author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Charles COLEMAN a/k/a “Bird”.
    No. 13-KA-942.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Douglas W. Freese, Angel G. Varnado, Assistant District Attorneys, Gretna, Louisiana, for The State of Louisiana/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Defendant appeals his convictions and sentences for violations of La. R.S. §§ 14:27:30.1 and 14:30.1. We affirm.

Procedural History

On June 14, 2012, a Jefferson Parish Grand Jury returned an indictment charging defendant, Charles Coleman, with attempted second degree murder in violation of La. R.S. 14:27:30.1 (count one), second degree murder in violation of La. R.S. 14:30.1 (count two), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three). On June 15, 2012, defendant pleaded not guilty to all charges.

On June 10, 2013, the trial court heard and denied defendant’s motion to sever counts, motion to quash based on prescription, motion to quash the indictment as constitutionally deficient, motion to declare Art. 782(A) unconstitutional, motion for continuance, and objection to State’s Pri-eur notice. |sThe court granted defendant’s motion to declare La. R.S. 14:95.1 unconstitutional and granted a defense motion in limine.

On June 11, 2013, defendant proceeded to trial on the remaining charges of attempted second degree murder and second degree murder; and on June 12, 2013, a 12-person jury found defendant guilty as charged on both counts.

On August 9, 2013, the trial court sentenced defendant, on count one, to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count two, the court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

That same day, defendant filed a motion to reconsider sentence and a motion for appeal. On August 12, 2013, the trial court denied the motion to reconsider sentence and granted defendant’s motion for appeal.

Facts

Kevin Adams, a victim in this case, was acquainted with defendant from “the neighborhood” and in May 2007, frequently sold him drugs. One such instance occurred on May 7, 2007, when Mr. Adams met defendant three times to sell him crack cocaine. At their third meeting, at approximately 11:00 a.m., Mr. Adams met defendant in an abandoned house on Mather Drive in the Lincolnshire subdivision in Marrero, across the street from defendant’s house. During this transaction, defendant brandished a gun and pointed it at Mr. Adams. Mr. Adams threw his cell phone at defendant, striking him in the face. Defendant managed to discharge his weapon five times, striking Mr. Adams once in the collar bone and four times in his right side. The two men then fled the house. Mr. Adams sought help from neighbors who called the police.

LDetective Kevin Tillman of the Jefferson Parish Sheriffs Office was dispatched to the scene. As he neared the location, he observed Mr. Adams covered in blood. He quickly exited his vehicle to render assistance and called for EMS. Mr. Adams told the detective: “Bird shot me.” EMS arrived shortly thereafter and transported Mr. Adams to the hospital where he underwent surgery.

Around noon, Lieutenant Kevin Decker and Detective Willie Jones of the Jefferson Parish Sheriffs Office responded to the scene where Detective Tillman encountered Mr. Adams. From this location, the officers followed a trail of blood into a nearby abandoned residence. Inside, they recovered two cartridge casings and a cell phone.

Later that same day, Ayesha Carter, a self-proclaimed rehabilitated drug addict, left work early and headed home. On her way home, she stopped in the Woodmere subdivision in Harvey to see Marlon Turner, a childhood friend, drug dealer, and the second victim in this case. Ms. Carter planned to smoke marijuana with him. When she arrived, Mr. Turner sat in the passenger seat of her vehicle and they smoked. While sitting there, Mr. Turner received several phone calls, to which he responded: “I’m coming. I need a moment. I’m getting my car washed. Give me a minute, I’ll be there.” Mr. Turner then asked Ms. Carter if she could give him a ride to meet a “dude.” She agreed, and as they made their way, Mr. Turner received several more phone calls, to one of which he responded: “I’m on my way.” To another, he stated: “I’m not in my car. I’m in a little black box.” However, when they arrived at the location, there was no one there. Mr. Turner was then directed to another location. As they proceeded to that location, Ms. | ^Carter asked if Mr. Turner knew this person, to which he responded, “Yes. That’s nobody but Bird.” When they arrived at the second location, Ms. Carter stopped the vehicle as defendant approached. He entered the vehicle and sat in the rear passenger seat.

Ms. Carter, preferring not to have a drug deal take place in her vehicle, told Mr. Turner to hurry up and do what he needed to do. Defendant offered to move to his vehicle, but Mr. Turner replied that they were okay where they were. Waiting for the two men to finish the transaction, Ms. Carter turned around to see defendant patting himself down, looking for what she assumed was money.

Mr. Turner then retrieved from his pocket what appeared to be a bag of crack cocaine and asked Ms. Carter for a cigarette. Within moments, Ms. Carter heard a “pop” and her vehicle “lit up with fire,” prompting her to jump out, screaming, “Lord, please don’t kill me.” As she fled, she heard another shot a few seconds later. She made it to a nearby friend’s house, where she called the police. Mr. Turner died at the scene.

Around 2:45 p.m., Sergeant Eddie Klein of the Jefferson Parish Sheriffs Office responded to the scene in Woodmere near the intersection of Inwood Drive and Des-trehan Avenue, near Mather Drive, the street of the abandoned residence where Mr. Adams was shot earlier. Two .380 caliber casings and a cell phone were recovered on the scene. The cell phone and one of the casings were located in the rear seat of the vehicle. The other casing was located in the street next to the vehicle.

The police determined that the cell phone belonged to defendant. This phone was compared with the cell phone recovered from the abandoned residence on Mather Drive. A review of the phones’ call logs revealed that this phone received a call from defendant’s phone.

| nLater that day, Ms. Carter identified defendant from a photographic lineup as the man who shot Marlon Turner. At trial, she acknowledged that she did not see the discharge of a gun, but avowed she is “absolutely certain” that defendant shot and killed Turner.

Warrants for defendant’s arrest were subsequently issued relating to the shootings of Kevin Adams and Marlon Turner. Pursuant to a tip, Detective Michael Hamilton and several other officers of the New Orleans Police Department located defendant in a New Orleans residence in possession of a loaded .40 caliber handgun. He was placed under arrest and read his Miranda rights, which he indicated he understood, and was then transported to the detective bureau.

There, Sergeant Jeffrey Rodrigue and Detective Jason Barrett of the Jefferson Parish Sheriffs Office interviewed defendant. With a rights of arrestee form, defendant was again advised of his rights, indicated he understood them, waived them, and “provided two recorded statements.

In defendant’s first statement, he admitted that he shot “Black” after “tussling over the gun.” He explained that he knew the victim from around the neighborhood and that he bought drugs from him. On the morning of the murder, defendant encountered the victim at a barber shop and confronted him about an unpaid debt. Defendant agreed to call the victim later; and after several calls back and forth, the two men agreed to meet in Woodmere. When they met, defendant approached the victim, who was seated in the passenger seat of a vehicle, with an unknown female in the driver’s seat. The victim had drugs and money sitting on his lap. Defendant, who claimed he was unarmed, also noticed a gun tucked beside the victim in the center console.

17According to defendant, the victim told defendant to get in the car and told the driver to get out, which she did. Defendant sat in the rear seat behind the driver, at which point the victim asked defendant for his phone. After defendant handed over his phone, the victim started “cussing and talking crazy.” Defendant then said something that angered the victim and the two men started arguing. During this argument, the victim reached for his gun, prompting defendant to grab and twist the victim’s hand, wrestling the gun away from him and causing it to discharge twice. Defendant then grabbed the money and drugs off the victim’s lap and fled. He made his way to a hotel in New Orleans, where he snuck into a room and left the gun there. He specified that the gun was a .380 caliber.

In defendant’s second statement, he explained that prior to his fight with Mr. Turner, he met “Black Head” in an abandoned house across the street from his mother’s house. Defendant was rolling a crack cigarette when “Black Head” snatched the drugs and fled the house. This prompted defendant to discharge his .380 caliber handgun. Defendant acknowledged that this was the same gun he used to shoot Marlon Turner later that day. Consequently, he admitted that the portion of his first statement was incorrect wherein he stated he acquired the gun at the time he shot Turner. He explained that he acquired the gun from Turner two days prior and was returning the gun to him at the time he was killed.

The police determined that the gun found in defendant’s possession at the time of his arrest was not the weapon used in either of the two shootings. Jene Rauch, an expert in firearms identification with the Jefferson Parish Sheriffs Office Crime Lab, did determine, however, that the projectiles and fragments recovered during the autopsy of Marlon Turner were fired from the same gun. Ms. Rauch additionally established that the four casings recovered from both scenes |8were also fired from the same gun. Based upon the size, weight, and rifling, the class was determined to be consistent with a .380 caliber automatic. The actual weapon used in the shootings was not recovered.

Assignment of Error No. 1

The trial court deprived defendant of his fundamental constitutional right of eon-frontation by permitting the State to repeatedly interrupt defendant’s attempts at cross-examination of a critical prosecution witness. The error was not harmless and warrants reversal.

Discussion

In defendant’s first assignment of error, he argues that his constitutional right of confrontation was violated when defense counsel was prevented from conducting an effective cross-examination of Kevin Adams.

As the only witness to the crime against him, the defense recognized the importance of Mr. Adams’ testimony. Accordingly, the defense sought to cross-examine Mr. Adams, a multiple felony offender, regarding any leverage the State might have over him with respect to his probation status. However, because the State repeatedly interrupted this cross-examination with objections sustained by the trial court, defendant claims that he was unable to fully explore any motivations affecting Adams’ testimony. This, he contends, violated his constitutional right of confrontation.

In response, the State maintains that the trial court exercised reasonable control over the scope of cross-examination and that defendant was afforded a full opportunity for effective cross-examination. The State alternatively submits that even if the trial court erred in limiting defense counsel’s cross-examination of the witness, any such error was harmless in light of other incriminating evidence adduced at trial.

|9The right to confront witnesses is ensured in both the federal and state constitutions. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 615, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” Article 1, Section 16 of the Louisiana State Constitution guarantees the accused the right “to confront and cross-examine the witnesses against him.”

The Louisiana Supreme Court has held that the right of confrontation is more than physically confronting witnesses, where its main and essential purpose is to secure for the opponent the opportunity of cross-examination, which has been termed “the principal means by which believability and truthfulness of testimony are tested.” Draughn, 950 So.2d at 615-16. Yet, the right of confrontation guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. State v. Pierre, 13-0873 (La.10/15/13), 125 So.3d 403, 411.

The Louisiana Code of Evidence permits a witness to be cross-examined on any matter relevant to any issue in the case, including credibility. See La. C.E. art. 611(B). Indeed, this Court recognizes that impeaching a witness for bias or interest and exposing a witness’ motivation in testifying are proper functions of cross-examination. See State v. Micelotti 07-808 (La.App. 5 Cir. 4/15/08), 984 So.2d 847, 854, writ denied, 08-0950 (La.12/12/08), 997 So.2d 559.

In addition, the trial court is empowered to exercise reasonable control over the manner of cross-examination so as to: (1) ensure the effectiveness of the interrogation as a mode of ascertaining the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment. Draughn, 950 So.2d at 616 (citing La. C.E. art. 611(A)). This includes the court’s | ^discretion to preclude repetitive interrogation. See Draughn, 950 So.2d at 616. Furthermore, a trial court’s rulings as to the scope and extent of cross-examination should not be disturbed on appeal absent an abuse of the court’s broad discretion. State v. Ventris, 10-889 (La.App. 5 Cir. 11/15/11), 79 So.3d 1108,1125.

In the instant case, defendant argues that his right to confront and cross-examine Mr. Adams was violated when the trial court sustained the State’s objections on the ground that defense counsel’s questioning was argumentative.

“An argumentative question ... is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” People v. Chatman, 38 Cal.4th 344, 42 Cal.Rptr.3d 621, 133 P.3d 534, 563 (2006), cert. denied, 549 U.S. 1120, 127 S.Ct. 938, 166 L.Ed.2d 718 (2007). It “is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable.” Id. Put differently, an argumentative question “essentially talks past the witness, and makes an argument to the jury[.]” Id.

In his brief to this Court, defendant complains of several instances during the cross-examination of Kevin Adams in which the trial court sustained the State’s objections on grounds of argumentativeness. We address each in turn.

The first instance occurred as follows:

[DEFENSE]: Now, in response to the district attorney’s question about whether anything was offered to you by the detectives when you met with them in 2012, she specifically asked about your probation. Were you having issues with your probation back then?
[ADAMS]: No.
[DEFENSE]: No? Okay. So she just kind of asked that for no reason?
lu[STATE]: Objection, your Honor. Argumentative. It’s asked and answered. And it’s speculation on why I asked a question.
[COURT]: Rephrase the question.

Here, the trial court did not err in disallowing defense counsel’s question— “So she just kind of asked that for no reason?” — as argumentative. For one, it seems this question did not seek to elicit relevant evidence. “Relevant evidence” is evidence having any tendency to make the existence of any element of the charged offense more probable or less probable. See La. C.E. art. 401. The prosecutor’s reasons for asking about Mr. Adams’ probation had no tendency to make the existence of any element of the attempted murder of Mr. Adams more probable or less probable. And two, the question appears to have been unanswerable by Mr. Adams. There is no indication that Mr. Adams knew or could have known the prosecutor’s reasons for her questions. It is apparent that defense counsel’s question was posed rhetorically, such that its intended effect — impeaching the witness by emphasizing to the jury the illogic of his response — did not depend on an answer from the witness. Counsel seems to have been circumventing the witness and speaking to the jury under the guise of a question. For these reasons, the trial court did not abuse its discretion in disallowing this question as argumentative.

Turning to the second instance, defense counsel continued to question Mr. Adams regarding whether he was “having, trouble” with his probation. When Mr. Adams answered that he was not in trouble, counsel pressed him: “You’re not in trouble?” The following then occurred:

[ADAMS]: No. I’m in jail.
[DEFENSE]: You’re in jail. So but that’s not trouble?
[ADAMS]: Yeah, that’s—
INSTATE]: Objection, your Honor. Now, that’s becoming argumentative.
[COURT]: Let’s move on.
[DEFENSE]: It’s cross-examination, Judge. And the gentleman—
[STATE]: It doesn’t mean you get to argue with him.
[DEFENSE]: Excuse me. The gentleman has testified he’s not in trouble.
[STATE]: That’s his answer. Accept it.
[COURT]: That’s his opinion.
[DEFENSE]: Okay.
[DEFENSE]: So, Mr. Adams, do you consider being in jail, facing a long stretch of jail, not to be in trouble?
[ADAMS]: Jail don’t have—
[STATE]: Objection, Judge.
[ADAMS]: — nothing to do with this case.
[STATE]: He’s still becoming argumentative.
[DEFENSE]: It’s cross-examination, Judge.
[ADAMS]: It still don’t have nothing to do with this case.
[DEFENSE]: So you consider having charges, facing a long stretch of jail, not to be in trouble?
[ADAMS]: It still don’t have—
[STATE]: Objection, Judge. Argumentative.
[ADAMS]: — nothing to do with this case.

After a bench conference, the court permitted the questioning to continue:

[DEFENSE]: ... Is it your testimony you don’t consider yourself to be in trouble right now?
[ADAMS]: No.
J¿DEFENSE]: You don’t?
[ADAMS]: No.

The foregoing indicates that the trial court did not prevent defense counsel from questioning the witness on this point. Rather,, it is evident that the witness provided an answer after repeated questioning. Therefore, contrary to defendant’s claim, defendant’s right to confrontation was not violated where defense counsel was permitted to ask the question and received a response.

In the third instance, after questioning Mr. Adams about the possibility of his receiving a deal in connection with the charges pending against him, defense counsel stated: ‘You know the system. You’ve been in the system. You’ve gotten probation. You’ve had trouble with your probation. You’re familiar with the system, right?” Mr. Adams replied: “True.”

The State then objected:
[STATE]: Your Honor, I never said that he had problems with his probation. He’s already answered what he thinks is the status. And the objection that lies, that was made at the bench, is he shouldn’t be asking these questions to elicit circumstances—
[COURT]: All right. He’s under cross-examination, but you’ve already covered it. You’re probably not going to get another answer out of this gentleman other than what he’s given you about whether he’s in trouble or not. So just move on.
[DEFENSE]: Please note my objection.
[COURT]: All right.

The record reflects that Mr. Adams repeatedly denied having trouble with his probation. Despite this testimony, defense counsel asserted the contrary: ‘You’ve had trouble with your probation.” This effort by defense counsel to elicit testimony from Mr. Adams that he had been or was in trouble with his probation is 114notable since counsel did not frame it as a question but as a statement. By so doing, counsel impermissibly assumed facts not in evidence. See United States v. Smith, 354 F.3d 390, 396 n. 5 (5th Cir.2003), cert. denied, 541 U.S. 953, 124 S.Ct. 1698, 158 L.Ed.2d 386 (2004) (“A common vice is for the examiner to couch [a] question so that it assumes as true matters to which the witness has not testified, and which are disputed between the parties ... [W]hether the witness is friendly or hostile, the answer can be misleading. If the witness answers the question without separating out the assumption, it is impossible to determine whether the assumption was ignored or affirmed.”) (quoting McCormick on Evidence § 7 (5th ed.1999)).

Moreover, Mr. Adams was repeatedly asked, and he repeatedly answered that he was not in trouble with his probation. Therefore, we find that the trial court did not abuse its discretion in disallowing this repetitive questioning. See State v. Durham, 94-1036 (La.App. 5 Cir. 4/16/96), 673 So.2d 1103, 1119 (“The trial court is afforded wide discretion in limiting repetitive ... questioning on cross-examination.”).

In the fourth and final instance, after defense counsel continued to receive disagreeable answers from Mr. Adams, he posed the question: ‘You like to control things, don’t you Mr. Adams?” The following then occurred:

[ADAMS]: No.
[STATE]: Objection, your Honor. Argumentative-. Mr. Adams has the same presumption of innocence—
[DEFENSE]: He’s not on trial, Judge. Mr. Adams is not on trial in this case.
[STATE]: Objection, your Honor.
[COURT]: Don’t get argumentative. Just ask him your questions.
^[DEFENSE]: You like to be in control of things, don’t you, Mr. Adams?
[STATE]: Objection, your Honor. The same objection that I just lodged, and then you gave a response, and he repeated the same question.
[DEFENSE]: It’s not argumentative.
[COURT]: It’s argumentative. Move on.
[DEFENSE]: Mr. Adams, why are you so evasive with your answers on cross-examination?
[ADAMS]: Evasive—
[STATE]: Objection, your Honor. That’s not ... a relevant question leading towards the facts and circumstances of the instant case.
[DEFENSE]: It goes toward the testimony and credibility of the witness, Judge.
[COURT]: You framed it in an argumentative way, Mr. Fleming. Just ask him your questions.

Neither question (“You like to control things, don’t you Mr. Adams?” and “Why are you so evasive with your answers on cross-examination?”) sought to elicit testimony relevant to the issues at trial. Instead, by these questions, independent of Mr. Adams’ answers, it is apparent defense counsel sought to convey to the jury his belief that Mr. Adams was controlling and evasive. As such, the trial court did not abuse its discretion in disallowing these argumentative questions.

Further, an error with respect to a defendant’s right to confrontation is subject to a harmless error analysis. Micelotti, 984 So.2d at 854. If a confrontation error is found to have occurred, a reviewing court must determine whether the error is harmless beyond a reasonable doubt. Id. The factors considered when determining whether the guilty verdict rendered was unattributable to the error include the importance of the witness’ testimony, whether the testimony , was | ^cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination that was otherwise permitted, and, the overall strength of the State’s ease. Micelotti 984 So.2d at 854. Appellate courts should not reverse convictions for errors unless the accused’s substantial rights have been violated. Id.

In the present case, because Mr. Adams was the only witness to the crime against him, his testimony was indispensable to the State’s case. Yet, despite the State’s objections, the record indicates that the jury was made aware of Mr. Adams’ prior felony convictions and that charges were pending against him at the time of defendant’s trial. Consequently, the jury was cognizant of the circumstances under which Mr. Adams offered his testimony. For this reason, any errors the trial court may have committed in sustaining the State’s objections were harmless.

This assignment of error lacks merit.

Assignment of Error No. 2

It was error to deny the motion to quash challenging the so-called “short form” indictment.

Discussion

In defendant’s second assignment of error, he argues that the trial court erred in denying his motion to quash the indictment on the basis that the second degree murder charge was constitutionally deficient. In that motion, defendant argued that the charge, which utilized the short form indictment, was deficient because it failed to specify whether the grand jury indicted defendant on the specific intent theory or the felony murder theory of second degree murder. The trial court denied this motion.

|17In response, the State maintains that the trial court did not abuse its discretion in denying the motion since defendant was properly charged with a short form indictment.

Article I, Section 13 of the Louisiana Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1240, writ denied, 13-0306 (La.6/21/13), 118 So.3d 413. This requirement is implemented by La. C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

La.C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. Chairs, 106 So.3d at 1240. Both this Court and the Louisiana Supreme Court have consistently upheld the constitutionality of these short forms. Id. (citing Draughn, 950 So.2d at 624).

For instance, in Chairs, supra, the defendant, who was convicted of second degree murder, argued on appeal that the trial court erred in denying his motion to quash the indictment. He argued in the motion that the short form was constitutionally deficient due to its failure to specify whether his prosecution was being pursued under the specific intent theory or the felony murder theory of second degree murder. Chairs, 106 So.3d at 1240. His indictment read in pertinent part: “... on or about the 8th day of November, 2009, the said ROGER 11SD. CHAIRS ... violated R.S. 14:30.1 in that [he] did commit second degree murder of a known juvenile (DOB 4/29/2002).” Chairs, 106 So.3d at 1241.

This Court determined that the defendant was fully aware of the nature of the charges against him and concluded that the trial court did not abuse its discretion in denying the defendant’s motion to quash. Id. In reaching this conclusion, this Court noted that the indictment conformed to the short form provided in La. C.Cr.P. art. 465(A)(32) and that the defendant was provided with ample discovery, including police reports, arrest warrants, search warrants, crime lab reports, and statements of witnesses and co-defendants. Id.

Likewise, in the instant case, the indictment complied with the short form in La. C.Cr.P. art. 465(A)(32), as it provided: “... on May 7, 2007, the said CHARLES COLEMAN A/K/A ‘BIRD’ violated La. R.S. 14:30.1 in that he did commit the second degree murder of Marlon Turner.”

While the record reflects that defendant requested and was provided with discovery, the contents of that discovery are not evident from the record. Nevertheless, where defendant does not complain of discovery violations and the indictment complies with the short form, defendant was adequately informed of the nature of the charges against him. Therefore, we find no abuse of discretion in the trial court’s denial of defendant’s motion to quash the indictment. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1206 (“An appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.”).

This assignment of error is additionally without merit.

Error Patent Discussion

This Court routinely reviews the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, |1S556 So.2d 175 (La.App. 5 Cir.1990). A review of the record reveals the following errors patent.

First, errors appear in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order incorrectly states that the sentence and adjudication date was August 9, 2013, and that the offense date was February 24, 2012. The record indicates that the jury returned its verdicts on June 12, 2013. The indictment and evidence adduced at trial indicate that the offenses occurred on May 7, 2007.

In order to ensure an accurate récord, we remand this matter and order the Uniform Commitment Order be corrected to reflect the correct adjudication and offense dates. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Further, the clerk of the district court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant is sentenced and to the Department of Corrections’ legal department. Id. (citing La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam)).

Second, a review of the transcript reveals that the trial court failed to inform defendant of the prescriptive period for seeking post conviction relief as required by La.C.Cr.P. art. 930.8(C). This Court typically corrects this error patent by way of its opinion. See State v. Austin, 12-629 (La.App. 5 Cir. 3/13/13), 113 So.3d 306, 318, writ denied, 13-0673 (La.10/25/13), 124 So.3d 1092; State v. Cammatte, 12-55 (La.App. 5 Cir. 9/11/12), 101 So.3d 978, 986, writ denied, 12-1370 (La.10/26/12), 99 So.3d 644, and writ denied, 12-2247 (La.4/5/13), 110 So.3d 1075. Accordingly, by this opinion, we advise defendant that no application for post conviction relief, including applications which seek an out-of-time appeal, shall be | ^considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Decree

Considering the foregoing, defendant’s convictions and sentences are affirmed.

AFFIRMED & REMANDED FOR CORRECTION OF COMMITMENT.

      . "Bird” is defendant's nickname.

      . After his hospital visit, Mr. Adams disappeared. It wasn’t until five years after the shooting, in 2012, that the authorities located Mr. Adams. On June 6, 2012, Mr. Adams was shown a lineup, from which he identified defendant as his assailant. Mr. Adams also identified defendant as his assailant in open court.

      .Ms. Carter’s vehicle is black.

        , Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . "Black” is the name by which defendant knew Marlon Turner.

      . Defendant claimed he did not know "Black Head's” name.

      . The short form for second degree murder is provided in La. C.Cr.P. art. 465(A)(32), which provides: "A.B. committed second degree murder of C.D.”


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael WILMOT.
    No. 13-KA-994.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne M. Wallis, Jody Fortunato, Jennifer Z. Rosen-bach, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney At Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.

      Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT A. CHAISSON, Judge.

|2In this appeal, defendant, Michael Wil-mot, seeks review of his convictions and sentences for aggravated rape and sexual battery. For the reasons that follow, we find no merit to the arguments raised on appeal, and accordingly, we affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

On June 28, 2012, a Jefferson Parish Grand Jury returned an indictment charging defendant, in count one, with aggravated rape, in violation of LSA-R.S. 14:42, and in count two, with sexual battery of a victim under the age of thirteen, in violation of LSA-R.S. 14:43.1. Defendant pled not guilty at his arraignment. On July 15 and 16, 2013, the matter proceeded to trial before a twelve-person jury which found defendant guilty as charged on both counts.

On August 1, 2013, the trial court sentenced defendant, on the aggravated rape conviction to life imprisonment at hard labor without benefit of parole, ^probation, or suspension of sentence. As to the sexual battery conviction, the trial court sentenced defendant to ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence, to run consecutively to the aggravated rape sentence. Defendant now appeals.

FACTS

On March 12, 2012, K.A., the female juvenile victim, disclosed to the staff at her elementary school that defendant, her mother’s live-in boyfriend, had sexually abused and raped her. In particular, Jodi Bonnette, one of K.A.’s teachers, noticed that K.A.’s performance in school had declined, and when she spoke to K.A. about it, K.A. asked if she could speak to Ms. Bonnette in private. During their conversation, K.A. told her teacher that her stepfather started touching her and that she was no longer a virgin. Although K.A. asked her not to tell anyone, Ms. Bonnette explained that she had to report it. The two then went to the principal’s office, at which time the Department of Child and Family Services and the Jefferson Parish Sheriffs Office were notified.

Deputy Chad Lachney of the Jefferson Parish Sheriffs Office responded to the call. Upon his arrival at the school, he spoke to K.A., who informed him that “sexual encounters” had occurred between her and her mother’s boyfriend. Deputy Lachney then notified the Personal Violence Unit of the Jefferson Parish Sheriffs Office. In response, Detective Kay Horne proceeded to the school and spoke with K.A. who advised her that defendant had sexually abused her. In particular, K.A. advised Detective Horne that the abuse, which began when she |4was six years old, started with “skin to skin contact” and then progressed to defendant touching her vagina and performing oral, vaginal, and anal sex on her.

Later that evening, Detective Horne interviewed defendant at the detective bureau. After being advised of his rights and waiving them, defendant gave a recorded statement, in which he admitted to performing oral sex upon K.A., as well as having vaginal sex with K.A. However, he claimed that the sexual contact was initiated by the victim. At the completion of this statement, defendant was placed under arrest for aggravated rape and taken to the Jefferson Parish Correctional Center.

K.A. was subsequently interviewed at the Children’s Advocacy Center. In this interview, which was played for the jury, K.A. recounted the details of the sexual abuse which began in South Carolina when she was six years old. In addition, K.A. testified at trial regarding her relationship with defendant and the specific incidents of sexual abuse. According to K.A., who was twelve years old at the time of trial, she first met defendant in South Carolina when she was six years old. In fact, defendant lived with her and her mother for a total of about five years, first in South Carolina and then in Metairie. K.A. explained that in the beginning of her relationship with defendant, she looked up to him and even referred to him as “daddy.” While in South Carolina, defendant started “touching” and “licking” her vagina. According to K.A., defendant first performed oral sex on her when she was six years old in South Carolina and did that a total of five times.

Once K.A., her mother, and defendant moved to Jefferson Parish, the situation got worse. Defendant began to touch his penis to K.A.’s vagina, and he forced K.A. to perform oral sex on him twice and made her touch his penis. While in Louisiana, defendant continued to touch K.A. on her vagina, twice had vaginal intercourse with her, and once had anal sex. According to K.A., one act of vaginal | .^intercourse occurred on a couch at their Metairie apartment, and the second incident of vaginal intercourse occurred on a bed in their apartment, as did the act of anal sex. The acts of oral sex occurred in the living room of the apartment. Following the acts of rape, defendant wiped himself off and also wiped off K.A.’s legs and sometimes her back. Defendant told K.A. not to tell anyone about the things he was doing to her.

During her trial testimony, K.A. admitted that in the course of explaining what happened to her to law enforcement and medical personnel, she said some things that were not true. Specifically, she lied in her previous statement when she said that defendant used rope and duct tape on her while abusing her. K.A. also lied when she said her mother knew about the abuse; however, she maintained that she tried telling her mother about the abuse by writing her a note, but her mother did not understand.

At trial, defendant testified on his own behalf and denied any sexual contact with K.A. According to defendant, at the time he gave the statement to police admitting the sexual encounters, he had ingested two pain pills and a large amount of crack. Further, he claimed that he only gave the statement because he believed if he did, then K.A. would not be taken away from her mother. In addition, defendant claimed that he gave the statement as a way to end his troubled relationship with K.A.’s mother.

CONSTITUTIONALITY OF NON-UNANIMOUS JURY VERDICT

In his first two related assignments of error, defendant claims that Article I, § 17 of the Louisiana Constitution, that allows for non-unanimous jury verdicts, violates the right to a jury trial and the right to equal protection of the laws | ^guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.

The punishment for aggravated rape is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. Const. Art. I, § 17(A) provides that a criminal case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” In addition, LSA-C.Cr.P. art. 782(A) provides, in part: “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” In the instant case, defendant was found guilty of aggravated rape by a verdict of eleven to one. He now challenges the constitutionality of the non-unanimous jury verdict.

Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the Sixth and Fourteenth Amendments to the United States Constitution. In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court held that a state court conviction of a crime by less than a unanimous jury does not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment.

Likewise, the Louisiana Supreme Court has consistently held that non-unanimous jury verdicts for twelve-person juries are not unconstitutional in nonjcapital? cases. See State v. Edwards, 420 So.2d 663, 674 (La.1982). In State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738, 743, the Louisiana Supreme Court specifically reversed a district court ruling which found LSA-C.Cr.P. art. 782 unconstitutional. In reaffirming well-established jurisprudence that a non-unanimous jury verdict is constitutional and does not violate the Fifth, Sixth, or Fourteenth Amendments, the Bertrand court stated as follows:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

In accordance with State v. Bertrand, supra, this Court has consistently upheld the constitutionality of Louisiana law which allows for non-unanimous jury verdicts in non-capital cases. See State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238, 246; State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 614, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Wade, 10-997 (La.App. 5 Cir. 8/30/11), 77 So.3d 275, 281-282; State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 5-6, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 591-592, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S. —, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012); and State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 505-508, writ denied, 09-2102 (La.4/5/10), 31 So.3d 357.

As part of his equal protection argument on appeal, defendant contends that the enacting provision of Article I, § 17 of the Louisiana Constitution was based on racial discriminatory intent and therefore violates equal protection. Both the IsUnited States Supreme Court and the Louisiana Supreme Court have previously addressed this issue and found it to be without merit. In Apodaca v. Oregon, 92 S.Ct. at 1634, the Supreme Court reasoned:

We also cannot accept petitioners’ second assumption-that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence.

Likewise, in State v. Bertrand, 6 So.3d at 743, the Louisiana Supreme Court rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca v. Oregon, supra.

Recently, the defendant, in State v. Hammond, 12-1559 (La.App. 1 Cir. 3/25/13), 115 So.3d 513, writ denied, 13-887 (La.11/8/13), 125 So.3d 442, cert. denied, — U.S. —, 134 S.Ct. 1939, 188 L.Ed.2d 965 (2014), raised the same arguments raised by defendant herein. In the Hammond case, the defendant argued that Article I, § 17(A) of the Louisiana Constitution, that allows for non-unanimous jury verdicts, violates the right to jury trial and the right to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. As in the instant case, the defendant, as part of his equal protection argument, asserted that the enactment of the source provision in the Louisiana Constitution of 1898 was motivated by an express and overt desire to discriminate on the basis of race. Relying on Apodaca v. Oregon, supra, and State v. Bertrand, supra, the appellate |acourt rejected the defendant’s arguments and found that Article I, § 17(A) of the Louisiana Constitution and LSA-C.Cr.P. art. 782(A) are not unconstitutional and, therefore, not in violation of the defendant’s federal rights.

Likewise, based on well-established jurisprudence, we find no merit to defendant’s arguments relating to the constitutionality of Louisiana law which allows for non-unanimous jury verdicts in non-capital cases. These assigned errors are without merit.

EXCESSIVE SENTENCE

In assignments of error numbers three and four, defendant contends that the sentence imposed for the sexual battery conviction was excessive and further contends that the trial court erred in denying his motion to reconsider sentence.

Defendant was convicted of aggravated rape of a juvenile and was sentenced to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence pursuant to LSA-R.S. 14:42. In his appellate brief, defendant acknowledges the mandatory nature of this sentence and does not challenge it as excessive.

Defendant was also convicted of sexual battery of a child under the age of thirteen and was sentenced, pursuant to LSA-R.S. 14:43.1, to the maximum sentence of ninety-nine years at hard labor without benefit of parole, probation, or suspension, to be served consecutively to his life sentence on count one. On appeal, defendant contends that this sentence is excessive and points to the fact that the trial court failed to consider the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. Further, defendant challenges the consecutive nature of the sentence | inarguing that the two offenses were part of a common scheme, and thus, concurrent sentences were appropriate pursuant to LSA-C.Cr.P. art. 883.

In the present case, although defendant contends that the trial court erred in denying his motion to reconsider sentence, there is no indication in the record before us that defendant filed a motion to reconsider sentence or even orally objected at the time the sentences were imposed. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Williams, 11-427 (La.App. 5 Cir. 2/28/12), 88 So.3d 1102, 1111-12. Since defendant failed to file a motion to reconsider sentence and failed to object to the consecutive nature of the sentence and to the trial court’s failure to comply with the sentencing guidelines, defendant is limited to a review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739 (La.1992).

In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877. | iiOn appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461, 462.

With regard to his sexual battery-conviction, the trial court sentenced defendant, pursuant to the provisions of LSA-R.S. 14:43.1, to the maximum penalty of ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1218. However, the jurisprudence indicates that maximum, or nearly maximum terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414.

Although there do not appear to be any Louisiana cases, in which a defendant convicted of sexual battery of a child under the age of thirteen received a sentence of ninety-nine years, we nonetheless, based on the record before us, find that the trial court did not abuse his sentencing discretion in the imposition of sentence. The record indicates that K.A. was only six years old when the sexual abuse began and that she considered defendant a father figure, as evidenced by her calling him “daddy.” Moreover, K.A. informed the court, by way of a letter read at the sentencing hearing, that defendant placed her life “upside down” and caused her “loss of sleep, nightmares, loss of appetite, lack of concentration, fear of being alone, and anger ...” K A. further wrote that defendant caused her relationship with her mother to be not “as close anymore because of what he did to us.” K.A.’s [ ^mother also submitted a letter to the court stating that the situation with defendant caused her to have “nightmares, sleeplessness, depression, anxiety, loss of.appetite, ...” In her letter, K.A.’s mother further expressed that she worries all the time and is extremely scared to lose sight of her daughter for fear of her being harmed again. The trial court clearly considered these letters as well as the circumstances of the case and stated as follows:

Mr. Wilmot, stand up, sir. What [K.A.] needed for you to be was a true father figure. Instead, you robbed her of her innocence, stole her childhood, and have left her scarred for life. The crimes that you committed upon that young girl are as atrocious as they come.

Given these circumstances, we cannot say that the trial court abused his sentencing discretion. Moreover, we note that defendant’s sentence for aggravated rape is a mandatory life sentence without benefit of parole, probation, or suspension of sentence. Thus, the imposition of the ninety-nine year sentence for sexual battery will not practically affect the duration of defendant’s sentence.

Accordingly, the arguments raised by defendant in these assigned errors are likewise without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). Our review reveals a discrepancy between the transcript and the commitment. While the commitment reflects that defendant was given a proper advisal of the time period for seeking post-conviction relief as required by LSA-C.Cr.P. art. 930.8, the transcript indicates that the trial court failed to provide any such advisal.

It is well settled that if a trial court fails to advise, or provides an incomplete advi-sal, pursuant to LSA-C.Cr.P. art. 980.8, the appellate court may correct this | ,serror by informing defendant of the applicable prescriptive period for post-conviction relief. See State v. Brooks, 103 So.3d at 615. Thus, in accordance with this Court’s routine practice, we advise defendant, by this opinion, that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences for aggravated rape and sexual battery of a child under the age of thirteen.

CONVICTIONS AND SENTENCES AFFIRMED.

      . In the interest of protecting minor victims and victims of sexual offenses as set forth in LSA-R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. E,J.M., III, 12-774 (La.App. 5 Cir. 5/23/13), 119 So.3d 648. Compare State v. R.W.B., 12-453 (La. 12/4/12), 105 So.3d 54.

      .We note, as the State points out, that defendant did not raise the issue of the constitutionality of non-unanimous jury verdicts in the district court. Having failed to raise this issue in the trial court, defendant is not entitled to have it considered and reviewed by the appellate court. LSA-C.Cr.P. art. 841. However, this Court has considered the merits of the issue of the constitutionality of non-unanimous jury verdicts, even after noting that the issue was not properly raised in the district court. State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 614, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

      . The jury found defendant guilty of sexual battery by a unanimous verdict.

      . Although Apodaca v. Oregon, supra, was a plurality rather a majority decision, the United State Supreme Court has cited or discussed the Apodaca opinion various times since its issuance and, on each of these occasions, it is apparent that the Apodaca holding as to non-unanimous verdicts represents well-settled law. State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738, 742.

      . The mandatory life sentence for aggravated rape is not a violation of the prohibition against excessive punishment. See State v. Talbert, 416 So.2d 97, 102 (La.1982); State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 560, writ denied, 99-2818 (La.4/20/00), 760 So.2d 334.

      . This Court has held that when the consecutive nature of sentences is not specifically raised in the trial court, the issue is not included in the bare constitutional excessiveness review. State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411.


text:
    Woodrow K. FOGG v. Paul N. FOGG.
    No. 13-CA-712.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.
    Robert E. Tarcza, James E. Thompson, III, Attorneys at Law, New Orleans, Louisiana, for PlaintiflyAppellant.
    Ted M. Mitchell, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2Woodrow K. Fogg appeals the grant of a summary judgment in favor of his brother, Paul N. Fogg, declaring a trust instrument void due to procedural incapacity of one of the settlors. For the following reasons, we set aside that judgment and remand the matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The parties here are the children of Woodrow Fogg and Olive N. Fogg. Woodrow (Sr.) died in 1995 and Olive died in 1998. Prior to their deaths, Woodrow (Sr.) and Olive executed several pertinent documents. The first document, dated June 28, 1994, is a power of attorney in authentic form executed by Olive, giving her husband, Woodrow (Sr.), authority to conduct all of her affairs. On that same date, Woodrow (Sr.) and Olive also confected, by authentic act, a Revocable Living Trust Agreement. It was admittedly signed by Woodrow (Sr.) on his own behalf. Olive’s purported signature is in Woodrow’s (Sr.) handwriting, followed by the notation “POA,” and it is generally agreed that Woodrow (Sr.) signed Olive’s name on the document. A third document, by | ^authentic act and also executed on June 28, 1994, is an Act of Inter Vivos Donation of Immovable Community Property from Woodrow (Sr.) and Olive to the trust. About one year later, the trust agreement was amended so as to provide, inter alia, that Paul Fogg would become sole trustee after his parent’s death. Paul was notified of this amendment, and accepted the appointment by signing an acknowledgement on June 19, 1995. By the terms of the original and amended trust agreements, the trust would terminate nine months after the death of the last surviving parent.

From the time of Woodrow’s (Sr.) death in 1995 to 1998, Olive lived with and was cared for by Paul Fogg, who also managed all of her affairs during that time. Upon her death on August 19, 1998, Paul continued to administer all of his parents’ assets, apparently in his capacity as trustee. Although the trust ended by its own terms in 1999, which was nine months after Olive’s death, Paul continued to manage all of the assets after that time.

Paul’s brother, Woodrow, represents that, from time to time, he asked Paul for information about his management of the properties, but he never received an accounting of Paul’s management. On February 14, 2011, Woodrow filed the present action for an accounting of the management of the trust, and for damages in the event that the trust property has been mismanaged. Paul eventually urged a motion for summary judgment alleging that their mother, Olive, suffered from Alzheimer’s disease and was not competent to knowingly execute either a power of attorney or a trust agreement in 1994, and that the trust agreement was therefore a nullity. He submitted, in conjunction with his motion for summary judgment, affidavits from himself and several of Olive’s grandchildren to the effect that she was incompetent to manage her own affairs after about 1990. Also attached to the 14motion were a number of medical reports from Olive’s treating physician, all of which indicated that she suffered from dementia. No affidavits or other testimony from the notary or the witnesses to these acts were presented.

On the above evidence, the trial judge determined that Olive indeed lacked the capacity to execute the documents, and therefore no trust ever came into existence. Because the petition apparently sought an accounting of the assets of a non-existent trust, the trial judge granted the summary judgment and dismissed the entire suit with prejudice. This appeal followed.

DISCUSSION

Summary judgments are reviewed de novo by appellate courts. Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60. Under that standard, the issue is whether there exists any dispute as to material facts, and if not, is the mover entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In the present case, the pertinent documents are all executed as authentic acts. In Wiedemann v. Wiedemann, 09-41 (La.App. 5 Cir. 12/29/09), 30 So.3d 972, this court noted that La. C.C. art. 1835 provides that an authentic act constitutes full proof between the parties. That article also lists heirs as parties so bound. Also, La. C.C. art. 1848 provides that testimonial or other evidence may not be admitted to vary or negate the contents of an authentic act, except to show vices of consent, simulation, or to prove modification by later agreements, and jurisprudence has permitted such evidence to show error, fraud or duress. Id. Moreover, authentic acts are presumed to be valid, and a party asserting otherwise must present strong and convincing proof of such magnitude as to overcome the presumption. Meltzer v. Meltzer, 95-0551, 95-0552 (La.App. 4 Cir. 9/28/95), 662 So.2d 58, writ denied 95-2616 (La.1/5/96), 666 So.2d 293.

1 sHere, Paul, the mover for summary judgment, presented the affidavits of himself and three of Olive’s grandchildren, to the effect that Olive was suffering from Alzheimer’s disease and could not have understood the documents at issue. All of the affiants also identified Olive’s purported signatures on the trust document of June 28, 1994, as well as on the accompanying power of attorney, as being made by her husband, Woodrow (Sr.). It is notable that to the untrained eye, the signatures on the trust document appear quite different from that on the power of attorney, but this discrepancy was claimed by all of the affiants as being due to their grandfather being drunk when the signature on the power of attorney was affixed. There is no explanation of how he became inebriated between the signing of the trust document and the signing of the power of attorney, especially when these documents appear to have been executed contemporaneously by the same notary and before the same witnesses. Neither is there any explanation of why the notary and two witnesses, by their signatures, in effect attested to the fact that Olive had indeed signed the document.

Also submitted with the motion for summary judgment were the medical notes of Dr. Benjamin Seltzer, a neurologist, who had treated Olive from 1992 to 1994. These reports confirm the diagnosis of Alzheimer’s disease, and note Olive’s declining mental condition. However, no direct opinion is given by Dr. Seltzer as to whether Olive was capable of basically comprehending that she was authorizing her husband to act in her stead by giving him a power of attorney.

In considering all of the above evidence, it is evident to this Court that there are issues of material fact as to Olive’s mental state on June 29, 1994, the actual date when the power of attorney was executed. That being the case, summary judgment was not appropriate on the question of whether a trust was formed, and we hereby vacate the judgment.

IfiWe further point out that there is a second reason that the judgment was erroneous. While La. C.C. art. 2347 provides that the concurrence of both spouses is required to alienate community property, La. C.C. art. 2353 further provides that alienation of community property by one spouse acting alone is only a relative nullity. Even assuming arguendo that Olive was incompetent to grant a power of attorney, her husband was capable of establishing a trust and transferring their community property to it without her consent so long as she, or someone acting on her behalf, did not object. There is no question that Paul was aware of his mother’s condition and the documents surrounding the trust agreement when he accepted an appointment as trustee on June 19, 1995. If he had questions about the validity of the trust, he could have petitioned to have his mother interdicted and to set aside the acts of his father. No such action was ever undertaken, and thus the actions of his father were never nullified.

We finally note that Paul has urged in this court an exception of prescription, and advances a number of theories in its support, including: 1) that there was no trust, 2) that if there was a trust it has long expired and it is now too late to ask for an accounting under the trust code, 3) that prior to their mother’s death he was her caretaker and was administering to her from non-trust assets, and therefore a different prescriptive period might apply to these funds, and 4) that, sometime in 2002, he and his brother divided the assets on hand from their parents and became co-owners in indivisión, a circumstance to which yet another prescriptive period might apply. Because these theories are for the most part fact intensive, we decline to rule on the exception of prescription, and instead remand that issue to the district court for resolution.

Paul also argues in his memorandum in support of the exception of prescription that an accounting has in fact been provided, and refers to a number of |7documents in the record which appear to substantiate this claim. While there appears to be some merit to the assertion that an accounting has been made, we are unable to ascertain from these records whether that accounting is complete, or whether Woodrow is able to controvert that accounting. Again, these are factual matters which are better resolved in the district court.

DECREE

For the foregoing reasons, the summary judgment ruling that a valid trust was not confected, and dismissing the suit with prejudice, is hereby vacated, and the matter is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENT VACATED; MATTER REMANDED.

      . For reasons not apparent from the record, a second Revocable Living Trust Agreement was confected by authentic act on November 19, 1994.


author: ROBERT M. MURPHY, Judge.

text:
    Millie Toscano PELIAS v. Constantine Harold PELIAS.
    No. 13-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Joel A. Levy, Attorney at Law, Marrero, LA, for PlaintiffAppellee.
    Jane E. Booth, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

12Appellant, Constantine Harold Pelias, appeals the trial court’s June 19, 2013 judgment finding him in contempt of court for failure to exercise visitation with his minor children. The trial court awarded appellee, Millie Toscano Pelias, attorney’s fees, child care costs, and other costs, and modified the parties’ March 5, 2012 consent judgment which had failed to specify which night of the week appellant would exercise his overnight visitation. For the reasons that follow, we reverse the trial court’s finding of contempt, reverse the trial court’s award of child care costs, attorney’s fees and costs, and reverse the court’s modification of the consent judgment.

FACTS AND PROCEDURAL HISTORY

After Ms. Pelias filed for a La. C.C. art. 102 divorce on August 25, 2011, she and Mr. Pelias entered into a consent judgment on the ancillary issue of visitation on March 5, 2012. The father was to have “regular visitation with the [three] minor children [ages 13, 12 and nine] from Friday after school to 8:00 p.m. on Sunday every other weekend and one night per week to be mutually agreed upon by the parties.... The parties intend to be flexible with this schedule to [.-¡accommodate each other’s schedules and needs and the schedules of the children.” (Emphasis added).

It is undisputed that Mr. Pelias thereafter not only visited the children, helped with their homework, and took the children to dinner, sporting events, and extracurricular activities, but at the same time, he failed to exercise visitation with them overnight during the week for over 60 weeks.

On April 23, 2013, Ms. Pelias filed an action for failure to exercise visitation under La. R.S. 9:346. The matter came before the domestic hearing officer on May 23, 2013. On May 28, 2013, Mr. Pelias filed an objection to the hearing officer’s recommendation and interim order. On June 22, 2013, the trial judge signed a judgment finding Mr. Pelias in contempt of court for failure to exercise visitation. The trial court further awarded judgment in favor of Ms. Pelias in the amount of $4,088 as follows: $1,088 in after care expenses, $1,000 in attorney’s fees and $2,000 in child care expenses plus costs, pursuant to La. R.S. 9:346(B). The trial court further modified visitation under the consent judgment pursuant to La. R.S. 9:346(H), selecting Thursday night as the night of the father’s overnight weekly visitation. The notices of signing the judgment were mailed on August 1, |42013. Mr. Pelias filed a motion and order for suspensive appeal on his furnishing bond of $8,000.00. Ms. Pelias answered the appeal seeking an increase in the amount of attorney’s fees.

ASSIGNMENTS OF ERROR

Assignment of error number one. The trial court’s finding Mr. Pelias in contempt of court pursuant to La. R.S. 9:346 for failure to exercise visitation was manifestly erroneous.

Assignment of error number two. The trial court erred in modifying the visitation schedule the parties entered into in the March 5, 2012 Consent Judgment.

Assignment of error number three. The trial court’s decision to award Ms. Pelias $4,088.00 in attorney’s fees, costs, and child care costs without supporting evidence of “actual costs” was manifestly erroneous.

STANDARD OF REVIEW

The appellate court reviews a trial court’s finding of contempt by a manifestly erroneous standard. Weaver v. Weaver, 12-238 (La.App. 5 Cir. 12/11/12), 106 So.3d 1116. To find a person guilty of constructive contempt, it is necessary to find that he violated the order of court intentionally, knowingly, and purposefully, without justifiable excuse. Id., at 1120.

LAW AND DISCUSSION

In assignment of error number one, appellant contends that the trial court erred in finding him in contempt of court for his failure to exercise visitation.

Ms. Pelias admitted she has a flexible schedule as an occupational therapist, but nonetheless she would like to work additional hours. She alleges that she has had to adjust her work week and has incurred additional expenses due to Mr. Pelias’ refusal to exercise visitation. She contended she has repeatedly asked Mr. |sPelias to exercise his weeknight visitation to which she contended his response was that it interfered with his work schedule.

Mr. Pelias sought reversal of the trial court’s judgment finding him in contempt of court. He noted that the parties intended to be flexible and the agreement provided that he would exercise visitation “one night per week to be mutually agreed upon by the parties.” He contended that the visitation would only be triggered by the mutual selection of the parties as to which weeknight.

In his defense, Mr. Pelias noted his demanding workday from 6:00 a.m. to 6:00 p.m. and that he has little control over his schedule. He emphasized that he has never missed a scheduled weekend visitation and has taken the children even during the mother’s time of physical custody. Mr. Pelias further contended that the trial court erred in awarding child care costs and attorney’s fees to Ms. Pelias as she did not provide the court with actual care expenses or evidence of attorney’s fees. See La. R.S. 9:346(B)(2) & (B)(4). Mr. Pelias summarizes that he was found in contempt, in effect, for complying with his work obligations and for his inability to come to terms with the mother in selecting a specific week night.

Constructive contempt of court includes “willful disobedience of any lawful judgment, order, mandate, writ, or process of the court”. La. C.C.P. art. 224. The trial court is vested with “great discretion to determine whether a party should be held in contempt for wilfully disobeying a visitation judgment. The trial court’s decision will only be reversed when the appellate court can discern an abuse of that discretion.” Stephens v. Stephens, 30,498, p. 5 (La.App. 2 Cir. 5/13/98), 714 So.2d 115, 118.

We find no intentional, knowing, and purposeful violation of the trial court’s March 5, 2012 consent judgment. The consent agreement allowed for flexibility l/or the parties, left open the selection of the night for overnight visitation, and required the mutual agreement of the parties to select the specific night.

Neither party could be held to a purposeful violation when both parties have demonstrated that there was no set binding agreement on these issues. The statute provides a defense at Subpart G if the failure to exercise visitation according to the schedule was by “mutual consent, beyond the control of the defendant, or for other good cause shown.” Here, both parties did not agree to a specific night nor was this condition under the control of a single party. We find that the trial court was manifestly erroneous in finding that Mr. Pelias intentionally, knowingly, and purposely failed to exercise visitation and therefore conclude that the trial court manifestly erred in finding Mr. Pelias in contempt of court.

? on the finding that the trial court manifestly erred in finding Mr. Peli-as in contempt, we find the trial court erred in granting relief, ie., modifying the visitation and awarding attorney’s fees, costs, and child care costs, remedies which are all contingent on the court’s first finding of Mr. Pelias being in contempt. La. R.S. 9:346(B). The court’s award for expenses and child caretaking expenses must follow a finding of contempt. La. R.S. 9:346(B)(2) & (3). Modification of visitation under La. R.S. 9:346(H) requires a threshold finding of a “pattern of willful and intentional violation,” rejected above and not sought by the parties. An award of attorney’s fees and costs is similarly dependent on a finding of contempt. La. R.S. 9:346(B)(4). Finding no such contempt, the awards and modification must fall.

Assignments of errors numbers two and three have merit for the reason that the trial court manifestly erred in finding Mr. Pelias in contempt. Reversing the contempt requires reversing both the awards and the modification of visitation.

^DECREE

For the reasons above, we reverse the judgment of the trial court finding Mr. Pelias in contempt of court and vacate the awards and modification of visitation. Ms. Pelias’ request for an increase in attorney’s fees is denied.

REVERSED.

      . The parties were awarded joint custody of the minor children by the March 5, 2012 consent judgment.

      . The divorce was granted on May 17, 2013.

      . La. R.S. 9:346 provides in pertinent part:
      (A). An action for the failure to exercise or to allow child visitation ... pursuant to the terms of a court-ordered schedule may be instituted against a parent. The action shall be in the form of a rule to show cause why such parent should not be held in contempt for the failure and why the court should not further render judgment as provided in this Section.
      (B). If the action if for the failure to exercise child visitation ... pursuant to the terms of a court-ordered schedule, and the petitioner is the prevailing party, the defendant shall be held in contempt of court and the court shall award to the petitioner:

      (2). A reasonable sum for any actual expenses incurred by the petitioner by reason of the failure of the defendant to exercise rights pursuant to a court-ordered visitation....
      (3). A reasonable sum for a caretaker of the child, based upon the hourly rate for caretakers in the community.
      (4). All attorney fees and costs of the proceeding.

      (E). The court may award attorney fees and costs to the defendant if he is the prevailing party, based upon actual expenses incurred.

      (G). It shall be a defense that the failure to allow or exercise child visitation rights pursuant to a court-ordered schedule was by mutual consent, beyond the control of the defendant, or for other good cause shown.
      (H). A pattern of willful and intentional violation of this Section, without good cause, may be grounds for a modification of a custody or visitation decree.