text:
    STATE of Louisiana v. Mazen S. HAMDAN.
    No. 2013-KA-0113.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

1,A jury found Mazen Hamdan guilty of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. He appeals his conviction. He argues that the evidence supporting the prosecution’s assertion that he possessed a firearm is insufficient to sustain its burden on that essential element of the offense. He also argues that his right to confront and cross-examine one of his accusers, a police officer who had testified at the preliminary hearing but who was not called as a prosecution witness at the trial itself, was violated. And he finally argues that his rights under the Due Process Clause were violated when the trial judge admitted at trial evidence of out-of-court identifications which had previously been suppressed.

We have reviewed his insufficiency of evidence claim under the well-known Jackson v. Virginia standard, which requires us to consider all the evidence considered by the jury, whether or not that evidence was properly admitted at trial. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, we are satisfied that a rational trier of fact, considering all of the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant possessed a firearm as prohibited by the statute, as well as all the other essential elements of the offense. With respect to Mr. Hamdaris claim that his right to confront and cross-examine a non-testifying police officer was violated, we find as a matter of law that there is no constitutional violation. And finally, with respect to the trial judge’s admission of the evidence of the suppressed out-of-court identification, we agree with Mr. Hamdan that such constitutes error, but disagree that such error is, under these circumstances, reversible error.

We, therefore, affirm Mr. Hamdaris conviction as a convicted felon in possession of a firearm. We explain our holding in greater detail below.

I

We begin our explanation with a brief review of the evidence followed by a discussion of the applicable standard of review. We conclude with an analysis of the evidence under that standard.

At the outset, however, we highlight that Mr. Hamdan’s complaint is that the prosecution failed to prove that the firearm, which he is alleged to have possessed, satisfied the statutory requirement that it was a pistol or revolver that is “designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.” La. R.S. 14:95.1 D. Because the firearm Uhe allegedly possessed was not “fired” during Mr. Hamdaris confrontation with the Kellers, and it was never recovered during the investigation, Mr. Hamdan asserts that the prosecution necessarily failed in its burden of proof on this essential element.

A

Richard Keller testified that he and his wife were stopped at a red traffic signal at North Claiborne and Desire Streets in New Orleans on July 29, 2010, when they observed someone running up and down the street looking irate. At first he and his wife did not pay attention to the individual. When the light changed to green, he proceeded forward, and Mr. Hamdan stepped off the sidewalk screaming, hollering and acting irate. Mr. Keller said that Mr. Hamdan then reached down into his pants and pulled out a chrome gun after he blew his car’s horn at the defendant. After pulling the gun out, Mr. Hamdan asked Mr. Keller: ‘What the ‘f-’ are you going to do now?”

Mr. Keller moved his car to the left, and Mr. Hamdan then feinted to the left. Mr. Keller said that he then drove around the defendant. He said that from the time Mr. Hamdan pulled the gun until the time he drove away took less than fifteen seconds. Mr. Keller then drove to the next corner. Mrs. Keller called 911, but the operator hung up on her. Mr. Keller then called 911, and spoke with an operator. Mr. Keller told the 911 operator that a male on the corner of Desire and North Claiborne pointed a chrome-looking gun at them and cursed them out for no reason. At trial, Mr. Keller identified a recording of a 911 call as the one he had Rplaced on that date. The 911 operator told the Kel-lers to wait at the scene. After waiting for ten to fifteen minutes, the Kellers left the scene and drove to a nearby police station.

Mr. Keller also testified as to the circumstances of his out-of-court identification of Mr. Hamdan on the night in question. He said that when they were at the police station, an officer asked them to step outside because the police had “the young man” inside the car. Mr. Keller said he looked down and identified him. He said there was no doubt in his mind that the individual in the police car was the person. In court during the trial, Mr. Keller again identified Mr. Hamdan, the defendant, as the person that he had described to both the 911 operator and to the police outside the police station on the night of the confrontation.

Mr. Keller described the gun as a large chrome gun, but he did not notice whether it was a revolver or a semiautomatic. Asked if he could say whether the gun was real or not, Mr. Keller replied: “I don’t know.” But he went on to tellingly testify: “It was real enough to make me move.”

Clarissa Keller corroborated the details of her husband’s testimony in all respects. She too identified Mr. Hamdan as he sat in a police car as the individual who had pointed the gun earlier that evening. Mrs. Keller also identified Mr. Hamdan in court, saying that she had no doubt that she had the right person.

Mrs. Keller described the gun as a long, shiny, chrome gun. She did not know whether it was a revolver or a semiautomatic. She said the gun looked real |6to her. When quizzed by defense counsel as to whether she could tell him whether the gun was real or not, Mrs. Keller rejoined: “I didn’t get out the truck, sir.”

Officer Brittany Marigny, an officer with the New Orleans Police Department, responded to the call at Desire Street and North Claiborne Avenue on July 29, 2010, and arrested Mr. Hamdan at that time. She said defendant approached her police unit and said he had an altercation with some people and they drove off. Mr. Hamdan reported that the people had parked in front of his residence, and he had told them to “get the ‘F’ out of there, or something like that ...”

Officer Marigny requested that the dispatcher locate the Kellers and ask them to return to the scene, but she was advised that they were at the Fifth District police station. After speaking with Mr. Hamdan, she Mimndized him and transported him to the police station, where he was identified by the Kellers, each one viewing him separately.

Officer Marigny testified that Mr. Ham-dan did not have any weapons on his person. She likewise stated that the police did not recover any weapons. Because she did not recover a weapon, Officer Marigny could not say whether the weapon Mr. Hamdan was alleged to have had was real. She did not enter his home, and to her knowledge none of the other officers who had responded with her did either. Officer Marigny charged Mr. Hamdan with aggravated assault under the name of Ba-zel Hamdan, which is the name with which he identified himself, and he was booked under that name. Subsequent fingerprinting of Mr. Hamdan resulted in his | ^correct identification as Mazen Hamdan, who was on supervised probation for a conviction for possession of methadone.

The jury heard additional evidence that a telephone call was made from the Orleans Parish Prison, where Mr. Hamdan was detained while awaiting trial. The call was placed on July 30, 2010, the day after the incident, and attributed to Mr. Ham-dan’s “folder”, ie., personal identification, number. The automated greeting says: “Hello, this is a free call from [whereupon the caller says what sounds like the first name defendant was booked under, ‘Ba-zel’], an inmate at the Orleans Parish Prison.” The recipient politely asks the inmate what happened. The inmate says he does not know, and the recipient gets angry. The following conversation was recorded:

Inmate: “Somebody seen me put the gun in my pocket.”
Recipient: “Where’s the gun at?”
Inmate: “Uh, what’s his name, I told him to hide it.”
Recipient: “Who?”
Inmate: “What’s his name?”
Recipient: “David?”
Inmate: “Yeah.”
Recipient: “It’s gone if you gave it to David ... You waive the f-gun on people!”
Inmate: “I ain’t waive it at nobody.”
17Recipient: “The f-people called. You got an aggravated assault on someone. Two people ...”
Inmate: “All I did was pulling [sic] it in my pants. It was falling out my pants ... I ain’t point it at nobody or nothing
Recipient: You didn’t show nobody the gun, huh?”
Inmate: “No, man. The f-s — . I was in front [sic] Desire, you know, that s — was falling outta my pants.”
Recipient: “Now I gotta call the f-cops, and go get my gun from David, right?”
Inmate: “David got it?”
Recipient: “David sold it, you fool, he sold it. He sold it ...”
Inmate: “He put it in the house.”
Recipient: “It’s gone you fool. He sold it for crack. He thinks it’s a hot gun. He don’t know if it’s my f-gun, [sic] got papers on it. Now I gotta call the cops, bring ’em over there, and get my gun back. And he’s gonna go to jail.”
Inmate: “Baz, you can’t do that.”
Recipient: “How I’m a [sic] get my gun back?!”
Inmate: “I don’t know right now ... Get me out first.”
Recipient: “Get you out! How?! You’re under my name, you fool!”
Inmate: “Yeah, but this is nothing, this charge.”
|8Recipient: “How?! They’re gonna find out. I’m not gonna have no f-assault on my record, you fool!”
Inmate: “You didn’t do nothing, you fool.”
Recipient: “Well, you shouldn’t have used my name. Why would you use my name?!”
Inmate: “Whatta you gonna to do?”
Recipient: “I don’t know. Nothing. I don’t know what the f-to do. I ain’t got no f-money. I’ll tell you that now. Don’t have no money. Then you want to use my name, to top everything off. Then my gun’s missing. Then you say wait ’til you get out to get my gun. I’m a [sic] have to bring the cops over by David right now.”
Inmate: “Yeah, but if you tell ’em your name and s — .”
Recipient: “Huh?”

At that point the timed jailhouse call automatically terminated.

B

In order to convict a person of violating La. R.S. 14:95.1, the prosecution must prove beyond a reasonable doubt that the defendant: (1) possessed the firearm; (2) had a prior conviction for an enumerated felony; (3) possessed the firearm within ten years of the prior conviction; and (4) had the general intent to commit the offense. State v. Ussin, 08-1577, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 848, 849; State v. Clements, 12-1132, p. 5 (La.App. 4 Cir. 3/13/13), 112 So.3d 306, 310-311, citing State v. Husband, 437 So.2d 269, 271 (La.1983).

Under the well-known Jackson v. Virginia standard of review, there are tried and true principles of review. First, we consider all of the evidence that the jury considered. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, in reviewing for sufficiency of evidence, we do not ignore evidence which was erroneously admitted at the trial or evidence which could have been excluded as, for example, inadmissible hearsay. See State v. Hearold, 603 So.2d 731, 734 (La.1992).

And, second, all of the evidence is viewed in the light most favorable to the prosecution. See State v. Fields, 12-0674, p. 6 (La.App. 4 Cir. 6/19/13), 120 So.3d 309, 315. Thus, in evaluating sufficiency of the evidence, we are not merely limited to the evidence itself, but may consider all reasonable inferences from the evidence which the fact-finder could have made. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

In similar fashion, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according 11flto reason and common experience. See State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438.

And, third, in evaluating a defendant’s challenge to the sufficiency of evidence, we are restricted to those theories of defense actually put forward to the trier of fact. See State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99), 725 So.2d 1291, 1293-1294 (per curiam). In other words, a defendant may not develop a new theory on appeal and demonstrate that the circumstantial evidence was insufficient to negate the new theory. Id.

And, fourth, in our review, we are highly deferential to the trier of fact. State v. Smith, 11-664, p. 4 (La.App. 4 Cir. 1/30/13), 108 So.3d 376, 381. Thus, we assume that the jury can accept as true the testimony alone of any witness, even a single witness. State v. Sanchell, 11-1672, p. 6 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, 680. We will only tread on a jury’s presumed acceptance of a witness’ testimony when the testimony is implausible or clearly contrary to documentary evidence. See State v. Mussall, 523 So.2d 1305 (La.1988).

C

By applying these principles of review for sufficiency of evidence, we find that a rational trier of fact could find beyond a reasonable doubt that the gun possessed by Mr. Hamdan was a firearm which was “designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive” as required by La. R.S. 14:95.1 D.

lnClearly, Mr. Hamdan used the gun to threaten and frighten the Kellers. He did not use it as if it was a toy or imitation gun. The Kellers’ natural reaction to the gun and the manner in which Mr. Hamdan was using it was one of fright such that they contacted the police about the danger. The chrome gun looked real enough that the Kellers were not going to get out of their car in order to be certain that the gun was “real.” The jury could determine for itself whether to draw a negative inference from defendant’s conduct with the object in his hand. See State in the Interest of T.E., 12-0517, p. 6 (La.6/29/12), 91 So.3d 292, 295 (where object in video appeared to be a handgun but the object was never recovered).

In light of the circumstances that Mr. Hamdan, a convicted felon, gave the gun to a drug addict to dispose of, and then, upon arrest, gave the name Bazel Hamdan, who was the registered owner of the gun, a rational trier of fact could surely find beyond a reasonable doubt that the gun was a firearm within the statute’s prohibition. Common sense and ordinary experience would suggest to a rational trier of fact that owners do not register their toy guns or their fake guns.

Moreover, based upon the telephone conversation between Bazel Hamdan and the defendant, Mr. Hamdan’s argument that the gun was a toy or an imitation is implausible. It is not plausible that Bazel Hamdan would tell the defendant that he would expose the defendant’s true identity and turn in the drug addict, David, if his “gun” was only a toy or an imitation of a gun and not a gun capable of being fired. Thus, viewing the content and nature of the recorded jailhouse conversation between defendant and the real Bazel, as well as all the other evidence, in a light 112most favorable to the prosecution, it would be irrational to conclude that the “gun” the two men were referring to — the “gun” admittedly in defendant’s possession at the time of the incident in question— was anything other than a pistol, revolver, or black powder weapon designed to fire or capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive, as defined by La. R.S. 14:95.1 D.

Viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant possessed a firearm after having been previously convicted of a felony.

Before we turn to consider Mr. Ham-dan’s other assignments of error, we acknowledge that Mr. Hamdan in his pro se brief argues that his conviction cannot stand on his uncorroborated inculpatory statements alone. We will not linger on this point and simply note that there is considerably more evidence to support his conviction, both circumstantial and direct, than only Mr. Hamdan’s statements made to the investigating police officer and in the telephone conversation.

II

Mr. Hamdan in his pro se brief also claims that his constitutional right under the Sixth Amendment has been violated because the prosecution failed to call as aj^witness at the trial a police officer, David Desalvo, who testified at the preliminary hearing. Notably, no part of Officer Desalvo’s preliminary hearing testimony was introduced at Mr. Hamdan’s trial nor does he claim that hearsay statements of Officer Desalvo were repeated by another witness at the trial.

Instead, Mr. Hamdan seems to argue that Officer Desalvo’s preliminary hearing testimony differed in some particulars with Officer Marigny’s trial testimony. He points out that while Officer Desalvo testified that he futilely searched Mr. Ham-dan’s house looking for the gun, Officer Marigny testified at trial that neither she nor any other officer, to her knowledge, searched the defendant’s residence. He also points out that the officers’ respective testimonies differ with regard to who authored the police report and who escorted the Kellers from inside the police station to identify Mr. Hamdan in the back of the police car.

And, Mr. Hamdan seems to further argue that he did not have the opportunity to bring out such contradictions — as he describes them — before the jury because of the absence of Officer Desalvo from the trial. Of course, nothing precluded Mr. Hamdan from exercising his Sixth Amendment right to compel the testimony of Officer Desalvo, and thereby impeach Officer Marigny’s testimony, if Mr. Hamdan believed that Officer Marigny was testifying untruthfully on these points. But, for whatever reason, Mr. Hamdan chose not to compel Officer Desalvo’s trial testimony. On the other hand, if Mr. Hamdan instead believed that it was Officer Desalvo’s preliminary hearing testimony which was untruthful, there 114could be no constitutional violation whatsoever in the prosecutor not calling him as a witness at trial. Cf. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); State v. Broadway, 96-2659, p. 17 (La.10/19/99), 753 So.2d 801, 814; State v. Williams, 338 So.2d 672, 677 (La.1976); State v. Everett, 11-0714, p. 46 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 636, writs denied, 12-1593, 12-1610 (La.2/8/13), 108 So.3d 77.

Consequently, we cannot discern how there could be Sixth Amendment violation of the confrontation and cross-examination protections where Officer Desalvo did not testify during the trial, the prosecution did not seek to use his prior preliminary hearing testimony during the trial, and no hearsay statement by Officer Desalvo as the declarant was introduced during the trial. Simply stated, Officer Desalvo was not a witness “against” Mr. Hamdan. See Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”); California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (the right guaranteed by the Confrontation Clause “permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility”).

Ill

We now turn to consider Mr. Hamdan’s final argument that the trial judge erroneously admitted the evidence of the Kellers’ previously suppressed out-of-_Jcourt15 identifications of Mr. Hamdan. During the trial Mr. Hamdan objected to the admission of the suppressed evidence and called the trial judge’s attention to his earlier ruling. The trial judge reviewed the minute entry which recorded that the motion to suppress the identification had been denied. Relying on the accuracy of the minute entry, the trial judge allowed the prosecution to introduce the evidence.

The transcript of the suppression hearing, however, clearly records the trial judge as granting the motion: “I’m going to suppress the I.D.” In cases where there is a discrepancy between a minute entry and the transcript, the transcript prevails. See State v. Randall, 10-1027, p. 3 (La.App. 4 Cir. 6/22/11), 69 So.3d 683, 685; State v. Wells, 10-1338, p. 9 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306.

“A ruling prior to the trial on the merits, upon a motion to suppress, is binding at the trial.” La.C.Cr.P. art. 703 F (emphasis added). Thus, the trial judge committed error in allowing the evidence.

But we must nevertheless determine whether this error requires reversal or whether we are convinced beyond a reasonable doubt that the error did not contribute to the jury’s verdict. We are without authority to reverse a ruling “which does not affect substantial rights of the accused.” La.C.Cr.P. art. 921. But “[w]e have both the power and the obligation to review the record de novo to determine an error’s harmlessness.” State v. Smith, 600 So.2d 1319, 1326 (La.1992), citing to Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (Emphasis in original). The question becomes whether we can declare beyond a reasonable doubt that the erroneous ruling did not contribute to the jury’s finding of guilt or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. See State v. Welcome, 458 So.2d 1235, 1244 (La.1983). Stated differently, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the trial court’s error. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

In reviewing the record, however, we do not make credibility determinations or findings of fact; we are limited to determining whether the state has met its burden of demonstrating that the erroneous ruling did not contribute to the defendant’s conviction. See State v. Ellis, 94-599, p. 25 (La.App. 5 Cir. 5/30/95), 657 So.2d 341, 357. Importantly, we emphasize that the burden of establishing harmlessness is in this case upon the prosecution and not upon the defendant. See State v. Lewis, 12-1175, pp. 15-16 (La.4/4/12), 96 So.3d 1165, 1176 (Bonin, J., dissenting and citing to Chapman v. California, 386 U.S. 18 at 24, 87 S.Ct. 824, which held that the burden is upon the beneficiary of the error), rev’d, 12-1021 (La.3/19/13), 112 So.3d 796.

After examining the record, we can declare beyond a reasonable doubt that the jury’s verdict was surely unattributable to the erroneous ruling. Mr. Hamdan denied possession of a firearm. He admitted to the police, however, that he was the individual involved in the encounter with the Kellers near his home on Desire Street. His admission occurred before the Kellers’ suppressed out-of-court | ^identification. Moreover, the defendant self-identified in the telephone conversation with Bazel Hamdan, and by falsely identifying himself as Bazel Hamdan at the time of his arrest. The Kellers, moreover, positively identified Mr. Hamdan during the trial. There simply was no question that Mr. Hamdan was the individual involved.

Because the evidence of the Kellers’ out-of-court identifications of Mr. Hamdan was cumulative with respect to the establishment of his identity, yet inconsequential insofar as his identity was hardly an issue at trial, we find beyond a reasonable doubt that the jury’s verdict was surely unattributable to the erroneous ruling. We will not reverse Mr. Hamdan’s conviction on account of a harmless error.

DECREE

The conviction of Mazen Hamdan for violating La. R.S. 14:95.1 is affirmed.

CONVICTION AFFIRMED.

      . Mr. Hamdan has filed a separate appeal of the sentence imposed upon him as a habitual felony offender following the Louisiana Supreme Court decision in his case which reversed both the trial judge and this Court’s holding that a prior federal conviction could not serve as a predicate offense under La. R.S. 15:529.1. See State v. Hamdan, 12-1986 (La.3/19/13), 112 So.3d 812. On that account, we pretermit consideration of the errors patent we identified with respect to the sentence imposed prior to the remand from the Supreme Court.

      . We have, as we always do, examined the record for errors patent and have detected none which pertain to his conviction. See La.C.Cr.P. art. 920(2).

      . Mr. Hamdan does not challenge the sufficiency of the proof of his predicate convictions.

      . As we have indicated, Mr. Hamdan challenges the sufficiency of the evidence only with respect to the "firearm” element.

      . We note that defense counsel made no hearsay objection concerning the jailhouse telephone call(s). See State v. Allen, 03-2418, p. 25 (La.6/29/05), 913 So.2d 788, 807 ("In the ordinary case, hearsay evidence not objected to constitutes substantive evidence.”); see also State v. Dabney, 02-0934, p. 6 (La.4/9/03), 842 So.2d 326, 330 (where the defense did not object on hearsay grounds to testimony of police officer regarding his conversation with the defendant’s girlfriend, the police officer’s account of the girlfriend’s statements on the night of the defendant’s arrest “became substantive evidence for the jury to consider”). But even if there had been a timely objection, we would still consider the inadmissible evidence on a sufficiency of evidence review. We likewise analyze the defendant’s complaint regarding the authenticity of the telephone conversations. A defect in the chain of custody goes to the weight of the evidence rather than its admissibility. See State v. McElveen, 10-0172, p. 91 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1089; State v. Ferguson, 09-1422, p. 33 (La.App. 4 Cir. 12/15/10), 54 So.3d 152, 170.

      . See State v. Martin, 93-0285, p. 7 (La.10/17/94), 645 So.2d 190, 195, for a discussion of the "corpus delicti rule” which Mr. Hamdan references in his pro se brief.

      . The Sixth Amendment to the U.S. Constitution states:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

      . Mr. Hamdan also did not seek at the trial to demonstrate Officer Desalvo's unavailability as a witness and introduce his testimony at the preliminary hearing. See La. C.E. art. 804.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Torrey D. BROWN.
    No. 12-KA-922.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellant Project, Mandeville, LA, for Defendant/Appellant.
    Torrey D. Brown, Rayburn Correctional Center, Angie, LA, Defendant/Appellant, in proper person.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Torrey D. Brown, has appealed his convictions of two counts of battery upon a police officer while being detained in a correctional facility, in violation of La. R.S. 14:34.2(B). For the reasons that follow, we affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

On May 19, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Torrey D. Brown, with two counts of “battery upon a police officer while being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, half-way house, or detention facility,” in violation of La. 14:34.2(B). At his arraignment on May 20, 2009, defendant pled not guilty to these charges. On April 13, 2012, defendant filed a pro se motion to quash for failure to provide a speedy trial, which was denied after a hearing held on May 21, 2012. At the same hearing, defendant also made a pro se oral motion for a change of venue, which was also denied.

|4On September 12, 2012, defendant proceeded to a jury trial and was found guilty as charged as to both counts. On September 21, 2012, defendant filed a motion for a new trial and a motion for acquittal notwithstanding the verdict, which were both denied on September 26, 2012. After waiving sentencing delays, defendant was immediately sentenced to two years and six months imprisonment at hard labor on each count, to be served concurrently with each other and consecutively with any other sentence defendant was serving at the time, with credit for time served. After sentencing, defendant made an oral notice of his intent to file a motion for appeal. Defendant filed a written motion for appeal, which was filed and granted on the same date as the sentencing hearing. Defendant also filed a motion to reconsider sentence, which was filed and denied on the same date as the sentencing hearing. On October 17, 2012, the State filed a habitual offender bill of information against defendant, alleging him to be a third felony offender. A habitual offender bill hearing was held on March 21, 2013, at the conclusion of which defendant was adjudicated a third felony offender. The trial court then vacated defendant’s original sentence as to count one and sentenced defendant under La. R.S. 15:529.1 (the Habitual Offender Statute) as a third felony offender to imprisonment at hard labor for a term of forty months, with credit for time served, to run concurrently with defendant’s sentence on count two, and consecutively with any other sentence defendant was currently serving. This timely appeal followed.

FACTS

At trial, Deputy David Dalton of the Jefferson Parish Sheriffs Office (the “JPSO”), testified that on March 14, 2009, he was working in the Jefferson Parish Correctional Center (the “JPCC”) with Deputy Raquel Scott. Deputy Dalton | ¿observed defendant in the day room area of one of the inmate pods of the JPCC with his orange jumpsuit unbuttoned and with one of his arms not properly inside the sleeve. He explained that the inmates were required to be properly dressed while in the day room area. Deputy Scott ordered defendant to get properly dressed, but he ignored her. Defendant also ignored Deputy Scott’s second order to get properly dressed; rather, he walked to the bathroom area of the day room, where inmates were not required to be properly dressed. When defendant exited the bathroom area, he again was not properly dressed. Defendant was warned that he would be “written up” for not being properly dressed; he responded that he did not care about being written up. Defendant then proceeded towards the food tray area of the day room.

Deputy Dalton then left the area to obtain the necessary write-up form. When he returned, Sergeant Pier Harris was in the hallway area speaking through the door, telling defendant to get properly dressed. When defendant did not comply with his orders, Sergeant Harris called for backup. Sergeant Harris and Sergeant Simmie Carter then entered the day room and ordered defendant to “lockdown,” which meant that defendant was required to go directly to his cell. Although Deputy Dalton testified that he saw defendant in a physical altercation with the two sergeants, he stated that he did not observe any injuries to defendant or to the officers.

Sergeant Simmie Carter of the JPSO testified that on March 14, 2009, he was working at the JPCC when he responded to a call for assistance on Pod 4-C. He entered the day room area of the pod with Sergeant Harris and observed defendant in the day room area not properly dressed. Sergeant Carter described | (¡defendant as being in a “defensive mode” and angry. When he asked defendant what was wrong, defendant did not respond. Sergeant Carter then told defendant that if he was not going to be properly dressed, he would have to lockdown in his cell. Defendant refused several orders to lockdown and used obscenities stating that he was not locking down and did not care about the officers’ orders. Defendant then walked towards Sergeant Carter with his hands closed in balled fists. Sergeant Carter stepped back as defendant continued approaching him. Defendant then backed Sergeant Carter into a corner in the shower area. At that point, Sergeant Carter pushed defendant to “create distance” between himself and defendant and continued to order defendant to lockdown in his cell. Defendant again refused to comply.

When defendant continued approaching him, Sergeant Carter deployed pepper spray to defendant’s face, which was ineffective. Defendant then grabbed Sergeant Carter’s arm, prompting Sergeant Carter to strike defendant’s outer leg area below his knees with his baton. These strikes to defendant’s leg area were ineffective; defendant was still not subdued. Sergeant Carter testified that at that point, Sergeant Harris deployed his baton and struck defendant in the back area. Defendant then grabbed Sergeant Harris’ baton and pinned Sergeant Harris against the corner of the shower area. Sergeant Carter continued to strike defendant in the leg area. When defendant saw that other officers had arrived on the scene, he dropped to his knees in a fetal position, surrendered, and was handcuffed.

Sergeant Pier Harris testified that on March 14, 2009, he was conducting a security check in Pod-4C of the JPCC when he observed defendant in the day room, not completely dressed, with his jumpsuit just halfway on his body. He spoke to defendant through the corridor door and ordered him to put his jumpsuit completely on; defendant refused. After he and Sergeant Carter entered the day 17room, defendant grabbed Sergeant Carter’s arm. In response, Sergeant Carter pepper-sprayed him. The pepper spray had no effect on defendant, who continued approaching Sergeant Carter. Defendant then touched Sergeant Carter again. Defendant ignored another order to step back and continued moving forward. Sergeant Carter then used his baton to strike defendant on the leg. After defendant backed Sergeant Carter towards the corner, Sergeant Harris also used his baton to strike defendant on the leg. Sergeant Harris testified that defendant then grabbed his baton, tried to take it from him, and continued to push him back against the wall.

On cross-examination, Sergeant Harris testified that defendant was unable to take his baton away from him. Sergeant Harris testified that to his knowledge, he did not strike defendant in the head, nose, or lip; however, defendant was “weaving and bobbing and ducking” throughout this altercation. Due to defendant’s injuries, he was transported to the hospital. On redirect examination, Sergeant Harris testified that no one, including himself and Sergeant Carter, used any force that was not necessary to subdue defendant who was resisting them.

After the State rested, the defense called Priscilla Crum of the JPSO to the stand. She testified that on March 14, 2009, she was working as a nurse in the clinic at the JPCC. She first encountered defendant on the floor of the pod lying flat on his stomach. Defendant’s injuries included a two-inch wide gash on the back of his head, a swollen bloody nose, and a swollen arm. There was a lot of blood at the scene. She recommended that defendant go to the hospital because it appeared that his nose was broken.

The defense also called Deputy Tijuana Kelly of the JPSO, who testified that as part of her assignment with the Special Investigations Unit, she investigated the March 14, 2009 incident involving defendant. According to Deputy Kelly, none of lathe officers stated that they hit defendant in the head, mouth, or nose. None of the officers reported to her that they were cut or bleeding as a result of the incident. She also interviewed defendant after he returned from the hospital.

Deputy William Whittington of the JPSO was also called as a defense witness. He testified that he responded to the incident involving defendant. When he arrived, he observed Sergeant Carter standing over defendant. He believed defendant was already handcuffed. Defendant was bleeding and had lacerations on his face. There was a mixture of blood and pepper spray on the ground. Defendant appeared upset, angry, aggressive, and may have exchanged threatening words with the officers on the scene.

PRO SE ASSIGNMENT OF ERROR NO. ONE

Sufficiency of the evidence

Besides the counseled brief filed on behalf of defendant, defendant also filed a pro se supplemental appellate brief. In his first pro se assignment of error, defendant argues that the evidence presented at trial was insufficient to support the verdicts rendered against him. Particularly, defendant argues that Deputy Dalton’s testimony included hearsay as to statements made by Deputy Scott, who did not testify in his case. Defendant also asserts that Deputy Dalton testified that he only saw flashes of what occurred because he was taking notes by writing down a time-line of the incident. Defendant further argues that on cross-examination, Deputy Dalton testified that he did not see defendant threaten the officers and did not observe any injuries to the officers.

| flDefendant also argues that Sergeant Carter testified that when he arrived at the pod, he did not observe defendant in confrontation with anyone or that defendant was in a “defensive mode.” Defendant argues that Sergeant Carter testified that the first time defendant caused a disturbance was when defendant walked towards him with his hands closed in balled fists and ignored his command to lock-down. Defendant argues that the prosecutor asked Sergeant Harris leading questions, and it was only after being asked leading questions that Sergeant Harris testified as to an altercation between himself, defendant, and Sergeant Carter.

Defendant argues that despite being ordered to properly dress, he did not provoke anyone to strike or push him for any reason. He asserts that he only protected himself after both officers struck him with their batons. Defendant argues that contrary to the officers’ testimony, in addition to being struck in his legs, he was struck in the head, face, arms, and back. Defendant concludes that the evidence was insufficient to convict him of battery of a police officer while under the jurisdiction of the Jefferson Parish Department of Corrections.

Analysis

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Harrison, 06-897 (La.App. 5 Cir. 3/27/07), 957 So.2d 199, 201 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Collins, 04-1443 (La.App. 5 Cir. 7/26/05), 910 So.2d 454, 457).

In the present case, defendant was convicted of two counts of battery of a police officer while being detained in a correctional facility, in violation of La. |inR.S. 14:34.2(B). At the time of the subject incident, La. R.S. 14:34.2 provided, in pertinent part:

(A)(1) Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.
(2) For purposes of this Section, “police officer” shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, federal law enforcement officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.
(B)(1) Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.
* * *

Further, La. R.S. 14:33 defines battery, in pertinent part, as “the intentional use of force or violence upon the person of another”.

In the present case, the State presented the testimony of Deputy Dalton, who stated that he observed defendant refuse to follow orders and refuse to lockdown in his cell, and that he further observed defendant in a physical altercation with other officers. Sergeants Carter and Harris both testified that defendant refused to follow orders, approached Sergeant. Carter with balled fists, and backed him into a corner in the shower area. Sergeants Carter and Harris also both testified that defendant |ngrabbed Sergeant Carter’s arm, grabbed Sergeant Harris’ baton, and then pinned Sergeant Harris against the corner of the shower area. Sergeant Harris testified that defendant touched Sergeant Carter again after grabbing his arm. He also testified that while struggling over Sergeant Harris’ baton, defendant pushed Sergeant Harris back towards the wall.

In this Court’s previous decision in Harrison, swpra, testimony indicated that during a search of the inmate housing areas, the defendant in that case refused to comply with the officers’ orders to spread his feet wider and place his hands higher on the wall. When an officer physically adjusted the defendant’s feet and hands, the defendant began “mouthing off’ and making threats towards the officers. One of the defendant’s wrists was handcuffed and placed behind his back. The defendant twisted away from the wall, and the officer pushed the defendant back on the wall.

When other officers intervened, a struggle began between the officers, including the original officer, and the defendant. During the struggle, the defendant struck the original officer with his handcuffed hand, bit one officer’s finger, and kicked another officer in the shin. Despite the defendant’s testimony at trial that he did not touch the officers and that the officers “beat him up,” this Court found that a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of two counts of battery of a police officer “while in jail.” Harrison, 957 So.2d at 200-02.

Similar to Harrison, in the present case, all of the State’s witnesses testified to a physical altercation between defendant and Sergeants Carter and Harris. Sergeants Carter and Harris testified that defendant grabbed Sergeant Carter’s arm, pushed Sergeant Carter into a corner, and pushed Sergeant Harris against the wall. The trier of fact makes credibility determinations and may, within the bounds of | ^rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact-finder’s discretion only to the extent necessary to guarantee fundamental due process of law. Harrison, 957 So.2d at 202 (citing State v. Howard, 98-64 (La.4/23/99), 751 So.2d 783, 801, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999)). In returning the guilty verdicts, the jury obviously rejected the defense’s version of the events and resolved any credibility issues in favor of the State. Harrison, 957 So.2d at 202. Upon review, we find that a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. This assignment of error is without merit.

COUNSELED ASSIGNMENT OF ERROR NO. ONE

Improper remarks of the prosecutor during opening statement

In his first counseled assignment of error, defendant argues that in the State’s opening statement, the prosecutor stated that an absent witness’s testimony would have corroborated the testimony of the three witnesses testifying on behalf of the State. Defendant contends that the trial court erred in overruling defense counsel’s objection to the prosecutor’s remark. Defendant argues that the prosecutor’s remark violated Rule 3.4(e) of the Louisiana State Bar Association’s Rules of Professional Conduct because the prosecutor “allude[d] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence ... ”. Defendant asserts that the Rules of Professional Conduct have the force and effect of substantive law.

Defendant argues that when the trial court overruled the defense’s objection, the jury was led to believe that the prosecutor’s statement could be accepted as true that the absent witness’s testimony would have corroborated the testimony of the State’s other witnesses. Defendant argues that the trial court’s ruling on the | isdefense objection was not harmless error because the State’s case rested entirely on the credibility of the three witnesses who testified that defendant was only struck on his legs and back. Defendant asserts that there was a problem with those witnesses’ testimony because the defense’s witnesses testified that defendant suffered blows to his head and face.

Defendant argues that based on the harmless error rule, the reviewing court must determine whether the guilty verdict may have been attributable to the error. Defendant asserts that the failure of the trial court to admonish the jury to disregard the improper argument lent even greater weight to the improper argument.

The State argues that defense counsel failed to provide a legal basis for the objection and that no evidentiary rules were cited. The State asserts that defense counsel failed to base its objection on the Rules of Professional Conduct, which was cited for the first time on appeal. The State therefore argues that defendant’s claim was not preserved for appeal.

Alternatively, the State argues that defendant’s claim has no merit. The State asserts that the prosecutor’s statement is not evidence and has no probative force. The State contends that if the appellate court finds that the prosecutor’s argument contained improper remarks, a reversal is warranted only if the court is convinced that the jury was influenced by the remarks and that the remarks contributed to the verdict.

The State further argues that if the jury was persuaded by the prosecutor’s remark, any error was harmless. The State asserts that the harmless error standard requires the reviewing court to focus on the erroneously admitted evidence to determine whether there is a reasonable possibility that the error complained of contributed to the verdict. The State contends that due to the overwhelming 114evidence of guilt in this case, it could not be determined that the alleged error prejudiced defendant.

The record reflects that during the State’s opening statement, the prosecutor stated the following:

There are really four State witnesses in this case. However, one of them unfortunately did not receive a subpoena and went out of town before we realized this case was set for trial, so that was the original guard who was the first one there.
However, there were other officers who were there and will tell you the same thing that she could tell you. And so that’s why we elected to go to trial today instead of waiting.

Defense counsel responded with an objection by stating, “Your Honor, if I may object to what that officer would testify to. He’s not even calling her, but he’s telling them (the jury) what she would testify to.... And he can’t say that if she’s not going to testify.” The Court ruled on the objection stating, “Okay. I’ll allow it. It’s opening statement. It’s not testimony. It’s just opening statement.” Although defense counsel again noted his objection, the defense never requested a mistrial or an admonition.

Analysis

Article 766 of the Louisiana Code of Criminal Procedure provides that “[t]he opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” The opening statement is designed to inform the jury so they may understand the evidence as it unfolds and to protect the defendant from surprise. State v. Williams, 03-942 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1012, writ denied, 04-450 (La.6/25/04), 876 So.2d 832 (citing State v. Green, 343 So.2d 149, 151 (La.1977)). Statements made outside the permissible scope of an opening 11sstatement may result in a mistrial under La.C.Cr.P. arts. 770 and 771. Id. (citing State v. Robinson, 598 So.2d 407, 412 (La.App. 5 Cir.1992)).

Article 770 of the Louisiana Code of Criminal Procedure, regarding prejudicial remarks, provides that:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
1) Race, religion, color, or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
3) The failure of the defendant to testify in his own defense; or
4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

In addition, Article 771 of the Louisiana Code of Criminal Procedure provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
* * *
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

These Articles (770 and 771) both require the defendant to move for a mistrial or request an admonition in order for the court to grant a mistrial or give an admonition. In the present case, defendant failed to request a mistrial. “The failure of defense to move for a mistrial is a waiver of the error.” State v. Ohlsson, 12-708 (La.App. 5 Cir. 4/24/13), 115 So.3d 54, 65. Defendant also failed to request an admonition, and “in the absence of such a request, the trial judge need not admonish the jury.” State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, 363-64, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541 (citing State v. Mayer, 589 So.2d 1145, 1151 (La.App. 5 Cir.1991), writ denied, 609 So.2d 251 (La.1992)). For these reasons, defendant is proeedurally barred from raising this issue on appeal. Ohlsson, supra.

However, a review of the merits of defendant’s argument indicates that it is without merit. It is well settled that the trial judge has wide discretion in controlling the scope and extent of the opening statement. State v. Trahan, 576 So.2d 1, 12 (La.1990). In the present case, in response to defense counsel’s objection, the trial court pointed out that the statement was not testimony, which was sufficient to alert the jury that the opening statement was not evidence thereby alleviating any prejudice to defendant.

Further, even if the trial court’s ruling was erroneous, any error resulting therefrom was harmless. Here, the jury was presented with the testimony of the two officers involved in the altercation with defendant. Both officers testified that defendant grabbed Sergeant Carter’s arm and pushed Sergeant Harris against a wall. Given this substantial evidence of defendant’s guilt, it is unlikely that the jury relied on the prosecutor’s comment that the absent witness’s testimony would corroborate that of the other officers in reaching their verdict.

This assignment of error is without merit.

1 „PRO SE ASSIGNMENT OF ERROR NO. TWO

Ineffective assistance of counsel

In this assignment of error, defendant argues that he was deprived of the right to effective assistance of counsel, specifically arguing that defense counsel: (1) failed to object to the failure of the bill of information to reflect the victims’ names; (2) failed to make a timely Batson objection; (3) failed to interview potential alibi witnesses and prepare a defense for trial; and (4) was also ineffective during the improper enhancement under La. R.S. 15:529.1.

Analysis

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court, where a full evidentiary hearing can be conducted, rather than through direct appeal. State v. Chappell, 11-148 (La.App. 5 Cir. 12/28/11), 83 So.3d 216, 223. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Nevertheless, where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

Although we address defendant’s claim regarding the alleged defect in the bill of information in our errors patent review, infra, when the record contains insufficient evidence to consider all of the allegations of ineffectiveness of counsel, this Court has declined to address any of the claims stating that the entirety of the claims are more properly addressed in an application for post-conviction relief. State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 377-78 (citing State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754). Therefore, we will not address defendant’s claims of ineffective assistance of counsel in this appeal because they would be more properly addressed in their entirety by the trial court on post-conviction relief.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Defective bill of information

First, we note that the bill of information does not name the officers who were the victims of the charged offenses.

Louisiana Code of Criminal Procedure article 473, concerning identification of the victim, provides that:

When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known. If the name, appellation, or nickname of the victim is not known, it is sufficient to so state and to describe him as far as possible. In stating any name of a victim it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.

The requirement for identification of the victim is made constitutionally necessary under certain accusations in order that the accused be properly informed of the accusation against him and not be twice placed in jeopardy for the same offense. State v. Dozier, 258 La. 323, 332, 246 So.2d 187 (La.1971).

The Louisiana Supreme Court held in State v. James, 305 So.2d 514, 519-20 (La.1974), that when there is an error in the bill of information, there must also be 119a determination of actual surprise or prejudice to constitute reversible error. “[T]he technical sufficiency of the bill of information may not be questioned after conviction where the accused has been fairly informed of the charge against him, has not been prejudiced by surprise or lack of notice, has not raised an objection to the bill prior to the verdict, and is protected against further prosecution by examination of the pleadings and the evidence on the present conviction.” State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, 912-913, writ denied, 12-279 (La.6/15/12), 90 So.3d 1059 (citing James, supra).

In the present case, the bill of information is defective because it failed to name the officers who were the victims of the charged offenses. The minute entry of the arraignment and the appellate record do not contain any objection to the bill of information prior to the verdict. Nevertheless, the record does not show any prejudice to defendant or that defendant was surprised by any lack of notice. Both victims were called to the stand by their correct names and testified without any confusion as to the identification of the victims. Further, defendant is protected from double jeopardy by examination of the pleadings and evidence of the present conviction.

Sentencing errors

Next, we note two errors in defendant’s sentence. First, in sentencing defendant, the trial court failed to specifically impose statutory restrictions on benefits according to La. R.S. 14:34.2(B)(2), which provides in pertinent part:

(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years.

LnNonetheless, the trial court’s failure to specify this requirement at sentencing need not be corrected on remand because the “without benefits” provision of the statute is self-activating; thus no corrective action is required. State v. Bennett, 10-393 (La.App. 5 Cir. 3/29/11), 63 So.3d 251, 260, writ denied, 11-931 (La.10/21/11), 73 So.3d 381.

Second, defendant’s sentence is illegally lenient because the trial court failed to impose the mandatory fine required by La. R.S. 14:34.2(B)(2), which provides, in pertinent part, that “the offender shall be fined not more than one thousand dollars.” While this Court has the authority to correct an illegal sentence regardless of whether it is raised by either party, this authority is permissive rather than mandatory. Bennett, supra. This Court has previously declined to use its authority to correct a sentence that is illegally lenient due to failure to impose a mandatory fine where a defendant is indigent. Id. In the present case, defendant appears to be indigent because he was represented by appointed counsel in the trial court and is represented on appeal by the Louisiana Appellate Project. Accordingly, we decline to correct this sentencing error.

CONCLUSION

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

AFFIRMED.

      . “Pod” is used to refer to an inmate housing area of the jail.

      . At the time of trial, Sergeant Carter had been promoted to Lieutenant, but will be referred to in this opinion as Sergeant for the sake of clarity and consistency.

      . This assignment of error is addressed first because it challenges the sufficiency of the evidence. State v. Granger, 12-193 (La.App. 5 Cir. 10/30/12), 103 So.3d 576, 583, writ denied, 12-2587 (La.4/26/13), 112 So.3d 840 (citing State v. Hearold, 603 So.2d 731, 734 (La.1992)). When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. Hearold, supra.

      . Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S.Ct. 1712, 1718-19, 90 L.Ed.2d 69 (1986).

      . We note here that defendant's multiple offender adjudication is not before us in this appeal, as defendant’s motion for appeal was filed prior to his multiple offender adjudication. If defendant wishes to appeal his multiple offender adjudication at this point, he must obtain an out-of-time appeal because more than thirty days have elapsed since his multiple offender adjudication.


author: ROBERT A. CHAISSON, Judge.

text:
    Roderick Christopher PATRICK v. LOWE’S HOME CENTERS INC., Lowe’s Companies Inc. Dale Bruce, and Unknown Insurer(s).
    No. 13-CA-294.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Roderick C. Patrick, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Melvin G. Ripp, Jr., Attorney at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

^Roderick Christopher Patrick appeals a judgment dismissing his suit against Dale Bruce for an incident in which Mr. Bruce, an off-duty Jefferson Parish deputy working a detail as a security guard at a Lowe’s building supply store, threatened Mr. Patrick with a taser device. For the following reasons, we reverse that judgment, award Mr. Patrick $500.00 in damages, and cast each party responsible for his own costs.

FACTS AND PROCEDURAL HISTORY

Mr. Patrick was attempting to purchase approximately $1,000 worth of merchandise from a Lowe’s building supply store one evening just as the store was closing at 9:00 p.m. He attempted to make his purchase with a check; however, the check clearing service used by Lowe’s rejected it, apparently because of improper identification. Mr. Patrick then called the check clearing service and was told that the matter would be cleared up and the check should be re-entered. He gave this information to the clerk and while she re-processed the check, he went |3out to the parking lot and moved his truck closer to the door for loading. When he re-entered the store, the cashier told him that the check had been rejected again.

Mr. Patrick called the check clearing service again. While he was making this call, the cashier apparently notified her supervisor of the problem. The supervisor, who was busy closing-out registers at the other end of the store, asked Mr. Bruce, the security officer who was standing nearby, to investigate the problem. The surveillance tape from the store’s interior video camera shows Mr. Bruce walk into the area near the check-out counter at 9:15 p.m. and lean against the adjoining counter without speaking to Mr. Patrick. Mr. Patrick testified that during the next five minutes or so, Mr. Bruce commented that the check was not good.

At some point, Mr. Patrick asked for Mr. Bruce’s name and badge number, and Mr. Bruce complied by allowing Mr. Patrick to view his badge. Mr. Patrick testified that he was on hold with the check clearing service during this time. After the check was rejected for a third time, Mr. Bruce told Mr. Patrick that it was time to go. Mr. Patrick testified that he immediately gathered up his papers and checkbook and began walking out of the store.

The next pertinent time period begins, according to the surveillance tape from the store’s exterior camera, at about 9:21 p.m. The tape shows Mr. Patrick and Mr. Bruce emerging from the wide garage-type door, walking side by side. Mr. Patrick’s truck is to his right, and Mr. Bruce’s police unit is to his left and a little further away from the two men than the truck. The tape shows Mr. Bruce walking toward his police unit and Mr. Patrick walking toward his truck; however, just as Mr. Bruce reached the trunk area of his car, Mr. Patrick stopped and turned toward Mr. Bruce. At that point, Mr. Bruce also turned and approached Mr. Patrick while pointing at the truck. The tape then shows Mr. Patrick again |4walking toward his truck with Mr. Bruce close behind. Although there is no audio on the tape, both Mr. Patrick and Mr. Bruce testified that as they approached the truck, Mr. Bruce pulled out his taser, pointed it at Mr. Patrick, and threatened to hospitalize and arrest him if he did not leave. The video shows that before Mr. Patrick actually got into his truck, Mr. Bruce turned away and began walking back into the store. The time counter on the tape shows that about 25 seconds elapsed from the time Mr. Bruce turned toward Mr. Patrick until the time that he turned away from Mr. Patrick at the driver’s side of the truck to re-enter the store. The taser was not fired, and Jefferson Parish Sheriffs internal affairs division mechanically verified that the ta-ser had never been turned on.

Mr. Patrick immediately filed a complaint with the Jefferson Parish Sheriffs Department. After an internal affairs review, it was found that Mr. Bruce had violated sheriffs department procedures in taking out the taser and threatening Mr. Patrick with it. Specifically, it was found that Mr. Bruce had used more force than necessary under the circumstances, and that this lapse amounted to unsatisfactory performance of his duties as a deputy.

Mr. Patrick sued both Lowe’s and Mr. Bruce, but settled with Lowe’s for an undisclosed amount prior to trial. After a bench trial, which consisted of almost 400 pages of trial testimony, the videotapes of the incident, the entire internal affairs investigation and report, Mr. Bruce’s deposition, matters relating to his marital status and medical records, and three depositions of employees of Lowe’s that were on duty the night of the incident, the judge issued the following judgment:

After full consideration of the law, testimony, and submitted exhibits, the Court has determined that the defendant, Dale Bruce, did pull out a taser and point it at Mr. Roderick Patrick. However, the plaintiff has failed to provide this Court with any evidence of damages sustained as a result of the altercation. Mr. Patrick did not produce any evidence | ¿supporting the finding of a physical, mental, or emotional injury. Mr. Patrick did not produce any medical records or evidence of medical expenses for treatment or care rendered in response to any physical or psychiatric injury as a result of the incident with Dale Bruce. Plaintiff did not produce evidence of any suffering as a result of mental anguish, intentional inflection of emotional distress, or any finding of post-traumatic stress disorder.
It is ordered, adjudged, and decreed that there be judgment rendered in the defendant’s favor dismissing the Petition for Damages filed by plaintiff against Dale Bruce, with prejudice, at plaintiffs cost.

Mr. Patrick now appeals this judgment, asserting that the trial judge erred in failing to award him damages and casting him for costs.

LAW AND DISCUSSION

We note initially that the standard of review of general damage awards is whether the trier of fact abused its much discretion in fixing such awards. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); see also Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. It is also the rule that an appellate court may disturb an award, or lack of an award, only after a finding, based on the entire record and considering the particular injuries and their effect on the particular victim, that the factfinder abused this discretion. Youn, supra. Moreover, it is only after a determination of abuse of discretion has been made by the appellate court that such a court may look to other similar cases for guidance as to an appropriate award, with the understanding that the award may then be adjusted only insofar as lowering it to the highest point, or raising it to the lowest point, which would be reasonable on the record. Id.

In delictual actions the plaintiff bears the burden of proving fault, causation and damages. Wainwright, supra. In Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701So.2d 447, the court discussed the concept of “dignitary torts.” It cited with approval Dan B. Dobbs, Law of Remedies, (1993), in which that author used that term to describe situations in which the law seeks to protect intangible | (Interests in personal integrity and privacy, as well as mental tranquility. The court observed that in the appropriate type of case, “damages for deprivation of self-determination, insult to personal integrity, invasion of privacy, anxiety, worry and mental distress are actual and compensatory.” Lugenbuhl, at 455.

In the present case, the trial judge found as a matter of fact that Mr. Bruce pointed the taser at Mr. Patrick. Mr. Bruce admitted that he also ordered Mr. Patrick off the premises and threatened to “send him to the hospital” or arrest him if he did not comply. However, she ruled in Mr. Bruce’s favor on the grounds that Mr. Patrick had failed to prove any damages. We find that, under the rule of Lugenbuhl, this was an abuse of discretion.

Having determined that the factfin-der abused her discretion in not awarding any damages, we are now permitted to look to other similar cases for guidance as to an appropriate award. While there are very few cases involving a similar situation, we find the case of Wattik v. Lewis Grocer Co., 476 So.2d 444 (La.App. 4th Cir.1985) instructive. There, plaintiffs were awarded $600 and $900, respectively, for an aggravated assault in which the defendant thrust a machete into the windows of a car in which plaintiffs were sitting during an argument. Although the court found the damages “slightly low,” it noted that the plaintiffs could have driven off at any time, but chose to stay to call the defendant’s “bluff.”

In the present case, we note in this regard that Mr. Patrick admitted that he had been asked to leave the store, and he in fact was doing so by exiting the building and walking toward his truck. However, the video shows that he inexplicably stopped walking toward his vehicle, turned back toward Mr. Bruce, and took one or two steps back toward him. It is only at that point that Mr. Bruce, apparently thinking that Mr. Patrick was defying him, approached Mr. Patrick and threatened him that if he did not leave immediately, he would be shot with the taser |7and taken to the hospital, or arrested and taken “downtown.” Mr. Bruce never fired the taser and did not touch Mr. Patrick in any way. Before Mr. Patrick actually got into his truck, Mr. Bruce turned away from him and walked back into the store, apparently satisfied that Mr. Patrick was indeed leaving. According to the surveillance tapes, the entire confrontation in the parking lot lasted no longer than 25 seconds.

We also note that Sgt. Michael Brocato, the officer who conducted the internal affairs review, testified at length about the incident as shown on the videotapes. He said that the finding that Mr. Bruce had used excessive force was based on the general rule that an officer should only take out a weapon either to effect an arrest or to protect himself. Because neither factor was present here, it was inappropriate for Mr. Bruce to have taken out the taser. However, he also testified that during the five minutes or so that elapsed from the time Mr. Bruce arrived at the scene, and the time he and Mr. Patrick walked out of the store, Mr. Patrick is seen on the tape approaching Mr. Bruce some five times in a manner that “encroached” on his space. He saw no behavior on Mr. Bruce’s part which would have caused Mr. Patrick to ask for his name and badge number. He said that had he been in Mr. Bruce’s position, he probably would have told Mr. Patrick to leave immediately and would have arrested him if he had not done so. He explained that in his experience, it was better to nip an incident in the bud, rather than let it escalate into a more serious confrontation. He stated that “I had mentioned the scenario that, if that was me, I would have tapped you on the shoulder and advised you that the store was closed. I would have effected the arrest by approaching you and ending it right there.”

| «Considering all of the above factors, we deem an award of $500 to be the lowest award that the trier of fact could have made on the record before us, and we fix the award at that amount.

In regard to costs, there was also evidence that Mr. Patrick had summarily dismissed any discussions about settling the matter. In a letter to defense counsel Mr. Patrick wrote that “I can promise you that I will never rest until the true and complete facts of the Dale Bruce matter are fully exposed and the proper judgments have been rendered against Mr. Bruce.” Mr. Patrick suggested to the district court, and has repeated here, that appropriate damages in this case would be $100,000. Although the general rule is that the party cast in judgment is responsible for payment of costs, we find that in light of the circumstances surrounding this incident, the trial of the matter and the ultimate result obtained, a more equitable assessment of costs is that each party bears his own costs. La. C.C.P. art. 2164.

DECREE

For the foregoing reasons, the judgment is reversed to provide that Mr. Patrick is entitled to general damages in the amount of $500. The judgment is further amended to provide that each party shall bear his own costs in the district and appellate courts.

REVERSED.


author: MARC E. JOHNSON, Judge.

text:
    FIRST BANK AND TRUST v. REDMAN GAMING OF LOUISIANA, INC.
    No. 13-CA-369.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      James M. Garner, Elwood F. Cahill, Jr., Ryan O. Luminais, Mary E. AMn, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Thomas M. Benjamin, Wesley M. Plai-sance, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Thomas M. Beh, Attorney at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

1 ^Defendant, Redman Gaming of Louisiana, L.L.C. (“Redman”), appeals the trial court’s granting of summary judgments in favor of plaintiff, First Bank and Trust (“First Bank”), on the issues of liability and damages in connection with a breach of contract claim. In two separate judgments, the trial court found that Redman breached an enforceable contract and awarded $1,000,000 in damages to First Bank. For the reasons that follow, we affirm both judgments.

FACTS & PROCEDURAL HISTORY

On September 5, 2007, Redman entered into a purchase agreement with Bouree Gaming, L.L.C. (“Bouree”) wherein Red-man agreed to sell “the exclusive right to place and operate ... video gaming devices” at 20 listed locations, as well as other listed property, to Bouree for $1,800,000. The purchase agreement [■¡provided for an initial payment of $50,000, with the balance being owed at the closing on or before September 28, 2007.

On September 21, 2007, Bouree executed a promissory note in favor of First Bank in the amount of $1,400,000. On the same date, all three parties, Bouree, First Bank and Redman, entered into an “Agreement Regarding Repurchase of Assets” (“the Agreement”), in which Redman agreed to repurchase certain assets set forth in the September 5, 2007 purchase agreement between Redman and Bouree in the event Bouree defaulted on its promissory note to First Bank. The Agreement provided that the repurchase price of the assets was the lesser of $1,000,000 or the total amount owed on the promissory note.

On May 19, 2011, First Bank sent a demand letter to Redman advising that Bouree had defaulted on the promissory note and sought to enforce Redman’s obligation to repurchase Bouree’s assets as provided in the Agreement. First Bank specifically requested the repurchase price of $1,000,000. Thereafter, on June 16, 2011, First Bank sent a second demand letter to Redman again requesting that Redman repurchase Bouree’s assets under the Agreement. First Bank noted that the outstanding balance on Bouree’s promissory note exceeded $1,000,000 and, thus, First Bank sought payment by Redman for the lesser repurchase price of $1,000,000.

On July 14, 2011, First Bank filed a Petition for Breach of Contract against Redman claiming that it failed to pay $1,000,000 for the repurchase of Bouree’s assets as required under the Agreement. First Bank further asserted Redman breached the Agreement in bad faith and, thus, sought all damages resulting from the breach. In its prayer for relief, First Bank requested payment of the $1,000,000, attorney’s fees and costs, pre-judgment interest, and all other equitable |4relief. Redman responded by filing a peremptory exception of non-joinder of party, after which First Bank amended its petition to add Bouree as a defendant.

Redman then answered the lawsuit and filed a cross-claim against Bouree seeking transfer of the assets subject to the Agreement in the event Redman was found liable to First Bank. Thereafter, Redman filed a motion for summary judgment seeking dismissal of First Bank’s claims against it on the basis the Agreement was unenforceable because neither First Bank nor Bouree currently owned or possessed all the assets that were subject to repurchase under the Agreement and, thus, the assets could not be repurchased. First Bank responded by filing a cross-motion for summary judgment seeking judgment as to Redman’s breach of the Agreement.

The motions for summary judgment were heard on November 7, 2012. At the conclusion of the hearing, the trial court denied Redman’s motion for summary judgment and granted First Bank’s motion for summary judgment. The trial court instructed First Bank to prepare a judgment. The record shows that both parties submitted proposed judgments on November 15, 2012. In separate letters to the trial court, each party explained there was a disagreement as to whether the trial court’s November 7, 2012 ruling was limited to liability or included an award for damages.

The trial court signed a judgment on November 15, 2012 that granted summary judgment in favor of First Bank as to liability, specifically finding the Agreement was enforceable and that Redman breached the Agreement. The judgment further stated that damages were to be determined at a subsequent hearing or trial. Thereafter, on November 28, 2012, the trial court signed a second judgment granting summary judgment in favor of First Bank, awarding it $1,000,000 plus prejudgment and post-judgment interest. However, on December |fi6, 2012, the trial court, on its own volition, vacated the November 28th judgment. First Bank then filed a motion seeking to clarify/alter/amend the November 15th judgment to include an award of damages in the amount of $1,000,000, which was denied.

First Bank subsequently filed a motion for summary judgment on the issue of damages. After a hearing, the trial court granted the motion against Redman in favor of First Bank and awarded it $1,000,000 in damages. Redman timely filed a suspensive appeal from both the November 15, 2012 judgment finding Red-man breached the Agreement and the January 11, 2018 judgment awarding First Bank damages in the amount of $1,000,000. First Bank answered the appeal, challenging the trial court’s January 7, 2013 denial of its motion to clarify/alter/amend.

ISSUES

Redman argues the trial court erred in granting summary judgment on the issues of liability and damages. As to the issue of liability, Redman contends the Agreement is ambiguous and susceptible of more than one interpretation and, thus, parole evidence is required to determine the intent of the parties. It concludes that because the intent of the parties is at issue, summary judgment is precluded.

Regarding the issue of damages, Red-man contends the trial court erred in awarding $1,000,000 in damages after determining that First Bank did not have a duty to mitigate its damages. Redman contends First Bank had a legal duty to mitigate its damages by pursuing its rights against Bouree. Redman specifically asserts that the trial court erred in finding the Agreement contained a stipulated damage provisions, which the trial court found relieved First Bank of its duty to mitigate damages.

| (Additionally, First Bank argues the trial court erred in refusing to award damages in the November 15, 2012 summary judgment. First Bank contends this failure allowed Redman to subsequently raise the issue of mitigation of damages, which it originally failed to do.

APPLICABLE LAW

Appellate courts review a trial court’s ruling on a motion for summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12); 94 So.3d 750, 755. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions, and any affidavits, admitted for purposes of the motion, show there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Smitko, supra. A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04); 876 So.2d 764, 765 (per curiam ). A genuine issue of material fact is a fact as to which reasonable persons could disagree. If reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.

Contracts are interpreted according to the true intent of the parties. La. C.C. art.2045; Bourgeois, Bennett, L.L.C. v. Gauthier, Downing, Labarre, Beiser & Dean, a P.L.C., 07-842 (La.App. 5 Cir. 3/11/08); 982 So.2d 124, 126. When the words of the contract are clear, unambiguous, and lead to no absurd consequence, no further interpretation may be made or consideration of extrinsic evidence be had in search of the parties’ intent and the contract must be enforced as written. La. C.C. art.2046; Bourgeois, supra. When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id. Conversely, when the terms of a contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parole evidence is admissible to clarify the ambiguity or show the intention of the parties. Lomark, Inc. v. LavigneBaker Petroleum, L.L.C., 12-389 (La.App. 5 Cir. 2/21/13); 110 So.3d 1107, 1111, writ denied, 13-654 (La.4/26/13), 112 So.3d 848. In this posture, determining the intent of the parties becomes, in part, a question of fact and the granting of summary judgment is appropriate only if there is no genuine issue as to the material fact. Carter v. BRMAP, 591 So.2d 1184, 1188 (La.App. 1st Cir. 1991).

Whether a contract is ambiguous is a question of law. Koeniger v. New-some, 03-1492 (La.App. 4 Cir. 2/4/04); 873 So.2d 652, 655. A contract is ambiguous when it lacks a provision bearing on the issue, its written terms are susceptible to more than one interpretation, there is uncertainty as to its provisions, or the parties’ intent cannot be ascertained from the language used. Lomark, 110 So.3d at 1111. However, “[t]he failure of a contract to provide for every possible alternative does not make the contract ambiguous.” Amoco Production Co. v. Fina Oil & Chemical Co., 95-1185 (La.App. 1 Cir. 2/23/96); 670 So.2d 502, 513, writ denied, 96-1024 (La.5/31/96); 673 So.2d 1037.

A court is not authorized to alter or make a new contract for the parties. When the language of a contract is clear, “it is not the duty of the courts to bend the meaning of the words ... into harmony with a supposed reasonable intention of the parties.” Clovelly Oil Co., L.L.C. v. Midstates Petroleum Co., L.L.C., 12-2055 (La.3/19/13); 112 So.3d 187, 192. In discussing ambiguity as it relates to contracts, the Louisiana Supreme Court has stated:

| ¡/The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity when none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. The fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous. [Internal citations omitted.]

Campbell v. Melton, 01-2578 (La.5/14/02); 817 So.2d 69, 76. The supreme court further noted that even if a contract is “inart-fully drawn” and a party now regrets the final outcome, the contract must be enforced if the plain language of the contract is clear and unambiguous. Id.

DISCUSSION

In its appeal, Redman specifically asserts that the Agreement is unenforceable because of the impossibility of the obligation. Redman maintains that its obligation under the Agreement was to repurchase the listed assets, which consisted of 20 placement contracts. It contends that neither First Bank nor Bouree own or possess all 20 of the placement contracts and, thus, the defined assets cannot be repurchased. Redman maintains the Agreement does not provide for the repurchase of a portion of the assets. Redman argues that because the Agreement does not contain a provision for what happens when less than all of the assets are available for repurchase, it is ambiguous and summary judgment is improper.

To the contrary, we find that the Agreement is clear and unambiguous. The Agreement clearly states that:

WHEREAS, as a condition to First Bank making the Loan to Borrower, Redman has agreed to repurchase the Assets from Bouree upon the occurrence of a[sic] Event of Default (as defined in the Note) with respect to the payment of any sum of principal or interest due under the Note ...

It further states:

Upon the occurrence of a Payment Default which remains uncured for a period of thirty (30) days or more, Red-man agrees to repurchase the Assets from Bouree (the “Repurchase ”) for a purchase price equal to the lesser of (i) $1,000,000, or (ii) the total amount of all unpaid principal and all accrued but unpaid interest due under the [9N ote at the time of the Repurchase.... The Repurchase Price shall be paid by Redman within forty-five (45) days from the date that First Bank delivers written notice to Redman of the existence of the uncured Payment Default and First Bank’s demand that Redman repurchase the Assets from Bouree.

Under the Agreement, Bouree agreed “to deliver the Assets to Redman contemporaneously with the delivery of the Repurchase Price, and agree[d] to execute and deliver any agreements, documents and instruments as may be reasonably necessary to evidence the Repurchase, including without limitation, bills of sale.” Further, under subsection two, the Agreement specifically states:

... Redman acknowledges that (i) it shall look solely to Bouree for delivery of the Assets following the Repurchase; and (ii) it shall have no rights, claims or actions against First Bank in connection with the Repurchase, including without limitation, any right to a refund of the Repurchase Price as a result of nondelivery of the Assets by Bouree.

Under the plain words of the Agreement, Redman’s obligation is to repurchase certain assets upon Bouree’s default on its note to First Bank. Upon Bouree’s uncured default and First Bank’s demand, Redman has an obligation to pay $1,000,000, which is less than the remaining amount owed on the note, to First Bank. It is then Bouree’s obligation to deliver the assets to Redman. The Agreement makes clear that if there any problems relating to the delivery of the assets following the repurchase, Redman’s sole remedy is against Bouree. In other words, Redman has no defense against First Bank as it relates to the recovery of the assets upon the repurchase.

The record shows that First Bank sent its first demand letter on May 19, 2011, notifying Redman that Bouree had been in default on its note for 87 days and demanding repurchase of the assets in the amount of $1,000,000. First Bank sent a second letter on June 16, 2011, again demanding Redman remit $1,000,000 for repurchase of the assets on the basis of Bouree’s default on its note. Redman never challenged Bouree’s default on the note. Thus, under the clear language of the | Agreement, Redman owed First Bank $1,000,000 within 45 days of the first demand. Redman’s concern that it could not recover all the assets listed in the Agreement because Bouree no longer possessed all the assets had no effect on Redman’s obligation to First Bank under the Agreement. Redman’s obligation under the Agreement was triggered by Bouree’s default. By the plain language of the Agreement, any problems Redman has with the recovery of the assets is solely between Redman and Bouree. If Bouree cannot deliver all the assets listed under the Agreement, Redman’s cause of action is against Bouree for breach of contract, not First Bank.

Under the clear and unambiguous language of the Agreement, Redman owed First Bank $1,000,000 upon Bouree’s uncured 30-day default and within 45 days of First Bank’s demand. Redman failed to remit the money to First Bank. We find this to be a clear breach of Redman’s obligation under the Agreement. Therefore, we find First Bank was entitled to summary judgment as a matter of law.

Additionally, we find no merit in Redman’s argument that the trial court erred in failing to consider First Bank’s duty to mitigate damages by first pursuing Bouree in order to reduce the amount of Redman’s liability. Louisiana Civil Code article 2002 provides:

An obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.

“This Article adjusts the conflict of interests that would otherwise exist when an obligee neglects to mitigate his damages and thereby exposes the obligor to further liability for consequences resulting from the obligor’s failure to perform that were reasonably avoidable by the obligee.” Lombardo v. Deshotel, 94-1172 (La.11/30/94); 647 So.2d 1086, 1092. The duty of an injured party to mitigate his damages presumes that further damage has occurred following the breach of | n contract. Schroeder v. DiPascal Cabinet Co., Inc., 467 So.2d 1380, 1382 (La.App. 5th Cir.1985).

In this ease, the doctrine is inapplicable as there is no indication that First Bank suffered further actual damage as a result of Redman’s failure to repurchase the assets. Additionally, Redman’s liability has not increased beyond that which was contemplated by the Agreement. Thus, we find no error in the trial court’s refusal to apply the doctrine of mitigation of damages in order to reduce the amount of damages owed by Redman.

Finally, we find First Bank’s claim that the trial court erred in denying its motion to clarify/alter/amend the November 15, 2012 judgment to include an award for damages to be moot. First Bank filed a second motion for summary judgment on December 20, 2012 specifically seeking judgment on the issue of damages. Summary judgment on the issue of damages was subsequently granted on January 11, 2013. Thus, the issue of whether the November 15, 2012 should have included an award for damages is moot.

DECREE

For the foregoing reasons, we find First Bank and Trust Company was entitled to summary judgment against Redman Gaming of Louisiana, L.L.C. as a matter of law and affirm both the November 15, 2012 and January 11, 2013 judgments. Redman is to bear all costs of this appeal.

AFFIRMED.

      . The other property included 50 Summit VGDs, 9 VLCs, 20 G-Tech Site Controllers and a 2002 Ford 150 truck.

      . The purchase agreement divided the purchase price as follows: $770,000 for equipment; $1,000,000 for the customer list and right to serve the customers; $20,000 for good will; and $10,000 for a nonsolicitation agreement.

      . The notices of judgment for the November 15, 2012 and January 11, 2013 judgments were mailed by the clerk on January 28, 2013. Redman filed its motion for suspensive appeal on February 27, 2013, which was timely under La. C.C.P. art. 2123.