source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of L.M.
    No. 2013-CA-1140.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellantyState of Louisiana.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   EDWIN A. LOMBARD, Judge.

|2The State appeals the juvenile court judgment of May 16, 2013, granting the motion to quash filed by counsel for L.M., the juvenile in this case. After review of the record, we dismiss the appeal without reaching the merits of the State’s argument.

Relevant Facts and Procedural History

On October 19, 2011, the juvenile was charged by petition with theft. On April 11, 2013, after several delays due to competency issues, the matter was set for trial on May 16, 2013. On that date, however, the defendant entered an oral motion to quash the petition. Based on a written motion ordered to be submitted by 4 p.m. that day, the juvenile court granted the motion to quash. The State orally noted its intention to apply for supervisory writ and requested a stay. The juvenile court set a return date of fifteen days within which the State should file its application. On May 21, 2013, the juvenile court issued a judgment affirming the granting of the motion to quash with service instructions to forward a copy to the ADA (Assistant District Attorney) and mail a copy of the judgment to the juvenile’s parent or guardian. That same day, (May 21, 2013), the State filed a written notice of intent to file a writ and was granted a return date of June 21, 2013. On June 25, 2013, the State filed a motion requesting an extension of time | sto file its writ application and the attached order was signed granting the State an extension until July 26, 2013, to file its writ application. On June 28, 2013, a judgment dated June 27, 2013, was signed, affirming that the motion for extension of time had been granted and setting the matter for “Writ Status with the Fourth Circuit” on August 8, 2013. On July 30, 2013, however, the State filed a motion to appeal the judgment of May 16, 2013. The juvenile court judge granted the motion, ordering the clerk of court to compile the record and transcripts for lodging with this court and a devolutive appeal was lodged in this court on August 16, 2013.

Applicable Law

Article 803 of the Louisiana Children’s Code (within Title VIII which pertains to “Delinquency”) provides as follows:

The provisions of this Title shall govern and regulate delinquency proceedings of the courts exercising juvenile jurisdiction. Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.

La. Ch.Code art. 803.

In turn, Article 332 of the Louisiana Children’s Code provides that except where otherwise provided within a particular Title of the Children’s Code, “appeals shall be taken within fifteen days from the mailing of judgment.” La. Ch.Code art. 332(A).

Discussion

Pursuant to La.Code Crim. Proc. art. 915(B)(1), an adverse judgment on a motion to quash may be appealed by the State. Thus, the proper procedure for contesting the judgment of May 16, 2013, is an appeal.

| ./Therefore, pursuant to La. Ch.Code art. 803, we first look to Title VIII of the Louisiana Children’s Code and then to the Louisiana Children’s Code as a whole for the appropriate procedure before looking to the Louisiana Code of Criminal Procedure to determine the appropriate time period for filing an appeal from a juvenile court judgment. Although there is no relevant provision in Title VIII, Article 332 of the Louisiana Children’s Code clearly provides a fifteen day time period “from the mailing of judgment” in which to file its motion for an appeal.

The judgment granting the motion to quash in this case was issued orally on May 16, 2013, and then confirmed by a written judgment (which included an order to mail the judgment) on May 21, 2013. Thus, given the presumption of regularity, in accordance with the juvenile court judge’s service order to forward it to the State and mail it to the juvenile’s parent or guardian, the time period for filing an appeal from the judgment began on May 21, 2013. The State, however, failed to file a notice of appeal until July 30, 2013, long after the time period had elapsed. That the State erred initially in seeking relief pursuant to a writ application rather than an appeal does not serve to extend the mandated time period for filing a motion to appeal a judgment. As such, the appeal was not timely filed and we are without jurisdiction to hear this appeal.

| sConclusion

The State’s appeal is dismissed without consideration of its merits.

APPEAL DISMISSED.

      . The time period provided in the Criminal Code for filing an appeal is slightly longer (thirty days) but does not encompass the seventy-five days between the oral ruling granting the motion to quash and the State's motion for appeal. See La. Code Crim. Proc. art. 914(A) and (B)(1) (motion for appeal may be made orally in open court or by filing a written motion with the clerk, but “must be made no later than thirty days after rendition of the judgment or ruling from which the appeal is taken.”).

      . Moreover, the State's notice of intent to apply for a supervisory writ (and subsequent requests for extensions of time) clearly indicates the State’s knowledge of the judgment.


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

text:
    Christopher J. SACCO v. Karyl PAXTON, Pierce Paxton Design Studio, L.L.C. and Karyl Paxton Design, Inc.
    No. 2012-CA-1595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      James M. Williams, Alanah 0. Hebert, Gauthier, Houghtaling & Williams, LLP, Metairie, LA, for Plaintiff/Appellee.
    Isaac H. Ryan, Kermit L. Roux III, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendants/Appellants.
    Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO.
   JAMES F. McKAY III, Chief Judge.

1 defendants, Karyl Pierce Paxton (“Ms. Paxton”), Pierce Paxton Design Studios, L.L.C. (“PPDS”), and Karyl Paxton Design, Inc. (“KPD”), appeal the trial court’s April 16, 2012 judgment in favor of plaintiff, Christopher J. Sacco (“Mr. Sacco”), awarding him damages for breach of fiduciary duty, and breach of partnership agreement and/or joint venture agreement.

The main dispute in this lawsuit is whether a partnership or joint venture agreement existed between Mr. Sacco and Ms. Paxton. A written partnership agreement was never executed. Mr. Sacco contends that he entered into an oral partnership agreement with Ms. Paxton in 1997, in which he agreed to help grow her original business, Pierce Paxton Collections, in exchange for an equity partnership. He alleges that the agreement was that he would contribute time and labor, or in his words, “sweat equity,” in exchange for a partnership interest, which Ms. Paxton offered because she could not afford to pay him at the time. He further contends that this alleged partnership agreement extended to companies formed later by Ms. Pax-ton, i.e., PPDS (created in 2000), and KPD (created in 2003). Conversely, Ms. Paxton contends that Mr. Sacco was an employee or contractor [¡¡who worked for her and her companies. She alleges that she compensated Mr. Sacco for all of his work but never offered him a partnership interest in any of her businesses.

In the 1990’s, Ms. Paxton operated an interior design business called Pierce Pax-ton Collections, first in Jackson, Mississippi, and later in New Orleans, Louisiana, where she met Mr. Sacco. In late 1997, Ms. Paxton asked Mr. Sacco to work with her at Pierce Paxton Collections. At that time, Ms. Paxton and Mr. Sacco were involved in a romantic relationship. They never married so no community property regime was ever established.

Ms. Paxton created PPDS in 2000. Mr. Sacco’s name was not included in the documents forming this business entity. Through PPDS, lighting fixture designs were to be marketed to stores on a wholesale basis. The designs were successful, and as a result, PPDS generated significantly more revenue than Pierce Paxton Collections.

In 2003, Ms. Paxton created KPD, which engaged in the licensing of lighting fixture designs. Mr. Sacco’s compensation increased as PPDS and KPD became more profitable. However, the relationship between Ms. Paxton and Ms. Sacco deteriorated as Mr. Sacco asserted his alleged status as an equity partner in PPDS and KPD. Attempts to resolve the issue of Mr. Sacco’s role in Ms. Paxton’s companies were unsuccessful. In late 2003, when Ms. Paxton was out of the country, Mr. Sacco allegedly downloaded computer files, took Ms. Paxton’s design sketchbooks from the office, and wrote several PPDS checks to himself in excess of $40,000.00. When Ms. Paxton discovered Mr. Sacco’s actions, she fired him.

Shortly thereafter, on January 9, 2004, Mr. Sacco filed the instant lawsuit against Ms. Paxton, PPDS and KPD. The petition alleges that when Mr. Sacco and |sMs. Paxton first discussed working together in late 1997, Ms. Paxton suggested that they join as partners in her business, Pierce Paxton Collections, and pool resources, time and energy to grow and expand Pierce Paxton Collections. He further alleged that his business partnership with Ms. Paxton extended to the new business entities, PPDS and KPD. Mr. Sacco alleged that from 1998 until the filing of his lawsuit, the two worked together to develop the design businesses. He alleged that he provided computer graphics, handled all accounting and checking accounts and most of the business documents. He further alleged that he was designated “managing partner” of the businesses, dealt with customers and operated the manufacturing process. He stated that during this time, he and Ms. Paxton pooled their time and resources “in hopes of splitting future profits.” According to Mr. Sacco, it was only after the businesses started becoming more profitable and the parties’ personal romantic relationship ended that Ms. Pax-ton attempted to force Mr. Sacco out of the businesses, insisting that he change his status from partner to employee and threatening to deny him profits of the businesses if he refused to do so. He asked for a declaratory judgment ruling that he and Ms. Paxton had a partnership or joint venture, and that he was entitled to 50% ownership interest in all profits, “insofar as Sacco and Paxton have no contrary agreement to split profits unevenly.” He also asked that Ms. Paxton be held liable to him for breach of contract and breach of fiduciary duty for her efforts to harm his rights to revenues generated by their alleged partnership.

Ms. Paxton, PPDS and KPD answered the petition, denying that Ms. Paxton ever offered Mr. Sacco a partnership in any of her businesses or that he ever worked with her in the capacity of a partner. She also specifically denied that they had an agreement to split profits or to grant Mr. Sacco joint ownership and control |4of PPDS. She stated that she discussed working with him, but with Mr. Sacco working on a salaried basis only. While she admitted entrusting Mr. Sacco with the internal accounting of the businesses, including his authority to sign on certain accounts, she denied that he was ever charged with the overall management of the businesses, and stated that his listing himself as “partner” or “managing partner” on any document relating to her businesses was unauthorized. She stated that she formed PPDS as a limited liability company and was its sole member.

In addition to the answer, the defendants filed a reconventional demand against Mr. Sacco, alleging that shortly before Ms. Paxton terminated Mr. Sacco’s employment in January 2004, he removed checking account statements, cancelled checks, and invoices of PPDS without authority. Additionally, Mr. Sacco withdrew a significant amount of funds from the PPDS accounts without authority. She further alleged that in addition to improperly withdrawing funds from PPDS, Mr. Sacco attempted to disrupt and interfere with contractual relationships that PPDS had with certain vendors and customers. Ms. Paxton alleged that Mr. Sacco’s actions constituted conversion and trespass. She asked for damages, and also asked for injunctive relief for the actual or threatened misappropriation of trade secrets pursuant to the Louisiana Uniform Trade Secrets Act.

Following a trial on the merits, the jury concluded that Ms. Paxton entered into a partnership or joint venture agreement with Mr. Sacco, breached that agreement and knowingly breached her fiduciary duty to him. Judgment was rendered in favor of Mr. Sacco and against Ms. Paxton, PPDS, and KPD in the amount of $1,153,673.00 for breach of fiduciary duty, and breach of a partnership agreement and/or joint venture agreement, plus interest from date of judicial demand and costs of the proceedings. The jury also found that Mr. Sacco |ficommitted a conversion of property that belonged to Ms. Paxton, PPDS and/or KPD. The trial court adopted the jury’s verdict on the issue of conversion, and rendered judgment in favor of Ms. Paxton, PPDS and KPD, and against Mr. Sacco, in the amount of $22,000.00, plus interest from date of judicial demand. The defendants’ motions for new trial and judgment notwithstanding the verdict were denied.

The defendants now appeal the portion of the trial court judgment awarding Mr. Sacco, damages for the defendants’ breach of fiduciary duty and breach of partnership agreement and/or joint venture agreement. The portion of the judgment regarding the award to the defendants for Mr. Sacco’s conversion of property has not been appealed by any of the parties.

On appeal, the defendants present five assignments of error:

1)The trial court erred in instructing the jury regarding the requirement that partners agree to share losses;
2) The jury erred in finding that the legal criteria for recognition of a Louisiana partnership were established by the record evidence;
3) The jury’s verdict and the trial court’s judgment violates the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq.;
4) The damages awarded are not supported by the record evidence; and
5) There is no legal basis for a judgment against Pierce Paxton Designs Studio, L.L.C. or Karyl Paxton Design, Inc.

Our law defines a partnership as a “juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.” La. C.C. art. 2801. In Darden v. Cox, 240 La. 310, 123 So.2d 68, 71 (1960), the Supreme Court set forth three criteria for establishing an oral commercial partnership agreement: 1) the parties must have mutually consented to form a partnership and to participate in the profits which may accrue from property, skill or industry, furnished to the business in determined proportions by them; 2) all parties must share in the losses as well as the profits of the venture; and 3) the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest.

It is also well settled that the prerequisites for establishing a partnership are that both parties intend to have a business relationship between them and that the relationship has all the major characteristics of a partnership. Porter v. Porter, 36,007, p. 14 (La.App. 2 Cir. 6/12/02), 821 So.2d 663, 671; LaRocca v. Bailey, 2001-0618, p. 6 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263, 1268; Butler v. Sudderth, 2000-1950, p. 10 (La.App. 5 Cir. 4/24/01), 784 So.2d 125, 130. These criteria require findings of fact. Medline Industries, Inc. v. All-Med Supply & Equipment, 94-1504, p. 5 (La.App. 1 Cir. 4/7/95), 653 So.2d 830, 833.

The standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. To reverse a fact finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not ^reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id. at 883. Further, when a fact finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). The credibility determinations of the trier of fact are subject to the strictest deference under the manifest error-clearly wrong standard. Theriot v. Lasseigne, 93-2661, p. 9 (La.7/5/94), 640 So.2d 1305,1313.

With regard to the first assignment of error, the jury instruction to which the defendants objected was as follows: “The term losses’ for purposes of the general rule is not limited to monetary losses, but includes time expenditures and out-of-pocket expenses, especially where one party to the venture furnishes property and the other, only services.” While neither the Louisiana Supreme Court nor this Circuit have ever specifically defined “losses” in such a way for purposes of determining the existence of a partnership or joint venture, the language in the jury instruction at issue was included in the Third Circuit case of Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159, 1162 (La.App. 3 Cir.1990).

Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Wooley v. Lucksinger, 2009-0571, p. 81 (La.4/1/11), 61 So.3d 507, 574 (citing Adams v. Rhodia, Inc., 2007-2110, p. 6 (La.5/21/08), 983 So.2d 798, 804). Even though decisions of other circuits in Louisiana are not controlling authority as to this Court, but instead are merely persuasive authority, we cannot say that the trial court abused its discretion in including the jury instruction at issue. The instruction was a correct statement of the law as stated in the Third Circuit case of Latiolais, supra.

The defendants next argue that the trial court erred in adopting the jury’s finding that the legal criteria for recognition of a Louisiana partnership were established by the record evidence. We disagree.

Pursuant to the criteria set forth in Darden, supra, Mr. Sacco had the burden to prove: 1) the parties mutually consented to form a partnership and to participate in the profits which may accrue from property, skill or industry, furnished to the business in determined proportions by them; 2) the parties shared in the losses as well as the profits of the venture; and 8) the property or stock of the enterprise formed a community of goods in which each party had a proprietary interest.

Mr. Sacco testified that in December of 1997, he and Ms. Paxton had been dating about a year when she offered him a sweat-equity ownership interest in her business, explaining that she needed help to grow the business, but could not afford to pay him. At the time, Mr. Sacco stated that he was working as an investigator for a law firm making approximately $30,000.00 per year. He quit that job to work with Ms. Paxton. Mr. Sacco testified that he was excited about the prospect of growing the business into something big. Mr. Sacco stated that in order to build sweat equity, he only took small amounts in compensation that the business could afford. Mr. Sacco was allowed to write his own checks. The business paid most of the personal expenses for Ms. Paxton and Mr. Sacco.

| aMr. Sacco testified that he was involved in every aspect of the business, but he focused on bookkeeping, marketing, and the development of computer aided designs for the company’s products. He explained that the introduction of computerized designs was crucial to the growth of the business. In support of his assertion that a partnership existed, Mr. Sacco presented the testimony of Alan Radin (“Mr. Radin”) and Bruce Roch (“Mr. Roch”).

Mr. Radin testified that he was in the lighting business for over fifty years. He met Mr. Sacco in 2004, at a lighting show in Dallas, Texas and later came to New Orleans to meet with Mr. Sacco and Ms. Paxton to discuss a possible business venture. Mr. Radin testified unequivocally that both Mr. Sacco and Ms. Paxton presented themselves as partners in the lighting design business, and he was given no reason to think otherwise.

Mr. Roch met and became friends with Mr. Sacco in 2000. At the time, Mr. Roch owned a nationally based self-storage company, and Mr. Sacco often asked him for business advice. Shortly thereafter, Mr. Roch also became friends with Ms. Paxton. He testified that Mr. Sacco and Ms. Pax-ton always represented to him that they were business partners. Moreover, he stated that they always introduced themselves as partners to others.

Mr. Roch testified that in late 2002, or early 2003, Mr. Sacco and Ms. Paxton came to his office for business advice. He stated that they wanted “to discuss ways to formalize their partnership agreement to make it a more complete operating agreement in anticipation of a contract that they were working on at the time.” Mr. Roch further testified that he advised them that their partnership should be documented before they embarked on such a large contract. He stated that he was concerned from Mr. Sacco’s standpoint that he was a partner and it wasn’t | ^documented. Mr. Roch testified that he had many conversations with Mr. Sacco over the years about how difficult it was to live on very little income and how much sweat equity Mr. Sacco was putting into the business. Mr. Roch considered Mr. Sacco to be a “very talented designer.”

Mr. Sacco testified that profits picked up in 2001, when a contract with Progressive Lighting was signed. This fact is not in dispute. He stated that in 2002, Ms. Pax-ton began trying to back out of their partnership arrangement. Mr. Sacco explained that in 2003, he was called into a meeting with Ms. Paxton and Bob Winston (attorney/CPA) and was asked to sign an employment agreement. Mr. Sacco refused, and Ms. Paxton did not pursue the matter. Ms. Paxton did not dispute the fact that Mr. Sacco was asked to sign an employee agreement at that time.

Also in 2003, the business entered into a lucrative contract with Bright International through which products would be sold in Home Depot stores across the country. Mr. Sacco testified that at this time, he discovered that Ms. Paxton secretly formed a new company, KDP, and was working to put the Bright International contract with KDP. This fact is not in dispute. Mr. Sacco presented an email from Bright International’s lawyer stating that he was not comfortable changing the contract to the new company.

Mr. Sacco further testified that he uncovered Ms. Paxton’s personal journal, wherein she wrote: “It was agreed from the beginning that he [Mr. Sacco] would take a small salary in turn for sweat equity in the business.” Ms. Paxton’s journal was introduced into evidence.

Ms. Paxton denied that she ever agreed to make Mr. Sacco a partner. She testified that she told him he would have deferred compensation in 1998 and 1999, |nbecause she didn’t have a lot of money, and she would compensate him as the business grew. She stated that her idea of “sweat equity” was deferred compensation.

Ms. Paxton admitted that she allowed Mr. Sacco to write himself checks. She admitted that the business paid most of his personal expenses, and that they both used Mr. Sacco’s personal credit card for businesses. Ms. Paxton stated that she always considered Mr. Sacco to be an employee, but acknowledged that he was not listed as an employee on tax documents.

In support of her argument that Mr. Sacco was not a partner, Ms. Paxton presented the testimony of Henry E. Carri-gee, Jr. (“Mr. Carrigee”), the Certified Public Account for the business in 2002 and 2003. Mr. Carrigee testified that he had no knowledge that Mr. Sacco was Ms. Paxton’s partner. Mr. Carrigee stated that he was never asked to file a partnership tax return.

Ms. Paxton argued that Mr. Sacco should not be considered a partner because he put up no capital. However, that fact is not controlling here. As the court held in Darden, supra at 74,

The circumstance that plaintiff did not contribute to the capital of the partnership at the time he was invited by defendant to become a partner, does not establish that the parties intended that plaintiff was never to have an interest in the partnership’s assets. The Civil Code does not require that all partners make an investment of cash in the partnership at any time.

Ms. Paxton further argued that Mr. Sacco was not a partner because there was no agreement that he would share in the losses of the business. Mr. Sacco testified that although the lines of credit for the business were in Ms. Paxton’s name, Mr. Sacco used his personal credit card for business expenses and allowed Ms. Paxton to use his credit card, even after the parties’ romantic relationship had |12ceased. Ms. Paxton did not dispute this assertion. Mr. Sacco also claimed that his sweat equity and the time he expended in the business constituted a sharing of losses on his part. We agree.

Our courts have recognized that an agreement to share losses may be implied from an agreement to share profits. Riddle v. Simmons, 40,000, p. 31 (La.App. 2 Cir. 2/16/06), 922 So.2d 1267, 1287 (citing Latiolais, supra at 1162). Moreover, it is not essential that the parties agree, expressly or impliedly, to share the losses, and when the nature of the undertaking is such that no losses other than time and labor in carrying out the undertaking are likely to occur, the agreement of the parties to divide profits may be sufficient to stamp the undertaking as a joint venture. Id.

Regarding the sharing of profits, it is undisputed that Mr. Sacco was not receiving 50% of the business profits while working with Ms. Paxton. However, the record bears out Mr. Sacco’s assertion that he left most of his profits in the business in order to grow the company and build sweat equity for the future. Thus, we find that Mr. Sacco had a proprietary interest in the assets of the partnership.

This Court has recognized that there are no hard and fast rules in making the determination of whether a partnership exists, and each case must be considered on its own facts. Carr v. Masters, 469 So.2d 1147, 1149 (La.App. 4 Cir.1985). The consent to form a partnership may be inferred from circumstantial evidence. Id. Under the totality of the circumstances in the present ease, including the overall conduct of the parties, we find the record demonstrates a reasonable factual basis that a partnership existed.

We also find no error in the jury’s determination that Ms. Paxton breached the partnership agreement with Mr. Sacco. La. C.C. art. 2809 provides:

|1SA partner owes a fiduciary duty to the partnership and to his partners. He may not conduct any activity, for himself or on behalf of a third person that is contrary to his fiduciary duty and is prejudicial to the partnership. If he does so, he must account to the partnership and to his partners for the resulting profits.

Here, Mr. Sacco presented sufficient evidence to demonstrate that Ms. Paxton acted in bad faith and against the interests of the partnership. Moreover, because the jury was faced with opposing testimony from the parties, and two permissible views of the evidence, its choice to believe the evidence supporting Mr. Sacco’s position is not manifestly erroneous or clearly wrong. See Stobart, supra at 883.

In their third assignment of error, the defendants assert that the judgment violates the United States Copyright Act of 1976, 17 U.S.C. § 101. Specifically, Ms. Paxton argues that pursuant to the Copyright Act, Mr. Sacco could not have a propriety interest in the designs that Ms. Paxton created and registered with the Copyright office. Ms. Paxton submits that under 17 U.S.C. § 204(a), copyright ownership vests in the author and cannot be transferred unless the transfer is in writing.

The defendants did not raise the affirmative defense of federal preemption in their answer. It is well established that federal preemption is an affirmative defense, which, under La. C.C.P. arts. 1003 and 1005, should be pled in a defendant’s answer. See Furlough v. Union Pacific Railroad Co., 33,658, p. 6 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, 756. The purpose of the pleading requirement for affirmative defenses is to provide plaintiffs with adequate notice of the nature of any defenses. Id.

La. C.C.P. art. 1154 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. If evidence is objected to at 114the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended. Id.

For introduction of evidence to automatically enlarge the pleadings under article 1154, the evidence admitted must not be pertinent to any other issue raised by the pleadings. Burns v. Interstate Brands Corp., 2009-705, p. 6 (La.App. 8 Cir. 2/3/10), 30 So.3d 271, 276; Snearl v. Mercer, 99-1738, p. 9 (La.App. 1 Cir. 2/16/01), 780 So.2d 563, 572. If the evidence was admissible for any other purpose, it cannot enlarge the pleadings without the express consent of the opposing party. Id.

In Cooper v. Borden, 30,292 (La.App. 2 Cir. 2/25/98), 709 So.2d 878, the issue of federal preemption was raised for the first time on appeal. Refusing to find that the pleadings had been enlarged to include such an affirmative defense, the Second Circuit stated that at no time during the trial or by any pleading did the defendant argue immunity from liability. Furthermore, the court in Cooper held that the brief mentioning of a federal regulation at trial was not sufficient to enlarge the pleadings to incorporate the affirmative defense of federal preemption. Id. at p. 3, 709 So.2d at 881. The court stated that to allow the defendant to raise the issue for the first time on appeal would defeat the purpose of requiring the pleading of a special defense i.e., to give plaintiffs fair and adequate notice of the nature of the defense. Id.

Here, the issue of Ms. Paxton’s immunity from liability under the U.S. Copyright Act was not raised at trial. The record reflects that the federal preemption issue was raised for the first time in the defendants’ motion for new trial and/or motion notwithstanding the verdict. Thus, we conclude that the |15pleadings were not enlarged to include this defense, and we find no merit in the defendants’ assignment of error.

The defendants next argue that the damages awarded to Mr. Sacco were not supported by the evidence. The jury awarded Mr. Sacco $1,563,013.00. According to Ralph Litolff (“Mr. Litolff’), Mr. Sacco’s expert witness in accounting, this amount represented fifty percent of what Ms. Paxton received in cash distributions and salary from KPD for the years 2004, through 2010.

Mr. Sacco was removed from the business in January 2004. At that time, the new company that Ms. Paxton formed, KPD, became the successor to PPDS, maintaining the same two major clients (Progressive Lighting and Bright International) that were developed during Mr. Sacco’s time with the business. Ms. Pax-ton testified that after Mr. Sacco left in 2004, she continued to receive revenue from Progressive Lighting and Bright International and did not develop contracts with many new customers.

Based on the business records he reviewed, Mr. Litolff stated that he did not consider Mr. Sacco to be an employee. In calculating Mr. Sacco’s damages as a result of Ms. Paxton’s alleged breach of partnership agreement, Mr. Litolff took into account the revenue received from Progressive Lighting and Bright International after 2004. Mr. Litolff also looked at the distributions and salary that Ms. Paxton received for the years in question, which totaled $2,199,013.00. He opined that Mr. Sacco was entitled to fifty percent of that amount, or approximately $1,563,013.00. Mr. Litolff determined that as of December Bl, 2010, the fair market value of KPD was $1,060,000.00.

The jury heard conflicting testimony from Michelle Avery (“Ms. Avery”), Ms. Paxton’s expert witness in accounting. Ms. Avery testified that she saw 11finothing in the business records that would indicate that Mr. Sacco and Ms. Paxton were partners. However, she acknowledged that she was not provided with information regarding the parties’ 1998 agreement to work together, with Mr. Sacco putting up sweat equity.

Ms. Avery determined that the fair market value of the business in 2004 was $82,000.00. (She did not provide a 2010 value of the business). Unlike Mr. Litolff, Ms. Avery did not consider Mr. Sacco to be a partner, and therefore, her calculations did not take into account the years after Mr. Sacco’s termination in January 2004. Ms. Avery did not consider the contracts/ retainers with Progressive Lighting and Bright International that were already in place, and she did not consider the fact that Ms. Paxton took in $2.1 million, before taxes, between 2004, and 2010. Ms. Avery did acknowledge that the vast majority of contracts in both companies, i.e., KPD and its predecessor, PPDS, stemmed from Progressive Lighting and Bright International.

Factfinders are given “much discretion” in assessing damages. La. C.C. art. 2324.1. Therefore, the damage award is “entitled to great deference on review.” Trunk v. Med. Ctr. of La. at New Orleans, 2004-0181, p. 9 (La.10/19/04), 885 So.2d 584, 539. According to Mr. Litolffs testimony, Mr. Sacco’s loss as a result of Ms. Paxton’s breach of the partnership totaled $1,563,013.00. The jury chose to accept that figure. We find no abuse of discretion in this award.

In her final assignment of error, the defendants assert that there is no legal basis for a judgment against PPDS or KPD. More specifically, the defendants argue that there was no evidence that these entities were partners with Mr. Sacco and no evidence that he was a member, officer or shareholder in either business. |17Thus, the defendants submit that PPDS and KPD owed no fiduciary duty to Mr. Sacco. We find no merit in the defendants’ argument.

The facts of this case represent that Mr. Sacco and Ms. Paxton ran the design business as a partnership, and the partnership operated solely through PPDS and its successor, KPD. All of the partnership’s assets and income, including Mr. Sacco’s income that he let remain in the business, was held in the bank accounts of PPDS and KPD. Although Mr. Sacco was not a member, officer or shareholder of PPDS and KPD, under the circumstances, he clearly had a proprietary interest in these entities. Finding that Mr. Sacco was entitled to damages for Ms. Paxton’s breach of fiduciary duty, the jury did not err in rendering judgment against PPDS and KPD.

For the foregoing reasons, we find no error in the judgment of the lower court. Accordingly, we affirm.

AFFIRMED.

DYSART, J., Dissents for the Reasons Assigned by LOBRANO, J.

LOBRANO, J., Dissents with Reasons.

LOBRANO, J.,

Dissents with Reasons.

|TIn Darden v. Cox, 240 La. 310, 123 So.2d 68 (La.1960), the Louisiana Supreme Court set forth the prerequisites for establishing the existence of a commercial partnership without a written agreement. One of those prerequisites is that the parties must share in the losses as well as the profits of the businesses. Because I find that Mr. Sacco did not establish that he and Ms. Paxton shared in the profits of the businesses at issue, I respectfully disagree with the majority’s conclusion that Mr. Sacco established the existence of a partnership in this case.

In Darden, the Court stated that the second element necessary to establish the existence of a partnership is that “all parties must share in the losses as well as the profits of the venture.” Id., p. 319, 123 So.2d at 71. An agreement to share losses may be implied from an agreement to share profits. Riddle v. Simmons, 40,000, p. 31 (La.App. 2 Cir. 2/16/06), 922 So.2d 1267, 1287; Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159, 1162 (La.App. 3 Cir.1990). In my opinion, even accepting Mr. Sacco’s claim that his “sweat equity” constituted a sharing of losses on his part, the evidence presented in this case overwhelming shows that Mr. Sacco did not share in the profits of the businesses at issue. As the trial court correctly stated in its jury instructions regarding the elements of a partnership, “[ejach partner participates equally in profits, commercial benefits, and losses of the |2partnership unless the partners have agreed otherwise.” The intent to share in the profits and losses must be expressed and should not be implied from the parties’ conduct. Glover v. Sowada, 457 So.2d 101, 107 (La.App. 5 Cir.1984). Mr. Sacco and Ms. Paxton did not participate equally in the profits of the businesses, and by Mr. Sacco’s own admission in his testimony, he and Ms. Paxton never discussed percentages of profits or agreed to split profits unevenly.

The evidence, including tax returns and business ledgers, shows that the sums paid to Mr. Sacco during the years 1998-2003, when he worked with Ms. Paxton, were far less than 50% of the profits of the businesses at issue during those same years. Although Ms. Paxton increased Mr. Sacco’s compensation as the businesses became more profitable, there was never an equal sharing of profits between Ms. Pax-ton and Mr. Sacco, and Mr. Sacco conceded that there was no agreement to split profits unevenly. A prerequisite to establishing a partnership is the intent of both parties that there be a business relationship between the parties and that the relationship has all of the major characteristics of a partnership. Id. at 104-105 (citing Darden) (emphasis in original).

In my opinion, Mr. Sacco failed to establish not only the lack of intent on the part of Ms. Paxton that she and Mr. Sacco share in the profits of the businesses at issue, he also failed to prove that he and Ms. Paxton in fact shared the profits of these businesses, which is an essential element of a commercial partnership under the rules set forth in Darden. Even if Ms. Paxton and Mr. Sacco agreed to form a “partnership”, the absence of a sharing of profits between them is, in my opinion, fatal to Mr. Sacco’s claim that their business relationship was a legally recognized commercial partnership or joint venture. For that reason, I would reverse the trial court judgment in favor of Mr. Sacco and render judgment dismissing Mr. Sacco’s claims against defendants with prejudice.

      . The April 16, 2012 judgment also ordered plaintiff to pay damages to defendants for conversion, but that portion of the judgment has not been appealed by plaintiff or defendants.

      . The trial court’s denial of the defendants' motions for new trial and judgment notwithstanding the verdict is not raised as an assignment of error herein.

      . It is important to note that the next sentence in the Latiolais case states: "The absence of an express agreement to share in losses is not conclusive as to the nature of the relationship, since such an agreement may be implied from an agreement to share profits." In Latiolais, unlike the instant case, the only issue on appeal was whether there was a sharing of losses.


author: DANIEL L. DYSART, Judge. JENKINS, J.,

text:
    STATE of Louisiana v. William DANASTASIO.
    No. 2012-KA-1157.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS.
   DANIEL L. DYSART, Judge.

| defendant, William Danastasio, appeals his convictions by an Orleans parish jury of aggravated rape and aggravated kidnapping. For the reasons that follow, we affirm defendant’s convictions and sentences.

PROCEDURAL BACKGROUND

On January 19, 2011, a grand jury indicted defendant with one count of aggravated rape, a violation of La. R.S. 14:42, and one count of aggravated kidnapping, a violation of La. R.S. 14:44. Defendant pled not guilty. He then moved for an independent inspection of the DNA evidence related to the case. The initial hearing on this motion was continued on the basis that the DNA evidence could not be located. When the hearing was reconvened, Lieutenant Scott Lindsay of the New Orleans Police Department testified that the victim’s undergarment was located (although it contained no biological evidence) but the swabs from the victim’s rape examination kit could not be located. Defendant orally moved to quash the indictment, which the trial court denied. The trial court ruled that the results of the DNA testing performed on the swabs would be admissible at trial.

|2Pefendant then proceeded to trial by jury and was convicted on both counts. He was sentenced to life imprisonment at hard labor on each count, both without benefit of probation, parole or suspension of sentence.

FACTUAL BACKGROUND AND TRIAL TESTIMONY

On the morning of January 19, 1996, N.M. was on her way to work as a certified nurse assistant at a nursing home. She was alone, waiting for the bus around 6:30 a.m. when a vehicle pulled up to the bus stop. The driver, a man wearing a ski mask, pointed a gun at her and demanded her purse. N.M. advised him that she only had $10 in her purse. He cursed at her, forced her to get into his car, made her put her head down and drove to an area under a bridge, where he threatened to kill her and forced her to remove her clothing. He then raped her. Following the assault, he drove N.M. to her workplace and again threatened to kill her if she reported the incident to the police.

N.M. advised her supervisor of the attack and the police were summoned. Detective Joseph Goins responded to the call. He obtained a description from N.M. of her attacker, including his height, weight and build. N.M. also indicated that her attacker had a gold tooth on each side of his mouth. Detective Goins then drove N.M. to the crime scene to look for physical evidence. Finding none, he brought N.M. to the hospital where she was examined and treated. Detective | sGoins obtained N.M.’s rape kit and her underwear and processed them as evidence with the New Orleans Police Department (“NOPD”).

Many years went by during which time no arrests were made or suspects identified. In October, 2003, the swabs from N.M.’s rape kit were sent away for testing to Reliagene Technologies, a private laboratory with whom the NOPD contracted for the processing of backlogged rape kits. According to Gina Pineda, who worked for Reliagene from 1996 through 2007, Relia-gene would perform DNA analyses of the rape exam kits and report the DNA profiles to the NOPD. The NOPD’s crime lab would then re-examine and confirm Relia-gene’s test results, after which the profile data is entered into CODIS.

Ms. Pineda provided details to the jury about DNA and DNA profiling. Ms. Pine-da also detailed for the jury her responsibilities as a Technical Leader and Assistant Lab Director for Reliagene, including the lab’s operating procedures, maintaining and implementing technologies, safety, quality control measures and training of scientists. Her daily activities included care reviews — reviewing all lab work performed on samples to ensure that there were no mistakes and correcting any that were discovered.

Ms. Pineda testified that the DNA testing performed in this matter was subjected to numerous laboratory safeguards to prevent contamination, mistake and/or error. Additionally, the testing performed in this case was virtually identical to that performed by every DNA laboratory around the world.

|4The NOPD delivered the swab and blood samples from N.M.’s rape kit to Reliagene in 2003. Ms. Pineda testified that the lab tested the swabs and that the testing procedure consumed the swabs. Importantly, however, according to Ms. Pineda, any DNA analyst would be able to review Reliagene’s case file and interpret its raw data. Ms. Pineda reviewed the tests results prior to trial and at the trial, confirmed that the findings were accurate.

Anne Montgomery, a DNA analysis expert who was employed by the NOPD in its crime lab from 2001 until 2007, detailed for the jury the manner by which the DNA lab of the NOPD was set up and how it operates. She testified that the lab was a fully functional and accredited lab in 2003, and that it underwent annual and semiannual audits, which are required for participation in the national DNA index system.

Ms. Montgomery also explained to the jury how DNA test results are uploaded into the State’s DNA index system, which then uploads the information into the federal CODIS system. As the DNA Technical Leader for the NOPD crime lab, she reviewed Reliagene’s case file and confirmed that its procedures were properly performed and ensured that the tests results were accurate before she allowed the results to be uploaded into the CODIS database. The results were also reviewed by Jennifer Schroder, the State’s DNA administrator, who uploaded the data results to CODIS.

|fiIn 2006, there was a CODIS hit and according to Ms. Montgomery, in January, 2007, that hit was matched to defendant by the Louisiana State Police, the custodian of the State database. Ms. Montgomery further testified that the State Police’s practice is to issue a letter regarding such a match after it has re-tested the original sample to confirm the accuracy of the profile in the database. The Louisiana State Police issued a match letter on January 26, 2007, which indicated that the DNA evidence from N.M.’s rape kit revealed a “high stringency match” (that all thirteen genetic indicators matched) to that of defendant. In February 2007, Ms. Montgomery issued a “lead letter,” listing defendant by name, social security number, inmate number, date of birth and item number connected to the case.

In September 2010, Detective Jeffrey Keating, who was assigned to the Sex Crimes Section of the NOPD, was assigned the 1996 cold case involving N.M. He testified that on September 7, 2010, he entered the DNA test results from N.M.’s rape into CODIS which produced a match identifying defendant as the donor of the DNA evidence in N.M.’s rape. Detective Keating next ran defendant’s name through the system and learned that he had been convicted of armed robbery in December, 1997. He then obtained a warrant for defendant’s arrest and after obtaining a search warrant, obtained two buccal swabs from the inside of defendant’s mouth and logged them into the Central Evidence and Property section (“CP & E”) of the NOPD. Detective Keat-ing took the swabs to the Louisiana State | fiPoIice Crime Lab where DNA testing was conducted and a comparison made with the DNA results from N.M.’s 1996 rape. The test results confirmed that a DNA match between the buccal swabs he obtained and the testing performed by Re-liagene in N.M.’s case.

Ms. Angela DeLatte, who in November 2010 was employed by the Louisiana State Police Crime Lab, was the person who performed the comparison of the DNA evidence. She testified that the sample from N.M.’s rape kit, which contained a mixture of N.M.’s and defendant’s DNA, was 1. 20 quadrillion times more likely a mixture of N.M.’s and defendant’s DNA than that of N.M. and any other male. DISCUSSION

Fourth assignment of error

In his fourth assignment of error, defendant claims that the evidence was insufficient to uphold his conviction. “When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. Accordingly, we address this assignment of error first.

Defendant maintains that his conviction was based solely on “questionable DNA results,” and suggests that there was “no identification, no witnesses, and [^literally no police investigation,” all of which leads to the conclusion that the evidence “was insufficient to uphold his conviction.”

In reviewing whether the evidence presented in a case is sufficient to support a conviction, we are governed by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and repeatedly followed by Louisiana courts. This Court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093 (citing State v. Ragas, 98-0011 (LaApp. 4 Cir. 7/28/99), 744 So.2d 99) as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1819 (La.1992) at 1824.

Defendant’s argument largely focuses on whether the evidence supports the jury’s finding that he was the person who raped N.M. He maintains that the DNA 18profile was “questionable” in that it was merely “a result on a piece of paper generated by a computer, based off of a sample of DNA that was tested by several nameless, faceless people [he] had no access to, a sample that can not [sic] be tested by [him] or anyone else today to verify its accuracy or reliability.” We disagree. While our jurisprudence reflects that, “when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification,” we find that the State met its burden.

In this case, defendant was convicted of two crimes. The first, aggravated rape, is defined by La. R.S. 14:42, in pertinent part, as:

[A] rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

His second conviction was for aggravated kidnapping pursuant to La. R.S. 14:44, which provides, in pertinent part:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
The forcible seizing and carrying of any person from one place to another;

| ¡/The abduction of a victim with the intent to commit rape constitutes an intent to force the victim to give up something of apparent or prospective value. State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238.

There is no question that N.M. was the victim of an aggravated rape as the perpetrator possessed a gun. There is equally no question that N.M. was the victim of an aggravated kidnapping as per La. R.S. 14:44 and Harris. The only question, therefore, is whether the State negated any reasonable probability of defendant’s misidentification. As will be discussed in greater detail in the next assignment of error, we find that the DNA evidence in this case, identifying defendant as N.M.’s attacker was reliable. Similarly, the testimony of the State’s DNA experts, which the jury found credible, provided direct scientific evidence identifying the defendant as the man who raped the victim. We therefore find that the State satisfied its burden of “negating any reasonable probability of misidentification.” See State v. Long, 408 So.2d 1221, 1227 (La.1982). We find no merit in this assignment of error.

First assignment of error

In his first assignment of error, defendant argues that the trial court erred in admitting the DNA evidence at trial. He bases his argument on three points; (1) the lack of chain of custody of the DNA evidence; (2) the non-existence of the actual DNA material for his own testing and (3) his inability to question several witnesses regarding the procedures involved in uploading the DNA profile into CODIS.

| inRegarding the chain of custody argument, defendant maintains that the DNA evidence should have been excluded because “[w]ithout the proper and complete chain of custody, the reliability of the test results can not [sic] be guaranteed.” He bases his conclusion that the chain of custody was defective in two respects: First, while Detective Goins retrieved the rape kit and N.M.’s undergarment from the hospital, he was not actually present in the room when N.M. was examined. Rather, he obtained the evidence two days after the incident. Defendant argues that because there is no indication of “who had” the rape kit during that two day period or any assurance that it was the same rape kit as that of N.M., and because the physician who conducted the exam did not testify, there is no “complete chain of custody” for this evidence. Second, he argues that several witnesses crucial to the chain of custody did not testify (presenting a Sixth Amendment issue) — Remesar Castle, who received the evidence from Detective Goins at the NOPD CP & C section; Karen Holmes, of the NOPD Crime Lab, who turned over the evidence to Reliagene; “various individuals” who performed testing for Reliagene; and Jennifer Schroder, the NOPD CODIS administrator who uploaded the DNA profile.

The Louisiana Supreme Court, in the seminal case of State v. Sweeney, 443 So.2d 522 (La.1983), set forth the general rules regarding the admissibility of demonstrative evidence at trial:

lnTo admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Drew, 360 So.2d 500 (La.1978). The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).

Id. at 528.

This Court reiterated the principles set forth in Sweeney and further reiterated the well-settled principle that “[a] defect in the chain of custody goes to the weight of the evidence rather than its admissibility.” State v. Ferguson, 09-1422, p. 33 (La.App. 4 Cir. 12/15/10), 54 So.3d 152, 170 (citations omitted). Evidence as to custody suffices if it establishes that it is more probable than not that the object is the one connected to the case. Id., 09-1422, p. 33, 54 So.3d at 171. “A trial court is vested with great discretion [in] determining whether a party has laid a proper foundation for the introduction of evidence.” Id.

In the instant matter, Detective Goins testified that upon receiving the rape kit from medical personnel, he deposited it in the NOPD’s CE & P section under item number A31528-96 and received a receipt, which the State produced and he identified at trial.

The State’s expert witnesses, Ms. Gina Pineda, Ms. Anne Montgomery and Ms. Angela DeLatte, identified numerous exhibits that documented the chain of | iacustody of the evidence logged into CP & E under item number A31528-96. Moreover, Ms. Pineda and Ms. Montgomery, respectively, chronicled the handling of the rape exam kit while it was in Relia-gene’s possession, the return of the kit to the NOPD and subsequent testing performed by State authorities.

Based on a review of the foundation laid in this case, the record supports a finding that it is more probable than not that the tested scientific evidence was connected to this case. Further, the record reveals no indication that the evidence was tampered with or compromised, or that the testing procedures were defective in any way. See Ferguson. The jury heard the evidence establishing the chain of custody of the State’s DNA evidence and determined that the chain was reliable. Having thoroughly reviewed the record, we find no abuse in the trial court’s admission of the DNA evidence in this case. We find that this argument has no merit.

Next, defendant maintains that his defense was prejudiced insofar as the DNA sample no longer exists and therefore, he was unable to conduct his own independent testing. His argument that the evidence was destroyed as a result of Hurricane Katrina is misplaced, as the testimony at trial reflected that the DNA sample was consumed in the testing conducted by Reliagene.

Courts have recognized that a defendant’s right to present a defense may be impaired when a defendant is denied the opportunity to have his expert examine a piece of critical evidence. State v. Clark, 414 So.2d 737, 740 (La.1982) (“[fjundamen-tal fairness is violated when a criminal defendant on trial for his |1sliberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion-”). However, the Clark court explicitly stated that the “unavailability of the evidence for further testing does not in itself so prejudice defendant’s right to a fair trial as to warrant a dismissal of the prosecution.” Id., 414 So.2d at 741.

In this matter, defendant does not identify the witness(es) he wished to examine the DNA evidence or the substance of their testimony. Nor has he made a showing that independent examination of the DNA evidence would be subject to scientific disagreement, especially considering that each of the State’s experts testified that any DNA expert could review the raw data in this case and make an independent analysis.

In State v. Harris, 01-2730, p. 21 (La.1/19/05), 892 So.2d 1238, 1253, n. 31, the Louisiana Supreme Court found no merit in defendant’s argument that his due process rights were violated when DNA evidence was destroyed, and he was prevented from testing it. In Harris, as in this case, the defendant had not alleged bad faith by the State in the destruction of the evidence. Instead, defense counsel here attacked the trustworthiness of police handling of the evidence and the entire case (as the defense did in Harris).

At trial, defense counsel elicited from the State’s expert witnesses that DNA testing procedure is not infallible; that there is room for human error; and that | UDNA evidence can degrade with the passage of time. In addition, defense counsel was able to reveal to the jury, through cross-examination, that the reason he was unable to conduct his own independent testing on the DNA evidence was because it was destroyed by testing on behalf of the State.

The jury also learned of the fail safe testing protocols to guard against human error; that the DNA profile was partially computer generated; and that the test results were accurate within a reasonable degree of scientific certainty. The experts testified at length about the uniform testing protocol, the exhaustive re-testing of lab findings and peer review of test results. Finally, the State’s experts’ uncon-troverted testimony informed the jury that any trained scientist could review the raw data in this case and render an opinion.

Based on the evidence presented, the defendant has not demonstrated that his right to put on a defense was adversely affected by the absence of the DNA evidence or his ability to perform independent analysis of the DNA evidence. Nor has defendant in any way demonstrated in any articulable way that the DNA testing was unreliable in this case. We find no merit to this assignment of error.

Third, defendant maintains that his Sixth Amendment right to confront the witnesses against him was violated because some of the witnesses who were involved in testing and analyzing the DNA evidence and uploading it into CODIS did not testify at trial. He relies heavily on the U.S. Supreme Court case of Bullcoming v. New Mexico. — U.S. -. 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, the defendant’s conviction of aggravated driving while intoxicated was based primarily on a forensic laboratory report which certified that his blood-alcohol concentration was above the legal limit. The analyst who signed the certification on the report did not testify at trial; rather, the prosecution called another analyst familiar with the laboratory’s procedures at trial. The Bullcoming Court held that the report could be used against the defendant only if the defendant had the opportunity to confront at trial the analyst who performed, observed, or supervised the forensic examination. The Court noted that the Sixth Amendment was not satisfied by the “surrogate” witness who was familiar with the lab’s practices but who had formed no independent opinion concerning the forensic examination results. Id., — U.S. -, 131 S.Ct. at 2715-16. In so holding, the Court stated that the key question in Confrontation Clause cases is whether the evidence sought to be admitted is testimonial in nature: “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” Id., — U.S. -, 131 S.Ct. at 2713.

The U.S. Supreme Court later considered the issue of whether the Sixth Amendment would be violated by the introduction of a report of an independent laboratory which created a DNA profile identifying the defendant as the I ^perpetrator of a rape in Williams v. Illinois, — U.S.-, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Holding that there was no Confrontation Clause violation, the Court noted:

... [T]he primary purpose of the Cell-mark report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner— or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile.

Id., 132 S.Ct. at 2243-44. The Court further explained:

The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cell-mark provided was not inherently incul-patory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U.S.-, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may 117always be subpoenaed by the defense and questioned at trial.

Id., 132 S.Ct. at 2228.

This Court recently considered Bullcoming and Williams and their progeny in State v. Grimes, 11-0984 (La.App. 4 Cir. 2/20/13), 109 So.3d 1007, writ denied, 13-0625 (La.10/11/13), 123 So.3d 1216. In Grimes, the defendant was convicted of aggravated rape, aggravated kidnapping, and sexual battery, involving two victims and occurring in the years 1993 and 1997. At the time of the attacks, the perpetrator was unknown, although sexual assault kits were collected and DNA analyses in 2005 identified the defendant as the perpetrator. Citing Williams, this Court noted that, “even if forensic DNA reports are admitted in evidence without in-court testimony of the scientist/analyst who either signed the certification or performed or observed the test reported in the certification (see Bullcoming), generally, there is no Sixth Amendment Confrontation Clause violation because the reports are not testimonial.” Id., 11-0984, pp. 28-29, 109 So.3d at 1023.

Similarly, in State v. Bolden, 11-0237 (La.App. 3 Cir. 10/5/11), 103 So.3d 377, a case of aggravated rape, the State’s DNA expert testified, over defendant’s objection, that the DNA profile, developed from a blood sample taken from the defendant, matched the DNA profile developed by other technicians who did not testify at trial, from biological samples taken from the victims after they were sexually assaulted. The samples were taken from the victims nearly ten years before a search of the CODIS data base identified defendant as the donor of the samples. One profile was developed by the Acadiana Criminalis-tics Laboratory, |isthe other by a private laboratory in Tennessee under contract with Acadiana to test the sample using the same testing protocols and computer software. The results of the victims’ tests were used as a basis of comparison with the defendant’s DNA profile, but the reports themselves were not introduced into evidence under the provisions of R.S. 15:499 (certificates of criminalistics laboratories). The Third Circuit, setting aside the defendant’s conviction, ruled, inter alia, that the trial court erred in allowing the State to use the results of the DNA tests at trial without producing the individuals who conducted the tests for confrontation and cross-examination.

The Louisiana Supreme Court reversed the Third Circuit on the basis of Williams, supra, finding:

No error under the Confrontation Clause occurs when a DNA expert testifies that in his or her opinion the DNA profile developed from a sample taken from defendant matches the DNA profile developed by other, non-testifying technicians from biological samples taken from the victim of a sexual assault if: the tests on the victim’s samples were conducted before the defendant was identified as the assailant or targeted as a suspect, Williams, 567 U.S. at-, 182 S.Ct. at 2242-43.

State v. Bolden, 11-2435, p. 4, (La.10/26/12), 108 So.3d 1159, 1161-62. The Court further noted that “as a matter of Louisiana law, the computer printouts of the profiles developed from the victims’ samples by the two laboratories using the same software did not constitute statements of a declarant for purposes of La. C.E. art. 801 (defining a statement as an oral or written assertion by a declarant, or ‘a person who makes a statement’) ... and the factual assertions made by the technicians that the profiles related to the specific samples delivered to the laboratories were admissible despite their hearsay 119character under the business or public records exceptions to the hearsay rule in La.C.E. art. 803(6) and 803(8).” Id., 11-2435, p. 5, 108 So.3d at 1162 (internal citations omitted).

Under this body of law and our review of the record, we find that the State’s expert witnesses’ testimony and the DNA report formulated by Reliagene were not testimonial evidence as “this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.... Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Williams, — U.S. at -, 132 S.Ct. at 2228.

Further, the report was compiled by Reliagene, an accredited laboratory, which tested the evidence obtained from the victim’s rape exam kit and rendered a report on its findings. The State’s experts, Pine-da, Montgomery and DeLatte, each testified as to having reviewed the laboratory report prior to, and at trial, and deemed the findings accurate. These experts guided the jury through the raw data upon which the testing was based and explained precisely how the male DNA profile was extracted from that data. The DNA report was not prepared for the primary purpose of accusing the defendant as a suspect in the rape. The tests on the victim’s samples were extracted in 1996 and tested and uploaded to the State’s CODIS database in 2003, all before defendant was identified as the victim’s assailant or targeted as a suspect. The primary-purpose of the testing was not to target a specific or known suspect, as noted in Bullcoming, but rather to catch an |2nunknown rapist. Cf. Williams, 567 U.S. at-, 132 S.Ct. at 2248-49. Accordingly, we conclude that this assignment of error has no merit.

Second assignment of error

Defendant next argues that the trial court erred in allowing other crimes evidence at trial. More particularly, he argues that the trial court erred in allowing evidence of his prior conviction for attempted armed robbery at trial. At the outset, defendant notes that, while the State filed a Prieur notice that it intended to use evidence of defendant’s attempted armed robbery, the record does not reflect a ruling on its admissibility. While the docket master does not reflect that the hearing was held, at the commencement of trial, counsel for the State commented that “the court ruled on a Prieur motion-back in September 2011, allowing the State to Prieur [sic] in the 1997 conviction of the defendant for two counts of armed robbery.” The State reiterated its intent to use the prior convictions at trial.

The docket master indicates that the Prieur hearing was initially set for March 3, 2011 but was continued several times. The last mention of a Prieur hearing is noted on September 19, 2011, setting the hearing for the following day, September 20, 2011. In fact, the September 20, 2011 docket entry reflects that defendant “appeared for Prieur hearing with counsel.” The minute entry of that date states essentially the same “[t]he defendant ... appeared before the court for the Prieur hearing with counsel.” Based on these entries and the trial transcript, we find that the trial court did, in fact, issue a ruling, allowing the Prieur evidence at trial.

As to the merits, the defendant maintains that the State failed to demonstrate the admissibility of the other crimes evidence under La. C.E. art. 404(B), insofar as the two crimes were insufficiently similar. He further argues that, even if Inadmissible, the other crimes evidence was unduly prejudicial and should have therefore been excluded.

We pretermit a discussion of whether the two crimes were sufficiently similar under La. C.E. art. 404(B)(1) or whether the prior conviction was unduly prejudicial. Our jurisprudence reflects that, with respect to the admission of other crimes evidence at trial, a trial court’s ruling is subject to the harmless error analysis. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Scoggins, 10-0869, p. 15 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, 154 (citing State v. Walker, 99-2868, p. 8 (La.App. 4 Cir. 10/18/00), 772 So.2d 218, 223). In determining whether an error is harmless, the Louisiana Supreme Court, adopting the harmless error test set forth in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), stated that “ ‘[t]he inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” State v. Patterson, 12-2042, p. 6 (La.3/19/13), 112 So.3d 806, 810, citing, State v. Lewis, 12-1021, p. 15 (La.3/19/13), 112 So.3d 796, 805. As the Lewis court indicated, “the burden of proving harmless error rests squarely on the shoulders of the party benefitting from the error. Chapman [supra], 386 U.S. at 24, 87 S.Ct. 824.” Id., 12-1021, pp. 15-16, 112 So.3d at 805.

Considering the DNA evidence in this case, we find that defendant’s guilty verdict was surely unattributable to the admission of the other crimes evidence. Thus, even if the trial court erred in admitting evidence of defendant’s other crimes, such admission was harmless error. We find no merit to this assignment of error.

122Third assignment of error

Defendant’s third assignment of error asserts that his defense was hindered by the lack of evidence that was admitted at trial. He argues that, “[a]fter the record was lodged,” his counsel moved to supplement the record with the transcript from the Prieur hearing and “certain exhibits admitted at trial.” He maintains that he received a note on September 17, 2012 “by someone from the property room” that it “did not receive any evidence,” further arguing that “[t]his is not the first case in the last year where the Property Room is not in possession of evidence after the conclusion of a trial.” He suggests that “the lack of evidence ... deprives [him] of his right to a full and meaningful review of his convictions.”

Defendant does not specifically state what “evidence” he maintains is missing from the record. It is clear that defendant’s argument in this assignment of error pertains to the “paperwork and test results that allegedly showed a DNA profile that implicated” defendant. He cites State v. Walker, 02-1350, p. 12 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060, 1067 for the principle that, where evidence admitted at trial is not available for review, a defendant is prejudiced because “[the] exhibits were the critical evidence considered by the jury in finding the defendant guilty.”

There is no dispute that Relia-gene’s testing consumed the samples from N.M.’s rape kit. However, we previously addressed this issue and the Supreme Court’s finding that the “unavailability of the evidence for further testing does not in itself so prejudice defendant’s right to a fair trial as to warrant a dismissal of the prosecution.” Clark, supra, 414 So.2d at 741. In Clark, the court found that the Instate was negligent in its handling of evidence and in failing to properly preserve the evidence for further testing. However, it noted that the defendant could present evidence to show the inconclusive nature of the tests performed at the crime lab, which the jury could evaluate and consider. The court relied in part on the case of State v. Boyd, 359 So.2d 931 (La.1978), which found no error in the trial court’s denial of a motion for mistrial based on the defendant’s inability to independently examine a blood sample taken from his pants, as it had been consumed by the State’s testing. In Boyd, the court noted that even had the State been willing to comply with defendant’s request, it would have been unable to do so.

A similar situation is presented by the instant matter. The record reflects that defendant received responses to his discovery motions on March 3, 2011, following which he moved for an independent inspection of the DNA evidence on September 20, 2011. After learning that the there was no longer any DNA evidence for further testing, defendant moved to quash his indictment. At a discovery hearing held on October 4, 2011, in response to questioning by the trial court, the State noted that “[t]he raw data — that was taken from [Reliagene’s] testing is available to the defense. And any defense expert can look at that raw data. It has been made available to them.”

Thus, prior to trial, defendant had access to the raw data upon which the DNA profile was obtained. Likewise, at trial he had the opportunity to challenge the raw data, test results and testing protocol, by cross-examining the State’s experts. He suggested no manner in which the DNA testing, testing protocols or test results were deficient or inaccurate. Nor did he call any witness to challenge | ^any of the testing procedures or test results at trial. While he was able to elicit admissions in cross-examination that it is possible that there may have been mistakes in the testing process, he points to no facts to support a contention that mistakes in that process produced an incorrect or unreliable result. Accordingly, we find no merit to this assignment of error.

CONCLUSION

For the foregoing reasons, the convictions and sentences of defendant, William Danastasio, are affirmed.

AFFIRMED.

JENKINS, J., Dissents with Reasons.

JENKINS, J.,

Dissents with Reasons.

| defendant contends that the absence of the forensic evidence, and other exhibits and transcripts, from the appellate record entitles him to reversal of his conviction under State v. Walker, 02-1350 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060. I agree that absence of Forensic Test Results and the Final Report containing the DNA profile in this case prevents adequate appellate review and merits reversal.

Generally, it is not enough to show that certain evidentiary portions of the trial record are missing. See State v. Pernell, 13-0180, p. 12 (La.App. 4 Cir. 10/2/13), 127 So.3d 18. Instead, where some evidentia-ry portion of the trial record is missing, the defendant has the burden of establishing that he or she is prejudiced by its absence. See, e.g., State v. Hawkins, 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480. Sometimes, however, the prejudice to the defendant is plainly evident and the defendant’s burden is easily met. See, e.g., Walker, 02-1350, pp. 10, 13, 844 So.2d at 1065-66 (explaining that missing security camera and photo-lineup exhibits constituting the only evidence that the defendant had perpetrated the charged offenses, “clearly prejudiced” the review of the defendant’s conviction).

lain Walker, the security camera footage and photo-lineup pictures from which witnesses to the two charged crimes (one robbery and on attempted robbery) had identified the defendant as the perpetrator, were presented at trial but missing from the record on appeal. Id., 02-1350, p. 10, 844 So.2d at 1065-66. In the absence of any in-court identification the defendant as the perpetrator of the charged offences, this Court held that the missing evidence was “critical” to the conviction. Id., 02-1350, pp. 12-13, 844 So.2d at 1067. Also important to this Court’s decision was the fact that appellate counsel (who was different from trial counsel) was unable to review the missing evidence. Id., 02-1350, p. 12, 844 So.2d at 1067. On these bases, we reversed the defendant’s convictions as to both charges. Id., 02-1350, p. 14, 844 So.2d at 1067-68.

The case at bar is not materially different from Walker. Like the video and photographic evidence in Walker, the Forensic Test Results and Final Report in this case were the only direct evidence admitted to prove Defendant’s guilt. Moreover, though several witnesses indicated that the defendant was the perpetrator of the 1996 rape and kidnapping of N.M., all of their testimony was based upon the identification provided by the forensic report and the DNA test results. I do not see how the underlying conviction can be affirmed merely on the testimony of those who introduced and explained these documents. The concept of full appellate review, at minimum, requires that the primary form of evidence proving a defendant’s guilt be present in the record. I further believe that the absence of this evidence creates an insurmountable difficulty for an effective review of the sufficiency of the evidence.

For the forgoing reasons, I respectfully dissent.

      . Apparently, the evidence was lost in the flooding caused as a result of Hurricane Katrina.

      . We refer to the victim in this opinion by her initials, N.M., to protect her privacy.

      . Reliagene was acquired in 2007 by Orchid-Selmark and Ms. Pineda continued to work for that company as an assistant lab director and technical leader.

      . CODIS stands for Combined DNA Index System, a database for DNA profiles.

      . According to Officer John Fulgencio of the NOPD Central Evidence and Property section, the swab tips were consumed and that only the sticks were returned by Reliagene. Those sticks were destroyed as a result of Hurricane Katrina.

      . According to Detective Keating, there was a backlog of CODIS "lead letters” including the one which identified defendant dated September 13, 2007.

      . We have reviewed the record for errors patent and found none.

      . State v. Weary, 03-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311.

      . In that regard, we note that Anne Montgomery testified that, even with the degradation of a DNA sample (through various elements such as heat, humidity, moisture and mildew), there can be only two results-either no result at all from the testing or a correct result. She indicated that there would not be "an incorrect result because of degradation.”

      . We note that counsel for defendant made no objection at trial to the introduction of the DNA expert testimony or DNA evidence; however, because defendant filed a motion for an independent examination of the DNA evidence, and objected to its introduction at the hearing on October 4, 2011, we review this argument. See, e.g., State v. Taylor, 12-0345 (La.App. 4 Cir. 6/26/13), 118 So.3d 65.

      . It is well-settled that "[a]ppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Likewise, argument of counsel is not evidence. In re Melancon, 051702, p. 7 (La.7/10/06), 935 So.2d 661, 666. We therefore do not consider any argument with respect to the September 17, 2012 "note.”