author: JAMES F. McKAY, III, Chief Judge.

text:
    STATE of Louisiana v. Kerry M. CUREAUX.
    No. 2012-KA-0335.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 1, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY, III, Chief Judge.

h Kerry Cureaux, the defendant, appeals his conviction for possession of heroin and his sentence of twenty years at hard labor as a fourth felony offender pursuant to La. R.S. 15:529.1. We affirm his conviction. However, we reverse the trial court judgment sentencing the defendant as a fourth felony offender, vacate the defendant’s sentence and reinstate the defendant’s original sentence of seven years at hard labor.

STATEMENT OF CASE

On November 18, 2009, the State of Louisiana charged the defendant, by bill of information, with one count of possession of heroin. The defendant pled not guilty to this charge at his arraignment on November 23, 2009. The trial court heard and denied his motion to suppress the evidence on March 12, 2010. Although the defendant objected and noted his intent to seek writs, he did not do so. The defendant elected a jury trial, and on June 2, 2010, the jury found him guilty as charged. The defendant orally moved for a new trial, and he filed a written motion on July 7, 2010, the date that the court denied the motion. On August 13, 2010, the court sentenced the defendant to serve seven years at hard labor. On November 4, 2011, the court found him to be a fourth felony |2offender. Three days later, the court sentenced the defendant to serve twenty years at hard labor as a fourth felony offender. The court also granted the'defendant’s motion for appeal on that date.

The appeal record was lodged in this Court on March 6, 2012. Counsel for the defendant filed a brief on his behalf on July 10, 2012, and the State responded on July 30, 2012. The defendant filed a pro se brief on August 7, 2012.

FACTS

On November 12, 2009, police officers arrested the defendant after he abandoned a package containing heroin on the front steps of 2418 North Claiborne Avenue. Officer Monroe Dillon, one of the arresting officers, testified at trial that he and his partner, Officer Demond Harris, were on patrol at approximately 9:00 p.m. on that night and were driving river-bound on Music Street when they stopped at the corner of North Claiborne. They saw the defendant standing in the middle of the neutral ground on North Claiborne, and he was arguing with a woman, later identified to be Deneene Jones, who was standing in the doorway of the residence at 1428 North Claiborne. Officer Dillon testified that the defendant and the woman were cursing each other so loudly that the officers could hear them even though the windows in them police unit were closed. The officers turned the corner and pulled up in the left lane next to the defendant. Officer Dillon stated that they activated the police unit’s.lights in order to keep traffic away from the defendant. They then exited their police unit and called for the defendant to come over to them. Officer Dillon testified that the defendant looked back at them but then he turned back around and started walking toward the woman’s residence. Officer Dillon stated that the defendant continued to berate the woman, and he approached |sher with both of his fists clenched. Fearing that the defendant was going to try to harm the woman, the officers followed him, ordering him to stop.

Officer Dillon testified that as the defendant walked up the stairs onto the porch, he opened his left hand, dropped an object, and continued walking up the stairs. Officer Harris caught up with the defendant and detained him, walking him back down the stairs. Officer Dillon retrieved the object that the defendant dropped and found it to be a torn Kool-Aid package. Officer Dillon testified that he went up to the woman and asked her if she was all right, and as he spoke with her, he looked inside the Kool-Aid package using a flashlight and noticed that a beige powder had been mixed in with the blue/purple Kool-Aid powder inside the package. Officer Dillon testified that he knew that drug users sometimes mix drugs with Kool-Aid because the acid in the Kool-Aid helps to break down the drugs for intravenous use. Officer Dillon testified that he closed up the package and placed it temporarily into his pocket. He went to the police unit and conducted a field test on the contents of the package, the result of which was positive for heroin and measured 1.8 grams.

Officer Dillon admitted on cross-examination that he did not know what caused the acid in Kool-Aid to break down drugs. He stated that he conducted the field test of the contents of the packet at the car, and he explained to the jury how he conducted the test. He identified exhibit D-2, the Central Evidence and Property receipt for the Kool-Aid package which indicated that the package contained blue and beige powder weighing 1.8 grams. He also identified defense photographs of the residence where the incident occurred.

The testimony of Officer Demond Harris basically tracked that of Officer Dillon. In addition he testified that he and Officer Dillon repeatedly asked the |4defendant to come to them, but the defendant ignored them, and they followed him because of his balled fists and his continued cursing at the woman. He testified that the defendant had gotten to the top of the stairs by the time he caught up to him. He agreed that the defendant did not resist him. Officer Harris denied that either he or his partner searched or even entered the woman’s house. He stated that the only contraband they recovered was the heroin inside the Kool-Aid package.

The parties stipulated that if Sergeant Harry O’Neal were called, he would be qualified as an expert in the testing and analysis of narcotics. They also stipulated that Sergeant O’Neal would testify that he received the evidence listed in exhibit S-l, examined it on December 4, 2009, found that it testified positive for heroin, and returned it to Central Evidence and Property on December 15, 2009. The parties also stipulated to exhibit S-2, Sergeant O’Neal’s crime lab report.

The sole defense witness was Deneene Jones, who testified that she lived at 2418 North Claiborne. She testified that she had known the defendant for thirteen to fourteen years, and on the day of his arrest, he was living with her. She characterized the incident as a “misunderstanding,” insisting that she and the defendant were not arguing on the night of his arrest. Instead, the defendant arrived at the house and knocked on the door to be admitted, but because she was in the back of the house, she did not immediately hear his knock. She testified that she eventually heard the knock and went to the door, and when the defendant identified himself, she opened the door and told him to come inside. She testified that at that point, the two officers pulled up and told her that they had received a call which she described as “it was a misunderstanding, like a complication [sic] of somebody fussing and things like that. But it wasn’t like that.” She denied that Rshe and the defendant had been fighting; instead, the defendant had come to her house to get some food and had brought with him some Kool-Aid to go with the food. She denied that the defendant had any drugs in his possession that night, and she insisted that she did not allow drugs into her house. She testified that before the defendant could walk through the door, the officers grabbed him, put his hands behind his back, took him down the stairs to the police car, and handcuffed him. She testified that the officers searched the defendant’s pockets and pulled out two packages of Kool-Aid, one was lemonade and the other blueberry. She testified that while one officer did not want to arrest the defendant, the other one did and told her to mind her own business when she questioned them. She denied seeing the officers conduct a field test, even though she watched them from her porch. She estimated that the officers were in front of her house for an hour from the time that they grabbed the defendant. She stated that another officer drove by and stopped to talk with the two arresting officers, but that officer then drove away.

On cross-examination, Deneene Jones explained that although the defendant was living with her, he did not have a key to the house because she had the only key. She estimated that he had lived with her for six months, but she stated that he also stayed at his mother’s house part of the time. She described the defendant as only a friend, and she denied that they had any children together. She described for defense counsel how she thought a field test is done, but she admitted that she had never observed one; instead, she had only observed lab tests in a health clinic. She then admitted that because she did not know how an officer conducts a field test, she could not say if Officer Dillon completed a field test.

After closing arguments, the jury instructions, and the adjournment of the jury to deliberate, the State re-called Officer Harris. Officer Harris testified that | fiwhile his partner was testifying, he saw someone, whom he identified as still sitting in the courtroom and wearing a State emblem on his shirt, come out of the courtroom twice, go to Deneene Jones, and speak with her. He did not hear what the man said to Deneene Jones. He stated that later, after he testified, he walked past the same man, who was again speaking with Deneene Jones, and he heard the man tell her that he (Officer Harris) testified that he and his partner did not enter her house.

DISCUSSION

Assignments of Error by Counsel

I.

As filed by counsel, on behalf of the defendant, in the first assignment of error, he contends that the trial court erred by denying his motion to suppress the evidence. He asserts that the officers could not lawfully seize the Kool-Aid package because they had no basis upon which to chase him up onto the steps, given that he and Deneene Jones were no longer arguing at the time he approached the porch where she was standing. He concludes that because he threw down the Kool-Aid package as a result of their unlawful infringement on his rights, its seizure was illegal, and the court should have granted his motion to suppress the evidence. This claim has no merit.

As per La.C.Cr.P. art. 703D, the State has the burden of showing any evidence seized in the absence of a warrant was lawfully seized. See State v. Wells, 2008-2262 (La.7/6/10), 45 So.3d 577. It is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 4 (La.12/1/09), 25 So.3d 746, 751; State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Wells, supra, 2008-2262, pp. 4-5, 45 So.2d at 581. As noted by the Court in State v. Thompson, 2011-0915, pp. 13-14 (La.5/8/12), 93 So.3d 553, 563:

The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La.12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La.3/8/02); 811 So.2d 875.

Because the evidence was seized in this case without a warrant, the State bore the burden of showing that it was lawfully seized.

Only Officer Harris testified at the suppression hearing, but his testimony did not vary much from his trial testimony. In addition to his trial testimony, Officer Harris testified that he and his partner pursued the defendant because he and De-neene Jones continued arguing, and they feared that he was going to try to hit her, as his hands were clenched into fists as he approached her. He also testified that Deneene Jones told his partner that she and the defendant were fighting because she had put him out of the house. He insisted that neither he nor his partner had any idea that the appellant was in possession of drugs until he dropped the Kool-Aid package.

Officer Dillon seized the Kool-Aid package containing the heroin after the defendant dropped it as he walked up the stairs, with the officers following him hand intending to stop him before he reached Deneene Jones, who was standing on the porch. Officers cannot legally seize property abandoned by a defendant if the abandonment occurred pursuant to an infringement on the defendant’s privacy rights. However:

[i]f ... property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.

State v. Belton, 441 So.2d 1195, 1199 (La.1983). See also State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208; State v. Tucker, 626 So.2d 707 (La.1993), opinion reaffirmed and reinstated on rehearing by 626 So.2d 720 (La.1993); State v. Williams, 2007-0700 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101; State v. Handy, 2002-1025 (La.App. 4 Cir. 9/25/02), 828 So.2d 1207. In Britton, the Court noted that “the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place.” Britton, 93-1990 at p. 2, 633 So.2d at 1209.

In Handy, this Court discussed a stop for purposes of determining whether abandoned property may be lawfully seized:

An “actual stop” occurs when an individual submits to a police show of authority or is physically contacted by the police. Tucker. An “imminent actual stop” occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. Id. The Supreme Court listed the following factors to be considered in assessing the extent of police force employed in determining whether that force was “virtually certain” to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) 13whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. An actual stop is imminent “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712. (emphasis supplied)

Handy, at pp. 4-5, 828 So.2d at 1210.

Although the officers had not actually stopped the appellant before he threw down the Kool-Aid package, it was evident that they intended to stop him. They called him to come to the car while he was still standing on the neutral ground, and when he ignored them and started toward the porch where Deneene Jones stood, they followed him. Officer Harris apprehended him as he reached the top of the steps, just after he abandoned the Kool-Aid package. The officers’ actions constituted an imminent actual stop, for which they needed at least reasonable suspicion of criminal activity.

As per La.C.Cr.P. art. 215.1, an officer may stop a person and question him if the officer has reasonable suspicion that the person has committed or is about to commit an offense. State v. Temple, 2002-1895 (La.9/9/03), 854 So.2d 856. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is less than the probable cause needed to arrest a defendant; an officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Katie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); Temple, supra, 2002-1895, p. 4, 854 So.2d at 859-860. In discussing the standard to be used by a reviewing court to determine if an officer had reasonable suspicion to detain a suspect, the Court in Temple stated:

|inIn determining whether the police possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, United States v. Sokolow, 490 U.S. [1] at 7, 109 S.Ct. [1581] at 1585 [104 L.Ed.2d 1 (1989)] (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.

Temple, 2002-1985, p. 5, 854 So.2d at 860. As noted by the Court in State v. Morgan, 2009-2352, p. 4 (La.3/15/11), 59 So.3d 403, 406: “[a]lthough reasonable suspicion is a less demanding standard than probable cause, the Fourth Amendment requires some minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 at 1585, 104 L.Ed.2d 1 (1989).” As per Morgan, factors to be considered include the time of day and location of the stop, as well as the defendant’s actions prior to the stop. Morgan, 2009-2352, p. 5, 59 So.3d at 406.

Contrary to the defendant’s argument, the officers had reasonable suspicion to stop the defendant prior to the time that he threw down the Kool-Aid package. They had both observed him and Deneene engaged in a heated argument involving profanities on both sides. The defendant ignored the officers’ attempts to speak with him, choosing instead to advance on Deneene Jones with his fists clenched. Deneene Jones testified that she and the defendant were not arguing, and that the officers merely appeared as the defendant was coming in the door to the residence, indicating that they had received a call of a domestic disturbance. By contrast, | nboth officers testified that they had not received any calls concerning the argument; instead, they happened upon it, and it was so vitriolic that they could hear it through the closed windows of their vehicle. They both testified that Deneene Jones and the defendant continued the argument after the officers initially tried to intervene, and they pursued the defendant as he approached Deneene Jones with his fists clenched because they feared he would try to hurt her. The trial court apparently believed the testimony of the officers over that of Deneene Jones. A fact finder’s credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence. State v. Johnson, 2009-0259, p. 9 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, 211; State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111. There is nothing in the record to show that the trial court abused its discretion in its credibility determination. The evidence adduced at the motion hearing and at trial showed that the officers had reasonable suspicion to detain the appellant before he abandoned the Kool-Aid package containing the heroin, and the trial court correctly denied the motion to suppress the heroin. This assignment of error has no merit.

II.

As filed by counsel on behalf of the defendant, in the second assignment of error, he asserts that the trial court erred by finding him to be a multiple offender pursuant to La. R.S. 15:529.1, because the State failed to file a written bill charging him as a multiple offender. In support, he cites State v. Buttner, 411 So.2d 35 (La.1982), where the Court reversed the defendant’s conviction and sentence because there was no indication that a bill of information was filed in the case. The State agrees that a defendant cannot be adjudicated and sentenced on an oral bill of information. See State v. Sutton, 544 So.2d 1345 (La.App. 4 Cir.1989). 112However, the State argues that the lack of bill of information in the record does not automatically invalidate the multiple offender adjudication and sentence.

In support, the State cites State v. Massey, 2009-1728 (La.App. 4 Cir. 11/5/10), 51 So.3d 808; State v. Hamilton, 2002-1281 (La.App. 4 Cir. 12/4/02), 834 So.2d 567; State v. Payne, 586 So.2d 652 (La.App. 5 Cir.1991); State v. Mitchell, 553 So.2d 915 (La.App. 4 Cir.1989); and State v. Grey, 522 So.2d 1216 (La.App. 4 Cir.1988), wherein each case the reviewing court found that the fact that the bill of information was missing from the record did not invalidate the subsequent conviction and sentence. The State points in each case to the fact that the court found no error because the defendant did not object at the time of trial to the lack of a bill. However, the defining factor in each of these cases was some indication in the record that the bill of information was actually filed. In Massey, Hamilton, and Mitchell, there were docket master entries indicating that the bill was filed. In Payne, the transcript indicated that the bill was read into the record at trial. In Grey, the minute entry of trial indicated that the bill was read aloud at trial.

Not mentioned by the State is this Court’s opinion in State v. Vincent, 2010-0764 (La.App. 4 Cir. 1/19/11), 56 So.3d 408. In Vincent, neither the appeal record nor the district court contained the multiple bill of information. Although there was no clear proof that the bill was filed, the transcript showed that the multiple bill proceeding was heard and, we emphasize and, conducted pursuant to a valid multiple bill of information. Id. at 414. This Court held that because the multiple bill hearing was held, and the defendant did not object that no bill was |13filed, this Court extrapolated from the record and made the assumption that the bill had been filed. This Court found that the purpose of a bill was to give the defendant notice of the charge which he faced. In Vincent, the defendant had notice when the jury convicted him that the State intended to file a bill charging him as a multiple offender, and he conceded in his brief that he was aware of the State’s intention. This Court also noted that the defendant did not object at the multiple bill hearing that the State had failed to file a bill. In so finding, this Court cited State v. Burks, 2002-1939 (La.App. 4 Cir. 3/19/03), 843 So.2d 444, but this reliance was somewhat misplaced because in Burks, there was a minute entry that stated that the bill was filed. Based on that factor and the defendant’s failure to object that the bill had not been filed, this Court in Burks assumed that the bill had been filed.

Here, the multiple bill of information is not contained in the appeal record, and the clerk’s office in the district court has certified that it also is not contained in the district court’s record. Unlike most of the cases cited above, there is no docket master entry, minute entry, or transcript that indicates that the multiple bill was filed. Unlike in Vincent, where Mr. Vincent knew that he was being charged a fourth felony offender pursuant to La. R.S. 15:529.1, in the instant matter there is no indication that the State informed the defendant that it intended to file a multiple bill of information charging him as a fourth offender. At the original sentencing hearing, the court indicated that the State had offered the defendant a plea deal prior to trial that promised to charge him only as a second offender and an offer of seven years, but the defendant rejected the deal. As evidenced in the transcript, there was some discussion between the court and the State as to what it would ultimately charge him as. But, it is apparent that no multiple bill had been 114filed at that point because the Assistant District Attorney asked that the court set a multiple bill hearing at a later date because that would give him time to speak with his supervisor. Trial counsel for the defendant also indicated that he had tried several times to confer with the District Attorney’s office concerning the multiple bill of information. The court then sentenced the defendant and reset the matter for a multiple bill hearing. The case was reset repeatedly for over a year due to the fact that the defendant was incarcerated in another parish, and it was not until almost fifteen months later that the multiple bill hearing was held. There is nothing in the minute entries of these dates that indicates that the State ever actually filed a multiple bill of information, and when the hearing was finally held, the defendant did not object that no bill had been filed.

Unlike most of the cases cited above, there is no indication in the record of this case that the State ever actually filed the multiple bill of information. In Vincent, even without any real proof that the bill was filed, this Court assumed that it had been filed because the State indicated that it intended to do so, and the defendant did not object at the multiple bill hearing that it had not been filed. However, here, unlike in Vincent, there is no indication that the State indicated to the defendant that it intended to charge him as a fourth offender; at the original sentencing, the ADA indicated that he had to consult his supervisor and asked the court to reset the multiple bill hearing. Therefore, as distinguished from the facts and procedure in Vincent, it is within the realm of argument that the State never clearly apprised the court or the defendant of its intention to multiple bill him as a fourth offender nor is it apparent that the defendant was ever fully informed that he had the potential of being billed and sentenced as a fourth offender. We note that while a multiple bill of information does not charge a crime, it is a method of 1r,informing the sentencing court of the circumstances and requesting an enhancement penalty. Vincent supra, 2010-0764, p. 10, 56 So.3d at 415 (citations omitted).

To reiterate, in Vincent, although there was no clear proof that the multiple bill of information was actually filed, there was evidence of a transcript showing that a multiple bill hearing proceeding was had. In the instant matter, there is no such evidence of a multiple bill of information charging the defendant as a fourth felony. Therefore, unlike Vincent, in the instant matter, the defendant was deprived of adequate notice of the enhancement.

The defendant is facing a virtual life sentence and all precautions protecting his rights are not simply axiomatic and should not just be assumed. We hold that the State must file a written bill of information charging the defendant as a multiple offender. All of the above jurisprudence clearly leads to this basic conclusion. The error is when assumptions are made without clear line of proof. Therefore, based solely on the facts of the instant matter, we find that the trial court erred in sentencing the defendant as a fourth offender as the State failed to file a multiple bill of information charging the defendant pursuant to La. R.S. 15:529.1. As such, we vacate the defendant’s sentence pursuant to La. R.S. 15:529.1 and reinstate the trial court’s original sentence.

Pro Se Assignments of Error

I. and II.

The defendant’s pro se assignments are connected. By his first pro se assignment, he alleges that the State violated his right to a fair trial by allowing the introduction of falsified evidence, a crime lab report that was introduced at the suppression hearing that pertained to a tinfoil packet of heroin. By his second | ^assignment, he contends that the State withheld exculpatory evidence by not introducing the tinfoil packet at trial. Neither of these arguments has merit.

The evidence to which the defendant refers to was erroneously introduced at the March 12, 2010 suppression hearing. The State showed Officer Harris motion exhibit S — 1, which the State described as the crime lab report for an evidence bag containing one tinfoil packet containing a tan-colored powder. Officer Harris immediately responded that the report was not the one connected to this case, noting that the report was issued from the St. Tammany Parish crime lab. The court then noted: “Harry O’Neil [sic] did it. It’s fine. I know what it is.” By the time of trial, the State had produced the correct crime lab report and introduced it as trial exhibit S-2 as part of a stipulation by both parties that Officer Harry O’Neal of the N.O.P.D. crime lab tested the powder in the Kool-Aid package, the result of which was positive for heroin. In addition, during the cross-examination of Officer Dillon, the defense counsel introduced exhibit D-2, the Central Evidence and Property receipt for the evidence seized by Officer Dillon, and about which counsel stated: “And it’s also true that under the description for the evidence that you turned in it’s a blue and red Kool-Aid pack containing a blue and beige powder weighing one point eight grams, correct?” Thus, it is evident that the exhibit erroneously introduced at the suppression hearing did not pertain to this case, but the State did not introduce that exhibit at trial. Nor did the State introduce an unrelated tinfoil packet at trial. Neither of the defendant’s pro se assignments of error has merit.

Errors Patent

A review of the record reveals a patent error. When imposing the sentence as a fourth felony offender, the court failed to indicate that the sentence was to be 117served without benefit of probation or suspension of sentence as required by La. R.S. 15:529.1G. However, as per La. R.S. 15:301.1A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the trial court’s failure to delineate them. Thus, there is no need for this Court to correct the sentence. See State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

However, while we note that there is a patent error, that issue is moot as we have reversed and vacated the trial court judgment finding the defendant to be a fourth felony offender.

CONCLUSION

We find no merit to the defendant’s assignments of error concerning his conviction. Therefore, we affirm his conviction. Regarding the issue concerning the State’s failure to file a multiple bill, based on the above discussion and applicable jurisprudence we reverse the trial court sentence pursuant to La. R.S. 15:529.1, vacate the defendant’s sentence as a fourth felony multiple offender and render judgment reinstating the defendant’s original sentence of seven years at hard labor.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; AND RENDERED

      . Writ denied. 2011-0315 (La.6/17/11), 63 So.3d 1038.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Moses TATTEN, Jr.
    No. 2012-KA-0443.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 1, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Moses Tatten, Jr., appeals his conviction of purse snatching and his sentence to life imprisonment at hard labor as a fourth felony offender. For the following reasons, we affirm.

PROCEDURAL BACKGROUND:

Defendant, Moses Tatten, Jr., was charged by bill of information with purse snatching, a violation of La. R.S. 14:65.1. Following a jury trial, the defendant was found guilty as charged. The trial court ordered a pre-sentence investigation. The State filed a multiple bill of information, alleging defendant to be a quadruple offender. The defendant filed a motion for new trial, which was denied by the trial court, which then sentenced the defendant to serve twenty years at hard labor. On the same day, the trial court denied the defendant’s motion to quash the multiple bill of information, and the multiple bill hearing was held. The trial court adjudicated the defendant to be a quadruple offender, vacated the prior sentence, and resentenced the defendant to life imprisonment at hard labor.

The defendant’s motions for reconsideration of sentence and downward departure were denied.

| .FACTUAL BACKGROUND:

The testimony at trial provided overwhelming evidence of the defendant’s guilt. The testimony included that of the victim, who stated that the defendant attacked her in broad daylight while she was walking with a friend on Esplanade Avenue near its intersection with N. Claiborne Avenue. After the defendant knocked her to the ground, he grabbed her shoulder purse, which she carried across her body, and in the process tore her brassiere in half. The victim’s friend corroborated her testimony.

The event was also witnessed by two Tulane University security police officers, who saw the defendant rip the purse from the victim and then be captured (along with the victim’s purse) by a man riding a bicycle. The two Tulane officers exited their vehicle and handcuffed the defendant who fought and resisted the officers to such an extent that they were forced to use pepper spray to subdue him.

The defendant took the stand in his own defense. His version of the events provided that while escaping from a robber himself, he accidentally ran into the victim, knocking her to the ground. The defendant’s account was not accepted by the jury, which voted 6-0 to convict. DISCUSSION:

|sThe defendant does not assign as error any lack of evidence or mistake in the evaluation of evidence, but rather contends that the jury pool was tainted and that his adjudication as a quadruple offender and subsequent life sentence were improper. We address the defendant’s three assignments of error in the following parts.

1.

In his first assignment of error, the defendant contends that the trial court erred when it denied his motion for new trial, in which he argued that another district court judge’s comments to the potential jury venire were prejudicial and contributed to the jury’s verdict. The defendant’s motion is based upon a statement allegedly made by Judge Pittman during jury orientation that the jurors should remove their jury badges when they leave the courthouse so that they would not be approached by family members of the parties involved. None of the jurors in the present case brought this statement to the court’s attention during voir dire.

Defendant’s counsel became aware of the alleged statement because jurors in another case mentioned the statement during voir dire. Some jurors in that case, in which the defendant was charged with second degree murder, expressed concern about the statement. While most of the jurors felt that the statement was made for the jury’s safety, a few jurors felt that the statement was a warning made to prevent the jurors from being intimidated or influenced outside of the courtroom.

The trial court, in the present case, conducted a hearing on the motion for new trial and reviewed the transcript of the voir dire conducted in the other case. I/The trial court denied the motion for new trial, finding that the alleged statement did not prejudicially affect the jurors and/or contribute to the verdict. The trial court found that there was no evidence of prejudice in the jury selected, stating that both the State and the defense were given as much time as needed to voir dire the potential jurors, and they conducted detailed voir dire of all potential jurors. None of the jury venire mentioned Judge Pittman’s alleged statement.

The decision on a motion for new trial rests within the sound discretion of the trial judge, and its ruling will not be disturbed on appeal absent a clear showing of abuse. State v. Quimby, 419 So.2d 951, 960 (La.1982). The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. As a general rule, a motion for new trial will be denied unless injustice has been done. La.Code Crim. Proc. art. 851; State v. Johnson, 08-1488, p. 17 (La.App. 4 Cir. 2/10/10), 33 So.3d 328, 338.

The trial court did not abuse its discretion when it denied the motion for new trial.

2.

In a second assignment of error, the defendant suggests that his adjudication as a multiple offender should be reversed. The defendant contends that he should have been charged through a bill of indictment because as a quadruple offender, he was subject to a sentence of life imprisonment, that he was entitled to have his multiple offender status determined by a jury, and that the State did not meet its burden of proving his prior convictions.

This Court has recognized on numerous occasions that a defendant, who has been alleged to be a multiple offender, is not entitled to be charged in a bill of | ¿indictment or to be tried by a jury. This Court addressed both issues in State v. Landfair, 10-1693 (La.App. 4 Cir. 7/20/11), 70 So.3d 1061.

This same argument has been asserted and found to be without merit multiple times by this Court. For example, in State v. Vincent, 2010-0764, pp. 9-10 (La.App. 4 Cir. 1/19/11), 56 So.3d 408, 414-15, this Court explained that[:]
[T]he Louisiana Constitution of 1974 does not require that the District Attorney institute proceedings by a bill of indictment where the maximum penalty for the charge is less than life imprisonment. The constitution mandates that prosecution of felonies be initiated by indictment or information applies only to the substantive crime for which the accused is charged. La. Const.1974, art. I, § 15; La.C.Cr.P. art. 382. In State v. Alexander, 325 So.2d 777, 779 (La.1976), quoting State v. Jackson, 298 So.2d 777 (La.1974), the Court reasoned that the “(bill of) information [charging the defendant as a multiple offender] does not charge a crime but is merely the method of informing the sentencing court of the circumstances and requesting an enhancement of penalty.” Thus, the enhanced penalty proceeding does not charge the defendant with a crime; consequently no indictment is necessary. Id. Moreover, the charging instrument is dependent upon the classification of the substantive crime charged, not the enhanced penalty to which an individual may be subject upon conviction. Id. In State v. Tassin, [20]08-0752, p. 9 (La.App. 3 Cir. 11/5/08), 998 So.2d 278, 285, writ denied [20]08-2909 (La.9/18/09), 17 So.3d 385, the defendant asserted that State v. Alexander needed to be reconsidered in light of U.S. v. Booker, 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] (2005). The court reasoned that Booker was not applicable because it did not address a recidivism statute. Id. at 238 [125 S.Ct. 738]. Thus, the Tassin court concluded that State v. Alexander was still “good law.”
⅜ ⅜ ⅜ ⅜
The appellant asserts next that under the Fourteenth and the Sixth Amendments to the U.S. Constitution, he was entitled to have a jury decide if he is a multiple offender. He argues that the United States Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), provide only that the bare existence of a prior conviction does not need to be determined by a jury. Anything else, such as the identity of a defendant as the person who was previously convicted, must be decided by a jury.
Again, the argument that a defendant is entitled to a jury trial in connection with a multiple offender proceeding pursuant to La. R.S. 15:529.1 has been rejected multiple times, including by this Court in Vincent, 2010-0764, pp. 10-11, 56 So.3d at 415; State v. Juengain, 2009-0425, p. 11 (La.App. 4 Cir. 1/20/10), 41 So.3d 499, 506-07; and State v. Smith, 2005-0375, pp. 3-5 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839-840.

| State v. Landfair, 10-1693, pp. 5-6, 70 So.3d at 1065-1066.

The defendant also argues that the State did not prove his status as a quadruple offender because it failed to prove the validity of his guilty pleas. In State v. Shelton, 621 So.2d 769, 775 (La.1993), the Supreme Court stated that the “introduction of a transcript of the plea colloquy between the judge and the defendant which indicates that the plea was voluntary and which includes an articulated waiver of the three Boykin rights would be sufficient to meet the State’s burden of proving through a contemporaneous record a guilty plea was taken in compliance with Boykin, and, indeed, is the method of proof preferred by this court.” However, the Court acknowledged that there were other methods of proving that a prior guilty plea was voluntary.

On the contrary, we have found a variety of modes of proof, other than only a “perfect” transcript, to be sufficient to meet the State’s burden of proof in a habitual offender hearing. The dominant thread running through the cases appears only to require that the court must determine from the entire record that the defendant was informed of and specifically waived his three Boy-kin rights. We have allowed a guilty plea form to supplement an “imperfect” transcript of the colloquy, i.e. one which reveals the judge and the defendant discussed a waiver of only some of the Boykin rights. For example, in State v. Dunn, 390 So.2d 525 (La.1980), this court found the record contained a sufficient affirmative showing of a knowing and express waiver where the record contained a transcript of the plea colloquy indicating an explicit waiver of two of the Boykin rights and a plea of guilty form signed by the defendant, his attorney, and the judge which contained an express waiver, initialed by defendant, of the third right. Likewise, in State v. Halsell, 403 So.2d 688, 690 (La.1981) (emphasis added), we noted that a “colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” Thus, even though the transcript of the colloquy revealed that the judge did not expressly obtain a waiver of defendant’s privilege against self-incrimination, we nevertheless found that [State ex. rel.] Jackson [v. Henderson]'s, [255 So.2d 85 (La.1971) ] requirements were met where the written waiver of rights/plea of guilty form signed by defendant and his attorney stated that the attorney had informed defendant of his privilege against self-incrimination and that defendant had voluntarily waived it. See also State v. Washington, 406 So.2d 191 (La.1981).
|7In other cases, we have found a minute entry alone to be sufficient under [State v.] Lewis [367 So.2d 1155 (La.1979) ] and [State v.] Holden [375 So.2d 1372 (La.1979) ]. In State v. Bland, [419 So.2d 1227 (La.1982) ] supra, an habitual offender case, we found the State had affirmatively proven the defendant was fully informed of and voluntarily waived his three Boykin rights where the State introduced a minute entry which stated “the Court inquired of the defendant if he understood that by entering this plea he as [sic] waiving his right to trial by jury, waiving his rights against compulsory self-incrimination and waiving the right to be confronted by the witnesses against him. The defendant replied affirmatively.”
Most importantly, for our purposes, we have also held the State has met its burden of proving a prior guilty plea in a habitual offender hearing where it submitted a very general minute entry and a well-executed plea of guilty form. In State v. Tucker, 405 So.2d 506 (La.1981), defendant argued his sentencing as an habitual offender must be set aside due to the State’s failure to prove at the habitual offender hearing Boykinization of the prior guilty plea. At the hearing, the State submitted a copy of the minute entry (which indicated the judge “questioned the accused under oath regarding his plea of guilty”) and a copy of a plea form initialed several times by defendant, which stated defendant understood and waived his three Boykin rights. The form was also signed by defendant’s counsel and the trial judge. We held these two documents provided an affirmative showing in the record that the accused made a knowing and voluntary waiver of his rights.
We think that the minute entry concerning the abbreviated colloquy along with the well executed waiver of rights’ form signed by defendant, his attorney and the trial judge constitute a sufficient affirmative showing in the record that defendant knowingly and intelligently waived his constitutional privilege against self-incrimination, right to trial by jury, and right to confront his accusers.

State v. Shelton, 621 So.2d at 776-77.

In the multiple bill of information, the State alleged the defendant to be a quadruple offender based upon a guilty plea to attempted armed robbery on September 27, 1994; a conviction for possession of cocaine on August 2, 1995; and a guilty plea to possession of cocaine on August 12, 2009. The defendant contends that the State failed to prove the validity of his guilty pleas to attempted armed robbery and possession of cocaine.

At the multiple bill hearing, the State produced “certified packs” as to each offense. Included in the certified pack for the 1994 guilty plea for attempted armed robbery, in case 298-339, were the minute entry of September 27, 1994, and | swaiver of rights form executed by the defendant, defense counsel and the trial judge. The minute entry states that the trial court advised the defendant of his rights and interrogated defendant as to whether he understood his rights, and the defendant answered in the affirmative. The waiver of rights form specifically listed each of the defendant’s rights as well as the potential sentencing range. The defendant initialed each right and the potential sentencing range. The form was signed by the defendant, defendant’s counsel and the trial judge. Pursuant to Shelton, the minute entry and waiver of rights form were sufficient to prove that the defendant’s guilty plea to attempted armed robbery was knowingly and voluntarily made.

The certified pack for the defendant’s guilty plea to possession of cocaine in case number 475-871 included the minute entry of August 12, 2009 and waiver of rights form signed by the defendant, defense counsel and the trial judge. The minute entry states that the trial court advised the defendant of his rights and interrogated defendant as to whether he understood his rights. The defendant acknowledged that he understood his rights and that he was waiving his rights. The waiver of rights form specifically listed each right and that the defendant was to be sentenced to one year at hard labor. The defendant placed his initials by each right and the acknowledgment of his sentence. The waiver of rights form was signed by the defendant, defense counsel and the trial judge. Again, pursuant to Shelton, these documents are sufficient to prove that the defendant’s guilty plea was knowingly and voluntarily made.

The defendant further contends that the State was unable to prove that ten years did not elapse between his two convictions for possession of cocaine, because the State did not prove when defendant’s sentence under the 1995 ^conviction expired. The State bears the burden of proving that the predicate convictions fall within the “cleansing period” prescribed by La. R.S. 15:529.1(0; State v. Brown, 598 So.2d 565, 575 (La.App. 4 Cir.1992); State v. Falgout, 575 So.2d 456, 457 (La.App. 4 Cir.1991). This ten-year “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311, 314 (La.1977); State v. Thomas, 04-1341, p. 15 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906. The Louisiana Supreme Court has stated that the expiration of a previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections. State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La.1982); State v. Anderson, supra. “Discharge from supervision can take place earlier than the theoretical date on which the initial sentence would have terminated, because of a pardon, commutation, or good time credit. Or it can take place later because of parole revocation.” State ex rel. Wilson v. Maggio, 422 So.2d at 1123.

In Falgout, the State did not introduce any evidence showing the defendant’s date of release on the predicate offense. This Court considered the defendant’s eligibility for good time and parole in determining the defendant’s earliest release date from the predicate offense. The Court acknowledged that the defendant was not eligible for good time and would not have been eligible for parole until he had served at least one-third of his sentence. The Court stated:

Unlike [State v.] Nasworthy, [542 So.2d 715 (La.App. 4th Cir.1989) ] where the previous conviction was from Georgia and the release date was not apparent from the record, we find that although the State did not affirmatively establish that the time period has not elapsed, the record indicates “more probable than not” it had not elapsed. See State v. Turner, 365 So.2d 1352 (La.1978).

Falgout, 575 So.2d at 458.

| ,nIn Turner, the Louisiana Supreme Court reviewed the defendant’s claim that the evidence presented at his multiple offender hearing did not establish the date of discharge from his prior conviction. The Court stated that while the record did not affirmatively establish that the time period had or had not elapsed, the showing indicates that more probably than not, the cleansing period had not elapsed between the crimes. Turner, 365 So.2d at 1355.

In this case, a review of the certified packs from case number 374-135 reveals that the defendant was arrested for possession of cocaine on December 7, 1994. The defendant was found guilty as charged by a jury on August 2, 1995. He pled guilty under a multiple bill of information on August 24, 1995, and was sentenced to five and one half years at hard labor. The defendant was arrested on December 23, 2006, for possession of cocaine, the offense charged in case number 475-871.

Under the multiple offender statute, La. R.S. 15:529.1(G), the sentence was imposed without benefit of probation or suspension of sentence. Further, as a multiple offender, the defendant was not entitled to good time, i.e., diminution of sentence, La. R.S. 15:571.3(C)(1), and would not have been eligible for parole until he had served at least one-half of his sentence. La. R.S. 15:574.4. While the defendant’s actual discharge date is not known, even assuming that the defendant was in jail from the time of his arrest on December 7, 1994, he would not have been discharged, at the earliest, until sometime in August or September, 1997. The defendant was arrested for possession of cocaine on December 23, 2006, within the ten year period. Just as the Supreme Court noted in Turner, while the record did not affirmatively establish that the time period had or had not elapsed, 1 uthe showing indicates that more probably than not it had not elapsed between the crimes.

The State met its burden of proving the validity of the guilty pleas and that the ten years cleansing period had not elapsed. The trial court did not err when it adjudicated the defendant to be a quadruple offender.

3.

In his last assignment, the defendant argues that his sentence under the multiple bill of information is unconstitutionally excessive. After it adjudicated the defendant to be a quadruple offender, the trial court sentenced the defendant to life imprisonment at hard labor. Pursuant to La. R.S. 15:529.1(A)(4)(a), the defendant was subject to a sentencing range from twenty years to life imprisonment.

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. State v. Landry, 03-1671, p. 7 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-40. A sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit. Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence within the statutory limit is constitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Landry, 03-1671, p. 8, 871 So.2d at 1239-1240, citing State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676.

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.Code Crim. Proc. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 892. If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.1985). The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. Code Crim. Proc. art. 881.4(D).

In State v. Randell, 40,014 (La.App. 2 Cir. 9/21/05), 911 So.2d 393, the Second Circuit upheld the defendant’s sentence of life imprisonment under the multiple offender statute. The defendant had been convicted of purse snatching, and the State subsequently filed a multiple bill of information. In sentencing the defendant, the trial court noted that two of the prior convictions in the multiple bill were for simple robbery. The Second Circuit, in affirming, also noted that the trial court considered a pre-sentence investigation report and the facts of the case, and gave reasons, in which the trial court noted the defendant’s “lengthy criminal history,” which included “a variety of felonies.” Randell, 40,014, p. 4, 911 So.2d at 396.

In State v. Heard, 36,191 (La.App. 2 Cir. 7/17/02), 823 So.2d 454, the court affirmed imposition of a life sentence on the defendant, who was convicted of purse snatching and adjudicated a fourth felony offender under the multiple offender statute. The court noted that the defendant had prior convictions for first degree robbery and distribution of cocaine.

| isln the present case, the trial court ordered a pre-sentence investigation, which revealed numerous arrest and convictions. The trial court noted, during the sentencing hearing, that the defendant had over forty arrests, not including his juvenile record. The trial court recognized that in addition to the convictions listed in the multiple bill of information, the defendant had convictions for simple robbery, aggravated battery, attempted armed robbery, resisting an officer, second degree battery, battery of a police officer, possession of cocaine and possession of drug paraphernalia. The trial court also noted that the defendant showed no remorse for the present offense. The trial court stated that the defendant continued to deny in the pre-sentence investigation that he took the victim’s purse. The trial court considered the facts of the present case and the defendant’s extensive criminal record when it imposed the life sentence. Given the defendant’s extensive criminal history, which includes several crimes of violence, the sentence of life imprisonment as a fourth felony offender is supported by the record.

Accordingly, for the reasons set forth herein, the conviction and sentence are affirmed.

AFFIRMED

      . A review of the record for errors patent reveals that the sentence the trial court imposed was illegally lenient. After adjudicating the defendant to be a quadruple offender, the trial court sentenced the defendant to life imprisonment at hard labor. However, La. R.S. 15:529.1 requires that the sentence must be imposed without the benefit of probation or suspension of sentence. La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court.
      Furthermore, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the district court’s failure to specify that the defendant's sentence be served without benefit of probation or suspension of sentence. The correction is statutorily effected. State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana v. Leroy A. LODGE. STATE of Louisiana v. Leroy A. Lodge.
    Nos. 2012-KA-0733, 2012-KA-0734.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew Caplan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Julie C. Tizzard, Julie C. Tizzard, L.L.C., Amy E. Mixon, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

| jThe State appeals the judgment of the trial court granting Leroy Lodge’s, motion to quash the bill of information on December 14, 2011 and finding that the State’s prosecution of the defendant was prohibited by the ex post facto clauses of both the State and Federal constitutions. We find merit to the State’s argument and reverse the judgment of the trial court.

STATEMENT OF CASE

In this consolidated appeal we are addressing 2012-KA-0733, which corresponds to district court number 502-192 “B”, and 2012-KA-0734, which corresponds with district court number 508-450 “B.” Both appeals concern issues of two separate violations of Louisiana’s sex offender registration law, pursuant to La. R.S. 15:540 et seq.

In 1983, Leroy Lodge was convicted of forcible rape, a violation of La. R.S. 14:42.1, and sentenced to twenty years. See State v. Lodge, 447 So.2d 88 (La.App. 4 Cir.1984). Leroy Lodge was incarcerated for this offense from January of 1983 until he was paroled and released in June 1995. In 1999, Leroy Lodge’s parole was revoked on a technical violation of his probation, and he was reincarcerated until his release in 2003. At the time of his commission of the alleged lacrime, and his conviction of the offense, there were no statutes in place in Louisiana that required Leroy Lodge to register as a sexual offender. However, as a condition of his probation, upon his release, he registered as a sex offender pursuant to La. R.S. 15:540 et seq., which in 2003, required registration for a ten year period. We note that on February 14, 2007, the Division of Probation and Parole for the State of Louisiana terminated Leroy Lodge’s period of supervision. He was notified that his case was being transferred to the New Orleans Police Department for registration and notification monitoring. In compliance with La. R.S. 15:540 et seq., after his release in 2003, he continued to register until 2010. In a revision to La. R.S. 15:544(A), the general registration period was extended from ten to fifteen years, which effectively extended Leroy Lodge’s registration obligation.

On May 9, 2011, at a preliminary hearing in magistrate court, Detective Randy Hughes, assigned to the New Orleans Police Department’s Sex Crimes Unit, testified that he reviewed Leroy Lodge’s file on May 26, 2010. He testified that at the time of Leroy Lodge’s September 8, 2009 periodic registration, Leroy Lodge listed his address as 7044 Warfield Street, New Orleans, Louisiana. Upon further review Detective Hughes discovered that Leroy Lodge never returned for his periodic registration update on December 3, 2009, and that Leroy Lodge also failed to report for his March 26, 2010 periodic registration. See La. R.S. 15:542.1.1.

On May 27, 2010, an arrest warrant was issued against Leroy Lodge. On June 28, 2010, Leroy Lodge was arrested. On November 24, 2010, Leroy Lodge was charged by bill of information with a failure to register as a sex offender in violation of La. R.S. 15:542(case # 502-192 “B”).

|sOn May 18, 2011, a new warrant for Leroy Lodge’s arrest was issued. According to the warrant application filed by State Trooper Andrew Pratt, an April 26, 2011 compliance check revealed that Leroy Lodge was not living at his registered address. Leroy Lodge was arrested pursuant to this warrant on August 10, 2011. A second bill of information was filed against Leroy Lodge in case number 508-450 “B”, charging Leroy Lodge with failing to provide notification of change of address as a sex offender during the period of April 26 to August 9, 2011, which is a violation of La. R.S. 15:542.1.2., which was enacted in 2007 and became effective in 2008.

On November 21, 2011, the Leroy Lodge filed a motion to quash the bill of information under docket number 502-192 “B” alleging that the State’s prosecution would constitute a violation of the ex post facto clause of both the State and Federal Constitutions. He maintains that he was convicted and had served the punitive portion of his sentence before the enactment of La. R.S. 15:40 et seq., the sexual offender registration act. He asserts that as such, he is being wrongfully prosecuted for a collateral criminal consequence; a failure to register. Leroy Lodge is not challenging the initial retroactive application of the statute in 1995 because it was a condition of his parole. On December 14, 2011, the trial court granted the defendant’s motion to quash, opining that the issue was “right [ripe] for the Fourth Circuit,” and adopted the motion for both cases, numbers 502-192 “B” and 508-450 “B”, and quashed the bills of information for both cases.

|4The State appealed the trial court’s ruling in both cases. On May 29, 2012, the State filed a motion to consolidate the appeals from both trial case numbers. This Court consolidated case numbers 2012-KA-0783 and 2012-0734 on June 5, 2012.

DISCUSSION

In Leroy Lodge’s November 21, 2011 motion to quash, under docket number 502-192 “B”, he maintains that the State’s prosecution is based upon his alleged failure to register under La. R.S. 15:542 et seq., which imposes a lifetime registration obligation on sex offenders, violates the prohibition against the imposition of ex post facto laws in both the Louisiana and Federal Constitutions. In support of his argument he asserts that his case is similar to State v. Smith, 2009-1765 c/w 2009-1169 (La.App. 1 Cir. 3/26/10), 2010 WL 1173071, unpub.

Conversely, the State maintains that the trial court erred in quashing the bill of information in cases 502-192 “B” and 508-450 “B”, as the ex post facto clauses were not violated by charging Leroy Lodge with the revisions to La. R.S. 15:524. The State argues that the First Circuit’s decision in Smith, was reversed by the Louisiana Supreme Court in Smith v. State, 2010-1140 (La.1/24/12), 84 So.3d 487.

Leroy Lodge now argues that his case is distinguishable from Smith because 1) there was no initial sexual offender registration requirement at the time of his conviction; 2) he had fulfilled his requirement to register as a sexual offender as a condition of parole prior to being informed and notified of the new lifetime registration requirement; and 3) he is facing mandatory jail time and fines.

Art. I, § 10 of the United States Constitution prohibits states from passing, and La. Const. Art. I, § 23 prohibits the enactment of, ex post facto laws. See also State ex rel. Olivieri v. State, 2000-0172, 2000-1767 (La.2/21/01), 779 So.2d 735, (analyzing both clauses). Under U.S. Const. Art. I, § 10, four categories of ex post facto laws have been outlined: 1) a law making criminal, and subject to punishment, an activity which was innocent when originally done; 2) a law aggravating a crime or making it a greater crime than it was when originally committed; 3) a law aggravating a crime’s punishment; and 4) a law altering the rules of evidence to require less or different testimony than was required at the time of the commission of the crime. Id. at 1767 p. 11, 779 So.2d at 742, citing Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). The focus of a federal ex post facto inquiry is whether a legislative change “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Olivieri, 2000-0172, 2000-1767, p. 14, 779 So.2d at 743. Accordingly, “the operative factor in determining whether a law falls within the ambit of the ex post facto clause is whether the law can be considered ‘punishment’ or altered the definition of criminal conduct.” Id. The Oli-vieri Court adopted the same analysis under La. Const. Art. I, § 23. Id. at 744. Using this analysis, the Olivieri Court concluded that Louisiana’s sexual offender registration and notification statute “is not so obtrusive that we would find it punitive rather than remedial or regulatory as was the intention of the legislature.” Id. at 749.

In State v. Smith, 2010-1140, p. 14 (La.1/24/12), 84 So.3d 487, 497, the Louisiana Supreme Court found that “the period of time a sex offender is obligated to register may be extended during the time of his original registration period without violating the ex post facto clause.” The Smith Court, on the issue of the ex post facto clause further expounded:

| fiIt is well-settled that Louisiana’s sex offender registration requirements are not punitive, but rather, they are remedial and may be applied retroactively without violating the prohibition of the ex post facto clause. In State ex rel. Olivieri v. State, 00-172 (La.2/21/01), 779 So.2d 735, this court considered an ex post facto challenge to the sex offender registration provisions. We resolved the issue by holding the registration and notification requirements imposed upon sex offenders to be a legitimate, non-punitive regulatory scheme that did not impose punishment. Id., pp. 19-20, 779 So.2d at 747. Because such provisions were found to be remedial in nature, we concluded that application of the sex offender registration and notification laws to persons convicted before their enactment does not violate ex post facto principles. Id. Similarly, in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2002 [2003]), the United States Supreme Court determined that Alaska’s lifetime registration and notification requirements for sex offenders were non-punitive and, thus, did not violate the ex post facto clause.
⅜ ⅝ ⅜ ⅜ ⅜ ⅜
After reviewing the foregoing jurisprudence, we find the increase in the number of years Mr. Smith is required to spend as a registered sex offender is not punishment. Accordingly, applying to Mr. Smith the 1999 amendment to former La.Rev.Stat. 15:542.1 does not violate the ex post facto clause.
Similarly, the amendments and provisions added in 2007 and 2008, as well as the 2006 legislation regarding the placement of a restriction code on the offender’s driver’s license and identification card, are applicable to Mr. Smith without violating the ex post facto clause. As we explained in Olivieri, p. 20, 779 So.2d at 747, the legislative intent behind the registration statutes is to alert the public for the purpose of public safety, a remedial intent, and not to punish convicted sex offenders. We further explained that, while some of the provisions of the registration statutes may be remotely similar to historical forms of punishment, such as public humiliation, the immediate need for public protection was a corollary of, rather than an addendum to, the punishment of sex offenders. Id., pp. 21-22, 779 So.2d at 748. We further recognized that, although the registration statutes imposed the burden of the public and community notification process on convicted sex offenders, which caused them to have to expend money they were not obligated to pay at the time they committed their offenses, the onus placed on them by the legislation did not constitute a separate punishment for their offense, but rather, it imposed a condition of their release on parole or probation. Id., p. 24, 779 So.2d at 749. Therefore, we found that any costs associated with the conditions of their release were a necessary part of the regulatory scheme. Id., pp. 22-24, 779 So.2d at 748-19.
|7As we did in Olivieri, we find that the sex offender statutes, as amended in 1999, 2006, 2007, and 2008, to the extent they are applicable to Mr. Smith, are not so obtrusive as to deem them punitive rather than remedial or regulatory. While the extension for life of the time period for registration, as well as the added requirement of notations on Mr. Smith’s driver’s license or identification card, may be harsh, may impact a sex offender’s life in a long-lived and intense manner, and also be quite burdensome to the sex offender, we do not find them to constitute an infringement of the principles of ex post facto. See Olivieri, p. 24-25, 779 So.2d at 749-50.

Smith, 2010-1140 at pp. 15-17, 84 So.3d at 498-99; See Jackson v. State, 2011-842 (La.App. 3 Cir. 2/15/12), 102 So.3d 784, 790-91.

The procedural history of the Smith case is similar to that of Leroy Lodge’s case. Smith pled nolo contendere to indecent behavior with a juvenile on June 16, 1995, and he pled guilty in another parish to carnal knowledge of a juvenile on July 25, 1995. Smith v. State, 84 So.3d at 489. Smith was released from prison on December 12, 1996, and placed on probation. Id. Smith completed parole in 1998. Id. at 490. The Court found that charging Smith under La. R.S. 15:544, as amended in 2007 and 2008, did not violate the ex post facto clause because the original amendment requiring lifetime registration occurred in 1999 with the enactment of former La. R.S. 15:542.1, within Smith’s original ten year registration period. Id. at 497. In this case, Leroy Lodge was released early in June 1995 from a twenty year sentence issued for a 1983 conviction, but was remanded for a technical violation of his parole and not released until 2003. He is now charged with violating La. R.S. 15:542, between December 3, 2009, and May 26, 2010, which are the dates that he failed to register as required by the statute. La. R.S. 15:542 currently states, in pertinent part:

|RA. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:

(1) Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
(a) A sex offense defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section; ...

La. R.S. 15:542 was originally enacted in 1992. At the time of Leroy Lodge’s 1995 release La. R.S. 15:544(A) mandated that a person required to register under La. R.S. 15:542 must do so for ten years from release from confinement or imprisonment. (West 1996). Under that version of the statute, Leroy Lodge was obligated to comply with registration requirements until June 2005.

The State points to La. R.S. 15:542.1(H)(3), which provided that persons convicted of an aggravated offense must register for life. However La. R.S. 15:542.1(H)(3) was repealed by Acts 2007, No. 460, prior to the period of the charged offense-December 3, 2009 to May 26, 2010. Nevertheless, Acts 2007, No. 460 also extended the general registration period in La. R.S. 15:544(A) from ten to fifteen years, which effectively extended the period of Leroy Lodge’s registration obligation.

Acts 1999, No. 594 enacted La. R.S. 15:541(17), which have been revised, defined an aggravated offense as including “any offense where the offender engages in sexual acts involving penetration with any victim through the use of force or threats of serious violence.” Act 594 also enacted La. R.S. 15:542.1(H)(3), which provided: “The following persons shall be required to register for 19life: (a) Any person with a prior conviction for an offense for which registration under this Chapter is required, (b) Any person convicted of an aggravated offense as defined.”

It is not disputed in this case that Leroy Lodge was convicted of forcible rape in 1983. Because Leroy Lodge was convicted of forcible, he was part of the class of persons required to register for life under Acts 1999, No. 594. Thus, Leroy Lodge’s conviction for the aggravated crime of forcible rape fits under this provision, and he was required to register under the dictates of La. R.S. 15:542(B) and (C), as the law currently stands.

Based on the applicable jurisprudence from our Louisiana Supreme Court holdings, as cited above in Smith, and Olivieri and the holding of the Louisiana Third Circuit Court of Appeal in Jackson, we find that the trial court erred in quashing the bill of information based on the theory that the registration requirement imposed on Leroy Lodge was a violation of the ex post facto clause in this matter.

In Leroy Lodge’s case, the period of time for registration as a sexual offender pursuant to La. R.S. 15:542 et sec, was extended to a lifetime registration with the appropriate authority and subject to all of the amended requirements of the statute. Although the numerous changes to these enhancement provisions may seem harsh and burdensome, we cannot find that they constituted any infringement of the principles of ex post facto. However, while we fully agree that the sexual offender registration statutes serve a paramount governmental interest, we cannot ignore the onerous nature of the ever changing requirements that the legislature has imposed on offenders. The Legislature may just be tweaking the law dangerously 110close to the level of becoming punitive in nature. Nevertheless, we are in harmony and agreement with the prior jurisprudence on this issue.

Additionally, Leroy Lodge is also charged in this consolidated matter, case # 508-450 “B”, with violating La. R.S. 15:542.1.2, for a failure to notify, between April 26 and August 9, 2011. The applicable statute requires notification to law enforcement of changing address, residence, or other registration information.

The trial court erred in granting the motion to quash as the motion had not been filed in writing. La.C.Cr.P. art. 536 mandates that “[a] motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” Moreover, “[i]t shall specify distinctly the grounds on which it is based.” Id. Finally, “[t]he court shall hear no objection based on grounds not stated in the motion.” A trial court cannot quash a bill of information where no written motion to quash is filed. State v. Dixon, 2010-1279, p. 3 (La.App. 4 Cir. 5/2/11), 64 So.3d 852, 854. The record in this case does not include a written motion to quash the bill of information in case number 508-450. The trial court allowed Leroy Lodge to “adopt” his motion to quash filed in case number 502-192 “B” for case number 508-450 “B”. This action exceeded the trial court’s discretion and was error. Accordingly, we reverse the trial court judgment in case number 504-450 “B”.

CONCLUSION

For the reasons state above, we reverse the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . According to the application, the house at the registered address was destroyed by Hurricane Katrina. Leroy Lodge's brother, Curtis Lodge, lived on the property in a trailer. Although, Leroy Lodge had also lived in a trailer on the property, Curtis Lodge lost contact with Leroy Lodge after his trailer was removed from the premises.

      . In the instant matter, as distinguishable from Smith who was convicted of carnal knowledge of a juvenile, Leroy Lodge was convicted of forcible rape. Smith was a multiple offender, Leroy Lodge was not. However, this is a distinction without a difference as both require registration.


author: TERRI F. LOVE, Judge.

text:
    Rendon Joseph FRANCIS v. UNION CARBIDE CORPORATION, et al.
    No. 2012-CA-1397.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2013.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, Philip C. Hoffman, Landry Swarr & Cannella, LLC, New Orleans, LA, Nathaniel D. Mudd, Maune Raichle Hartley French & Mudd, St. Louis, MO, for Plaintiff/Appellant, Rendon Joseph Francis.
    Gary M. Zwain, Paul J. Yerlander, Du-plass Zwain Bourgeois Pfister & Wein-stock, APLC, Metairie, LA, for Defendant/Appellee, Continental Insurance Company.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

_JjThis appeal arises from the alleged take-home exposure to asbestos received by the plaintiff while his father worked at a New Orleans shipyard. The shipyard’s insurer filed a motion for summary judgment asserting that no genuine issues of material fact existed because the plaintiff lacked evidence that his father was exposed to asbestos or that he was exposed to his father’s work clothes even if the clothes were contaminated with asbestos. The trial court granted the insurer’s motion for summary judgment and stated that the plaintiff did not meet “his burden of proving that he was exposed to asbestos as a result of his father’s work.” We find that the trial court erred in granting the motion for summary judgment because the record contains evidence that plaintiffs father worked where asbestos was used and that the plaintiff was around his father’s work clothes. Therefore, we find that genuine issues of material fact exist. We reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Francis Rendon filed a petition for damages against over thirty defendants alleging liability as a result of contracting mesothelioma from exposure to ^asbestos. Mr. Rendon alleged that his father brought asbestos fibers home on his work clothes from working at Pendleton Shipyard, Inc. (“Pendleton”) from 1943-1945. Therefore, Mr. Rendon asserted that Pen-dleton was partially liable for his development of mesothelioma due to take-home exposure from his father.

Continental Insurance Company (“Continental”), the successor by merger to Fidelity and Casualty Company of New York, which was the insurer of Pendleton, filed a motion for summary judgment alleging that Mr. Rendon could not carry his burden of proof that exposure allegedly from his father working at Pendleton was a substantial contributing factor to the development of mesothelioma. The trial court granted Continental’s motion for summary judgment and dismissed Mr. Rendon’s claims with prejudice and ordered each party to pay its own costs.

Mr. Rendon filed a notice of intent to file an application for supervisory review, which was dismissed by this Court. Mr. Rendon’s appeal followed. Mr. Rendon subsequently filed a motion to file a supplemental pleading into the record to include Continental’s amended memo in opposition to Mr. Rendon’s motion to remand in federal court, which this Court granted.

Mr. Rendon asserts that the trial court erred in granting Continental’s motion for summary judgment because sufficient proof existed to create genuine issues of material fact as to Mr. Rendon’s alleged take-home exposure.

STANDARD OF REVIEW

Appellate courts review the granting of a motion for summary judgment utilizing the de novo standard of review. King v. Dialysis Clinic Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 177, 180. “Appellate courts are to review summary judgments ... under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Id.

The motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “However, if the movant” does “not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment,” then “the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

“Both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor.” Hebert v. St. Paul Fire & Marine Ins. Co., 99-0333, p. 3 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 816.

MOTION FOR SUMMARY JUDGMENT

Mr. Rendon contends that the evidence presented is sufficient to create a genuine issue of material fact as to whether he experienced take-home asbestos exposure from his father’s work clothes. We agree.

14 Continental attached the following exhibits in support of its motion for summary judgment:

1) Social Security records documenting that Mr. Rendon’s father worked for Pendleton from 1943-1945;
2) Transcripts from Mr. Rendon’s first video deposition; and
3) Transcripts from Mr. Rendon’s second video deposition.

Mr. Rendon’s opposition to Continental’s motion for summary judgment contained:

1) Pendleton documents from the Secretary of State;
2) Ship building specifications;
8) Affidavit of Arthur Frank, M.D., Ph. D.;
4) A letter from Dr. Frank, which the trial court struck from the record;
5) A 1980 article from the American Journal of Industrial Medicine entitled, “Lung Cancer Prevalence Among Shipyard Workers”;
6) Excerpts of a deposition given by Dr. Andrew Marc Chung in another case;
7) Excerpts of a deposition given by Brent Finley in another case;
8) Excerpts from both of Mr. Rendon’s video depositions; and
9) E-mails regarding experts being tendered for deposition.

At the hearing on Continental’s motion for summary judgment, Mr. Rendon moved to introduce Continental’s amended memo in opposition to Mr. Rendon’s motion to remand that was filed in federal court. The trial court granted the admission of the pleading over Continental’s objection.

Continental contends that the trial court improperly admitted the pleading from federal court into evidence because the introduction of the evidence did not comply with the timeline set forth in La. C.C.P. art. 966(B)(1) and Uniform District Court Rule 9.9(b). Rule 9.9(b) requires that all opposition material be | .^received at least eight calendar days before the hearing unless the trial court sets a shorter time period. However, this Court held that “[tjrial judges have discretion, absent prejudice to the moving party, to consider affidavits opposing summary judgment served after the time prescribed by the article.” Kops v. Lee, 08-1407, p. 11 (La.App. 4 Cir. 3/31/04), 871 So.2d 1187, 1195. While this Court’s holding refers to affidavits, we liken that to other evidence submitted with an opposition to a motion for summary judgment, as long as the moving party is not prejudiced. In the present case, Continental cannot be prejudiced by its own pleading. Whether the federal pleading was attached to the opposition or introduced during the hearing on the motion for summary judgment, Continental was at all times aware of the material contained in its own pleadings. Additionally, Continental states in its appellee brief that it never disputed the presence of asbestos for the construction of ships at Pen-dleton when Mr. Rendon’s father worked there. Therefore, we do not find that the trial court abused its discretion by admitting the pleading at the hearing on the motion for summary judgment.

Continental contends that Mr. Rendon failed to provide evidence that he resided in the same household as his father from 1943-1945. However, Mr. Rendon’s original petition referred to the “family home,” and the opposition to Continental’s motion for summary judgment stated that Mr. Rendon lived in the same “household” as his father.

Continental also cites to Mr. Rendon’s testimony as to when he began to help his mother launder his father’s work clothes as proof that he could not meet his burden of proof at trial regarding take-home exposure. Mr. Rendon testified |fithat he did not begin helping launder his father’s clothes until he was about nine years old or about 1947. Continental attempts to utilize this statement to prove that Mr. Rendon was not exposed to asbestos allegedly on his father’s work clothes. This interpretation misconstrues Mr. Rendon’s deposition testimony.

Mr. Rendon testified that he was unaware of what kind of work his father performed at Pendleton, but that his father “used to come home dusty.” Mr. Rendon stated that he and his family would shake off the dust from his father’s work clothes in the yard and then his mother would launder the clothes. Mr. Rendon testified that his mother would “make us go in the yard and shake his clothes and then bring it into the utility room where she would proceed in washing it.” Further, Mr. Rendon stated that his father’s clothes “were too dusty to wash with the regular clothes” and that his mother told them their father’s clothes were “too dusty and dirty to go with our clothes, with the kids.” The utility room, where Mr. Rendon’s mother laundered the work clothes, was allegedly the main entrance used by the family. Mr. Rendon did state that he began to assist his mother with the laundry around the age of nine, which was after his father stopped working at Pendleton. However, that statement does not necessarily mean that Mr. Ren-don did not help shake off the clothing prior to the age of nine and does not prove that he was not exposed to his father’s work clothes and the asbestos allegedly contained thereon.

The federal pleading admitted into evidence at the hearing on the motion for summary judgment included information regarding the insulating materials used at Pendleton. The pleading quotes from the United States Marine Commission-published vessel design specifications, which stated that “all insulating materials shall be 85% magnesia or molded amosite asbestos.” Continental further stated in |7the pleading that “[t]he government specified the use of asbestos in the ships it contracted with Pendleton to construct because asbestos was ideally suited for the military actions needed.”

The trial court stated in its reasons for judgment that:

Considering the law and evidence, the court grants the Motion for Summary Judgment filed on behalf of defendant, Continental Insurance Company on the grounds that plaintiff has not met his burden of proving that he was exposed to asbestos as a result of his father’s work at Pendleton Shipyard’s Inc. The court reaches this decision because there is not specific evidence to support plaintiffs theory of liability as to Pendleton Shipyards, Inc. While the court notes that asbestos was used in shipyards, there is no specific information of what work was occurring at Pendleton when plaintiffs father worked there, where asbestos was used at Pendleton in relation to where plaintiffs father was working, or what safety precautions if any were taken by Pendleton.

“When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor generating plaintiffs harm.” Vodanovich v. A.P. Green Indus., Inc., 03-1079, p. 3 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 932. “[Ejvery non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma.” McAskill v. Am. Marine Holding Co., 07-1445, pp. 7-8 (La.App. 4 Cir. 3/4/09), 9 So.3d 264, 268.

In Grant v. Am. Sugar Ref., Inc., 06-1180, pp. 5-6 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, 749, this Court found, in a take-home asbestos exposure case, that a genuine issue of material fact existed because the plaintiff submitted a receiving report that demonstrated that the defendanVcon-tractor performed insulation work while the plaintiffs father was working at the refinery. This Court reasoned that this evidence along with other circumstantial evidence, like the presence of asbestos, was never denied, and proof that the plaintiffs father worked at the |srefinery at the correct time period, raised “at the very least” a genuine issue of material fact. Id.

In the case sub judice, it is undisputed that Mr. Rendon’s father worked for Pen-dleton. It is also undisputed that work with asbestos-containing materials was conducted at Pendleton while Mr. Ren-don’s father worked there. Mr. Rendon’s deposition testimony places him around his father’s “dusty” work clothing. Therefore, we find that Mr. Rendon presented sufficient evidence such that genuine issues of material fact exist. As this Court stated, “[w]hile defendant’s theory may prevail at trial as being more credible than plaintiffs theories, it certainly entails a credibility call, and as such is not a matter proper for summary judgment.” Grant, 06-1180, p. 8, 952 So.2d at 751. Therefore, we find that the trial court erred and reverse and remand for further proceedings consistent with this opinion.

COSTS

Continental contends that it answered Mr. Rendon’s appeal and appealed the trial court’s judgment holding that each party bear its own costs. This argument is without merit. Continental neither answered Mr. Rendon’s appeal within the time limits provided in La. C.C.P. art. 2183 nor filed for a separate appeal that would entitle Continental to the status of a cross-appellant. Therefore, discussion of Continental’s assertion is pretermitted.

I «DECREE

For the above-mentioned reasons, we find that the trial court erroneously granted Continental’s motion for summary judgment. We find that genuine issues of material fact exist as to Continental’s alleged liability for Mr. Rendon’s contraction of mesothelioma. Therefore, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

BELSOME, J., concurs in the result.

      . Continental Insurance Company is the only defendant that is a party to the appeal.

      . The application for supervisory review was dismissed because it was the improper procedural vehicle to seek redress from the trial court’s ruling.

      . The pleading was included in the record before the trial court.

      . We address this issue due to the information contained in the federal pleading. However, Continental neither answered Mr. Rendon's appeal nor cross-appealed the trial court’s judgment.

      . La. C.C.P. art. 2133(A) provides:
      A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee's action.