text:
    STATE of Louisiana, Appellee v. Jonterrance WINZER, Appellant.
    No. 49,316-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 8, 2014.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jonterrance R. Winzer, Pro se.
    Robert W. Levy, District Attorney, John L. Sheehan, Penya Marzula Moses-Fields, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and PITMAN, JJ.
   CARAWAY, J.

|T Jonterrance Winzer was charged by grand jury indictment and convicted as charged by a jury with the crimes of second degree murder and armed robbery. Winzer received concurrent sentences of life imprisonment for the murder conviction and 99 years for the armed robbery. He appeals his convictions and sentences. We affirm.

Facts

On the afternoon of April 26, 2011, police were dispatched to the home of Johnny Ray Simmons in the Sensley’s Townhouses in Farmerville, Louisiana. Upon their entrance into Apartment 26, police discovered the body of Romon Johnson, who had been shot multiple times. Police investigation revealed the Johnson had been shot as he sold one-half pound of marijuana to Simmons and Nicholas Higgins. It was also learned that 24-year-old Jonterrance Winzer, his 16-year-old brother, Lonnele Shelton, and Meagan Ward had spent the previous night at Simmons’ apartment and were present during, but not privy to, the sale. Simmons’ girlfriend, Ladrina Gray, her niece, Gerreal Gray, and Simmons’ nine-month old daughter were also in the apartment at the time of the shooting.

Police ascertained that Winzer and Simmons were childhood friends. On April 25, after a chance meeting with Simmons, Winzer came by his friend’s apartment with his girlfriend and little brother and played dominoes late into the evening. The three ultimately spent the night at Simmons’ home.

| ¡.Police questioned all individuals present in the apartment at the time of the shooting. Those interviews resulted in Winzer and his brother being implicated as the shooters. Arrest warrants were issued for the two brothers who were ultimately apprehended and arrested in Oklahoma City, Oklahoma.

On May 23, 2011, the Union Parish Grand Jury returned an indictment, charging Winzer with the second degree murder and armed robbery of Johnson. The matter proceeded to trial, and on July 25, 2013, a 12-person jury found Winzer guilty as charged on both counts. Winzer was sentenced to concurrent sentences of life imprisonment for second degree murder and 99 years for armed robbery, without benefit of probation, parole, or suspension of sentence. Winzer did not file a motion to reconsider sentence, but lodged a timely appeal. His appellate counsel raises one assignment of error and in a pro se and supplemental brief, Winzer makes seven additional assignments or error.

Discussion

Sufficiency of the Evidence

In two pro se assignments of error and in Winzer’s assignment of error by counsel, the sufficiency of the evidence is challenged. Winzer argues that none of the eyewitnesses could positively testify that Winzer |sshot or robbed Johnson. Winzer points to inconsistencies in the witnesses’ statements and argues that Simmons’ and Warden’s testimonies were made with expectations of leniency in their own prosecutions. He contends that the witnesses’ testimonies which were fraught with internal contradictions and irreconcilable conflict with physical evidence were not sufficient to support his convictions.

At trial, the state presented the testimony of eleven witnesses, including the Coroner, Dr. Frank Peretti, an expert in forensic pathology. Dr. Peretti testified that Johnson suffered from three gunshot wounds: one to his right eyelid, one in the back of his neck, and one to his right cheek. In Dr. Peretti’s opinion, the right eyelid wound was the fatal shot. He recovered a “small-caliber, non-jacketed bullets, .22’s.”

Both Simmons and Higgins testified. Simmons testified that he and Winzer grew up together. The two had seen each other the day before the incident and Win-zer, Ward and Shelton spent the night at his apartment. On the morning of the incident, Higgins called Simmons to set up a purchase of marijuana with an individual named Johnson, whom Simmons did not know. Simmons recalled that in the late morning, Gerreal Gray arrived at the apartment after getting out of school. She was the niece of Simmons’ girlfriend, La-drina Gray, who also lived in the apartment with the couple’s nine-month old baby. Higgins also arrived.

Near lunchtime, Simmons, Winzer, Shelton and Higgins left the residence to obtain food for everyone. Upon their return, Simmons testified that he and Higgins discussed the marijuana purchase and pooled $310. |4Simmons stated that although the two were originally going to Johnson’s residence, ultimately Johnson came to Simmons’ home. After entering the apartment, Johnson went to the kitchen to join Simmons and Higgins. According to Simmons, it was Higgins who gave Johnson the money for the one-half pound of marijuana contained in a plastic bag. As Johnson counted the money, Simmons smelled the “weed” to “see what grade I got.” Simmons claimed that immediately after the sale, he went to the bathroom and closed the door. As he came out of the bathroom, Simmons saw Shelton standing in front of the dishwasher in the kitchen. Simmons observed “[Shelton’s] hand up and I saw him with the pistol and he shot. That’s when he shot [Johnson].”

Simmons stated that Shelton shot Johnson from behind. He saw the victim fall to the ground. Simmons testified that he went back into the bathroom “soon as he shot [Johnson].” Simmons testified that after he went back into the bathroom, he heard “scuffling and stuff going on.” He peeked out of the door and saw “Winzer, Shelton and Higgins by the front door.” Simmons testified that he guessed “they were jumping on him at the time.” He heard another shot and then everything “calmed down.” Simmons testified that he “looked back out” and saw Shelton and Higgins “moving toward the table part.” As Simmons left the bathroom and ran upstairs, he saw Winzer “picking up the money.” Although he only “caught a glimpse” of Winzer, he was “arm distance” from him and “went right by him” as he ran up the stairs. Simmons recalled that he heard what sounded “like two more gun shots” while upstairs. Simmons also recalled hearing a knock at 15the front door and “running up my steps.” He feared for the safety of his girlfriend and daughter and came out of the bedroom. He saw Higgins, Shelton and Winzer “running out the door at the time.” Simmons stated that he then came downstairs and opened the screen door for police. He saw Johnson “laying down there,” and the bag of money and marijuana were gone.

On cross-examination, Simmons admitted that he pled guilty to accessory after the fact to second degree murder and armed robbery. He also acknowledged that he initially told the police he was upstairs the entire time and did not see who shot Johnson but later gave a second statement in which he admitted being downstairs. He also stated that Winzer and Shelton had no part of the marijuana sale.

Higgins testified that after he got out of classes about 11:15 a.m. on April -26, 2011, he walked to Simmons’ apartment. When he got there, he and Simmons “started negotiating about some marijuana” they were going to buy from Higgins’ friend Johnson. Higgins corroborated that he, Simmons, Winzer and Shelton got food for everyone in the apartment. They traveled in Winzer’s black truck. He testified that he had never seen Winzer or Shelton before that day. He also stated that as they ate lunch, he and Simmons discussed the drug deal in the kitchen. As they did so, Johnson called Higgins and told him he was on his way to Simmons’ apartment. When Johnson knocked on the door, Higgins let him in and the two walked into the kitchen area. According to Higgins, Johnson pulled out the seven ounces of marijuana packaged in a plastic bag. Johnson placed the |fimarijuana on the counter and Higgins gave him the money. Higgins testified that as Johnson counted the money, Shelton came behind him and shot him once. Johnson fell down and Higgins “went up to Lonnele Shelton,” and “tried to take the gun from him.”

Higgins testified that as the two were “wrestling over the gun,” he “slipped down” and Winzer “came over there with a mop stick,” and “started beating me with it.” Higgins recalled that the three were in the kitchen entrance during these events. Higgins testified that Winzer pulled him toward the kitchen area and Shelton “came through and hit me with the gun.” Shelton told Higgins to be quiet and not move. Eventually Shelton made him “get up and move” near a table. Higgins testified that Shelton held him at gunpoint. During these events, Higgins heard Winzer state, “he’s still moving.” Higgins stated that he saw Winzer get “the gun from his brother,” and “went and shot [Romon Johnson] two more times.” Shelton remained in Higgins’ “eyesight” and stated he knew Shelton did not shoot Johnson. He did not see where Winzer shot Johnson. Higgins testified that after Winzer shot Johnson, “he gave the gun back to his little brother, Lonnele Shelton.” Shelton held Higgins at gunpoint, “talking about what he going to do with me.” Higgins recalled seeing Shelton picking up the money, but he did not see anyone pick up the marijuana. Higgins remembered that the two brothers discussed what they were going to do with Johnson’s body.

Higgins testified that someone came to the front door and Winzer and Shelton ran upstairs. It was then that Higgins ran outside and informed |vJohnson’s family that he had been shot. He went back to Simmons’ apartment with Johnson’s brother and mother. When he got back to the apartment, Winzer, Shelton and Warden were gone. The money and marijuana were also gone. Higgins suffered a nose injury and swelling from being hit with the gun and broom handle.

On cross-examination, Higgins admitted that he initially told police that after the first shot, he blacked out. He explained that he meant he was “scared a lot,” by seeing “somebody die right in front of your eyes.” He did not believe that those feelings affected what he saw. Higgins admitted that in 2012, he pled guilty to attempted possession of marijuana.

Gearrel Gray testified that she was in the apartment at the time of the incident. She recalled that as she entered the apartment, Winzer, Shelton and Warden were seated at a table. Higgins also arrived at the apartment about five minutes after she got there. Gray testified that she ate her lunch on a small couch. She stated that Higgins was in the kitchen “counting money” and she heard him “call somebody up on the phone telling him how to get to the apartment.” Johnson came to the apartment and went into the kitchen with Higgins. She heard and saw nothing of what transpired between the two men until she heard two gunshots “back towards the kitchen.” She got behind the couch and observed what she saw by looking around the couch. Gray did not see who fired the shots, but turned around to see “the younger one” fighting Higgins. She thought that Higgins was “trying to fight the gun out his hand while he’s beating him up.” Gray testified that she heard Shelton tell Higgins that he talked too much. IsHiggins was “hollering and kicking both of them.” After that she heard two or three more gunshots and Shelton instruct Winzer to “get the money.” Gray also heard Shelton and Winzer discuss where they were going to take the body. Gray testified that she never saw a gun. She stated that when somebody knocked on the door, Shelton and Winzer ran upstairs and Higgins ran out of the house. Thereafter, Gray stated that Shelton and Winzer also ran out of the house with Warden.

On cross-examination, Gray confirmed that she did not see who fired the two gunshots and did not see any marijuana or money.

Warden corroborated the events leading up to the shooting. She witnessed Johnson enter the apartment and go into the kitchen. She saw only Higgins in the kitchen with Johnson and did not hear anything they said. She “knew what they were doing” but did not see marijuana or money. Warden testified that Higgins and Johnson were standing very close to one another. As she sat at the dining room table eating, Warden heard gunshots; she did not see who fired them. According to Warden, at the time of the gunshots, Win-zer and Shelton were standing “around the kitchen door area.” Johnson was “around the counter part.” After she heard the shot, Warden got down on the floor in front of the large couch. She then heard' “tussling, the moving around.” Warden testified that it was “Jonterrance and Lon-nele and Nick” involved in the tussling around the front door area. Warden stated that the three “wound up at the table that I was originally sitting at.” fyHiggins was on one side and Winzer and Shelton were on the other. She heard somebody yelling at Higgins to “shut up and sit down.” Warden recalled Winzer saying that “he’s still moving,” and then she heard more gunshots. She did not see who fired the shots. She saw Shelton holding a very small handgun toward Higgins. She had seen Winzer holding the gun prior to that day. Warden testified that she heard Winzer and Shelton “trying to figure out what to do with the body.” Warden recalled that Winzer and Shelton went “upstairs for a while,” when there was a knock at the door. At that time, Higgins “ran out the door.” Winzer and Shelton then came downstairs and yelled at her to follow them. The three got into the truck and Winzer drove. Warden sat in the passenger seat and Shelton was in the back. The three traveled toward Bernice, Louisiana, and made a detour on a dirt road. Warden heard Shelton and Winzer discuss what happened. Winzer said that Johnson “must’ve had an angel watching over him because it took more than one shot.” Warden saw that Winzer had money “popping out his pocket.” She had given him $20 or $30 the night before; she did not know how much he had left. Winzer and Shelton discussed the fact that Shelton had “missed Nick.” The brothers dropped Warden off at her apartment; this was the last time she saw either of them.

On cross-examination, Warden testified that she did not “really” change her statements to police, although she “added some that I didn’t say the very first time.” She admitted pleading guilty to accessory after the fact to second degree murder, armed robbery and resisting an officer, and was |inawaiting sentencing. Warden admitted that the only person she saw with a gun in his hand was Shelton.

Police testimony showed that the Farm-erville Police Department was dispatched to Simmons’ apartment around 2:00 p.m. The scene was photographed and evidence collected, but no money, handguns or marijuana were found, except a small bag of marijuana recovered from a drawer in the kitchen. The black truck was later found and searched but it did not contain the gun, the marijuana or the money. Police received an anonymous tip that Winzer and Shelton were possibly in Oklahoma City, where they were subsequently arrested and extradited to Louisiana.

Winzer invoked his Fifth Amendment right to not testify. The defense did not present any witnesses.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Lewis, 48,373 (La.App.2d Cir.9/25/13), 125 So.3d 482. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020.

InEvidence may be direct or circumstantial. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

Winzer was charged with second degree murder, which is defined by La. R.S. 14:30.1 (A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. He was also charged with armed robbery, defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. .14:64.

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1). Specific intent to kill can be inferred from the intentional use of a deadly I ^weapon such as a knife or a gun. State v. Fields, 42,761 (La.App.2d Cir.1/9/08), 973 So.2d 973, writ denied, 08-0469 (La.9/26/08), 992 So.2d 983.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir.1988), unit denied, 532 So.2d 148 (La.1988). The trier of fact senses first hand the testimony, and unless the fact finder’s assessment of believability is without any rational basis, it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. Where there is conflicting testimony about factual matters, the resolution of which depends' upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, units denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

11sWhen a witness is impeached, the jury, as the trier of fact, is presented with evidence it may consider and weigh in determining the credibility, or believability of the witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony. State v. Williams, 35,911 (La.App.2d Cir.9/18/02), 828 So.2d 180; State v. Dunn, 30,346 (La.App.2d Cir.2/25/98), 708 So.2d 512.

Moreover, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

The basis of Winzer’s argument is the reliability of Simmons’, Warden’s and Higgins’ testimony considering the inconsistent statements made by each to police and/or expected leniency in sentencing for their own convictions. Winzer also argues that no eyewitness was able to identify him as Johnson’s shooter or robber. Nevertheless, the record shows that upon defense cross-examination, Simmons, Warden and Higgins admitted making inconsistent statements to police. Additionally, on cross-examination, both Simmons and Warden admitted pleading guilty to accessory after the fact to second degree murder and armed robbery as well as their impending [ 14sentencing for each offense. Thus, the jury was made aware of these facts and accepted the witnesses’ testimony as credible. Such weight and credibility determinations remain within' the jury’s discretion and will not be disturbed on appeal. Gray, Warden and Hamilton gave independent accounts of the event. Considering that the testimony substantially corroborated the accounts of Higgins and Simmons, any minor differences in each individual witness’s testimony was not so internally contradictory so as to undermine the totality of their testimony. Higgins’ return to the scene after the events further validates his testimony. Nor did the testimony create irreconcilable conflict with physical evidence as it related to the proof of elements of the crime.

If believed, this testimony along with the other evidence establishes that two sets of shots were fired at Johnson. Simmons and Higgins witnessed Shelton inflict the first shot or shots, which caused Johnson to fall to the ground. Corroborating that evidence was Gray’s testimony that she saw Shelton and Higgins tussle for control of the gun. Warden and Higgins also substantiated the circumstances of the fight. During the ensuing scuffle, Warden and Higgins identified Winzer as stating, “he’s still moving.” Thereafter, Higgins saw Winzer grab Shelton’s gun and shoot in the direction of Johnson’s body. It was after this incident that Higgins, Warden and Gray heard Winzer and Shelton discuss what to do with Johnson’s body. Winzer bragged afterwards that it took more than one shot to kill Johnson. Although Higgins recalled that it was Shelton who took the money, Simmons stated that he saw Winzer picking up the money involved |15in the drug transaction and Gray heard Shelton tell Winzer to pick up the money. No drugs or money relating to the sale were found by police in the apartment and Warden witnessed Winzer with money bulging out of his pockets as the three fled the crime scene.

This direct and circumstantial evidence is sufficient to convict Winzer of the charged offenses. From Higgins’ eyewitness account of Winzer grabbing the gun from his brother after commenting that Johnson was still moving, the jury could have reasonably inferred that it was Win-zer who inflicted the fatal shot to Johnson. Likewise, even with the conflicting accounts from the scene of the shooting regarding who took the money from Johnson, the jury reasonably accepted Simmons’ account of Winzer taking the drug money after killing Johnson, considering Warden’s corroborating testimony that Winzer left the scene with money hanging out of his pockets. After viewing this evidence in the light most favorable to the state, any rational trier of fact could have found Winzer guilty of the essential elements of armed robbery beyond a reasonable doubt. These assignments of error have no merit.

Motions

In his second and third pro se and supplemental assignments of error, Winzer argues that the trial court erred in failing to rule on or grant a 11ficontradictory hearing on his motion to quash and continuance. Winzer refers only to jurisprudence regarding the motion to quash and does not provide any particularized arguments. The record reflects that a pro se motion to quash was filed on June 6, 2012. In it Winzer made a cursory argument that he had been illegally arrested and that “prejudicial legalism and racism played a large and controlling role in the warrant and arrest”; the majority of the motion questioned the legality of the indictment. The record does not reflect a ruling on the motion to quash and Winzer proceeded to trial without calling attention to the lack of ruling. Nor did he raise any issue relating to the arrest warrant at trial. It is well established that motions pending at the commencement of trial are waived when the defendant proceeds to trial without raising the issue that the motions were not ruled upon. State v. Holmes, 06-2988 (La.12/2/08), 5 So.3d 42, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). This includes a motion to quash. State v. Logan, 45,136 (La.App.2d Cir.4/14/10), 34 So.3d 528, writ denied, 10-1099 (La.11/5/10), 50 So.3d 812; State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

Moreover, a trial court is not required to entertain motions filed by a defendant who is represented by counsel. While an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative. Holmes, supra. For these reasons, these assignments of error have no merit.

|17In his supplemental brief, Win-zer argues that the trial court erred in denying a continuance of the trial. The record shows that on June 25, 2013, the court heard a defense motion for continuance on the grounds that the state had provided “voluminous” discovery responses two weeks prior to the hearing for which the defense needed additional time to review. After reviewing the discovery response, the trial court denied the motion for continuance finding that he information was not “that voluminous” and did not contain “significantly new information.” The court concluded that the filing of the discovery was “actually more than 30 days” prior to trial and that a previous continuance had been granted the defense. Voir dire began on July 23, 2013.

The decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, and a reviewing court will not disturb a trial court’s determination absent a clear abuse of discretion. La.C.Cr.P. art. 712; State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Moffett, 47,430 (La.App.2d Cir.9/26/12), 105 So.3d 138, writ denied, 12-2464 (La.4/12/13), 111 So.3d 1017.

Even when an abuse of discretion is shown, a conviction will not be reversed based upon the denial of a continuance absent a showing of specific prejudice. Harris, supra; Maffett, supra; State v. Hill, 46,050 (La.App.2d Cir.4/20/11), 64 So.3d 801, unit denied, 11-1078 (La. 11/14/11), 75 So.3d 940.

|lsWe find no abuse of discretion in the trial court’s denial of Winzer’s request for continuance. The court reviewed the discovery responses and concluded that they were not so voluminous or substantial that counsel would be unable to adequately prepare for trial. Nor has Winzer alleged specific prejudice to his case by the denial of the motion. For these reasons, this assignment of error has no merit.

Arrest Probable Cause

In his fourth pro se supplemental assignment of error, Winzer raises the issue of sufficient of probable cause relating to his arrest. He argues that the magistrate issued the arrest warrant based upon inconsistent testimony. As noted above, Winzer waived his right to contest the legality of the arrest warrant. Moreover, in his motion to quash, he argued that the arrest was illegal due to racism and prejudice. A new ground for objection cannot be presented for the first time on appeal. La.C.Cr.P. 841; State v. Cressy, 440 So.2d 141 (La.1983); State v. Harris, 414 So.2d 325 (La.1982); State v. Davis, 357 So.2d 1125 (La.1978). In fact, it has been held that a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Barnett, 12-816 (La.App.5th Cir.5/16/13), 118 So.3d 1156; State v. Carter, 10-973 (La.App.5th Cir.8/30/11), 75 So.3d 1. On these grounds, Winzer’s argument is without merit.

Brady Violation

Winzer argues that Higgins’ trial testimony “put the whole case in such a different light as to undermine confL dence in the verdict.” He | ^contends that his testimony which identified Shelton as the first shooter and him as the second shooter “was withheld from defense,” and undermined the outcome of the trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963). When the defendant requests it, the state must produce evidence that is favorable to the accused, if that evidence is material to guilt or innocence. Brady, supra. This rule also applies to evidence which impeaches the testimony of a witness when the credibility of that witness may be determinative of guilt or innocence. State v. Bright, 02-2793 (La.5/25/04), 875 So.2d 37.

We find no merit to Winzer’s Brady claim. Brady addresses issues of pretrial discovery. Moreover, Higgins’ trial testimony did not include exculpatory evidence. Thus, this portion of Winzer’s argument is without merit.

Ineffective Assistance of Counsel

Winzer also specifies three areas in which he believes his trial counsel’s behavior was ineffective. These include a failure to file a motion for acquittal or a motion for post verdict judgment of acquittal; a failure to impeach Higgins for making two conflicting statements that both Shelton and Higgins shot Johnson twice; and a failure to impeach Simmons and Warden for giving conflicting statements.

As a general rule, a claim of ineffective assistance is more properly raised in an application for post conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La.C.Cr.P. art. 930. State v. Cook, 48,355 (La.App.2d20 Cir.11/20/13), 127 So.3d 992, writ denied, 13-3000 (La.5/30/14), 140 So.3d 1174; State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. However, when the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); Cook, supra. Therefore, in the interest of judicial economy, those portions of Winzer’s claims of ineffective assistance for which the record is sufficient will be addressed on appeal.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal eases. Id. The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to the trial court’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. Cook, supra; State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

12iOnce the attorney’s performance is found to have been deficient, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove the deficient performance caused him an actual prejudice so severe that, but for his counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra; Cook, supra.

Ineffective assistance claims must both identify specific acts or omissions by counsel and state how these actions resulted in actual prejudice so severe that the defendant was denied a fair trial; general statements and eonclusory charges will not suffice. Id.

To challenge a conviction based upon a claim of insufficiency of the evidence, a defendant should proceed by way of urging a motion for acquittal or a motion for post verdict judgment of acquittal. La.C.Cr.P. art. 778; La.C.Cr.P. art. 821. Motion for acquittal is not authorized in a jury trial of a criminal matter. La.C.Cr.P. art. 778. The defendant may move for a post verdict judgment of acquittal following the verdict; a motion for a post verdict judgment of acquittal must be made and disposed of before sentence. La.C.Cr.P. art. 821(A).

In this matter, defense counsel was not authorized to file a motion for acquittal because the defendant opted for a jury trial instead of a bench trial. La. C.Cr.P. art. 778. Moreover, although counsel did not file a motion for post verdict judgment of acquittal, we have reviewed the sufficiency of the | 2aevidence in connection with the first assignment of error and have concluded the evidence was sufficient for conviction. When the substantive issue that an attorney has not raised has no merit, then the claim that the attorney was ineffective for failing to raise the issue also has no merit. State v. Francois, 13-616 (La.App. 5th Cir.1/31/14), 134 So.3d 42; State v. Williams, 613 So.2d 252 (La.App. 1st Cir.1992). Accordingly, this portion of Winzer’s argument is without merit.

Winzer also argues that his trial counsel was deficient because he failed to impeach Simmons, Warden and Higgins with prior inconsistent statements allegedly made by them to police. The basis of Winzer’s claims regarding Warden and Simmons is that “both made statements to detectives denying knowing factual elements,” and later made “additional statements.” Cross examination is a strategy decision and this court affords great deference to a trial counsel’s tactical decisions and trial strategy. State v. Moore, 48,769 (La.App.2d Cir.2/26/14), 134 So.3d 1265. Winzer fails to specify the content of Simmons’ and Warden’s statements or how failing to impeach the witnesses based upon these inconsistent statements would have prejudiced his case. Such conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel.

Winzer’s argument that trial counsel’s failure to impeach Higgins with his alleged previous statements that each brother shot Johnson two times “undermined confidence in the outcome of the trial,” is also unsupported by the record. Despite any inconsistencies in the witness’s recollection of how many shots were fired, he consistently identified Winzer |¡¡sas having shot Johnson. Thus, Winzer has demonstrated no prejudice in counsel’s failure to elicit the subject information on cross-examination.

Moreover, because the overwhelming testimony of the eyewitnesses identified Winzer as a knowing and active participant, who aided and abetted in the commission of the crimes, any failure by counsel to cross-examine the eyewitnesses about - specific alleged inconsistencies in their identification of the shooter or description of the number of gunshots involved in the event, fails to raise a reasonable probability sufficient to undermine confidence in the outcome of the trial. Thus, Winzer’s arguments are without merit.

Winzer’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . In his supplemental assignment of error No. 1, Winzer also argues that his appellate counsel was unable to "sufficiently challenge defendant’s Fourteenth Amendment Due Process violation by State” due to an incomplete transcript and this court's determination that no further extension of the return day would be considered after January 26, 2014. The record shows that Winzer's trial counsel designated "the entire transcript of each hearing herein and all of the pleadings” for inclusion in the appellate record for review. The subject extensions certified that the entirety of this information be contained in the record. Because the record shows that all designated information was filed into the record on February 28, 2014 and Winzer’s counsel filed his brief on May 5, 2014, Winzer’s argument that counsel was without portions of the transcript is without merit.

      . JaMarkus Hamilton testified that as he rang Simmons’ doorbell on April 26, 2011, Higgins ran out telling them to go; Higgins’ lip was bloody. Hamilton and another man hid behind the building and saw two males and a female exit the apartment. He was not able to identify Winzer as one of those males. Hamilton further testified that the three individuals got into a black truck and headed west after backing into the building and damaging the bumper.

      . Regardless of which brother fired the fatal blow or took the money from Johnson, the evidence presented by the state would also have been sufficient to convict Winzer as a principal to both crimes considering the consistent eyewitness accounts of his active participation in the events leading to Johnson's death and robbery. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. Those persons who knowingly participate in the planning or execution of a crime are principals. State v. Mason, 47,642 (La.App.2d Cir. 1/16/13), 109 So.3d 429, writs denied, 13-0423 (La.7/31/13), 118 So.3d 1116, 13-0300 (La.9/13/13), 120 So.3d 279.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    John C. McCARTHY, Individually and as Trustee of the Kathleen McCarthy Balden Trust, and Marjorie M. Moss, Plaintiffs-Appellants v. EVOLUTION PETROLEUM CORPORATION Formerly Known as Natural Gas Systems, Inc., and NGS Sub Corporation, Defendants-Appellees.
    No. 49,301-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 15, 2014.

      Donald L. Kneipp, Monroe, for Appellants.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC, By Walter C. Dunn, P. Scott Wolleson, Monroe, Russell A. Woodard, Jr., for Appellees.
    Before BROWN, CARAWAY and GARRETT, JJ.
   CARAWAY, J.

hThe case is before us for a second time on the issue of whether plaintiffs have pled a cause of action to rescind the sale of their l/8th lease royalty to their mineral lessee. Following remand of the first appeal, plaintiffs filed a supplemental and amended petition. The trial court, however, dismissed plaintiffs’ claims again on defendants’ exception of no cause of action. For the following reasons, we reverse.

Facts and Procedural History

In this case, the owners of the l/8th royalty of mineral leases claim that the sale of their royalty to the owner of the working interest of those leases was induced by fraud. The facts of the disputed transaction were described in the first review of this case before this court in McCarthy v. Evolution Petroleum Corp., 47,907 (La.App.2d Cir.02/27/13), 111 So.3d 446, writ denied, 13-1022 (La.6/28/13), 118 So.3d 1097 (“McCarthy I”). In this court’s previous decision, the appellees’ peremptory exception of no cause of action was affirmed, but the dismissal was reversed, with remand to the trial court to afford appellants the opportunity to amend their petition to state a cause of action.

According to both the original and supplemental petitions filed by the plaintiffs, the plaintiffs’ ancestors in title granted the oil and gas leases on their lands located in Richland Parish. These leases have been operated continuously for 60 years, and the lessees at the time of the contested royalty sale were Evolution Petroleum Corporation, formerly Natural Gas [ gSystems Inc., and NGS Sub Corporation (hereinafter collectively “Evolution”). The leases provided a l/8th royalty interest to the lessors.

In 2006, Evolution agreed to sell its working interest in the leases in the Delhi Unit to Denbury Resources, LLC (“Den-bury”), for a price of $50 million and other consideration. Denbury estimated that by using “CO2 enhanced oil recovery technology for the existing zone of production in the Delhi Unit,” recovery could reach 30 to 40 million barrels.

According to the plaintiffs, Evolution made more than one unsolicited written offer to purchase their royalty rights in 2006. The solicitations were made by Evolution with full knowledge of the Den-bury agreement to further develop the Delhi Unit. Plaintiffs claim that the initial offer stated the funding for the purchase was only for a limited time, and that any deal must be closed by May 2006. Evolution never gave any indication to the plaintiffs that there was a pending sale to Den-bury or that the royalty interests were in fact worth much more than the plaintiffs had been led to believe. The petition indicates that the disputed sale closed in May 2006. Yet, confusingly, the petition also references a final offer that led to the disputed royalty sale in August 2006.

In connection with these solicitations by Evolution, plaintiffs contend that they were led to believe that Evolution was making these same offers to all royalty owners in the Delhi Unit, when in fact, offers were made only to the elderly or the particularly unsophisticated royalty owners who would have a minimal understanding of oil and gas matters and the Delhi Unit. | ..¡Moreover, John McCarthy lives out of state and alleges that Evolution preyed on his geographic location and inability to remain as involved in updates on the Louisiana development activities.

In their amended petition, plaintiffs reiterate that by Evolution’s ownership and operations of the Delhi Unit, “the lessees gained information regarding the characteristics of the reservoirs beneath the leased premises.” Evolution allegedly “used that information to obtain an advantage for themselves” over the plaintiffs.

The amended petition further explains that after C02 flooding commenced in 2010, the success of the project revealed that the expected recoverable reserves would be over 60 million barrels. Plaintiffs argue that the defendants knew that the price they were offering was substantially below the true value of the plaintiffs’ royalty interests, and that Evolution had ceased to operate in good faith for the mutual benefit of the parties. Plaintiffs further allege that the defendants have obtained an “improper and substantial windfall” at the expense of the plaintiffs’ substantial loss. As a new and final claim of the supplemental and amended petition, plaintiffs assert that by using, to plaintiffs’ detriment, the reservoir developmental information Evolution gained, by its operation of the lease, Evolution breached its obligation under Mineral Code Article 122, allowing for rescission of the lease.

Following the amendment of the petition, Evolution again asserted the peremptory exception of no cause of action. The trial court granted defendant’s exception, stating that the plaintiffs had no legitimate cause of faction and that the supplement and amended petition was “merely a rearrangement of the original Petition.” Plaintiffs appeal.

Discussion

We agree generally with the trial court that little clarification of plaintiffs’ claim resulted from their supplemental petition. Nevertheless, from the following allegations of the petitions and clarified timeline of alleged events, we are still not prepared to dismiss this case peremptorily. While still suffering from some vagueness, the plaintiffs’ pleadings raise a unique claim of fraud which should afford the discovery and examination of the evidence surrounding the disputed transaction.

Our research indicates that this is a novel setting, not previously addressed within the oil and gas jurisprudence of this state. The plaintiffs alleged themselves in the capacity as lessors of oil and gas leases. The defendant, Evolution Petroleum, asserted its “100% working interest” ownership of the leases in the Delhi Unit in May 2006, thus placing it in the capacity of lessee of the plaintiffs’ oil and gas leases. Therefore, the disputed transaction which occurred in 2006 was, in essence, the purchase by the lessee of all future production royalties of the lessor under a mineral lease. Production royalties are considered the “rent” for the mineral lease, with such rent and the mineral lease itself extending for an uncertain and indefinite duration. Plaintiffs’ claim is that their lessee bought all future royalties, fraudulently misrepresenting the corresponding value of the Isknown productive reserves of the lease upon which those royalties would be derived. Additionally, the allegations of the petition raise the issue of fraud by silence by a mineral lessee who, at the time of the royalty purchase, was prepared and obligated for its performance under the lease contract to develop plaintiffs’ lease for enhanced production.

The petitions state that in May 2006, Evolution (then National Gas Systems, Inc.) announced in a press release that it had “entered into a definitive agreement” with Denbury for the acquisition of the leasehold rights to the Delhi Unit. The Delhi fieldwide unit is composed of 13,636 acres from which 190 million barrels of oil had been produced since 1945. Denbury paid Evolution $50 million for the conveyance of a “100% working interest” in the Delhi Unit. Evolution retained a 4.8% royalty interest in the leases and a 25% working interest backin option, conditioned on the performance of Denbury’s enhanced recovery project. Evolution’s press release references “proven reserves” and the potential recovery from the Denbury project of “between 30 and 40 million barrels of oil, net to Denbury’s interests” and 9 to 14 million barrels net to Evolution’s interests.

The petitions stated that before the announcement of the Denbury agreement, Evolution presented an offer letter to plaintiffs for the purchase of plaintiffs’ l/8th lease royalty. The offer was unsolicited by plaintiffs, and in 2006, plaintiffs were unaware of the Denbury project before and after its announcement. Plaintiffs made the following allegation about Evolution’s offer which led to the royalty sale:

Defendants offered sixteen (16) years of previous royalties to Plaintiffs, which for Plaintiff Moss was $9,859.00 and for | (¡Plaintiffs McCarthy was $15,957.00 each, and they accepted said offers.

The plaintiffs’ allegations (though awkwardly stated) claim that the normal fair market evaluation for producing lease royalty rights would generally base the purchase price on “approximately eight (8) years of trailing royalties” as derived from the prior levels of production. According to plaintiffs, such evaluation of reserves would be appropriate for a declining productive zone which, unlike the oil-bearing zone for the Delhi Unit, had no potential for enhanced recovery. Therefore, plaintiffs alleged “that defendant built in a ‘fail-safe’ artifice and scheme by offering an amount of trailing royalties sufficient to produce an offer that no purchaser, unaware of the pending C02 enhanced oil recovery of Denbury Onshore, LLC, would match or outbid.” Neither such 8-year nor 16-year value assumption was appropriate in the context of Evolution’s planned enhanced recovery project according to the petition. Such assumptions suggest a value for future production from the prior low levels of production, when the value of plaintiffs’ royalty over the life of Den-bury’s enhanced production project would be greatly enhanced in the millions of dollars.

A peremptory exception of no cause of action is intended to test the sufficiency in law of the petition. Villareal v. 6494 Homes, LLC, 48,302 (La.App.2d Cir.8/7/13), 121 So.3d 1246, 1250. The burden of proving that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to allow the party his opportunity to 17present evidence in court. Id. No evidence may be introduced to in support of or in opposition to the objection of no cause of action. Humble v. Pafford EMS, 47,903 (La.App.2d Cir.5/15/13), 116 So.3d 878, 883, writ denied, 13-1368 (La.9/20/13), 123 So.3d 177. The exception is triable on the face of the .pleadings, and the well-pleaded facts must be accepted as true for the purpose of determining the issues raised by the exception. Id. Generally, an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise on which the defense is based, i.e., unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Berry v. Insurance Co. of North America, 28,580 (La.App.2d Cir.10/30/96), 683 So.2d 310, 311, writ denied, 97-0091 (La.3/7/97), 689 So.2d 1374. Every reasonable interpretation must be accorded the allegations in favor of maintaining the sufficiency of the petition. Id.

This court reviews the decision of the trial court to grant the exception of no cause of action de novo. Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 10-0707 (La.5/28/10), 36 So.3d 254. The exception raises a question of law and the lower court’s decision is generally based solely on the sufficiency of the petition. Crosby v. Stinson, 33,628 (La.App.2d Cir.8/23/00), 766 So.2d 615.

Fraud, as a vice of consent to a contract, is covered in Articles 1953-1958 of the Louisiana Civil Code. Article 1953 states:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

|sLa. C.C. art. 1953. The comments to Article 1953 explain that in addition to a false assertion or suppression of the truth, fraud may be the result of silence that is calculated to produce a misleading effect. “In the context of vices of consent ‘fraud’ means a stratagem or machination to take unfair advantage.” Revision Comment (c) to La. C.C. art. 1997.

New Lease Acquisitions v. Lessee’s Acquisition of Lessor’s Rights in Existing Lease

We will first address Evolution’s insistence that this case is not novel in our state’s oil and gas jurisprudence. Citing the case of Mims v. Hilliard, 125 So.2d 205 (La.App. 3d Cir.1960), and other such cases of lease acquisition, Evolution argues that it is settled law that a mineral lessee owes no duty of disclosure to his lessor in transactions between them.

In Mims, the plaintiffs were approached by defendant’s landman about the acquisition of an oil and gas lease on 50 acres of their land. At that time, unbeknownst to plaintiffs, 14 of their unleased 50 acres had just been included in a newly formed compulsory unit, apparently established for production from a nearby well. Plaintiffs claimed fraud for the defendant’s failure to disclose the enhanced value of the 14 acres because of its inclusion in the unit. The court found no duty- to disclose and no fraud.

From these facts, the defendant’s nondisclosure in Mims obviously occurred before the lease contract existed. Therefore, the defendant’s nondisclosure did not occur while its status was that of a mineral lessee. The defendant did not already owe to plaintiffs the leasehold duty of the reasonably prudent operator when the alleged nondisclosure occurred in a transaction between them. This is a critical distinction in this case.

| JLesion and Mineral Code Article 17

In its written reasons for judgment the trial court concluded that this case “is still a claim of ‘lesion beyond moiety’.” Therefore, since lesion to rescind the sale of mineral rights is prohibited by the Mineral Code, La. R.S. 31:17, that principle prevents rescission of this transaction altogether. Such conclusion is error.

The trial court’s ruling misses the clear distinction between rescission for fraud as a vice of consent and rescission for lesion by the mere existence of a price deficiency in relation to the fair market value of the immovable. See La. C.C. art. 2589. The former involves a bad faith intent, motive, or scheme to induce error or suppress the truth, while the rescission mandated by lesion results from the price deficiency alone. Lesion, then, is implied error fixed in law, regardless of the purchaser’s motive or knowledge of his receipt of an excessively low bargain price. Plaintiffs allege that Evolution deliberately misled them about the value of their royalty interest by directing their attention to the past decline of oil production while omitting Evolution’s understanding of the value of the proven reserves recoverable through the impending enhanced recovery project.

In McCarthy I, this court distinguished the current facts from those recent oil and gas cases discussing lesion. Those cases, including Cascio v. Twin Cities Dev., LLC, 45,634 (La.App.2d Cir.9/22/10), 48 So.3d 341, and Thomas v. Pride Oil & Gas Properties, Inc., 633 F.Supp.2d 238 (W.D.La. 2009), involved disputes over a discrepancy between the offered bonus for new lease acquisition and the market rate for lease bonuses of | msimilarly situated property. Both cases discussed error as a vice of consent and the lesion bar for mineral rights acquisitions under Article 17 of the Mineral Code. Likewise, as explained above, the lack of an existing lessorAessee relationship distinguishes these lease acquisition cases.

Civil Code Article 1951

Next, the principles of Civil Code Article 1954 have significance for the measure of plaintiffs’ claim of fraud. Article 1954 provides:

Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill.
This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations.

Plaintiffs assert that they had no expertise concerning the evaluation of the proven and undeveloped reserves of the Delhi Unit, nor were they aware of the proposed Denbury project at the time of their sale. We therefore find that on the face of pleadings plaintiffs alleged that they were not parties who could have ascertained the truth regarding the value of the enhanced recovery potential of their property without difficulty, inconvenience, or special skill. Plaintiffs were aware of the past levels of production for the Delhi Unit upon which their royalties had been paid. They also had access to the records of the Office of Conservation revealing the prior production history. Nevertheless, an understanding of the existence of proven reserves and the technological knowledge of enhanced recovery operations require a special skill and expertise which plaintiffs are not expected to possess. On the other hand, Evolution, as the mineral ^lessee, by operating and producing the lease, gained such special knowledge about the property.

The second paragraph of Article 1954 is stated to be an exception to the first stated principle of that article. Since we find that plaintiffs are allegedly parties who could not easily obtain the truth of the value of their royalties based upon enhanced production technology and knowledge of proven reserves, the exception provision of Article 1954 is not squarely presented under these facts.

As Judge Stewart observed in McCarthy I, plaintiffs do not allege facts demonstrating that they had a relationship of confidence, as confidants with a trusted party (Evolution). Such relationship existed between the parties in certain recent cases before this court where plaintiffs put aside their ability to discover the truth about transactions in reasonable reliance upon a trusted party, usually a family member. Hickman v. Bates, 39,178 (La.App.2d Cir.12/15/04), 889 So.2d 1249; Sanders Family, LLC No. 1 v. Sanders, 46,476 (La.App.2d Cir.12/14/11), 82 So.3d 434, writ denied, 12-0414 (La.4/9/12), 85 So.3d 702; Skannal v. Bamburg, supra.

The existing relationship that plaintiffs assert is the lessor/lessee relationship. Plaintiffs did not put aside their ability “to ascertain the truth” of the oil reserves and the technological operations to produce that oil through enhanced recovery methods. Plaintiffs claim they do not possess such abilities. Instead, they assert that their lessee did not disclose the reservoir information which Evolution had gained in the operations of the lease for the parties’ mutual benefit and that such nondisclosure was fraud. |12While that claim of fraud by silence is addressed below, we will first address the allegations of the petition concerning fraud by misrepresentation.

Fraud by Misrepresentation

From Civil Code Article 1953, the jurisprudence has delineated the following elements for a fraud claim: (1) a misrepresentation, suppression, or omission of true information, (2) the intent to obtain some unjust advantage or to cause some damage or inconvenience to another, and (3) the error induced by the fraudulent act must relate to a circumstance substantially influencing the victim’s consent. Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60; Skannal, supra.

The error in this case concerns the value of the object of the sale, which, of course, substantially influenced the plaintiffs’ consent to receive the allegedly low price. The seller’s understanding of value as it relates to price is central to the transaction, as the cause or reason why he obligates himself to sell. La. C.C. art 1967. Yet, generally, error as to the value of the object of the sale does not allow the seller to rescind. Zadeck v. Arkansas Louisiana Gas Co., 338 So.2d 303 (La.App. 2d Cir.1976). Additionally, given the speculative nature of mineral transactions in general, no lesion protection, as discussed above, is provided the seller.

The plaintiffs’ allegations go beyond a mere unilateral and erroneous assessment of the value of their l/8th lease royalty. Plaintiffs claim that Evolution used the past 16 years of production to misrepresent the present value of the future royalties. The alleged emphasis by Evolution on the past 11swhile withholding its special knowledge of the planned future production is claimed as a misrepresentation of the truth concerning the present fair value of the royalty rights.

A significant civilian principle for fraud found in the 1870 Civil Code reads as follows:

A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other.

La. C.C. art. 1847(3) of the Civil Code of 1870. That principle is from the expanded discussion of fraud in the source article of revised Article 1953 and remains persuasive civilian authority.

In Zadeck, supra, this court cited Article 1847(3) of the 1870 Civil Code in setting forth two important principles regarding error as to the value of the object of the sale. First, “[wjhere the means of ascertaining the value of property are equally available to both parties, a sale may not be set aside because information relating to its value was withheld by either party.” Zadeck, supra. Nevertheless, the court recognized that under the proviso of Article 1847(3), “[i]n extreme cases in which there existed great disparity of the bargaining position of the parties, our courts have set aside sales.” Id.

Certainly, the plaintiffs could have concluded on their own that the best measure of the value of their royalty could be gained from the past production history. This was a production history in which they received |Mroyalty payments for 16 years. That history could suggest the rate of production for the future. The lump sum of money given by Evolution as the price would represent a discounted value of expected future production royalties. If this was the plaintiffs’ unilateral, subjective analysis, about which Evolution made no representation whatsoever, it cannot be said that Evolution induced plaintiffs’ error. If Evolution had its own much higher value for the oil reserves and no duty to its lessor to share its different appraisal, the unilateral error of the plaintiffs and the lesion bar of the Mineral Code might not allow for a cause of action.

Yet, in this case, Evolution is alleged to have made a false assertion regarding the value of the l/8th lease royalty, while plaintiffs with “ordinary attention” could not have detected the falsehood. The odd number allegedly selected by Evolution for the total price paid to the three plaintiffs, $41,773, was the exact total of the royalties received by plaintiffs for the past production. This emphasis on the past production accounts for no value attributable to the great production potential recognized in the Denbury deal. This allegedly gave plaintiffs an erroneous view of the value of their royalty rights vitiating their consent, to the sale.

Because of the speculative nature of most mineral transactions, error in the value assessment of the mineral right by the transferor, in this case a mineral lessor, would generally not amount to legal error under Civil Code |1sArticle 1949 allowing for rescission. Yet, in discussing the lesion bar for mineral transactions placed in the Mineral Code, the authors of the Comment for Article 17 made the following observation:

A case could be made for application for the principle of lesion when the rights sold are in a fully developed property, thus permitting rather accurate determination of reserves and computations of values. However, considering the nature of transactions in developed properties and the facts that parties to them are usually experienced and lending institutions involved are highly conservative, the opportunities for the kind of overreaching which the concept of lesion was designed to prohibit are small indeed.

Official Comment, La. R.S. 31:17. The decision was made by the redactors therefore to reject rescission for lesion for developed properties along with all other sales of mineral rights. Nevertheless, the “accurate determination of reserves and computations of values” for the Delhi Unit as reviewed in Evolution’s press release for the Denbury project were allegedly omitted from Evolution’s representations to plaintiffs concerning this disputed sale.

In summary, we find from the allegations of the petition a stated cause of action for fraud by misrepresentation. La. C.C. art. 1847(3) of the Civil Code of 1870. Plaintiffs allege that Evolution misdirected their attention to the prior production which was largely irrelevant to the assessment of the present value of their l/8th lease royalty. Evolution allegedly had the exclusive means of assessing the value of the royalty interest and knew of the error by plaintiffs.

Fraud by Silence

The Civil Code’s express recognition of fraud by silence in Article 1953 has been expanded upon in the jurisprudence. In First Downtown Dev. v. Cimochowski, 613 So.2d 671, 677 (La.App. 2d Cir.1993), writ denied, 615 So.2d 340 (La.1993), this court discussed this issue, citing two leading Louisiana Supreme Court rulings:

To find fraud from silence or suppression of the truth, there must exist a duty to speak or to disclose information. Greene v. Gulf Coast Bank, 593 So.2d 630, 632 (La.1992); Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1383 (La.1990).
The existence of this duty is a legal question. Relevant factors include whether the obligation is being imposed on a seller, who is more likely to be required to disclose, the importance of the fact not disclosed; the relationship of the parties; and the nature of the fact not disclosed.
Bunge, supra at 1384. Certain special circumstances, such as where the parties stand in some confidential or fiduciary relation to one another, will give rise to a duty. See Greene, and Bunge Corporation, both supra.
As further expressed in the Bunge ruling:
This duty to speak does not result from an implied representation by silence, but exists because a refusal to speak constitutes unfair conduct.

Bunge, supra at 1383, citing W. Page Keeton, Fraud-Concealment and Non-Disclosure, 15 Tex.L.Rev. 1 (1936).

In this case, plaintiffs argue that the duty to speak arises out of the duty imposed under Article 122 of the Mineral Code, which provides:

A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor.

La. R.S. 31:122.

The law is clear that Evolution is neither a fiduciary nor a trustee. Certainly, the information of the lessee gained through geological data and |17technical developments involving the lease premises remains proprietary information. No duty for revealing that data to the lessor exists when the lessee otherwise is conducting operations as a reasonably prudent operator. Nevertheless, the good faith duty of Article 122 is more than just the general good faith duty of performance in contract. See La. C.C. art. 1983. The duty of the reasonably prudent operator entails certain demands upon the lessee for the use of its geological and technical understanding of the leased premises for the continuing exercise of its lease rights “for the mutual advantage and profit of both parties” to the lease. Official Comment, La. R.S. 31:122. As with all real right burdens on Louisiana property, this duty of the reasonably prudent operator requires ongoing developmental use of the lease. Otherwise, as expressed in the jurisprudence, “give up the contract.” Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26, 28 (1948).

One of the duties of a reasonably prudent operator recognized in the jurisprudence is the obligation to reasonably develop known mineral producing formations. “[T]he relevant cases hold that after production in paying quantities has been obtained from a mineral formation, it is the duty of the lessee to develop the producing formation in the manner of a reasonable, prudent operator taking into consideration both his own interests and those of the lessor.” Official Comment, La. R.S. 31:122. In Wadkins v. Wilson Oil Corp., 199 La. 656, 6 So.2d 720 (1942), cited under Article 122, the lease was cancelled because the lessee did not employ “the | isnew and successful methods of development used by others in this chalk rock stratum oil field.”

With this review of the obligation of reasonable development of the lease, the alleged facts raise the question of the lease status regarding that obligation at the time of Evolution’s purchase of the plaintiffs’ lease royalty. If Evolution was under the duty to begin reasonable development of the “proven reserves” of the .Delhi Unit, did that duty pertaining to the parties’ mutual benefit require fair disclosure of the Denbury project? “Louisiana law recognizes that the refusal to speak, in the face of an obligation to do so, is not merely unfair but fraudulent.” Bunge, supra at 1383.

This question is brought into sharper focus by consideration of the Mineral Code’s provisions and jurisprudence concerning the passive breach by the mineral lessee that may exist when reasonable development operations of the lease are in order. The concept of passive breach remains relevant for mineral lease disputes despite revision of the Civil Code revisions on default of obligations. La. R.S. 31:135; Hunt v. Stacy, 25,578 (La.App.2d Cir.2/23/94), 632 So.2d 872. In the Hunt ruling, this court found that the breach of the implied obligation of reasonable development was passive, requiring a formal placing in default by the lessor before judicial intervention may be sought. Id. at 875.

When we consider this breach concept in light of every reasonable interpretation of plaintiffs’ allegations, not only is Evolution seen as owing 119plaintiffs the duty of reasonable development in 2006; the proposed Denbury project indicates that Evolution was arguably in passive breach of that performance obligation. Delay in performance amounting to a passive breach would bear upon the market evaluation of plaintiffs’ l/8th royalty. Accordingly, we find that the implications of the Denbury project in the light most favorable to plaintiffs’ allegations raise the possibility of fraud by silence in this case. From the allegations, because Evolution may have been under the duty and obligation to commence a long-planned project for development as a reasonably prudent operator and in breach thereof, it could then be obligated to inform its lessors and not remain silent on its plans to fulfill its obligation as a reasonably prudent operator.

A final case which supports our determination of a cause of action in this case is Emerson v. Shirley, 188 La. 196, 175 So. 909 (1937). In that case, the Louisiana Supreme Court reversed the trial court’s determination of no cause of action involving an alleged fraudulent sale of a mineral royalty. The two parties had worked together for 10 years purchasing mineral royalty interests jointly on a 50/50 basis. The disputed royalty was acquired by them in 1926, three years before the parties ended the alleged joint venture. Plaintiff alleged that in 1936 his friend and former partner, Noble, had interposed Shirley to buy the plaintiffs royalty for a low price. The plaintiff alleged that Shirley and Noble knew about a large new production discovery and withheld that .information “notwithstanding there was then a business agreement and confidential relationship between [plaintiff] and Noble which made it the duty of Noble, morally, equitably, |9.nand legally to avoid taking advantage of any inside information.” Id., 175 So. at 911. The royalty purchased by Shirley for $500 was alleged to be worth $40,000 because of a new well on the verge of completion.

The court in Emerson acknowledged the trial court’s finding that no partnership existed between the parties, as such venture with immovable property required a written agreement. A partnership would impose a fiduciary duty upon Noble to his partner. La. C.C. art. 2809. Nevertheless, the court found:

But the allegations of the petition in this case show something more in that respect than merely a joint ownership in a royalty interest. The plaintiff has alleged such a confidential relation between himself and Noble, that he should be allowed to prove it by parol evidence.

Emerson, supra, 175 So. at 911.

If the nature of the relationship rises to a certain level, the Emerson ruling recognized a duty to speak to prevent fraud. The court found that such measure of the relationship cannot be made through a peremptory exception.

Conclusion

Because of Evolution’s duty under Civil Code Article 122 and its alleged commitment for further development of the plaintiffs’ lease at the time of the disputed royalty sale, the plaintiffs are not precluded from asserting a claim of fraud by silence. This is a novel and untested cause of action by a mineral lessor that has never been specifically addressed and decided in our law. Moreover, Evolution was not completely silent because of the communications it had with plaintiffs, which are alleged to be |2i misleading. Accordingly, peremptory dismissal of this case for no cause of action is unwarranted, and the trial court’s ruling is reversed. Costs of appeal are assessed to defendants.

REVERSED AND REMANDED.

GARRETT, J., concurs.

      . National Gas Systems, Inc., changed its name to Evolution Petroleum Corporation in July 2006.

      . In this court’s initial ruling, the three judges of the panel did not express a common understanding of the plaintiffs’ potential cause of action. Judge Stewart’s primary opinion was accepted with two separate concurrences.

      . When considered with plaintiffs' alleged Delhi Unit decimal royalty interest of .00204812 and an assumption of $90 per barrel, the plaintiffs' royalty potential for Den-bury’s targeted reserves would be calculated at $9,216,540 (50 million barrels x $90 x .00204812).

      . Plaintiffs do not clearly detail whether the production levels for the Delhi Unit were in decline over the prior 16 years. They did allege that prior to 2003 when Evolution (then Natural Gas Systems) acquired unit ownership, the unit production had declined to 18 barrels per day which under Evolution's operations increased over two years to 145 barrels per day. Decline in the production would be indicative of the value of the reserves under the existing stripper mode of production and the length of the time for future production.

      . Former Civil Code Articles 1932 and 1933 discussed active and passive breaches of the contract, with Article 1933 stating:
      When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.
      Former La. C.C. arts. 1932 and 1933 (1870).

      . In reaching these conclusions concerning the possible causes of action for rescission of the royalty sale, we pretermit discussion of plaintiffs’ added, alternative claim for rescission of the entire lease for Evolution’s failure under Article 122. From plaintiffs’ own allegations, however, we note the absence of Den-bury, which is alleged to have acquired the lease after the time of the disputed royalty sale.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Robert B. SANDERS, Appellant.
    No. 49,241-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 22, 2014.

      John R. Joyce, Walter L. Perkins, Jr., for Appellant.
    John M. Lancaster, District Attorney, Penny Douciere, Johnny R. Boothe, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

Lin accordance with a plea agreement, the defendant, Robert B. Sanders, pled guilty to one count of indecent behavior with a juvenile, a violation of La. R.S. 14:81. He was sentenced to 20 years at hard labor, with the first two years being served without benefit of probation, parole, or suspension of sentence. He was also ordered to register as a sex offender. The defendant now appeals. For the reasons stated herein, the defendant’s conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

On July 18, 2012, the defendant was charged by bill of information with the aggravated rape of H.L. in violation of La. R.S. 14:42. In accordance with a plea agreement with the state, the defendant pled guilty to one count of indecent behavior of a juvenile, in violation of La. R.S. 14:81.

According to the arrest report, on June 17, 2012, H.L.’s mother, Latricia Southern, went to the Franklin Parish Sheriffs Office to file a complaint. Southern alleged H.L. and H.L.’s friend had gone swimming with a group of friends at Big Creek on June 13, 2012. It was there that they met the 21-year-old defendant, and H.L. and the defendant exchanged numbers. That evening the two communicated with each other via text messages, and at approximately 1:00 a.m. on June 14, 2012, the defendant picked up H.L. and her friend at a location near H.L.’s home. The defendant drove the girls to Big Creek, and the defendant asked the girls if they would like to go skinny dipping. H.L.’s friend declined, but H.L. agreed. The | ^defendant removed his clothes, and H.L. removed hers with the exception of her underwear. After complaining that the water was too cold, the defendant and H.L. got out of the water. The defendant began to kiss her, placed his hand inside of her underwear, and touched her vagina. H.L. stated that she wanted to leave, and they traveled to Davis Park. The defendant ordered H.L.’s friend out of his truck. H.L. then performed oral sex on the defendant, while he touched her vagina. After-wards, the defendant dropped the girls off at H.L.’s house at approximately 4:45 a.m.

After the incident occurred, H.L.’s mother discovered the text messages between H.L. and the defendant on H.L.’s cell phone. H.L. later told her father what had occurred.

On June 26, 2013, in accordance with the plea agreement, the defendant appeared in court to plead guilty to one count of indecent behavior with a juvenile younger than 13 years of age. The plea agreement did not include an agreement regarding the defendant’s sentence. Before accepting the defendant’s guilty plea, the trial court advised him of his Boykin rights. The defendant waived his rights. The trial court also informed the defendant of the applicable penalty for the crime of indecent behavior with a juvenile under the age of 13. The state then recited the following factual basis for the defendant’s plea, which the defendant did not dispute:

I would just say for the record, Your Honor, that on the date of the offense the defendant engaged in lewd and lascivious acts of a sexual nature including oral sex and fondling with the victim who was 12 years old at the time of the offense.

| ^Thereafter, the trial court accepted the defendant’s plea, and a presentence investigation report was ordered. The defendant’s sentencing hearing was set for August 28, 2013.

On August 23, 2014, the defendant’s counsel filed a motion to continue and reset the sentencing hearing, stating that he needed additional time to prepare for the hearing after receiving the presentence investigation report. This motion was denied on August 26, 2013.

On August 28, 2013, the defendant’s sentencing hearing was conducted. Again, the defendant’s counsel urged the motion for a continuance. He argued that he had not had enough time to prepare for the sentencing hearing after receiving several letters written by H.L.’s health care providers regarding the impact of the defendant’s crime on H.L. Further, he argued that the defendant was entitled to cross-examine H.L.’s health care providers regarding their evaluations because the text messages between the defendant and H.L. contained information inconsistent with their opinions. The defendant’s motion to continue was denied, and the trial court proceeded with sentencing.

During the hearing, the trial court noted its review of the presentenee investigation report, the letters submitted on behalf of the defendant and H.L., and the transcript of text messages exchanged between the defendant and H.L. Several of the letters from H.L.’s health care providers stated that H.L. had suffered from emotional and psychological problems following the sexual assault. One of the reports referenced H.L.’s statement during therapy that she believed she had become a lesbian as a result of the incident |4with the defendant. The trial court also noted its review of the sentencing factors set forth in La. C. Cr. P. art. 894.1, and found the defendant was in need of correctional treatment. It sentenced the defendant to serve 22½ years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence.

On September 26, 2013, the defendant filed a motion to reconsider his sentence, arguing that his near maximum sentence was excessive because he was not the worst kind of offender. He further argued that the trial court did not have a basis to conclude that he would likely commit another crime if not incarcerated. The defendant also complained that he was not permitted to cross-examine H.L.’s health care providers. This motion was granted.

On October 30, 2013, the defendant’s motion was heard. The trial court accepted a report and resume from Dr. David Williams into evidence. Dr. Williams opined that H.L.’s statement that she had become a lesbian due to her encounter with the defendant was not supported by the medical literature he had reviewed. He also noted that H.L. had referenced her “girlfriend” in text messages with the defendant after the sexual encounter, which might demonstrate that her sexual identity had been in question prior to her therapy, but not necessarily before the incident with the defendant.

The trial court found that it had incorrectly determined that the defendant would likely commit another crime if not incarcerated, and re-sentenced him to serve 20 years at hard labor, with the first two to be served [¿without the benefit of parole, probation, or suspension of sentence. This appeal ensued.

LAW AND DISCUSSION

Excessiveness of Sentence

In the first assignment of error, the defendant argues that the sentence imposed by the trial court is excessive because he is a first felony offender with a good reputation in the community. He also argues that the trial court erred by not granting a further reduction in his sentence.

The state argues that the defendant’s sentence is not excessive, and that the trial court adequately considered all of the aggravating and mitigating factors.

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

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

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. A trial court has broad discretion to sentence within the statutory limits.

On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29. Absent a showing of manifest abuse of discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

Whoever commits the crime of indecent behavior with juveniles on a victim under the age of 13 when the offender is 17 years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than 25 years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:81(H)(2).

Here, the court reviewed the presen-tence investigation report that contained both aggravated and mitigating factors. The defendant’s youthful age, lack of a criminal record, and work history were mitigating factors considered by the trial court.' The defendant was a 21-year-old, first felony offender who lacked a criminal record. Aggravating factors considered by the trial court included the severity of the offense, the young age of H.L., and the psychological injury to the victim. H.L. was 12 years old at the time the incident occurred.

|sThe defendant was sentenced to 20 years at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence. We would be remiss if we did not mention that the state had sufficient evidence to convict the defendant of aggravated rape, and that the defendant received a significant benefit by pleading guilty to a lesser charge. Additionally, the trial court reduced the defendant’s original 22]é-year sentence to 20 years after finding there was no proof that he was likely to commit another crime if not incarcerated.

After a careful review of the record, we find that even though the sentence imposed by the trial court is at the higher end of the sentencing range, it was not an abuse of discretion. The trial court adequately considered all of the aggravating and mitigating factors when tailoring its original and amended sentence for the defendant. Therefore, this assignment of error is without merit.

Motion to Continue

In the defendant’s second assignment of error, he argues that the trial court erred in denying his motion to continue the sentence hearing in violation of his due process right to confrontation. Specifically, the defendant argues that the trial court erroneously denied his motion for a continuance to allow him time to subpoena and cross-examine the health care professionals who gave medical opinions regarding H.L.’s well-being after the incident.

The state argues that the defendant had a sufficient amount of time to review and respond to the information contained in the presentence | 9investigation, as well as the letters containing the opinions of H.L.’s medical providers. The state also argues that the denial of the defendant’s motion to continue the sentence hearing became a moot issue when the trial court granted the motion to reconsider his sentence and considered all of the information provided by him.

Although a PSI is privileged and must remain confidential, the trial court is authorized, and upon timely request and proper allegations must, advise and disclose to the defendant, or his counsel, the factual, nonconfidential contents and conclusions of the PSI report or other derogatory or prejudicial information communicated directly to the sentencing judge before sentencing as long as the sources remain confidential, or unless the judge determines after in camera examination, that the material should be withheld because it is not relevant or was obviously intended to be confidential. La. C. Cr. P. art. 877; State v. Coleman, 574 So.2d 477 (La.App.2 Cir.1991); State v. Telsee, 388 So.2d 747 (La.1980). The purpose of this constitutionally-required “access” is to afford the defendant and his counsel an “opportunity” to deny, rebut or explain any adverse, incorrect and prejudicial PSI or other information (even that otherwise secret to the sentencing judge himself) to which the trial court was exposed prior to imposing sentence in order to avoid an excessive sentence improperly resulting from materially false information. Coleman, supra; State v. Richardson, 377 So.2d 1029 (La.1979). This right is given effect by allowing defense counsel to examine the report prior to sentencing |Klso that any false information may be rebutted at the sentencing hearing. State v. Lahrmann, 475 So.2d 116 (La.App.2 Cir.1985).

Here, the defendant was given the PSI and the corresponding victim impact letters, specifically the letters containing the opinions of H.L.’s medical providers, to review on August 22, 2013, several days before the defendant’s sentencing hearing. The letters containing the opinions of H.L.’s medical providers reflected the medical opinions about the effect the crime had on H.L. Even though the trial court denied the defendant’s motion to continue and reset the sentencing hearing, he was given the opportunity to rebut these letters. Prior to the defendant’s sentencing, his counsel presented the argument that the opinions expressed by H.L.’s health care providers were contradicted by text messages between H.L. and the defendant. The trial court was also given a copy of these text messages. Additionally, as mentioned in the facts section of this opinion, the defendant’s motion to reconsider his sentence was granted, and he was given the opportunity to submit a report and resume from Dr. David Williams into evidence in support of his argument.

The record is clear that the defendant’s rights in regard to his PSI were not violated. Further, the trial court did not give any undue weight to the victim impact letters. Rather, it based the defendant’s 20-year sentence on a review of all of the evidence submitted. Accordingly, we find this assignment to be without merit.

^CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the victim shall be referred to by initials only.

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