon by the parties or, in the absence of an agreement, determined at a hearing. The trial court also found that the destruction of the recording was inadvertent, that the OPSO did not arbitrarily or capriciously withhold the recording from Chandler, and that Chandler failed to prove any actual damages. Thus, the trial court denied his claim for penalties and damages.

| (¡Asserting that the trial court’s ruling did not address the OPSO’s failure to produce the documents related to the subpoena return, Chandler filed a motion for a new trial. The trial court granted the motion and in supplemental reasons concluded that the OPSO violated La. R.S. 44:34 by failing to provide an explanation of what happened to the subpoena return until the trial of this matter. The trial court stated that the award of attorney fees and costs would likewise apply to this violation, and it concluded that Chandler was not entitled to any damages or penalties. The trial court found that the OPSO did not arbitrarily or capriciously withhold the return, which had been destroyed long before Chandler requested it, and that the OPSO was not unreasonable or arbitrary in failing to respond to Chandler’s request as required by La. R.S. 44:32.

The trial court signed a judgment on June 26, 2012, granting Chandler declaratory relief for the violations of La. R.S. 44:34 and awarding him reasonable attorney’s fees and costs of litigation in an amount to be agreed upon by the parties or, in the absence of an agreement, set at a hearing. His requests for mandamus and injunctive relief, penalties, and damages were denied. Chandler filed a devolutive appeal from this judgment on August 27, 2012.

Thereafter, with Chandler seeking over $35,000 in attorney’s fees and costs, the parties were unable to reach an agreement, so Chandler filed a motion to set attorney’s fees. ■ The OPSO argued that the amount requested by Chandler was unreasonable for the two certification violations and that |7the billing records submitted showed that he was seeking fees for work that had nothing to do with this suit. The OPSO also complained that Chandler should not be awarded fees for work during the months prior to the filing of the motion / rule to show cause and after it was heard.

The trial court heard the matter and made an oral ruling on October 16, 2012. The trial court noted that there were many interrelated issues between this suit and Chandler’s other litigation and that “it’s hard to pinpoint just exactly what proportion of all of that work ties into this specific case here.” With that consideration in mind and based on the suit record of this matter and the billing records submitted by Chandler, the trial court awarded Chandler half of the amount requested along with all costs of the litigation. Accordingly, judgment was rendered on November 8, 2012, ordering the OPSO to pay Chandler $17,000 in attorney’s fees and $3,546 in costs. The OPSO filed a writ, which this court granted for perfection as an appeal. Chandler answered the appeal to seek an increase in attorney’s fees and costs awarded by the trial court and for work done on appeal. He reiterated his request for penalties and damages. By order of this court, the two appeals were consolidated.

DISCUSSION

Chandler’s Appeal

Chandler asserts that the trial court erred in failing to find that the OPSO was arbitrary and capricious in responding to his public records requests and liable for damages and penalties. He argues that the intentional ^destruction of the 19 recorded phone calls and the subpoena return prior to the three-year retention period under La. R.S. 44:36(A) should be deemed arbitrary and capricious and that he should be awarded damages. Chandler suggests that the OPSO has some practice of destroying records it does not want to turn over to the public.

The OPSO counters that penalties and damages are not authorized for the certification violations found by the trial court or for the retention violation asserted by Chandler on appeal. It also asserts that the trial court correctly determined that neither the intentional destruction of the subpoena return that lacked evidentiary value nor the inadvertent deletion of the recorded calls by a rookie deputy who saved them on the wrong computer file constitutes arbitrary, capricious, or unreasonable actions that would entitle Chandler to damages or penalties.

Proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, attorney’s fees, costs, and damages may be instituted by any person who has been denied the right to inspect or copy a public record, either by a final determination of the custodian or by the passage of five days, exclusive of weekends and legal public holidays, from the date of his request without receiving a written final determination by the custodian. La. R.S. 44:35(A). The remedy of civil penalties and damages is provided by La. R.S. 44:35(E)(1), which states:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, |9it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

The enforcement provisions of La. R.S. 44:35 presuppose the existence of the records in the office of the custodian. Nix v. Daniel, 95-1393 (La.App. 1st Cir.2/23/96), 669 So.2d 573, writ denied, 96-0878 (La.10/25/96), 681 So.2d 360; Revere v. Taylor, 613 So.2d 738 (La.App. 4th Cir.1993), writ denied 615 So.2d 332 (La.1993). Moreover, whether civil penalties or damages may be awarded under La. R.S. 44:35(E)(1) is based on whether the custodian arbitrarily or capriciously withheld the requested records or arbitrarily or unreasonably failed to respond to the request as required by La. R.S. 44:32. The provisions in La. R.S. 44:32 address the duty of the custodian to permit examination of public records and its duty if it questions whether a record is a public record. Thus, this statute, like the enforcement provisions under La. R.S. 44:35, presupposes the existence of the records in the office of the custodian.

The absence of a public record from the custody or control of the person to whom a public records request is directed is addressed by La. R.S. 44:34 as follows:

If any public record applied for by an authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at |1ftwhich it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by the Chapter.

The trial court determined that the OPSO failed to provide the certification required by La. R.S. 44:34 as to the absent recording of the 19 calls and the subpoena return. Though this finding is not before us on appeal, we agree with the trial court. We also agree with its finding that penalties and damages are not available for this violation. La. R.S. 44:35(E)(1) does not authorize an award of penalties or damages for a violation of the certification provision. Moreover, Chandler did not prove any actual damages.

Additionally, the record supports the trial court’s findings that the OPSO did not arbitrarily or capriciously withhold the requested records or arbitrarily or unreasonably fail to respond to his requests. The OPSO did not produce the requested records at issue because they no longer existed when Chandler made his requests. The OPSO could not unreasonably or arbitrarily fail to respond to Chandler’s requests as required by La. R.S. 44:32 when it no longer had the recorded calls or subpoena return. It could not withhold what it no longer had in its custody or control. The 19 calls recorded by Singley in December 2009 were inadvertently deleted within days because they were stored on the wrong computer file. The record also shows that the Article 66 subpoena was issued in December 2009. Asmussen shredded the subpoena return because Tracfone did not have the information requested. He testified that the subpoena return had no evidentiary value. Nothing in the record indicates that Asmussen or | nSingley acted on orders in shredding the subpoena return or misfiling the recorded calls. Nothing in this record indicates a practice on the part of the OPSO of destroying records it does not want the public to see. The public records at issue were destroyed inadvertently and without malicious intent prior to Chandler’s public records requests. The trial court did not err, manifestly or otherwise, in finding that the OPSO’s actions with respect to Chandler’s public records requests were neither arbitrary, capricious, nor unreasonable.

Chandler also argues that the destruction of the requested records prior to the three-year retention period set forth in La. R.S. 44:36(A) should be deemed arbitrary, capricious, or unreasonable and entitle him to penalties and damages under La. R.S. 44:35(E)(1). In the absence of a formal retention schedule, a public record shall be preserved and maintained for at least three years from the date the record was made. La. R.S. 44:36(A). The record indicates that the OPSO did not have a formal retention schedule. Moreover, it is clear that the OPSO did not retain the subpoena return and recording of the 19 calls for three years as required by La. R.S. 44:36(A). Though the OPSO’s destruction of the records at issue appears in violation of La. R.S. 44:36, penalties and damages are not authorized under La. R.S. 44:35(E)(1) for a violation of the retention requirements. In Tectrans, Inc. v. New Orleans Aviation Bd., 695 F.Supp.2d 313 (E.D.La.2010), the court concluded that the deletion of emails by employees of the New Orleans Aviation Board constituted a violation of the retention provisions under La. R.S. 44:36 and entitled the plaintiff to recover reasonable [^attorney’s fees and costs of litigation under La. R.S. 44:35(D). We agree with this outcome. The trial court awarded Chandler reasonable attorney’s fees and costs for the certification violations. As such, this same award suffices to encompass the violation of La. R.S. 44:46(A).

For these reasons, we find no merit to Chandler’s assignment of error and affirm the trial court’s June 26, 2012, judgment.

The OPSO’s Appeal and Chandler’s Answer

The OPSO assigns as error the trial court’s award of attorney’s fees and costs for the certification violation. Chandler asserts that the OPSO did not appeal the June 26, 2012, judgment and cannot in this appeal seek review of the merits of the award of attorney’s fees and costs for the certification violation. Chandler’s argument has merit.

In the June 26, 2012, judgment, the trial court declared that the OPSO violated La. R.S. 44:34 and ordered it to pay reasonable attorney’s fees and costs, directing that the amount was to be agreed upon by the parties or set at a hearing upon the motion of the petitioner if they failed to reach an agreement. Chandler appealed this final judgment, as addressed supra. The OPSO neither appealed nor answered the appeal. A defendant who has not appealed or answered an appeal may not obtain a modification of the judgment. La. C.C.P. art. 2133; Matthews v. Consolidated Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191, rehearing denied, 95-1925 (La.1/26/96), 666 So.2d 662. Having failed to appeal the judgment ordering it to pay attorney’s fees and costs, the OPSO may not, through its 11sappeal of the November 8, 2012, judgment setting the amount of these awards, seek review of the merits of the June 26, 2012, judgment.

In this appeal of the judgment setting the amount of attorney’s fees and costs, the OPSO urges that the trial court abused its discretion in awarding $17,000 in attorney’s fees and $3,456 in costs. It asserts that the trial court was unable to determine an appropriate award and simply “split the baby” by awarding Chandler half of the $35,000 in fees that he was seeking. In its answer to the OPSO’s appeal, Chandler seeks an increase in the amount of attorney’s fees awarded.

The public’s right to access public records is a fundamental right guaranteed by the state constitution. La. Const, art. 12, § 3; Title Research Corp. v. Rausch, 450 So.2d 933 (La.1984). In accordance with this fundamental right, the public records statutes should be construed liberally. Id. With regard to attorney’s fees and costs, La. R.S. 44:35(D) states:

D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.

The amount of an award for attorney’s fees is within the discretion of the trial court. Dwyer v. Early, 2002-1545 (La. App. 4th Cir.3/12/08), 842 So.2d 1124, writ denied, 2003-1013 (La.5/30/03), 845 So.2d 1053; Bohn v. Louisiana Farm Bureau Mut. Ins. Co., 482 So.2d 843 (La.App. 2d Cir.1986), units denied, 486 So.2d 750 (La.1986) and 486 So.2d 752 (La.1986). Generally, each case is considered in light of its own facts and circumstances, but the amount awarded must be reasonable. Bohn, supra.

1 uThe OPSO complains that the billing records submitted by Chandler “purportedly pertain to a completely separate action” and should have been disregarded by the trial court. However, counsel for Chandler explained that he redacted those billings that pertained to other matters being handled for Chandler. Moreover, the record shows that the trial court was aware of the background proceedings involving Chandler and the work done in this matter by counsel for Chandler.

The OPSO also asserts that the attorney’s fees should be limited to the sole issue upon which Chandler prevailed. It claims that Chandler knew for six months prior to the hearing that the records did not exist and that he could have simply propounded an interrogatory to the sheriff to find out what happened. Instead, Chandler went forward with a hearing in a failed attempt to show that the records at issue were improperly withheld.

There was no dispute concerning whether the records at issue were public records. The records were destroyed by OPSO personnel, though there was no showing that this was done to prevent Chandler’s access to them. In fact, it appears that the recording of the 19 calls and the subpoena return had been destroyed prior to Chandler’s requests. When Chandler requested the records at issue, the OPSO did not certify the reason for their absence as required by La. R.S. 44:34. Though the OPSO suggests that Chandler could have avoided a hearing by simply propounding an interrogatory, we observe that the OPSO could have avoided this controversy by simply complying with its duties under the public records laws. A member of the public should not have to file a suit to obtain access hsto a public record or information on what happened to records that should have been preserved by the custodian.

The transcript of the hearing on attorney’s fees shows that the trial court recognized that this matter involved many interrelated issues and that there was some relation as well with other proceedings involving Chandler. It was within the trial court’s discretion to determine that $17,000 was a reasonable fee considering the work done in this matter from the filing of the initial petition until the judgment on the attorney’s fees and costs was obtained. Having reviewed this record and the billing records submitted by Chandler, we find no abuse of discretion by the trial court in awarding $17,000 in attorney’s fees. Accordingly, we find no merit to the OPSO’s claim that the fees should be reduced and no merit to Chandler’s claim that they should be increased to $35,000.

The OPSO also asserts error in the trial court’s award of costs. As previously stated, the OPSO did not appeal or answer the appeal of the June 26, 2012, judgment that ordered it to pay the costs of litigation. It does not appear from the record that the OPSO objected to the amount of costs as represented by Chandler to the trial court. Pursuant to La. C.C.P. art.1920, a trial court may render judgment for costs, or any part thereof, against any party. We find no abuse of discretion by the trial court in ordering the OPSO to pay costs totaling $3,546.

Lastly, Chandler seeks an additional $4,000 in attorney’s fees and costs for appellate work. It is within the appellate court’s discretion to award or increase attorney’s fees for appellate work. Nesbitt v. Nesbitt, 46,514 (La.App.2d Cir.9/21/11), 79 So.3d 347, writ denied, 2011-2301 (La.12/2/11), 76 So.3d 1178. Both parties challenged parts of the trial court’s judgments in this matter and neither succeeded on the issues they presented. Chandler did not obtain an increase in the amount of attorney’s fees awarded by the trial court, and he did not obtain an award of penalties or damages in his separate appeal of the judgment on the merits. With these considerations in mind and in light of the substantial award of attorney’s fees made by the trial court in this limited matter, we decline to increase attorney’s fees for appellate work.

CONCLUSION

For the reasons set forth in this opinion, we affirm the judgments of the trial court in all respects. Each party is to bear his own costs of appeal.

AFFIRMED.

      . A sheriffs office is not a legal entity capable of being sued. Ferguson v. Stephens, 623 So.2d 711, 714-715 (La.App. 4th Cir.1993), and cases cited therein. Chandler initially named the sheriff's department as the defendant, but he substituted then Sheriff Royce Toney ("Sheriff Toney”) as the party defendant by a motion on September 20, 2010. As stated, this opinion refers to the defendant(s) as the "OPSO.”

      . This refers to a subpoena duces tecum issued pursuant to La. C. Cr. P. art. 66.

      . Chandler’s appeal was lodged in this court under docket number 48,179-CA.

      . This appeal by the OPSO was lodged under docket number 48,403-CA.

      . The OPSO did not appeal the trial court’s judgment on the merits and did not answer the appeal.